Court File and Parties
COURT FILE NO.: FC1324/22 DATE: 2024/09/25 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Endy Moniz, Applicant AND: Mckailey Amyot, Respondent
BEFORE: T. PRICE J.
COUNSEL: M. Villeneuve – Counsel for the Applicant G. Samuels – Counsel for the Respondent
HEARD: July 31, 2024
Endorsement
1The primary issue on this motion is whether the parties’ child, R., who is four years of age, should be moved from primary residence with his mother, the Respondent, Ms. Amyot, to primary residence with his father, the Applicant, Mr. Moniz. The answer to that question will also determine where R. attends school pending a trial.
2R. was born in Strathroy, where Mr. Moniz continues to reside with his fiancée and their nine-month-old child in the home of and with his parents. Ms. Amyot has resided in London with R., having relocated from Strathroy in 2021 in circumstances to be described.
3Under the order sought by Mr. Moniz, R. would reside with him and the rest of his family in his parents’ home as a “multigenerational family” where, in Mr. Moniz’s absence, his parents and his fiancée would be available to care for R.
4Ms. Amyot would have parenting time with R. on alternate weekends, and on Wednesday evenings in Strathroy. Additionally, on any day when either parent would not have R. in his or her care for a full day, they would have a video call with R. lasting no more than 10 minutes.
5Mr. Moniz would be responsible for transporting R. for his weekend parenting time with Ms. Amyot, while she would be responsible for transportation to and from Strathroy for her Wednesday parenting time.
6Lastly, should R. be moved to reside in the care of Mr. Moniz, he requested that Ms. Amyot pay child support.
7Ms. Amyot opposed the relief sought by Mr. Moniz and asked that his motion be dismissed.
Mr. Moniz’s Evidence
8At 26 years of age, Mr. Moniz has been working for the same employer as a labourer for several years. His annual income is approximately $52,000.00. He is provided with benefits through his employment. He pays child support in the amount of $400.00 per month pursuant to an interim order.
9While acknowledging having been treated briefly for anxiety and depression twice in his life, in 2017 and 2022, he claims that he has no current mental health issues. He also claims no current substance abuse issues and no history of involvement with a Children’s Aid Society.
10He further admits to two historical interactions with police. One occurred during an argument with another male over parenting time with R. The other occurred when he was warned about stunt driving.
11The parties, who never married, had a somewhat sporadic relationship which, he claims, included a three-month period of cohabitation in his parents’ home following R.’s birth. The relationship ended before R. was two years of age.
12Following the parties’ separation, Ms. Amyot moved multiple times within Strathroy—first, to her father’s residence; then, to the residence of her grandmother; then, to an apartment and, lastly, to a women’s shelter.
13Ms. Amyot moved to London in 2021 “without [his] knowledge or consent.” He claimed that for some period thereafter, Ms. Amyot would not tell him where she and R. were residing.
14He further asserted that Ms. Amyot, who does not have a driver’s licence, has no family or supports in London. As a result, he claimed, she “demands” that he provide all of the transportation necessary for him to exercise his parenting time with R.
15In September 2022, Ms. Amyot unilaterally enrolled R. in daycare, which he attended every weekday from 9:00 a.m. to 4:30 p.m. Mr. Moniz indicated that, by doing this, Ms. Moniz reduced his equal, shared parenting time with R. to R. being in his care every weekend from Friday to Sunday and for a brief period each Wednesday. Additionally, he claimed daycare for R. was unnecessary because his mother was available to provide free childcare in Strathroy, a city located a thirty-minute drive from London.
16Despite his complaint about Ms. Amyot having enrolled R. in daycare, he also expressed concern about R.’s enrollment ending in June 2024 because Ms. Amyot obtained employment and stopped receiving a daycare subsidy. He claimed that it was not in R.’s best interests to no longer attend daycare. He noted his objection to Ms. Amyot having not told him about the daycare subsidy coming to an end. Had she done so, he claimed, it would have allowed them to “make a plan.” He gave no hint of what plan he thought they might agree on.
17He also noted that Ms. Amyot had not provided him with her work schedule and that she leaves R. in the care of her boyfriend when she is at work, a childcare arrangement that he neither “consent[ed] to” nor “agree[s] with.”
18He objected to Ms. Amyot having registered R. for attendance at Forest City Public School in London in early 2024. He acknowledged that she had told him of her intention to do so in January 2024, but then proceeded to register for an information session without telling him. When he learned of the school registration, he said nothing about his disagreement to Ms. Amyot, claiming that he was worried that she might “retaliate” if he had done so. He objects to R. attending school in London because he wants R. to attend the Catholic elementary school in Strathroy, where he will learn his family’s religious traditions. Moreover, he prefers that R. attend the Catholic elementary school in Strathroy claiming that “Catholic schools often offer superior facilities and education overall compared to regular public schools,” something that he asserts to be true “based on community feedback.”
19Amongst his other concerns about Ms. Amyot’s parenting of R. about which he claimed to have personal knowledge, Mr. Moniz accused her of:
a. failing to follow medical recommendations about, and filling prescriptions 1 for, R.; b. not enrolling R., whose speech is delayed, in speech therapy; c. refusing to permit him to retrieve R. from daycare for transportation directly to his residence for parenting time; d. repeatedly threatening to withhold R. from him if he does not do what she demands of him; e. unilaterally changing the existing parenting schedule with no or very little notice; f. failing to attend R.’s soccer games in Strathroy on weekends; and g. enrolling R. in swimming classes at a time which partially overlaps his parenting time.
20None of these concerns, actions or failures to act on the part of Ms. Amyot, however, appear to have been sufficient to compel Mr. Moniz to request that the existing parenting arrangement be varied. That impetus appears to have come from the report of an investigator appointed by the Office of the Children’s Lawyer (hereinafter, the “OCL”) as the result of an order made by Justice Moore on August 1, 2023. The report was prepared and circulated to the parties in early May 2024.
