COURT FILE NO.: FC-18-2265-1
DATE: 2022/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN OREMUSH
Applicant
– and –
DESTINY JANE HICKEY
Respondent
Christian Pilon, for the Applicant
David Howard, for the Respondent
HEARD: August 3, 2022
Decision
Audet J.
[1] This is a motion brought by the Applicant father for an interim order varying the parenting arrangements in place for the parties’ child pursuant to a Final Order made on October 14, 2021.
BACKGROUND
The Trial Decision
[2] On October 14, 2021, after an eleven-day trial, I released my decision maintaining the parties’ (then) nine-years old daughter, B.O., in the primary care of the Respondent mother. I granted the father increased parenting time every second weekend (from Friday to Monday) as well as holidays and summer vacation. While the mother also retained sole decision-making responsibility, I imposed an obligation for her to meaningfully consult with the father before making decisions with regards to B.O., restricted the mother’s ability to make unilateral decisions in relation to certain areas of decision-making without the father’s consent, and I imposed detailed provisions meant to provide the father with unlimited access to all information related to B.O.’s health, care and education (the “2021 Final Order”).
[3] The following main findings of facts formed the basis of my prior decision (Oremush v. Hickey, 2021 ONSC 6833):
The father’s allegation that the mother, while they were still in a relationship, was a drug addict and an alcoholic was not substantiated by any evidence at trial;
The mother showed very little insight into how her own behaviour had significantly contributed to the parental conflict and caused B.O. to suffer by being constantly placed in the middle of her parents’ disputes and by being given the choice to see her father or not;
The mother had wrongfully denied the father parenting time with B.O., on several occasions, and she had negatively influenced B.O. about her relationship with her father by exposing her to the parental conflict, and by enabling her to make decisions about her relationship with her father which were not a child’s to make. However, the father also bore some responsibility for many of the missed visits, and he was equally to blame for having been unable to spend time with B.O. during the summer and fall of 2020;
Despite her shortcomings, the mother had been B.O.’s primary caregiver since she was born and she had done everything she could with the limited financial means she had to ensure that all of B.O.’s needs were being met from a physical, emotional, health and educational perspective;
While the mother had generally prioritized her romantic relationships over B.O.’s need for stability and permanency, she finally appeared to be living in a stable home along with her two younger children, B.P. (4) and K.M. (1), and her partner Michael (K.M.’s father);
B.O. and her mother had a very close and loving bond, and B.O. appeared comfortable and at ease with her mother. Separating B.O. from her mother and from the life she had known since she was a year old, as the father proposed, which included separating her from her two young siblings, would have had a significantly negative impact on her;
Despite the father’s professed love and devotion to his daughter, his actual ability to respond to and meet all her needs, including her emotional needs, was somewhat limited. The father had not taken meaningful steps to involve himself in B.O.’s education and had refused to support the mother’s efforts to have B.O.’s educational needs assessed and to get her much needed counselling. He also had very little knowledge of B.O.’s health, medical and educational needs;
Nonetheless, and notwithstanding the mother’s ongoing denials of contact between B.O. and her father, they had been able to maintain a close and loving relationship and B.O. enjoyed her time with her father and wanted to spend more time with him;
There were no concerns whatsoever about the father’s ability to care for B.O. and to keep her safe, despite the mother’s significant efforts (which included fabricating evidence) to prove otherwise;
While the parents had enjoyed periods of time during which their relationship was positive and they were able to communicate and cooperate well in B.O.’s best interest, at other times their relationship had been unhealthy and toxic, and their ability to co-parent effectively, nonexistent.
