COURT FILE NO.: FC-16-1180-1 DATE: 2022/03/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sophie Couturier-Bertrand, Applicant (Respondent on the Motion) -and- Trevor Clarmo, Respondent (Moving party on the Motion)

BEFORE: Anne London-Weinstein J.

COUNSEL: Robbie S. Loomer, for the Applicant John Allan, for the Respondent

HEARD: January 4, 2022

Endorsement

History of the Proceedings:

[1] The Respondent Father (the Father) seeks to vary the final order of Justice Sheard. The parties entered into Minutes of Settlement that were endorsed by Justice Sheard on November 14, 2016. The order granted the Father parenting time with the children every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m. and every Sunday from 9:00 a.m. to 5:00 p.m. The Applicant Mother (the Mother) permitted the Father to have parenting time with the children that exceeded the terms in the original final order. The Mother terminated this practice as she claimed that the Father was not maintaining sobriety. The Father claims the practice was terminated when the Mother learned he had a new live-in partner who was involved in the parenting of the children.

[2] The children are now five and eight years old. Both are now attending school. The Mother’s spouse is now deceased. The Father is now in a live-in relationship with Dana Seguin. Ms. Seguin is involved in the care of the children.

[3] The Father was in a car accident at the time that the order was made where he was found to have cocaine and alcohol in his bloodstream. The Mother’s fiancé suffered from mental health issues and alcoholism. He committed suicide in December 2020.

[4] The Father allowed one of the children to operate a motorized recreational vehicle by himself, despite his young years. The child injured himself, albeit not seriously. The Father maintains that the Children’s Aid Society (CAS) inspected the vehicle and the CAS had no concerns. However, a report from the Children’s Hospital of Eastern Ontario (CHEO) indicated the child reported he had been driving a full-size all-terrain vehicle (ATV) unsupervised and it flipped over backwards, rolling down a hill. The child, according to the hospital report, said that he also rolled down the hill with the ATV and was then able to flip it upright and push it back to his dad’s house. The Father did not inform the Mother regarding the accident. The Father denies that the accident occurred and maintains that the injury was the result of the child being hit in the head with a plastic dinosaur by his sister. He accuses the Mother of coaching the child to fabricate stories in regard to how the injury was sustained.

[5] The Mother also alleges that one of the children was inappropriately touched by a childhood neighbour of the Father.

[6] For a period of time in the past, the Father says he was permitted to have increased parenting time with the children. From 2017 to 2020, the children’s visits with the Father included week-on, week-off time in the summer and regular overnights/weekends. The Father maintains that the Mother terminated all parenting time after she became aware that the Father had a girlfriend who was involved in co-parenting the children. The Mother maintains that she decreased parenting time due to the Father not maintaining sobriety. The Mother also denies that she and the Father engaged in a week-on, week-off schedule with the children.

[7] Both parties have demonstrated a lack of co-operation toward each other as co-parents of these children. The Mother called the police to attend when the Father simply pulled into her driveway to drop the children off. She forced the Father to meet with the children in a parking lot for a certain time. The Father failed to inform the Mother that the child had a fall and that she should keep an eye out in case the child had a concussion.

The position of the parties:

[8] The Father seeks to vary the final order of Justice Sheard on the basis that there has been a material change in circumstances.

[9] The Father cites varied factors that he argues, when viewed as a whole, warrant a finding that a material change in circumstances has been established. The Mother maintains there is no material change in circumstances. In the alternative, the Mother argues that if a material change exists, it is not in the best interests of the children to vary the final order of Justice Sheard.

[10] The Mother submits that the order is structured in its current form due to the Father’s addiction issues. There is no evidence that these issues have been resolved since the order was made. The Mother argues that the Father’s failure to address his addiction issues militates against granting him increased parenting time.

[11] The Father also seeks a finding that the Mother’s denial of the Father’s parenting time on March 21, 2021 was wrongful, in bad faith and not in the children’s best interests.

