Court File and Parties

Court File No.: D56732/12 Date: 2012-08-30

Ontario Court of Justice Toronto North Family Court

Between:

A.A.B. Amy Secord, duty counsel, assisting the Applicant

Applicant

- and -

A.P.J. Lisa Evans, counsel for the Respondent

Respondent

Heard: August 28, 2012

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The parties are the parents of M.J.B. (the child), born on May 4, 2007.

[2] This motion dealt primarily with the temporary parenting arrangements for the child. The respondent father also brought a motion seeking to transfer this case to the Ontario Court of Justice in Peel.

[3] The applicant mother seeks a temporary order granting her custody of the child, with supervised access to the father. She opposes the father's request to transfer the case to Peel.

[4] The father seeks a temporary order granting him custody of the child. He proposes that the mother have access to the child each weekend from Friday evening until Sunday evening.

[5] I reviewed and relied on the multiple affidavits sworn by the parties and a book of documents that was submitted by the mother on the hearing of the motion.

[6] During the course of submissions, the parties agreed that the court should make an order referring this case to the Office of the Children's Lawyer and this order will be made.

Part Two – Factual Background

[7] The mother is 25 years old. She is a student at York University studying to become a teacher. She resides in Toronto.

[8] The father is 27 years old. He is an independent music producer. He resides in Mississauga with his parents.

[9] The parties began living together in September of 2006. They resided together at that time with the father's parents in Pickering.

[10] The parties had the one child together.

[11] The parties separated in September of 2007. The child lived with the mother for a few weeks and then moved in to live with the father and his family.

[12] The parties were able to work out parenting arrangements for several years. The child would stay with the mother from either Thursday or Friday evening until Sunday evening each weekend, and spend weekdays with the father. The evidence indicates that the child functioned well with this schedule.

[13] In May of 2011, the father, his parents and the child moved to Mississauga, where they presently live. The child was enrolled in school and activities in that area. The child continued to do well.

[14] The mother moved to her current residence in Toronto in July of 2011.

[15] Starting in July of 2011, the child primarily lived with the father and his parents in Mississauga and spent every Friday to Sunday with the mother.

[16] The mother issued this application for custody on May 24, 2012. In her application she stated, "the child has lived with me since she was born".

[17] The mother also brought an urgent motion seeking temporary custody of the child. This motion was heard by Justice Geraldine Waldman, who on June 1, 2012, ordered, on a temporary without prejudice basis, that the child be returned to the father's care and that "the schedule is to continue as it has been intrinsically since September 2011 with the child being with the father during the week and the mother on weekends". The motion was adjourned until August 13, 2012.

[18] The mother did not return the child to the father after July 23, 2012. She claims that the child is being physically and sexually abused in the father's home. She claims that the child's hygiene is being neglected by the father, that she is malnourished in the father's home and that she is being exposed to violence between family members in the father's home. She has taken the child to her family doctor, two hospitals and counsellors and has made reports of abuse by the father and his family against the child to the police and to both the Peel Children's Aid Society (Peel CAS) and the Children's Aid Society of Toronto (CAST).

[19] The mother served and filed an affidavit sworn on August 2, 2012, setting out many of these allegations. On August 13, 2012, the motions were adjourned for the father to retain counsel and respond to the mother's fresh allegations. The parties were asked to obtain evidence from the Children's Aid Societies. Records from Peel CAS were filed by both parties on the return of the motions and were very helpful. The father, in his most recent affidavit filed with the court, denied all allegations of abuse against the child.

Part Three – The Law

[20] Section 24 of the Children's Law Reform Act (the Act) sets out that the court must make custody and access orders in the best interests of the child. I have considered the best interests criteria set out in subsection 24(2) of the Act.

[21] The status quo is a very important consideration on temporary motions for custody and access. See: McEachern v. McEachern

[22] Absent concern about such issues as abuse, each parent should be expected to support the children's relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in making custody and access decisions. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128

Part Four – Analysis of the Temporary Parenting Issue

4.1 Preliminary Comments and Findings

[23] The court is often provided with limited independent information on temporary parenting motions upon which to make these important decisions for children. As a case moves forward, more information about a family becomes available and the best interests of children begin to crystallize. On temporary motions, the court has to make decisions based on the evidence available at that point in time. In this case, the court received more independent information than it normally has available to it at this stage of a case – in particular, the independent evidence from Peel CAS. However, the court is very aware that the evidence in this case will likely evolve. It is with an understanding of these limitations that I make my findings on this motion.

[24] I find that the status quo prior to this application was that the child primarily resided with the father in Mississauga and spent each weekend with the mother in Toronto. This is the same finding that Justice Waldman made on June 1, 2012.

[25] I further find that the mother did not prove on this motion, on a balance of probabilities, any of her allegations of abuse of the child by the father and his family.