[4] I concluded:
[96] In conclusion, I find that it is in B.O.’s best interest for her mother to continue to be responsible to make all decisions in relation to her health, education, important extracurricular activities and overall well-being. However, I find that the mother abused her status as B.O.’s primary caregiver and sole decision maker, and that some limits to her ability to decide must be imposed to protect B.O. and preserve her relationship with her father. I find that it is in B.O.’s best interest that her father become more involved in all areas of her upbringing, and that the burden must be on the father to engage with the various professionals involved in B.O.’s life, including her school, her health professionals, and her activities. For this to happen, the mother must be forthcoming in providing to the father all relevant information that he cannot be expected to access on his own, as B.O.’s father. Given my finding that the mother has, in the past, abused her status as B.O.’s sole decision-maker, I have decided that it is necessary and appropriate to impose limitations on certain areas of decision-making responsibility, such as her ability to change B.O.’s residence or her school, and her ability to request or impose changes in the father’s parenting time.
[97] I also find that it is in B.O.’s best interest to remain in her mother’s primary care, but to have meaningful, consistent, regular and uninterrupted parenting time with her father during the school year and holidays. I further find that it is crucial in this case to remove from the mother the ability to request or impose changes in the father’s parenting time.
[98] Given the highly conflictual nature of this family’s dynamics, I have made a detailed multi-directional order based on the draft orders proposed by each counsel, to which I have added provisions which I felt was in B.O.’s best interests, including a provision that I shall case-manage this matter post-trial for a period of one year to ensure both parties’ compliance with my order.
Motion to Change and Urgent Motion
[5] On July 4, 2022, the father brought a Motion to Change along with an urgent motion seeking a temporary order granting him primary residence and sole decision-making responsibility for B.O., along with supervised parenting time for the mother. As I had seized myself of this matter as post-trial case management judge, the father’s request to bring an urgent motion was forwarded to me and I allowed the urgent motion to proceed.
[6] When the motion first came before me on July 12, 2022, the mother had just retained counsel and had not had time to serve and file her responding materials. The content of the father’s evidence, however, raised significant concerns and on that day, I made a temporary without prejudice order placing Breigha in her father’s primary care with parenting time to the mother being at the discretion of the father in terms of duration, location and level of supervision. I also granted the father sole decision-making responsibility over B.O.’s health and day-to-day care, which did not include the right to change her school, doctor or other professionals involved in her care. The father was to facilitate one daily phone call between B.O. and her mother.
[7] The motion was re-scheduled and heard before me on August 3, 2022.
LEGAL FRAMEWORK
[8] The legal test for an interim variation to a final order establishing a parenting schedule was recently confirmed by the Ontario Divisional Court in S.H. v. D.K., 2022 ONSC 1203. The test is summarized as follows by the Court in para. 40:
I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child's physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.
[9] I find that such exceptional circumstances exist in this case, which require an immediate change, on a temporary basis, to the parenting arrangements set out in my 2021 Final Order.
Material Change in Circumstances
[10] Many material changes in circumstances have occurred since the making of the 2021 Final Order. In the Fall of 2021, the mother continued to interfere in the father’s parenting time with B.O. According to the father’s evidence, which was not contradicted by the mother, he was unable to exercise his parenting time with B.O. from mid-September to early December 2021.
[11] When the father attended B.O.’s school on October 22 to pick her up at the beginning of his parenting time, the mother had already picked her up without notice to the father. The father was later contacted by a worker from the Children’s Aid Society of Ottawa advising that a complaint had been filed against him and that the police was on its way to see him. The father was later advised that the investigation related to inappropriate sexual touching by him on B.O. Until the investigation was concluded, the father was not allowed to have contact with B.O.
[12] On December 14, 2021, the father was advised by the police that no accusation would be laid against him.
[13] Following those events, and for no apparent reason, the mother completely changed her position with regards to the father’s ability to spend time with B.O. During the months that followed, and with the exception of March 2022, B.O. was in the care of her father at least 60% of the time. More specifically (and this was not disputed by the mother), B.O. was in her father’s care for 18 days in December 2021, 22 days in January 2022, 20 days in February, 8 days in March, 19 days in April and 20 days in May.
[14] On many occasions during those months, the father and/or B.O. were unable to contact the mother for days at a time. On May 30, 2022, the mother informed the father that she was in the hospital as a result of mental health issues and asked him to keep B.O. in his care. Then, on May 6, 2022, the father was informed that arrangements had been made for a neighbour to pick up B.O. after school, and that the mother’s two younger children had been removed from her care and brought to a place of safety. After inquiries, the father was made aware that B.O. had in fact been picked up by Gio, one of the mother’s former partners and father of B.P., so the father made arrangements to pick her up there.