[12] He seeks an order that the children have parenting time with him for the summer holidays for a total of 14 days either continuously or for seven days each in July and August. The summer time shall be consecutive and uninterrupted and shall override the regular parenting schedule. He seeks an interim order that the missed parenting time be made up promptly. He seeks an interim order for improved parenting time as follows: Week One: Tuesday from 2:00 p.m. to 7:00 p.m., Thursday from 2:00 p.m. to 7:00 p.m. and Friday from 2:00 p.m. to Sunday at 7:00 p.m.

[13] On Week Two, he seeks Tuesday from 2:00 p.m. to Thursday at 7:00 p.m. and Sunday from 7:00 a.m. to 7:00 p.m.

[14] The Father also seeks an order including the following: neither party shall schedule activities for the children during the other parent’s time with them; neither parent shall speak ill of the other parent or partner/spouse to the children and shall not permit associated third parties to make negative comments about the other parent, particularly in the presence of the child; and neither party shall be under the influence of illicit drugs or alcohol while in a caregiving role. The parties shall only communicate through OurFamilyWizard.com until further notice. Furthermore, the Father seeks the involvement of the Office of the Children’s Lawyer (OCL) for a clinical investigator to provide a report for the contextual guidance of the court. He also seeks costs.

[15] The Mother seeks an order returning the Father’s notice to change the order of Justice Sheard dated September 14, 2016, an order dismissing the motion to change and costs on a full recovery basis.

Legal Analysis:

[16] The threshold issue in this case is whether there is a material change in circumstances that would impact the best interests of the children. If such a material change is found, the court must conduct an analysis as to what variation, if any, would be in the best interests of the children. A material change is a change that is substantial, continuing and that "if known at the time, would likely have resulted in different terms" to the order: see L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. This test was further explained in Dedes v. Dedes, 2015 BCCA 194, 372 B.C.A.C. 70, where the British Columbia Court of Appeal stated:

[25] As 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. [Citation omitted.]

[17] I note that at the time the order was made the children were very young and the Father was recovering from the car accident where he sustained injuries.

[18] In Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court noted that the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough; the change must be fundamental.

[19] Trivial, insignificant or short-lived changes will not justify a variation. Hickey v. Hickey, [1999] 2 S.C.R. 518.

[20] Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of the variation application. As Gray, J. stated in Kerr v. Eason, 2013 ONSC 2486, at para. 62, aff’d 2014 ONCA 225, “parents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

[21] The Father in this case argued that the Mother’s withholding of the children constituted a material change in circumstances when that factor was considered in conjunction with other factors, including the ongoing hostility of the parties toward one another.

[22] The Mother did withhold the children, but it was not for an extended period of time. She also offered make-up time that was not suitable for the Father. I did not find that this factor constituted a material change in circumstances.

[23] The Mother argued that the order was based on the Father’s addictions. There is no evidence that the addiction issues have been resolved; therefore, there is no material change in circumstances. There is limited evidence before me that the order was based on the Father’s addiction issues. The Father was under the influence at the time of his accident. However, this was some time ago. I have no evidence before me as to the Father’s current sobriety. The children were also quite young at the time the order was entered.

[24] To determine the first stage of establishing a material change, the court should only take a limited look at evidence predating the order to understand how it was made. However, once the material change is shown, the court can engage in a full inquiry, including facts that predate the order. Segal v. Segal (2002), 162 O.A.C. 119 (C.A.).

[25] The aging of a child does not automatically constitute a material change, but it can be a major factor: see: Brown v. Lloyd, 2015 ONCA 46. It also constituted material change when combined with the children’s new views: see Sterling v. Blake, 2013 ONSC 5216. A child’s age increasing from 18 months old to 3 years old was found to constitute a material change in Elliot v. Loewe (1993), 44 R.F.L. (3d) 445 (Man. C.A.). This approach was followed in V.E.L. v. L.E.V. where the child’s age increased from the age of five to nine.

