Court File and Parties

Milton Registry No.: D61875/13A1

Date: 2014-12-22

Ontario Court of Justice

Re: Christina Marie Patyewich — Applicant

And: Anton Leon Francis — Respondent

Before: Justice Roselyn Zisman

Counsel:

• Paul R. Krumech — for the Applicant
• Melanie Sager — for the Respondent

Heard On: 16 December 2014

1: Introduction

[1] This is a motion by the applicant ("mother") seeking temporary sole custody of the child Jayden Michael Francis Patykewich, born on 27 March 2009 ("the child" or "Jayden"), and a motion by the respondent ("father") seeking temporary joint custody or in the alternative that the mother be required to consult with the father before making any major decisions that affect the child or his time in the father's care. The father also seeks a temporary order that the child be in his care on a specified schedule and an order for the Office of the Children's Lawyer to be appointed.

2: Background

[2] The mother is 31 years old and the father is 27 years old. They were involved in an on-and-off relationship from approximately 2006. There is one child of the relationship, Jayden, who was born on 27 March 2009. The parties began to reside together in the maternal grandparents' home in 2008 and then moved out and resided together from about 2010 to their final separation in early 2012. Both parties agree that it was a turbulent relationship.

[3] The mother is employed as an administrative assistant and deposes that she was always the child's primary caregiver.

[4] The father is employed as a disc jockey and he works late nights generally from Thursdays to Saturdays. The father also works part-time as an administrator and bookkeeper for his mother who operates a day-care centre.

[5] The mother and the maternal grandfather depose that, while the parties resided together, there were ongoing arguments about the father's work schedule and his lack of assistance to the mother in the care of Jayden. After the separation, the mother deposes that the father was inconsistent in their agreed upon access schedule and would often disappoint Jayden by not turning up for visits. The mother deposes that they argued about everything, including his lack of help with the child's care and his lack of financial support. The mother also deposes that they argued about the child's whereabouts in the evenings when the father was working.

[6] The mother deposes that she has always been Jayden's primary caregiver and assumed responsibility for Jayden's care, attended all of his medical and dental appointments as well as any necessary school meetings. The mother's primary care of Jayden is corroborated by the maternal grandfather. A letter filed from Jayden's doctor confirms that the mother has attended all of Jayden's medical appointments and has been attending exclusively in the last 2 years.

[7] The father deposes that both he and the mother were involved in the day-to-day care of the child and that they both took the child to the doctor and made joint decisions. For example, he deposes that they both agreed that the child attend a Catholic school.

[8] When the parties separated, Jayden was 3 years old. The father deposes that the parties were able to co-operate and that Jayden was in his care and attended his mother's day care most weeks from 2 to 4 days. The father produced records from the day-care centre substantiating this claim. As of September 2013, Jayden commenced school and no longer attends the daycare.

[9] It is the father's position that the relationship between him and the mother changed in August 2013 as the mother was jealous of his new girlfriend Brianna and did not want her to spend time with Jayden. As the father currently does not have his driver's license due to unpaid fines, his girlfriend has on occasion been driving him and has therefore been present at the access exchanges.

[10] On 29 August 2013, it is alleged that the mother assaulted the father and his girlfriend at a GO train station where they were exchanging Jayden. The mother was charged with assault against both the father and his girlfriend and also with mischief involving damage to a car. The mother laid a private information alleging the father and his girlfriend threatened her.

[11] The parties went to mediation and agreed to withdraw all of the charges. The mother and father signed a memorandum of understanding in which they agreed not to speak negatively about each other or their partners. The mother apologized for her actions and the parties agreed to work on their communication.

[12] The father deposes that, as of August 2013, the mother began to curtail his access which the mother denies and points out that she permitted the father access on Father's Day and Christmas. She deposes that the father has been inconsistent with access and often disappointed Jayden by turning up late for his birthday or not calling him on Easter or Thanksgiving. She deposes that she gave the father overnight access during the summer but it did not work out as she did not know where Jayden was and was unsuccessful in being able to reach Jayden by telephone.

