Court File and Parties
KINGSTON COURT FILE NO.: 431/21
DATE: 20220725
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Douglas Brethour, Applicant
AND
Morgan Brittany Anderson, Respondent
BEFORE: Madam Justice Tami L. Waters
COUNSEL: Jacqueline M. Mills, Counsel for the Applicant Stephen L. Zap, Counsel for the Respondent
HEARD: March 14, 2022
ENDORSEMENT ON MOTION TO CHANGE HEARING
Overview:
[1] The matter before me consists of a Motion to Change brought by the Applicant Father (“Father”) wherein the Father is seeking primary parenting of the children, namely, Hudson Blu Brethour, born March 11, 2015, and Emmett Gray Brethour, born November 20, 2017 (“children”). The changes to the previous Order sought by the Father are comprehensive in nature.
[2] The Respondent Mother (“Mother”) disagrees with most of the relief sought by the Father and seeks that the Motion to Change, save for the areas agreed upon, be dismissed. Further, the Mother seeks the relief that the parties engage in counselling to assist with their personal issues and interparental communication.
[3] The children resided in Peterborough from birth until approximately two years ago when the Mother moved to Kingston and the children’s residence changed. The children’s primary care providers (doctor and dentist) remained in Peterborough until recently when a new family doctor was secured in Kingston. The Father lives in Peterborough. The Father asserts that the Mother initially moved to Kingston without his consent and given the time lag of legal proceedings, he ultimately consented to the children living in Kingston, without the knowledge of various information now obtained through disclosure.
[4] In addition to parenting and decision-making revisions to the Order of March 11, 2021, the Father also sought extensive disclosure from the Mother including medical records, police records and Children’s Aid Society (“Society”) records.
[5] Essentially the Father is alleging that there is a significant material change in circumstance which, if the various contributing factors had been known at the time of the March 11, 2021 Order, a very different Order would have resulted.
Material Change in Circumstance
[6] There has been a material change in circumstances since the March 11, 2021 Order of Gunsolus, J.
[7] 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.L.P. v. L.S., 2011 SCC 64, [2011] 2 S.C.R. 775.
[8] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [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.
[9] In order 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 demonstrated, the court can engage in a full inquiry, including facts that predate the order. Segal v. Segal (2002), 2002 CanLII 41960 (ON CA), 162 O.A.C. 119 (C.A.).
[10] While the Mother asserts that much of the information relied upon by the Father was known at the time of the March 11, 2021 Order, there is much information that is submitted by the Father that clearly has been identified since the March 11, 2021 Order and results in a material change in circumstance.
[11] As a material change has been determined, the court must now conduct an analysis as to what variation of the Order, if any, would be in the best interests of the children.
Mother’s Drug Use
[12] Extensive medical records of the Mother were provided to the Father from various medical facilities including Peterborough General Hospital, Campbellford Memorial Hospital and Kingston General Hospital. From these medical records, commencing on or about August 2, 2020, what is summarized by the Father and set out as a Chart is the use of illegal drugs by the Mother. The drugs include methamphetamine, cocaine, opiates and “mushrooms”. While each drug consumption event is not time-dated, given the parenting schedule as set out in the Order of Gunsolus, J., dated March 11, 2021, the Mother is in a care-giving role to the children at various times when drug consumption has been alleged to have occurred.
[13] The Consent Order of Swartz, J., dated January 21, 2022, set out that random oral fluid and urine testing would occur on the Mother on a regular basis, as well as a minimum 90-day hair follicle test with DriverCheck was to occur before December 31, 2021.
[14] The drug test results provided by DriverCheck Inc. released and verified on March 7, 2022, reveal that the Mother has tested positive for marijuana, cocaine, and amphetamine use. The results are based on a 6-month hair 5 panel. The Mother advises in her February 4, 2022 Affidavit that she has recreationally tried some illegal drugs in the past but hasn’t used any illicit drugs since April 2021. The Mother’s sworn statement raises an issue of credibility juxtaposed to the testing evidence before this court. The Mother further advises that she doesn’t currently drink alcohol or do illicit drugs and asserts her last use of illicit drugs as cocaine in April 2021. The Mother also specifically asserts that she does not take amphetamines.
[15] The Mother provided to the court the December 30, 2021 communication from Dr. Stephane Dallaire, which refers to discussions with the Mother wherein she self-reports to Dr. Dallaire that she has abstained from cocaine use since April 2021. The March 7, 2022 drug test indicated a positive test for cocaine.
[16] The Mother’s sworn testimony is directly contradicted by the DriverCheck Inc. results before me.