[15] The father’s version of the events that followed are contested by the mother in her responding affidavit. However, the father’s version of the events is supported by compelling evidence which the mother’s bare denials and allegations to the contrary, without any supporting documentation (which was available to her to provide), do not present as credible. For the purpose of this motion, I make the following findings of facts upon which I rely in making my temporary order.
[16] The police attended the mother’s residence during the weekend of June 3 to 6, for reasons which are still unclear but which may have involved the mother leaving the children without supervision in the home and an intruder entering the home without permission. On June 6, the father was advised by a worker from the Children’s Aid Society not to return B.O. to the care of her mother until further notice. The safety plan put into place by the Society required that any parenting time between the mother and B.O. be supervised.
[17] Then on June 16, the father was advised by the Society that the safety plan no longer needed to be followed and that the Society would not interfere in the parenting arrangements between the parents. This occurred without the father having had an opportunity to meet with the Society. He was not provided with any details as to why their involvement had been required, or why they no longer felt their involvement was needed. In light of this, the father reluctantly returned B.O. to the care of her mother, but she was scheduled to return to his care quickly for their planned summer vacation. The father immediately initiated this urgent motion and Motion to Change.
[18] On July 2, the father was advised by Michael, the mother’s then partner and father of K.M., that he and the mother were separated, and that the mother had been charged with aggravated assault against him. The father learned form Michael that the mother had thrown a bottle of chemicals at him while K.M. was besides him, and that he and K.M. had been transported to the hospital by ambulance to be treated for burns. While the events which led to the charges being laid remain to be proven in court, the fact that criminal charges were laid as a result of these events is not in dispute. The mother’s release conditions include a non-contact order in favour of Michael (and perhaps K.M., but this is also not clear), and she is not allowed to go back to their shared residence. It is also not disputed that the mother has not had any contact with K.M., who has remained in his father’s full-time care, since July 2nd. It appears that B.P. is now back in his parents’ shared care, but no evidence of his parenting and living arrangements have been provided by the mother.
[19] The father’s communications with Gio and Michael, some of which were in writing, raise serious concerns about the mother’s potential misuse of drugs and alcohol. It is also clear that the mother has suffered from mental health issues serious enough to require a stay at the hospital.
[20] In addition to the above, there is compelling evidence before me confirming the following:
B.O. has been absent from school for 51 days during the 2021-2022 school year, and she has been late more than 30 times. Indeed, the father received an email from B.O.’s school in December 2021 raising serious concerns in that regard. I accept the father’s evidence that he was responsible for only 7 of the missed school days (B.O. did not go to school for one week after the Society became involved in June 2022), so this means that B.O. missed that many days of school (or arrived at school late) while she was in her mother’s care;
Despite the clear terms of my 2021 Final Order, the mother’s professed desire to enrol B.O. into counselling as soon as possible, and the father’s monetary contributions to counselling costs post-trial, B.O. stopped attending counselling in February 2022 after only a few sessions.
Best interests
[21] There are too many questions that remain unanswered for this Court to allow B.O. to return to her mother’s primary care – or even to have significant unsupervised parenting time with her – at this time. As will be seen below, both parties have consented to the disclosure of the Society’s records and the release of police records in relation to the recent events. This is likely going to provide much needed information and clarification about the events which led to their involvement with the mother, including how reports of inappropriate sexual touching by the father on B.O. came about.
[22] Much more evidence is also required about the current status of the mother’s mental health, and potential drug and alcohol misuse. Also, I have absolutely no evidence about the following:
Where is the mother currently living and with whom?
Is the mother currently working? If so, what is her plan for B.O.’s care while she is at work?
Is her change of residence going to require yet another change of school for B.O.? (she attended four different schools since she began going to school)
Is her housing situation sufficiently stable to ensure that B.O. will not have to undergo other school changes within the coming year?
