Court File and Parties

Court File No.: 296/11 Date: August 14, 2012

Ontario Court of Justice

Re: Brian and Sylvia Perchaluk - Applicants And: Jeffrey Perchaluk – Respondent And: Leah Marie Taylor – Respondent

Before: Justice R. Zisman

Counsel:

• Jerry Chaimovitz, for the Applicants
• Novalea Jarvis, for the Respondent, Leah Taylor

Endorsement

Introduction

[1] On July 12th, 2012 I heard several temporary motions in this matter. I gave brief oral reasons on the main issues regarding custody and access as it was important for the parties to be aware of my ruling and indicated that I would deliver expanded reasons. These are my reasons.

[2] The Applicants ("paternal grandparents") seek temporary custody of their grandchild Maddison Marie Perchaluk ("Maddison" or "the child") born May 2, 2009. The Respondent ("mother") seeks to increase her current day access to alternate weekend access to be further increased to alternate week access, for the grandparents to transport the child to the access visits, for specified telephone access for 20 minutes each call and Skype access three times a week and for spousal support from the Respondent ("father").

[3] The father seeks to set aside the noting of pleadings closed against him. The mother consented to this motion but counsel for the paternal grandparents indicated that they could not take a position until it was clear what position their son was taking. His affidavit in support of his motion only explains why he did not serve and file any responding materials after being served. The motion was adjourned to permit counsel for the father to serve and file better materials outlining his position and the specific relief he is requesting in this proceeding.

Background and History of Court Proceedings

[4] Maddison was in the care of her parents from her birth until she was about a year old.

[5] In July 2010, there was an incident of alleged domestic violence between the parents. The father removed Maddison and went to live with his parents with her. The police notified the children's aid society due to concerns about the mother's presentation as her behaviour led them to be concerned that she was on drugs. No criminal charges were laid.

[6] The children's aid society was satisfied that there were no protection concerns as Maddison was with the paternal grandparents.

[7] Subsequently, the mother's doctor provided information to the children's aid society that the mother suffered from Graves disease that can mimic the symptoms of someone consuming drugs and/or alcohol.

[8] The mother contacted the children's aid society and the police in attempts to have Maddison returned to her care. The father told the mother that he would be applying to the family court for custody but never initiated any court proceedings. The mother, although told by both the society and the police that she needed to proceed to family court for the return of the child, did not initiate any court proceedings.

[9] In approximately January 2011, the mother left for Alberta and had no contact with the child except for some sporadic telephone calls.

[10] The mother deposes that she returned to this jurisdiction in March 2011 and the grandparents refused to return Maddison to her and refused to give her any access until May 2011 and then only permitted a few visits that were supervised by them.

[11] The grandparents deposed that the mother only contacted them in May 2011, so they assumed that was when she returned to this jurisdiction. The grandparents agree that they would not return Maddison to the mother but that they did accommodate supervised access visits for the mother in public places.

[12] The paternal grandparents commenced this application for custody in June 2011 as they were concerned that they had no legal basis to retain custody of Maddison and to clarify their legal position as the caregivers of Maddison.

[13] There were several adjournments requested by both the mother and father to serve and file their responding materials.

[14] A case conference was held before me on January 27, 2012. The parties consented to the appointment of the Office of the Children's Lawyer and to the release of the records of the children's aid society. There was also a consent, on a without prejudice basis, that Maddison continue in the primary care of the paternal grandparents and that the mother have supervised access at a supervised access centre and also access supervised by the maternal grandmother, Sharon Taylor-Romanko. The mother agreed to provide a medical report relating to her medical condition and its impact, if any, on her parenting Maddison. A date for the temporary motion was scheduled.

[15] The motion was to be heard on June 13, 2012 but had to be adjourned. As there was some confusion about the terms of the mother's access and in any event, she was not exercising access at the supervised access centre, the order was varied to permit the mother's access on alternate Saturdays from 10:00 a.m. to 3:00 p.m. to be exercised in the Hamilton and Burlington area and to be supervised by the maternal grandmother.

[16] The temporary motions were rescheduled to be argued on July 10, 2012. The Office of the Children's Lawyer agreed to accept the referral and counsel were advised that the investigation and report was expected to be completed by mid September.

