Court File and Parties

Court File No.: FC-23-1088 Date: 2024/01/19 Superior Court of Justice – Ontario

Re: Christian Brown, Applicant And Bhreagh Parsons, Respondent

Before: Justice Heather Williams

Counsel: Caitlyn O’Garr, for the Applicant Francis Aheto-Tsegah, for the Respondent

Heard: January 9, 2024

Endorsement

[1] The parties have a daughter named Maeve who is two and a half years old.

[2] A consent order of Doyle J. dated September 20, 2023 provided for a shared parenting schedule and set out terms for communications between the parties via Our Family Wizard.

[3] The applicant father has brought a motion for an order for decision-making for Maeve. Alternatively, he asks for an order for medical decision-making. The father also seeks an order requiring that Maeve attend the Montessori pre-school, in which he enrolled her, on a full-time basis, with only certain exceptions. The father also seeks an order that would see him pick up Maeve from the pre-school on Tuesdays and Thursdays and drop her off at the mother’s home at 6pm, in lieu of video calls on those afternoons, which the father says are not working due to the mother’s interference.

[4] The high level of conflict between the parents has been identified by the Children’s Aid Society and by one of my judicial colleagues, Blishen J..

The father’s position

Decision-making/medical decision-making

[5] The father says Maeve was diagnosed with severe neutropenia in July of 2023 and that her condition must be monitored at all times.

[6] The father says neutropenia is an immunocompromising disorder. He says he was told that it occurs when a person does not have enough neutrophils, which are a type of white blood cell.

[7] The father says Maeve’s neutropenia was classified as “severe.” The father says the mother was indifferent when first told about Maeve’s diagnosis and that she does not take the condition seriously. The father says the mother has rescheduled medical appointments for Maeve and failed to inform the father about the time of the new appointments. The father says that when he requested Maeve’s health card from the mother, the mother waited for more than two months, without explanation, before providing it to him. The father also says the mother altered Maeve’s on-line health records (“MyChart”) so that he would no longer appear as the primary parent.

[8] The father says the mother refuses to communicate with him about Maeve’s health situation and frequently tells him to take a matter up with her lawyer. The father says his lawyer has reached out to the mother’s lawyer six times since the end of October, and the mother’s lawyer has not responded.

The Montessori pre-school

[9] The father says the mother works from home Tuesday to Thursday and is refusing to bring Maeve to the pre-school on those days.

[10] The father says Maeve is enrolled in pre-school on a full-time basis. He says Maeve loves attending the pre-school and the school has made it clear that she would benefit from more regular attendance. The father says attending school is more beneficial to Maeve than being at the mother’s home while the mother works. The father also says that Maeve has missed special events at the school, because the mother will not take her to school on the mother’s parenting days.

The mother’s position

[11] The mother notes that Blishen J. referred this matter to the Ontario Children’s Lawyer on October 4, 2023 and that Catherine Reid is conducting an investigation. A case conference has been scheduled for March 6, 2024, in the hope that Ms. Reid’s report will be ready by the end of February.

[12] The mother argues that the father’s motion is premature and that no changes should be made to parenting arrangements until the parties have the benefit of Ms. Reid’s report.

[13] The mother argues there are no compelling reasons to make any changes to decision-making, including medical decision-making, at this time. She argues that although the father says that Maeve’s condition requires 24-hour monitoring, there is no medical evidence in support of this submission.

[14] The mother says that she was not involved in the decision to enrol Maeve in the Montessori pre-school. She says that she has nonetheless agreed to take Maeve to the pre-school on Fridays. The father takes Maeve to the pre-school on Mondays. The mother says that two days of pre-school per week is enough for a child of Maeve’s age. She also says that although the father insists that Maeve should attend the school full-time, he frequently picks her up from the school on Friday mornings.

Disposition

[15] The father has not satisfied me that any of the orders he has requested should be made at this time.

[16] In Chyher v. Jaboury, 2021 ONSC 4358, Summers J. set out in the legal test that must be met for a temporary order to be varied pending trial. In a later decision in the same case (2021 ONSC 8191), Audet J. reproduced and adopted Summers J.’s summary. I will do the same:

22. The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:

23. 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.

