Hillyer v. Pulver, 2021 ONCJ 317
DATE: June 3, 2021 Court File Number: 75-2020
ONTARIO COURT OF JUSTICE at Orangeville
BETWEEN:
Nicole Hillyer Applicant
and
Domenic Pulver Respondent
Justice: B. E. Pugsley
Heard: June 2nd, 2021 Released: June 3rd, 2021
Appearances:
Applicant and Ms. J. Bradley Respondent and Mr. I. Kilgour
Endorsement
1The parties are the parents of a toddler, M. (M)(DOB: […], 2020). They cohabited for a relatively brief period and separated three months before their son’s birth.
2The Respondent father moves for a temporary order for parenting time and decision making. The Applicant brings a cross-motion for the same relief. She also seeks that any contact between the child and the Respondent (a) be supervised and (b) not include the Respondent’s fiancé.
3The parties have diametrically opposed affidavits which do little to engage the issues each has placed before this court for decision.
4The Respondent submits that the Applicant has mental health issues, was violent on one occasion towards him, used a cocktail of drugs while pregnant and since, and has demonstrated no basis to restrict his contact with their child. He states that the Applicant’s judgment is suspect and that she acts immorally online. She has had many residences and at one time resided in a woman’s shelter in Orangeville. He seeks week about residency and is prepared for a short ramp up period before moving to that regime. He and his partner plan to have a house in the area as soon as possible.
5The Applicant submits that the child needs to be protected from the Respondent by outside supervision and that in particular the Respondent’s fiancé, Ms. Whipp, have absolutely no contact with the child.
6The Respondent’s evidence is essentially presented as a series of statements, often without evidentiary attribution of the behaviour of the Applicant before and after separation. He stated in submission that he could have attached excerpts from the online persona of the Applicant that would show her behaviour but did not do so out of a sense of propriety.
7It is unclear why the Respondent chose not to bring the complained of behaviour to anyone’s official attention before being faced with the Application brought ten months after separation.
8The Respondent himself could have taken steps to assert a claim for residency but did not do so. Instead he refused to return the child (then five months old) after an access visit arranged between the parties. He retained care of the child until the Applicant exercised the same self help two months later.
9As observed in submission by Respondent’s counsel, the Applicant does not address the lengthy series of allegations set out in the Respondent’s Answer and affidavit. Rather she bypasses the allegations completely and hangs her hat on a claim that she has the support of the local CAS. She states that the CAS has unidentified “concerns” about the Respondent, and about Ms. Whipp, and counsel submitted expressly during the motion that “if the Respondent and in particular, Ms. Whipp, have unsupervised contact with the child the CAS will commence a Child Youth and Family Services Act, 2017 proceeding immediately”.
10In passing, I consider it poor form to submit to a judge that they have no choice but to decide a case presented to them for adjudication in the manner described by one of the parties “or else”.
11The Applicant attaches what appear to be parts of a series of text messages and emails directed at her by a Dufferin Child and Family Services case worker which she characterizes as supportive of her theory.
12I have on more than one occasion been critical of the local agency knowingly or otherwise allowing themselves to be made a catspaw by one or the other party to a domestic family law proceeding. Those parties seek to use the agency as an ally to advance their position – albeit usually not as baldly as the Applicant here. It is unclear whether the CAS was aware that the private communications of the Applicant with their worker would be used in this forum.
13To be clear, agencies such as the local CAS have an essential role to play in the welfare of children and young adults in this province that is defined by legislation. This role engages child welfare options and counselling and supportive children’s mental health options, among other tasks. If there are child protection concerns apparent the agency must by law take steps to try to address those concerns including in a formal way if necessary. This may include in extremely serious cases by removing children to a place of safety with or without a warrant.
14It is not one of the legislative roles of a child welfare agency to act behind the scenes to manipulate or steer a domestic action currently before the courts in one direction or another although that route may seem to be easy and cost effective.
15As I noted earlier in these reasons neither party really responded to the material of the other.