[13] The children's aid society has been involved with the parties as a result of the incident on 29 August 2014. The father attached to his affidavit several of the intake worker's case notes including the worker's notes of interviews with the parties, the child and the father's new partner. The notes contain the worker's observations and conclusions. Although I am mindful that these notes are not in a sworn affidavit by the worker and not subject to cross-examination, nevertheless, at this stage of the proceeding, they offer some insight into the family dynamics and the child's current circumstances.

[14] The intake worker's notes indicate that the mother is a caring and devoted parent who is very involved in the child's life. The mother was cautioned about the impact of domestic violence on children and the incident of 29 August was viewed as an isolated incident. But after further information was received by the society and upon further investigation, the worker concluded that the mother was continuing to experience difficulty in accepting that the father has a new partner. The worker felt that the mother's negative attitude and feelings towards the father and his partner were impacting her ability to remain neutral in the child's presence and that this was an ongoing issue that was now emotionally impacting the child.

[15] The case notes also indicate that the father is a loving and patient parent and that he has a good relationship with the child who enjoys all of the activities he does with the father during their time together. The child also enjoys spending time with the father's partner but is aware of his mother's dislike of her.

[16] Jayden told the worker that he overheard the father and his partner saying they were going to kill the mother and that he would be taken to Trinidad. But he did not present as distraught and he spoke positively about his interactions with the father and his partner and did not present as fearful of either parent. Both the father and his partner denied that they had ever made such a comment. The father was cautioned about making any such similar comments. The worker did not verify the allegations as she felt there was not enough evidence that the comments were made and further neither the child nor mother were fearful of the father.

[17] The worker noted that Jayden is very intelligent and loves both parents but is torn by his love and wants to please everyone. The worker concluded that:

Mother and father have been [in] ongoing court regarding custody and access for a while and their relationship has become very contentious. In viewing several voice messages and texts between the mother and father, it is evident that child is being used as a means to emotionally impact the other parent. It appears that this has escalated since father engaged in a relationship with Brianna. In speaking to child, it is clearly evident that he is aware of mother's contentious feelings towards Brianna and he does tend to hide his positive feelings of her from mother to either avoid hurting her feelings or making mother upset. Overall, it is clearly evident that the conflict has impacted child emotionally and therefore 33l [emotional harm] will be verified.

[18] The worker also stated that she felt both parties had been guilty of exposing the child to this conflict and that both were in need of realizing the impact on their son and that they needed to move forward in a more mature manner for the sake of their son. The worker recommended that the parties attend counselling.

3: History of Court Proceedings

[19] The mother began this proceeding in October 2013. The matter was adjourned at the first appearance as the father requested more time to file his responding materials. At a case conference on 13 December 2013, the parties, who were both self-represented at the time, entered into a temporary consent that provided that, on a "without prejudice" basis, the mother have custody of the child. The consent also provided that the father have access every Tuesday and Thursday from the child's school to return to the maternal grandparents' home and provided for Christmas access. On a temporary "without prejudice" basis, the father was required to pay child support of $303 per month based on an income of $35,000 and the father was required to provide some financial disclosure and he was given an extension of time to serve and file his responding materials.

[20] The matter returned to court on 13 February 2014 for a case conference. The father wished to proceed as he wished expanded access, but the mother's request for an adjournment was granted as the father had not complied with the timelines for filing his responding documents or his financial disclosure. The matter was adjourned to 17 March 2014 and the father was given leave to bring a motion for expanded access.

[21] On 17 March 2014, the father filed a fresh motion for custody and/or expanded access. The motion was adjourned to give the mother opportunity to respond. The mother had also just retained counsel who wished to bring a motion to vary the outstanding support order.

[22] On 20 May 2014, both motions were before the court. The mother's motion for a variation of the child support order was granted as the father had not complied with the timelines for filing his materials and had not filed any materials to dispute the mother's evidence that he earned cash income. An income of $45,000 was imputed to the father and he was then ordered to pay child support of $406 per month. At the request of the father, his motion for custody and/or expanded access was adjourned to 9 July 2014.