[17] Although the father says that Maeve’s medical condition requires 24-hour monitoring, the one medical record in evidence, which is relied on by both parties, is a July 9, 2023 report from CHEO which, under instructions, states: “Please follow up with your GP in about 4 weeks to repeat a CBC (blood test) to ensure the neutrophils level has normalized.” This suggests that, at that time, (a) no medical intervention was expected to be required for at least a month, and (b) there was an expectation that the situation would return to normal within about a month. There were no further medical records or any medical opinions in evidence and no indication of whether the neutrophils level did indeed normalize or what monitoring, follow-up or treatment, if any, was ordered.

[18] When Maeve’s condition was diagnosed, the Children’s Aid Society became involved at the request of CHEO. The CAS said it could not conclude that either parent had been neglectful of Maeve’s medical needs, although it was concerned about the on-going conflict between the parties.

[19] The father’s concerns appear to relate both to the mother not being concerned enough about Maeve’s condition and to the mother attending to Maeve’s condition but excluding him from attending appointments and receiving information.

[20] Given his request for an order requiring Maeve to attend pre-school full-time, the father obviously has no concerns that Maeve’s condition prevents her from attending pre-school with other children on a daily basis.

[21] With respect to the pre-school, I note that in her affidavit, the mother does not address whether full-time attendance could be in Maeve’s best interests. She speaks only to the fact that the father both decided that Maeve should attend pre-school and selected the pre-school unilaterally. The mother does not mention that the father’s lawyer reached out to her lawyer on August 10, 2023 requesting her consent to enrolling Maeve in the pre-school, and asked for a reply by the pre-school’s August 15, 2023 deadline and that the mother’s lawyer did not reply.

[22] Nonetheless and despite the pre-school’s recommendation that Maeve attend consistently, I do not feel that I am in a position to decide whether it would be better for Maeve to attend the pre-school five days/week or to be at home with her working mother. I am very hesitant to make an order such as this, which would have an immediate and direct impact on Maeve’s day-to-day life, in the absence of a more complete record, when the order could be revisited in the future when more information is available.

[23] I am also of the view that the OCL’s pending report, while not determinative of any issue, may include observations and recommendations that will help inform any decisions the court is required to make and also facilitate the parties’ ability to resolve some issues.

[24] The communication gap between the parties is wide and obviously very concerning. I entirely agree with the observation of Blishen J. in her October 4, 2023 endorsement that this is a “high conflict case” with a two-year-old child caught in the middle. While I strongly urge the parties to communicate more effectively, always putting Maeve’s best interests first, and being mindful of the impact their conflict may have on their little girl, I am not persuaded that the status quo in respect of decision-making, medical decision-making, parenting time or pre-school attendance places Maeve’s physical, mental or moral welfare at risk.

[25] The father’s motion is dismissed.

[26] Although the mother did not bring her own motion, she asked for exchanges of Maeve to be made at the daycare. The father did not consent to this proposed change, because it would eliminate his time with Maeve after daycare on Monday afternoons. As such, this order will not be made.

[27] The mother requested case management. The father did not object. A review of the procedural history of this application tells me that case management is required. I make the following orders:

1. This proceeding shall be case managed;
2. This endorsement shall be forwarded to Local Administrative Judge, Family, Audet J; and
3. If possible, the March 6, 2024 case conference shall be heard by the assigned case management judge. If this is not possible, the case conference shall be re-scheduled to be heard by the assigned case management judge. I recognize that Ms. Reid’s report may not be ready in time for the case conference, whether it is scheduled for March 6, 2024 or later, but the case conference shall proceed on the designated date regardless.

Costs

[28] The father said that if his motion was successful, he would seek $16,000 in costs. The mother said that she prevailed, she would seek costs of $2,500.

[29] Having considered the fundamental purposes of costs awards in family law cases, Rule 24 of the Family Law Rules and the principles of reasonableness and proportionality, I order the father to pay the mother costs of $2,500, inclusive of disbursements and HST.

Justice Heather Williams Date: January 19, 2024