Court File and Parties
Ontario Court of Justice
Between:
J.H. Applicant
— And —
K.S. Respondent
Before: Justice S. E. J. Paull
Motion Heard on: December 17, 2020
Reasons for Judgment released on: December 29, 2020
Counsel:
- James G. Battin, for the applicant(s)
- Emma Brown, for the respondent(s)
PAULL J.:
Background and Parties
1The parties are the parents of one child, E.S. (female) born […], 2018.
2Before the court is an urgent motion brought by J.H., E.S.'s father, seeking interim sole custody where he continues to live with his parents. He proposes that K.S., the child's mother, have alternate weekend access, Wednesday nights, and other access times.
3K.S. seeks an interim joint custody order and a shared residential schedule which would essentially continue the shared arrangement outlined in the interim without prejudice order of Justice Neill dated October 16, 2020.
4J.H. alleges that an order for interim custody is necessary to ensure the safety and well-being of E.S. because of the long-standing concerns with K.S.'s ability to appropriately and safely parent. K.S. states that she continues to meet the needs of E.S. and denies the level of concerns alleged by J.H.
5In addition to the submissions of counsel, I have reviewed the factums and book of authorities, and the affidavits and attachments found at tabs 4-8, 12-19, and tabs 24-26 of the Continuing Record. I have also reviewed the parties' sworn 35.1 affidavits. There are page limits for urgent motions outlined in the current Woodstock OCJ Covid 19 protocol. When this matter was spoken to I expressed some flexibility on these limits in certain circumstances, however, I note that both parties' affidavits and attachments are significantly in excess of that limit. The 16 affidavits and lengthy attachments are well beyond what would be reasonable or otherwise required in the circumstances.
The Law
6This is an urgent motion brought pursuant to Rule 14. Rule 14(14) states that there are no motions before case conference save and except as outlined in Rule 14(4.2), and that is unless the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required. Urgency has been held to include abduction or threat of an abduction, harm or threat of harm, dire financial consequences, extreme situations justifying the court in acting immediately, and issues which are determined or deemed to be crucial, serious, vital or essential.
7If urgency is established, the court must decide what custodial and residential order is in the child's best interests. The test for determining access is also what order is in the best interests of the children. Section 24 of the Children's Law Reform Act requires that any determination with respect to custody and access be made on the basis of the best interests of the children and section 24(2) outlines a number of specific best interests factors.
8No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.
9The court must ascertain the child's best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.
10The best interests of children have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).
11There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).
12In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.
13In Southorn v. Ree, 2019 ONSC 1298, McDermot, J. stated the following at paras 12 and 13:
Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being "exceptional circumstances where immediate action is mandated."
There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child's life. Moreover, evidence at a trial has the benefit of being tested through cross examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.
Background and Evidence
14The parties began cohabiting in or about July 2018 and separated on or about October 15, 2019. E.S. is the only child for each of them.
15J.H. and his mother, V.W. filed several affidavits alleging ongoing and serious concerns regarding the deplorable state of K.S.'s home, and her ability to appropriately supervise and care for E.S. J.H. deposed to witnessing the conditions of the home himself when the parties lived together and at times after they separated.
16J.H. deposes that the lack of care from K.S. has negatively affected E.S.'s health. He deposed that the child spent considerable time at the home of his parents, V.W. and her partner, and that this was a strong stabilizing force in the child's life.
17J.H. deposes to observing the condominium where K.S. lived with Ashley Davis between February 2020 and July 2020, and its frequently deplorable and unsafe condition. Ashley Davis filed an affidavit confirming this and attaching photos outlining the poor condition of the home. It was clear that she, J.H., and V.W., were making frequent referrals to the Oxford CAS about concerns they had for K.S.'s care of E.S., including for bruising observed on the child. Ms. Davis deposed to seeing K.S. routinely leaving E.S. unsupervised, including in the bathtub.
18K.S. disputes the allegations that she is not able to appropriately care for E.S. or that she is not appropriately supervising her. She points out that she tried to keep the home clean, and that when she lived with J.H. he provided no assistance with housekeeping or for care of E.S. J.H. disputes that he was not actively involved, or not otherwise the primary caregiver when E.S. spent a considerable amount of time at his parents' home.
19When the parties separated in October 2019 they entered into a handwritten agreement which included the following:
a. K.S. has primary custody.
b. J.H. has unlimited access.
c. The issue of joint custody would be discussed at a later date.
d. Both parties agreed to "cooperate and communicate in order to avoid the stress and costs of lawyers, court orders, etc."