Who is currently her support system now that she is no longer in a relationship with Michael?
[23] No evidence was led by the mother in relation to any of the above.
[24] The father, on the other hand, has taken concrete steps since B.O. was placed in his care to ensure her well-being. He contacted B.O.’s counsellor and has made arrangements for her to resume her counselling sessions; he registered B.O. in soccer close to his residence (she was supposed to have been registered in soccer this summer, but for reasons which are unclear, the mother did not register her); he registered B.O. in a summer daycamp near his home; he arranged for B.O. to be enrolled in tutoring to help prepare her for the coming school year (in light of all the school she has missed this last year); he scheduled and attended an appointment with B.O.’s family physician to renew her prescriptions; he booked a dentist appointment with her dentist; he made an appointment with her treating specialist for a follow-up related to her incontinence issues.
[25] Even more importantly, and despite his difficult past relationship with Gio and Michael, the father has communicated regularly with them to arrange activities and opportunities for all three siblings to meet and spend time together. This was undoubtedly very important for B.O. who was raised with her siblings.
[26] Additionally, the father has made sure that B.O. called her mother every day since she has been in care, as I had ordered. In his reply affidavit sworn on July 29, the father alleges that the mother has made no attempt to arrange parenting time between her and B.O. since the July 12 Order. He states that on July 25, he contacted the mother to offer a visit at a local park supervised by his stepfather. Although the evidence makes it clear that the mother had agreed to the proposed visit and confirmed that she would be present, she failed to show and never provided an explanation. The father states that this was devastating for B.O., who missed her mother and was looking forward to seeing her.
[27] Although I acknowledge that the mother did not have an opportunity to respond to this new information only provided by the father (by way of an update) in his reply affidavit, I note that in her responding affidavit sworn on July 26, the mother did not make any mention of having requested or been denied parenting time with B.O. since my July 12 Order, nor does she mention whether she had any parenting time with her at all. This, in my view, is telling.
[28] In my 2021 Final Order, I found as a fact that the mother had over the years negatively influenced B.O. about her relationship with her father by exposing her to, and involving her in, the parental conflict. In his reply affidavit, the father alleges that during a telephone conversation between B.O. and her mother on July 25, the mother encouraged B.O. to tell the parties with whom she wanted to live. This prompted the father to intervene and remind her that it was inappropriate for B.O. to be asked to choose between her parents (and even more inappropriate to do so while both parents were present, placing her directly in the middle of their conflict).
[29] Based on all the above, I find that it is in B.O.’s best interest to remain in her father’s primary care pending final determination of this Motion to Change. For the time being, and until all relevant disclosure is received (as per my directions below), the mother’s parenting time with B.O. must also remain supervised.
DISCLOSURE
[30] As stated above, the parties have agreed to the disclosure of relevant child protection and police records. The Ottawa Police Service was served with the father’s motion and an agreement was reached with its counsel regarding the appropriate wording of the disclosure order. The parties are free to forward a draft approved order to my attention and I will sign it. The Society did not object to the disclosure of their records. It is to be noted that Michael consented to the release of the Society’s records as it relates to the recent events affecting him and K.M. Gio has also confirmed being prepared to sign a consent for the release of the Society’s records in relation to those same events, although he has not yet done so.
[31] The only disclosure request that the mother objects to is the release of her medical records. I have already stated that the evidence before me raises serious concerns about the mother’s mental health as well as about her potential misuse of drugs and alcohol. In my view, the disclosure of the mother’s medical records since January 2022 are highly relevant to the issues that this Court must decide in this Motion to Change, namely, the parenting arrangements that are in B.O.’s best interest on a go forward basis.
[32] While the mother consents to the release of her medical records from the Ottawa Hospital related to her hospitalization in the spring of 2022, she objects to the disclosure of her psychiatrist’s and family physician’s records on the basis that there is a reasonable expectation of confidentiality and privacy in relation to her medical information and therapy.