Children’s Aid Society Involvement
[17] The Mother has been involved with both the Frontenac and Peterborough Children’s Aid Society (“Society”). The involvement was not known to the Father until receipt of the Society records after the commencement of this Motion to Change.
[18] There are Society incidents in February 2020, July 2020 and November 2020. The key issues raised in the communications from the Society are lack of supervision of the child, Emmett, and concerns from a social worker at the Peterborough Regional Health Centre in which she raised concerns about non-compliance by the Mother with diabetes issues combined with substance abuse issues.
[19] The Mother was clear in her communications with the Society that she did not want the Father to be advised of their involvement with her and the children.
Children’s Behaviour/School
[20] The Father asserts that the child, Hudson, has behavioural difficulties at school which remain unaddressed. One of Hudson’s teachers recommended that he see a support counsellor. The teacher, Ms. Murphy, has suggested that Hudson get the supports he needs through the family doctor or the Maltby Centre. The counselling was set up though the Maltby Centre and on December 2, 2021, a session was held with both the Father and Mother in attendance. On January 11, 2022, the Mother facilitated a further session with Hudson and the Father was not included in this session.
[21] Despite the school expressing concern, only two sessions have been identified as having occurred. One session in 2021 and another in January 2022.
Mother’s Lack of Communication
[22] Breaches of a court order can constitute a material change in circumstances. See: LW-A v. JC, 2017 ONCJ 741; Maloy v. Pantalone, 2021 ONSC 7734.
[23] The Mother has been hospitalized on many occasions in the recent past. The disclosure of medical records demonstrates the frequency of the hospitalizations. The actual hospitalizations are not the issue at hand. The issue is the breakdown of all communication with respect to the hospitalizations. The communication is necessary to ensure the best interest of the children. On many occasions the children are in the Mother’s care at the time of the hospitalization. The March 11, 2021 Order of Gunsolus, J. is clear that a right of first refusal is in place. The children are often placed with the Mother’s extended family when the hospitalizations occur rather than the Father, contrary to the Order.
[24] The communication between the parties is eroded further by the Mother not providing basic information to the Father such as, for example, the children being involved in a car accident while being transported by the children’s maternal aunt.
Other factors
[25] Worsening conflict can constitute a material change. Wreggit v. Belanger, 2001 CanLII 20827 (ON CA); Hackett v. Sever, 2017 ONCJ 93.
[26] Both parties have indicated that there has been no easing up of the conflict between them. In fact, the evidence presented by both parties shows an escalation of conflict. The worsening conflict in this family contributes to the determination of a material change in circumstance.
Best Interest of the Children Analysis
[27] Section 29(1) CLRA sets out that an existing parenting order cannot be changed until there is a finding that there has been a material change in circumstance that affects or is likely to affect the best interests of the child.
[28] It should be stressed that the court is required to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. The list of best interest considerations in the CLRA is not exhaustive. See: White v. Kozun, 2021 ONSC 21; Pereira v. Ramos, 2021 ONSC 1736.
Application of s. 24 CLRA
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[29] The Father has provided evidence supporting that there is instability in the children’s lives while in the care of the Mother. This is certainly not to say that the Mother’s health concerns should be “blamed” for the instability, but the frequency of the drug-related hospitalizations are of concern. Further, the report to the Society that the Mother has knowingly mismanaged her health concerns certainly indicates that a level of responsibility for the hospitalizations are a direct result of the Mother’s actions or inactions. The additional issue that leads to the instability in the children’s lives is the non-compliance by the Mother with the March 2021 Order of Gunsolus, J. as it relates to first right of refusal. In her absence, the children are provided to the Mother’s extended family rather than to their Father.
[30] The children are very young. They require acknowledgment of their needs and a stable environment to nourish their development. Given the many medical reports provided to the court, the state of health of the Mother, coupled with her substance abuse issues and inability to manage her medical issues leaves the children in an unpredictable environment when in the care of the Mother.
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who play an important role in the child’s life
[31] Extended family of the children reside primarily in Peterborough with some extended family residing in Kingston. The Father asserts stability in residence with his partner. It remains unclear as to the status of the Mother and her partner.
[32] It appears from the evidence in front of me that both parties have strong relationships with the children. It also is evident that extended family play a meaningful role in the children’s lives.
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
[33] The Mother has chosen to not provide information to the Father as it relates to her medical condition. She has also chosen not to comply with the right of first refusal clause as set out in the Final Order of Gunsolus, J. dated March 11, 2021. The examples of communication that the Mother engages in with the Father as it relates to the children demonstrates a clear lack of respect for the Father and ultimately does not foster the development and maintenance of the child’s relationship with the other parent. There is disdain between the parties evident from these communications.