16The Respondent states that the Applicant is a bad mother and that he could have provided added evidence to show that but didn’t. The Applicant states that her ally, the CAS, is so “concerned” about the Respondent and his partner that the Respondent’s parenting time should be broadly restricted. No “concern” is identified or stated by her or in the excerpted CAS communications.
17As is often the case in such matters the best evidence before the court here is a blending of the evidence stated on the complete record and the actions of the parties before engaging the court process – that is, the decisions and judgments that they agreed to overtly or by implication before they knew that they were coming to do battle here
18Broadly stated up until August of 2020 the parties between them had informally evolved a sharing of the child’s care between them. Not surprisingly given that he was an infant, the child was mostly in the Applicant’s care and saw the Respondent regularly. That was the status quo leading up to mid-summer.
19In August during a visit the Respondent noticed what he took to be medical problems with his son – issues with his genital area. He took him to the Hospital for Sick Children (“HSC”) in Toronto. The child was seen in the emergency department there. The attending doctor informed the Simcoe County CAS about the visit since at the time the Applicant was the caregiver and at that time resided in Wasaga Beach in the County of Simcoe.
20The Simcoe CAS investigated.
21The Respondent stated that the Simcoe CAS allowed the child to be taken home by the Applicant.
22The Applicant makes no mention of this medical issue in her material although it would seem to be a significant episode in the short life of her son. She never mentions the Simcoe CAS having any role to play at all, although the Dufferin CAS worker referenced in a later email to the HSC that a different agency had taken on a role when the HSC involvement occurred.
23Soon after the Respondent kept the child after a visit and the Applicant did not have regular parenting time with her infant child for about two months.
24On a visit with the child the Applicant then refused to return him to the care of the Respondent. She then soon after commenced this proceeding.
25From these facts some conclusions can be reached that bear on the resolution of these motions.
26First, the Applicant was the initial caregiver to the child.
27Second, despite his litany of complaints about the history and morality of the Applicant, the Respondent was content with this arrangement.
28Third, the Respondent had increasingly regular and lengthy parenting time with the child.
29Forth, the Applicant despite her own concerns, was content with this arrangement.
30Fifth, in the summer of 2020 the child was seen at the HSC. Simcoe CAS investigated. That agency was content that the Applicant care for the child.
31Sixth, the Respondent decided that his infant son ought to be unilaterally taken away from the Applicant’s care.
32Seventh, the Applicant took no legal steps to contest that situation.
33Eighth, the Applicant then exercised her own form of self help and kept the child after a pre-arranged parenting time episode.
34Ninth, the Applicant states that she is involved with the Dufferin CAS. That is, I presume that she moved to this County and because the child was living with her, she came within the geographical ambit of that agency. As noted, she does not clarify that the CAS (first in Simcoe and then in Dufferin) became involved because of concerns at the HSC about potential medical issues with the child while in her care.
35Tenth, the Dufferin CAS has “concerns” about the Respondent and his fiancé. No one states what those concerns are. As the Respondent submitted, it is hard to rebut concerns that are not stated.
36Eleventh, I am unsure whether I have the entire CAS view here in the excerpts filed by the Applicant, nor whether the statements made to the Applicant were made in context, nor whether they were ever intended to form part of this partisan proceeding.
37As noted, the best evidence of how the parties believe they should share raising their son is contained in their deeds and actions made a time when they did not contemplate any court proceeding. Those deeds and actions show a mutual intention to share parenting time between them. Nothing suggests actions to exclude the other from the child’s life until their immature tit for tat self help behaviour.
38There is no evidence to suggest that the child is unsafe in the care of the Respondent.
39There is no evidence here that bears on why the Respondent’s partner should be excluded from their mutual residence during the Respondent’s parenting time.
40There is no evidence that the child is unsafe in the care of the Applicant.
41The Respondent suggests that the Applicant was drug addled, mentally unhealthy and morally bankrupt and that her behaviour places the child at risk. These suggestions are belied by his inaction and by the investigation of two child welfare agencies.
