ONTARIO COURT OF JUSTICE DATE: 2023 09 22 COURT FILE No.: Toronto File No. DFO-22-333
BETWEEN:
A.L. Applicant mother
— AND —
C.M. Respondent father
Before: Justice M.B. Pawagi
Heard on: September 13, 2023 Reasons for Judgment released on: September 22, 2023
Counsel: Ed Rice.................................................................. counsel for the applicant mother Robyn Switzer ..................................................... counsel for the respondent father Madeleine Sarick................................................................. counsel for the children
PAWAGI J.:
1: Nature of the Case
[1] The question before this court is whether the primary residence of two boys (ages 8 and 10), who have been residing with their mother since the parties separated six years ago, should be changed on a temporary basis to their father.
[2] The father brought the within motion seeking the change after counsel for the children told him on August 28, 2023, following her interviews with the children, that she and her clinician had serious concerns about the children returning to their mother’s care and they would be reporting their concerns to the Children’s Aid Society of Toronto. They suggested he consider taking the children home with him that same day, instead of returning them to their mother as per the court order, and then wait to hear from the society. He did so, and then sought leave to bring the within motion as he did not want to keep the children in his care contrary to the court order.
[3] The father’s position is that the disclosures by the children to their counsel constitute compelling circumstances that would justify changing primary residence on a temporary basis; namely, that their mother yells and swears at them a lot saying things like “you’re a stupid little fucking child” and makes them stand in the corner as punishment for 30 minutes or more for things as minor as spilling a cup of water. This makes them upset and fearful. They did not disclose physical harm.
[4] Counsel for the children supports the father’s motion. The mother opposes it and seeks the immediate return of the children to her primary care.
[5] The father, in his notice of motion, was also seeking an order that the mother only have supervised virtual parenting time. However, he has since permitted mother to have in person parenting time with the children two evenings per week and all day Saturday. And, after hearing from counsel for the children that the children wish to have overnight parenting time, he further agreed that they have a weekend with their mother from Friday pick up from school to Monday morning drop off at school, with the mother’s partner present.
2: Background
[6] The parties were married in 2010 and separated in 2017 when the children were 2 and 4 years old.
[7] The children have resided in the primary care of their mother since the separation in 2017. The father’s parenting time, according to the mother, was alternate weekends; and according to the father was 3 weekends out of 4.
[8] The parties signed a separation agreement on February 2, 2022, which provided for the following: a. Shared decision making; b. Primary residence to the mother; c. Parenting time to the father on alternate weekends during the school year, and for half of the school holidays.
[9] One year later, the mother brought an Application seeking, among other things, permission to relocate with the children to Ryerson Township, about 3 hours north of Toronto.
[10] Prior to the first court appearance, the mother unilaterally relocated with the children, and the father brought an urgent motion seeking their immediate return.
[11] On April 21, 2023, I heard the motion. The mother argued that the father was breaching his release conditions by coming within 10 m of her residence (he faces charges of sexually assaulting the mother over a period of several years) and she was fearful of him. I made an order directing that she return the children to Toronto and that the father have parenting time on alternate weekends from Friday to Monday. The following is an excerpt from my ruling:
I find there are no compelling circumstances that dictate that the move ought to be allowed on a temporary basis. She [the mother] cites one alleged breach on March 26 (coming within 10 m during an exchange and looking in her window), that the police did not lay charges for. I place no weight on her allegation he [the father] told the children he would see them on the street as I cannot find on a balance of probability that this constituted a threat in any way.
I agree with Justice O’Connell’s analysis in McLaughlin v. Yousef that the courts should be cautious about sanctioning such self help conduct as [the mother] has exhibited here in the face of a separation agreement that provides for shared decision making, a status quo of the children only ever residing in Toronto and attending Norway Public School, and her own acknowledgment that the alternate weekend parenting time ought to continue.
An order shall issue to maintain what had been the status quo with one change, that the exchanges shall be at the school to avoid conflict between the parties and the possiblity of further allegations being made.
[12] Also on April 21, 2023, I requested the involvement of the Office of the Children’s Lawyer. Subsequently, counsel for the children was appointed with a clinical assist and the matter was adjourned on consent to a date in October (which was pre-empted by the within motion).
[13] Counsel for the children and the clinician met with the two children three times: On August 3, 2023, at counsel’s office, with the mother bringing them; on August 28, 2023, at counsel’s office with the father bringing them; and on September 8, 2023, by zoom while the children were in their father’s home.