[26] In Elliot v. Loew, the Manitoba Court of Appeal made it clear that children’s needs change and will change frequently. Parenting orders should reflect those changes. It wrote at p. 447:

The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation. Ideally, variation will occur by the consent of the parties, who are in the best position to recognize the best interests of the developing child. Where the parties agree on the needs of the child and the need for ongoing flexibility regarding custody and access, court intervention is happily avoided.

At this state of this child’s life, periods of access should be regular and meaningful in light of this child’s needs in relation to nap time, day care involvement, and home routine.

[27] Where the order was only two years old and the wishes of the children were not before the court, ageing did not constitute a material change: see: Easson v. Blase, 2015 ONSC 5170, 68 R.F.L. (7th) 436.

[28] One of the children was still breastfeeding at the time of the original order. The order is over five years old. In the life of a young child, five years constitutes a significant period of change and development. Both children are now in school. They have March break and school holidays where they would be able to spend more time with the Father.

[29] I found that the passage of five years in the life of the children constituted a material change in circumstances. However, in my view this order should be made on a temporary and without prejudice basis, rather than a final basis. The views of the children should be ascertained. I lack evidence regarding the Father’s sobriety. Given the Mother’s allegations that the original agreement was drafted to reflect the Father’s issues with sobriety, I am concerned that there is no evidence regarding the Father’s current alcohol and drug use. I have considered that the Father’s time with the children has not been previously supervised out of a concern for drug and alcohol abuse.

[30] I am requesting that the OCL become involved in this matter and ascertain the views of the children. I have seized myself of this matter.

Best Interests of the Child: Children’s Law Reform Act, R.S.O. 1990, c. C.12

[31] I have found that there is a material change of circumstances in this case that could impact the analysis of the best interests of the children. The children are significantly older at this point in time and both are now in school. Their ability to now spend more time with their father as a result of their age is a material change in circumstances.

[32] Having found that there is a material change in circumstances, I now turn to whether it is in the best interests of the children to change the final order. I am required to give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[33] I found that the past conduct of the Father was relevant to the best interests of the child analysis. I accepted that the Father had addiction issues in the past. I base this finding on the fact that he was involved in a car accident where there was cocaine and alcohol in his bloodstream. The Mother also indicates that when she withheld the children from the Father, it was due to the Father’s failure to maintain sobriety.

[34] The Father’s car accident happened at the time the original final order was signed. The Mother maintains that the Father’s addiction issues were central to the manner in which the Father’s time with the children was resolved in the Minutes of Settlement.

[35] More recently, one of the children is alleged to have taken a spill from a motorized ATV while in his Father’s care. The CAS investigated the incident after the child sustained an injury. The CAS expressed no concerns with the children spending unsupervised time with the Father. I have a concern, based on the CHEO report, that the Father failed to notify the Mother that the child had fallen from an ATV. I note that the Mother withheld the children for a time based on her belief that the Father was not maintaining sobriety, but she did not seek a motion for change based on her belief that the Father was abusing drugs or alcohol.

[36] I found that the age of the children militates in favour of increasing parenting time with the Father. The children are old enough now that they can communicate to the Mother if there are issues with the Father’s parenting. Indeed, there is evidence that one of the children reported being permitted to drive a recreational motorized vehicle. As a result of the information he shared with the Mother, an investigation was conducted. The Father continues to have parenting time with the children. The children appear to have a good relationship with both parents.

[37] The Mother has historically been the primary caregiver for the children. Both parties have expressed a willingness to care for the children. Both parties have engaged in petty and unhelpful behaviour in terms of communicating with each other regarding the care of the children. The CAS found that one of the children disclosed concerns that her mother spoke negatively about her father and his partner Ms. Seguin. The Father has demonstrated a reluctance, on at least one occasion, to communicate important information to the Mother. This behaviour should not be repeated. However, it is not part of a larger pattern of behaviour. The Mother also forced the Father to meet with the children in a vacant parking lot. This was unfortunate but is behaviour that has been curtailed.

