Court File and Parties

Court File No.: Brampton 91-09 Date: 2013-04-29 Ontario Court of Justice

Between: Reynaldo Ruddock, Applicant

— And —

Candyce Williams, Respondent

Before: Justice S.R. Clark

Motion by Respondent Mother for Custody/Primary Residence

Motion Heard on: April 23, 2013 Ruling Released on: April 29, 2013

Representation:

• Reynaldo Ruddock……………………………………………………………………. on his own behalf
• Mr. Glen Cook.…………………….…………………………….for respondent mother (moving party)

CLARK, J.:

1:0 INTRODUCTION

[1] This is a motion, dated March 7, 2013, brought by the respondent mother (hereinafter referred to as "the mother") seeking a temporary order that she have sole custody of the subject child, Heavenly Renee Williams-Ruddock, born January 19, 2005, presently age 8 (hereinafter referred to as "the child"), with the applicant father (hereinafter referred to as "the father") having alternate weekend access. Alternatively, she seeks primary residence.

[2] To give more particular context to this matter, the mother seeks to vary the final order of custody to the father, made in 2009. She asks this Court to now change custody to her, based on the recommendations of the clinical investigator in a report of the Office of the Children's Lawyer, dated March 4, 2013.

[3] The father, on the other hand, asks the Court to dismiss the motion and to maintain the status quo pending trial, and that he continue to have sole custody, with weekend access by the mother.

[4] This motion was originally scheduled to be heard on March 13, 2013, however, counsel for the father at that time, Ms. Sophia Williams, sought an adjournment on the basis that she did not have sufficient time to prepare responding materials. She also submitted that the father wished to file a dispute to the OCL Report, as he did not agree with aspects of the investigation and the recommendation (sole custody to the mother). This adjournment request was opposed, however, the Court granted same and ordered that the father serve and file his responding materials on or before March 18, 2013.

[5] The matter was otherwise adjourned to April 23, 2013.

[6] No responding materials were ever filed.

[7] On April 23rd, 2013, Ms. Williams appeared on behalf of the father and brought an oral motion to be removed as counsel of record. This was granted.

[8] The father then asked for a further adjournment of this motion so he could retain new counsel. The adjournment request was denied, given the "time-sensitive" issues at stake. The Court was also not satisfied that the father had acted with dispatch or due diligence since the last court date.

[9] Accordingly, the motion proceeded.

2:0 BACKGROUND

[10] The parties have never lived together.

[11] The mother was the primary caregiver for the first two years of the child's life.

[12] She then decided to move with her new partner to Vancouver, British Columbia, at the end of 2007. She apparently told the father that she would only be gone for a few months.

[13] She also apparently made arrangements for her own mother to care for the child, while the father would still enjoy access.

[14] After approximately two months, the father then took the child to live with him, where she has been to date.

[15] However, shortly after raising the child with the help of his new girlfriend (who had now given birth to a child of their own) he apparently realized that it was difficult, and so he moved in with his own mother, who assisted in the care of the child. Subsequently, he met a new partner and they had a son together. He would go back and forth between his home and hers.

[16] Meanwhile, the mother remained in Vancouver for approximately 3 ½ years before returning to this jurisdiction.

[17] The father eventually brought an application in 2009, obtaining a final order for custody.

[18] It is patently clear that the relationship between the parties is presently strained.

[19] There are two very different versions of events as to why the mother left the child and was gone for such an extended period of time.

[20] Whereas the mother states she believed she left the child in the care of her own mother, the father contends that she effectively "abandoned" the child, which should now disentitle her to make a claim for custody or primary residence.

[21] On February 1, 2012, the Court ordered the involvement of the OCL. As indicated, the report has now been prepared.

[22] The report sets out the recommendation that the mother should now have sole custody of the child, with alternate weekend access and some mid-week access by the father.

[23] The report is quite detailed and comprehensive. On its face, it paints a somewhat disturbing "picture" of a lack of appropriate or meaningful parenting by the father, and that the child is effectively being raised by the paternal grandmother, rather than him.

[24] The mother, therefore, submits that there has been such a material change in circumstances that action must be taken now, and that the best interests of the child can only be met by an immediate change of custody with primary residence to her.

3:0 THE POSITIONS OF THE PARTIES

3:1 The Mother

[25] Mr. Cook, counsel for the mother, submits that the father has not prepared any responding materials which is indicative of his history of not caring and not giving this matter the attention and priority that it deserves.

[26] He submits further that, although the general rule is that custody ought not to be changed pending trial unless the circumstances require same, the contents of the OCL Report meet the necessary threshold of demonstrating a clear and present risk of physical and/or emotional harm to the child.

[27] The OCL Report is annexed as exhibit "A" to the mother's affidavit, sworn March 7, 2013. The paragraphs have been numbered commencing at page 4. Counsel cites the following information from the report:

• On page 7, at paragraph 14, the child has stated that the father leaves her with her paternal grandmother "a lot". She would prefer to live with her mother full-time and have access with her father. She said that she was not happy living with her paternal grandmother. She was concerned after disclosing this and stated that she did not want her father to be told that this was how she felt because he would yell at her. She told him before and he got really mad. She stated, however, that she is "not afraid of him". Her father has told her that the mother and maternal grandmother say they love her, but don't really. The father has said bad things about the mother calling her a "bitch", and using the "f-word". Her mother does not say bad things about the father, however. The paternal grandmother also yells at her.