21To say that the report did not favour Ms. Amyot would be an understatement. She has disputed the investigator’s characterization of several events, her findings of fact, and her recommendations. She also alleges that the investigator appears to have improperly favoured Mr. Moniz, both in how she characterized events when writing the report and in her recommendations.
OCL Report
22The investigator recommended that R. reside primarily with Mr. Moniz and that he be granted sole decision-making responsibility. Ms. Amyot would have parenting time on alternate weekends, extended to Mondays during the summer, and weekly dinner visits of 2.5 hours’ duration on Wednesdays.
23The investigator noted several areas of concern about Ms. Amyot, many said to be supported by records from her physician, the police and the Children’s Aid Society (hereinafter, the “Society”), which caused her to question Ms. Amyot’s mental health and ability to care for R. She concluded that Ms. Amyot appears to respond aggressively to authority figures, involves herself with abusive males, struggles with substance abuse and addiction, and has limited supports in London. In reaching her conclusions, the investigator cited, at length, excerpts from reports dated from December 2020 onward.
Mental Health Issues
24According to the report:
a. in 2020, Ms. Amyot was diagnosed with developmental trauma disorder and post-traumatic stress disorder; b. in January 2021, Ms. Amyot consulted with a psychiatrist for a low mood and a history of trauma; c. in 2022, Ms. Amyot, i. having been diagnosed with borderline personality disorder, was not taking medications that had been prescribed to address its symptoms; ii. in a referral by London Health Sciences Centre (LHSC) for diagnostic clarification about her low mood, anxiety and substance use, reported having difficulty managing her anger, was engaging in self-harming, but not suicidal, behaviour and was drinking alcohol daily; and iii. after failing to attend an appointment at LHSC, admitted during a telephone conversation to using cannabis daily but in amounts that were less than before.
Police Interactions
25According to the report, Ms. Amyot had a number of police interactions between April 2021 and November 2023. These consisted of attendances by police:
a. in April 2021, to a domestic dispute after a male was heard yelling at Ms. Amyot and a child was heard crying; b. in June 2021, when Ms. Amyot reported a break and enter which followed her having been assaulted; c. in December 2021, when Ms. Amyot was forcibly confined by an ex-boyfriend after they consumed alcohol together; d. in February 2022, when she was arrested for assaulting a police officer after she ran at him with a closed fist. She was diverted from the criminal justice system, completed an anger management program, and incurred no criminal liability; e. in August 2022, in response to an unverified report of an argument; f. in October 2022, when she reported an argument with her boyfriend. On this occasion, R. was said to be present but “unfazed; 2 ” g. in December 2022, at the request of Ms. Amyot, who complained that Mr. Moniz was not at the exchange location with R. The police contacted the Society because of concerns about Ms. Amyot’s alcohol use. It turned out that she had arrived late and Mr. Moniz had taken R. back to Strathroy; h. on March 11, 2023, in response to a complaint about loud music originating in Ms. Amyot’s apartment. She was noted to be “intoxicated given her state”, although what that meant is not explained; i. on March 13, 2023, when police forcibly entered Ms. Amyot’s apartment after reportedly hearing her say something about going over a balcony. Upon entry, police learned that R. was not present. Ms. Amyot, agitated at the forcible entry, responded with verbal abuse; j. on June 3, 2023, in response to a domestic disturbance, finding Ms. Amyot to be intoxicated; k. in October 2023, in response to a complaint by Ms. Amyot that a female drove by her apartment and yelled at her while she was on the balcony; l. on October 28, 2023, in response to a complaint by Ms. Amyot that her boyfriend would not allow her to re-enter her apartment after she had exited it without her key following an episode of alcohol consumption and an argument; and m. on November 24, 2023, in response to a complaint of persons heard yelling and screaming in Ms. Amyot’s apartment. Ms. Amyot was found to be intoxicated and told the police to leave, which they did.
26The OCL report noted that, by November 2023, the police had “flagged” Ms. Amyot’s apartment as a “domestic hazard.” The significance of this term as it may have pertained to either Ms. Amyot or R. was not otherwise explained in any of the materials filed by Mr. Moniz or in the investigator’s report.
Children’s Aid Society Involvement
27The investigator’s report contains a list of several interactions between Ms. Amyot and the Society, none of which resulted in R. being removed from her care or the Society commencing a proceeding under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (hereinafter, the “CYFSA”.) The Society took no formal action despite “verifying” twice in 2022 that R. was at risk in Ms. Amyot’s care, according to the investigator.
Reports by Mr. Moniz
28Mr. Moniz deposed, in February 2022, he had been asked by the Society about his concerns regarding Ms. Amyot’s care of R. His response was said to have focused on the state of her residence, ‘potential substance abuse issues with alcohol” and a “lack of consistency in R.’s schedule” which leads to R. often being up late while in Ms. Amyot’s care. He did not indicate how he gained this latter knowledge.
29Mr. Moniz also recounted learning about an incident that allegedly occurred in the summer of 2022. According to the unattributed information he received, the police became involved following reports “from the public” that Ms. Amyot and R. were at the beach when Ms. Amyot, who was said to be drinking heavily, fell into the water while holding R. He and his mother tried to confirm the reports by contacting the Society but were unable to obtain any information.
30He also noted being concerned about Ms. Amyot’s current boyfriend, who appears to have been a participant in some of the interactions which elicited a police response.
Mr. Moniz’s Conclusions
31It was Mr. Moniz’s position that, taken collectively, the many instances of Ms. Amyot having interactions with the police and the Society, combined with what he alleged is her unreliable communication, drug use, and threats of withholding R., caused him and his family to be significantly alarmed and concerned for R.’s well-being if he were to remain in the continuing care of Ms. Amyot pending trial.