[26] There were many reasons to question the reliability of the mother's evidence.

4.2 Escalating Nature of the Mother's Allegations

[27] What struck the court in reviewing the evidence and hearing the submissions of the mother was the escalating nature of her allegations. It appears that there were no significant concerns about the child until just before the mother issued this application. The mother's original affidavit (sworn on May 24, 2012) raised concerns that the father can be aggressive and vindictive, a fear that he might take the child away and a concern that the paternal grandmother was telling the child not to eat so much or she would get fat. There was no mention of physical or sexual abuse of the child.

[28] It was only after Justice Waldman ordered the mother to return the child to the father that the mother began making her allegations of physical and sexual abuse by the father and his family. The timing of these allegations, after the child had been living primarily with the father for five years, without any significant problems, dictates that the court exercise caution in accepting their validity.

[29] On July 16, 2012, the mother called the Peel Police to report that the father was not feeding the child. The police went to the father's home and found that the child was being properly taken care of.

[30] On July 18, 2012, the mother called Peel CAS to report that the father was neglecting the child. This was after the mother had been involved in a verbal confrontation with the father and the paternal grandmother on July 17, 2012. Again, the timing of this report creates a suspicion of its validity.

[31] Peel CAS investigated the mother's allegations and did not find any evidence of abuse or neglect against the child by the father or his family.

[32] The mother unilaterally withheld the child from the father after Peel CAS reported to her that the child appeared to be doing fine with him. The mother took the position at the motion that Peel CAS is against her.

[33] Peel CAS advised the mother on August 1, 2012 that they were closing their file.

[34] The same day Peel CAS was contacted by the mother's family doctor, an intake worker from the Boost Child Abuse and Prevention Program and a worker from CAST as the mother had contacted all of them about her abuse allegations. CAST decided to leave any investigation to Peel CAS.

[35] The mother took the child to her family doctor on August 1, 2012 and subsequently to the emergency department at North York General Hospital on August 2, 2012 alleging abuse and neglect by the father and his family. There was no physical evidence supporting the mother's allegations in their records. The child did not disclose any abuse to them.

[36] In her affidavit sworn on August 2, 2012, the mother alleges that:

a) The child told her that she is being physically and emotionally abused by the father and family members.

b) The child's hygiene is being grossly neglected by the father.

c) The father was ignoring the child's vaginal irritation and that her family doctor said that the child's symptoms are indicative of sexual abuse.

d) The child told her that there is fighting and screaming between family members in the father's home.

e) The child is afraid to eat because the paternal grandmother says that she will get fat.

[37] The mother produced a medical note from her family doctor. He writes that the mother told him that the child was saying that she was beaten at the father's house and her private area has been touched.[1] There is no indication in the note that the doctor feels that the child has been sexually abused.

[38] According to the Peel CAS records, the family doctor advised them that he found no physical evidence of abuse, but based on the mother's allegations, he referred the child for a full medical examination.

[39] According to the Peel CAS records, on August 2, 2012, they were contacted by Dr. Jin from the North York General Hospital. He had examined the child and reported that the child appeared to be fine.

[40] The mother took the child to the Hospital for Sick Children on August 3, 2012. Their clinical note diagnosed the child with a vaginal discharge. The mother was advised to avoid using any cream and to utilize gentle soap. There was no mention of physical or sexual abuse in the note.

[41] The mother next took the child to a counsellor at East York Counselling Services and produced their clinical note dated August 15, 2012. The note indicates that the child alleged that the father spanked her with his hand and that the paternal grandmother had spanked her with a belt. She expressed that her father was mean to her. I treated this evidence with considerable caution. The mother appeared to be present at this interview. She brought the child to the counsellor for the purpose of making disclosures about the father and his family. She had already taken the child to multiple professionals (without any prior disclosure by the child). During her submissions, the mother's intensity was palpable. It would be very difficult for any young child to deal with such intensity. The circumstances of the disclosure create a real suspicion, at this point, that the child has been coached or unduly influenced by the mother to make such allegations. I have little doubt that the child is receiving messages from the mother that the father and his family are not safe persons for her. The reliability of the child's disclosure in these circumstances is highly suspect.

[42] During her submissions, the mother made new allegations against the father, including that the father had put his fingers in the child's vagina, the child doesn't want to go back to the father's house, and that she was told that the child's vaginal condition could only be from harsh soap or from sexual abuse.[2] There was no independent evidence supporting any of the new abuse allegations.

4.3 Findings of Peel CAS

[43] Both parties filed the investigation records from Peel CAS, who investigated the mother's allegations. Peel CAS met with the father and with the child, privately. They asked the mother to come in for an interview after giving her their initial observations that the child seemed safe. According to their records, the mother did not return their calls at first. She eventually returned their calls after a few days and they arranged to see her and the child in her home on July 30, 2012. The mother cancelled this meeting, saying that she wanted CAST to investigate the matter instead.

