Lessard v. Proulx, 2011 ONCJ 430

North Bay Registry No. FO289-10 DATE: 2011·IX·02 CITATION: Lessard v. Proulx , 2011 ONCJ 430 ONTARIO COURT OF JUSTICE BETWEEN: ROBERT RICHARD LESSARD, Applicant, — AND — CAROL- ANN PROULX, Respondent.

Before Justice Louisette Duchesneau-McLachlan Reasons for Judgment released on 2 September 2011 CUSTODY OF CHILD — Best interests of child — Parenting ability — Discipline and established routine — Parties in on-and-off relationship that spanned 8 years had never cohabited — Applicant was not natural father of child (now 5 years old) but had always treated boy as his own — Parties separated about 2 years ago and, shortly thereafter, court made consent order granting custody to mother and access to “father” on week-about basis with right to information about child’s health, education and welfare — Nevertheless, “father” found it difficult to exercise access — Mother was diagnosed with bi-polar disorder and, about year ago, she unilaterally moved from Kirkland Lake to North Bay (250 kilometres away) mainly to seek treatment for her mental illness — Mother made motion to terminate “father’s” access, while he made motion for sole custody — Pending that motion, court established specific access

schedule (including week-about access during summer holidays) for “father” who had not been able to see boy for many months — When clinical investigator from Office of Children’s Lawyer revealed to mother that assessment report would be recommending custody to father, she telephoned father allegedly expressing suicide threat and alleged threats to slash throat of her son (who was at that time on summer access visit with “father”) — Court promptly extended child’s residence with “father” (subject to supervised access by mother) and expedited motion to vary — According to assessor’s observations, child seemed at ease and enjoyed being with each parent, although “father” adhered to routine, used any opportunity to teach as well as to play and was better at choosing activities for boy — Fact that boy’s behaviour improved under “father’s” care seemed to confirm views of several professionals that boy’s tantrums and anger were rooted mother’s lack of consistency and her failure to recognize boy’s need to see his “father” — Court trusted “father” as person better able to meet all of boy’s needs, including fostering mother-and-son relationship and concluded that boy’s life would be much more peaceful and happy if he lived with his “father” in Kirkland Lake — No one doubted mother’s love for child but, at this time, she needed to concentrate on healing herself — “Father” was granted custody and primary residence of child — Despite “father’s” concerns, court allowed mother generous, unsupervised access.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended], subsection 20(5) . Julie S. Richard-Gorman ................................................................. counsel for the applicant father C. Edward Rae ........................................................................... counsel for the respondent mother [ 1 ] JUSTICE L. DUCHESNEAU-McLACHLAN:— This is a matter where both parties wish to change the final order of Justice Malcolm G.

McLeod, dated 7 January 2010 and issued at the Kirkland Lake location of this court. [ 2 ] The mother’s request was basically to stop access by Mr. Lessard and to assess child support. [ 3 ] Mr. Lessard initially wanted his access to resume or in the alternative that he be provided with specific access during the year.

[ 4 ] Mr. Lessard then asked for a change of custody so that he be the custodial parent of their child. [ 5 ] The Office of the Children’s Lawyer agreed to intervene in this matter and an assessment was conducted by Carole Vaillancourt. [ 6 ] The child Chancler Robert Lessard was born 26 June 2006. He is referred to throughout as Chance since this seems to be the name most used in regards to this child. [ 7 ] His biological mother is Carol-Ann Proulx. Mr. Lessard has declared a settled intention to treat Chance as his son since his birth.

The child carries his surname. [ 8 ] The biological father has never had a relationship with Chance. Indeed, at the time of conception, this gentleman was married to another lady and he resumed or continued their marital relationship. [ 9 ] The parties both agree that they had an off-and-on relationship of some eight years prior to their final separation leading to Justice McLeod’s order in January of 2010.

They never really lived together. [ 10 ] That order was a consent order providing for custody to the mother; access to the father on a week-about basis; stating the father’s rights under subsection 20(5) of the Children’s Law Reform Act , R.S.O. 1990, c.

C-12, as amended; and providing that the mother consult with the father regarding issues of importance affecting the child. [ 11 ] The father testified that he consented to the order since his parental rights were clearly specified. [ 12 ] The evidence showed that these parties have a toxic relationship and that they often sought police intervention in relation to each other and to Chase. [ 13 ] The police reports regarding Ms. Proulx show criminal occurrences affecting Chance’s biological father and his spouse and some property offences.

From her evidence, it seems that the mother was only convicted once of threatening Chance’s father and his spouse and that she received a two-year probation order that only has about one year to go. [ 14 ] The father has a dated criminal record. There seems to be only one charge relating to domestic violence and this relating to Ms. Proulx. He apparently threw a case of beer at her car in a fit of anger at her conduct.