[23] On 9 July 2014, the parties entered into a consent. The mother was represented by her counsel and the father had the benefit of duty counsel. The consent provided that the father continue to have access on Tuesdays and Thursdays from 3:00 p.m. to 7:30 p.m. and some expanded access over the summer namely on Tuesdays from 12:00 p.m. to Wednesdays at 6:30 p.m. and provided for day access on Christmas Eve, Father's Day and the child's birthday. The consent also provided that each parent have the right to consult and directly obtain information from the child's teachers, doctors or other professionals.

[24] The case was then adjourned to 24 October 2014. At this attendance, father attended with counsel, Ms Sager who was retained on a limited-scope retainer. An informal case conference was held as the prior endorsement was unclear as to the purpose of the court appearance. The issue of the father's request for expanded access could not be resolved and therefore, timelines were set for further motion material to be filed. On consent, the parties agreed to disclosure from the children's aid society.

[25] The motions by both parties were argued on 16 December 2014. After hearing submissions, I ordered that the Office of the Children's Lawyer be appointed and ordered that the child be with the father to celebrate Christmas from 25 December at 3:00 p.m. to 27 December at 3:00 p.m. and reserved the decision on the remainder of the issues.

4: Position of the Mother

[26] The mother sought an order for sole custody and indicated that she was not opposed to some expanded access to the father. The mother proposed that, in addition to the father's current access, he also have further access on alternate Tuesdays after school to Thursday at 6:30 p.m. In the alternative, she proposed an access schedule for week 1, Tuesday and Thursday from 3:00 p.m. to 7:30 p.m.; week 2 Tuesday from 3:00 p.m. to Wednesday at 6:00 p.m. and week 3 Thursday from 3:00 p.m. to 7:30 p.m.

[27] The mother is concerned that the father's work schedule and routine does not permit him to be available for the child overnight and that he is working more than he alleges. The mother submitted that the child was doing well in the current arrangement and there was no need to significantly change the status quo.

[28] The mother further submitted that the parties had never been able to co-operate or make joint decisions. She deposed that the father often starts unnecessary arguments about minor issues and that she was troubled by the fact that he recorded their conversations and she can hear his girlfriend in the background. It is her position that she is not jealous of the father's girlfriend but is troubled by the fact that both the father and his girlfriend are disrespectful to her.

5: Position of the Father

[29] It is the father's position that, prior to the father's beginning a new relationship, the parties were able to co-operate and that they essentially shared physical custody of the child. It is his position that it is only because of the mother's jealousy over his new relationship that the mother is attempting to curtail his time and involvement in the child's life.

[30] The father seeks joint custody with the mother or, in the alternative, that she should be required to consult with him regarding any decision affecting the child or his time with the child. He has raised concerns about the mother's parenting abilities. It is submitted that he felt forced to agree to the prior consents as he was without counsel. It is submitted that the access provisions should be considered to be made on a "without prejudice" basis and should not be considered to have created a new status quo.

[31] The father proposes that the child be in his care on week 1 from Sunday at noon until Wednesday at 7:30 p.m. with pick up and return to the mother's home; week 2 from Monday after school until Wednesday at 7:30 p.m. with pick up at school and return to the mother's home. In the alternative, he proposes a schedule for week 1, from Sunday at noon until Tuesday return to school and Wednesday after school until Thursday return to school; in week 2, Monday after school until Tuesday at 7:30 p.m. and Wednesday after school until Tuesday return to school. He proposes this schedule continue for 2 months and then his first proposed schedule be in force.

6: Applicable Legal Principles

[32] As in any issue governing children, the test to be applied on a temporary motion is what parenting arrangement is in the best interests of a child. Subsection 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended, provides the factors a court must consider as follows:

(a) the love, affection and emotional ties between the child and,

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the care and upbringing of the child;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[33] In considering these factors at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintaining the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion. Any temporary order must deal with the immediate problem of where the child should live and the role each parent should play.

[34] As stated by Justice V. Jennifer Mackinnon in Grant v. Turgeon, 5 R.F.L. (5th) 326, at paragraph [15]:

[15] . . . generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children's best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern, 5 R.F.L. (4th) 115; Papp v. Papp, [1970] 1 O.R. 331.