• On page 7, at paragraph 15, it is indicated that the paternal grandmother gets the child up in the morning and tells her to get ready for school, and takes her to the bus. After school, she walks to her paternal Aunt's house in another building by herself. She used to be picked up by her cousin, but not anymore. The building security officer lets her into the building when no one comes to pick her up. At times, no one is home when she gets there, so she tells the security officer, or just waits in the hall until someone arrives. She is not given anything to eat and is expected to finish any snacks she has in her bag. She stays at her Aunt's home until about 11 o'clock while her grandmother is at work. The father does not pick her up very often.

• On page 8, at paragraph 15, it sets out that the father used to hit the child on her body if she got in trouble, although he was not doing this anymore. Her teeth hurt and so she tries to eat on the opposite side. The father has told her that it would cost a lot of money to fix her teeth. It makes her sad when her father and paternal grandmother tell her that they do not want her at her mother's. She reported that she would also get in trouble when she spoke with the Children's Aid Society and/or the OCL investigator.

[28] Accordingly, Mr. Cook submits that the above-noted excerpts from the Report are concerning enough for this Court to now grant temporary custody to the mother, or in the alternative, primary residence to her, pending trial.

[29] Mr. Cook has tendered two cases in support of his position. The first is S.B. v. H.C., 2009 ONCJ 136, a decision of Justice Pawagi, dated April 3, 2009, and Bos v. Bos, 2012 ONSC 3425, a decision of Justice Mitrow, dated June 15, 2012. (more will be said about these cases shortly).

3:2 The Father

[30] The Court allowed the father to make oral representations notwithstanding he had not filed an affidavit or other responding materials.

[31] He asks the Court to consider the following:

1. The child does not get off the bus by herself. There are several other family members who assist in meeting her so that she is not left alone. The father has two older sisters, one of whom has three children of her own. He also has a younger and older brother. He submits that the mother is "making up" this accusation against him. He has been picking the child up after school when she gets off the bus for at least the last three months.

2. He has had custody of the child over the last six years, and there were never any issues raised until the mother came back to this jurisdiction.

3. None of the mother's concerns make any sense. Any time the CAS was called, it was by him, not her. Nothing has ever been mentioned before about the child being left alone.

4. There is still a significant amount of information which this Court has not heard because his counsel was so busy dealing with other cases and did not have sufficient time to prepare an affidavit. He believes that this is unfair. Every time he told his former counsel what he wanted to tell the Court, he was told that the Court did not need to know any of this at this time. He questions why this would be so, particularly since Mr. Cook has been able to tell the Court everything the mother wishes him to say.

5. The child attends a French immersion school. She is struggling somewhat and is endeavouring to catch up. He is doing his best to make sure that he does. He reminds the Court that he is receiving no child support from the mother.

6. He does not talk to the child about this case at all. He submits, however, that the mother is "coaching" her and telling her things that a child is not supposed to know about this court proceeding.

7. He has been taking the child to the family doctor, located at the Bramalea City Centre, for her dry scalp problem. He has obtained a medication cream for this.

8. He has addressed the toothache issues. To suggest that this is a sign of neglect on his part is unfair, and should not be used against him. All children at this age eat candy. He understands the importance, however, of the child having regular dental check-ups.

9. It is also unfair to suggest that the child is under-weight. She is a "picky" eater, like a lot of children at this age. He and his mother do encourage her, however, to eat properly.

[32] He disputes the contents and recommendation of the OCL Report.

[33] He seeks the earliest trial date.

[34] Since this case started, he feels like he is the "victim". He asks, rhetorically, why the mother has not been held to account for why she left the jurisdiction and was away from the child for six years? Furthermore, he believes he has nothing to be sorry for, since he has been a good father to the child, and was the one who "stuck around", unlike the mother.

[35] He also asks the Court to consider that he has made some significant changes in his life. He is now working steadily at night, and is making inquiries about attending school during the day.

4:0 ANALYSIS – CHANGING CUSTODY ON AN INTERIM BASIS PENDING TRIAL

4:1 The Governing Principles

[36] The case of Genovesi v. Genovesi (1992), 41 RFL (3d) 27, supports the general proposition that an assessment report is usually ordered for use at a trial, as opposed to being used at an interim proceeding. Only in rare or exceptional cases should the information obtained by the assessor require immediate scrutiny by the Court resulting in some variation of the existing custody arrangement. Parties who think of themselves as favoured in the report should not move necessarily for a change in interim custody pending trial. This practice seems to be an ill-disguised attempt to gain an advantage at trial by the establishment of some new form of status quo.

[37] On the other hand, the case of Abrago v. Moniz (2006), 2006 ONCJ 500, 35 RFL (6th) 460 stands for a number of propositions, one of which is that where the needs of the child warrant a decision on a temporary basis, the Court should not shy away from doing so merely on the basis that it would disrupt current arrangements. This is particularly important where there may be a lengthy waiting time for trial.