[44] On August 1, 2012, the Peel CAS worker told the mother that they would not transfer the file to CAST as they had investigated the matter, interviewed the child, the child made no disclosures, there was no evidence of inappropriate discipline and there was no evidence that the child was unsafe or at any risk of harm in the father's home.

[45] In the section of the Peel CAS report labeled "Complicating Factors", they write:

Despite the fact that this worker has completed her investigation and assessment of the referral concerns, as well as assessing for any further child protection concerns within the family home, the mother has repeatedly made further allegations regarding the father. Moreover, each allegation has been of increasing severity as it has been relayed by the mother to other professionals within her community. Furthermore, the timing of the mother's reports to the Peel CAS regarding the child's alleged disclosures (i.e. after this worker had already completed her safety assessment, deemed the child to be safe within her home and advised the mother that the file will be closed) have resulted in both the mother's motivation to report these concerns, as well as the credibility of the allegations to be called into question. Consequently, this worker is concerned that, if these allegations were to continue, it may result in a risk of emotional harm to the child in the future.

[46] In commenting on the father, the Peel CAS report stated:

The father presents as being a very loving, devoted and protective caregiver to the child. He also presented as being extremely open, honest and cooperative throughout this worker's investigation. There is no evidence, at this time, to indicate that either the father or his parents have inappropriately disciplined the child within the family home. There is inadequate information, at this time, to suggest that the child has been sexually abused, nor is there any information regarding who the alleged perpetrator might be.

4.4 The Mother's Honesty

[47] The father filed an exchange of text messages between the mother and himself that took place on April 13, 2012. In this exchange, the mother is trying to convince the father to sign documentation for her social assistance worker that states that she is the primary caregiver of the child, he lives at home with his parents, doesn't work and only sees the child on weekends. She was making this request in order that she could obtain additional public assistance funding.[3] The father refused to do this. This was evidence of the mother's intention to defraud the government.[4] The father alleges that the mother started this court case due to her anger at his refusal to participate in this scheme. The timing of the mother's application is certainly suspicious.

[48] The mother was convicted of shoplifting in 2010.

[49] The father alleged that the mother has been claiming the child as her dependant and receiving child tax benefits and additional public assistance for the child since 2007, despite the fact that the child has not been in her primary care. The mother did not dispute these allegations and the text exchanges referred to above confirm them.

[50] In her application, the mother states that the child has always lived with her. This was clearly false.

[51] The mother appears to be easily willing to lie to obtain an advantage, whether financial or otherwise. This impairs the reliability of her evidence.

4.5 The Child

[52] The evidence, at this point, indicates that the child has thrived in the primary care of the father. The child has attended Montessori school in Mississauga since September of 2011 and received a very positive report card.[5] She received an award at school for kindness and empathy. The father has attended to the child's medical needs. The child participates in a soccer program. She is involved in an after-school program.

4.6 Final Analysis

[53] I find that it is in the child's best interests to be placed in the temporary custody of the father for the following reasons:

a) The child has thrived in his primary care for several years. The status quo should be preserved.

b) The child is well-settled in her community and school in Mississauga. This should not be disturbed.

c) The father presented a plan that properly addresses the child's care. He has considerable family support.

d) The father is the parent more willing at this point to facilitate the other parent's relationship with the child. The mother denied the father contact with the child after July 23, 2012 and wishes to restrict him to supervised access. Despite the mother's allegations, the father recognizes her importance in the child's life and still proposes that she have access each weekend.

e) As set out by Peel CAS, the biggest risk to the child at this point is her exposure to domestic conflict. The evidence from Peel CAS is that the father is acting responsibly, in difficult circumstances, to protect the child from this conflict and the mother is not.

[54] Joint custody is not a viable alternative at this point, given the vehemence of the mother's attack against the father and his family. The evidence filed by both parties indicates that the relationship between the parties (and the mother and the paternal grandmother) is highly contentious and they do not cooperate sufficiently with one another or communicate well enough to make a joint custody order work. See: Kaplanis v. Kaplanis

[55] The issue of the mother's access is more problematic. As set out by Peel CAS there is a real concern that the mother may emotionally harm the child by continually taking her to professionals to make allegations against the father and his family. The court is very concerned that she is undermining the child's relationship with the father and his family, and by doing so, risks impairing the child's sense of emotional security.

[56] Despite the father's access proposal I gave serious consideration to having the mother's temporary access supervised to protect the child. However, I have decided, at this point, that it is in the child's best interests to give the mother the opportunity to prove that she can act in a child-focused manner and I will preserve the existing access regime. I am keeping in mind that the court does not have a complete picture of what is going on with this family.

