COURT FILE NO.: 5003/22
DATE: 2023-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK ROBERT LOMAS
Applicant
– and –
LEILA FOURNIER-HARRISON
Respondent
Jessica T. Stanley, for the Applicant
Samantha Charlebois, for the Respondent
HEARD: August 17, 2023
rasaiah j.
reasons on motion
OVERVIEW
[1] The applicant brought a motion at Tab 24 of the Continuing Record, Volume 1, and the respondent at Tab 26 of the Continuing Record, Volume 1.
[2] The applicant’s motion seeks 15 prayers for relief. I will not set them out and have referred to its location in the Continuing Record.
[3] The respondent’s motion seeks 7 prayers for relief. I will not set them out and have referred to its location in the Continuing Record.
[4] These motions came before me on July 20, 2023, at which time this hearing date was set for hearing of the following issues:
(a) Parenting time;
(b) Decision-making responsibility;
(c) Child support; and
(d) Where the child should be enrolled in school for September of 2023.
[5] The child subject to this proceeding is Patience Riff Page Lomas, born February 6, 2019 (“the child” or “Patience”). She is currently age 4. She is to start J.K. this September.
[6] The applicant is the child’s biological father.
[7] The respondent is the child’s biological mother.
[8] The respondent has another child not subject to this proceeding “Ulric”, diagnosed with autism and global mental delay disorder. He will be 8 in September.
[9] The parties started living together on or about July 1, 2018, and separated December 27, 2020.
[10] The applicant is seeking temporary without prejudice orders. The respondent is seeking temporary orders.
DISCUSSION/ANALYSIS
Introduction
[11] For clarity, I have considered all the materials filed and identified as relied on and submissions of counsel including authorities referred to although I may not refer to each individually herein.
[12] The parties were not married, and the provincial legislation applies.
[13] It is trite to say that decisions on these issues depend of the facts of the specific case.
OCL
[14] The Office of the Children’s Lawyer declined to become involved in this case, and the reason presents as limited resources by the letter filed.
[15] The parties on consent seek a second order requesting their involvement. The last order was made October 25, 2022. Given the issues in this case and the time that has passed during which this matter has unfortunately not been able to be resolved and issues continuing, I take no issue with this request.
Decision-making Responsibility
[16] Interim without prejudice temporary orders have been made in this case, the last being one made by me on January 11, 2023. I am of the view that temporary orders should now be made given the date of the application and the foregoing. It is in the best interests of the child that stability in orders be considered as well, based on the anxiety the child has been admittedly experiencing.
[17] The applicant in his affidavit materials filed, deposes amongst other things that:
I currently reside in my residence located at 48 North Eden Street in Sault Ste. Marie, Ontario. Patience has her own bedroom, toys, clothing, and necessities at my residence.
Patience has a strong daily routine at my residence, including bedtime, mealtimes, and bath times.
Patience enjoys regular contact with the following family members while she is under my care: the paternal grandmother, Helen-Mary Carter, the paternal grandfather, Kenneth Lomas, the paternal step-grandmother, Julie Lomas, the paternal aunt, Sandra Bouras, and the child’s cousin, Rachel Bouras.
Patience and I reside with my common law partner, Candice Marion Norman (hereinafter “Candice”) and her son, Harley Joseph Provencher, age 13 (hereinafter referred to as “Harley”). Harley resides with Candice and I on alternate weeks.
Patience has a close and loving bond with both Candice and Haley.
After parenting time with the respondent patience often mentions to me that she and the respondent spent all of their time at the maternal grandmother’s home, and not at 23 Lake Huron Drive in Desbarats.
I have been employed full-time by Wardlaw Heating and Cooling since November 21, 2016. I work Monday to Friday each week, and my hours are usually 8:00 a.m. or 9:00 a.m. until 5:00 p.m.
My partner, Candice, is the owner and operator of “Pierced by Pixie” located in Sault Ste. Marie.
I have been advised and I verily believe it to be true that on one occasion, the Children’s Aid Society of Algoma (hereinafter the “CAS”) made an unannounced visit at the respondent’s home at approximately 1:00 p.m. while the respondent was exercising parenting time with Patience. The respondent refused to open the door and advised the CAS worker that she was just getting out of the shower. When the respondent finally opened the door, she had heavy makeup on, had dry hair and looked as though she had just thrown on clothing. The CAS worker did not believe that the respondent had just been n the shower. I suspect that the respondent was in the middle of creating adult content at this time.
