COURT FILE NO.: 229-2019

DATE: 20210129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD RENAUD, and NICOLE VILLENEUVE-RENAUD

Applicants

– and –

JESSICA DORALICE PROVOST and MARTIN RENAUD

Respondents

Sophie Reitano, for the Applicants

Christopher Folz, for the Respondent, Jessica Doralice Provost

HEARD by teleconference: January 21, 2021, in L’Orignal

REASONS FOR decision

Beaudoin J.

1The Applicants, Richard Renaud and Nicole Villeneuve Renaud (Richard and Nicole) seek summary judgment granting them final sole custody of Skyler Renaud, (Skyler) born May 30, 2014. The Applicants are Skyler’s grandparents. The Respondents are Skyler’s parents, Jessica Doralice Provost (Jessica) and Martin Renaud. Martin Renaud had not responded to this motion and he has not taken an active part in these proceedings.

2Nicole and Richard also seek an order for access between Skyler and his parents.

Background

3Richard and Nicole reside in Rockland, Ontario. They have been married 34 years and they have two adult sons. As noted, one of these sons is Skyler’s father. Nicole has worked as a nurse for over 30 years. Richard has worked as a real estate agent since 2004.

4Skyler’s parents, Jessica and Martin, separated when he was 4 - 5 months old and Skyler thereafter lived with Jessica. Initially, Jessica stayed with a friend. Jessica then moved to Thurso, Quebec with a new boyfriend. This relationship lasted somewhere between 9 and 12 months. Following this, Jessica moved to Orleans with a new boyfriend who had two children. When this relationship ended, Jessica moved to Vanier and lived at various times with other boyfriends. Jessica moved to Vanier when Skyler was about 3 years of age.

5In March of 2018, Jessica was the victim of a violent sexual assault. Jessica’s home was trashed, while Skyler was present. He was found by Nicole and Jessica was brought to the hospital. Skyler has been living with the Applicants since that time, apart from a one-month period between August 24 and September 30, 2018, and for approximately one month, in or around August and September of 2019 when he resided with Jessica.

6After the March 2018 incident, Jessica has moved around a lot and had difficulty finding stable housing and employment. There were occasions when the Children’s Aid authorities were involved and contacted. During this time, Jessica’s access with Skyler was supervised either at Richard and Nicoles’s home or at the home of a friend. Jessica went to stay with her father for a period of time.

7In June of 2018, Jessica left her father’s home, she was in Toronto and Montreal for brief periods. In July 2018, Jessica went to Buckingham, Quebec to live with another friend. Skyler was returned to his mother’s care. When Jessica’s friend threw her out, Skyler was returned to live with Richard and Nicole. Jessica was then back in Ottawa with a friend but there was no space for Skyler. Skyler started school in Rockland in October 2018.

8Jessica went to stay with Sheri Morwood. Jessica had access to Skyler at Sheri’s home. There was a fight between Sheri and Jessica and Sheri asked her to leave.

9Jessica then went to stay with her friend Savannah, Savannah’s husband and their child. In August 2019, Skyler returned to live with Jessica, however, there was a conflict at that residence and Jessica was kicked out and Skyler returned to live with his grandparents.

10In August of 2019, Jessica announced a plan to move to New Brunswick and live with her uncle where she could start her life over. She planned to leave Skyler behind until she established a life there. Things did not work out as planned. According to the Applicants, Jessica was kicked out of her uncle’s home and she moved in with someone else.

11In the face of Jessica’s threats to return to Rockland to retrieve Skyler and bring him to New Brunswick, the Applicants brought an urgent motion to obtain the temporary sole custody of Skyler. The motion was heard on October 11, 2019 and temporary sole custody of Skyler was granted to Richard and Nicole. This order was further confirmed on the return of the motion on December 12, 2019.

12After Jessica returned from New Brunswick in October 2019, she resided in Ottawa and continued to move around a lot. According to the Applicants, they encouraged regular FaceTime access between Skyler and Jessica. Since Jessica did not always respond, it was a term of the December 23, 2019 order that Jessica was to initiate the FaceTime access every second day There continues to be issues regarding these calls.

13The Applicants have facilitated in person access between Skyler and Jessica. Since October 2019 until August of 2020, they supervised the access for several hours at their home in Rockland, and on a few occasions, at Jessica’s home, wherever she resided at the time. The Applicants often drove a Jessica to and from her access visits.

14An incident occurred between Nicole and Jessica on August 28, 2020 where Nicole claims she was assaulted by Jessica and she had to protect herself. Since this incident, no supervised access visits have taken place in the Applicants’ home.

15On or about February 12, 2020, the Office of the Children’s Lawyer (OCL) was appointed in this matter. The affidavit and report of Ms. Barbara Mitchell from the OCL was filed on October 13, 2020.