[34] While the Father is respectful, the development and maintenance of the children’s relationship with their Mother can certainly be enhanced. I am provided but snapshots of communication and am unable to view the totality of the situation.
(d) the history of care of the child
[35] The Mother has undoubtedly worn the title of primary caregiver since the March 2021 Order. Given the multitude of her hospitalizations, and the fact that the Father did not receive parenting time due to her failure to adhere to the right of first refusal clause, it remains unclear as to who is responsible for the parenting of the children, particularly when the Mother was hospitalized.
[36] The Father does not purport to be in a sole caregiving role to the children; however, he does assert that he has provided historical comprehensive care of the children. The Mother, in her evidence, alleges that the Father has a historical issue with the consumption of alcohol that may impair his ability to provide care to the children.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
[37] The children’s views and preferences were not provided by way of evidence.
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage
[38] No evidence was tendered to suggest that this factor is applicable.
(g) any plans for the child’s care
[39] The Mother indicated that the children would remain living in Kingston. She advised that she has recently secured a new family doctor in Kingston. Her proposed plan was to ensure that what was currently in place would continue. There was no evidence proffered with respect to any ongoing children’s counselling. The Mother went to an initial counselling session at the Maltby Centre with the Father and then unilaterally secured a further Maltby Centre appointment which did not include the Father. There was no plan proposed by the Mother with respect to counselling other than that she wishes to consider same.
[40] Any plan suggested by the Mother includes her extended family. She has sisters in Kingston and another sister in Belleville with her parents being in Peterborough.
[41] The Father in his quest for the children to return to Peterborough set out a plan that the children would return to their previous school (St. John’s), and he acknowledged that the children’s doctor and dentist were in Peterborough. The Father wishes to follow through on the issues identified by the school and engage the child, Hudson, in the recommended therapy. The Father identifies that the children have been gone for a period of approximately two years from Peterborough and that extended family are in geographic proximity to Peterborough.
[42] The Father suggests that Jessica Wakeford and extended family, including his parents, reside in the Peterborough area and will be involved in any plan proposed by him.
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
[43] There are significant concerns of the court with respect to the Mother’s ability to care for and meet the needs of the children. These concerns have been identified by the various health care providers accessed by the Mother. The concerns are identified by the Father with respect to general care and financial issues. The Mother identifies a significant term of an extended leave of absence from her employment. The Father suggests that a leave of absence is an impediment to providing care for the children. The financial issue was not canvassed to the point that it has weight in this analysis.
[44] The Father asserts an ability and willingness to care for and meet the children’s needs. He did provide financial information to substantiate his position.
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child
[45] In general, the parties have engaged in problematic communication both in frequency and content. There is no communication application used by the parties. The evidence presented shows reactive communication employed by the Mother. The Father has attempted to communicate in a proactive manner with the Mother but such communication is not well received. In particular, the evidence with respect to the efforts to engage Hudson in counselling depicted a lack of positive engagement around an issue that is integral to the best interests of Hudson. The Mother then unilaterally communicated with the Maltby Centre with respect to the issue of counselling. Further, the Mother advises of arranging “private time with Mr. Jackson (EA at Centennial) for any support needed.” I remain uncertain if this information was communicated to the Father.
[46] The Father included an example of a text communication from the Mother read as aggressive and threatening in nature.
[47] The Mother has not advised the Father of hospitalization and instead of implementing the right of first refusal clause as set out in the March 11, 2021 Order, seeks assistance from family supports.
[48] The videotaping that is engaged in by the Father’s partner, Jessica, and other non-parties to this proceeding, does not assist with communication issues. The Father by way of condoning this action is not demonstrating cooperation. The communication when a videotape is running is artificial in nature - it is not in the children’s best interest.
(j) any family violence
[49] The Mother suggests that there is historical domestic violence. No evidence was tendered to support the suggestion other than a reference to a self-report to a health-care provider.
[50] The Father, in his evidence, suggests that the Mother has reacted physically to him in the presence of the children. The Mother confirms the physical altercation but declares that it was in response to the behaviour of the Father.
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child
[51] No evidence was tendered to suggest that this factor is applicable.
Fresh Evidence
[52] On May 17, 2022, the Father brought a 14B Motion requesting that he be permitted to file an Affidavit introducing new evidence. The Mother did not respond to this 14B Motion. The relief sought by the Applicant was granted.
[53] The fresh evidence, while deemed admissible, was not of assistance to nor directly influenced my decision. The evidence did nothing more than further substantiate the Father’s position raised during his Motion to Change litigation.