20V.W. and her partner executed the agreement as the witnesses.
21K.S. deposed that she always appropriately addressed any health issues concerning E.S. and disputes that J.H. is capable of caring for E.S. alone. She feels that it is really V.W. who looks after the child while she is there.
22K.S. moved in with her father on or about July 25, 2020 (in Norfolk County) and has remained there since. Her father deposed an affidavit supporting his daughter's position and raising concerns about J.H.'s ability to parent.
23J.H. states that he was the primary caregiver when E.S. was with his parents. He states he moved in with his parents in May 2020, and that his mother has always been a significant support for himself and K.S. when it came to care for E.S.
24Oxford CAS began working with the family in January 2020 as a result of a referral it received regarding bruises on E.S. CAS of Haldimand Norfolk (CAS of HN) continues to be involved.
25The initial filings on this motion included no direct third-party information from either protection agency or the child's GP, Dr. Holowachuck. The original date for the motion was adjourned to produce direct evidence from these third parties.
26Dr. Holowachuck outlined the following in a report dated July 13, 2020 in response to an inquiry by the Oxford CAS worker:
a. E.S. is a healthy 22 month old girl who had no health concerns at the time.
b. He confirmed that he had last seen E.S. on July 9, 2020 for a routine checkup and immunizations, and that E.S. is up to date on all of her routine immunizations and that his exam on that date was "entirely normal". He did note several small bruises on her shins but felt those were fully in keeping with the child just beginning to walk and run on her own. He also confirmed there were no pending referrals for the child.
c. He concluded the report by stating that K.S. "appears to be doing a wonderful job raising her. Her care and her concern for her daughter seems appropriate."
27Dr. Holowachuck provided a follow-up report dated August 25, 2020 in response to J.H.'s mother, V.W. raising concerns to him about K.S.'s care and provided him with pictures of the state of K.S.'s home, and of bruises on E.S. His written response included the following:
a. That whenever he has observed the child and K.S. in his office he has had no concerns regarding E.S.'s health and her mother's care of her.
b. He reported to the Children's Aid Society that he had no concerns regarding E.S.'s care by K.S., although he now had reason to doubt that because he has known V.W. for many years and found it hard to believe she would mislead anyone. He did concede that he had"no definitive evidence that the child is being mistreated" by her mother.
28The last direct evidence from Dr. Holowachuck comes by way of a consultation note from September 14, 2020 when K.S. brought her in for a runny nose. His note stated the he addressed the issues with K.S. which V.W. brought to his attention and concluded that nothing from his exam or observations that day would suggest that E.S. is not well cared for. His note concluded with"no distress, well behaved, happy child, interacts well with mother."
29The Oxford CAS records were filed which included the lengthy transfer summary to the CAS of HN dated August 10, 2020 following K.S.'s relocation there. The transfer summary included the following information:
a. Oxford CAS became involved in January 2020 because of a referral regarding bruising on the child.
b. Mother was agreeable to working with the Society and both parents agreed to attend the Triple P Parenting program. The matter was moved to ongoing service in February 2020 and K.S. has been cooperative.
c. With respect to the bruises the allegations of physical harm were not verified by the Society. However, a risk was verified on the basis of "caregiver has problem causing risk" because of K.S.'s "flat affect and shows little concern for what happened to her daughter [referring to the bruising]".
d. Oxford CAS noted the paternal grandparents as a positive and protective factor, and that there were many individuals around the child, so she was not isolated.
e. Over the course of service, the Society continued to have concerns for K.S.'s level of supervision, her ability to maintain a clean home, and K.S.'s judgment and ability to make child focused decisions when required. The report noted the referrals from her roommate, Ms. Davis, about E.S. being unsupervised and of K.S.'s unconcerned response to her.
f. The Society also had a concern with the safety of K.S.'s home. It noted there were three unannounced visits over the course of its involvement when the worker observed unhygienic conditions including the smell of the home, numerous bags of garbage open and collections of food in the home, numerous lighters, cigarettes, ashes on the floor, used diapers on the floor, feces on the floor and door of E.S.'s bedroom, and multiple choking hazards. The report stated that K.S. was able to address these concerns when directed by the Society to do so.
g. In spite of these concerns in June 2020 the Society indicated that as a result of the lack of evidence to warrant further intrusion it considered closing the file. When the worker reached out to V.W. regarding the file closing she alleged previously unreported incidents of bruising on E.S.
h. The Society confirmed that Dr. Holowachuck had not reported any concerns for E.S.
i. When K.S. moved to reside with her father the worker was of the view that she had not completed the objective of service of strengthening her parenting skills.
j. The transfer summary concluded that K.S. has not been interested in supports such as her family doctor, the Society's Child and Family Support Program, or the Healthy Babies Healthy Children program.
