Court File and Parties

COURT FILE NO.: FS-21-09-0001 DATE: 2023-10-31 SUPERIOR COURT OF JUSTICE – ONTARIO (Parry Sound)

RE: Micheal Casey Lewis, Applicant/Moving Party AND: Jennifer Lynn Lewis, Respondent/Responding Party

BEFORE: The Honourable Madam Justice J.S. Richard

COUNSEL: Inesa Buchyn, for the Applicant Nirjari Parth Desai, for the Respondent

HEARD: October 23, 2023

Endorsement

Motion

[1] The Applicant father brings a motion requesting a temporary order allowing him to register the parties’ child, Georgia, in a school located closer to his home, granting him primary residency, disallowing the mother to pick up the child from school, ordering the mother to complete a 12-panel hair follicle drug test, and suspending the mother’s parenting time. The motion also requests adjustments to child support obligations in accordance with the relief sought.

Background

[2] The parties were married April 18, 2014, and separated in 2018. Their child, Georgia, was born on October 22, 2014. Georgia is now 9 years old and in grade 4.

[3] The father commenced an Application on February 5, 2021. The matter was settled on January 12, 2023, by way of final Minutes of Settlement. The Minutes of Settlement provided for joint decision-making responsibility and shared parenting based on a week-about basis. It also dealt with child support, spousal support and equalization.

[4] Due to the father’s counsel’s inability to contact the mother, who was self-represented at the time, father was unable to have the final order issued. According to the father’s evidence, between February 24, 2023, and April 13, 2023, the father’s counsel reached out to the mother at least 8 times. The father scheduled a settlement conference on April 13, 2023, in order to obtain direction with respect to the issuance of the final order reflecting the Minutes of Settlement. The mother did not respond to any of the correspondence and did not file any materials for the settlement conference, nor did she attend.

[5] At the settlement conference of April 13, 2023, Justice J. Wilcox endorsed the following:

(…) The mother reportedly has become involved in a drug related lifestyle that is inconsistent with at least some of these provisions. Consequently, the applicant sought direction at this conference as to what to do.

I suggested that the applicant take out the final order under Family Rule 25(8), then bring a motion to change. Within the motion to change proceeding, a motion could be brought for immediate interim relief. The lump sum payments owed by the applicant to the respondent could be paid into court pending resolution of the motion to change proceeding. The applicant’s counsel indicated that she would proceed in that fashion.

[6] On July 19, 2023, a Final Order reflecting the Minutes of Settlement was granted by Justice P. J. Boucher by way of a 14B motion. The father subsequently brought a Motion to Change requesting sole decision-making responsibility, primary residency as well as a change in the mother’s parenting time such that it would be arranged at the father’s discretion.

[7] The father’s Motion to Change was issued with leave from the court on September 22, 2023. The father bases his Motion to Change, as well as his request for interim relief on this motion, on a material change in circumstances brought about by the mother’s unexplained absence from Georgia’s life from at least January 2023 to July 2023, as well as on her drug related lifestyle or issues.

Issues

A. Material Change in Circumstances

[8] The mother challenges the court’s authority to vary the final order of Justice Boucher on the basis that the evidence presented by the father relating to the mother’s drug addictions is dated. I agree.

[9] Other than recent inadmissible double hearsay evidence submitted to the court by the father on this motion for interim relief, his evidence predates the execution of the Minutes of Settlement in January 2023. The circumstances were, therefore, the same in January 2023 when he agreed to joint decision-making responsibility and shared parenting. Thus, while the allegations of drug use are relevant to the best interest of the child analysis, they do not trigger the required threshold for a material change in circumstances on this motion.

[10] Nonetheless, there was a material change in circumstances following the signing of the Minutes of Settlement sufficient to trigger a review of the parenting provisions. Credible evidence from the father strongly suggests that shortly after the Minutes of Settlement were signed, the mother disappeared from Georgia’s life for approximately 8 months. Based on this evidence, the mother has not exercised any meaningful contact or parenting time since January 2023, despite the week-about residency scheduled that had been agreed to and ordered. The father’s evidence also suggests that while Georgia continued for some time to reside in her maternal grandparents’ home per the schedule, as this was the mother’s alleged place of residence, parenting time was, in actuality, being exercised by the maternal grandparents, not by the mother.

