Court File and Parties
COURT FILE NO.: FC-18-2231
DATE: 2022/02/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADRIENNE PURVIS-DAVID, Applicant
-and-
RAYMOND ROUSSY, Respondent
BEFORE: Justice D. Summers
COUNSEL: Allison Lendor, for the Applicant
Respondent is self-represented
HEARD: August 10, 2021
ENDORSEMENT
[1] The respondent father brings this motion prior to trial but after the settlement conference, with the permission of Justice Audet. The relief he seeks is an order lifting the requirement that his parenting time with the parties’ only child be supervised, and to further increase his parenting time in three stages over a nine-week period to ultimately arrive at a week-on, week-off schedule. The respondent also seeks an order for joint decision-making. The applicant mother opposes the motion. It is her position that no compelling reasons exist to change the status quo before trial.
[2] The parties began cohabiting in November 2015. They agree that their relationship was riddled with conflict and there was more than one period of separation before the final break up occurred in September 2018. Their daughter, Anniston, is now 4 years of age. She has resided with her mother since September 2018. The father’s contact with her since then has been supervised by his mother, the paternal grandmother.
Procedural History
[3] The application was issued in 2018 and the first case conference took place on January 30, 2019. At that time, a temporary order was made on consent for the respondent to begin short supervised visits with Anniston and provided for some increases in time to occur. On September 5, 2019, the respondent moved for increased, unsupervised parenting time. His motion was dismissed with leave to renew it in six months’ time and after completion of any review of the matter by the Children’s Aid Society. This order also required both parties to use their best efforts to complete disclosure of relevant mental health and medical records within the next 60 days.
[4] Justice Audet was appointed as case management judge. On October 29, 2019 she ordered the involvement of the Office of the Children’s Lawyer (OCL). The OCL accepted the case and commenced a clinical investigation, however, it was discontinued on February 25, 2020 because of the respondent’s conduct towards the clinician. The OCL made a second effort to complete an investigation, but it too was discontinued on August 18, 2020.
[5] When the Settlement Conference was held, there was still an ongoing CAS investigation. Justice Audet granted the respondent leave to bring a motion for increased parenting time when that investigation was completed.
[6] Other steps were initiated by the respondent in his attempt to secure more parenting time, but no such orders were made. The current order in place for the respondent’s parenting time is the order made at the case conference by then Master, now Associate Judge Kaufman, on January 30, 2019.
Order of January 30, 2019
[7] This order was made on consent. The applicant was awarded custody (now known as decision-making authority) of the child on an interim without prejudice basis. The respondent was awarded graduated supervised access (now known as parenting time) as follows: three two-hour public visits in the presence of the paternal grandmother and the applicant mother; thereafter his parenting time was moved to the paternal grandmother’s home where she would supervise and again, the applicant mother was permitted to stay during the first three visits for 20 minutes; and provision was made for the schedule to be reviewed in three months to assess how the child was adjusting, with a view to establishing a schedule in her best interests.
[8] The following reasons explain my decision to dismiss the respondent’s motion. In brief, I conclude that the current order is appropriate to the child’s needs at this time, and that the father’s own conduct has prevented the court from conducting the type of full consideration of her best interests that might have supported an expanded role for him in the child’s life at this time.
The Applicable Law
[9] As the parties were not married, the parenting issues in this case are governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). Section 29 of that Act states that the court shall not vary a parenting order unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child. Although the legislation itself does not set out a specific test to varying an interim order, the courts have held that the change must be one that results in a compelling reason to vary the previous order. See Radojevic v. Radojevic, 2020 ONSC 5868, 324 A.C.W.S. (3d) 233 – [2020] CarswellOnt 14013, where Kurz J. refers to para. 26 of Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.) and Justice Mitrow’s summary of the law:
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 Radojevic was decided under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) the same test applies under the CLRA. See: McIsaac v. Pye, 2011 ONCJ 816 CarswellOnt 15387.