30Prior to the transfer of the file to CAS of HN, the Oxford CAS worker addressed the referrals with K.S. of not appropriately supervising the child. The case note of the worker makes reference to K.S. frequently leaving the child unsupervised, including in the bathtub.
31It was unclear by the wording of that case note what precisely K.S. was acknowledging and what may have been coming from the referent, however, it was apparent that K.S. did not agree with the concern for her level of supervision as she felt a two-year-old child could safely play in the bathtub on her own for 20 minutes, or be left home for a period of time with the baby monitor if she attended another unit in the housing complex.
32The worker cautioned K.S. on appropriate levels of supervision and noted that K.S. agreed to comply with these directions. The worker concluded that it was her view that K.S. provided E.S. with"the bare minimum of interaction and supervision".
33The file was transferred to CAS of HN in August 2020 and the records from that agency disclosed the following:
a. It was aware of the breadth of the concerns of the Oxford CAS and of J.H. and his family.
b. K.S. ensured that the changes needed to make it appropriate to reside at her father's home with E.S. were addressed. The worker attended on September 17, 2020 at her father's home and a wellness check was performed on E.S. and there were no bruises noted beyond what would be expected from a normal two year old toddler. The worker stated the home was in "excellent order" and noted that the child:
"presented as very happy and very engaging with everybody in the room. The environment was clean and tidy. E.S.'s bedroom had a child's bed and a dresser and toys and it; it was very clean. The living room presented as very clean tidy organized and also had some toys in it. The bathroom was clean and I saw a potty on the floor that's there for E.S.. The kitchen was neat and tidy the counters cleaned floor was clean and there were no concerns with the environment today [sic]."
c. The worker advised that they would continue to do scheduled and unscheduled visits and wellness checks at the home.
Analysis
34Decisions on interim and urgent motions are often on a limited evidentiary record comprised of untested affidavit material. In this case the parties have filed lengthy affidavits outlining many current and historic allegations against the other. Their evidence is essentially diametrically opposed on the central issues of the other's fitness to parent. Without the benefit of viva voce evidence and cross-examination the Court is not in a position to assess the credibility of the affiants and all the allegations. The Court recognizes that on urgent motions decisions need to be made on the evidence available at the time.
35Both parties go to great lengths in their affidavits to depose to their understanding of the CAS's position in this matter and, not surprisingly, each depose that the Society is supportive of their position. This was not particularly helpful.
36However, following the adjournment of the first date scheduled for argument of the motion, direct evidence was provided by way of records and reports from the Oxford and Haldimand Norfolk CAS, and the child's doctor. Their evidence paints a somewhat different picture than the affidavits of either party. For the purposes of this motion and until the parties' evidence can be fully tested at trial I accept the observations of the Society workers and the family doctor as outlined in the independent records filed over those in the affidavits of the parties or their supporters.
37With respect to the Society records it is important to differentiate the direct observations of the worker and the verified protection concerns with the unverified allegations. Unverified referrals repeated over time do not accumulate to establish a concern, only that there were repeated referrals made.
38For the reasons that follow urgency has been established, and the best interests of the child supports an interim joint custody and shared residential arrangement with additional terms pending trial in this matter. In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.
39The parties are young parents with a young child. When they separated in October 2019 after a short relationship they agreed in writing that K.S. would have "primary custody" and that J.H. would have "unlimited access". The paternal grandparents were clearly aware of the agreement having witnessed it for the parents.
40While not a formal separation agreement it is nonetheless a written document between the parties which is presumed to have reflected their view of the best interests of their daughter at the time. It included a term recognizing the importance of communication and cooperation between them.
41Neither party has a criminal record and the CAS was not involved with E.S. until January 2020. However, starting in early 2020 the Oxford CAS became involved and it is apparent that the parties were increasingly at odds, particularly about issues in K.S.'s home and her ability to care for E.S.
42Oxford CAS did not verify the risk of physical harm to the child but did verify a risk on the basis of "caregiver has problem causing risk" because of K.S.'s "flat affect and shows little concern for what happened to her daughter [referring to the bruising]". Oxford CAS began to work voluntarily with the family with the goal of assisting K.S. in strengthening her parenting skills.