Position of the Parties

[17] The mother submits that she was the child's primary parent for the first year of her life, there were no concerns about her ability to care for Maddison, the paternal grandparents were not involved, and that it was only as a result of her inexperience and lack of financial resources that she was unable to obtain legal counsel and commence court proceedings to have Maddison returned to her care. The mother submits that she went to Alberta because she was depressed and discouraged but she never had any intention of abandoning Maddison. She alleges that the grandparents kidnapped Maddison.

[18] The mother submits that she has now reconnected with Maddison and she wishes expanded access. She submits that given the circumstances of this case that she should not be prejudiced by Maddison not being in her care for the past 18 months[1] and that she should be given the opportunity to show the court that Maddison should be in her care and that it is in her best interests to spend more time with the mother. It would also permit the Office of the Children's Lawyer to see Maddison with her mother in a familial setting. She is proposing that she exercise overnight access either in her home or in her mother's home in Wasaga Beach. She alleges that the paternal grandparents are not facilitating telephone access and that they are rude and inappropriate to her in front of Maddison.

[19] The paternal grandparents seek an order for temporary care and custody on the basis that they have been Maddison's caregivers since July 2010. They deposed that Maddison was placed in their care by the children's aid society. They concede that there was no formal court order placing Maddison in their care but they state that the mother abandoned Maddison by leaving the jurisdiction.

[20] They deny that they are interfering with the mother's access or that they are rude or inappropriate with her. They remain concerned about the mother having expanded access to Maddison at the present time. Although they raised several incidents concerning the mother's stability, her care of Maddison during access visits and her lack of understanding of a young child's needs they are content to permit the current access arrangements to continue pending the report of the Office of the Children's Lawyer.

Evidence on Motion and Factual Findings

[21] Although Maddison was in the primary care of her mother and father for the first year of her life, I find that they were unable to provide her with a stable environment. The mother admitted that she and the father had moved five times but deposed that they moved to improve their living accommodations. The mother submits that the grandparents never reported any concerns to the children's aid society and never assisted them financially. However, I find that just because there was no involvement of the children's aid society is not proof that the parents met the child's needs.

[22] It is not disputed that Maddison has been in the care of the paternal grandparents since July 2010. It is not disputed Maddison has lived in a stable home. It is not disputed that the grandparents have met all of her physical, emotional and financial needs without any assistance from the mother.

[23] In the mother's affidavits, she deposes that she tried to have Maddison returned to her care but the grandparents and the father refused to return her. The mother attempted to explain her inability to commence legal proceedings to have Maddison returned to her care in 2010 due to her lack of financial resources and her inability to obtain legal assistance. However, it is clear from the disclosure provided by the children's aid society that she was told that she needed to initiate family court proceedings if she wanted Maddison returned to her care; the fact is she not only failed to do so but she left the jurisdiction and had no contact with her child for over a year. Regardless of the mother's reasons for not accessing the courts to have Maddison returned to her care, Maddison remained with her grandparents and they assumed a parental role.

[24] The mother alleges that the paternal grandparents are interfering with the mother's access and that they are being rude or inappropriate with the mother. The grandparents deny these allegations and although the truth cannot be determined on a motion based on affidavit evidence, at this stage I do not find that there is any basis for a finding that the grandparents have interfered or attempted to curtail the court ordered access. In fact, the grandparents supervised the mother's access on several occasions when the maternal grandmother was not available to supervise.

[25] The mother's allegations that the grandparents are not facilitating telephone access, I find stems more from the mother's lack of understanding that a three year old would not be interested in having a lengthy telephone discussion with anyone than any inappropriate actions by the grandparents.

[26] The grandparents raise several concerns about the mother that I find were not adequately explained by the mother in her affidavits:

1. The mother invited the grandparents and Maddison to her home for Christmas Day dinner. When they arrived the house was dirty and in shambles and there was no dinner prepared. The mother explained that she had just woken up, that a male overnight guest had assaulted her and possible broke her ribs. There was another female who was passed out on the couch. The mother suggested that they go to Tim Horton's instead which they did. The mother deposed that the grandparents were late, that she had prepared a huge dinner that was in the fridge and that her apartment was clean. However, she does not then explain why they would have gone to Tim Horton's to eat and not eaten dinner at her home. She did not specifically deny that she had been assaulted by her male overnight guest.