[33] It is important to note that the Ottawa Hospital, Dr. Bada (the mother’s family physician) and Dr. Richie (the mother’s psychiatrist) have all been served with the father’s motion for disclosure. Neither physician has taken a position or objected to the requested disclosure, leaving it to the Court to decide. An employee of the Ottawa Hospital attended the motion with a CD containing all the mother’s medical records, indicating that they did not object to the disclosure. The CD was left in the Court’s care.
[34] In my view, the mother’s reasonable privacy interest in relation to her medical information must be balanced with the need for this Court to determine whether B.O. might be at risk of harm in the care of her mother due to mental health issues or alcohol and drug misuse. The order that I make below recognizes the need to balance these two interests.
[35] Finally, the father is seeking disclosure that the mother has confirmed earlier she would provide, but that she has so far failed to provide. This disclosure is clearly relevant and included in my order below.
ORDER
[36] Based on all the above, the 2021 Final Order is temporarily varied as follows:
B.O. shall remain in her father’s primary care pending determination of the Motion to Change.
The father will have sole decision-making responsibility in relation to B.O.’s health, education, major extracurricular activities and overall well-being until further order of the Court. However, the father shall not change any of B.O.’s current health care professionals until a final order is made in this Motion to Change, unless any of these professionals becomes unable to continue to provide care to B.O., or the Court orders otherwise.
The father’s decision-making authority includes the authority to change B.O.’s school come September 2022, if he deems this to be in her best interest.
All the provisions of the 2021 Final Order related to the mother’s obligation to consult with the father, to inform him of decisions to be made and precluding her to relocate without notice, apply to the father as if he had then been the one granted sole decision-making responsibility.
The mother’s parenting time with B.O. shall be at the discretion of the father in terms of duration, location and level of supervision, subject to the following:
a. The mother shall have parenting time at least twice per week, for up to 1.5 hours each time;
b. One of the two visits shall take place in Ottawa, in a public location that is accessible by public transportation;
c. If the mother is able to find a supervisor who is acceptable to the father, one of the mother’s weekly visits may be increased to up to a full day, not to include an overnight.
Leave is granted to the mother to bring a further motion before me seeking a variation of her parenting time or lifting the need for supervision, once all the disclosure from the Society, the police and her medical information has been provided.
The father’s obligation to pay child support to the mother in accordance with the 2021 Final Order is terminated. The mother has an obligation to pay child support to the father, from July 1, 2022 onward, based on her income (which has yet to be confirmed), and to contribute to B.O.’s special and extraordinary expenses in proportion to her income.
All other provisions contained in the 2021 Final Order remain into full force and effect unless they are clearly inconsistent with this temporary order.
The Ottawa General Hospital, Dr. Bada and Dr. Ritchie shall release to both parties (or their counsel) all medical records they have in their possession in relation to the mother for the period of January 1, 2022 to August 5, 2022. They shall have 30 days to do so.
Police records from September 1, 2021 to the present involving the mother or B.O. shall be released by the OPP and OPS (incorporating terms requested by the police services and agreed upon between the parties).
The mother shall, within 10 days, provide the father with the following:
a. Copy of the drug test that the mother states she completed “a couple of months ago”;
b. Copies of photographs of the mother’s daily rapid COVID tests taken by her over the weekend of July 9-10, 2022.
[37] I continue to be seized of all motions in this matter.
COSTS
[38] The father is the successful party in this motion. If the parties are unable to agree on costs, I will accept brief written submissions not exceeding two pages each (double-spaced, 12-point font, exclusive of Offers to Settle and Bills of Costs) within the following timelines:
The father to serve and file by August 26, 2022;
The mother to serve and file by September 9, 2022;
The father to serve and file a brief reply, not exceeding one page, by September 16, 2022.
Madam Justice Julie Audet
Released: August 11, 2022
COURT FILE NO.: FC-18-2265-1
DATE: 2022/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN OREMUSH
Applicant
– and –
DESTINY JANE HICKEY
Respondent
Decision
Audet J.
Released: August 11, 2022