Apart from selling adult content online, the respondent is otherwise unemployed.
I have no way of knowing whether the respondent is also engaging in physical sex work and whether Patience is being exposed to strangers in the respondent’s home.
On January 16, 2021, the respondent attended at my residence again in an attempt to reconcile our relationship. The respondent attempted to kiss me, and I turned my face away from her. The respondent accused me of pushing he. I deny having any physical contact with the respondent on these occasions. When I told the respondent to leave my residence, she began to punch me repeatedly in the stomach. I left the residence to avoid further physical abuse at the hands of the respondent.
When I returned to my residence, I discovered that the respondent used a hammer to destroy 3 TVs in my home, my newly installed bathroom vanity and bathtub tile, a glass door, the door on my oven, a glass door between the foyer and the living room, as well as my X-Box gaming system.
I am aware that the respondent has been diagnosed with clinical depression and a personality disorder. On October 27, 2022, my lawyer sent a letter to the respondent’s counsel seeking a letter from the respondent’s medical health provider to confirm the respondent’s mental health diagnoses, including agoraphobia, and an explanation as to how the respondents diagnoses impact her ability to parent. The respondent did not provide a letter from the respondent’s doctor. Attached hereto as Exhibit B is a copy of the letter sent by my lawyer dated October 27, 2022.
During the relationship the respondent struggled with substance abuse issues, including alcohol, marijuana, cocaine and MDMA. The respondent attended treatment for her substance abuse issues during the relationship, however the respondent relapsed as soon as she returned home, despite my best efforts to encourage her to stay sober.
I believe that the respondent has not attended treatment since the date of separation, and I strongly suspect that she continues to abuse drugs and alcohol on a regular basis.
The respondent has accused me of substance abuse issues. I vehemently deny these claims.
I drink alcohol socially, and my alcohol use has never impacted my ability to parent the child. I have never attended treatment for substance abuse, and both during the relationship and since the date of separation, I have been employed full time. There is no evidence that I am or have struggled with substance abuse as alleged.
[18] In his affidavits the applicant sets out his account of decision- making responsibility to date.
[19] In her affidavits filed, the respondent states amongst other things the following:
i. The respondent and I commenced a common law relationship in December 2017. We separated a number of times during the relationship. Our final separation date was December 22, 2020. There is one child of the relationship namely, Patience. I also have another child namely, Ulric Prime Fournier-Harrison, born September 29, 2015 (“Ulric”).
ii. I continue to rely on my Answer filed in this matter at Tab 5 of the continuing record. Most of the issues and background provided by the applicant in his affidavit have been replied to in my Answer. Only the important facts will be repeated.
iii. I met the applicant during a drug deal where he was selling me drugs. He was an avid user and known drug dealer.
iv. Our relationship was very toxic involving many instances of physical and verbal abuse at the hands of the respondent.
v. I have struggled with my mental health during the relationship. This was as a result of the ongoing and continuous abuse by the applicant. I have attended the Sault Area Hospital mental health ward to seek treatment in the past.
vi. I have been sober since January 17, 2021.
vii. After separation, Mr. Lomas was extremely controlling with allowing me to have parenting time. He would decide if I could have parenting time and for how long. At the time, I was concerned about maintaining my sobriety and creating distance between myself and Mr. Lomas. While I wished that I would have commenced a court application sooner, I had significant obstacles in my way.
viii. After separation, I was constantly asking for more parenting time with Patience. For a month after separation, Mr. Lomas withheld Patience entirely. He advised me that while I was in the hospital seeking treatment, he got “full custody” of Patience. After one month, all Mr. Lomas would allow for parenting time was three days per week from Monday to Wednesday.
ix. In early May 2022, we commenced a week-about schedule for parenting time. This was working well until the weekend of June 10, 2022.
x. During the weekend of June 10, 2022, Patience made comments that Mr. Lomas had been “touching her peepee” and that Mr. Lomas “has the same thing that Ulric has and he plays with it in my paw patrol room”. I was shocked at these comments and pressed Patience for more information. While Patience was in the shower, she put her finger in her private area and said that “Daddy hurt my peepee with his fingers”.
xi. After hearing this disclosure, I took Patience to the hospital to have her examined. Children’s Aid Society (“CAS”) attended the hospital and spoke with her. They opened an investigation into Mr. Lomas and advised me that Mr. Lomas was not to have any parenting time with Patience until their investigation was complete. I was able to take Patience home.
