Court File and Parties
Court File No.: FS-20-00019678-0000 Date: 2022-03-18 Ontario Superior Court of Justice
Between: Aleen Medow, Applicant And: Alexander Medow, Respondent
Counsel: Lisa Anne Johnson, lawyer for the Applicant David Tobin, lawyer for the Respondent
Heard: March 8, 2022
Endorsement
DIAMOND J.:
Overview
[1] After a nine-year marriage, the parties separated in August 2019. There is one child of the marriage, a son who is now 9 years of age.
[2] Within a few months of separation, the parties signed a Parenting Plan, which provided for 2/2/3 parenting time schedule and joint decision making.
[3] As a result of what the Applicant believed to be the deterioration of the Respondent’s mental health, the Applicant commenced this proceeding in late October 2020. She moved on an ex parte basis before Justice Horkins to obtain a temporary, without prejudice order, which provided that, inter alia, the parties’ son would reside with the Applicant, with the Respondent having no access or decision making authority.
[4] The Respondent was then involuntarily admitted to the mental health unit of the Toronto Western Hospital, and subsequently diagnosed with Bi-Polar Effective Disorder and Cluster B personality traits.
[5] Negotiations and changes to the parenting arrangements ensued over the next 18 months. The Respondent was originally granted supervised parenting time, but the parties ultimately agreed that he would have unsupervised parenting time with the parties’ son. By consent Order dated June 7, 2021 (the “June Nakonechny Order”), Justice Nakonechny granted the Respondent unsupervised parenting time with the parties’ son on alternating weekends from Fridays at 4:00 p.m. to Sundays at 8:00 p.m. The Respondent and the parties’ son were to regularly sleep at the home or cottage of the paternal grandparents. The June Nakonechny Order was not made on a without prejudice basis.
[6] By further consent Order dated September 27, 2021, (the “September Nakonechny Order”) Justice Nakonechny granted the Respondent additional unsupervised parenting time with the parties’ son every Wednesday from after school to 8:00 p.m. The September Nakonechny Order was made on a without prejudice basis, but did not include a requirement for the Respondent and the parties’ son to sleep house or cottage of the paternal grandparents.
[7] As a result of, inter alia, the Applicant’s concerns resulting from recent behaviour on the part of the Respondent, the Applicant now brings a motion to vary the terms of the September Nakonechny Order to require the Respondent’s parenting time with the parties’ son to be fully supervised by the paternal grandparents at their home or cottage during the alternate weekends. Although not specified in the Applicant’s Notice of Motion, the Court infers that the Applicant also wishes to vary the September Nakonechny Order to end the Respondent’s unsupervised parenting time with the parties’ son on Wednesdays after school until 8:00 p.m.
[8] The Applicant’s motion was argued before me on March 8, 2022, and at the conclusion of the hearing I took my decision under reserve.
Varying a Temporary Parenting Order
[9] There is no dispute that the relief requested by the Applicant amounts to a variation of the September Nakonechny Order, which was arrived at on consent of the parties. Before varying any interim parenting order, the Court must be satisfied of the presence of a material change in circumstances which supports compelling reasons in favour of the variation. The Respondent relies upon Justice Kurz’s summary of the law in Miranda v. Miranda, 2013 ONSC 4704:
“A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well-founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.”
[10] While the overarching concern is always the best interest of the child, the relevant jurisprudence requires the Court to find the presence of new circumstances described as being “material, substantially important or compelling”.
Decision
[11] Has the Applicant satisfied her onus to produce compelling evidence and show that the welfare of the parties’ son is now in danger if the status quo set out in the September Nakonechny Order is maintained?
[12] To begin, while the term “without prejudice” is found in the body of the September Nakonechny Order, that Order does not detract from the parenting time set out in the June Nakonechny Order, but merely adds to it by including additional, unsupervised after school time on Wednesdays. Accordingly, in my view the only portion of the September Nakonechny Order which is truly on a without prejudice basis is the inclusion of the additional after school time on Wednesdays.
[13] The Applicant has tendered evidence pre-dating both the June and September Nakonechny Orders. While this evidence is helpful in canvassing the background narrative, and providing context to the reasons behind both the June and September Nakonechny Orders, as set out in Deslaireirs v. Rossell, 2016 ONSC 5285, the Court must assess whether (i) there has been a material change in the condition, means, needs of circumstances of the parties’ son and/or the ability of the Respondent to meet his needs, and (ii) those changes materially affect the child and were either not foreseen or could not have been reasonably contemplated by the September Nakonechny Order.
[14] Further, as held by the Court of Appeal for Ontario in Gray v. Rozzi, 2016 ONCA 152, the Court should not consider events that occurred before the date of the September Nakonechny Order when determining whether or not a material change in circumstances has occurred.
[15] It is important to note that as part of the June Nakonechny Order, the Respondent agreed to provide medical reports from his treating psychiatrist (when available) to the Applicant. The Applicant complains about the Respondent failing to undergo blood work as requested by his treating psychiatrist, but those events took place in July 2021. In addition, I also note that the September Nakonechny Order was arrived at on consent of the parties even though the Respondent had not provided any clinical reports to the Applicant in August 2021. Since the September Nakonechny Order, clinical notes and records subsequently provided to the Applicant disclose the following:
- The Respondent was off his medication for approximately two months
- The Respondent continued to use cannabis, although it is unclear whether he used it close to or during his parenting time with the parties’ son
- The Respondent believed that his psychiatrist’s clinical notes did not accurately reflect his presentation at the time of admission
[16] In his responding affidavit, the Respondent gave evidence that after “months of treatment” he felt better with therapy, mindfulness and breathing exercises, and had grown disillusioned with his treating psychiatrist’s treatment plan. The Respondent further stated that he took all medication prescribed to him and attended every psychiatric appointment that was scheduled.
