COURT FILE NO.: FC-15-231
DATE: 2022/05/18
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jonathan Beauregard, Applicant
AND
Kourtney Amanda Morin, Respondent
BEFORE: Mackinnon J.
COUNSEL: Kevin W. Doyle, for the Applicant
Diana Aoun, for the Respondent
HEARD: May 9, 2022
ENDORSEMENT
[1] The respondent is the moving party seeking a temporary order to have conditions imposed upon the applicant’s parenting time with their seven-year-old son, Jack. The applicant’s request for an adjournment was denied. He submitted that his recent meeting with the child’s behavioural therapist and the one he had scheduled for May 11 could help the parents settle the motion. These steps are welcome but are not sufficient to delay the determination of the motion which was served in December 2021.
Procedural History
[2] The case has a long procedural history, starting in 2016. The current motion is brought in the context of a Motion to Change commenced in May 2019. It seeks to change two previous Final orders dated August 11, 2017, and September 27, 2018. Case conferences were held in September 2019 and August 2020. Motions were heard on August 31, 2021, and April 7, 2022. The present endorsement relates to parenting issues that were included in the relief sought in April but were not reached because counsel scheduled insufficient time. Additionally, the respondent’s materials were so voluminous that I required her to provide a Compendium for this hearing.
[3] It is unacceptable for a Motion to Change to be outstanding for three years without reaching final determination. We all, litigants, counsel, and court must be far more diligent to heed what reads as an admonishment in relation to this case, set out in Family Law Rules, O.Reg. 114/99 as am, r 2(2), (3):
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
[4] I have already directed counsel to prepare a timetable to final determination. The file should be case managed to ensure that no further delays or unnecessary interlocutory steps occur.
Applicant’s Parenting Time
[5] The applicant is entitled to alternate weekend parenting time plus Thursday overnights in the other weeks pursuant to the Final order currently in force. I am satisfied that there has been a sufficient change in circumstances and compelling reasons impacting the child’s best interests to warrant changing the existing order on a temporary basis.
[6] Subsequent to the Final order Jack has been diagnosed on the Autism Spectrum Disorder, with ADHD and with an anxiety disorder. Numerous medical and therapeutical reports were exhibited to the court. The applicant resisted providing consent for Jack’s initial assessment in 2019 and resisted accepting his diagnoses, stating that in his view there was nothing wrong with Jack. More recently in August 2021 Jack was reported as showing symptoms of a sleep disorder and depression. It also appears that his emotional dysregulation worsened over the fall of 2021. Transitions, unexpected changes and communicating his feelings are all difficult for him.
[7] In August 2021 the applicant father brought an urgent motion. He had only seen Jack in person once for close to a year. The parents had agreed to temporary changes during that year due to the pandemic but disagreed about returning to the court ordered parenting time. The motion judge ordered a gradual reintegration of four in person visits following which the Final order would resume. As it turned out the father’s first alternating weekend with Jack would have been the Thanksgiving weekend except for the fact that under the Final order the mother was entitled to Thanksgiving weekends in odd numbered years. The mother would not agree to the father having the Thanksgiving weekend. Nor did she offer to start his alternating weekends the next weekend, rather took the position that it was her weekend pursuant to the motion judge’s order. She also kept Jack for the third consecutive weekend because she decided to get married then, on short notice because of her grandmother’s health.
[8] The mother says she offered make-up time to the father but that he would only be satisfied by having the Thanksgiving weekend. Be that as it may, the motion judge clearly contemplated that the father would have four visits with Jack in quick succession followed by an overnight on Thursday September 30 and by his first weekend the next week. The mother unreasonably delayed the implementation of the motion judge’s careful reintegration plan with the result that the father’s first weekend with Jack was delayed for a month. Whether or not this delay contributed to Jack’s ensuing problems, it persuades me that the father is not solely responsible for the acrimonious parenting relationship.
[9] On November 5 the father came to pick up Jack for the weekend. The mother had suggested the three of them talk first so that Jack could tell his father the concerns he had about going for the weekend and for his father to reassure him. In my view the idea was a poor one given the very high level of animosity between the parents. During the discussion Jack told his father he would go for one overnight with him, but not for the full weekend. The father reacted poorly and ended up telling Jack that if he did not come for the weekend, he could not come at all. He criticized the mother in Jack’s presence and left without saying goodbye to him.
[10] There was a home security video of the incident, which was provided to the child’s behavioural therapist. After watching it and having a session with Jack, the therapist described the emotional trauma inflicted on Jack as catastrophic. She recommended that future interactions between them take place in a structured and supervised setting with someone well versed in Jack’s treatment plan and preferably in his trust circle.
[11] I have been told that the behaviour therapist has consented to fulfill this function and that her fee would be $150 per hour to do so. She is the therapist with whom the father met shortly before the hearing. Prior to November 5, Jack had already confided to this therapist some worries he had about visits with his father. These included whether he would be able to fall asleep there, about a lack of schedule or regular mealtimes, an occasion when his list of people in his circle of trust was taken from him, and once when he was made to sit in the corner as a punishment. This therapist seems very well situated to bring the applicant up to date with Jack’s special needs and the most appropriate parenting techniques and routines to utilize with him.
[12] The next time the father saw Jack was December 17. This was intended to be the beginning of an extended Christmas visit. Jack’s behaviour was such that on December 18 the father called the mother to come and pick him up. It appears the father experienced Jack as behaving horribly whereas the mother felt the problem was that the father did not know how to handle his son and should apologize to him. There has been little contact since then. The father believes the mother denies him access or puts Jack in the middle of their conflict which causes him stress and anxiety. His view is that she excuses Jack’s bad behaviour towards him even when it is not related to his diagnosis. He admits that he tends to give up on making regular efforts to see Jack because of the constant struggle. The mother maintains that she prepares Jack to see his father, and when he doesn’t follow through or show up Jack is very let down, loses trust and confidence in his father, and in the result becomes worried and anxious about seeing him.
