Endorsement

Court File No.: 5449/15
Date: January 15, 2025
Superior Court of Justice - Ontario
Re: James Rufus Walker, Applicant
And: Alecia Rachelle Innes, Respondent
Before: Alex Pazaratz
Counsel: Self-Represented Applicant; Sam Garcea, Counsel for the Respondent
Heard: January 10, 2025

Introduction

In parenting cases, there’s a difference between a problem and an emergency.

And if you’ve known about a problem – or a collection of problems – for a long time without doing anything about it, you can’t suddenly call it an emergency and decide not to return your child at the end of your court-ordered parenting time.

Obviously, there may be situations where dramatic new information or a precipitating event arises. A child’s safety is always the foremost consideration.

But a parent better be sure there was no less disruptive alternative, before they take matters into their own hands. And once a parent refuses to return a child, there’s a very strong onus to immediately go to court to satisfy a judge that parenting arrangements urgently need to be changed, for the physical or emotional well-being of the child.

Self-help is a high-stakes gambit.

• There’s a strong presumption that court orders are to be followed.
• Fabricating or over-reacting to problems can backfire and demolish credibility.
• And hurriedly changing important aspects of the child’s life – like schools or doctors – will only heighten concern about motive and parental insight.
• The court will consider the alleged urgent problem(s). But it will also consider the inevitable negative impact on children when their routines, relationships, and expectations are suddenly or needlessly disrupted.
• If a judge concludes the parent’s actions were selfish, strategic, or misguided, it may raise doubts about whether the offending parent can be entrusted with the child in the future.
• Bad or impulsive decisions can have unintended consequences. Taking advantage during one visit may end up in future visits being cancelled.

Background and Procedural History

This is an urgent motion relating to a 10-year-old female child, PRW. I am satisfied that the issues herein require immediate attention and cannot wait for a case conference.

The January 12, 2016 final order of Justice Brown – issued on consent, pursuant to a mediation report – includes the following:

• Parents have joint custody.
• Father’s time: Alternate Thursdays 3:00 p.m. until Mondays 5:00 p.m.; other times as agreed; regular telephone and Skype access.
• Father pays $50.00 per month child support commencing February 1, 2016, a negotiated sum, until the father commences regular employment. Father to advise when he obtains employment.
• Father to provide annual income disclosure.
• Father to arrange and attend counselling to address anger management.
• Mother not to relocate residence beyond Greater Toronto Area without written consent and 60 days’ notice.

The Mother’s Emergency Motion

The mother’s January 7, 2025 emergency motion includes requests for the following:

• To be heard prior to a Case Conference as a result of urgency.
• Father to immediately return PRW to the mother.
• Father’s parenting time to be suspended.
• Police enforcement.

The mother’s January 7, 2025 affidavit includes the following narrative:

• The parties’ unmarried relationship started in May 2013. By August 2013 the mother was pregnant with PRW.
• PRW is a special needs child. She has been residing in the mother’s primary care since the parties separated.
• In 2024 the father was to have specified time for Christmas. PRW went to the father on Christmas Day and was supposed to return December 28. The father did not return the child.
• He said he would return the child on January 1, 2025, but he didn’t return her.
• On January 2, 2025 he advised he would not return the child based on advice from duty counsel.
• On January 3, 2025 the mother contacted her lawyer, who then advised the father that the mother was bringing an emergency motion. The father was advised to send any court documents to the mother’s lawyer.
• The father lives in St. Catharines. He has not taken the child to school since he kept her.
• This is not the first time the father has unilaterally taken the child. In November 2015 he took the child to Toronto and for a period of time he refused to return her. This led to the court application and ultimately to the January 12, 2016 order.
• Since the final order was granted, the father has not followed the visitation schedule. He would allow months to go by without seeing the child.
• During the last year the father has sought to have more regular visits, but the child has been reluctant as the father had not been an active part of her life.
• The mother’s affidavit sets out various incidents since May 2024 when there have been issues with timesharing, at times causing the child to be upset by the father’s unilateral behaviour.