43It is clear that the level of hygiene and K.S.'s home remained an issue throughout the involvement of Oxford CAS. The Oxford CAS worker observed an unacceptable level of hygiene in the home on three occasions. While K.S. was cooperative and rectified the issues as directed, it is a concern that she was unable to maintain her home to a minimum level safe for her child over a relatively short period of time.
44Up until the file was transferred to CAS of HN when K.S. moved to that jurisdiction in July 2020, the Oxford CAS continued to have concerns about the cleanliness of the home and K.S.'s ability to make child focused judgments, including maintaining an appropriate level of supervision.
45It is a concern that K.S. did not recognize the level of supervision required for a young child, including leaving her unattended, however she did agree to comply with the directions of the Oxford CAS worker regarding supervision. There appear to have been no verified concerns since that direction of a failure to adequately supervise.
46In spite of the continuing referrals from J.H., V.W., and K.S.'s roommate, and it's noted concerns, Oxford CAS did not commence protection proceedings and was considering closing the file in June 2020 because of the lack of evidence to support more intrusive or continued involvement.
47The file was transferred to the CAS of HN which has continued to work with K.S. since she moved to the jurisdiction in July 2020 to reside with her father. It is clear that agency is aware of all the concerns about K.S. from Oxford CAS and directly from J.H. and his family.
48The most recent information available directly from the CAS of HN records suggests that mother's home is very clean and tidy, and E.S. was happy, with no concerns noted.
49While there were clearly concerns for mother's ability to maintain her home in a safe and hygienic state and with respect to her level of supervision, the most current and independent evidence from CAS of HN suggests that the home is appropriately maintained, and there have been no verified concerns with K.S.'s recent level of supervision of the child.
50CAS of HN confirmed it will continue to work with K.S. and monitor the situation by attending the home on an announced and unannounced basis.
51In spite of the handwritten agreement between the parties in October 2019 the child has maintained significant involvement with J.H. and his parents. While the particular schedule is the subject of conflicting affidavit evidence, it seems clear that the paternal grandparents were a positive and ongoing support, particularly after the daycare was closed in early 2020 because of the pandemic. Starting in July 2020 the child has returned to daycare. The Society viewed the paternal grandparents as a strong support and stabilizing factor in E.S.'s life.
52In spite of the verified concerns and other allegations, E.S.'s doctor has never noted any concerns with E.S. or K.S. and has concluded that K.S. was doing a "wonderful job" and showing appropriate concern for E.S. Even after being told by V.W. of her concerns he reported he had no evidence to suggest that K.S. had mistreated the child.
53Dr. Holowachuck concluded following the most recent medical examination of the child on September 14, 2020 that there was nothing to suggest that E.S. was not well cared for by K.S. and that E.S. presented to him as happy, well behaved, and interacting well with K.S.
54J.H. and his mother respond to the evidence of Dr. Holowachuck that it was V.W. who was addressing the medical issues because E.S. spent so much time there and this is why Dr. Holowachuck noted no concerns with E.S. or K.S. However, the medical reports would be equally consistent with K.S.'s position that J.H. and V.W.'s concerns are exaggerated and that she was attending to E.S.'s medical needs appropriately. It appears from the medical records that K.S. was the one to take E.S. to her medical appointments.
55A trial where each party's allegations can be fully tested is required before the court can be in a position to resolve the parties conflicting versions of events on these issues. What the court has before it on this motion is independent records from the child's doctor noting no concerns with E.S. or K.S., even after the doctor became aware of V.W.'s concerns. On this basis J.H. has not established that K.S. was not addressing E.S.'s medical needs. Further, J.H. has not established physical harm in the form of bruises to E.S. caused by K.S. Neither the doctor nor the CAS verified this concern.
56However, in spite of the conflicting versions outlined in the parties' affidavits, there are sufficient verified concerns and information directly from the Oxford CAS about K.S. to establish urgency and the need for the court to impose an order.
57The evidence directly from Oxford CAS is compelling that K.S. was unable to consistently maintain her home in hygienic fashion, and that there were concerns with her ability to maintain an appropriate level of supervision until being directed by the worker to do so. These concerns were compounded by K.S.'s resistance to following through with supports and programming recommended by the Oxford CAS.
