Court File and Parties
Date: December 11, 2020
Court File Number: 122/08
Ontario Court of Justice at Orangeville
Between:
Taralee Brewer Applicant
and
Troy Galbraith Respondent
Justice: B. E. Pugsley
Heard: December 9th, 2020
Released: December 11th, 2020
Appearances:
- Applicant and counsel: Michael Dibua
- Respondent (self-represented)
Endorsement
Background and History
[1] The parties separated in 2007. They have a son, Connor Michael Ronald Galbraith (DOB: […], 2006)(M). The parties first came before the court in 2008. After retaining counsel they reached a settlement on November 19th, 2008, whereby they shared custody of Connor and he lived between them on a week by week basis. That arrangement lasted for nearly ten years.
[2] On January 18th, 2018, the Respondent (father) asked for and received an order without notice granting him custody of Connor and restricting the Applicant (mother)'s access. The Respondent's motion bears remarkable parallels to his motion brought this year, down to the assertion that the child was in danger due to the violence of the same individual, Omar Roberts. On March 28th, 2018, Justice Schwarzl heard the Motion Review and cross-motion here and changed the emergency order by reasserting joint custody but having Connor remain in the primary care of the Respondent (father). The Office of the Children's Lawyer agreed to appoint counsel, Ms. Judith Birchall.
[3] With the assistance of Ms. Birchall the parties again reached a consensus and agreed to a final order on January 23rd, 2019. That consent final order reaffirmed joint custody, primary residence with the Respondent, and regular and extensive access by the Applicant.
Current Motion
[4] On November 25th, 2020, the Respondent (father) moved without notice for an order that he have custody and suspending the Applicant (mother)'s access. The order was granted in part. The order made without notice came on before me for review on December 9th, 2020. The Applicant retained counsel and counsel provided an affidavit from her for consideration on the motion review.
Respondent's Position
[5] As already noted, the Respondent's thesis is that Connor is at risk at the Applicant's residence because of the actions of Omar Roberts and, inferentially, the lack of judgment shown by the Applicant in allowing Mr. Roberts to have any contact with Connor. In submission the Respondent attempted to expand his argument by reference to what he says are the generally poor life choices he alleges that the Applicant has made, and the persons she associates with.
[6] It is helpful to note that these types of allegations, and allegations of improper and criminal activity by each party have been a feature of both parties' initial evidence throughout their family litigation since 2008. Notwithstanding this each time they have decided to settle their cases amicably. This somewhat dilutes the force of the Respondent's allegations here.
Applicant's Position and Evidence
[7] The Applicant's material and the submissions of counsel set out that the Applicant was not the target of Mr. Robert's alleged violence (he is in custody for a stabbing of another individual in the apartment complex where the Applicant lives), that Connor did not see the violence, and that the Peel CAS have verified this although their file remained open with regard to two other children in the Applicant's care at the time of the motion review. The Applicant has removed her previous consent to contact between Mr. Roberts and herself and has sought a restraining order against him. They suggest that some of the facts the Respondent cites pre-date the last final consent order.
[8] The Applicant submits that the Respondent's material was not candid when he applied for an order without notice, and that the order made without notice ought to be rescinded such that the parties return to the joint custody final order of January 23rd, 2019, while the Respondent's motion to change flows through the normal court process.
Respondent's Reply
[9] In reply, the Respondent states that Connor told him that he was present or nearby when the violence happened in the hall outside or near the Applicant's apartment. He was also told not to tell the Respondent about Mr. Roberts alleged act. The Applicant confirmed that she did tell Connor that he shouldn't tell the Respondent, believing that if the Respondent knew he would act as he has to block her access.
[10] It appears that Mr. Roberts is in jail at this time.
Court's Analysis
Candor in Without Notice Applications
[11] When a party asks the court to make an order on only one side of the story there is a strong requirement that that party be fully candid and informative of the facts both helpful and less so to their request. In this case I believe that the Respondent did comply with that duty based on what he knew at the time.
Assessment of Risk and Applicant's Judgment
[12] Mr. Roberts had been convicted before of violence against the Applicant and yet here he was again apparently back in the Applicant's if not Connor's life. It is clear from the Applicant's revocation of her former written, revocable consent to contact with Mr. Roberts (restricted by terms of a court order) that she was at the least content to have communication with him. It seems to defy logic that when Mr. Roberts was alleged to have stabbed a person close to her apartment it bore no connection at all to her, although this is possible.
[13] The Respondent's concern about the Applicant's judgment as that related to Connor's welfare was not without some basis. It appears on this limited record that Mr. Roberts has a history of violence including acts related to the Applicant. Her requested restraining order supports this.
Continuation of Emergency Order
[14] Passing the hurdle to obtain the order without notice does not however mean that that order ought to continue.
[15] I am satisfied that at this time there is no real threat to Connor if he attends upon the Applicant for access. The CAS are engaged in Peel based on concerns related to Mr. Roberts and two other children. This gives me some solace that that agency has an eye on the situation here. Further, Mr. Roberts is in jail and at the moment represents no threat to Connor or anyone. The Applicant has taken steps to obtain a restraining order. Finally, the Applicant understands that her present conduct and her decision-making processes are under the scrutiny of the court while this matter is proceeding through the motion to change process.
Best Interests of the Child
[16] In the past similar allegations have been pleaded and yet on each occasion the parties have agreed that it is best for Connor that he have extensive contact with the Applicant. In other words, they assessed the best interests of Connor and agreed that he needs both mom and dad in those best interests. The status quo established by the parties, twice, has persisted for nearly all of Connor's life. That status quo ought not to be disturbed for long without significant evidence showing that it ought to be changed.
[17] I balance the best interests of Connor to have his relationship with his mother supported, with the bona fide concerns of the Respondent (father), and I conclude that it is best for Connor to revert to the joint custody and access order agreed to between the parties on January 23rd, 2019.
Order
[18] Plainly put, my order today changes the custody and access order back to the way it was before my November 25th, 2020, emergency order.
[19] The parties need some time to receive and implement this decision. It will be effective on December 14th, 2020, such that Connor has his usual access on the following weekend starting Friday December 18th, 2020, and thereafter according to the letter and intent of the January 23rd, 2019 final order. The parties are reminded that the final order made on January 23rd, 2019, contains binding provisions related to shared holiday season access.
[20] As I have noted I find that the Respondent's emergency motion was justified. The matter was reviewed in a timely way. This is not a matter for costs.
[21] The matter has been adjourned for a case conference on February 24th, 2021, at 3 pm by Zoom (briefs are required). Parties are also required to attend triage court that morning by Zoom at 10:30 am to confirm readiness for the conference and to initiate timely settlement discussions. A mediator is available. I suggest that discussions aimed at resolution take place if possible before that date. Duty Counsel may have a limited role in assisting Mr. Galbraith.
[22] I therefore make the following temporary order, not on consent:
The order made without notice dated November 25th, 2020, is vacated effective Monday, December 14th, 2020. The final order dated January 23rd, 2019, is confirmed.
No costs of this motion.
Adjourned to February 24th, 2021, at 3 pm as already ordered.
B.E. Pugsley, J.
Justice B. E. Pugsley