[11] In her evidence, the mother disputes the allegation that she disappeared, but does not offer any supporting evidence, or even an explanation, as to why neither the father nor his lawyer was able to contact her, or why she made no inquiries about Georgia during this time. She also does not contest the allegation that Georgia disclosed that she was not seeing her mother during this time. Further, the father’s evidence shows that a letter was sent to the mother on March 27, 2023, raising concerns of her absence and possible drug use, and that the mother did not respond until August 10, 2023. The mother’s evidence is simply that the father’s allegations are false as she was “very much present at the time.”

[12] Thus, even though the Final Order was only issued on July 19, 2023, given the father’s inability to have it issued due to the mother’s lack of cooperation, and given the fact that the Final Order, made on consent, is simply a reflection of the parents’ agreement, the date after which a material change in circumstances must be shown in this case is the date upon which the Minutes of Settlement were signed, which was on January 12, 2023.

[13] Accordingly, I find that there has been a material change in circumstances sufficient to meet the requirements of section 17(5) of the Divorce Act, R.S.C. 1985, c.3, and Georgia’s best interest must be reviewed.

B. Georgia’s best interest

i) Primary residency

[14] Except for spending some time with her maternal grandparents in early 2023, the father’s evidence shows that he has been Georgia’s sole caregiver for at least 9 months, if not more. The evidence also shows that, unfortunately, despite the original intent to share decision-making and parenting time, the parties’ relationship is not one characterized by cooperation and communication, and has even resulted in calls being made to the police by the mother very recently.

[15] Under section 16(1) of the Divorce Act, in making or varying, a parenting time order, only the best interest of the child needs to be considered, with primary consideration to be given to the Georgia’s physical, emotional and psychological safety, security and well-being (s. 16(2), Divorce Act).

[16] Other factors needing to be considered by the court in determining Georgia’s best interest include not only her needs based on her age, but also the history of her care, the nature and strength of her relationship with each parent, her views and preferences, her linguistic and cultural heritage, plans for her care, and the ability and willingness of each parent to communicate and cooperate with the other parent, just to name a few.

[17] A helpful summary of the case law on this issue was provided in Miller v. Miller, 2022 ONSC 7237, at para. 25:

25 (…) a. The courts have traditionally taken a dim view of any change in a parenting status quo on a temporary motion. That is because such a motion is brought on unreliable and conflicting affidavit evidence where credibility of parties cannot be determined. As well, if the status quo does change on an interim motion, there is, of course the risk that the change will be undone at trial, resulting in the children moving twice rather than once, creating instability. b. Because of this, the court requires compelling reasons to depart from the status quo prior to the hearing of the motion. Alternatively, the test has been set out as requiring "exceptional circumstances where immediate action is mandated": see Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) at para. 17. Other cases have suggested that there must be some danger to the child remaining in the present status quo: see Miranda v. Miranda, 2013 ONSC 4704 and Elliott v. Filipova, 2019 ONSC 4506.

[18] In spite of the contrasting allegations submitted by each of the parents in their respective affidavit evidence, what is clear is that the father has been the constant in Georgia’s life, such that he has been her de facto primary caregiver, since at least the time when the Minutes of Settlement were executed 9 months ago.

[19] Although a Voice of the Child Report has not yet been completed, the parties agreed at the last case conference to one prepared. For now, however, the only evidence available to the court is the evidence submitted by the parties. While the court must be mindful of the potential for untested credibility issues, the evidence presented by the father suggesting Georgia has been having a difficult time dealing with her mother’s sudden and unexplained lengthy absence from her life since January 2023 makes complete sense. The father’s evidence also suggests that Georgia has expressed and displayed stress, discomfort and fear of her mother, explaining in detail concerning behaviour displayed by Georgia during or following short interactions with her mother on the telephone.

[20] Although unsupported by any other evidence, the mother submits that the father is alienating Georgia from her. The mother’s evidence also focuses on vague accusations of abusive behaviour by the father towards the mother and the family dog, both of which are vehemently denied by the father. Despite having little to no contact during with Georgia, the mother also alleges Georgia is fearful of her father.