Ms. Amyot’s Evidence
32Ms. Amyot is 22 years of age. She currently works 3 days per week at East Park Golf Gardens in London. Before that, she was briefly unemployed to focus on adult studies, which allowed her to secure her secondary school graduation diploma in June 2024. She has also taken an extra credit course focusing on “Culinary and Hospitality” at Fanshawe College and indicated that she is considering post-secondary education options.
33In opposing Mr. Moniz’s motion, Ms. Amyot directly addressed several of his allegations, as well as the report of the investigator from the OCL.
Response to Mr. Moniz’s Evidence
34Firstly, while denying allegations in the OCL report that she uses illicit street drugs, she alleged that Mr. Moniz has his own, now seemingly ended, history of illicit drug use.
35She indicated that she and Mr. Moniz never cohabited with R. in the home of Mr. Moniz’s parents. As she characterized it, she and R. did stay over on occasion. However, because she does not drive, her ability to move about Strathroy or leave with R. was dependent on transportation that would be provided by Mr. Moniz or his parents. As a result, in her view, extended stays by her and R. at the home of Mr. Moniz’s parents were the result of her and R. being “stuck” there rather than evidence of cohabitation with Mr. Moniz.
36She also denied that the parties ever followed a shared parenting regime, claiming instead that R. has always been in her primary care. Notwithstanding, she did acknowledge that Mr. Moniz had frequent parenting time with R. when she resided in Strathroy.
37She also acknowledged that she moved frequently in the first year of R.’s life, but also noted that she has consistently resided in the same apartment in London since September 2021.
38She deposed that Mr. Moniz was aware that the reason she moved from Strathroy to London in 2021 was because she was fleeing domestic violence perpetrated against her by her then-boyfriend. She was relocated to London because there was no room for her and R. at the women’s shelter in Strathroy, a move which staff there facilitated for her. Moreover, she claimed that when she first moved to London, she was placed in a hotel for two weeks during which Mr. Moniz cared for R. He returned R. to her care when she went into the women’s shelter. She told Mr. Moniz where she and R. were residing and continued to facilitate his parenting time despite the difficulties she was facing at that time. 3
39The apartment in which she and R. now reside is located in a building situated next door to the shelter in which they were housed when they first came to London. She plans to continue living there for the foreseeable future. According to her, living in London allows her to access public transportation, which is not available to her in the same way in Strathroy. She cannot afford to obtain a driver’s license or purchase a vehicle.
40While she did acknowledge having asked Mr. Moniz in the past to bring items to her when he travelled to London, she also commented that her requests had diminished since he began to pay her child support. On that issue, she also noted that the $400.00 that Mr. Moniz pays her each month for child support is $91.00 less than the amount prescribed by the Child Support Guidelines for a person earning his annual income. That, she indicated, was done to account for the additional expenses that he incurred transporting R. to and from London before and after his parenting time. 4 She responded to a comment made by Mr. Moniz that she is receiving all of the government subsidies for R. by noting that R. resides primarily with her. Moreover, she deposed, she uses the funds to cover costs she incurs in caring for R.
41Denying that she lacked supports in London, she identified her boyfriend and a close friend and mentor who she has known since this person became her Big Sister in 2016 as supports. While acknowledging that she and her boyfriend “party” from time to time, she denied that their relationship is volatile. Additionally, she reported that both her father and her grandparents regularly travel to London from Strathroy to visit with her and R.
42She indicated that, in September 2022, two months before this litigation began that December, the parties agreed on the current parenting schedule. She explained that, when she was moved to London, it became necessary to change Mr. Moniz’s parenting time because he works on weekdays, meaning that his parenting time would have to occur on weekends, given that they were residing in different cities.
43Mr. Moniz’s parenting time schedule also had to account for the fact that R. was attending daycare, which he began to do after Ms. Amyot secured a daycare subsidy from Ontario Works because she returned to school. As a result, in addition to the limitations imposed on Mr. Moniz’s parenting time by his work schedule once Ms. Amyot and R. were moved to London, it was also partially dictated by conditions attached to R.’s daycare subsidy. These included a limitation on the number of days that R. could miss attending the daycare before the subsidy would be lost to Ms. Amyot. The subsidy also included transportation for R. to and from the daycare. However, if the transportation portion of the subsidy was not being used, Ms. Amyot would have lost access to that portion of it. That, she indicated, was the reason she did not want Mr. Moniz picking R. up from daycare.
44She expressed surprise at Mr. Moniz’s claim that he did not agree with R. having been enrolled to attend junior kindergarten at Forest City Public School in London. She indicated that Mr. Moniz worked with her on the enrolment forms and attended the school with her for the registration on February 7, 2024. She also noted that Mr. Moniz was identified in the school registration documents as R.’s parent and alternate contact person.
45She deposed that, while she is not necessarily opposed to R. being baptized in the Catholic Church and would consider it, her preference is that R. make his own choices about spirituality when he is old enough to do so. That noted, she also pointed out that R. is in the care of Mr. Moniz every Sunday and that nothing precludes him taking R. to church to share his religious traditions, regardless of whether or not he is baptized.
46Ms. Amyot also denied ever withholding R. from Mr. Moniz while claiming that, in 2021, he and his parents withheld R. from her for a period. She expressed concern to Mr. Moniz in the past about his parents involving themselves in parenting issues concerning R. and told him that she believed his parents dislike her. To that point, Mr. Moniz’s mother swore an affidavit for the motion that was highly critical of Ms. Amyot. Its tone was strongly suggestive of a dislike of her.
47She denied excluding Mr. Moniz from parenting decisions. She indicated that, because Mr. Moniz has diminished hearing, he wants all communications between her and him to be by text message. While she understands his rationale, she claimed that before her move to London, they had been able to communicate verbally.
48In responding to Mr. Moniz’s complaint that she does not attend R.’s weekend soccer games, she noted that, without a driver’s license, she has no ability to get to Strathroy. Moreover, because she has been working weekends since April 2024, it is not possible for her to go to Strathroy, even if she had the transportation available to her.