16During the time of the OCL’s involvement, namely from February 12, 2020 to October 8, 2020, Jessica moved on at least four known occasions as reported by Ms. Mitchell.

The OCL Report

17Ms. Mitchell interviewed Richard and Nicole, Jessica and Martin. She observed the interaction between Skyler and his grandparents. Her observations of the interactions between Jessica and Skyler took place in Richard and Nicole’s’ backyard. Ms. Mitchell also made observations of the interactions between Martin and Skyler. Martin has a new partner, Lena Moore, who was also present. This observation was also made in the grandparent’s home. Ms. Mitchell interviewed Skyler on one occasion.

18Amongst other things, Ms. Mitchell learned the following about Skyler:

• Skyler is doing well at school. He has made friends there.

• Skyler likes to build, and he has a good imagination. He has lots of energy.

• Since the incident in 2018, for which Skyler was present, Richard and Nicole report that Skyler suffered from nightmares until about nine months before the OCL’s involvement. He is very reactive to loud voices.

• Skyler participates in jujitsu and baseball as community activities.

• Skyler’s report cards and progress reports from school indicate that he is attending regularly and making good progress.

• Skyler has been seen regularly by Dr. Lefebvre for checkups and immunizations.

• Due to chronic ear infections/issues he was referred to a specialist doctor Scherer.

• Skyler was seen by the dentist in November 2018 where he was diagnosed with multiple cavities and a recommendation was made for a referral to a specialist. Jessica had refused the referral. Skyler was last seen by the dentist in 2019 when he was brought by Nicole.

• Skyler has no real recollection of living anywhere other than with his grandparents.

• Skyler is comfortable with Jessica and is physically affectionate with her.

• Skyler is comfortable with Martin and Lena. Skyler hugged his father who responded positively.

19At page 14 of her Report, Ms. Mitchell writes:

The major concern is Jessica’s living situation. When this investigation began, Jessica reported staying with two roommates and had plans to move with a friend to Barrhaven. This plan did not occur. Jessica reports that she has stayed at some Airbnb’s and with friends, including a friend in Gatineau and at the time of this report, she was staying with a friend in Ottawa and looking for a place on her own.

Jessica’s moving and housing instability is not recent. She describes several moves once she was on her own with Skyler and that these living arrangements ended either due to lack of a job or conflict with her roommate. Since 2018, Skyler has returned to her care on two occasions. On both occasions, Jessica reports that the situation fell apart due to difficulties with the roommate at that time. Jessica describes herself as the victim in all of her roommate conflicts. The fact remains that she has moved on multiple occasions, often as a result of conflict with whoever she was living with.

20Ms. Mitchell also made the following collateral contacts:

1. telephone Interview with Sheri Morwood, family friend;

2. telephone interview with Lena Moore, Martin’s partner;

3. telephone with Alec Claesson, family friend of Jessica;

4. telephone interview with Mitch Monette, family friend of Jessica;

5. telephone interview with Stephane Provost. Maternal grandfather;

6. telephone interview with Dr. Abdoul Abou Sharbin, dentist; and

7. telephone interviews with Roxanne Marleau, Valoris for Children and Adults of Prescott Russell

21In addition to reviewing the court documents including the numerous affidavits that had been filed at that time, Ms. Mitchell reviewed the following reports:

1. documentation received from École élémentarie publique Carrefour Jeunesse;

2. documentation received from Valoris for Children and Adults of Prescott Russell;

3. documentation received from Ottawa ENT Associates/ Dr. Scherer;

4. documentation received from the Ontario Provincial Police;

5. documentation received from the Ottawa Hospital;

6. letter received form the Children’s Aid Society of Ottawa;

7. documentation received from Dr. Pierre Lanoix regarding Martin Renaud;

8. documentation received from Dr. Yves Lefebvre regarding Skyler Renaud;

9. documentation received from Dr. Yves Lefebvre regarding Jessica Provost;

10. documentation received from the Ottawa Police Service; and

11. documentation received from Dr. Pierre Lanoix regarding Richard Renaud and Nicole Villeneuve-Renaud

22Ms. Mitchell made the following recommendations:

1. It is recommended that Richard and Nicole Renaud have sole custody of Skyler Renaud. As part of this, they will ensure that both Jessica Provost and Martin Renaud are made aware of the names and contact information of any professionals involved with Skyler and that these professionals are aware that both Jessica and Martin are entitled to receive information concerning Skyler.