2. On one of her initial visits the mother brought her current boyfriend because he wanted to meet Maddison. The mother does not deny this and deposed that she did not bring him again because her mother told her it was not a good idea and she agreed. But this shows that she did not appreciate that she should spend time exclusively with Maddison in order to become re-connected with her.

3. The mother wore a belt with the word, "FUCK" on it to an access visit and scratched Maddison. Although there is a dispute as to how serious the scratch was, the mother did not appreciate the inappropriateness of the belt itself and deposed that as Maddison was only three years old, she could not read.

4. In March 2012, the mother received an insurance settlement of $10,000.00 from a motor vehicle accident she and Maddison were involved in when Maddison was three months old. With these funds, the mother bought a used Jeep, a laptop, camera and paid some bills. She drove the Jeep home without insurance. Her friend, apparently the same male who assaulted her at Christmas, broke into her apartment, stole her purse, laptop and camera and the Jeep that was still uninsured. The police found the Jeep totally wrecked and never recovered the other items. The mother's only explanation of this incident was that she wanted a car so she could transport Maddison for access visits and not have to rely on her mother.

5. The mother was living in Hamilton at the commencement of these proceedings. She then moved to Wasaga Beach and has now moved to Barrie. The mother does not explain these moves but regardless of the reasons for the moves they continue to indicate a lack of stability.

Applicable Legal Principles

[27] As in any issue governing children, the test to be applied on a temporary motion is what parenting arrangement is in the best interests of a child. Section 24(2) of the Children's Law Reform Act provides the factors a court must consider as follows:

(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 upbringing;

(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.

[28] In considering these factors at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintaining the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion.

[29] As stated by Justice McKinnon in Grant v. Turgeon, 5 R.F.L. (5th) 326 (S.C.J.) at paragraph 15:

…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, 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp, [1970] 1 O.R. 331 (C.A.).

The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial. (See Copeland v. Perreault, 2007 O.J. No. 1889 (O.C.J.) at para. 49.)

Analysis

[30] In this case, Maddison has lived in the de facto custodial care of her grandparents for almost the last two years. There is no dispute that the grandparents have met all of Maddison's needs and they have provided her with stability and consistency. Their plan is simply to continue with her same routines, to live in the same home and to continue to attend the same home daycare that she is familiar with.

[31] The mother's plan for expanded access to be increased to alternate week access does not consider Maddison's best interests but focuses on what is best for the mother. The mother focuses on the fact that she was Maddison's primary caregiver for the first year of her life and that she should be entitled to resume that role because the grandparents have kept Maddison from her. There was no appreciation of the effect on Maddison of the mother's absence or that Maddison is now accustomed to living with her grandparents and the effect on her of removing her from her grandparents' care for extended periods of time.

[32] The plan proposed by the mother for expanded access will require that Maddison travel to either the mother's residence in Barrie or the maternal grandmother's home in Wasaga Beach. The mother expects the grandparents to drive one way because as they have assumed a parental role they should assume the responsibility of transporting her. Given the concerns that have already been raised about the day access, the suitability of the mother's residences, her lack of judgment and the type of friends she associates with, such a plan is not in Maddison's best interests. Maddison is only beginning to become reacquainted with her mother and it would be contrary to her best interests to expand access at this time.

[33] I also have concerns about the maternal grandmother's role as supervisor. Although it is understandable that she would support her daughter, her affidavit justifying everything her daughter has done shows an inability to be objective and this attitude might create some problem in her role as a supervisor especially if access was expanded.

[34] There is an ongoing investigation by the Office of the Children's Lawyer that will be completed in the next few months that will provide the court and the parties with more insight into what parenting arrangements are in Maddison's best interests in the short and long term. The investigation will provide information about the suitability of the mother's residence for overnight access and information about the mother's boyfriend who apparently she is living with.

[35] I also note that despite the mother consenting to an order that she provide a medical report relating to her medical condition and the effect, if any, on her ability to parent Maddison, no medical report was provide at this motion. Mother's counsel relied on the fact that a social worker from the children's aid society spoke to the mother's doctor in July 2010 and was satisfied that the mother was suffering from Graves disease and that she was on medications and that the disease did not impact on her ability to care for Maddison. However, that information was obtained two years ago and does not relieve the mother from complying with a recent court order to provide updated information.