Response to the OCL Report
49Ms. Amyot has filed a Notice of Dispute to the report of the OCL investigator, which she filed for the motion. Suffice to say it is comprehensive.
50A primary area of dispute related to what Ms. Amyot claimed was a bias in favour of Mr. Moniz and his characterization of events on the part of the investigator that coloured her entire report and her recommendations.
51Apart from her dispute with the investigator’s alleged bias, Ms. Amyot acknowledged historic mental health struggles but denied that is the case any longer. She deposed that she is not struggling with her mental health at this point.
52She also acknowledged that her history included a number of interactions with police and the Society. She noted that the incidents involving the police in 2021 were the results of domestic abuse perpetrated against her. Her relationship with that abuser is at an end. She also noted that, once she had been charged with assaulting the police officer, she completed an anger management course following which she did not incur a criminal record.
53She also noted that she had worked voluntarily with the Society for almost one year after December 2022, at which time the Society closed its file. She further commented that R.’s care and well-being have never been identified to her as a concern by any of the professionals with whom she has been involved. She also noted that many of the reports made to the Society were from unidentified sources. She suggested that, for some of them, the information provided to the Society suggests that the caller was either Mr. Moniz or someone calling on his behalf.
54She argued that there was an absence of any evidence in the investigator’s report that R. lacks stability, and asserted that she has, in fact, provided him with consistency. She cited, in particular, her actions in enrolling R. in daycare and ensuring that he attended regularly, and in setting up a consistent schedule for him. These were all matters upon which the investigator commented favourably.
55She further pointed to her success in maintaining R.’s appointments with his doctor, ensuring that his vaccinations remain up-to-date, and enrolling him in the speech therapy program at Tyke Talk. 5 Following an assessment, Tyke Talk staff made certain recommendations to assist with R.’s speech, which will be followed up in a program offered in the public school system.
Submissions
Mr. Villeneuve on behalf of Mr. Moniz
56According to Mr. Villeneuve, because there is no prior parenting order, this is a case of first instance. As in all cases involving parenting decisions, the court must focus on the child’s best interests. To that end, Mr. Villeneuve cited the “best interests” factors set out in ss. 24(3) (a), (c), (h), (i) and (j) of the Children’s Law Reform Act, R.S.O., 1990, c. C.12 (hereinafter, the “CLRA”), as being most pertinent on the facts of this case.
57His submission as to R.’s best interests lying with him being in the care of Mr. Moniz can be encapsulated as follows: The OCL report is unrelentingly indicative of Ms. Amyot living a chaotic, unstable lifestyle. This translates into a lack of stability for R. Consequently, R.’s best interests mandate that he be placed with Mr. Moniz prior to trial, despite the fact that he has been residing with Ms. Amyot since 2021, especially since he is about to embark on his educational journey.
58In fact, Mr. Villeneuve specifically noted that it was R.’s eligibility to attend Junior Kindergarten in September 2024 that lent urgency to the court addressing the issues of where R. is to reside and what school he should attend when this motion came before me. As he wrote, “it is in the child’s best interest to situate him in the Applicant’s stable and comfortable home surrounded by extended familial support in Strathroy which will enable him to cultivate a solid foundation for his academic life.” He cited the stability presented by the Applicant and his family and the proximity of the school to the Moniz family home in Strathroy.
59As a result, Mr. Villeneuve focused his submissions, in large part, on factors that the court should consider when determining where a child should attend school.
60Those factors noted, he also pointed to cases which concluded that, before ordering a child to change schools, the court must be convinced by evidence that the change of schools is in the child’s best interests. He conceded that a change of school should only be ordered if there is a compelling reason to do so.
61He also submitted that the court needs to consider the availability and stability of childcare providers. He claimed that the benefits of the plan advanced by Mr. Moniz in this regard far exceed any that might derive from that proposed by Ms. Amyot, who will receive childcare assistance from her boyfriend when R. is not in school and she is at work.
62He contrasted the claimed benefits of R. being placed into the care of Mr. Moniz, with such difficulties faced by Ms. Amyot, and therefore affecting R., as her not having a driver’s license or vehicle, lacking immediate family supports in London, and having historical struggles with maintaining employment. He noted that she is employed only in a part-time seasonal job. As a result, his position is that R. will experience stability in the care of Mr. Moniz far beyond any that he will experience should he remain in the care of Ms. Amyot.
63In addressing the issue of family violence, he noted, particularly, the need for the court to consider “whether the child is directly or indirectly exposed to the family violence,” “the physical, emotional and psychological harm or risk of harm to the child,” and “any compromise to the safety of the child.”
64To support his position, he also cited a number of cases which focused on the use that can be made of a report by the Office of Children’s Lawyer at an interim stage in a proceeding such as this.
65He urged the court to consider and rely on the following facts which informed the recommendations of the investigator: that Ms. Amyot has a significant history of substance abuse, a history of involvement with both the police and the Society, and that her relationship with her current boyfriend is one which has involved domestic disturbances to which R. has been exposed.
66He summarized the case for Mr. Moniz on the motion by saying that Ms. Amyot makes bad decisions and puts R. at risk. The OCL report provides independent evidence to support that contention. These factors, according to Mr. Villeneuve, combine to require that R. be removed from the care of Ms. Amyot at this time and be placed into the care of Mr. Moniz.
Ms. Samuels on behalf of Ms. Amyot
67Ms. Samuels focused on the change to the status quo with respect to R.’s parenting time that Mr. Moniz’s motion presents. She also touched on cases addressing mobility and the use of an OCL report at an interim stage of proceedings.
68She noted that Ms. Amyot has been R.’s primary parent since his birth and that Ms. Amyot lived with him independently before moving to London in circumstances that were not of her making.
69She highlighted the discrepancies in the parties’ evidence about their relationship and pointed to the parenting time that Ms. Amyot afforded Mr. Moniz when they both lived in Strathroy, before she was relocated to London. She refuted the claim that Ms. Amyot did not involve Mr. Moniz in R.’s life.