2. It is recommended that Jessica’s access be every second Sunday for a four-hour period from 2:00 p.m. to 6:15 p.m.

a) There is no requirement for these visits to be supervised. However, it is recommended that the exchanges are to occur through Family Services Ottawa access center. …

b) If the parties wish to plan access prior to the reopening of the Family Services Ottawa access center they may do so by agreeing to a public place for exchange such as a police station.

c) If after three months of access that is consistent with no difficulties, the access could be changed to Saturday with exchanges through the access center where the times would be from 9:30 a.m. to 4:00 p.m. allowing for a longer visit.

3. It is recommended that Jessica and Skyler continue to FaceTime but with a planned schedule of twice per week. The proposed schedule is every Tuesday and Thursday at 6:30 p.m.

4. Face to face or telephone communication between Richard and Nicole Renaud and Jessica Provost is not advised due to the level of conflict in dispute regarding the sharing of information. It is recommended that the parties communicate either through a secure website such as www.ourfamilywizard.com or via special designated email account. This way all the communication between the parties will be documented.

5. It is recommended that Martin Renaud have supervised access with Skyler every second weekend (opposite from the weekends when Jessica Provost has access) for a four-hour period. This access can occur either at the home of Nicole and Richard Renaud or at another location with the understanding that either Nicole or Richard are present to supervised at all times. If they are unable or unwilling to do so, then access should be moved to a supervised access center.

6. It is recommended that Richard in Nicole Renaud pursue counselling and support for Skyler to help him to understand and cope with this complicated family situation. They can speak with the school and/or Valoris regarding supports available to Skyler.

7. Changes in the above plan are dependent on Jessica Provost’s ability to be consistent in their time with Skyler and establish a stable living arrangement over an extended period of time. For Martin Renaud, changes are dependent upon whether he has sought treatment for substance abuse in the outcome.

23I find that Ms. Mitchell conducted a thorough and well-balanced investigation. Her report was not disputed, and it is uncontested evidence to be considered by me in my analysis of the facts. While the Respondent mother attempted to find some issues with the OCL report, none of these criticisms affect the weight of Ms. Mitchell’s evidence or the recommendations that she has offered.

24Since these recommendations were made, the Applicants implemented the four-hour access every second weekend and have, as of the date of the hearing of this motion, implemented the full day access on Saturdays. At present, supervised exchanges at the Family Services have been suspended as a result of Covid-19. The grandparents drive Skyler from Rockland to Ottawa at a public location near Jessica’s home for her access visits with Skyler. Communication takes place through designated email accounts.

Position of the Applicants

25The Applicants submit that there are no material facts in dispute that require a trial. Since March of 2018, they have provided a stable home for Skyler except for two very brief periods when Skyler was in his mother’s care. They submit that they provide good care to Skyler and it is the only consistent and stable home he has known.

26Skyler has his own bedroom along with all necessary clothing. Nicole and Richard ensure that his needs are met and that he attends school every day as well as his medical and dental appointments. Skyler is being followed by a doctor with respect to his chronic ear infection issues and it is currently on call for surgery. Nicole points out that this is only been possible because Skyler is in their care since Jessica refused to allow him to be treated when he was residing with her.

27They submit that Skyler needs stability in his life to live a normal, safe and grounded childhood. He has attended school in Rockland since October of 2018. He has made friends and has a sense of community with this school. Nicole and Richard attend all important events for Skyler at school as well as all parent- teacher meetings.

28According to the Applicants, Jessica often drinks and has a history of drug and other substance abuse. They maintain that Jessica has voluntarily admitted to being involved in offering escort services. They submit that neither Jessica nor Martin have been able to offer a stable and supportive lifestyle to take Skyler under their care under a full- time basis. They hope that this will change as they believe that Skyler deserves to live with parents who love and care for him. They maintain that they are the best plan for Skyler at this time.

29They support both parents having access with Skyler and they will accommodate, as they always have done, traveling to Ottawa to bring Skyler for visits with his mother.

Position of the Respondent Jessica Provost

30Jessica blames the Applicants for failing to support her when she separated from Martin and accuses them of spoiling Skyler. In her responding affidavit, she attempts to explain her many moves and she blames others for all her difficulties. She complains that Nicole interferes with her parenting and she admits that communication between them is difficult. She disputed the evidence offered by others in these proceedings.

31Jessica now claims to have rented a two-bedroom apartment where she is the only person on the lease and that she lives there alone. The only evidence of that lease is a screenshot from an online rental portal. That screenshot simply lists an address, start/end dates, and the rental cost of $1300 a month. There is no copy of a lease and there is no evidence that demonstrates how Ms. Provost can afford to pay that rent. Her affidavit in response to this motion does not raise any evidence of stable employment at any time since 2018.

32In short, Jessica Provost’s affidavit is devoid of any plan for Skyler nor does it provide any evidence of stability on her part. Despite its 53 paragraph length, there is only one sentence (paragraph 45) that refers to Skyler without making a reference to others: ”I am in the process of fixing up a room for Skyler in my two-bedroom apartment that I reference at paragraph 19.” Her responding affidavit fails to raise a genuine issue for trial.