42In other words, the only clear evidence before me relating to the parenting ability of the Applicant is that two successive child welfare agencies looked at those abilities and determined that there is no risk to the child in the care of the Applicant mother. That engaged their legislative duty and their inaction also tells a tale here.
43This conclusion parallels what the actions of the parties themselves suggest for the time between his birth and the summer of last year. They were content to both share a role in his life.
44I am less than impressed by the recent maturity of either party here on this record. I am concerned that if not changed this does not bode well for the future of their child.
45They have a child now and need to step up to provide their son with the best future they can. Their past free life of partying and freedom will necessarily have to change. Their actions give the impression that they have to date played out a dispute between themselves without regard for the needs and health of the child that they created together. They will need to re assess the role that each can contribute to raising their child together but separately. They will need to explore the value that each brings to their child’s future.
46I propose to reset the arrangement between the parties to the benefit of this little boy.
47On this record there is no reason why parenting time can’t be shared between the parties the way it was before the Respondent’s unilateral removal of his infant son from the Applicant last summer. Their son is still very young and needs a home base with his mother at this time. This is particularly so given the recent disjointed visiting schedule. I trust that the parties will focus on what is best for their son – having an engaged mom and dad. It may be that resources available though the counseling side of Dufferin CAS will be of help.
48It is of no moment to me what an agency may or may not do in response to an order I make today. If there are child protection concerns, then they will of necessity be required to act to protect the child. So be it. My job is to decide based upon the record before me.
49Neither party referenced the issue of costs nor any offers to settle. I was told at the start of the motion that their respective positions were incapable to being bridged without my help. As noted earlier, neither party was responsive to the material of the other – there were truly two separate and parallel submissions taking place with no real reference to the other. I will not endorse that process with any costs order.
50The parties raised other areas in their respective motions but did not reference them during submissions at all. Given the future template of this order the parties should be able to work on such other issues given their very experienced and highly skilled counsel. This order is without prejudice to the parties addressing those other collateral issues by further interim motion if desired.
51I therefore make the following temporary order (not on consent):
Order
The child of the parties, M. (M)(DOB: […], 2020), shall reside primarily in the care of the Applicant (mother).
The Respondent (father) shall have parenting time with the said child as follows: (a) Commencing on Saturday June 12th, 2021, each Saturday from 9 am until 6 pm; (b) Commencing on Saturday July 10th, 2021, each Saturday at 9 am until the following Sunday at 6 pm; (c) Commencing on Friday August 13th, each Friday at 6 pm until the following Sunday at 6 pm; and, (d) Such further and other times and days as may be agreed to between the parties through counsel.
Paragraph 2, above, may be amended between the parties by written agreement made thorough counsel.
Unless otherwise agreed the exchange of the child shall take place at the McDonalds’ restaurant on Broadway east in Orangeville.
The child’s residence shall not be changed outside of the County of Dufferin or Region of Peel without the consent of the parties or further court order.
The Applicant shall have the decision-making authority with regard to the said child. Decisions made by the Applicant shall be conveyed to the Respondent in a timely way through (a) email to the Respondent in emergency situations and (b) via counsel in non-emergency situations.
The parties shall each create a Gmail email address to be used by them only for the purpose of communication regarding the child. The said email address shall be forthwith sent to the other party through counsel.
Neither of the parties shall put down or otherwise criticize the other party to or in the presence of the child, nor permit anyone else to do so.
Neither party shall consume any drugs prohibited by law while the child is in that party’s care.
Neither party shall drink alcohol to excess while the child is in that party’s care.
OPP, Peel Regional Police and all other peace officers are directed and required to enforce this order.
There shall be no order of costs on the motion and cross motion argued on June 2nd, 2021.
Adjourned to June 30th, 2021 at 10 am to be spoken to as previously endorsed.
Justice B. E. Pugsley OCJ at Orangeville