Brethour v. Anderson, 2026 ONSC 2244

CITATION: Brethour v. Anderson, 2026 ONSC 2244

COURT FILE NO.: FC-20-00000050-0001

DATE: April 15, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Brethour

Applicant

– and –

Morgan Anderson

Respondent

Ashley Geller, counsel for Mr. Brethour

Aaron Huizinga, counsel for Ms. Anderson

HEARD: March 3 and 23, 2026

RULING ON MOTION

THE HONOURABLE JUSTICE SUNIL S. MATHAI

A. INTRODUCTION

1Ms. Anderson brings this motion seeking, amongst other things, a temporary or final order ending her supervised parenting time with her two children. Mr. Brethour, the father of the children, opposes the motion.

BACKGROUND

(i) Procedural History

2Ms. Anderson and Mr. Brethour have two children, H.B., born March 11, 2015, and E.B., born November 20, 2017.

3The children resided in Peterborough from birth until 2020, when Ms. Anderson moved to Kingston and the children’s residence changed. At that time, Mr. Brethour resided in Peterborough. In 2021, Mr. Brethour consented to the children living with Ms. Anderson in Kingston.

4On March 11, 2021, Gunsolus J. made a final order with respect to access, custody and parenting time. The order was made on consent.

5On January 21, 2022, Swartz J. ordered that Ms. Anderson be subject to random oral fluid and urine testing on a regular 90-day basis and a minimum 90-day hair follicle test with DriverCheck Inc. This order was made on consent of the parties. Ms. Anderson tested positive for marijuana, cocaine, and amphetamine use.

6Gunsolus J.’s order was varied by Waters J. on July 22, 2022. Waters J. varied the final order because Mr. Brethour had established a material change in circumstances (see Brethour v. Anderson, 2022 ONSC 4341, at para. 54). Specifically, Mr. Brethour established that:

(i) Ms. Anderson had been using narcotics, including methamphetamine, cocaine, opiates and “mushrooms” (see Brethour, at para. 12);

(ii) the Frontenac and Peterborough Children’s Aid Societies had concerns with Ms. Anderson’s care of the children (see Brethour, at para. 18);

(iii) the children were having difficulties at school which were not being addressed by Ms. Anderson (see Brethour, at paras. 20–21); and

(iv) Ms. Anderson breached Gunsolus J.’s order (see Brethour, at paras. 22–24).

7As a result, on a “temporary and without prejudice basis”, Waters J. ordered the following (see Brethour, at paras. 54, 59):

(i) the children reside primarily with Mr. Brethour in Peterborough;

(ii) the parties have joint decision-making authority for the children. In the event of the parties not being able to reach an agreement, Mr. Brethour would have final decision-making authority;

(iii) Ms. Anderson would have supervised parenting time at a professional supervision facility on Saturday and Sunday every other weekend from 11:00 a.m. to 7:00 p.m., or such other times as can be agreed upon by the parties in writing;

(iv) both parents are required to be in an unaltered state while in a care-giving role to the children; and

(v) a request be made to the Office of the Children’s Lawyer (the “OCL”) to conduct an investigation in accordance with s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. If the OCL declined to investigate, then the parties were required to schedule a “to be spoken to” event with Waters J.

8I am advised that the OCL declined to investigate, and the matter did not come back before Waters J. As a result, Ms. Anderson has been subject to Waters J.’s order for more than 3 years. The supervised parenting time has been conducted at the office of Kinark Child and Family Services (“Kinark”) in Peterborough. Ms. Anderson now lives in Peterborough. Ms. Anderson’s motion was traversed to this court because the parties and their children now all reside in Peterborough.

9Ms. Anderson’s motion was before me on March 3, 2026. I reserved my decision on that date. On March 11, 2026, Mr. Huizinga emailed the court asking that several documents be provided to the court, along with a brief explanation of the documents. The email stated that Ms. Geller consented to the Court receiving the documents. As a result, I directed the parties to appear before me on March 23, 2026, to address the import of the “fresh evidence”.

(ii) Positions of the Parties

10Ms. Anderson argues that Kinark’s reports demonstrate that supervised visits are no longer necessary. Further, she argues that the evidence establishes that she has overcome her addiction issues or has managed her drug use such that it would not impact her ability to care for the children. On this point, Ms. Anderson relies on the following evidence:

(a) Ms. Anderson consulted with an addiction physician in October 2022 and subsequently attended a Narcotics Anonymous (“NA”) meeting on October 31, 2022;

(b) Ms. Anderson’s urine was screened for various drugs on two occasions (July 4, 2024 and August 23, 2024). On both occasions, she passed; and

(c) Ms. Anderson passed a urine screening that occurred on July 8, 2025. At that time, her urine was found to contain opiates and benzodiazepine. Ms. Anderson states that she was prescribed these drugs. Ms. Anderson had a tracheostomy in June 2023 and has been prescribed opiates as pain medication.

