Court File and Parties
COURT FILE NO.: 16-476 DATE: 20170614 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Mark Stuart Davies – and – Julie Rose-Anna Davies
COUNSEL: Chelsea Cook, counsel for the Applicant Jodie Reynolds, counsel for the Respondent
HEARD: June 9th, 2017
Ruling on motion and cross-motion (custody/access)
Laliberté, j.
Endorsement
[1] The Court is dealing with a motion brought by the Applicant father and a cross-motion by the Respondent mother. Both motions raise the question of the appropriate temporary parental arrangement for the children who are subject of this litigation.
[2] These children are:
- Jessica Roy-Davies, born, March 7, 2002
- Elizabeth Roy-Davies born, January 28, 2011
- Keith Roy-Davies, born May 13, 2014
[3] The Respondent has a child from a previous relationship who was born on May 12, 1998. Her name is Ashley Roy-Davies. She was adopted by the Applicant in 2010. She is an adult and not subject of this motion.
[4] The parties commenced their relationship in 1997 and moved in together in 1999. They were married on March 20, 2010. They separated in September of 2016.
[5] The Respondent mother left the matrimonial home on September 23, 2016 bringing the child Ashley, Keith and Elizabeth with her. The child Jessica remained with the Applicant father.
[6] Jessica has continued to be under the Applicant’s care since separation and has little contact with the mother. Their relationship is described as problematic. The three other children have remained under the Respondent mother`s primary care with access to the father on every second weekend from Friday to Sunday and one weekly overnight.
[7] The Applicant is seeking the following reliefs:
- A final order for joint custody of the children
- A temporary order providing primary care of the child Jessica to him
- A 50/50 week-about shared parental setting for the other children
- A right of first refusal for the other parent if a parent caring for the children cannot care for the child
- Cancellation of the case conference scheduled for June 20, 2017 as the parties are still waiting for a response from the OCL on whether it will get involved in their matter
[8] The Respondent mother’s position is that the existing parental arrangement should be maintained.
[9] Both litigants have filed a number of affidavits in support of their respective position.
[10] The Applicant has filed the following affidavits:
- His own affidavits sworn on May 25, 2017 and June 7, 2017
- Pat Davies (Applicant’s mother)
- Harold Guy Davies (Applicant’s father)
- Robert Provost (Applicant’s friend)
- Kathryn Brunton (Applicant’s friend)
- Krystal Dawn Loynchan (Applicant’s friend)
[11] The Respondent relies on the following affidavits:
- Her own affidavit sworn June 2, 2017
- Roger Roy (Respondent’s father)
- Christine Lafontaine (describes herself as friend with both parties)
[12] The essence of the Applicant father’s position can be summarized as follows:
- Shared custody is in the children’s best interests
- It would allow maximum contact with both parents
- The parents have shown to be able to communicate and cooperate when it comes to the children
- Both parents have historically been involved in the care of the children
- He denies having been abusing to the Respondent; there is no evidence to support this allegation
- He denies alienating the child Jessica from the mother
- He has a good relationship with the children
- The parental arrangement needs to be changed since trial dates are not available before a significant period of time
[13] The Respondent mother raises the following considerations:
- There is no need to make an order in regards to custody at this point
- The present parental arrangement save for Jessica being under her father’s primary care, is reflected of the status while the parties were residing together; she has historically been the primary caregiver while the Applicant has historically been the primary bread winner
- A long standing parental arrangement should not be disturbed unless there are compelling reasons; there are no compelling reasons in this matter
- The children are fairly young and have already gone through enough disturbance since separation
- The Court is provided with conflicting affidavit evidence which remains untested; findings of credibility cannot be made in such a context
- The focus should be on short term needs of the children; the objective is to stabilize the situation
- By reason of the nature of her relationship with the child Jessica, she agrees that she should remain under the Applicant’s primary care
[14] In deciding this matter, the Court is guided by the following principles:
- The merit of a motion dealing with custody and access of a child is determined on the basis of the best interests of the child as articulated under paragraph 24(2) of the Children’s Law Reform Act and section 16 of the Divorce Act
- The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change is needed to meet the children’s best interests and this would include a situation where there is evidence that maintaining status quo will be harmful to the children
- Stability is a primary need for children caught in the throes of matrimonial dispute and de facto custody of children ought not to be disturbed pendent lite, unless there is some compelling reason why such change would be in the child’s best interests
- Such a significant decision should not be made on the basis of competing, contradictory and untested affidavit evidence; trial judges are in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what is in a children’s best interests; issues and concerns should be fully canvassed by a trial Judge on the basis of evidence and cross-examination of witnesses
[15] Having considered the relevant principles and the circumstances in this matter, the Court finds on a balance of probability that the best interests of these children lie in the maintenance of the existing parental arrangement.