[21] The mother neither admits nor denies having issues with drug addiction, nor did she provide information to the court regarding criminal charges she is alleged to be facing currently. She simply states in her affidavit that allegations made by the father with respect to her criminal charges “are both false and misleading.”

[22] During oral submissions, counsel for the mother clarified to the court that while charges unrelated to Georgia are currently outstanding against the mother, they are in the process of being withdrawn. The mother also advocated against any hair follicle testing that would analyze drug use over the last two to three months, stating that she was “only interested in looking ahead,” and for that reason, would only consent to urine testing.

[23] This is an all too familiar scenario wherein the court is presented with limited information reduced to competing affidavits replete with contradicting allegations as it takes on its responsibility to make life altering decisions for a child, even on a temporary basis. Overall, however, the mother’s evidence simply does not make sense, and the father’s evidence, in light of all of the circumstances, including the collateral information, the court’s previous endorsements, and the history of these proceedings, is much more credible and matches the context.

[24] In light of all of the above, I find that the status quo is such that the father has had primary care of Georgia for a significant amount of time. While not to the satisfaction of the mother, he has tried to support the mother’s relationship with Georgia, while also ensuring Georgia’s needs were met, including the need for stability and safety. He also enrolled Georgia in counseling, which she continues to attend. Thus, at this time, and at least on a temporary basis until a Voice of the Child Report can be completed, and until such time as concerns for the mother’s addiction issues and police involvement can be completely eliminated, Georgia’s best interest is to remain in the primary care of her father.

ii) Parenting time for the mother

[25] I disagree with the father that the mother’s parenting time should be suspended. The goal of the family should be oriented towards promoting a healthy relationship between Georgia and each of her parents, insofar as this is possible. With that said, given what has transpired for Georgia over the course of this year, reinstating a shared parenting plan after such a long suspension would not be the best option for any child having had that experience.

[26] The mother requested that the father’s motion be dismissed and, in the alternative, she requested that she be granted some parenting time. The father took the position that the court does not have the authority to order parenting time for the mother since she had not brought a motion, or cross-motion, of her own. I disagree. If that were the case, that would mean that the court only has the option of either ordering a suspension of the mother’s parenting time entirely or leaving the week-about in place. In fulfilling its responsibility, the court must analyze and order what will serve Georgia’s best interest, and it is not restricted to rigid positions taken by the parties at a hearing. All options are open.

[27] In discharging its duty, the court must, as best as it can, place itself into the shoes of Georgia, who just turned 9, and help her rebuild a relationship with her mother in the safest and most comfortable and constructive manner. For this reason, precautions must be taken to address the mother’s apparent past addiction issues. I agree with the mother that the goal is to look ahead, not backwards, as it attempts to define a new reality for Georgia. For this reason, I agree that a chain of custody 12-panel hair follicle drug test is wholly necessary, but that a urine test, which will detect the same types of drugs, should be required for some time. During oral submissions, the mother proposed completing two drug tests per week.

[28] Thus, in light of the above, subject to clean urine tests, a slow reintegration of the mother into Georgia’s life should be structured and, for the time being, any overnight parenting time exercised by the mother should be exercised at the maternal grandparents’ home since the court and the father have conflicting information regarding the mother’s residence. This is not used as a means of supervision but, rather, as a way to ensure that the mother’s location is known. In any event, this is a safe and familiar place for Georgia.

iii) Schooling

[29] Georgia just started grade 4. Until recently she had been attending Humphrey Public School. Humphrey Public School requires a twenty-five-minute commute each way from the father’s home.

[30] In June 2023, the father registered Georgia at Nobel Public School, which is a four-minute walk from his residence, for the 2023-2024 academic year. He submits that not only would this allow for a shorter commute to and from school for Georgia, it would also allow him greater flexibility in driving Georgia to her extracurricular activities and attending the school for emergencies such as illness requiring an unscheduled pick-up.