[20] The respondent in her materials details an occurrence from July 12, 2022, involving the applicant following which the applicant was charged with as against her two counts of assault and two counts of assault with a weapon.
[21] The respondent acknowledges that CAS has completed their investigation and decided there was not enough evidence to move forward with it. However, she still believes that the child has been sexually assaulted by the applicant.
[22] The respondent acknowledges that all criminal charges against the applicant were withdrawn.
[23] In her materials, the respondent sets out facts she relies on regarding decision-making authority and her proposal for a strict joint regime.
[24] In her materials the respondent replies to certain paragraphs of the applicant’s affidavit statements and provides information regarding her circumstances for the court’s consideration.
[25] Form 35.1 affidavits were filed with the pleadings.
[26] In making a parenting order (decision-making responsibility and parenting time), the court shall only consider the best interests of the child. The starting point is that the parents are equally entitled to decision-making authority. In consent, implied consent, and or acquiesced scenarios, entitlement is suspended until separation agreement or order of the court. Entitlement is subject to alteration by the order of a court and a separation agreement.
[27] I have considered the record, the factors related the child’s circumstances including physical, emotional, and psychological safety, security, and well-being.
[28] The child is currently four years of age.
[29] Both parties state their relationship with the child is close and strong, and that it is the same with the identified family members and people who play important roles in her life. I accept this.
[30] Each party presents as being willing to support the development and maintenance of the child’s relationship with the other.
[31] The history of the care of the child is that there were in fact periods in my view when the applicant had primary care of the child, despite the sharing arrangement that has gone on.
[32] The child is very young, and views despite submissions, I am of the view preferences are not ascertainable on this record. I do note that both parties acknowledge that the child is exhibiting anxiety and difficulty getting back into routine at their various residences.
[33] There were no submissions regarding cultural, linguistic, religious and or spiritual upbringing to consider.
[34] The plans for the child’s care have been provided. I recognize that the respondent does not work, and I equally recognize that the respondent has a plan that has worked well and includes reliable support with people the child has close relationships with, including but not limited to his current partner, his father, his stepmother, and his mother. They have played pivotal roles in the care of the child on the record before me, even before the parties separated.
[35] Each party presents as being willing to care for and meet the needs of the child. As for ability, I am concerned regarding the lack of information that was filed with the court to update the court on the respondent’s current health status and with the somewhat confusing or contradictory evidence that she is on Ontario Works and not working solely to take care of Ulric, but then there is an issue of agoraphobia that is not explained that at the hearing was related to inability to work.
[36] Each party presents as being willing to communicate and co-operate with one another on matter affecting the child. As for ability although it may be difficult, I am not satisfied that there is complete inability to communicate and there are many methods to communicate now that do not involve personal contact, such as emailing, texting and/or use of applications, such as Co-parently, etc.
[37] As for the impact of any family violence and the person alleged to have engaged in same and their ability and willingness to care for and meet the needs of the child, and appropriateness of making an order that would require cooperation on issues affecting the child, I note that there are no issues concerning the child, all charges against the respondent were withdrawn, CAS expresses no concern regarding either parent at this time, and as stated above, there are ways to communicate that do not involve personal contact. At present, it appears the only major decision at this time is where the child should go to school, which this court has been asked to decide as they are unable to agree.
[38] As to any criminal proceedings and conditions or measures relevant to the safety, security and well-being of the child, again, there are no outstanding criminal proceedings and as stated there are measures for communication for the parties that would facilitate well-being of the child.
[39] As such, when it comes to decision-making responsibility, at this stage, I am not satisfied that sole decision-making responsibility ought to be awarded to either parent. Joint decision-making can be accomplished with measures. The order would be a temporary order, one which the court will maintain the authority to change if facts arise necessitating a change in the best interests of the child. The order will provide a mechanism suitable to the litigation to address issues. This is clearly needed exemplified by their inability to resolve the issue of school.