[36] Counsel for the mother spent a great deal of time reviewing various cases that have permitted overnight access for young children and cases that rely on the principle that it is a child's best interests to have maximum contact with both parents.[2] But none of the cases have a similar facts situation to the case before me.

[37] Further, I note that the cases rely on the theories of Joan B. Kelly and Michael Lamb regarding the benefit of overnight access for a young child in ensuring that there is a meaningful relationship with the other parent. The cases simply quote from an article published by Kelly and Lamb titled, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, Family and Conciliation Courts Review, Vol. 38, No. 3, July 2002, 297-311. With respect to judges in those cases that have simply accepted this theory without any expert evidence and seem to have taken judicial notice of those theories, I am not prepared to do so.

[38] Firstly, just because several cases have adopted this view of overnight access based on the Kelly and Lamb philosophy does not elevate that theory to an accepted principle. I note that in none of the cases was any expert evidence called but the court simply accepted the theory of overnight access as being appropriate for young children. Therefore there was no opportunity for any cross-examination of the authors on their theory or the opportunity to explore the application of the theory to the particular facts of the case.

[39] Secondly, in July 2011, in the same publication of the Family and Conciliation Court Review there are several articles by well respected researchers and psychologists that do not agree with the theories espoused by Kelly and Lamb that overnight access for young children is consistent with child development.

[40] By attempting to rely on the Kelly and Lamb theory that overnight access is appropriate for young child, counsel for the mother is in effect, requesting the court take judicial notice of this theory.

[41] The concept of judicial notice facilitates the acceptance by a court of the truth of a particular fact or state of affairs, without the requirement of proof, where the fact is so well known that it is not the subject of dispute among reasonable people, or, is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. (See Sopinka, Lederman and Bryant, 2d., the Law of Evidence in Canada (Toronto: Butterworth, 1999) at 1055.)[3]

[42] The writings of Kelly and Lamb are not without controversy and are not so widely accepted that they can or should be accepted. What is clear is that there are different theories with respect to the issue of when it is appropriate for young children to commence overnight access. The theory of overnight access being appropriate for young children does not fit into the category of facts that a court can or should take judicial notice of.

[43] Accordingly, at this stage of the proceedings I am not persuaded that it is in Maddison's best interests for the mother's access to be increased.

[44] Counsel for the mother submits that it would be prejudicial to the mother if the grandparents were granted temporary custody of Maddison and that is an issue that should only be decided at trial. A temporary order is just that, temporary, it simply confirms the status quo arrangements. The grandparents have been this child's de facto custodial parents for the last two years. I do not find that there is any prejudice to the mother in making a formal order confirming that role. Accordingly, there will be a temporary order to confirm that Maddison is the care and custody of the grandparents.

[45] With respect to the mother's request for telephone and Skype access, I find that the mother's expectation that a three year old would speak for 20 minutes on the telephone or sit still for up to an hour before a computer is unrealistic and shows a lack of understanding of a young child's stage of development. I will simply leave the issue of telephone access at the discretion of the grandparents.

Order

[46] There will be a temporary order as follows:

1. The Applicants, Brian and Sylvia Perchaluk shall have care and custody of Maddison Perchaluk born May 2, 2009.

2. The Respondent, Leah Taylor shall have access on alternate Saturdays from 10:00 a.m. to 3:00 p.m. to be exercised in the Hamilton and Burlington regions to be supervised by Sharon Taylor-Romanko.

3. The Applicants shall arrange reasonable telephone access for the Respondent, Leah Taylor at their discretion.

4. If the investigator from the Office of the Children's Lawyer wishes to see the child outside of the court ordered access, the Applicants shall co-operate with such arrangements.

5. Counsel for the Applicants shall serve and file his written submissions for costs and a bill of costs within the next four weeks and counsel for the Respondent shall have three weeks to serve and file a response.

Zisman J.

Date: August 14, 2012

Footnotes

[1] At the time this motion was argued it was already 2 years that Maddison had not been in the mother's care.

[2] Baird v. Webb, 2002 CarswellSask 798 (Sask.Q.B.); J.(D.B.) v. J. (L.A.), 2005 CarswellYukon 103 (Y.T.S.C.)

[3] This concept of judicial notice is also discussed and approved of by the Supreme Court of Canada, by Justice Binnie in R. v. Spence, 2005 SCC 71, 202 C.C.C. (3d) 1 at paragraphs 60 to 61.