[13] This is a complicated situation. What is apparent is that the father’s parenting time with Jack needs to be regular and consistent, and that the father needs to be fully informed about Jack’s condition and how best to parent him. My conclusion is that the Final order setting out the applicant’s parenting time with Jack should be and is stayed until further order of the court. The father should continue to meet with Jack’s behavioural therapist to learn about his son’s particular needs and to develop routines and parenting techniques that will be familiar to Jack when he is at his father’s home. The process of renewing regular contact with his father will be easier on Jack if it commences in the supervised setting recommended by the child’s behavioral therapist. I therefore order:
The applicant shall attend a total of three one hour sessions with the behavioural therapist, Abeer Lababenah, including the appointment on May 11.
Thereafter, the applicant shall schedule an additional 3 sessions, also for one hour each, for himself and Jack, to be facilitated by Ms. Lababenah in a setting or settings chosen by her, and the applicant shall adhere to and be amenable to her guidance throughout these sessions.
The cost of these sessions shall be paid for by the applicant.
On completion of the above sessions, the applicant shall have unsupervised parenting time with Jack every Sunday each weekend for four consecutive Sundays commencing at noon until 4 pm. The applicant shall provide the respondent at least 24 hours confirmation before each of these visits that he will be picking up Jack as scheduled. The applicant shall check in by telephone with Ms. Lababenah within two days following each of these visits and shall seek her feedback with respect to any concerns arising during each visit. The applicant shall be responsible to pay for the cost of these check ins.
The applicant’s parenting time shall be extended on the fifth Sunday to commence at 10 am and continue until 4 pm on each successive Sunday for a total of four consecutive Sundays. The applicant shall provide the respondent at least 24 hours confirmation before each of these visits that he will be picking up Jack as scheduled. The applicant shall check in by telephone with Ms. Lababenah within two days following each of these visits and shall seek her feedback with respect to any concerns arising during each visit. The applicant shall be responsible to pay for the cost of these check ins.
After the conclusion of the visits described in subpara (5) above the applicant’s parenting time shall commence on Saturday at 4 pm and shall continue overnight until Sunday at 4 pm for a total of four consecutive weeks. The applicant shall provide the respondent at least 24 hours confirmation before each of these visits that he will be picking up Jack as scheduled. The applicant shall check in by telephone with Ms. Lababenah within two days following each of these visits and shall seek her feedback with respect to any parenting issues he may have experienced. The applicant shall be responsible to pay for the cost of these check ins.
Ms. Lababenah may at any time during the above described weeks contact the applicant if she has concerns she wishes to address with him that arise from her observations of Jack or information she receives from Jack during any of her sessions with him. The applicant shall adhere to and be amenable to Ms. Lababenah’s guidance.
After the conclusion of the visits described in subpara (6) the stay of the applicant’s parenting provisions as set out in the Final order shall be lifted.
The terms of this order are subject to any order made by the case management judge.
Decision Making
[14] The Final order provides for shared decision making. It requires the parents to consider professional advice and opinion in their decision making, and to try to resolve any dispute before seeking the court’s direction. The pressing matter of obtaining the applicant’s consent to a recommended updated assessment of Jack is now resolved. With that accomplished and the assignment of a case management judge the respondent’s requested change to sole decision authority is deferred to final determination of the Motion to Change.
Name Change
[15] The respondent’s notice of motion seeks to change paragraph 14 of the Final order made in August 2017 in relation to changing Jack’s surname from Morin to Morin-Beauregard. Oral submissions were not made on the issue, but it was not withdrawn.
[16] I would dismiss the request. The respondent’s first point is that the applicant gave her the change of name documents but had not completed them, which she says was required by the order. The order is in fact silent as to who will complete the documents but is specific that the respondent must sign them within ten days of receiving them from the applicant. The respondent then says that when the applicant followed up with her, she could not find the documents. Subsequently his lawyer sent her a one-page consent form showing the proposed name change but she did not sign it because it was not the entire document. She sent the unsigned consent and covering email to her lawyer but appears to have taken no further steps.
[17] The respondent’s second point is that when she consented to change Jack’s name, she did not realize the impact it would have on him. Jack was not yet three in August 2017; any impact on him would have been minimal then. The facts relied on to show the name change would upset him arose some four years later, long after the order should have been complied with.
[18] The applicant has raised the matter from time to time. He did not acquiesce in the non-compliance. I am not persuaded that the respondent used her best efforts to comply with the order or that there are the compelling reasons required to entertain a change to this term on an interim basis.
Costs
[19] Costs of the motion ought to be resolved between counsel. Neither party appears to have been fully successful on the primary issue of the applicant’s parenting time. The respondent was not successful on the other issues she raised. If counsel are unable to agree on costs, they shall make brief written submissions to me not to exceed three pages in length plus attached Bills of Costs and any offers exchanged to settle the motion. These shall be delivered by the respondent by June 10, and by the applicant by June 24. A one page reply from the respondent is permitted provided it is delivered by June 30.
Mackinnon J.
Date: May 18, 2022
COURT FILE NO.: FC-15-231
DATE: 2022/05/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jonathan Beauregard, Applicant
AND
Kourtney Amanda Morin, Respondent
BEFORE: Mackinnon J.
COUNSEL: Kevin W. Doyle, for the Applicant
Diana Aoun, for the Respondent
ENDORSEMENT
Mackinnon J.
Released: May 18, 2022