[31] The father indicates that since the mother would not consent to a transfer of schools, Georgia ended up starting school at Humphrey Public School in September 2023. He indicates in his affidavit evidence, however, that on October 5, 2023, he made the decision to have Georgia home-schooled until such time as the Court heard his motion.

[32] In his reply affidavit, he explains his unilateral decision as follows:

a) The Mother disappeared and ceased all communications for nearly one (01) year. Pending the issuance of my Motion to Change, I enrolled Georgia in Nobel P.S. I was solely caring for Georgia and as part of my childcare duties, I believed that a school closer to my home, would be better suited for Georgia as it would significantly cut down on school commute. Georgia was enrolled in Nobel P.S. school on June 8th, 2023, after Georgia and I toured the school with the principal and met her teacher for the following year. All forms including transportation request where completed that day. I was informed by the Nobel P.S. principal on August 29, 2023, that the Mother contacted them and refused Georgia's enrollment at the school.

b) I wanted to minimize disruptions to Georgia. I believed that it would be in Georgia's best interests to attend Nobel P.S. and as such I did not believe that it would be in Georgia's best interests to commence studies at Humphrey P.S. only to be moved to Nobel P.S., in the event same was permitted after my Motion was heard. I wished to secure a decision from this Honourable Court prior to enrolling Georgia in a school, such that she would be able to commence and finish her school semester in the same school.

c) Upon recognizing that it may take longer than anticipated to have this matter heard by the Court, I enrolled Georgia at her old school, at Humphrey P.S. I believed that Georgia could finish the academic school year and by January 2024, we would have the Court's decision regarding changing her registration to Nobel P.S. As Georgia began attending Humphrey P.S., I was informed by the school principal that the Mother advised them of her intention to pick up Georgia from school without my permission or consent, and without preparing Georgia for same in advance. My counsel wrote to the Mother asking that she refrain from doing so. The Mother disregarded my counsel's request, as well as the fact that the child had not seen the Mother for almost a year. The Mother made a unilateral decision to simply pick up the child from school and implement a shared schedule as if nothing has happened. I rushed to school to pick up Georgia as to ensure that she would not be exposed to Mother's erratic behaviour and thereby minimize any further trauma and confusion to the child.

d) As a result of Mother's unilateral efforts to pick up Georgia from school, I decided to home school Georgia until I am able to secure an Order restricting the Mother's ability to pick up the child school. As was outlined in my Affidavit October 12, 2023, there is a significant concern with respect to the Mother's mental health, drug usage and ability to care for the child. The order would permit my sending Georgia to school without risk of the Mother picking her up.

e) In the interim, Georgia has been homeschooled by Louise Cooke, a retired educational teacher from Near North School Board, Ms. Aldworth who is a teacher at Humphrey P.S. and myself as time pay permits. As part of the home-schooling effort, Georgia has kept up with the Grade 1/4 curriculum at Humphrey school. Georgia has completed both math and oral reading tests outside of school hours with Ms. Aldworth. She submits completed homework at end of day Fridays to be graded. Georgia also was in attendance for class pictures.

[33] The mother takes the position that Georgia should continue to attend Humphrey Public School since she has been attending that same school for the past six years. She further deposes in her affidavit:

It is crucial to acknowledge the stability and continuity she has experienced in her educational environment. The prospect of changing her school, where she would have to make new friends and adapt to a different educational setting, can be a significant challenge for a child. It is essential that any decisions regarding her schooling consider her well-being and her need for a consistent and supportive educational environment.

[34] There is no evidence before the court to suggest that Georgia has special needs that would make changing schools difficult for her. Generally, children of that age adapt to new schools quickly. With that said, while the commute for the father to Humphrey Public School may not be ideal for Georgia and her father, it would be premature to allow Georgia to change school at this stage of the proceedings. It may be that as the Motion to Change proceeds through all the steps, and as the Voice of Child Report is completed, a change of schools will point to Georgia’s best interest. Until all of that information comes to light, however, it is best to allow Georgia to continue attending the same school she has been attending, so that she does not end up having to adapt to three changes in a short period of time, if one counts homeschooling as a change.

[35] At this time, this court is of the opinion that Georgia should continue to be enrolled at Humphrey Public School.