The Father’s Cross-Motion and Affidavit

The father’s January 8, 2025 cross-motion includes requests for the following:

• To be heard prior to a Case Conference as a result of urgency.
• Father to have sole decision-making on a temporary basis or until a final order is granted.
• PRW to reside with the father.
• Authorization for father to register PRW in a school in Niagara Falls.
• Suspension of child support.

The father’s January 8, 2025 affidavit includes the following narrative:

• Despite the joint custody order, the mother has not included the father in most major decisions.
• Pursuant to the order he has the child alternating Thursdays at 3:00 p.m. to Mondays at 5:00 p.m.
• Subsequent to the final order, he attempted to reconcile with the mother and child between March 2016 and May 2017, without success.
• Between May 2017 and September 2019 he had trouble exercising time on his scheduled weekends because of distance; lack of a stable home; and lack of income.
• Since September 2019 he has tried to be more involved. But the mother’s lack of cooperation has made it a “struggle”.
• During the past five years PRW has missed more than 200 days of school, with almost 40 days late. The mother has refused to address this problem with the father.
• PRW has told the father several times that she would like to live with him and change schools so she could go to school more regularly.
• Several times during 2023-2024 the mother has withheld the child, after agreeing on times, usually after the father arrived for a pick-up.
• There have been multiple problems relating to the child’s hygiene.
• Recently, the father filed two reports with Hamilton police about denied access. He has informed the Children’s Aid Society about neglect and “borderline child abuse”.
• He plans to register the child in Mary Ward Catholic School in Niagara Falls, and have her set up with Pathstones Mental health programs to assist with potential autism, ADHD, and dyslexia.
• CAS worker Kaitlyn Seguin attended his residence to speak to the child on January 2, 2025.
• He has contacted PRW’s current school in Hamilton to explain the absenteeism and to ask for schoolwork to be sent to his home.
• PRW has stated on countless occasions she no longer wants to live with the mother and that she needs structure in her life. The father is able to provide this structure.
• He has withheld PRW from the mother based on the child’s best interests.

The Mother’s Reply Affidavit

The mother’s January 9, 2025 reply affidavit is lengthy. I will very briefly summarize the relevant narrative:

• She denies the father’s allegations.
• The father has never been involved in decision making for any of the child’s medical, educational, or daily needs.
• PRW has ongoing speech and language delays. She has been attending speech therapy since she was three years old. The mother suspects she has ADHD and is on the autism spectrum. The mother has advocated to set up specialist assessments, but they are hard to obtain.
• The mother’s affidavit lists in some detail the various efforts she has made to deal with PRW’s needs.
• The child’s report cards show no mark below “satisfactory”.
• The mother has kept the father informed of medical appointments and issues. The father has elected to have minimal involvement. He has not attended an appointment for the child for approximately six years.
• She denies that the parties reconciled. To the contrary, the father unilaterally decided to return to the mother’s residence and ultimately he was removed by the police after he damaged the premises. He was charged with “mischief under $500.00” and ordered to have no contact with the mother.
• The mother has always tried to encourage and facilitate time-sharing. The father elected to move to Niagara region, so he created his own transportation challenges.
• At times PRW has been extremely resistant to going with the father – to the extent that she has had meltdowns and went so far as barricading herself in a closet.
• The mother acknowledges PRW has missed a lot of school. Most absences were because of illness or her recurring problem with head lice. The mother has been working with the school.
• The mother explored the possibility of changing schools to help with absences, but PRW insisted she doesn’t want to change schools because she would miss her friends too much.
• The father has historically tried to coach PRW about what she should say.
• The mother has been addressing hygiene issues with the girl who is going through puberty.
• A Hamilton Child and Family Support worker attended her residence on January 9, 2025 and there was no suggestion the child should not be in the mother’s care.
• PRW has never expressed a desire to live with the father.

Child Protection Agency Update

Counsel for Hamilton Child & Family Supports attended with child protection worker Kaitlyn Seguin to provide a verbal update, as requested by Justice Brown in an earlier endorsement. The Agency’s summary included the following:

• Any involvement by HCFS has been as a result of reports received from the father. He reported the same allegations set out in his affidavit.
• There are no community reports about either parent.
• As a result of the father’s complaints the agency spoke to some but not all community service providers. No concerns about the mother were expressed.
• The child was interviewed by Ms. Seguin at the father’s house. She stated that she would like to remain with the father for “routine and structure”. The child spoke positively about both households.
• The agency takes no position regarding custody or access.

Legal Principles

Section 24(1) of the Children’s Law Reform Act, RSO 1990, c C.12 provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order.

Section 24(2) says when considering best interest factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. See Pierre v. Pierre, 2021 ONSC 5650; Churchill v. Elliot and Ward, 2024 ONSC 1907.

Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage – the term “status quo” is not specifically mentioned in the legislation. However, section 24(3)(d) of the Children’s Law Reform Act lists “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”. See Brownson v. Brownson, 2022 ONSC 5882.

• It is generally not in the best interests of a child to disturb the status quo on a temporary motion pending a trial without compelling reasons. See Niel v. Niel; Grant v. Turgeon; Wang v. Tang, 2023 ONSC 3609; Levesque v. Bond, 2023 ONSC 1895; Churchill v. Elliot and Ward, 2024 ONSC 1907.
• The status quo – and avoiding reckless creation of a new status quo – are particularly important considerations at the interim stage, because the court is often not in a position to make factual findings based on incomplete and untested evidence. See Cosentino v. Cosentino, 2016 ONSC 5621; Cabral v. Parker, 2021 ONSC 4574; Viveash v. Viveash, 2021 ONSC 7456; N.D. v. R.K., 2020 ONCJ 266; R.C. v. L.C., 2021 ONSC 1963; C.C. v. I.C., 2021 ONSC 6471; Dayboll v. Binag, 2022 ONSC 6510; Chaput v. Chaput, 2021 ONSC 2809.
• The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change. See W.H.C. v. W.C.M.C., 2021 ONCJ 308; Ceho v. Ceho, 2015 ONSC 5285; Batsinda v. Batsinda, 2013 ONSC 7869; Green v. Cairns; Papp v. Papp; MacDonald v. Cannell, 2021 ONSC 7769.
• To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger if the status quo is maintained. The evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests. See Miranda v. Miranda, 2013 ONSC 4704; Dayboll v. Binag, 2022 ONSC 6510; A.L. v. C.M., 2023 ONCJ 412; Tomkinson v. Baszak, 2023 ONSC 4092; Churchill v. Elliot and Ward, 2024 ONSC 1907.

Self-Help Remedies

The court’s disapproval of self-help tactics was recently re-stated by Justice Edmundson in MacDonald v. Harris, 2025 ONSC 25:

[38] Courts have been clear that self-help remedies should not be condoned and must be discouraged. If a parent believes that a court order or separation agreement is no longer in a child’s best interests then their recourse is to apply to the courts. See for example, Blair v. Hamilton, 2018 ONSC 7328; Ng v. Charles, 2016 ONSC 2946; Phillips v. Phillips, 2021 ONSC 2480.

[39] As the court stated in Fallis v. Decker, 2013 ONSC 5206, para 26: “Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.”

[40] The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. See Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113.

Analysis

The father’s materials raise some serious issues. The mother has provided credible explanations. From the untested and incomplete materials, it is difficult to make determinations as to which parent’s description of the child’s situation is more accurate or compelling.

But even if I accept most of what the father is alleging, his own materials fail to even remotely establish the type of urgency which would be required to justify unilaterally and suddenly ignoring a court order and changing a long-standing status quo on an interim basis.

• While there may be disagreement about why history unfolded as it did, the father admits that the child has been primarily with the mother; that for an extended period he wasn’t regularly exercising the parenting time set out in the existing order which he consented to; and that he hasn’t been regularly involved in decision-making despite his joint custody designation.
• The father summarizes problems which he says have accumulated over many years. He provides no explanation as to why he didn’t take more effective steps to be involved as these problems lingered. Nor does he explain why it was suddenly urgent to rescue the child from a situation which he himself has acquiesced to for literally years.
• The father has simply exercised self-help, in a manner more likely to confuse and upset the child rather than assist her.

I have considered the very helpful update provided by HCFS. For the most part the agency’s observations are entirely consistent with the mother’s position.

I am mindful of child protection worker Ms. Seguin confirming that the child said she would like to remain with the father for “routine and structure”.

• But the child’s statement – and an immature, special needs child using specific words which parrot the adult language of the father’s affidavit – must be considered in context.
• PRW was interviewed once, in the father’s home, in circumstances in which the child would have been very conscious of the father’s strong determination to have the child live with him. She had already been told by the father that she wasn’t going back to the mother, and that he was transferring her to a new school in a new city. How much independence and spontaneity can be presumed in such a vulnerable situation?
• Notably, even in that setting, the child spoke positively about both households.
• The mother says there has been a recurring problem of the father coaching PRW about what to say.
• The father says the child has previously stated she wants to live with him. Notably, even if she made such statements, he never did anything about it in the past.
• The child’s views, preferences and comfort level may well be a relevant component – one of many – in a properly conducted variation proceeding. If the father seriously believed PRW’s situation should be changed, he could have commenced a motion to change long ago.
• But there was nothing in the child’s statement to Ms. Seguin that would justify the father’s unilateral behaviour.
• It is truly regrettable that this 10-year-old child had to undergo an interview by a child protection worker, no matter how gentle. If adult issues had been addressed in a more appropriate and measured manner, the child could have been spared a lot of upheaval and emotional upset.

From the materials before me, I have no instant answers about how the various issues in PRW’s life should best be addressed. But no matter how well-intentioned, I find that the father’s approach and behaviour has been inappropriate and contrary to the best interests of the child.

• He misled the mother about the date on which he would return the child following an extended Christmas visit.
• He provides no evidence of new information or a precipitating event which arose during his Christmas visit, which would have justified such dramatic and disruptive action.
• As a joint custodial parent he was always well positioned to enforce his right to participate in the determination of his daughter’s life and issues.
• For a long time – for many years, apparently – the father has simply allowed what he now characterizes as an inappropriate situation to fester, without taking any meaningful steps to address the issues.
• In the context of such acquiescence, the father demonstrated extremely poor parental judgment in suddenly deciding to impose such major changes on a special needs child: A change of primary residence. A change of school. A change of city. A change of routine.
• The father’s unjustified and selfish behaviour suggests an alarming lack of parental insight. Perversely, while he has attempted to raise concerns about the mother’s parenting skills, his insensitive behaviour now raises significant doubts about his parenting skills. In his effort to secure sole custody (as he described it), he has raised doubt about whether he should continue to share joint custody.

Disposition

PRW is to be returned to the mother today, January 10, 2025 no later than 2 pm.

Having read this endorsement to the parties, I canvassed whether the mother was still asking that the father’s time be suspended. To her credit the mother acknowledged that it is important for the child to resume and maintain regular time with the father.

The father’s alternate weekends shall resume on January 17, 2025, from Fridays at 6 p.m. until Sundays at 6 p.m. (the duration of weekend parenting time being shortened because the father confirmed he is not able to take the child to school in Hamilton on weekday mornings).

I explained to the father that he made a bad mistake. I have corrected that mistake. I asked for his assurance that he won’t make this type of mistake again, and I warned him fairly bluntly about the consequences if he disobeys a court order again. He assured me that he understands. He also assured me that he won’t make any inappropriate or upsetting statements to the child, or attempt to manipulate the child against the mother.

The father shall pay to the mother $500.00 costs, as requested, payable forthwith.

Justice Alex Pazaratz
Date: January 15, 2025