Analysis
[11] The respondent submits that the January 30, 2019 order was designed to reinstate his contact with his daughter, who he had not seen for several months, and was to have been reviewed after three months. The applicant was only agreeable to modest adjustments that first increased his parenting time from 2.5 hours to 4 hours and then to 6 hours. In August 2019 his time was again extended to 8 hours. No further increase has occurred, and the supervision requirement remains in place.
[12] Starting in early September 2018, the respondent could have seen his daughter for two hours, twice each week, supervised. Instead, he chose not to see her at all because these terms, proposed by the applicant, were not acceptable to him.
[13] The respondent does not disagree that the applicant was the primary caregiver for the child prior to the final separation, however, he maintains that he was involved in every aspect of the baby’s life when he was not at work. His view is that, for no good reason, the applicant has restricted his parenting time since the separation. The respondent deposes that he has a very strong bond with his daughter and there are no substantiated concerns with his parenting capacity.
[14] The respondent acknowledges the conflicted relationship between he and the applicant but distinguishes that from his relationship with Anniston. He also acknowledges that he has been distrustful of professionals involved with the family and that had caused him to act out in the past. He now wishes to move forward in a more positive manner and put his sole focus and attention on strengthening his relationship with his daughter.
[15] This statement of good intention appears to refer back to the two discontinued OCL reports. The first investigation was discontinued on February 25, 2020 because of difficulties encountered during the first meeting with the respondent father. He advised the clinician that his house was surveilled inside and out for his protection against false allegations made by the applicant. He also said that his mother was present to serve as a witness. The OCL clinician did not consent to the respondent recording their conversation and advised him that interviews were generally done in private, absent exceptional circumstances. The respondent asked for written proof of this policy, a document the investigator did not have with her. Faced with the respondent’s insistence on filming the interview and having his mother present, the clinician ended the meeting and left the premises.
[16] The report of the second discontinued investigation is dated August 18, 2020. It was discontinued because the clinician was unable to complete the assessment due to difficulties encountered when trying to arrange observation visits with the respondent. The OCL advised the respondent that the observation visit with the child should be held at his mother’s home, under her supervision, in compliance with the court order. The respondent refused. Despite the clear wording of the order, he denied that it required his visits to be in his mother’s house, and then hedged, saying the order did not say they could not leave his mother’s house. The clinician offered the option of either a virtual observation visit, or an in-person visit at his mother’s home. The respondent’s intransigence left the OCL with little alternative. The clinician could not be expected to conduct an observational visit in a location that violated the terms of the court order. In the result, the investigation could not be completed.
[17] The respondent’s attempt to brush off his behaviour that prevented the OCL’s investigation is an attempt that I reject. Justice Audet ordered the clinical investigation because of the high conflict between the parents and the elements of their discord that pose risk of emotional harm to the child. They include the respondent father’s allegations that the mother has mental health issues and is alienating him from his child, the mother’s allegations that he is abusive toward her, lacks parental capacity, has addictions, and more. By his own conduct, the respondent has deprived the court of valuable neutral information to enable its thorough consideration of this child’s best interests.
[18] The respondent says he experienced significant depression and anxiety following the final separation. He reports marked improvement in his mental health since then. He says he completed a mental health assessment in December 2020, was diagnosed with mild anxiety and prescribed Trazodone. In support of this the respondent attached a note describing a 28-minute telephone consultation on December 17, 2020. The note is unsigned, however, the collateral information contained in the second discontinued OCL report leads me to conclude that it was prepared by Dr. Sweiden. This was the third of his reports in evidence, two located in the OCL report and one tendered by the respondent.