70She noted case law suggesting that there is a “heavy onus” on a parent seeking to change a parenting status quo and claimed that there was no compelling evidence of exceptional circumstances to mandate such a change at this time.
71She responded to Mr. Moniz’s many assertions that she had done things without his consent by highlighting the absence of any complaint by him to her compelled relocation to London in 2021, his return of R. to her care when she entered the London shelter for abused women, and the establishment of a parenting time arrangement in 2022 that has continued until this motion asked for it to be changed. She also pointed to the fact that Mr. Moniz works weekdays so that parenting time on the weekend fits his schedule.
72She also emphasized the allegation of Ms. Amyot that Mr. Moniz actively participated in the registration of R. to attend Forest City Public School, a fact specifically noted by the investigator in the OCL report. As Ms. Samuels phrased it, Mr. Moniz has passively acquiesced repeatedly to parenting decisions made by Ms. Amyot.
73She addressed the OCL report by asking, but for it, “what evidence before the court compels the outcome sought by the Applicant?”
74She pointed to the absence of evidence that R. has not been meeting his milestones, plus evidence that he presented as a happy child to the staff at daycare, and that he is vaccinated. She noted the frequency at which the Society took no steps to intervene in Ms. Amyot’s care of R. despite the many (often anonymous) reports it received. She also noted the absence of any medical evidence of concerns about R.
75She submitted that the investigator confused the domestic violence that had been perpetrated against Ms. Amyot by her previous boyfriend with the strictly verbal disputes that occur from time to time between her and her current one. She further noted that R. was not present for the majority of police involvements with Ms. Amyot. Even for those when he was, she noted the absence of police reports suggesting risk to R.
76She asked that I consider the extensive Notice of Dispute to the OCL report filed by Ms. Amyot, and noted some instances which, she claimed, supported Ms. Amyot’s concern that the investigator showed a bias in favour of Mr. Moniz. Amongst the concerns she cited were:
a. the investigator not assessing the role of his parents in providing translation services for him or verifying the accuracy of their translation; b. the investigator failing to examine Mr. Moniz’s history of mental health issues or substance abuse with anywhere near the depth that she did with respect to Ms. Amyot; c. the investigator failing to investigate information about Mr. Moniz provided to her by Ms. Amyot, including about the actions of Mr. Moniz that led to the end of their relationship; d. the investigator failing to ask Mr. Moniz why he paid no child support until ordered to do so in December 2022; e. the investigator taking markedly different approaches to the observation visits between each of the parties and R.; and f. while being highly critical of Ms. Amyot’s lifestyle choices, the investigator failed to consider the relevance of Mr. Moniz’s behaviour in fathering two children out of wedlock when endorsing his claim that a Catholic education would benefit R. more than a secular education.
Discussion
77Mr. Villeneuve, with whom Ms. Samuels agreed on this point, was correct when he submitted that, in making my decision, I am to have regard only to the best interests of R.
78Before I consider those factors cited by Mr. Villeneuve in his Statement of Law, however, I cannot ignore the fact that he did not specifically highlight amongst those factors that he believed bore on the decision to be made by me that set out in s. 24(3) (d) - “the history of care of the child.”
79As Mr. Villeneuve pointed out, there is no extant parenting order in this case. However, s. 20(4) of the CLRA makes clear that if, following the separation of a child’s parents, the child “lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.”
80The parties separated in 2021. Ms. Amyot was relocated to London at that time. She was placed in a hotel for two weeks and asked Mr. Moniz to care for R. until she got into the shelter. He did so, returning R. to her when she went into the shelter. He did not commence this proceeding until December 12, 2022. He presented no evidence that he regularly objected to Ms. Amyot about her having removed R. to London.
81For the purposes of this motion, and based on Mr. Moniz’s return of R. to Ms. Amyot after she was relocated to London, I find that Mr. Moniz either impliedly consented, or acquiesced, to Ms. Amyot having primary care and decision-making responsibility for R. That, of course, changed when he commenced this proceeding.
82By that time, however, R. had been in the primary care of Ms. Amyot for almost two years. I simply cannot ignore that history when considering what is in R.’s best interests and find that it had created a de facto status quo when this motion was argued.
Status Change Pending Trial
83While Justice S. O’Connell was writing in Daniel v. Henlon, [2018] O.J. No. 987, about s. 29 of the CLRA and the test required to vary an existing interim order, the following words can equally apply to a situation where a longstanding de facto status quo parenting arrangement is being challenged:
26 It is well established in the case law that in custody and access cases, it is generally not in the best interests of children to disturb the status quo on a temporary motion pending a trial without compelling reasons. The moving party must demonstrate that there is material and compelling evidence that the child's best interests demand an immediate change to the status quo or the existing parenting arrangement pending a trial, particularly if the status quo has been in place for a significant period of time….
27 Compelling reasons to change the status quo on a temporary basis pending a trial could include serious mental health issues in connection with one of the parents, drug or alcohol addictions on the part of one of the parents, the child being at risk of physical or emotional harm in parent's care, or demonstrable evidence that the child is doing very poorly under the temporary parenting order.
84Justice Mitrow also drew no distinction in Miranda v. Miranda, 2013 ONSC 4704, between a status quo under the terms of an existing interim order and one in place by the passage of time when he wrote, at paragraph 26, that, “[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…”
OCL Report
85In advancing his case, Mr. Moniz relied heavily on the report of the investigator appointed by the OCL.
86In Daniel v. Henlon, Justice O’Connell asked whether “the completion of an assessment or an OCL report” could constitute “a material change in circumstance that could trigger a change in a temporary custody and access order pending trial?” While not answering the question directly, Justice O’Connell urged caution about the use of OCL reports on interim motions to change longstanding parenting arrangements.