The Law

The Applicable Rules

33The following rules of the Family Law Rules, O. Reg. 114/99 are relevant:

Report of Children’s Lawyer

21. When the Children’s Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43

e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it;

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

Evidence Not from Personal Knowledge

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

No Genuine Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

The Relevant Legislation

34Sections 21(1) and 24(1) of Children’s Law Reform Act, R.S.O. 1990, c. C.12 are the governing provisions:

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

35Section 112(3) and (4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 are also applicable:

Report as evidence

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3).

Attendance on report

(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness. R.S.O. 1990, c. C.43, s. 112 (4); 1994, c. 27, s. 43 (2).

The Applicable Case Law

36Any discussion of the applicable law regarding summary judgment begins with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R 87, where the Court said this at paras. 49 and 50:

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are inter-connected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

37The Family Law rules were amended to reflect the amendments to Rule 20 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The test for summary judgment is the same and the principles in Hryniak have been applied to summary judgment motions in family law cases since that time.

38The Respondent mother sought to invoke parental rights and fundamental autonomy protected by the Canadian Charter of Rights Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) yet all the decisions relied upon involve a contest between parents and the state in child protection cases. This caselaw has no application in this custody dispute.

Analysis and Conclusion

39I conclude that there are no genuine issues requiring a trial and that the Applicants shall be granted sole custody of Skyler Renaud with access to their Respondent mother on those terms recommended by the OCL.

40In applying the relevant factors set out in section 24 (2) of the Children’s Law Reform Act, I find that the following are applicable.

Section. 24(2)(a) The love, affection and emotional ties between the child and the parties

41There is no doubt that Skyler enjoys the love and affection of his grandparents and of his parents. There is no doubt that the Respondent, Jessica Provost loves her child and that there is an affectionate bond between them. That fact alone is insufficient to make a custody order in her favor.

Section 24(2)(c) The length of time the child has lived in a stable home environment – and- Section 24(2)(f) the permanence and stability of the family unit with which it is proposed that the child will live

42Except for two very brief periods, Skyler has lived with Richard and Nicole since March of 2018, a period of almost three years. Richard and Nicole have provided him with the only stable home he has ever enjoyed in his short life. They have lived in their community for 34 years and have secure employment.

43Skyler’s separation from his mother was triggered by a traumatic experience that was followed a period of housing instability. The Respondent mother’s evidence with respect to her new accommodation is woefully inadequate.

Section 24(2)(g) The ability and willingness of each person applying for custody of the job to provide the child with guidance and education, the necessaries of life and any special needs of the child – and –Section 24(2)(e) any plans proposed for the child’s care and upbringing

44The evidence before me satisfies me that the Applicants have met Skyler’s needs in every way. They have enrolled him in a local school where he is functioning academically and socially. They have sought appropriate medical and dental care for him. He is part of a community and he has found friends. They have not yet sought counselling for Skyler but plan to do so. They facilitate access between Skyler and his parents.

45The Respondent mother has not provided any evidence of a plan. Her responding affidavit fails to address the most important issues at hand. There is no evidence with respect her employment, her ability to financially provide for Skyler, what school he would attend and who would look after Skyler if day care would be required. Furthermore, there is no new or additional evidence put forward that would lead me to believe that better or different evidence would be provided if a trial were to take place.

46I accordingly make the following orders:

a) The Applicants, Richard Renaud and Nicole Villeneuve Renaud will have custody of the child, Skyler Renaud, born May 30th, 2014.

b) Skyler Renaud’s main place of residence shall be with the paternal grandparents.

c) The Respondent, Jessica Provost will have access to the child every second weekend for an 8-hour period, unless otherwise agreed in writing by the parties or ordered by the court. The exchanges are to occur in a public place as agreed upon in writing by the parties.

d) The Respondent, Jessica Provost, shall initiate FaceTime contact with the child, twice per week, every Tuesday and Thursday at 6:30 p.m. The Respondent mother shall exhibit respectful behavior to the Applicants and to the child during these calls, and at all times during the exchanges and in written communications with the paternal grandparents.

e) All communications between the Applicants and the Respondent mother, Jessica Provost, will be in writing only through the following special designated email accounts: nicolevrenaud@outlook.com for the applicants in eve.rosexoo@gmail.com for the Respondent mother.

f) The Applicant shall ensure that both Respondents, Jessica Provost and Martin Renaud are made aware of the names and contact information of any professionals involved with the child, and that these professionals are aware that both Respondents are entitled to receive information concerning the child.

47I decline to make any order as to costs as I am not confident that any of these would be paid. A costs order would serve no purpose except to drive another unnecessary wedge between the parties.