[57] Strict conditions will be placed on the mother's access to address the stated concerns. I want to make it very clear to the mother that if she does not comply with these terms, there is a real possibility that her access will be reduced and need to be supervised. Aside for a medical emergency (not related to the father or his family), she is not to take the child to any doctor. She is not to take the child to any counsellor, social worker or therapist. If she has a protection concern, this will need to be either raised with either Peel CAS or the court. She is not to attend at the child's school or contact any of the child's doctors. Hopefully, these restrictions can be relaxed as this case proceeds.

[58] The child was unjustifiably prevented by the mother from having contact with the father after July 23, 2012.[6] It is important to reestablish the child's stability in the father's home. She needs a short break from her mother. The mother's access shall not begin until the weekend beginning on September 14, 2012.

Part Five – Transfer of the Case to Peel

[59] Sub-rule 5(1) of the Family Law Rules reads as follows:

WHERE CASE STARTS

5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,

(a) in the municipality where a party resides;

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,

(i) section 22 (jurisdiction of an Ontario court) of the Children's Law Reform Act, and

(ii) subsection 48(2) (place for child protection hearing) and subsection 150(1) (place for adoption proceeding) of the Child and Family Services Act; or

(c) in a municipality chosen by all parties, but only with the court's permission given in advance in that municipality. O. Reg. 114/99, r. 5(1).

[60] This case should never have been started in Toronto. The child has ordinarily resided in Mississauga since May of 2011. She has lived and gone to school in Mississauga. Her extra-curricular activities are in Mississauga. Mississauga is in the court jurisdiction for Peel. This is where this case should have been started.

[61] It is evident that the only reason this case was issued in Toronto was due to the mother's misrepresentation that the child lives with her in Toronto.

[62] Sub-rule 5(8) of the Family Law Rules would permit this court to maintain jurisdiction of the case if it was "substantially more convenient" to have the case heard in Toronto. The onus is on the party seeking this relief. The mother fell well short in meeting this onus. Now that a temporary order is in place, the court in Peel can begin the case management process.

[63] This case will be transferred to the Ontario Court of Justice in Peel.

Part Six – The Order

[64] An order will go on the following terms:

a) The father shall have temporary custody of the child.

b) Starting on September 14, 2012, the mother shall have temporary access with the child each weekend from Friday at 6 p.m., until Sunday at 6 p.m. The mother shall have no access with the child until September 14, 2012.

c) The mother is not to take the child to any doctor, unless the child has a medical emergency unrelated to the father and his family.

d) The mother shall not take the child to any counsellor, therapist or social worker, or any other program dealing with child abuse (not including Peel CAS).

e) The mother shall not attend at or contact the child's school.

f) The mother shall not question the child about what happens in the father's home.

g) Neither parent is to speak to the child about these court proceedings.

h) Neither parent is to denigrate the other parent to the child.

i) The father shall ensure that neither he nor any family member uses physical discipline on the child.

j) If the mother over-holds the child in contravention of this order, all police officers, wherever the child is located, are directed, at the request of the father, pursuant to section 36 of the Children's Law Reform Act, to locate, apprehend and deliver the child to him.

k) This case is referred to the Office of the Children's Lawyer. A copy of this endorsement shall be sent to their office. This is a case where their involvement would be of considerable assistance to the child and the court.

l) The father has 30 days to serve and file his Answer/Claim, Form 35.1 and sworn Financial Statement.

m) This case shall be transferred to the Ontario Court of Justice in Peel for a case conference. The date is to be coordinated with the trial coordinator in Peel.

n) A copy of this endorsement shall be sent by the court to Peel CAS.

[65] If the father wishes to seek his costs of this motion, he shall serve and file written submissions no later than September 10, 2012. The mother will then have until September 24, 2012, to serve and file any written response. The submissions shall not exceed three pages, not including any offer to settle or bill of costs. The submissions are to be delivered to the trial coordinator's office.

Justice S.B. Sherr

Released: August 30, 2012

Footnotes

[1] This latter allegation is not in the mother's affidavit of August 2, 2012.

[2] None of these allegations were in an affidavit. I noted that the nature of the mother's allegations escalated during the course of her submissions.

[3] The mother explained in the text exchange that the purpose of the father saying he had no income and was supported by his parents was to avoid social assistance requiring her to seek child support from him in court.

[4] In the text message the mother says this was the idea of her worker from social assistance and tells the father that her worker said that her goal in life is to milk the government as much as she can. The mother texted: "Its just a letter. Nothing will happen to either of us. And its not a trick to get money from u or anything like that I swear. Scouts honor".

[5] There was no mention by the school about the child having hygiene issues.

[6] On August 28, 2012, I ordered at the conclusion of argument, that the father should have access with the child pending the release of this decision.