87The use that can be made of an OCL investigator’s report has been addressed in many cases, some of them cited by Mr. Villeneuve.
88In Bos v. Bos, 2012 ONSC 3425, Justice Mitrow wrote that “the jurisprudence…is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.”
89Justice Mitrow listed four factors for the court to consider when “faced with a motion for interim relief in relation to custody and access issues…an assessment has been prepared and…the court is being asked to consider the assessment without making a finding that "exceptional circumstances" exist.” Those factors consisted of considerations of:
a. How significant is the change being proposed as compared to the interim de jure or de facto status quo? b. What other evidence is before the court to support the change requested? c. Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge? d. Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?
90In Taylor v. Clarke, [2017] O.J. No. 1235, Justice Mitrow drew a distinction between an OCL report and an expert report or assessment, noting that an “OCL report largely is a fact-gathering exercise.” Relying on that distinction, Justice Mitrow focused “not on the recommendations, but on factual aspects of the OCL report…”
91In Batsinda v. Batsinda, 2013 ONSC 7869, at para. 32, Justice D. Chappel similarly interpreted Bos v. Bos, writing:
32 ... The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as…the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative.
92In Southorn v. Ree, 2019 ONSC 1298, at para. 20, Justice McDermot noted that Justice Mitrow’s approach in Bos v Bos is consistent with the “rule that a court should treat an assessment report with caution at a motion for a temporary order,” writing:
“…nothing in all of this changes the essential rule regarding a change in custody from an established status quo on an interim motion: the evidence, either garnered from the facts or garnered from the assessment or investigative report, must be compelling and immediate for there to be a change a long-term status quo. If the assessment report does not contain evidence of the compelling facts necessary to change the status quo, that should put an end to the motion in the same manner as a party’s failure to provide that evidence.”
93In Daniel v. Henlon, Justice O’Connell amplified the need for caution when considering just the evidence gathered by an OCL investigator, writing that:
37 …caution must still be exercised, particularly if the observations or facts relied upon by the clinical investigator to formulate her recommendations are highly contentious, questionable, or deficient, the status quo and existing temporary order have been in place for a considerable period of time, and there are no compelling, urgent or exceptional circumstances justifying a variation to the temporary order pending trial or a final disposition.
94In this case, the report of the investigator is largely based on information taken from third party reports generated by the police, the Society and Ms. Amyot’s medical providers. The investigator had no personal knowledge of the information in those reports. There is no doubt that Ms. Samuels has raised a number of compelling questions about the reliability of some of the information on which the investigator relied in formulating her recommendations.
95In my view, the information contained in those reports does not fall within the exceptions allowed for by Justice Mitrow in Bos v. Bos and Justice Chappel in Batsinda v. Batsinda because they are neither within the personal knowledge of the investigator, nor was the information in them observed by the investigator personally at the time of the events described therein. They are hearsay. To the extent that Mr. Moniz repeats them in his affidavit, he just adds another layer of hearsay to them. The authors of the reports may need to be called at trial to face Ms. Samuels’ cross-examination, which may result in a very different story than the one set out in the reports on which the investigator based her conclusions.
96Moreover, the reports cited by the investigator are, in many cases, dated. While it could be argued that a longitudinal series of police and Society reports suggest a pattern of behaviour by Ms. Amyot that could pose a risk to R., that is an argument better made at trial, especially where there is no evidence of a more recent imminent risk to him. To use the words of Justice Mitrow in Miranda v. Miranda about the quality of the evidence that is required to justify an immediate change in the parenting status quo for a child, the information gathered by the investigator does not “establish “clearly and unequivocally” that the present arrangement is not in [R.’s] best interests.”
97For example, the absence of reports of concern for R.’s safety or about his care from those who have regular contact with him every day, such as his daycare providers, might be seen as evidence that he is not at risk in the care of Ms. Amyot. Surely, the absence of such reports cannot be evidence of the contrary.
98Based on the materials filed for the motion, including the Dispute filed by Ms. Samuels on behalf of Ms. Amyot, I also draw the following conclusions having regard to the four factors that Justice Mitrow listed in Bos v. Bos as being relevant to determining what use is to be made of the investigated matters addressed by the investigator in her report:
a. The changes being proposed by Mr. Moniz are significantly different from the interim de facto status quo; b. There is little other uncontested evidence properly before the court to support the changes requested; c. The court is being asked to consider the investigator’s analysis, which is based on third party reports, arguably contains suggestions of bias in favour of Mr. Moniz and may inexplicably lack certain information that would place Ms. Amyot in a better light as a caregiver; and d. Most of the recommendations are contentious and have been disputed by Ms. Amyot in accordance with the processes set out in the Courts of Justice Act.
99As a result, I placed little weight on the investigator’s report for the purposes of this motion.
100Consequently, I move to Mr. Villeneuve’s submissions about R.’s best interests. In doing so, where he relied on contents of the OCL report, I do touch on those aspects on which he relied.
Stability
101I firstly note that Ms. Amyot has resided in London since 2021 and has been in the same apartment for three years. That constitutes residential stability.
102Mr. Villeneuve pointed to the repeated attendances by the police at Ms. Amyot’s residence and the many file openings or inquiries made by the Society about Ms. Amyot’s care of R. as evidence that R. lacks stability in the care of Ms. Amyot.
103As for stability in Ms. Amyot’s relationships, there is no doubt that the evidence suggests some volatility to her relationship with her current boyfriend. The strife that exists from time to time in that relationship certainly has contributed to police attendances at her apartment, attendances which would destabilize a child in many instances. However, as the investigator pointed out, R. was present less than 50% of the time when police attended. On one of the occasions when he was present—in response to complaint by Ms. Amyot about an argument with her boyfriend—R. was said to be unfazed or not distressed by the circumstances that brought the police out in the first instance. What this might mean is a matter not for conjecture but expert evidence.