[14] Immediately following the second interview, counsel for the children and the clinician told the father that they had serious concerns about the children returning to their mother’s care and they would be contacting the society. The father deposes in his affidavit sworn August 28, 2023, that “They indicated they could not give me legal advice, however, they suggested that I consider taking the children home with me and waiting for instructions from the Children’s Aid Society.” And father did so.
[15] Counsel for the children sent an email to the parents and their lawyers advising “Victoria and I met with the children today at my office. Based on our conversations with the children, we have contacted Children’s Aid. As a result, [the father] has taken the children with him today, instead of returning them to [the mother].”
[16] Counsel for the children also sent an email to just the parents’ lawyers adding, “Without breaching privilege, I can share that the children expressed that they were afraid of their mother, in particular how she speaks with them and the way in which she punishes them. Neither child shared any information about physical violence. Victoria observed that the children were relieved when they were told they would be staying with their father.”
[17] The disclosure provided by the children, as contained in the affidavit of the clinician sworn September 5, 2023, is set out in detail below.
[18] I note that the clinician in her affidavit (which was sworn one week after the father’s affidavit) does not dispute the father’s evidence that she and counsel for the children “suggested” that he consider taking the children home with him.
3: Analysis and the Law
[19] The case law is clear that there must be a compelling reason for the court to vary a status quo on a temporary basis.
[20] As Mitrow, J. set out in Miranda v. Miranda, 2013 ONSC 4704 at para 26:
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo.
[21] While Miranda v. Miranda, and the supporting caselaw it cites for this test, is over 10 years old, counsel for the mother provided a 2023 decision which also notes that “The court does not usually change a status quo on motions for temporary parenting orders unless there are compelling circumstances”: Tomkinson v. Baszak, 2023 ONSC 4092 at para. 22.
[22] While counsel for the father submits there are compelling reasons to vary here, she argues that compelling reasons are not always required. She relies on an earlier decision of Mitrow J., Bos v. Bos, 2012 ONSC 3425, in which the judge held that it is not always necessary for a court to find “exceptional circumstances” on an interim motion when considering evidence in an assessment. Counsel for the father submits that the within clinician’s affidavit is analogous to an assessment.
[23] Even if I accept her analogy, I find this case is not applicable as Mitrow J. in Bos v. Bos was considering making an order which was “not a substantive departure” from the status quo, but rather a “reorganization” of an access schedule, and one made in consideration of the views of a child who was turning 15. Here the children are much younger, 8 and 10 years old, and the order sought is a substantive departure from the status quo: changing the primary residence of the children from the mother to the father.
[24] The evidence of the compelling circumstances relied upon by counsel for the father and counsel for the children are solely the disclosures made by the children to their counsel.
[25] The following are excerpts from the clinician’s affidavit setting out those disclosures.
August 3, 2023 interview
[26] Statements from the 10-year-old child: a. He explained that he was aware that his parents could not agree on where he and his brother should live or how much time they should spend with each parent. b. He expressed that he wants to spend more time with his father, but is concerned because when he says that, it upsets his mother.
[27] Statements from the 8-year-old child: a. He described a close relationship with each parent, and that he felt caught in the middle between both parents. He also shared that both parents told him what to say about the situation. b. He described that he is happy and comfortable at both parents’ homes. He described both parents as yelling if they get angry. He shared that his mother has said that she wishes his father were not in their lives, but that he is happy his father is in his life.
August 28, 2023 interview
[28] Statements from the 10-year-old child: a. He is concerned that if he says what he wants, that his mother will be furious with him and may not want to see him. Even if is he living with his father, he wants to continue seeing his mother. b. He reported that his mother scares them [him and his brother] by screaming loudly and doing “things that parents are never supposed to do.” He explained that his mother swears at them and says, “F- you.” c. He says that at least once a week, she swears and makes him and his brother stand in the corner. d. He described that his mother gets very close to his ear when he’s in the corner and she yells and swears at him. He is afraid of her during these times and said that the longest time he has had to stay in the corner was around forty-five minutes. When asked why his mother becomes angry, he reported that spilling a cup of water would be enough to make her mad. e. His mother said in his ear “you’re a stupid little fucking child” while he is standing facing the wall. f. He has not shared this information with anyone, as he is fearful of his mother’s retribution. g. He reported that he has always lied to the Children’s Aid Society worker in the past. He said that his mother told him to lie about his father. He said that his mother has been treating him in this manner since he was four years old. He has not told his counselor as he believed she would report back to his mother. He does not feel safe in his mother’s care.