[19] The first appointment with Dr. Sweiden was on September 4, 2019. The respondent’s concern was listed as anxiety. The doctor wrote that the respondent scored 19 on the GAD-7 anxiety scale indicating severe anxiety. On October 25, 2019 his score had dropped to 6, indicating mild anxiety. On this date, the doctor said that the respondent still had an issue with his sleep and noted his unwillingness to take medication. The respondent advised Dr. Sweiden that the court required a health/mental health assessment. Dr. Sweiden told him he could not do an assessment without first checking his old chart.
[20] The doctor’s December 17, 2020 note describes the respondent as saying that he thinks his anxiety is getting worse and he still has sleep issues but is now willing to take medication, if needed. His GAD score had elevated to 12, and the doctor noted that the respondent sounded more anxious than last time. He prescribed Trazodone and advised the respondent to seek psychotherapy, as needed. Although the doctor did not detect any suicidal thoughts or plans, he secured the respondent’s verbal agreement to go to the emergency department if any such thoughts or plans arose. This note also references the doctor’s request to the respondent “to get a letter from court with what was needed.”
[21] I conclude these references must be to the court order made on September 5, 2019 that required both parties to use their best efforts to complete disclosure of relevant mental health and medical records within the next 60 days. The respondent has not complied with this order. Failure to comply with a court order is never wise nor helpful to a litigant’s case. Here, considering Dr. Sweiden’s reference to an “old chart” and the applicant’s list setting out a number of mental health issues that she believes the respondent suffers from, and the failure to disclose his records, supports an inference that the respondent has not complied because compliance would harm his case. The second discontinued OCL report also contains information that supports the importance of the respondent’s compliance with the September 5, 2019 order.
[22] The second clinical investigator conducted personal interviews with both parents. On July 10, 2020 the respondent told her he had been severely affected by the process and has anxiety and panic attacks. He said he was not medicated. At times his anxiety was so severe he said he could not get out of bed and he was considering taking a year off. He said he felt much better since Justice Audet had been case managing the file. In the applicant’s interview, she told the clinician that she believes the respondent has ADHD, anxiety, panic attacks, anger management and difficulties managing his emotions. She was also worried about his use of alcohol and marijuana.
[23] This clinician also received information from the program facilitator of the New Directions program. The program facilitator reported that the respondent struggled to take accountability for his role in the conflict with the applicant; that he could not recognize his fault/actions; that he lacked self-awareness and could not take his part in the events. Each party has laid complaints against the other that resulted in assault charges against each of them. These charges were resolved by Peace Bonds. The applicant has also produced a letter from Ottawa Police Services that lists 66 occurrences involving the respondent. Each occurrence has a brief description. It is clear that, in some instances, he was a witness, in others a complainant. Other occurrences were in the nature of provincial offences including traffic violations. There are some charges listed but not the outcome. It is difficult to draw much from the list, however, I agree it would be an appropriate document for consideration in both a mental health and OCL clinical investigation.
[24] Considered together, this evidence explains my conclusion that this court cannot conduct the best interest’s analysis required to review the terms of the January 30, 2019 temporary parenting order. Responsibility for this rests squarely with the respondent.
[25] The respondent has not missed any visits since the January order, except for ones the applicant cancelled. He describes the visits going very well for the most part, noting that recently Anniston has started to have tantrums when it is time to leave.
[26] It is clear that the respondent is bringing Anniston and his mother to his own home for his parenting time, contrary to the terms of the January 2019 order. The parties differ on the suitability of his home for a child of Anniston’s age, however, what is relevant to my decision here is my concern that the respondent is once again in breach of the court order. A court is unlikely to have confidence to expand his parenting role, knowing that he is a person who picks and chooses the parts of court orders that he will comply with.
[27] Nor was I persuaded by the respondent’s allegations that the applicant has tried to limit his role in their child’s life by wrongly cancelling 15 visits over the course of two years. The evidence indicates the applicant cancelled because Anniston was ill or required to isolate due to COVID symptoms. The respondent provides examples of what he asserts are false claims that the child had a fever, or where the applicant continued to isolate Anniston after receiving a negative COVID test result.