Subsequent to the separation, she had him charged with various offences. [ 15 ] The parties agree that the mother is bi-polar and that her behaviour during the years certainly confirms the diagnosis that she received shortly after Chance’s birth. [ 16 ] This matter came before this court since the mother unilaterally decided to move to North Bay mainly to obtain treatment and help for her mental illness. [ 17 ] As suggested by police, the mother gave the father notice of her move in May of 2010. [ 18 ] The father testified that he dared not contact the mother in any way because the serious charges against him as a result of her allegations had not been dealt with. [ 19 ] The mother moved to this area by 1 July 2010. [ 20 ] The mother started this motion to change in September of 2010. [ 21 ] As a result of legal advice from his criminal lawyer, the father stopped access to Chase for an eight-month period. [ 22 ] The parties communicated through their lawyers and Mr.

Lessard was allowed to see Chase in October of 2010. [ 23 ] There was then another period of four months before he was allowed to see Chase once more. [ 24 ] A request for the Office of the Children’s Lawyer to intervene was made on 12 January 2011 by Justice Jean-Gilles Lebel as a result of a settlement conference. [ 25 ] On 27 January 2011, Justice Gregory P.

Rodgers dealt with a motion of contempt brought by the father because of the mother’s persistent denial of access. [ 26 ] Justice Rodgers found the mother in contempt of Justice McLeod’s order and established a specific access schedule. [ 27 ] On 7 April 2011, Justice Rodgers also ordered the father to pay child support of $200 per month, even though his gross annual is usually around $59,000 because he has to organize transportation to and from Kirkland Lake and also has to pay all extracurricular expenses for Chase and had to pay substantial legal fees as a result of serious allegations by the mother against him of which he was acquitted.

Justice Rodgers also reinstated the week-about access for the school summer holidays. [ 28 ] On 21 July 2011, this court on an ex parte basis ordered that Chance remain with his father till 4 August 2011 to determine whether the alleged threats of suicide by the mother and alleged threats to slash her son’s throat should result in continued residence of Chance with the father. [ 29 ] On 4 August, residence was ordered to continue with the father subject to supervised access by the mother. The matter was adjourned to 18 August to give mother a chance to retain counsel through Legal Aid.

[ 30 ] On 18 August, since it was very important to determine whether Chance would go to school in North Bay or Kirkland Lake, this trial was scheduled for 29 August 2011. The trial continued and was completed on 1 September 2011. [ 31 ] It seems that the mother had quite an emotional reaction to the disclosure meeting with Ms. Vaillancourt in July of 2011 that led to her telephoning Mr. Lessard and using unfortunate language. [ 32 ] The father took these comments as threats against Chance and assumed that the mother was suicidal.

The mother denies this and states that she merely meant that she would fight against the assessor’s recommendations. The father testified that he had heard such threats in the past and that he was worried about Chase’s safety. [ 33 ] The assessor recommends that the father be given full custody and primary residence of Chance. [ 34 ] The assessor also recommends alternate weekend access for the mother on certain conditions as well as on special holidays.

The assessor even suggests that the mother should have day week access to Chance should she decide to return to Kirkland Lake. [ 35 ] The mother testified that she would not return to Kirkland Lake as she has done great progress in the North Bay area and has the possibility of great services here to assist her and her son. [ 36 ] Notwithstanding the assessor’s recommendations, the father feels that the mother should have supervised access as her stability is dependent on her taking her medication and he is not quite sure whether she can maintain her stability. [ 37 ] Ms.

Vaillancourt is to be commended for this assessment. It provides an extensive and all-inclusive background for these parties and Chance and is extremely well reasoned. [ 38 ] We discover that the mother takes Lamictol for her bi-polar disorder and Lorazepam to help her sleep at night. She also takes the mood regulator Cipralex. [ 39 ] The mother and her estranged husband, Mark Proulx, had three children: Alisha, Paige and Madison. When they separated in 2001, the children were turned over to the mother’s sister Sherry and they have basically been in her care since then.

Both parents agreed that this was in their children’s best interests. [ 40 ] In 2002, the mother also had another child, Meadow Summerfield, who is in the custody of her father, Kevin Summerfield, by way of a court order. The mother explained that she was overwhelmed at the time and did not contest the claim for custody. The mother states that this Kevin has problems with drugs and alcohol and that she has tried to have the children’s aid society intervene without success. She admits that she does not see this child often. [ 41 ] Mr.

Lessard is in his forties and had a vasectomy in his twenties as he did not want to bring a child in this world where there is often neglect and abuse. He accepted responsibility for Chance and loves him very much. [ 42 ] It seems that this relationship was not good for either party. The mother blamed Mr. Lessard for everything wrong in her life. She reported hurtful things to him said by others including her sister Sherry. The mother still to this day blames Mr. Lessard and says that he is emotionally, sexually and physically abusive to her. [ 43 ] Reports from independent sources seem to indicate that Mr.