[38] The Mother indicates there is a history of family violence toward her. I gave this factor less weight in the best interests of the child analysis. The information is dated, and the parties have minimal contact with one another. There is no evidence that the Father poses a risk to the psychological or physical well-being of his children, with the exception of permitting his child to ride a motorized recreational vehicle in 2021 and failing to report the child’s fall to the Mother. It goes without saying that this behaviour must not be repeated.

[39] However, I find that maximum contact with both parents to the degree that it is consistent with the best interests of the child mandates in favour of more time with the Father now that the children are older. I also agreed with the Father that it is appropriate that the OCL become involved in this matter and I have requested that a clinical investigator take up this file. I dismissed the Mother’s cross-motion. I have varied the order to permit the Father to have more parenting time with the children. I also considered that the Mother formerly permitted him to have more parenting time with the children than the original order permitted. I did not make all of the changes suggested by the Father at this time for two reasons. First, the children have not had overnight visits with the Father for some time and the reintegration of these overnight visits should be gradual, given their respective ages. Second, the views of the children should be ascertained. There has been a great deal of ongoing conflict in this family. There are allegations of drug and alcohol abuse. The children are currently seeing a counsellor due to the trauma experienced after the suicide of the Mother’s partner. Their views regarding how they wish to spend parenting time with each parent should be ascertained.

[40] Consequently, on a temporary and without prejudice basis, I varied the order of Justice Sheard as follows:

I. For the first 60 days of this order, the Respondent Father is to have parenting time with the children Tuesday from 2:00 p.m. to 7:00 p.m. and Thursday from 2:00 p.m. to 7:00 p.m. The Respondent Father is also to have the children from Friday from 2:00 p.m. until Saturday at 7:00 p.m. II. After the passage of 60 days, the Respondent Father is to have parenting time with the children Tuesday from 2:00 p.m. to 7:00 p.m. and Thursday from 2:00 p.m. to 7:00 p.m. and every other weekend from Friday from 2:00 p.m. until Sunday at 7:00 p.m. III. Neither parent shall speak ill of the other parent/spouse to the children and shall not permit associated third parties to make negative comments about the other parent in the presence of the child. IV. The Respondent Father is not to consume non-prescription drugs or alcohol while in a care-giving role to the children. V. I am requesting the involvement of the Office of the Children’s Lawyer. VI. The parties shall communicate through OurFamilyWizard.com

Child Support:

[41] The Respondent is currently not paying child support in any form. He claims his only income is through Ontario Works. He claims that the recreational vehicles that have been referenced in this case are a result of the largesse of family members. In the circumstances, I lack a sufficient evidentiary basis to impute income to him. The burden is on the Mother to adduce evidence that supports the imputation of income to the Father. She has not met that burden. However, should a more robust evidentiary record be provided, then an imputation of income to the Father could be conducted if the evidence warranted such a finding. I am granting the Mother leave to return within this same proceeding to obtain a final order on the issue of child support. This could be done in conjunction with a revisiting of the issue of parenting time once the children’s views can be ascertained. The matter can return before me on the issue of child support and to provide evidence from the OCL regarding the children’s views. At that time, the court will make a final order on the issue of parenting time and child support.

Costs:

[42] If the issue of costs cannot be agreed upon, I shall determine it by written submissions. These shall not exceed three pages plus attachments of Bills of Costs and Offers to Settle the motions. The Applicant’s submissions are due by April 4, 2022 and the Respondent’s by April 18. If necessary, the applicant may deliver a brief reply by April 25, 2022. Costs submissions are to be sent to my attention and emailed to scj.assistants@ontario.ca.

Anne London-Weinstein J. Date: March 21, 2022