Court File and Parties

Court File No.: FS 12-341 Date: September 21, 2018 Superior Court of Justice - Ontario

Re: Jennifer Lynne Skitch, Applicant And: Brendon Eugene Hiscock, Respondent

Before: The Honourable R. J. Harper

Counsel: S. Degroote as agent for A. Nicholls, Counsel, for the Applicant Self-Represented, Respondent

Heard: September 21, 2018

Endorsement

Issues

[1] The Respondent, Brendon Eugene Hiscock (Brendon) brought a motion to have the children, Avery Breanne Hiscock, born October 5, 2010 and Ethan James Skitch, born September 5, 2013 returned to his care and to remain in his care until further Order of the Court.

[2] Brendon also seeks to prohibit the mother, the Applicant, Jennifer Lynne Skitch, (Jennifer) from changing the children’s school from Russell Reid Public School in Brantford, Ontario.

Litigation Chronology

[3] This matter came on as an urgent motion that was served on the mother on September 17, 2018 returnable today, September 21, 2018.

[4] The parties cohabited from August 2009 until July 2012. At the time of their separation they had one child, namely Avery Breanne Hiscock who was approximately 2 years old at the time.

[5] The parties entered into minutes of settlement that resulted in the Order of Justice Taylor on October 1, 2012. That order provided that the parties would have joint custody of the child, Avery and although the order provided that the primary residence of the child would be with the mother, the order went on to state that the child would share time with the parents on an equal basis.

[6] In early 2013 Brendon and Jennifer had a brief period in which they tried to reconcile. They had sexual relations and that resulted in the birth of their second child, Ethan.

[7] The parties did not seek to change the order of Justice Taylor. However they did share the parenting of the children. It is conceded that the sharing of the parenting and approximately equal time was the status quo until approximately sometime in 2016.

[8] The parties never had a set schedule and the mother, Jennifer, claims that the father, Brendon, saw the children less and less. The father claims that he continued to see the children on an equal basis. At this stage and given the state of the evidence it is not possible to make a finding as to the extent of the time sharing. That took place between 2016 and September 4, 2018.

[9] What is not contested is that the mother, moved from Brantford to Cambridge, Ontario to live with her boyfriend. She changed the children’s school. All of this was done without informing or making any effort to consult with the father. The mother took it upon herself to effect this significant change in the children’s lives without seeking any order of the court.

The Law and Analysis

[10] The father, Brendon is self-represented. As a result there are irregularities in the process that he has used. In my view he would need to bring a fresh Application for custody of the two children and include in that Application a request to change the Order of Justice Taylor.

[11] I consider this present motion as an urgent motion heard prior to a case conference under the circumstances in this case. The mother created this urgency by taking the law into her own hands and simply uprooting the children from their environment, their schooling and their ability to reside with their father on a frequent basis.

[12] Justice Pazaratz in Rifai v. Green, 2014 ONSC 1377, reviewed the law relating to self-help and the considerations of best interest of the child. He stated commencing at para 16:

[16] Temporary custody determinations are particularly challenging. Immediate determinations must be made based upon often incomplete and untested evidence.

17 . A temporary order is significant because it will frequently influence or form the basis for a final order. Once a child settles into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child’s best interests to disrupt or significantly change the temporary arrangement.

18 . That same concern about minimizing the risk of needless disruption often becomes even more acute at the temporary order stage, where courts are reluctant to change the status quo unless there are compelling reasons to do so. Grant v. Turgeon, 2000 ONSC 22565; Kimpton v. Kimpton, 2002 ONSC 2793; Tayebi v. Oukachbi 2013 ONSC 6960.

19 . Accordingly, consideration of the “status quo” becomes an enduring component of access and particularly custody disputes, at virtually every stage of the process. It’s little wonder that so many lawyers – and parents – become preoccupied with the strategic implications of any pattern or routine a child comes to be used to.

20 . Sometimes, determining the status quo can be problematic. Is it the most recent arrangement in a child’s life? Or is it an earlier routine which might have been more long-standing? Should we stick with what’s working at this precise moment? Or should we go back to something that was working well recently?

21 . Very much related to this is the court’s increasing concern that parents should not be allowed to gain strategic advantage – and children should not be needlessly disrupted -- by a parent unilaterally creating a new status quo through manipulation or deliberate acts. Izyuk v. Bilousov 2011 ONSC 6451; Nyari v. Velasco 2008 ONCJ 272.

22 . A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113.

23 . Where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate. Kennedy v. Hull 2005 ONCJ 275.

[13] This court must make a determination of what is in the best interest of the children. Both the mother and the father’s evidence is lacking relative to many of the factors that I must consider in order to determine the best interest of the child.

[14] The Children’s Law Reform Act provides:

24(2) Best interests of child

The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and up-bringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Applying the Law to this Case

[15] It is my strongly held view that courts should not condone parents’ taking the law into their own hands in order to effect a strategic advantage. If there are concerns with respect to parenting of the other parent unless it is a safety issue, the parent must come to court in order that the court can properly assess what is in the best interest of the children. By taking the law into their own hands the parent deprives the court of that analysis that is required by statute. Even if there is a safety issue, the parent can take steps to protect the children and still come to court at the earliest opportunity on an urgent basis.

[16] In this case I find that the parents must have considered that it was in the best interest of at least the child Avery to have joint custody and equal time with each parent. That was not changed after the birth of the child Ethan.

[17] There is nothing in the evidence that justifies the mother taking the children out of their school and their community. The children shall be returned to their former school, Russell Reid Public School forthwith.

[18] The children shall reside with their father Brendon from Sunday evenings at 6 p.m. until Friday after school. They shall reside with their mother from Friday after school until Sunday at 6 p.m.

[19] The mother shall be responsible for the pick-up and drop off of the children.

[20] The father shall serve and file an Application to include his claim for custody of both children no later than October 1, 2018. This motion shall be adjourned to October 12, 2018 at 10 a.m. in order for both parents to serve and file better affidavits that provides the court with evidence of the best interests of the children. The father shall serve and file his affidavit by October 1, 2018 and the mother shall serve her responding affidavit by October 5, 2018. Any reply to be served and filed no later than October 9, 2018.

[21] Costs are reserved to the return of the motion.

The Honourable R. J. Harper Date: September 21, 2018