COURT FILE NO.: FC-21-1757

DATE: 2021/11/24

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Wilfrid Arthur Andre Leblanc, Applicant

AND

Maripierre Barrette, Respondent

BEFORE: Mackinnon J.

COUNSEL: Natasha Chettiar, for the Applicant

Marc Coderre, for the Respondent

HEARD: November 10, 2021

ENDORSEMENT

Introduction

1The applicant father seeks to restore his parenting time to what he asserts was an agreed upon equal shared residency, and for shared decision making. The respondent mother seeks primary residence of the children, with alternate weekend parenting time for the father. She asks for sole decision making authority and for an order that the children attend Casselman Public School, where they are currently registered.

2The parties have two daughters, ages 4 and 6. The father also has a son from a prior relationship, now 13 years old, who lives half of the time with him. It was after allegations were made that this boy had inappropriately touched his younger sister that the current parenting disagreements arose. The allegations were not verified by the Children’s Aid Society . Nor did a police investigation result in any charges. Based on these outcomes the father thought that the alternating week arrangement should be reinstated but the mother disagreed.

3The father submits there was an agreement to share parenting time and responsibilities for their daughters, which was implemented upon separation in June 2021. The mother submits that the separation occurred in April 2021, that the children resided primarily with her until summer when, and for which period of time only, they agreed to alternate weeks. She submits that she has always been the primary parent to the children including with respect to making decisions for them.

4The parents agreed to an order requesting the Office of the Children’s Lawyer to conduct a section 112 investigation. This order was made on November 10, the day the motion was argued.

5There are many factual discrepancies in the mother’s affidavits, text messages and statements attributed to her by a physician who examined the child in question. These call her credibility into question and would support an inference that the agreement to alternate weekly residential parenting time was not limited to the summer months, rather had no agreed upon end date. I conclude that ordering week about parenting time is not currently in the children’s best interests. They are registered in the Casselman school which is a 35 to 40 minute drive each way from where the father lives. Contrary to the father’s position, I find he did acquiesce in this school registration, and in any event, he agrees they should not change schools at this time. The extensive driving entailed by the father’s proposed alternating week schedule would not be in the children’s best interests.

6Accordingly, a temporary order is made that the children will reside with their mother from Monday mornings until Fridays after school, and with the father during every weekend. If either a Friday and/or a Monday are a school holiday, statutory holiday or P.D. day then the father’s parenting time shall be extended to Thursday after school and/or to Tuesday morning at school. School vacations will be divided equally between the parents on an alternating week basis. The father shall ensure that his son is not left alone with the children at any time during his parenting time of his daughters.

7This order provides both parents substantial parenting time in a way that minimizes the time spent travelling between residences. The order is reviewable when the OCL investigation is complete.

Mother’s factual discrepancies

8I reject the mother’s statement that the parties separated in April 2021. The doctor’s note made in September records her as saying they separated in June. The mother also deposed that in April the father left and moved in with his parents, but his mother denies this. The date of separation is important. The June date undermines the mother’s testimony that she was the primary caregiving parent for the early months of the separation and that the week about arrangement was only ever intended for the summer.

9I also reject the mother’s statement that she only agreed to the alternating week arrangement on condition that the father would spend his time with the children with his parents. The father denies this was a condition. His mother deposed in her affidavit that she never heard about such a condition. She adds that they spent part of the time at their cottage together but not all of the time. The mother seems to have been aware of this in that she describes exchanging the children at the father’s place in Vanier, and at the grandparents’ cottage. I prefer the testimony of the father and grandmother in this regard.

10The mother’s evidence with respect to the alleged sexual touching by the 13 year old son is inconsistent. In her first affidavit she says she texted the father on August 6 that the boy may have been inappropriate with the youngest child, but says the girls were not clear to her. She asked the father to warn his son. In a text to the paternal aunt on September 25, the mother says she saw the boy touching the youngest child while she was driving the three children in her van. She heard her child say, “it is hurting”, and looked in the rear view mirror to see his fingers in her.

11The mother did not explain or reconcile these statements in her affidavit evidence.

12On September 6 when the mother picked up the girls from their father, he told her that the youngest had been complaining about redness in her private area. The mother says this time the child told her that her brother had touched her. The next day she took the child to the doctor. The mother says the doctor told her the child had been inappropriately touched. Her lawyer’s letter dated October 13 letter reports, apparently on information received from the mother, that the doctor had confirmed some form of touching and digital penetration.