[17] In early 2022, the Respondent met with his treating psychiatrist, and the Respondent was ultimately discharged to the care of both his family physician and psychotherapist (neither of whom are psychiatrists, a term which a prior order of Justice Hood required the Respondent to see). Of note, the discharge notes from the psychiatrist’s office (addressed to the Respondent’s family physician) state as follows:
“We have suggested alternative mood stabilizing agents to Mr. Medow, in the context of his underlying diagnoses, however, Mr. Medow has expressed disagreement with our diagnoses and treatment plans, instead preferring to remain medication-free. Additionally, he has endorsed recording clinical appointments with our service.
At present, there are no safety concerns warranting the certification under the [Mental Health Act]. During iterative assessments, there have been no concerns or risks of harm of self to others. There are no concerns around Mr. Medow’s ability to care for himself. Mr. Medow feels that he is well encompassed by his treatment team, with both yourself and his psychotherapist. He has had no acute mood episodes requiring hospitalization since his last discharge. We are therefore referring him back to your care.”
[18] Prior to the Respondent’s discharge from the care of his treating psychiatrist, clinical notes of his psychiatrist in November and December 2021 included the following concerns:
- The possible development of a hypomanic episode in the context of the Respondent’s recent increase in talkativeness and decreased sleep
- Untreated mood episodes may pre-dispose the Respondent to subsequent mood episodes of increasing severity
- In the absence of treatment, the Respondent’s mood episodes would likely continue and become more severe in their nature and less likely to respond to treatment moving forward
- A failure on the part of the Respondent to not appreciate the signs and symptoms of an underlying mood disorder.
[19] Based on those clinical notes, the Applicant is very concerned that the Respondent’s mental health is once again deteriorating as he refuses to follow treatment recommendations from his psychiatrist (which is also required by the prior order of Justice Hood).
[20] A letter from the Respondent’s family physician confirms that the Respondent is seeking to retain a new psychiatrist, but the pandemic is making this task difficult. In the interim, the Respondent is seeing a qualified psychotherapist until he can retain a new psychiatrist.
[21] The Applicant’s position is clearly set out at paragraph 55 of her affidavit dated February 9, 2022:
“The Respondent is free to make choices regarding his mental health treatment, however, (the parties’ son) should not be put at risk because of the Respondent’s choices. I am not willing to wait and see if the Respondent has another mental health crisis. Given the deterioration in the Respondent’s mental health, I have serious concerns with the Respondent having any time alone with (the parties’ son) or having (the parties’ son) spend overnights at the home of his girlfriend, who I did not know, and does not have full knowledge and understanding of the Respondent’s mental health issues.”
[22] On the eve of her motion, the Applicant filed an additional affidavit attaching screenshots of the Respondent’s recent Instagram postings, wherein he stated that he was “diagnosed with proven mental disabilities”, and “suffering from extreme mental ailments”. In response, the Respondent gave evidence that some of his Instagram postings were designed to “vent” about his upcoming hearing before the B.C. Human Rights Tribunal. The respondent describes the posts as “decompressing and addressing what he knows will be a stressful situation and releasing his trauma.” The posts were “not harassing, violent, angry or directed at anyone”.
[23] Have the events which occurred post-September 2021 amounted to a material change in circumstances resulting in compelling evidence that the welfare of the parties’ son is at risk? In my view, while there has been less than perfect compliance with the Respondent’s court-ordered obligations, he has nevertheless attempted to secure a new treating psychiatrist as he had grown disillusioned with his previous treating psychiatrist. While I understand the Applicant’s concerns regarding the Respondent not currently seeing a psychiatrist, he is still in the care of his family physician and psychotherapist, while he looks to retain a new psychiatrist (as he must). The relationship between a doctor and patient is personal in nature, and the Respondent is free to select a psychiatrist in the circumstances.
[24] More importantly, the nature of the Applicant’s concerns is more of a quia timet motion, i.e. the Applicant is concerned that in the absence of the Respondent being under the care of a treating psychiatrist, the physical and mental welfare of the parties’ son is at risk. There is not much evidence in the record before the Court that the Applicant’s concerns have truly manifested themselves during the Respondent’s parenting time. While I appreciate that the Applicant’s concerns are subjectively understandable, that is not the test to be applied on this motion.
[25] In my view, the Respondent’s evidence does not meet the threshold of being substantially important and/or compelling. The parties have been working towards reaching a parenting plan similar to the original agreement upon separation. That no doubt has taken time, and the Respondent has made strides since the fall of 2020. While the Applicant views the Respondent’s recent conduct as amounting to setbacks, I nevertheless find that such conduct does not warrant a variation of the September Nakonechny Order at this time.
[26] The Applicant’s motion is dismissed.
Costs
[27] I would ask counsel for the parties to exert the necessary efforts with a view to resolving the costs of this motion. If those efforts prove unsuccessful, they may serve and file written cost submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:
a) The Respondent shall serve and file his written cost submissions within 10 business days of the release of this Endorsement; and
b) The Applicant shall serve and file her written responding cost submissions within 10 business of the receipt of the Respondent’s written cost submissions.