Court File and Parties
Court File: 119/12 Date: 2012-08-13
Ontario Court of Justice Family Court at Orangeville
Between
Matthew Ryan Sheppard Applicant
and
Emma Jayne Perry Respondent
Justice: B. E. Pugsley
Heard: August 8th, 2012 Released: August 13th, 2012
Appearances
- Applicant (father) (responding party) and counsel Gillian Shute
- Respondent (mother) (moving party) and duty counsel Jennifer Holder
Endorsement
Background and Procedural History
[1] The parties are the parents of a single child, Dylan Robert Sheppard (M) (DOB: July 31st, 2008). They separated for a time in 2011 and then reconciled. On July 25th, 2012, they separated again, with the Respondent (mother) leaving their residence with the child while the Applicant was at a poker tournament in Buffalo, New York. They met to chat on July 26th, 2012, but that chat led to police involvement and the Respondent (mother) was charged with assaulting the Applicant. She was held for three hours and then released by the officer in charge on terms which prevented her from communicating with the Applicant except through counsel. When she was released she went to the child's daycare to pick up the child as usual. The Applicant had already attended and picked up the child, returning the child to the former matrimonial residence. By the terms of her release the Respondent is prohibited from going to that residence. Her first court appearance is not until August 28th, 2012.
[2] After the Respondent's arrest and the Applicant's pre-emptive reclamation of their child on the afternoon of July 26th, the race to the courthouse was engaged. Both parties ended up at the counter the next day.
[3] On July 27th the Applicant (father) commenced this application. His application seeks custody, a restraining order protecting him from the Respondent, and guardianship over their child's property.
[4] Soon after on the same day the Respondent (mother) also found her way to the courthouse, where she filed an immediate Answer, and moved for an order without notice seeking the residential care of the child.
[5] The father, learning of the mother's ex parte motion, filed his own responding affidavit also on July 27th.
[6] Justice Nelson dealt with the Respondent's motion in chambers on July 27th, 2012. She ordered that the motion be heard on notice on an early date and before a case conference.
[7] The Respondent's motion and the Applicant's cross-motion came on for argument before me on August 8th, 2012. At the conclusion of the motion I reserved my decision.
Issues Before the Court
[8] The Respondent's motion seeks the residential care of the child. The Applicant's motion seeks shared residence and decision making "50:50".
[9] Dylan starts junior kindergarten in a few weeks.
Factual Findings
[10] When the parties were separated last year they agreed to an equal sharing of Dylan's time between each party, although the Respondent characterizes the child as actually being in her primary care in any event while they were separated. She states that no such shared residence can work now as the parties are unable to communicate with each other.
[11] The 2011 agreement between the parties has not been filed by either party. Each states that they in fact do not have a copy of that agreement, but that former counsel may have a copy.
[12] The Applicant submits that he actively arranged access in compliance with the existing terms of release, attending upon the family advice lawyer to arrange that. He also states that whatever I order the child always spent each Friday at the paternal grandparents' house and that that should be continued.
[13] The Applicant works at Chrysler but is off work for medical reasons until October. The Respondent works regular weekday hours. In the past Dylan has attended daycare and has been dropped off and picked up between the parties to their mutual convenience.
[14] Both parties have been responsible for Dylan's care in the past and each has trusted the other with his care. In other words, between them they have shared that care by actual (in 2011) and implied (since reconciliation) agreement.
Judicial Analysis
[15] Since the parties separated in July of this year it is apparent that each has taken advantage of the circumstances of their separation to attempt to gain an advantage over the other through the physical possession of their child. The intervening criminal charges, for no apparent reason, have interfered in the ability of the parties to properly parent Dylan together. I say for no apparent reason because there is no evidence that Dylan was present during or is privy to the assault allegations faced by the Respondent (mother) here, and yet the officer-in-charge has required that counsel, and only counsel, be involved in the parties' arrangements for Dylan. Plainly this is impossible as the Respondent has no counsel and family law counsel, in any event, have responsibilities other than the day to day problems of raising a four year old. The Respondent should seek legal advice on the process required to seek a change in her release terms. The Applicant should consider chatting with his counsel about how to communicate to the crown attorney his views on whether he continues to need the same sort of protection from the Respondent as now exists.
[16] The parties have leapfrogged over the process provided for in the rules (and the MIP presentations) by virtue of the emergency nature of their problem, moving from self-help directly to a contested motion.
[17] At this time the allegations of both parties (and the criminal allegations) are completely untested by cross-examination. In the face of their largely competing positions it is helpful to reflect upon the arrangements made by the parties when they did not expect to have those arrangements placed before a court for scrutiny. Those arrangements were for a broadly shared care of Dylan, with regular day care and regular time with at the least the paternal grandparents. This I find reflects both the status quo ante and what the parties themselves thought was best for Dylan at the time. In my view this pattern of shared care ought to be continued while the parties make their way through at least the initial stages of the court process mandated by the rules.
[18] The current release order requires that any residential arrangement be strictly defined in order to limit the requirement that the parties communicate though counsel. If and when that order is varied it is to be hoped that the parties will be able to inject more flexibility to their residential care of Dylan in everyone's interests.
[19] The appropriate temporary arrangement here does not engage any economic issues as those issues are not emergent in nature.
Order
[20] I therefore make the following temporary order:
The parties shall share the custody of the child of the parties, Dylan Robert Sheppard (M)(DOB: July 31st, 2008).
To enable the transition from the current care arrangements of the said child to the temporary arrangements set out in paragraphs 3 and 4 herein, the said child shall be transferred to the care of the Respondent (mother) by the Applicant (father) on Wednesday, August 15th, 2012, at 9:00 am, by the Applicant dropping the child off at the child's daycare provider for pickup by the Respondent from daycare at the Respondent's pleasure that day. The Respondent (mother) shall transfer the said child to the care of the paternal grandparents at 9:00 am on Friday, August 17th, 2012.
The said child shall be in the care of the Applicant (father) as follows:
- (a) Commencing on Friday, August 17th, 2012, at 6:00 pm, until the following Friday, August 24th, 2012, at 9:00 am; and,
- (b) Every other week thereafter.
The said child shall be in the care of the Respondent (mother) as follows:
- (a) Commencing on Friday, August 24th, 2012, at 6:00 pm, until the following Friday, August 31st, 2012, at 9:00 am; and,
- (b) Every other week thereafter.
The said child shall be in the care of the paternal grandparents, or either of them, each Friday from 9:00 am until 6:00 pm. The transfer of the said child between the parties shall take place each Friday at the grandparents' residence as set out above.
Each Wednesday, commencing on Wednesday, August 22nd, 2012, the child shall be with the party not then having the weekly care of the child from 6:00 pm until 8:00 pm. Unless agreed to between the parties, the pickup and return of the child for each said mid-week visit shall be at the Macdonald's restaurant on Broadway in Orangeville, Ontario.
The terms of the child's residential care may be altered in any respect by the written agreement of the parties.
Unless the parties agree otherwise, in writing, the child shall attend school at the public school associated with the parties' former residence at 49 William Street, Orangeville, Ontario. The daycare provider of the child shall not be changed without the further order of the court or the written agreement of the parties.
All other aspects of the motion and cross-motion herein are dismissed.
Adjourned as previously endorsed to August 29th, 2012, at 10:00 am for a case conference.
No costs.
Justice B. E. Pugsley