58These concerns, however, must be balanced against the independent evidence of the doctor and the protection agencies. Dr. Holowachuck has noted no concerns and neither of the protection agencies involved have initiated court proceedings. While Oxford CAS verified certain concerns, it was considering closing its file in June 2020 because of a lack of evidence to support further involvement. CAS of HN continues to monitor the situation and the worker has no current concerns with K.S.'s home environment which was recently described as being in excellent order. The records from the CAS of HN also disclose no recent concerns with K.S.'s level of supervision of the child.
59In spite of the arrangement in the handwritten agreement from October 2019 the child has maintained significant involvement with J.H. and his parents. Since May 2020 J.H. has lived with his parents and proposes to remain there. I agree with the conclusion of the Oxford CAS that the paternal grandparents are a significant stabilizing factor in this matter. K.S.'s father also appears to be a significant stabilizing factor for her as well.
60It is a long standing legal principle that absent compelling evidence that an immediate change is required, the status quo is ordinarily to be maintained until trial. In other words, in making an interim custody order, a court should generally maintain the status quo in the absence of important or compelling reasons suggesting that change is necessary in the child's best interests.
61Through the lens of the child's best interest the court must determine what temporary living arrangements are the least disruptive, most supportive and most protective for the child. If appropriate, the status quo of the child, that is the living arrangements with which the child is most familiar, should be maintained as closely as possible.
62K.S. clearly needs support, and now that she is residing with her father the most recent independent evidence is positive. J.H. is also residing with his parents who continue to be a significant support. The Oxford CAS records state that both parents agreed to participate in the Triple P Parenting Program and neither appear to have done so. It is appropriate for both parents to complete the Triple P Parenting Program, and for K.S. to engage in additional supports recommended by the CAS of HN to strengthen her parenting ability. She shall also be required to provide confirmation that she has done so.
63It was submitted on J.H.'s behalf that even though K.S. may appear more stable now than earlier in 2020, given her history the gains are likely only temporary and E.S.'s best interests in the longer-term are supported with her placed in her father's primary care.
64This is not a trial but an urgent motion for interim relief. While the best interests of children are always paramount, interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide "a reasonably acceptable solution to a difficult problem until trial". Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.)
65The independent evidence supports the conclusion that there are significant concerns with K.S. but that she has stabilized since moving in with her father. When all the circumstances are considered these concerns support close monitoring and additional supports being put in place but do not go so far as necessitating an immediate and wholesale change in the custody and residency arrangements pending trial where the parties' conflicting versions of events can be properly tested.
66At this time E.S.'s best interests would be served by continuing to spend a significant amount of time in both parents' homes. To ensure that the residency transitions are smooth and uneventful, it is appropriate that there be a structured shared residential arrangement, and an interim joint custody order to ensure that both parents have input and involvement in important decisions regarding E.S.'s health and welfare. It is also appropriate pending further order of the court that both parties exercise their periods of care and control of E.S. at their parents' homes where they currently reside.
67On the basis of all these considerations an interim order shall issue as follows:
Order
1. Joint custody of the child.
2. Unless otherwise agreed in writing the child shall be in the shared care of both parents as outlined in paragraphs 1 (a-d) and 2 of the order of Justice Neill of October 16, 2020.
3. Until further order of the court, J.H. shall exercise his periods of care and control of the child in the home of his parents, and K.S. shall exercise her periods of care and control of the child in the home of her father.
4. K.S. shall provide these Reasons for Judgment to the CAS of HN by January 15, 2021, and K.S. shall file an affidavit of service confirming she has done so. The affidavit of service shall also be provided to J.H.
5. K.S. shall forthwith enroll and engage in the Healthy Babies Healthy Children Program or another suitable program as recommended by the CAS of HN. She shall provide independent confirmation she has done so by January 15, 2021.
6. Both parties to forthwith make arrangements to enroll and complete the Triple P Parenting Program and provide written confirmation to the other by January 15, 2021.
7. K.S. to provide written confirmation by January 22, 2021 from the CAS of HN outlining its current recommendations for any additional parenting support programming for her, and she shall forthwith engage in that programming.
8. In advance of the settlement conference K.S. shall request and provide a written report from the CAS of HN updating its involvement with her and the child including her engagement in programming.
The parties are strongly encouraged to agree on the issue of costs in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments not to exceed six pages by January 15, 2021, with the responding party filing written submissions, not to exceed three pages, excluding attachments not to exceed six pages by January 29, 2021. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.
Released: December 29, 2020
Signed: "Justice S. E. J. Paull"