Lessard is often needlessly vilified despite all the help that he has afforded the mother during the years. He helped with accommodation and payments for things that she said she needed but never got. [ 44 ] Even the mother acknowledges that, during all this time, except for the period of time after she laid charges against him, Mr. Lessard saw Chance and took care of him. [ 45 ] The parents’ concerns about each other are clearly explained in the assessment and did not vary during the trial.

The assessment was filed as an exhibit in these proceedings and I see no need to regurgitate its contents in these reasons. [ 46 ] From the assessor’s observations, Chance seems at ease with each parent. He enjoys being with each parent. The father is more of a routine person and also uses any opportunity to teach as well as play.

He is better at choosing activities for Chance. [ 47 ] During his interview with the assessor, Chance indicated that he would prefer living with his father even though his father does not provide as much candy as his mother. [ 48 ] It should be noted that the father took Chance to the dentist at the mother’s request and that this child has six cavities. This seems to infer that he is eating way too much candy at the mother’s home. [ 49 ] The mother’s witnesses and collaterals contacted by the assessor seem to conclude that Mr. Lessard is controlling and manipulative from what they have heard from Ms. Proulx.

On the other hand, collaterals who have had direct contact with Mr. Lessard and Ms. Proulx seem to indicate that Ms. Proulx is the controlling and manipulative one in this relationship. [ 50 ] The mental health people in the Kirkland Lake area talk about how concerned Mr. Lessard is in regards to Ms. Proulx’s mental health and lifestyle. They share his concerns. [ 51 ] The collaterals are quite clear that Chance’s behaviour has changed for the better since he has regular access with Mr. Lessard. [ 52 ] There is no doubt that Ms. Proulx has done her best to get help in the North Bay area.

Many collaterals support and admire her efforts. Nevertheless, some did indicate that the mother seemed to blame Chance’s problems with tantrums and anger on her

past abusive relationships whereas perhaps his bad behaviour had to do with lack of consistency and his need to see his father. [ 53 ] The psychiatrist Dr. Bakish confirmed a diagnosis of rapid cycling bipolar 2 disorder. He indicated that brand name medication works much better than the generic versions that she initially had to take while on the Ontario Disability Support Program. Ms.

Proulx stated that she was now back on brand names. [ 54 ] It seems clear from Chance’s teacher’s observation that his behaviour problems are caused by sadness in not seeing his father and that the father seems better equipped to take care of Chance’s behavioural and educational needs. The teacher confided to the assessor that she strongly feels that the source of any problems that Chance may have are in North Bay, that is to say in his mother’s home. [ 55 ] I have determined that this child’s life would be much more peaceful and happy if he resided with his father. [ 56 ] I realize that Ms.

Proulx loves her son very much but it seems to me from the evidence that she needs to concentrate on herself. I realize as per her sister’s evidence that she has made great progress. I believe that. [ 57 ] However, the subject matter of this litigation concerns the best interests of the boy Chance. His father loves him too. Chance loves both parents.

Each of them is a hero in his eyes. [ 58 ] The question at this time is whether both parents can equally take care of Chance and guide him and provide him with the consistency and routine and opportunities that he richly deserves. [ 59 ] In my opinion, the father is the person who can best attend to all of Chance’s needs, including his need to see his mother on a consistent basis.

The father is willing to do his best to foster the mother-and-child relationship. [ 60 ] As we have seen, the mother just cannot seem to understand Chance’s need to be with his father often. [ 61 ] The father is therefore granted custody and primary residence of Chance. [ 62 ] The mother should have generous, unsupervised access to Chance.

Despite the father’s request for supervision, it seems clear that the mother does not require supervision at this time. [ 63 ] Should the father have any real concerns from time to time as to the mother’s state of mind, it will be his duty to obtain independent confirmation that the mother is taking her medication prior to allowing unsupervised access. [ 64 ] It is clear that the mother’s sister in the Kirkland Lake area would be willing to supervise access if that is ever needed. [ 65 ] The mother should enjoy access two out of four weekends during the school year, providing that she can make it to Kirkland Lake.

The father is encouraged to help with her transportation, should she require his assistance with bus fare. [ 66 ] During the school holidays, the mother should have access on a week-about basis providing she complies with the assessor’s conditions. [ 67 ] The mother should also have access for half of the Christmas holidays with Christmas day in odd years.

The father is to have Chance with him for the Christmas day portion of the holidays in even years. [ 68 ] The mother should have access the first half of every school spring break, which is presently in March. [ 69 ] The father should provide transportation for Christmas, March break and summer access. [ 70 ] The parties shall ensure that each has Chance’s health card when the child is with either party. [ 71 ] The mother shall have specified in the order her rights under subsection 20(5) of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended.