Court File and Parties

Court File No.: FC-15-1225 Date: 2020-02-21 Superior Court of Justice – Ontario

Between: Wayne Claudel Scutt, Applicant – and – Daphney St-Cyr, Respondent

Counsel: Self-represented, for the Applicant Self-represented, for the Respondent

Heard: February 20, 2020

Reasons for Decision

Before: Audet J.

[1] This is a motion brought by the applicant father in which he seeks an order for temporary sole custody of the parties’ two children, Dwayne (9) and Victoria (5), as well as primary residence.

Background

[2] The parties were married on April 3, 2009 and separated in January 2014. At the time of the parties’ separation, Dwayne was three and the mother was pregnant with Victoria. This matter was initiated by the father in May 2015. It has lingered before the court for more than four years. Although the father was originally represented by counsel, both parties have been self-representing themselves for approximately two years (the mother has been self-represented throughout).

[3] The parties appeared before the court on several occasions in the context of case conferences, which took place in front of numerous judges and masters. Because this case was never case managed, and because of the various changes in the parties’ representation, it never got the attention it deserved and was never finally adjudicated. As a result, these children’s lives and residential arrangements have remained in limbo to a large extent. The mother only filed her Answer to the father’s Application on October 11, 2018 (three and a half years after the matter was commenced). This is a testament of how crucial case management would have been in this case.

[4] After the parties’ separation, the children remained in the mother’s primary care and the father had regular access to them. On December 17, 2018, in the context of a case conference and on consent of the parties, a temporary order was made granting the parents joint custody of the children with a week on/week off parenting regime. This is the regime that is still in place today.

The Present Motion

[5] On July 8, 2019, the father brought a motion before the court seeking a change in the temporary parenting regime in place between the parties. Initially, he was seeking an order granting him sole custody and primary residence of Dwayne only. At the time of the initial hearing in August 2019, I observed that while the father’s affidavit was quite extensive and detailed, I had very little evidence about the father’s plan of care on a day-to-day basis and about the potential impact that his proposed changes in the parenting arrangements might have on the children. Further, the mother had filed no meaningful evidence in support of her request that the status quo be maintained.

[6] Given the circumstances of this case and the lack of meaningful and comprehensive evidence upon which to make a decision, I sought the involvement of the Office of the Children’s Lawyer (“OCL”) to complete a clinical assessment of the parties’ ability and willingness to care for the children, and to provide recommendations as to the parenting arrangements that would be in their best interests. I adjourned the motion, which I seized myself of, and gave the parties a clear path forward in the event that the OCL accepted or refused to get involved.

[7] As ordered, a case conference was held before me on January 17, 2020 following the completion of the OCL’s assessment. At that time, it became clear that the father was seeking a temporary order granting him sole custody and primary residence of both children, as recommended by the clinical assessor. The parties were provided with clear timelines within which to file additional evidence for the purpose of the motion hearing which was to proceed within a month. I clearly explained to the parties my expectations with regards to additional evidence required for me to make an informed decision and referred them to the relevant legislation, online resources and available information to help them properly prepare for the motion.

[8] In the context of this motion hearing, the father has fully complied with my order and provided me with a second comprehensive and detailed affidavit containing the information that his first affidavit was missing. The mother, however, did not. On the day of the hearing, I was advised that she attended court but when the matter was called, she was nowhere to be found. She was called twice into the courtroom and the court staff went as far as searching for her in the hallways of all four floors or the courthouse. If she was ever present at the courthouse, she had left. Given all of the above, I proceeded with the motion.

[9] Although the mother filed no additional evidence in the court record, as requested, I am in receipt of the OCL’s comprehensive assessment report which was completed by the clinical investigator, Ms. Nadine Crowley, on January 13, 2020.

Legal Framework

[10] The principles relevant to the father’s motion to change the interim arrangements agreed upon by the parties which have been in place for a year and a half now, are set out by Mackinnon J. in Grant v. Turgeon, (2000), 5 R.F.L. (5th) 326:

15 There are two principles of law at play in this case. The first is that, generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern (1994), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp (1969), [1970] 1 O.R. 331 (Ont. C.A.).

16 The second principle is set out in Genovesi v. Genovesi (1992), 41 R.F.L. (3d) 27 (Ont. Gen. Div.), where Granger J. states at p. 32:

An assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding. In rare cases the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement.

17 Granger J. goes on to say at p. 33 that the general rule that the assessor’s recommendation ought not to be acted upon without a full trial should be followed except in exceptional circumstances where immediate action is mandated by the assessor’s report.

[11] It is very clear based on the evidence before me that this case is one of those exceptional cases where a variation of the existing parenting arrangements on a temporary basis pending trial is necessary to ensure that these children’s needs are being met. In coming to this conclusion, I have relied heavily on the comprehensive clinical assessment performed by Ms. Crowley, as well as on the uncontested evidence presented by the father, which was equally compelling.

[12] I find that the children have been significantly impacted by the inability of the parents to work together cooperatively to make timely decisions with regards to their children and in particular in relation to Dwayne’s education and his mental health. In 2015, Dwayne was diagnosed with ADHD and numerous recommendations were made by his treating physician to help with his concentration, focus and impulsive behaviour. While the father has made considerable efforts to implement these recommendations in Dwayne’s life at home and at school, the mother has ignored them all and refused to engage.

[13] The evidence before me confirms that the father is very committed in meeting the children’s medical and educational needs, but that the mother is not (although it is clear that she loves them). The Children’s Aid Society has been involved on an ongoing basis with the mother as a result of concerns about her ability to care for the children, her use of inappropriate discipline and her lack of supervision. The school has reported that the children come to school inappropriately clothed and without an adequate lunch during the weeks that they are in the care of their mother. The school has also noted that the children are tired and not ready to participate in the learning environment during the weeks they are in the care of their mother. The school has expressed significant frustration with the mother’s lack of engagement in the children’s education and her failure to respond to any of their communication.

[14] The clinical assessor expressed concerns about the mother’s overall lack of involvement in the lives of the children. In addition to being uninvolved in their education, she observed that the mother does not play with the children and does not provide them with opportunities to play and be creative as she does not have any toys or books in the home to stimulate them. The clinical assessor expressed a lack of structure, routine and stimulation in the mother’s home. She stated that “the children appear to be raising themselves when with the mother”. The clinical assessor was of the view that the mother requires intensive parenting education to learn how to appropriately interact with her children and to teach her alternative strategies in managing their behaviour.

[15] The father, on the other hand, was observed to be a very strong parent who is extensively involved in all areas of his children’s lives, including in their schooling, medical care and extracurricular activities. The evidence before me confirms that he insures that the children are doing well in school, that they are actively involved in their community, that they are appropriately dressed, well rested and provided with a structured home life. The father’s affidavit material makes it abundantly clear that he is a very strong parent focussed on his children’s needs and best interests.

[16] Considering all the above, I find that an immediate change in the parenting arrangements is in the children’s best interests and is necessary to meet their medical, physical, emotional and educational needs pending trial. As a result, I make the following order:

1. Beginning immediately, the father shall have sole interim custody of the children;
2. Beginning immediately, the children’s primary residence shall be with the father;
3. The mother shall have access to the children as follows: a. every second weekend from Friday after school until Sunday evening at 6 p.m.; b. every Wednesday from after school until 7 p.m.; c. for not less than two non-consecutive weeks in the summer, with her chosen weeks for the year 2020 to be confirmed by May 1 each year; d. any further access as agreed to between the parties.
4. This matter is hereby added to the next available trial list.
5. I shall case manage this matter until trial, to the extent that further court appearances (except for Settlement Conferences) are necessary to bring this matter to completion (motions and Case Conferences). Once a Settlement Conference has taken place, the parties shall arrange for a Trial Management Conference to be held before me, through Trial Coordination.

[17] On a final note, I wish to confirm that to the extent that leave was required for the father to amend his Notice of Motion to seek sole custody and primary residence for both children, leave is hereby granted.

Madame Justice Julie Audet Released: February 21, 2020