Bloom v Bloom, 2017 ONSC 1568

Court File and Parties

COURT FILE NO.: FC-16-2654-0 DATE: 2017/03/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anna Bloom, Applicant AND Robert Bloom, Respondent

BEFORE: Justice Doyle

COUNSEL: Michael Rappaport, Counsel for the Applicant John E. Summers, Counsel for the Respondent

HEARD: March 3, 2017

Endorsement

[1] On March 3, 2017, the Court granted the following interim order with written reasons to follow:

i) On consent, the Respondent father will have exclusive possession of the matrimonial home located at 13 Mersey Drive, Ottawa, ON.

ii) Pursuant to s. 30 of the Children’s Law Reform Act, the Court appoints Dr. Sharon Francis Harrison to complete an assessment to assess and report to the court on the needs of the children and the ability and willingness of the parties or any of them to satisfy the needs of the children.

iii) The father will pay for the assessment and he will have a right to request a reimbursement from the Applicant mother.

iv) Pending the June motion, the children will live equally with both parents on a week on week basis.

v) The Applicant mother will return the children to the matrimonial home on Saturday March 4, 2017 at Noon.

vi) The mother’s parenting time with the children will commence after school on Friday March 10, 2017 and the father’s alternate week access will resume on Friday March 17, 2017 after school (since it is March Break, it will commence at 4:00 p.m.).

vii) On a without prejudice and temporary basis, commencing March 15, 2017, the father will pay child support to the mother the amount of $1,000 per month.

viii) The issues of retroactive and ongoing child and spousal support are adjourned to the June motion.

ix) The parties are entitled to equally access their joint accounts.

x) The police force in the relevant jurisdiction is requested to assist in enforcing the terms of this order using reasonable force, as they deem necessary.

xi) I will case manage this matter. Given that I am not available on June 13, 2017, the parties will arrange another mutually convenient date for the motion through the Trial Coordinator’s Office.

xii) Costs reserved to the motions’ Judge.

[2] The reasons are set out below.

Background

[3] The parties were married on June 27, 1998. They have 2 children, Aiddan born November 18, 1998 and Ethan born February 4, 2008.

[4] The parties dispute the date of separation. The father states it is in 2007 when he moved out of the master bedroom. He states that the second child was born via artificial insemination and was conceived to provide Aiddan with a sibling.

[5] The mother indicates that the date of separation is September 11, 2016.

[6] The parties were living under the same roof until February 24, 2017 when the mother unilaterally, without the father’s consent or knowledge, removed the children from the matrimonial home and went to a shelter.

[7] At the February 24, 2017 case conference, Justice Engelking refused to grant the mother’s request for a motion dealing with parenting on an urgent basis and set a motion date for June 13, 2017. The mother left the case conference before its completion.

[8] After the case conference, the father discovered that the mother, who is alleging abuse, had taken the children to a shelter. He had not seen his children since the morning of February 24, 2017.

[9] On March 1, 2017, Justice Engelking granted the father’s request for a motion to be heard on an urgent basis and set a date for March 3, 2017. She also ordered that the children be returned to their old school as the mother had registered them in a new school.

[10] It is alleged that the mother suffers from depression and that the father is abusive.

[11] A letter dated March 2, 2017 from the Children’s Aid Society (CAS) indicates that the CAS has no protection concerns but they are worried that the children are being exposed to conflict between the parents.

[12] Pending the return of the motion in June 2017, the Court must decide the following issues:

i) Where should the children live? ii) What support is payable? iii) Should the Court request the involvement of the Office of the Children’s Lawyer’s Office or order an assessment?

Preliminary Evidentiary Issues

[13] At the outset of the motion, the father requested that Exhibit C and Exhibit E to the mother’s affidavit dated February 28, 2017 be struck from the Court record on the basis that they offend hearsay rules and are not sworn. The Court granted this request.

[14] The Court found that Exhibit C, an unsigned letter from a counsellor, did not comply with Rule 14(19) of the Family Law Rules. As stated in Katz v. Katz, 2014 ONCA 606, at para. 63:

Before making an order the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents.