Decision:
[54] I find that a material change in circumstance has occurred. However, in my view this order shall be made on a temporary and without prejudice basis, rather than a final basis. Further investigation is required.
[55] It is imperative that the Office of the Children’s Lawyer (“OCL”) be requested to assist with this matter at this time. I am requesting that the OCL become involved in this matter and am requesting them to conduct a s. 112 Investigation.
[56] However, it is equally imperative that the immediate concerns with respect to the children’s best interest be acknowledged and acted upon.
[57] I have seized myself of this matter.
[58] I will not include a police enforcement provision. A police enforcement provision can frighten children and further polarize an already difficult situation. Given the condition of the supervision of parenting time, whether it be at a supervised parenting facility or through an agreed-upon third party, I am confident that the provision of last resort, that being the police enforcement provision, will not be necessary at this time. If there is any non-compliance with the parenting terms as set out herein, I will include a provision for this matter to return to me on a timely basis.
[59] On a temporary and without prejudice basis, I have varied the Order of Justice Gunsolus as follows:
I. The children, namely, Hudson Blu Brethour, born March 11, 2015, and Emmett Gray Brethour, born November 20, 2017, shall reside primarily with the Applicant Father in Peterborough, ON.
II. The parties shall have joint decision-making authority for the children, namely, Hudson Blu Brethour, born March 11, 2015, and Emmett Gray Brethour, born November 20, 2017, with the parties engaging in consultation on any major issues that impact the children. In the event of the parties not being able to reach an agreement, the Applicant Father shall have final decision-making authority. Consultation shall be in writing.
III. The parties shall enrol in the “Our Family Wizard” application (or an agreed-upon similar product). Each party shall be responsible for their own costs of enrolment. Each party shall enrol no later than ten days from the date of this Order.
IV. The Respondent Mother shall provide the Applicant Father with all original government issued documents for the children, including but not limited to their birth certificates, health cards and passports. The documents shall be provided by counsel no later than ten days from the date of this Order.
V. The Respondent, Morgan Brittany Anderson, shall have parenting time with the children, namely, Hudson Blu Brethour, born March 11, 2015, and Emmett Gray Brethour, born November 20, 2017, as follows:
a. The Respondent’s parenting time shall be supervised by a professional supervision facility in Peterborough or supervised by an agreed upon third-party. If an expense is incurred with respect to a professional supervision facility the Respondent is solely responsible for such cost. The parenting time shall be for the period of Saturday and Sunday every other weekend from 11:00 am to 7:00 pm or such other times as can be agreed upon by the parties (in writing) based upon the availability of a professional supervision facility or an agreed-upon third-party supervisor.
b. Both parents shall be required to be in an unaltered state while in a care-giving role to the children.
c. Any parenting exchange term as previously set out shall be suspended while the parenting is completed at a supervised facility. If a third-party supervisor is agreed-upon the supervisor shall be responsible for the parenting exchanges at an agreed-upon location in Peterborough.
VI. With respect to the holiday parenting time as set out in the Order of Gunsolus, J. dated March 11, 2021 at paragraph 11, such holiday parenting time is suspended and the holiday parenting time that the Respondent Mother would have been entitled shall be supervised at a professional supervision facility in Peterborough or supervised by an agreed upon third-party for a period of 11:00 am to 7:00 pm on such holidays. If an expense is incurred with respect to a professional supervision facility the Respondent is solely responsible for such cost.
VII. All non-emergency communication between the parties shall be in writing, via the communication application, including consultation on decisions that are necessary for the well-being of the children.
VIII. If there is non-compliance with the parenting provisions as set out herein the matter can be returned to my attention by way of a 14B Motion on an urgent basis.
IX. The involvement of the Office of the Children’s Lawyer is requested to conduct a s. 112 investigation. If the Office of the Children’s Lawyer declines to accept this matter, the parties shall schedule a “to be spoken to” event with me on a timely basis by way of contacting the Trial Coordinator.
X. There shall be no child support payable by the Mother to the Father while the children reside primarily with the Father. This circumstance with respect to child support is without prejudice to the Father seeking child support from the Mother in the future should she have the ability to pay. If the Father chooses to pursue child support, he shall provide thirty days written notice to the Mother.
XI. If the parties cannot agree on the issue of costs of this motion, the parties shall make written costs submissions. The submissions shall not exceed three pages plus attachments of Bill of Costs and Offers to Settle (if any). The Applicant’s submissions are due by August 3, 2022, and the Respondent’s by August 11, 2022. If necessary, a brief reply may be submitted by the Applicant no later than August 18, 2022.
Madam Justice Tami L. Waters
Date: July 25, 2022