104As for her “partying” lifestyle, Ms. Amyot provided quite plausible responses to Mr. Moniz’s photographic evidence offered to support his claims, including R. not being in her care at the time of one of the photographs, and there being no photo showing that she was using marijuana anywhere around R.
105Consequently, the instability pointed to by Mr. Moniz as resulting from the chaotic, partying lifestyle said to be led by Ms. Amyot falls far from establishing that R. is suffering from instability in Ms. Amyot’s care.
106Additionally, Ms. Amyot noted that the daycare notes summarized by the OCL investigator indicated that R. was a happy, well-adjusted child who has speech delays. This is not suggestive of instability.
107That noted, the multiple reports of Ms. Amyot being intoxicated when police are summoned to her apartment are of concern and do suggest that she may have an alcohol consumption problem. She needs to address that possibility and, pending doing so, limit her alcohol consumption to periods when R. is not in her care.
108As for Mr. Moniz, he fails to explain how long he, his fiancée and their child intend to reside in the home of his parents. He does not provide any indication that his fiancée envisions a similar future of cohabitation with his parents as he does. He does not address how they will deal with conflict that will inevitably emerge over time with four adults and two children living under one roof. He does not indicate whose parenting rules will govern (an issue of concern to Ms. Amyot). He does not address conflict resolution should he, or his fiancée, and his parents disagree. These are all factors that conceivably lend themselves to future instability for Mr. Moniz and R., should he be placed in Mr. Moniz’s care.
Supporting R.’s Relationship with the Other Parent
109It is apparent to me from the evidence that Ms. Amyot is as willing to support the relationship between Mr. Moniz and R. as he claims that he would be if R. were to be placed in his care.
110I also question whether it can be said that Mr. Moniz would strongly support Ms. Amyot’s relationship with R. if he were to assume care of R. when, under his plan, Ms. Amyot, who does not drive, would be responsible for the Wednesday transportation of R. between London and Strathroy. His response to her concern was to suggest that one of her supports could do the driving. Additionally, she would only have R. in her care on alternate weekends, which is half the time that R. is currently in the care of Mr. Moniz on weekends. His plan suggests a diminishment of Ms. Amyot’s place in R.’s life.
111To that point, while Mr. Moniz repeatedly asserted that Ms. Amyot threatened to withhold R. from him if he would not do what she said, his affidavit was devoid of particulars beyond his assertions.
112Interestingly, prior to the release of the investigator’s report, and before this motion was argued, the parties had already agreed to Mr. Moniz having periods of weekly, uninterrupted parenting time with R. during the summer of 2024. This certainly goes to the issue of whether the parties are able to cooperate on issues of parenting time or matters affecting R. and supports the conclusion that Ms. Amyot does support R.’s relationship with Mr. Moniz.
Each Parent’s Ability to Care for and Meet R.’s Needs
113As to this factor, Mr. Moniz advanced little evidence to demonstrate his own ability to meet R.’s needs. His entire plan is built around the support he would receive from his fiancée and his parents in caring for R.
114I do not write this to malign him, since he has been caring for R. every weekend since 2022 pursuant to the parenting schedule in place, but it highlights the fact that he is surrounded by more people who are likely involved in caring for R. than is Ms. Moniz. That, however, does not mean that he, with extra support, is incapable of caring for R. himself, just as the fact that Ms. Amyot cannot surround herself with many supports does not mean that she is incapable of caring for R.
115On that point, Ms. Samuels raised the reasonable question of why R. cannot be cared for by Ms. Amyot’s boyfriend in her absence, without Mr. Moniz’s “consent,” when part of Mr. Moniz’s plan is to leave R. in the care of his fiancée while he works. I was provided with little helpful evidence about either party’s significant other.
116Additionally, while Mr. Moniz and the investigator both pointed to the multiple involvements of the Society in the life of Ms. Amyot and R., they were unable to establish that the Society ever commenced a protection proceeding against Ms. Amyot because of concerns that she was not meeting R.’s needs.
117Moreover, while Ms. Amyot acknowledged having a history of mental health issues, I note that, despite those alleged mental health issues, the Society recently closed its file. I can only conclude that it did not see any cause for concern or risk to R. arising from the state of Ms. Amyot’s mental health at this time.
118I also agree with Ms. Samuels that the absence of any medical evidence suggesting that R. is not meeting his milestones, has not been vaccinated, or has missed medical appointments, is strongly suggestive of Ms. Amyot being quite capable of meeting R’s needs and having the ability to care for him.
Each Party’s Ability to Communicate and Cooperate on Matters Affecting R.
119As was the case with respect to the last factor, Mr. Moniz advanced little evidence to demonstrate his ability to communicate and cooperate with Ms. Amyot on matters affecting R. Instead of providing evidence demonstrating and supporting his ability to do so, Mr. Moniz complained about having to travel to London to retrieve and return R. before and after his parenting time, while not drawing to the court’s attention that he received a reduction in his child support payments to account for the cost of travel.
120He provided no evidence supporting a conclusion that he communicates in a positive manner with Ms. Amyot. He complained that she asked him to bring things to London when he comes here, suggesting this is evidence that she bullies him. To that point, however, I find that the text screenshots that he appended to his affidavit showed Ms. Amyot communicating with him politely, for the most part. When he rejected her requests, she accepted his responses without dispute.
121In contrast, in Ms. Amyot’s communications with Mr. Moniz via the texts referred to above, she is neither rude nor aggressive which would be indicative of an inability to communicate or cooperate with respect to matters affecting R.
122As to this factor, I also cannot let pass without comment the fact that a major driving force for this motion is the desire of Mr. Moniz and, seemingly, his mother, at least, to have R. attend the Catholic school in Strathroy. However, the evidence suggests that Mr. Moniz, despite his sworn denials, did cooperate with Ms. Amyot in having R. registered to attend Forest City Public School. Moreover, despite those sworn denials, he failed to indicate that the investigator was incorrect when she reported that he had been involved in R.’s school registration process.