11Mr. Brethour argues that Ms. Anderson has not provided sufficient evidence to demonstrate that she has overcome her drug addiction and that the Kinark reports demonstrate that Ms. Anderson has engaged in problematic behaviour with the children. Mr. Brethour submits that Ms. Anderson’s request is premature and that the current arrangement should remain in place until such time as Ms. Anderson provides better evidence to demonstrate her sobriety.

B. GOVERNING PRINCIPLES

12The parties did not address the test applicable on this motion. In the normal course, the test to be applied to change a parenting order is set out in s. 29 of the Children’s Law Reform Act (“CLRA”), R.S.O. 1990, c. C.12:

Variation of orders

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

(i) The Material Change in Circumstances Test

13The jurisprudence concerning s. 29 of the CLRA has evolved in a manner that has resulted in courts taking two different approaches and using two different tests when asked to vary a temporary parenting order. The two tests are: (1) the material change in circumstances test; and (2) the compelling reasons test.

14Some courts have strictly adhered to the material change in circumstances test. In those instances, the onus is on the person seeking the variation of the temporary order to establish a material change in circumstances on a balance of probabilities. The change cannot be “trivial” or insignificant, it must be material (see Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 9–13, 17; Kirichenko v. Kirichenko, 2021 ONSC 2833, at paras. 12–13; Radojevic v. Radojevic, 2020 ONSC 5868, at para. 17; and Reeve v. Larson, 2025 ONSC 6497, at paras. 12–14).

15In Reeve, at para. 13, Kalajdzic J. explained that the material change in circumstances test is used because, “[c]hildren need stability in their parenting arrangements, even on an interim basis. Requiring a material change in circumstances before varying these arrangements respects that need”. Generally speaking, courts have found that there are two exceptions to the material change in circumstances test.

16First, some courts have determined that the test will not apply when the parties agreed that the temporary order at issue would be granted on a “without prejudice” basis (see Kirichenko, at paras. 27–29; Ceho v. Ceho, 2015 ONSC 5285, at para. 68). Logically, this makes sense — a temporary, without prejudice order granted on the agreement of the parties “would be difficult to achieve if one or the other party thought they were creating a new status quo requiring a material change in circumstances before it could be varied” (Kirichenko, at para. 27; Regina Musheyev v. Ronen Gilkarov, 2016 ONSC 4120, at paras. 17–19; Ceho, at para. 68; and M.D. v. N.J., 2016 ONSC 6058, at para. 22).

17The second exception is for time limited orders. This exception applies, “when the temporary order is expressly or by necessary implication time limited, and it is the intention of the court that the order be reviewed and subject to change after a specific event, date or period of time” (see Kirichenko, at para. 30).

(ii) The Compelling Reasons Test

18Rather than adhere to the material change in circumstances test, some courts have held that a party must only prove that there are “compelling reasons” which necessitate a change to meet the child(ren)’s best interests (see Calabrese v. Calabrese, 2016 ONSC 3077, at para. 27; M.D., at para. 21; Kirichenko, at para. 16; and Reeve, at para. 10). While the compelling reasons test “may not be as high as danger to the child, per se, it is far more than a simple reconsideration of best interests in the next motion” (Radojevic, at para. 17).

19Although the material change in circumstances and compelling reasons tests appear to be two competing frameworks, some courts have found that, “there may not really be a significant difference between the two approaches” (see Kirichenko, at para. 20; Radojevic, at paras. 16–17).

20Both tests are acknowledgements of the fact that it is not in the best interests of the child for a court to tinker with a custody/access/parenting order on an interlocutory basis, given that all the issues between the parties will not be fully vetted until trial (see Calabrese, at para. 28).

21Subject to the two exceptions described above, I would follow the material change of circumstances approach because it is consistent with the express language of s. 29 of the CLRA (see Kirichenko, at para. 20).

C. ANALYSIS AND FINDINGS

22The first exception to the material change test does not apply in this case. The parties did not consent to the order of Waters J. being made on a without prejudice basis. Rather, Waters J. made the order after a contested motion, though the record was untested.

23The second exception applies to this motion. It is clear that Waters J. viewed her order as time limited in nature and that it would not remain in place until trial. This is clear on the face of Waters J.’s reasons for decision.

24First, the order was explicitly made on a “temporary and without prejudice basis” (see Brethour, at para. 54). Second, Waters J. contemplated the OCL beginning an investigation and, if no investigation was conducted, that the parties would return to her for a “to be spoken to” date. Third, Waters J. imposed supervised parenting time. Supervised parenting time is intended to be temporary and time limited (see M.(B.P.) v. M.(B.L.D.E.) (1992), 97 D.L.R. (4th) 437 (Ont. C.A.), at pp. 460–61).