[15] The Court also struck Exhibit E from the record, a 6-page summary of the Applicant’s version of the relationship’s history. It is hearsay, not subject to cross-examination and prejudicial to the father.

[16] The Court agrees with Justice Vogelsang’s comments in LiSanti v. Lisanti, at para. 6:

The fact that the statements made may possess some superficial relevance does not, in my view, transform inadmissible evidence into an acceptable form. If the Respondent wishes to describe events during her marriage or happenings which were said by somebody else to have occurred during an access visit, then she must state them herself in an affidavit, if they are to be considered. The production of these statements in their present form is improper, greatly prejudicial and scandalous. It cannot be salvaged by resort to a plea concerning urgency or the demands of time.

[17] As stated by Justice McDermid in Kapitanchuk v. Kapitanchuk, unsworn statements cannot be cross-examined as they are not really under oath and are prejudicial.

[18] The mother objects to references to settlement discussions in mediation and at the case conference included in the father’s affidavit.

[19] The Court finds that mediation discussions and settlement discussions of the parties should be struck from the record. The Court intends to guard against the disclosure of the parties’ confidential discussions when they are attempting to settle the matter. To not protect this confidentiality would detrimentally affect the justice system. Parties should feel confident that when they engage in settlement discussions, their views, possible compromises, concessions or offers will not be disclosed in future proceedings. Otherwise, productive and meaningful negotiations in those settings will not occur.

[20] Therefore, paragraphs 7, 8, 10, 13 and 14 and 24 of the father’s affidavit dated February 27, 2017 are struck from the record.

[21] The father withdrew his request that the Court hear the audio discussions between the parties. These records were made without the mother’s consent. He reserves his right to request the hearing of these audio records at a later date.

[22] The mother objects to the exhibits, which include texts between Aidan and his friend Eli. They are not complete and surreptitiously obtained.

[23] The Court granted this request as the Court questioned the authenticity of these texts and their completeness. Since there was not a complete record of these texts, the Court did not deal with their admissibility even though surreptitiously obtained.

[24] Therefore the texts found at the father’s affidavit dated February 27, 2017 Exhibit B and the father’s affidavit of February 28, 2017 Exhibit A are removed from the record as well as Exhibit D of the mother’s Affidavit dated February 28, 2017.

Where should the children live?

Father’s position

[25] The mother consents to the father having exclusive possession of the matrimonial home. She will live with her mother until support has been established and then she will find alternative accommodation.

[26] The father is requesting the children half time on a week on/week off basis.

[27] The mother took unilateral action by upsetting the status quo, took the children to a shelter falsely alleging abuse, withdrew the children from their school and prevented him from contacting them.

[28] The parties should respect the Family Court process and the Court should not condone parties’ unilateral actions. She did not have the children’s best interests in mind as she has denied them access to the father.

[29] He was an involved parent as shown in the photos attached as exhibits. The parties were co-parenting until the mother’s impulsive actions.

Mother’s Position

[30] The mother states that the father is abusive and she has been undergoing counselling for this domestic violence. She could no longer tolerate the tension in the matrimonial home as it was affecting the children’s emotional well being. The constant arguing between the parties is not in the children’s best interests. The father denigrated the mother in the children’s presence.

[31] She has been a stay at home mother and has been the primary caregiver of the children hence it is in their best interests that they remain with her.

[32] She states that the children need a cooling off period and are upset with their father. She is suggesting that he have couple of visits per week, all day on Saturdays and Thursday evenings for an activity.

[33] The father is not motivated by the children’s best interests, but he is rather attempting to reduce his support obligations.

Decision

[34] In determining what in the children’s best interests, the Court will be guided by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”).

[35] Firstly, the Court will consider the status quo. As stated in T.(M.E.) v. T. (X.M), 2015 CarswellOnt 799, the status quo is an important factor in an interim custody and access motion. On an interim basis, the status quo should maintained unless there are compelling reasons to change it. A party cannot unilaterally change the status quo.

[36] Secondly, Courts have frowned on parents who unilaterally take steps to upset the status quo in order to obtain an advantage in a parenting dispute.