At paragraph [31] of Tia J. v. Michael J. and Shayn R., 2011 ONCJ 744, 212 A.C.W.S. (3d) 162, this court elaborated:

[31] The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial. See Copeland v. Perreault, 2007 ONCJ 217, 172 A.C.W.S. (3d) 975, at paragraph [49].

[35] It is also important that the terms of a temporary order ensure that the child maintains a relationship with both parents. A child should have maximum contact with both parents as long as it is consistent with the child's best interests. See Gordon v. Goertz, [1996] 2 S.C.R. 27.

7: Analysis

7.1: Determination of Status Quo

[36] Based on reading the materials and hearing the submissions of counsel, I find that, although the father enjoys a special relationship with Jayden and was involved in his care, the mother was the primary parent during the relationship. When the parties resided together, the mother was either not working or only working part-time whereas the father was actively working long hours as a disc jockey and working for his mother at her day care. I also find that, after the separation, the child remained in the mother's primary care although the father spent significant time with the child.

[37] The father relies on the day-care records to confirm that the parties shared care of the child after the separation. Although the child was taken to the maternal grandmother's day-care centre for two to four days on many weeks from January to mid-August 2013, sometimes it was for only a few hours and sometimes for most of the day. However, it is unclear whether the father then had the child overnight or exactly how much time he spent with the child as opposed to the child's simply being in the day care. It is clear that the father never spent any significant time with the child from Thursday evening to Sunday as this is when he most often worked as a disc jockey. I find that it was the mother who was the parent primarily responsible for the child's day-to-day care, arranging and attending his medical and dental appointments and arranging for his extracurricular activities.

[38] I find that, after the separation, the father essentially acquiesced to the mother's being the primary caregiver and continued to do so when the mother began these proceedings. At the inception of these proceedings, when both parties were self-represented, the father agreed that the child remain in the mother's primary care and that he exercise day access two times a week. I do not accept the submissions of father's counsel that he was at a disadvantage because he was not represented or that he accepted this access because it was the only access the mother was prepared to grant him. It is clear from the court record that both parties were self-represented at that stage of the proceedings and that it was the father who delayed the proceedings on several occasions. The father also consented to the order on 9 July 2014 that only slightly expanded his access.

[39] I also do not accept the submission that the temporary orders for access should be considered to be without prejudice. The initial temporary clearly indicated that it was without prejudice only with respect to custody and child support. The access provisions did not state they were without prejudice. It is not appropriate for this court to now go behind that order.

[40] It has now been over two and half years since the separation and the child has remained in the mother's primary care and he is doing well. Even if the father's position was accepted that the parties were sharing care of the child up to August 2013, the child would still have been living in the mother's primary care for over a year. There is no basis on the evidence before me at this time to disturb the status quo that the child should continue to reside in the primary care of the mother.

7.2: Determination of the Father's Access

[41] Although I have concluded that the temporary orders for access are on a "with prejudice" basis, the father is permitted to seek a further variation of the outstanding order. The court now has the benefit of the case notes of the children's aid society that were not previously before the court. The concerns raised require the court to reconfigure access in a manner to minimize the potential for conflict. This hearing is the first time that the issue of the father's access was heard on its merits.

[42] Although I have concluded that the child should continue to reside primarily with the mother, in view of the child's age, the passage of time since the temporary access orders were made and his close relationship with the father, I find that his access should be expanded. It is in the child's best interests to have a full and meaningful relationship with his father that includes regular overnight access. The mother does not raise any serious concerns about the father's care of the child except that she was concerned about where the child was and her inability to contact the child. These concerns can be dealt with by provisions in the order. The notes of the children's aid's worker confirm that the child enjoys spending time with the father and his partner and enjoys the many activities they do together.

[43] I have concerns about the schedules proposed by both parents. The mother's proposal is too limited and both of the proposals involve too many transitions for the child and the drops offs are often at the mother's home. In view of the concerns raised by the children's aid society, in my view contact between the parties should be avoided as much as possible.