25In light of the above, I will consider the parenting issue on a de novo basis. While I will consider the motion on a de novo basis, I do not need to make my decision in a vacuum. In evaluating the merits of Ms. Anderson’s position, I am guided by the findings of Waters J. and the concerns that led her to vary Gunsolus J.’s order.

26On the record before me, I am not convinced that Ms. Anderson has established that the concerns animating Waters J.’s decision have been ameliorated. I arrive at this conclusion for several reasons.

27First, the Kinark reports demonstrate that Ms. Anderson has engaged in inappropriate conduct in the presence of the children. I am troubled by the fact that Ms. Anderson’s affidavit states that the Kinark reports demonstrate that there are no concerns with her conduct. This is not a fair characterization of the reports. To be clear, there are portions of the reports that describe positive conduct; however, the reports also describe problematic behaviour, including:

(i) making disparaging comments about Mr. Brethour. Mr. Huzinga argues that Ms. Anderson will not disparage Mr. Brethour if this court makes such an order. I reject this argument for two reasons. First, Ms. Anderson is disparaging Mr. Brethour while being supervised. I do not accept that she will comply with a court order that prohibits her from disparaging Mr. Brethour when she is unsupervised. Second, Waters J.’s findings establish that Ms. Anderson does not always comply with court orders;

(ii) speaking to the children about court issues;

(iii) disparaging the appearance of one of her children;

(iv) being dismissive of Kinark’s concerns about her conduct;

(v) using inappropriate language with or in the presence of the children; and

(vi) engaging in conduct that is inconsistent with Kinark’s service agreement.

28Second, the Kinark reports demonstrate that Ms. Anderson has missed two intake appointments and fifteen visits with the children. For the most part, these absences have not been explained.

29Third, Ms. Anderson’s evidence of sobriety is not convincing.

30Two of the urine tests are quite dated, having been obtained in July and August 2024. I find that these test results are not compelling evidence that Ms. Anderson has overcome or managed her addiction issues.

31The most recent drug test is more complicated. In the July 2025 test, Ms. Anderson tested positive for opiates and benzodiazepines. Given Ms. Anderson’s addiction issues, the positive result is concerning. Ms. Anderson provided a prescription list that confirms that, in or around the time of the July 2025 test, she had been prescribed morphine (an opioid), hydromorphone (an opioid) and clonazepam (a benzodiazepine). This evidence provides an “innocent” explanation for the positive result.

32That said, the July 2025 results are also dated. The test was taken nearly eight months before the motion was first heard. Additionally, there is no accompanying report that demonstrates that the level of opiates or benzodiazepine found in Ms. Anderson’s urine are consistent with her prescribed dosages. This evidence is necessary to determine whether Ms. Anderson is merely taking her prescribed medications or has succumbed to her previous addiction issues.

33Putting aside the urine test results, the medical records before me also cause me concern with respect to Ms. Anderson’s sobriety.

34In her prescription list, Ms. Anderson’s conditions are noted as “substance overdose” and “substance use, including abuse or dependence”. This notation is alarming.

35After the initial hearing of this motion, Ms. Anderson filed additional evidence. Included in these documents was a letter from Ms. Anderson’s pharmacy indicating that the “substance overdose” and “substance use, including abuse or dependence” notation was removed. No explanation for this amendment was provided.

36Since the urine tests, Ms. Anderson was admitted into hospital on November 12, 2025 and January 23, 2026. The reasons for these admissions are unknown. For example, a Peterborough Regional Health Centre (“PRHC”) record states that Ms. Anderson’s January 2026 hospitalization related to “vomiting”. No further information is provided. Similarly, Ms. Anderson’s PRHC report, dated November 12, 2025, does not provide a detailed explanation for her admission to the hospital. I would have expected Ms. Anderson to provide fulsome records to establish that the November 2025 and January 2026 hospitalizations were not related to her addiction issues.

37Fourth, outside of attending one NA meeting in October 2022, there is no evidence that Ms. Anderson is undergoing counselling for her addiction issues.

38Fifth, Ms. Anderson’s affidavit states that she does not recall an order requiring her to submit to drug testing. This evidence is concerning. As noted above, Swartz J.’s order required drug testing. While testing is no longer required, as it has been overtaken by Waters J.’s order, it is troubling that Ms. Anderson does not recall Swartz J.’s order.