123If, in fact, Mr. Moniz did cooperate with Ms. Amyot, this would be evidence that the parties can cooperate on such important issues. If he did not, despite what the investigator wrote and Ms. Amyot asserted he did, this would suggest that he was unable to cooperate or communicate with Ms. Amyot on a matter of such significance to R.
124I also note that Ms. Amyot, who appears not to be Catholic, expressed no disagreement with R. attending church every Sunday with Mr. Moniz and his parents if that is what Mr. Moniz wishes. To that point, however, Mr. Moniz’s mother indicated that R. does not attend church every Sunday because he is too young to sit still for a full service.
125Ms. Amyot’s concern about her ability to parent with Mr. Moniz seems to reflect her concerns about the opinions of, at least, his mother. Ms. Amyot claimed as much in her affidavit when she indicated that she had concerns about Mr. Moniz’s parents interfering in parenting issues and had expressed those concerns to him.
126In my view, the affidavit sworn by Mr. Moniz’s mother lends credence to the concerns of Ms. Amyot. I am also concerned about the fact that, in the investigator’s report, there was reference to the unsubstantiated report about the police becoming involved in an incident in which Ms. Amyot was said to have dropped R. into the water while caring for him in an intoxicated state at the beach. The police denied ever being involved in such an incident. Most troubling, however, is the role his mother played in helping him try to chase down and verify this incident.
Family Violence
127On this issue, it is my view that there is merit to Ms. Samuels’ submission that the investigator confused Ms. Amyot’s physically abusive relationship with a previous boyfriend with her verbal disputes with her current one.
128Under s. 18 of the CLRA, “family violence” is preliminarily defined as including “any conduct by [a dating partner] of a parent, who participates in the activities of [that parent’s household], toward [that parent] or [a child], that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the parent to fear for their safety or that of another person,[which would include a child] and, in the case of a child, includes direct or indirect exposure to such conduct.
129There is no evidence that Ms. Amyot’s current boyfriend has been violent to her, or threatened her with violence, or that he has coercively controlled her in a systematic way, nor is there evidence that she fears for her safety from him.
130I also consider the expanded definition of family violence in s. 18(2) of the CYFSA and note the absence of evidence supporting a conclusion that any of the conduct identified therein has been perpetrated by either Ms. Amyot’s current boyfriend against her, or by Ms. Amyot against her boyfriend, in or out of the presence of R., or against R. by either Ms. Amyot or her boyfriend.
131There is also no evidence or suggestion that Ms. Amyot’s boyfriend has ever been arrested during the multiple police attendances at her residence.
132The police reports suggest many verbal disputes between Ms. Amyot and her boyfriend. There was no evidence of what was being said by who to whom in the investigator’s report. While I acknowledge that words used could, in some circumstances, be evidence of “family violence”, surely not every argument is an incident of it. Whether these arguments involved more or met the definition of “family violence” is a matter to be explored at trial.
133The investigator also indicated that Ms. Amyot has a history of becoming involved with abusive males, and that she needs to learn how to develop healthy relationships. However, in drawing that conclusion, the investigator seems to have ignored both Ms. Amyot’s role as a victim of domestic violence and childhood abuse, as well as the status of Mr. Moniz as a male with whom Ms. Amyot was involved. Was she suggesting that Mr. Moniz is also abusive? Or, more likely, was she ignoring the possibility that, if Mr. Moniz is not prone to perpetrating domestic violence, Ms. Amyot might not be doomed to a future of violent partners whose violence would place R. at risk?
134As a result, I conclude that family violence and its role and impact, if any, in R.’s life are matters best left to be explored at trial.
R.’s School Attendance
135While R.’s school attendance was raised as a key issue underlying this motion, it is really an adjunct to Mr. Moniz’s request that R. be placed with him since it would be totally impractical and nonsensical to think that R. could attend school in Strathroy while maintaining his primary residence in London with Ms. Amyot.
136As for R. attending the Catholic school in Strathroy, the best that Mr. Moniz could advance as a reason to prefer the Catholic school was that, not only would R.’s spirituality be bolstered by exposure to a Catholic education, Catholic schools are better than public schools. This latter statement is not supported by any evidence and I attribute no weight to it.
Conclusion
137For the reasons I have noted, Mr. Moniz’s motion is dismissed.
138The parties are strongly urged to settle the issue of costs, particularly if neither served an offer to settle the motions. If they cannot, they may direct written submissions on costs to me, through the Family Court Judicial Assistants at London, by October 10, 2024. Submissions shall not exceed 3 pages, double-spaced, in 12-point Times New Roman font, and be accompanied by a Bill of Costs. If no written submissions are received from any party by 4:30 p.m. on October 10, 2024, there shall be no order as to costs, meaning that each party shall bear their own costs of the motions.
“Justice T. Price” Justice T. Price Date: September 25, 2024
Footnotes
Footnotes
- In support of this allegation, Mr. Moniz cited a single incident from May 2023 when he took R. to the hospital for an infected toe. He was provided with a prescription which, he deposed, Ms. Amyot “seemed to think unnecessary at the outset.” His allegation that Ms. Amyot refused to fill and/or administer prescribed medication on more than one occasion lacks similar detail.
- A term repeatedly misspelled as “unphased” in the materials filed by Mr. Moniz, such as the OCL report, or referred to therein, such as the original police report. Assuming that the original police author meant “unfazed”, the report, therefore, was that R. was not bothered or distressed by the argument for which police were dispatched.
- Mr. Moniz did not deny these allegations in his reply affidavit, which did address a number of specific allegations made by Ms. Amyot in her affidavit.
- This is all set out in Interim Minutes of Settlement signed by the parties in December 2022, which was filed to obtain an interim child support order made by Justice Sah on February 9, 2024.
- In his reply, Mr. Moniz deposed that he knew nothing of this because Ms. Amyot failed to inform him.