C. Child Support

[36] As part of this motion, the father seeks a temporary order terminating his child support obligations as is set out in the Final Order of the Honourable Justice P. J. Boucher, dated July 19, 2023, commencing October 1, 2023.

[37] He further requests a temporary Order wherein the mother shall pay child support in accordance with the Child Support Guidelines, commencing November 1, 2023.

[38] No analysis is required for a simple child support calculation reflecting Georgia’s residency schedule in the temporary order varying the July 19, 2023 Final Order.

D. Conclusion

[39] In the mother’s affidavit, she emphasized, on more than one occasion, that she does not “need to re-establish her relationship with her child, Georgia” because “[t]he relationship between a parent and their child is an inherent and fundamental bond, which should not require re-establishment.” I strongly disagree with that statement, and to deny the possibility that her long-term absence from an eight-year-old’s life might have adversely affected her child’s life raises serious concerns about the mother’s ability to understand and meet her child’s needs. With that said, her proposal to subject herself to drug testing does show a willingness to provide the court with the required assurances and shows some hope that going forward the mother may be more attuned to Georgia’s needs.

[40] In light of all of the circumstances and evidence mentioned above, the father’s motion is partially granted. Accordingly, this court makes the following temporary order varying the Final Order of Justice P.J. Boucher, dated July 19, 2023:

a. Commencing immediately, the child, Georgia May Lewis, born October 22, 2014 (“Georgia”), shall reside primarily with her father, Michael Casey Lewis;

b. Upon providing two urine samples per week containing no traces of any non-prescribed drugs (i.e., a clean test), at no less than 48 hours apart, the mother shall exercise parenting time as follows:

i. During the month of November 2023: a) In person, on alternating Saturdays, from 12:00 p.m. to 4:00 p.m.; b) In person, one weeknight per week, from after school to 6:00 p.m.; c) By telephone or Facetime, once per week.

ii. During the month of December 2023: a) In person, on alternating Fridays after school (or 3:15 p.m. if no school) to Saturday at 4:00 p.m.; b) In person, one weeknight per week, from after school to 7:00 p.m.; c) By telephone or Facetime, once per week.

iii. During the month of January 2023, and every month thereafter until further order from the Court: a) In person, on alternating weekends commencing Friday after school until Sunday at 6:00 p.m. (or Monday at 6:00 p.m. if Monday is a holiday or PD Day); b) In person, one weeknight per week, from after school to 6:00 pm; c) By telephone or Facetime, once per week;

iv. And any other times as agreed upon by the parents in writing.

c. Unless otherwise agreed upon by the parents in writing, overnights with the mother shall occur at the residence of Georgia’s maternal grandparents.

d. Except as provided in the schedule above when the mother picks up Georgia from school and, unless otherwise agreed upon by the parents in writing, the father shall be responsible for picking up Georgia from school.

e. In the event that a drug test is not clean, the mother’s parenting time shall be suspended until further order from the court or written agreement between the parents.

f. Notwithstanding the above schedule, Georgia shall spend Christmas Eve 2023 with the mother from 2:00 p.m. to Christmas Day, 2023, at 2:00 p.m., and with Christmas Day, 2023 from 2:00 pm to Boxing Day at 2:00 pm with the father.

g. Unless otherwise agreed upon by the parents in writing, the parent with whom the Georgia is residing at the time of an extra-curricular shall be responsible for bringing her to her extra-curricular activity.

h. Georgia shall continue to be enrolled in counseling.

i. Child support obligations of the Applicant father, Michael Casey Lewis, as set out in the Final Order of the Honourable Justice P. J. Boucher, dated July 19, 2023, shall be terminated, retroactively, as of October 1, 2023.

j. The Respondent mother, Jennifer Lynn Lewis, shall pay child support to the Applicant Father, Michael Casey Lewis, in the amount of $347 per month commencing November 1, 2023, and on the first of each month thereafter for the benefit of the child, Georgia May Lewis, born October 22, 2014, based on her 2021 income of $39,0005.00.

k. Since success of the motion was divided, no costs shall be payable by either party for this motion.

Justice J.S. Richard Date: October 31, 2023