39Sixth, Ms. Anderson relies on a doctor’s letter, dated March 6, 2026, which states that, “[Ms. Anderson] has been keeping really well and there’s been no concerns around safety of herself or others as well as overdose”. I do not give this letter much weight because Ms. Anderson was only in this doctor’s care for a year and because there is no explanation provided for why the doctor has no concerns about Ms. Anderson’s sobriety. Given Ms. Anderson’s history of drug abuse and the fact that she continues to be prescribed opiates (including a prescription for Fentanyl in December 2025), I would have expected the doctor’s correspondence to outline the reasons for the bare assertion made in the letter. No such explanation was provided.

40Finally, I am concerned that Ms. Anderson has not responded to Mr. Brethour’s Request for Information, dated September 16, 2025. In that request, Mr. Brethour sought, amongst other things, Ms. Anderson’s most recent medical documentation. While some responses have been received, Ms. Anderson has not provided a complete response due to concerns that Mr. Brethour’s wife works at PRHC and Ms. Anderson believes, without any proof, that Mr. Brethour’s wife has accessed her medical records. This bald assertion is not compelling. Given the issues that led to Waters J.’s decision, I would have expected Ms. Anderson to provide all medical information necessary to assuage the concerns raised by her addiction issues.

41Given my uncertainty with respect to Ms. Anderson’s sobriety and her behaviour at Kinark, I find that the following factors, as outlined in s. 24(3) of the CLRA, favour continuing her supervised access with the children at Kinark:

(i) s. 24(3)(c) – Ms. Anderson’s conduct, as reflected in the Kinark reports, does not demonstrate that she is capable of supporting her children’s relationship with their father.

(ii) s. 24(3)(d), (e) – Since July 2022, the children have been residing with Mr. Brethour and have not been with Ms. Anderson overnight. At least one child has expressed a concern of staying with Ms. Anderson in an unsupervised setting, though that child is young.

(iii) s. 24(3)(h) – On the record before me, I am not convinced that Ms. Anderson is managing her addiction. As a result, I am concerned that she would not be able to care for and meet the needs of the children if they were left in her unsupervised care.

(iv) s. 24(3)(i) – On the record before me, I have concerns with respect to Ms. Anderson’s ability and willingness to communicate with Mr. Brethour on matters affecting the children. In fairness, however, I also have concerns about Mr. Brethour’s ability and willingness to communicate with Ms. Anderson on matters affecting the children.

(v) s. 24(3)(k) – Ms. Anderson was subject to a peace bond in relation to Mr. Brethour and his wife. While Ms. Anderson’s evidence is that she was “framed”, I do not find this evidence compelling.

42In arriving at my conclusion, I am cognizant of the fact that supervised access is not meant to be a permanent feature of a child’s life. It is intended to provide a temporary and time limited measure. It should not be used as a long-term remedy (see M.(B.P.) at pp. 460–61). Importantly, however, if supervised access is still in the best interests of the child, then that approach is preferred over no access (see V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319 (Ont. S.C.J.), at para. 139; and Armstrong v. Coupland, 2023 ONSC 5451, at paras. 675–76).

43In my view, supervised visits are still in the best interests of the children, until such time as: (1) the Kinark reports demonstrate that Ms. Anderson is not engaging in improper conduct; and (2) Ms. Anderson presents more compelling evidence that her sobriety issues are well managed.

44I have also considered Ms. Anderson’s request to have her parenting time supervised by her family members or friends. On the record before me, I cannot ascertain whether any of these proposed supervisors have agreed to supervise Ms. Andreson’s parenting time, nor can I ascertain whether these proposed supervisors are appropriate. The Kinark reports demonstrate that Ms. Anderson’s conduct should be monitored. The evidence on this motion does not allow me to determine whether any of the proposed supervisors will adequately monitor and report any inappropriate conduct.

45It appears that Ms. Anderson and Mr. Brethour have not been communicating with respect to the children on the Our Family Wizard application. Ms. Anderson’s evidence is that she cannot afford the fees for this application. Instead, Ms. Anderson requests that communications with respect to the children be conducted using AppClose. Mr. Brethour does not oppose this relief. As such, I grant the relief. Waters J.’s order will be varied to permit communication in relation to the children using the AppClose application.

46Given the untested nature of the evidence before me and the lengthy period of time that has passed since Waters J.’s decision, I order that a trial management conference be scheduled as soon as possible and on an urgent basis. The parties should proceed to trial on the issue of supervised parenting time as soon as possible.

47I strongly urge the parties to come to an agreement on costs. If the parties cannot reach an agreement, then Mr. Brethour shall file brief written submissions (no more than 5 pages) on or before April 24, 2026. Ms. Anderson may file reply submissions (no more than 5 pages) on or before May 1, 2026. Materials may be sent to my judicial assistant, Manuella Pascoe, at manuella.pascoe@ontario.ca.

The Honourable Justice Sunil S. Mathai