Parenting Time
[40] I will not repeat the legal principles and factors the court are to consider. They are set out in the section above. The findings there, equally apply here with the following other additional comments.
[41] The entitlement to parenting time includes the right to visit and be visited by the child. It includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. Entitlement is subject to alteration by the order of a court and a separation agreement.
[42] The issues are the schedule and exchange of the child.
[43] The record reflects that the respondent has struggled with her health and not on an inconsequential basis. Her history includes attempting suicide and substance abuse. More recently, depending on what the correct information is (as the respondent has not produced her records or a medical report), issues continue for the respondent as stated above. I am concerned that information regarding her health has not been fully disclosed and why, when it is clear that her health is an identified issue. I am not sure what was known by CAS regarding same or what they may know about the more recent agoraphobia.
[44] I do not accept that the applicant has consented to or acquiesced in a status quo of equal sharing in the sense presented by the respondent. I accept that he was willing to try a shared regime on a without prejudice temporary basis. I accept that he was of the view that it is not working; that he has had this view for some time; and that due to circumstances beyond his control, including but not limited to court appearances being cancelled or unable to proceed, he has had to wait to argue the issue. I also accept that during this time, other issues arose, such as criminal charges and CAS investigations that interfered with his parenting time and his ability to seek change until same was resolved. The charges were withdrawn, and the CAS complaint was not verified. I accept that out of desperation he agreed to continue on, until the issue could be dealt with and that he did so on a without prejudice basis. Prior to April of 2022, the primary residence was with him with the assistance of current partner, his parents and stepparent for a period. No issues arose regarding his care of her during that time.
[45] Until the parties separated, and the respondent moved, Sault Ste. Marie was the home of the child. I have to consider also that the parties do not live close to each other, and the child is set to start school this Fall. While it may not seem like a significant distance to the respondent, I have to view this in the context of the best interests of the child and her age.
[46] I have kept in mind the parties’ consensus that the child is demonstrating anxiety with the current regime.
[47] Accordingly, in the best interests of the child which I will speak more of when addressing the school decision, I am of the view, that given her age, that she will be starting school, given the physical distance between the parties residences and the current uncertainty of that continuing, along with insufficient information regarding the respondent’s current health status, the child’s anxiety, and the facts that support that the child was doing well having her primary residence with the applicant, I find it is in the best interests of the child to have her primary residence with the applicant on a temporary basis and the respondent have parenting time every second weekend from Friday at 4:30 p.m. until Monday morning before school, or Sunday evening at 7:00 p.m. if the respondent is not able to get the child to school. Time should be extended when the child is not in school and the same end time will be put in place if the respondent cannot drive the child to school, namely the evening before at 7:00 p.m. There should also be at minimum once weekly supper visits in Sault Ste. Marie, because of the child’s age and to maximize time without the driving. There should also be daily contact either by telephone or video on the days the child does not have parenting time with the respondent. Finally, I will include a clause that allows the parties flexibility with parenting time, that they may agree to such further and other parenting time in writing to cover special occasions and/or changes that may need to be accommodated.
[48] The commencement times for the parenting time I have chosen are reflective of the commencement of school, and so the child is with the applicant when she starts school.
[49] Regarding exchange, I expect that the respondent will have childcare obligations related to Ulric and as such, may not be in a position to pick Patience up from school and time will be needed to travel. The same is my concern for dropping her off, which is why the evening before a school day will be the drop off date if she cannot drive the child to school. As such, the timing for parenting time and parenting schedule itself have been set by me for these reasons and an exchange point set, the place suggested by the respondent.
Table Child Support
[50] I am not prepared to decide this issue. There is outstanding disclosure that needs to be made by the respondent to the applicant, which should have been made by now.
[51] The court received no explanation as to why this disclosure has not been made other than the respondent has not yet filed her 2022 income tax return and is “working” with her financial institution to get her bank records.
[52] I will be making orders for disclosure and putting this matter to the trial coordinator to set a date for determination of the issue. For clarity for scheduling of the hearing of this issue, it does not have to re-appear before me and can appear before another justice. I do not consider myself seized of the issue.