[16] In arriving at this conclusion, the Court has considered the following:
- There are no compelling reasons warranting the change sought by the Applicant
- The present structure has been in place since September 2016
- The children have been provided with some sense of stability
- There is no identified present risks to the children; they are well cared for
- Both parties provide conflicting evidence on significant points and the Court cannot come to any findings; these include the following:
- The Applicant being described as violent, aggressive and threatening towards the Respondent
- The Applicant having threatened to hurt the child Ashley in front of the other children while in the family van; he admits having stated that he would put his fist through her head
- The child Elizabeth’s reaction when transitioned to the Applicant father’s care
- Whether the Applicant father had little involvement in the care of the children during cohabitation as suggested by the Respondent mother or actively involved as indicated by him
- Whether the Respondent mother is attempting to frustrate the children’s relationship to their father
- Whether the applicant father is alienating the child Jessica from her mother
[17] The Court is of the view that such a significant issue should not be decided before knowing whether or not the OCL will be involved and ultimately, assist the Court with objective and independent evidence. This request for OCL involvement was made on consent of both parties.
[18] Finally, the Court notes that both parties consented to a temporary order which provides that following the 2017 March break: “The regular parenting schedule shall then resume”
[19] Justice Lafrance-Cardinal issued a temporary order based on each parties written consent.
[20] The same temporary order had been previously issued on consent by Justice Pelletier on March 7, 2017. It also provided for the resumption of the “regular parenting schedule”.
[21] The significance of these existing orders was not raised nor discussed in this motion. Specifically, the issue is whether section 29 of the Children Law Reform Act and section 17 of the Divorce Act applies so as to require a “material change in circumstances that affect or is likely to affect the best interest of the child” before the existing order which maintained the “regular parenting schedule” can be varied.
[22] There appears to be disagreement amongst some Ontario Superior Court Justice’s as to whether material change of circumstances is required to vary temporary orders on custody and access.
[23] Justice C. Chappel in Kerr v. Pickering, [2013] O.J. no 305 states the following at paragraph 10: “10. Section 29 of the CLRA sets out the test for variation of custody or access orders… This section is not limited to variation of final orders, and I conclude that it extends to Motions to vary temporary custody and access orders. This conclusion is consistent with the Ontario Court of Appeal’s comments in Serruys v. Serruys that interim custody and access orders should not be changed unless there is a “manifest change in circumstances or any important new evidence to justify a change in the status quo”.
[24] Justice Henderson’s view is stated as follows in Calabrese v. Calabrese, [2016] O.J. no 2400 at paragraph 27: “27… I find that there must be some compelling reason for a Court to change an existing temporary custody/access/parenting order prior to trial. However, unlike other types of motions to change it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to strict material change in circumstances test. The overriding principle … is that a Court should make an order that is in the best interests of the child”.
[25] As this issue was not raised in this motion and there is no need to consider this issue, the Court will not rely on there being a need for the Applicant to establish a material change of circumstances.
[26] However, the existence of the orders, which provides for the maintenance of the existing parenting schedule is a consideration in that:
- The status quo was agreed upon and provided for in a temporary consent order
- It reinforces the need for compelling reasons in support of the changes sought by the Applicant
Conclusion
[27] Therefore, the Court’s finding is that the existing parental arrangement is maintained.
[28] The Applicant’s motion is dismissed accordingly. The Respondent’s motion seeking the status quo is granted.
[29] The June 20, 2017 case conference is cancelled on consent.
[30] The parties are asked to discuss and resolve the question of costs for these motions. If unable to agree, brief written submissions (maximum 3 pages) are to be served and filed with the Court on or before June 30, 2017.
Justice Ronald M. Laliberté Jr. Released: June 14, 2017