13The doctor’s letter sets out different information. It reports the mother as saying that one month prior the mother noted redness in the child’s vulva area. After the last visit she questioned the child who said her brother had touched her there. Also, that a month ago the child complained of pain there. The mother is not noted as saying she saw abuse occur in the rear view mirror. The doctor describes a rash and writes that abuse should be ruled out, but it could also be from a lack of adequate wiping after urination, or from overly warm clothing. The doctor’s letter does not refer to digital penetration.

14The doctor did recommend that the father should not have contact until after abuse has been ruled out.

15Both children denied any such sexual touching by anyone including their brother when interviewed by CAS worker. The six year old told the worker she understood her brother had touched her sister inappropriately while they were in the car with him, her father, and her aunt, but that she herself had not seen it. The source of this information was not stated.

16The police investigation resulted in no charges.

17The mother deposes that the agreed end date for the summer alternating week arrangement was August 22, after when the father would have alternating weekends only. She supports this as being their agreed arrangement by deposing that the children were with her for the two weeks commencing August 22 without any complaint from the father. The father disagrees. He produced screen shots of pictures taken at his parents’ cottage where he and the children were on August 25, 26 and 27. These pictures were posted in a group chat which includes the mother. His submission is that the children were with him for the week ending August 27 and then came back to him on September 3, in accordance with the alternating week pattern. The mother did not explain or contradict the dated photographs. I find that the alternating weekly arrangement did continue until September 3.

18The father deposes that the mother asked if she could have the children on the September 6 for a funeral and he agreed, but that thereafter she would not return the children to him as expected. He does not say who had died, nor does the mother comment upon the funeral at all. The explanation for why the father had no contact with the children after September 6 appears to have been the advice received for the doctor the following day, as opposed to any prior agreement between the parents that his parenting time would change to alternating weekends only.

The school registration

19I find that the mother did tell the father that she was registering the children in the Casselman school. On August 13 he sent her a text asking whether she had registered them, and if so the name of the school and schedule, and he went on to offer to help her with any documentation she may need. In his second affidavit he admits she told him she was registering the children in this school. No doubt this was her choice in that the school is close to where she is currently living but given his knowledge and offer to assist, I find he did acquiesce in her choice of school.

20Accordingly, the children shall remain registered in this school, pending further order of the court.

Other best interest factors

21The father acted in the children’s best interests when on August 6 in response to mother’s communication raising the concern about his son he suggested she take the child to a doctor or hospital immediately. He spoke to his son immediately and arranged that he would not be alone with the girls thereafter. He also advised his son’s mother and obtained her assistance. He communicated his concerns to his sister who is a physician. It was she who ultimately made the report to the CAS so that it would be investigated. The father has also suggested that he and the mother work together to agree on a safety plan to provide further assurances for the protection of their daughters from the possibility of any sexual impropriety by his son.

22During the period of the investigation the mother unreasonably cut off the father’s family from contact with the children, including their aunt and grandparents. She also threatened to obtain a restraining order against him and his entire family.

23The mother did not resume contact between the father and children after September 17 when the CAS advised that the allegations had not been verified. When she did make a proposal to do so she tied parenting time to other terms she would likely know he would not agree to, and which were not reasonable preconditions to resumption of contact in any event. She also involved the children by handing them the phone and telling them to tell their father what they had told her, namely that they had lied to the CAS worker.

Decision making

24There are decisions that need to be made on behalf of the children at this time. They need a doctor and dentist in Ontario. Given that pursuant to this temporary order the children will be residing with their mother during the weekdays she shall be the parent who shall select these professionals for the children, and she shall notify the father of her choices when made. The father is equally entitled with the mother to contact these individuals and to provide them and receive from them information pertaining to the children.

25Weekend extracurricular activities shall take place in the area where the father is residing. He shall be responsible to arrange these and to bring the children to the activities he does arrange. He shall notify the mother in advance as to any extracurricular activity in which a child is registered, including providing her with the contact information with respect to it. The mother may not attend these activities. She is free to arrange extracurricular activities for the children on her own time if she chooses, on providing the same notice to the father, but which the father may not attend. The only exception is that either parent may attend any year end type of performance or event associated with any activity a child is registered in.

26Any other decisions that must be made for the children while this order is in force shall be made jointly by the parents or failing agreement by order of the court.

Child Support

27Counsel expected to be able to resolve this issue when the parents’ income and employment information comes available. If they cannot agree, a case conference should be scheduled in the normal course to canvas the issue with a judge or associate judge.

Costs

28Neither party has succeeded in obtaining the order sought in their motion or cross motion. If costs are sought in any event or having regard to any offers made to settle the motions which counsel are unable to resolve, then I will determine the matter by written submissions. These shall be limited to two pages or less plus attached bills of costs and offers if any. The applicant’s submissions are due on January 10, and the respondent’s on January 10, 2022.

Mackinnon J.