Where the Child should be Enrolled in School for September of 2023
[53] For all the reasons he sets out in his materials, the applicant seeks to enroll the child at H.M. Robbins Public School for the academic year commencing September of 2023.
[54] For all the reasons she sets out in her materials, the respondent seeks to have the child enrolled at Echo Bay Central Public School.
[55] The parties were unable to resolve this issue.
[56] I was asked to determine the issue.
[57] I find that the best interests of the child, in the balance, favours attending H.M. Robbins Public School.
[58] I reject Echo Bay Central Public School as in the child’s best interests.
[59] First, my reasons flow from and are related to my determination on parenting time set out above and the best interests of the child which was also analyzed in my decision on decision-making responsibility.
[60] In this case, I determined that the primary residence of the child should be with the applicant and determined a parenting time schedule that leads to favouring H.M. Robbins, since the child will be in the applicant’s care more so than in the care of the respondent.
[61] Even if I had not ordered primary residence to be with the applicant, I would have rejected the Echo Bay school.
[62] I noted that the Echo Bay school is not in either party’s residential district.
[63] It is not equal driving for the parties, 36 minutes for the applicant and 20 minutes for the respondent.
[64] The Echo Bay school would involve spending up to 80 minutes (for the respondent [there and back: two trips a day] and 144 minutes (for the applicant [there and back: two trips] on school days in a vehicle, and for the child, 40 minutes to 72 minutes – and maybe more for all involved in the transportation in the winter, which could even lead to missing school.
[65] In both homes selection of the Echo Bay school would involve having to get the child up earlier to accommodate travel and potentially going to bed earlier, which will cut down time with each parent.
[66] Both parties agree that the child is demonstrating issues related to anxiety as it is. In my view, adding getting up early/going to bed early, and the set-out travel times is certainly not conducive to minimizing anxiety for an anxious child and one having difficulties settling.
[67] Next, at this date, I accept that it is not certain that the respondent will continue to reside at her current residence and for how long. The respondent since separation has already moved 4 times. Her residence is owned by her current partner. Another move could make choosing Echo Bay an inappropriate choice and/or could bring about another change for Patience’s school in such circumstances which I cannot rule out at this date.
[68] The applicant has been stable in his current residence for some time with no plans to move in the foreseeable future.
[69] The respondent’s partner works out of town and through no fault of his own, would not always be available as support to the respondent.
[70] The applicant has a partner, both his parents and a stepparent for assistance. There is a history of assistance and good relationship between these people and the child.
[71] The respondent has care obligations that she provides to her son Ulric that by her own admission involves picking him up from school anywhere from 1 to 3 times a week due to behavioural issues related to his diagnoses. While not the subject child of these proceedings, quite frankly, it concerns me that part of her plan includes moving Ulric’s school yet again, with all of these known issues and diagnoses, even if the assigned aide can move schools with him.
[72] Further, I disagree that the children need to attend the same school. Ulric and/or Patience should attend a school that meets their best interests considering them as individuals on this fact scenario.
[73] Further, I do not accept that it would be as easy or even fair for Ulric and/or Patience, on days Ulric is taken home from school due to behavioural issues, to have to be put in the car yet again for what may be 40 minutes to an hour (there and back) to pick up Patience later, if this would even be possible, meaning I noted that the record appears to suggest that Ulric can have meltdowns that last up to 8 hours in duration. Insufficient information has been provided on this record for me to appreciate the ease of the respondent’s ability to manage such days, if and when they happen and how. Again, I appreciate that the respondent does not work, but it is evident that she has care demands related to Ulric and a partner who works out of town, and I cannot ignore these factors on this record.
[74] Next, I considered that it is expected that Patience would make friends at school and/or have school related activities. If Echo Bay was selected, again, it would be in an area where neither party resides, and additional travel would be engaged.
[75] There could be additional travel time requirements for appointments made during school hours to contemplate as well. One cannot always control dates and times for appointments.
[76] Emergencies also would find both parties and other supportive family members at a good distance away if Echo Bay was selected. There are no family supports in Echo Bay.
[77] Weather could be an issue in the Winter as I have stated, for travel, either getting to school on time, and/or missing school and/or safety of the highway required to be travelled if Echo Bay was selected.
[78] H.M. Robbins is very close to the applicant’s home.
[79] The applicant has a number of support persons to assist him with getting Patience to and from school when it is needed in Sault Ste. Marie. With the parenting-time schedule I have determined, if the respondent is able to meet it, she would only have one school drop-off to make.
[80] Stability is an element that H.M. Robbins can offer for the child with everything that has gone on in the last two years. It may also assist the child with the anxiety she has been experiencing as both parties have acknowledged.
COSTS
[81] Since child support has yet to be determined, and was commingled with this motion, I am of the view that the issue be adjourned to the justice hearing that issue.
CONCLUSION/ORDER
[82] For these reasons,
An interlocutory order shall issue in prescribed form, requesting that the Office of the Children’s Lawyer provide such services as they deem appropriate for the child, Patience Riff Page Lomas, born February 6, 2019.
A temporary order shall issue providing:
a. The applicant and respondent shall have joint decision-making responsibility with respect to the child Patience Riff Page Lomus, born February 6, 2019.
b. The applicant and respondent shall consult with each other on major decisions related to the health, education, and well-being of the child Patience Riff Page Lomus, born February 6, 2019. In the event there is a disagreement on a major decision, the applicant shall have final decision-making responsibility regarding the decision, which decision shall not be put into effect for a period of 30 days after it is made, unless it is an emergency, to permit the respondent to contest and bring the issue to a court of competent jurisdiction for determination if she so chooses. If she so chooses to so contest, a decision on the issue will be determined and put into effect by the court or any written agreement between the parties.
c. The primary residence of the child Patience Riff Page Lomus, born February 6, 2019, shall be the residence of the applicant.
d. The child, Patience Riff Page Lomus, born February 6, 2019, shall be enrolled for school at H.M. Robbins for the academic year commencing in September of 2023.
e. The respondent shall have parenting time with the child Patience Riff Page Lomus, born February 6, 2019, as follows:
i. Commencing, August 25, 2023, every second weekend from Friday at 4:30 p.m. to Monday morning before school to which the respondent shall bring the child. If the child is off from school on the Monday, this time shall be extended to Tuesday morning before school. If the child is off from school on a Friday, this time shall be extended to commence on the Thursday at 4:30 p.m. If the respondent is unable to drive the child to school following any parenting time as provided herein, the parenting time shall end the night before school at 7:00 p.m.;
ii. Commencing, August 30, 2023, every Wednesday in Sault Ste. Marie from 4:30 p.m. until 7:00 p.m.;
iii. Video-call parenting time, such as Facetime or telephone parenting time, once daily, on each day she does not have in-person parenting time, at 6:30 p.m.; and
iv. Such further and other parenting time as the parties may agree to in writing.
f. The exchange for the child for parenting time, except when the applicant is driving the child to school after parenting time or otherwise agreed to in writing, shall be at the Husky/Esso Station located at 7432-1275 Trunk Road, Sault Ste. Marie.
g. Both parties may attend school activities and/or extracurricular activities and/or appointments set for the child, Patience Riff Page Lomus, born February 6, 2019 as they choose.
h. The parties shall utilize an application or shared calendar, such as Co-parently, or Google, respectively, and/or email each other, to share information regarding the activities and/or appointments and/or other important information concerning the child Patience Riff Page Lomus, born February 6, 2019.
i. The respondent shall within 30 days of this order provide the applicant with a completed income tax return for the year 2022, and within 10 days of receipt of same, a copy of her 2022 Notice of Assessment.
j. The respondent shall within 30 days of this order provide the applicant with a copy of her bank statements showing income she has earned since the date of separation to present.
k. The respondent shall provide the applicant within 30 days of this order with a medical report from her treating physician setting out her health diagnoses, status and affect same may have, if it even does, on her ability to parent the child.
l. The issue of child support is adjourned to the trial co-ordinator to be placed on a short motions list in September that is agreeable to both parties, for determination, or any other date as counsel may agree and obtain from the trial coordinator.
m. The issue of costs is adjourned to the judge hearing the child support relief.
Rasaiah J.
Released: August 21, 2023
COURT FILE NO.: 5003/22
DATE: 2023-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK ROBERT LOMAS
- AND –
LEILA FOURNIER-HARRISON
REASONS ON MOTION
Rasaiah J.
Released: August 21, 2023