[44] The schedules proposed by both parties recognize that the father, due to his work commitments, is not available during the weekends. The schedule I am ordering will expand the father's access and require that most of the pick-ups and drops-offs occur at the school. As the father has now moved close to the neighbourhood where the mother lives and the child attends school, he should be able to easily arrange to pick up and drop the child at school.

[45] The father's motion requests that the access schedule commence on 11 January, but that will leave him without access for the first week of January and therefore in the schedule that I am ordering, I have provided the father with the option of beginning this new schedule a week earlier.

[46] In addition to Christmas access, the father also requested access 29 December to 31 December 2014 at 5:00 p.m. However, the child will be with the father from 25 December at 3:00 p.m. to 27 December at 3:00 p.m. and to then have him spend two evenings with his mother and then return to his father's is too disruptive and I remain concerned about the frequent interactions between the parties. I have provided the father with the option of commencing his expanded access as of 3 January and therefore he has the opportunity to spend time with his son shortly after Christmas.

7.3: Determination of Custody

[47] It is well settled law that joint custody is not appropriate where parents are unable to co-operate or communicate effectively. See Kaplanis v. Kaplanis, 194 O.A.C. 106. However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of co-operation.

[48] In this case, the father maintains that the parties were able to co-operate until he began his relationship with his new partner and gave as an example, the parties' ability to agree on a choice of school for Jayden. But the father admits that there were not many decisions that were made. Further, the father submits that the mother has intentionally interfered with his access. I do not find that she has done so. She has been agreeable to accommodating the father's work schedule and complied with the court orders to which the father had consented. Just because she has not agreed to increase access to the extent desired by the father does not amount to interference.

[49] The altercation in August 2013 that occurred in front of the child and the tone of the communication between the parties does not indicate that at this stage of the litigation that they are able to put their differences aside for the sake of the child and jointly make decisions. In view of the conflict between the parties, the distrust between them and the disrespect they have for each other as parents, I do not find that the parties are able to co-operate to the extent necessary to make decisions jointly. There is already a pending dispute about whether the child should be enrolled in a French immersion program.

[50] There is no evidence that the mother has made any decisions that are not child-focused. I find that the mother should be granted temporary custody but that she should be required to consult with the father regarding any major decisions and pending further court order the child will remain in the same school, continue to attend the same doctor and dentist and continue with his current extracurricular activities. This provision should provide for the current arrangements to continue and eliminate the need for any foreseeable major decisions pending resolution.

8: Order

[51] There will be a temporary order as follows:

1. The applicant shall have custody of the child Jayden Michael Francis Patykewich born 27 March 2009.

2. The respondent shall have access in accordance with the following schedule:

(a) Week 1: from Sunday at noon, pick up at the mother's home to Wednesday drop off at the child's school at 8:30 a.m. commencing either on Sunday, 3 January or Sunday, 11 January 2015; and

(b) Week 2: from Monday after school, pick up at school to Wednesday drop off at school at 8:30 a.m. commencing either on Monday, 12 January or Monday, 19 January 2015.

3. The respondent shall advise the applicant by 27 December as to when he wishes to commence his access.

4. The child shall be in the primary care of the respondent during his access time. If the respondent is unavailable to exercise his access, he shall advise the applicant and provide her with the right to have the child in her care.

5. If the child will not be spending overnight with the respondent in his home, he shall advise the applicant and provide a telephone number where the child can be reached.

6. Each party shall be permitted to place one telephone call daily between 7:00 to 7:30 p.m. (or such other times as the parties may agree) to the child when he is in the care of the other party.

7. Neither party shall speak in a disparaging or negative manner about the other party, any partner of the other party or a member of the other party's family in the presence of the child or allow or encourage others to do so in the presence of the child.

8. The applicant shall consult with the respondent regarding any major decisions about the child. If the parties are unable to agree, the applicant shall make the final decision.

9. Pending further court order or upon the written consent of the parties, the child shall continue to attend his current school, his current doctor and dentist and his current extracurricular activities.

10. If either party is seeking costs and costs cannot be settled between the parties, I will hear brief oral submissions as to costs along on the return date of this matter. A bill of costs should also be prepared.

Justice Roselyn Zisman

Date: 22 December 2014