[29] Statements from the 8-year-old child: a. When asked how things had been with his mother, he responded that she has been swearing and yelling a lot lately. She says “fuck you” to him and his brother. b. He described his mother forcing him to stand in a corner with his face against the wall whenever he has an accident like spilling water or dropping food on his clothes. He reported that this makes him feel very upset. He reported that she gets angry and swears at him every day and she has him stand against the wall approximately every other day for up to thirty minutes. She threatened to send his brother to an orphanage which he reported really upset him. c. He has told his father about his mother’s behaviour. He reported that his mother does not physically harm him or his brother, though she has spanked him in the past. d. He said he wants to stay in Toronto. If his mother moves up north, he would like to live with his father and see his mother every weekend or every other weekend. He has told his father this but is afraid to tell his mother. He expressed fear that his mother would go “crazy” if she knew he was saying this. He was afraid of her swearing at him, spanking him and that she would make them stay in their rooms for the rest of the week. He reported that she had sent them to their rooms for a week in the past.
September 8, 2023 interview
[30] Statements from the 10-year-old child: a. He reported he has seen his mother twice since he has been with his father. Her partner was present. He described her as being more peaceful. b. He shared that his mother had asked him if they wanted to come home and he told her he did but he admitted to child’s counsel and the clinician that he had lied to his mother because he was scared. c. He would like to see his mother on Sundays and sleep over that night and go to school from his mother’s on Monday morning, but otherwise remain with his father.
[31] Statements from the 8-year-old child: a. He reported that he and his brother have seen their mother and she was fine. She was sad that they did not come home. He reported that he tries to give her good answers when she asks questions so that she won’t get angry. b. He is still fine to live at his father’s house and wants to visit his mother and have sleepovers. He would like the reverse schedule that they had before.
[32] Counsel for the mother submits that the court should not consider the above disclosure in isolation, but rather in the context of the case to date. He points out that the mother has made serious allegations of domestic violence against the father, including allegations of multiple sexual assaults, for which he has been criminally charged; and that there is also a history of the children making allegations against the father: a. On August 16, 2022, a society worker interviewed the children after the mother called to report that they had been injured during a visit with their father. The mother reported that it was part of a “game” but worried that the father was intoxicated at the time. During the interview, the younger children told the worker his father grabbed him by his legs and flipped him into the air; he fell on his brother and once on the bed frame; he had some bruises. The older child said his father grabbed him by his legs and threw him on his bed; he hit the floor; and he has a bump on his head. He said his father was not drinking at the time, but that he had been drinking before. He said there are good visits and bad visits. During good visits his father is nice to them. During bad visits his father yells at them. The children told the worker that sometimes their father starts yelling at them for no reason.
[33] No evidence was provided about the outcome of the above interview which took place a year ago, nor about the outcome of the more recent investigation by the society (which does not appear to be completed).
[34] I find that the disclosures from the children to their counsel do not amount to “compelling” circumstances that would justify removing them from the primary care of their mother for the following reasons: a. The concerning disclosures about their mother are from a single interview. Since that interview they have had visits several times a week with their mother, including recent overnights. Their wishes are not to stop seeing their mother but rather to reverse the schedule and go from living with their mother and seeing their father on alternate weekends, to living with their father and seeing their mother on alternate weekends; b. The concerns raised by the children can be addressed by adding protective terms to the current order; c. Given that the children have had visits with their mother following the disclosure where no concerns were raised, I cannot conclude that the children would be in “danger” if the status quo were resumed; d. There have been serious allegations made about both parents in this case that need to be fully canvassed at a trial; e. It would be important to have the input of the society which has a lengthy involvement with this family; f. The next step in this case is a settlement conference and trial management conference with the trial anticipated in the trial sittings of February 12 to 21, 2024. It would not be in the best interests of the children to reverse a status quo that has been in place for six years only to have it potentially reverse again after a trial, which could take place within 5 months.
4: Order
[35] Order to go dismissing the father’s motion.
[36] Temporary order to go as follows: a. The children shall resume their primary residence with their mother effective immediately. b. The children shall resume their alternate weekend parenting time with their father effective Friday September 29, 2023. c. Neither party shall discuss the court proceeding with the children. d. Neither parent shall speak negatively about the other in the presence or hearing of the children. e. The mother shall not use excessive discipline or profane language on the children.
Released: September 22, 2023
Justice M.B. Pawagi