[28] For instance, the respondent points to the negative COVID test result received on September 20 and complains that his parenting time on September 27 was cancelled anyway. However, on that occasion, the applicant had taken the child to her physician on September 25 and was advised to continue with self-isolation as the child was still symptomatic. The applicant shared this information with the respondent and reminded him that he was free to check with the physician if he had any questions. He does not appear to have done so.
[29] Another example relied on by the respondent was the cancellation of his May 17, 2020 parenting time despite Anniston receiving a negative test result in previous days. She had, however, been diagnosed with a viral illness.
[30] These and the other examples provided by the respondent do not establish the applicant mother as motivated to interfere with his relationship with their daughter. She may have been overly cautious with the child’s health, but neither is that established on the paper record before me. According to the applicant, make up visits have always been provided whereas the respondent says they have taken place most of the time.
[31] There is also considerable disagreement between the parents around whether Anniston spontaneously told her mother that her father slapped her, or whether the applicant coached her to say this. The CAS investigation was inconclusive. A trial will be required to determine this factual issue.
[32] The respondent has taken five online parenting and child safety courses, including Just for Dads offered by Family Services Ottawa. Whether he is appropriately implementing what he has learned in these programs will need to be evaluated by a trial judge in light of the specific safety concerns reported by the applicant in her affidavit.
Conclusion
[33] The applicant has had interim without prejudice decision-making authority for the child since the January 30, 2019 order. The CAS letter confirms that she has made decisions in the best interests of the child. These facts plus the history of conflict between the parents persuade me not to change the decision-making order as sought by the respondent, at this time and before trial.
[34] A letter from the current child protection worker dated June 22, 2021 was also produced. In it, the worker describes the applicant as protective and resourceful, very child focused, and observes a strong bond between mother and child. She says the child is visible in the community, attending day care, and receiving regular medical follow up. Anniston is described as happy, busy, and on track in her development.
[35] In the same letter the child protection worker described a home visit in the father’s home with both the paternal grandmother and Anniston present. The worker observed the father and grandmother caring for the child with warmth and care, that Anniston was at ease and comfortable with her father, and he engaged her in positive, age-appropriate interactions.
[36] The protection worker also provides her observation that both parents love their daughter, know her well, and present as invested in her well-being. The child’s basic needs are met in both homes.
[37] From this I conclude that overall, Anniston is doing well under the existing parenting regime. The views expressed by the current child protection worker might have supported the respondent’s case for increased and/or unsupervised contact with his daughter. In its closing report dated March 23, 2021, the CAS states that it has no child welfare concerns that would warrant it taking a position on custody and access issues because the issues are before the Family Court, that Court will have all the information before it to determine the parenting decisions.
[38] Therein lies the respondent’s problem. His failure to cooperate and enable the OCL to complete its clinical investigation as well as his failure to comply with the order to disclose his mental health and medical records, leaves the court without all the information it needs to carry out a full best interest analysis at this stage. Since the child is, by and large, doing well under the current parenting schedule, I find it is in her best interests, at this point in time, to maintain the status quo and leave well enough alone.
[39] For these reasons, the respondent’s motion is dismissed with costs to the applicant. She is clearly the successful party. If the parties cannot agree on the amount of costs, I will determine the issue by written submissions that shall not exceed two pages, excluding Bills of Costs and Offers to Settle, if any. Submissions shall be double spaced using 12 point font and be delivered to me in chambers via email at scj.assistants@ontario.ca by February 28, 2022.
Justice D. Summers
Date: February 2, 2022
COURT FILE NO.: FC-18-2231
DATE: 2022/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ADRIENNE PURVIS-DAVID, Applicant
-and-
RAYMOND ROUSSY, Respondent
BEFORE: Justice D. Summers
COUNSEL: Allison Lendor, for the Applicant
Respondent is self-represented
ENDORSEMENT
D. SUMMERS J.
Released: February 2, 2022