[37] In J.(D.L.) v. L. (D. J.), the mother unilaterally terminated shared parenting. The Court stated that the unilateral action by a parent is not to be condoned. See also Surana v. Surana, where the Court did not condone the mother’s self-help action and did not accept her abuse allegations.

[38] As articulated by Justice Wright in Kimpton v. Kimpton, 2002 CarswellOnt 5030, at para 1 and 2:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631, (aff’d by Laskin J.A. at p. 748), by Laskin J.A. again in Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short-lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 28 R.F.L. (3d) 416.

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

[39] The Court finds that the parents were both involved in parenting until the mother took the children out of the home without the father’s consent.

[40] There is no compelling evidence before me that would justify such a change in the status quo. There is certainly conflict between the parties, which took place in the presence of the children, but there is no evidence that either parent is not a good parent. In fact, the CAS has no protection concerns.

[41] The Court is satisfied that the children should have equal time with both parents at this time. It is in their best interests that they move back into their home and spend half their time in their own bedrooms. The mother will be staying with her mother and the children can remain with her there until she obtains another residence.

[42] Pending the June motion, the children will live equally with both parents on a week on/ week off basis.

[43] The mother will return the children to the matrimonial home on Saturday March 4, 2017 at noon.

[44] The mother’s parenting time with the children will commence after school on Friday March 10, 2017 and the father’s alternate week access will resume on Friday March 17, 2017 after school. Since it is March Break, he can pick them up at 4:00 p.m.

[45] The Court wishes to ensure that the transfer of the children between households proceeds smoothly and without conflict. The parties are expected to obey Court orders. As a matter of precaution, the Court orders that the police force in the relevant jurisdiction is requested to assist in enforcing the terms of this Order.

What Support is payable?

Parties’ Positions

[46] The mother seeks spousal and child support. The father provided some preliminary comments and indicated that a full argument could not be made at this time.

[47] The parties did not provide extensive argument or analysis of the support issues. Given that this was an urgent motion dealing with the living arrangements of the children, the parties were not in a position to provide updated financial statements and a full analysis under the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) and the Spousal Support Advisory Guidelines.

[48] Therefore, the Court will provide an interim solution until the full hearing of the motion.

[49] Both parties have liquid assets that they can utilize. The mother has $60,000 in TFSA and the parties have significant funds in the joint account.

[50] Therefore, on an interim and without prejudice basis the father should assist the mother with the children’s needs and pay $1,000 per month as child support commencing March 15, 2017.

[51] The issue of retroactive and ongoing spousal and child support will be dealt with at the return of the motion.

[52] The parties agreed that the matrimonial home would be sold so the father has the carrying costs of the home to maintain until its sale or further order of this Court.

Should the Court request the involvement of the Office of the Children’s Lawyer or order an assessment?

The Parties’ Positions

[53] The father requests an assessment as there are serious clinical issues and the OCL is unlikely to be involved. He suggests a psychologist, Dr. Sharon Francis Harrison.

[54] The mother prefers the OCL and believes that they could assist in providing a social worker report to the Court.

Decision

[55] There are clinical issues raised here. The hostility between the parties and its on the children is troubling. Dr. Harrison is available to complete an assessment immediately and it may be ready for the June motion. Dr. Harrison is a respected psychologist who has vast experience working with separated families and children.

[56] The father is prepared to pay for the assessment reserving the right to claim a reimbursement from the mother.

[57] It is in the best interests of the children that an assessment providing recommendations pertaining to custody and access be completed to assist the Court. Therefore, pursuant to s. 30 of the CLRA, the Court appoints Dr. Sharon Francis Harrison to complete an assessment and report to the Court on the needs of the children, along with the ability and willingness of the parties or any of them to satisfy the needs of the children.

[58] The father will pay for the assessment and will have the right to request a reimbursement from the mother. Both parties will co-operate with Dr. Harrison in the completion of her assessment.

[59] I will case manage this matter. I am not available on June 13, 2017. The parties will arrange another mutually convenient date for the motion through the Trial Coordinator’s Office.

[60] Costs reserved to the motions’ Judge.

Madam Justice A. Doyle Date: 2017/03/09