[38] The case of Watts v. Grove, [2000] WDFL 268, [2000] O.J. No. 909 provides some guidance as to when there might be compelling reasons to change the status quo pending trial. For example, where there is such cogent evidence of child abuse, this may be sufficient.

[39] In S.D. v. H.C. (supra, paragraph 29) the mother brought a motion for temporary increased access on the strength of a favourable OCL Report, which was vigorously opposed by the father. The report recommended gradual increase in access with the goal of alternate weekends and half of all school and religious holidays. The Court granted the motion, being alive to the fact that the case law clearly states that assessment reports should only be used at trial, where they can be tested, and not at motions for interim relief. Nonetheless, where the Court needs to make interim adjustments to advance the child's best interests, the Court is entitled to consider the raw data and information gathered by the assessor, rather than the assessor's recommendations. The Court examined the OCL Report, but only considered the clinician's direct observations about the quality of access visits between the mother and child. The analysis considered the following points:

1. In rare cases, the information obtained by the assessor might require immediate scrutiny by a judge to determine whether there should be some variation of the existing arrangement.

2. The Court should not be precluded from considering all of the evidence that is available in coming to a determination of the best interests of a child.

3. The Court can consider the statement made by a child to the assessor.

4. It is not the report's recommendations, but its substance and analysis that is of value. In other words, although the Court may not wish to rely on the conclusions of the report, it can consider the evidence contained therein.

5. It is important to note the distinction between those cases dealing with custody and those dealing with access.

6. The direct observations of the clinical investigator may be the only independent evidence available regarding the quality of the access between the child and a parent.

7. The Court can consider what would be in the child's best interests, having particular regard to clause 24(2)(a) of the Children's Law Reform Act, "the love, affection and emotional ties" between the child and her mother.

[40] In Bos (supra, paragraph 29) the father sought increased access and to maintain care and control of the children, on the strength of recommendations made by a report from a psychologist. In ruling favourably on this issue, the Court addressed how to consider an assessor's report on a motion. The Court gave particular consideration to the following:

1. An assessment report prepared for trial should not be acted upon until trial, except in exceptional circumstances, where immediate action is mandated by the assessor's report.

2. Motions judges should be loath to disturb an interim custody disposition when a full trial of the issue is to take place in the immediate future.

3. The existence of an assessment report should not make it "open-season" for parties to automatically bring motions to implement some aspects of the report, or to tweak or otherwise change an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the Court's discretion.

4. An assessment report ought to be approached with caution prior to trial. The Court cannot delegate its decision-making authority to an assessor from the Office of the Children's Lawyer.

5. There is jurisprudence, however, which suggests that it is not always necessary for a Court to find "exceptional circumstances" before considering some or all of the recommendations contained in an assessment report on a motion for interim relief.

6. The Court should not be precluded from considering all of the evidence that is available in coming to a determination of the best interests of a child. In particular, the Court should be able to consider the statement made by a child to the assessor.

7. The jurisprudence has evolved to the point where, although the general principle enunciated in Genovesi continues to be well-founded, it is not so rigid and inflexible as to prevent a Court on a motion to give some consideration to the content of an assessment report where it provides some additional probative evidence, and where the Court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the Court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances".

8. The Court has a duty to make orders in a child's best interests. It would be counter-intuitive to this principle to impose on the Court an inflexible blanket prohibition against considering any aspect of an assessment report, particularly when the only independent objective evidence is from an expert assessor.

9. However, in a situation where the Court is being asked to consider the assessment without making a finding that "exceptional circumstances" exist, it will be a matter for the Court to weigh all appropriate factors within the context of each case. A non-exhaustive list of factors include the following:

   • How significant is the change being proposed?
   • What other evidence is before the Court to support the change requested?
   • Is the Court being asked to consider the entire report and recommendations, or is it necessary for the purposes of the motion only to consider some aspects, including statements made by the child, observations made by the assessor, or any analysis contained in the report which may be of assistance?
   • Are the portions of the recommendations which are sought to be relied on contentious, and if so, has either party requested an opportunity to cross-examine the assessor?

4:2 Application of the Governing Principles to the Evidence

4:2.1 Change of Custody

[41] This is a motion to change a final order. It is not simply a disruption to the status quo. It is a high onus to change a final order on a temporary basis.

[42] Applying the factors from point number 9 from paragraph 40, the Court is still not satisfied, on a balance of probabilities, that the mother has met the onus. The proposed change is significant. There is scant other evidence to support the change, other than that which is as yet untested. Furthermore, portions of the OCL report are highly contentious. The father intends to dispute same and cross-examine the assessor.

[43] The Court is being asked to decide this issue solely on the affidavit filed by the mother, plus the oral submissions of her counsel, and the oral submissions of the father. Some of the mother's affidavit contains inadmissible information in the form of hearsay. So does some of the OCL Report.

[44] The Court is of the view that there should be a trial of the issue of custody which will afford the opportunity and benefit of having oral evidence that can be properly tested through cross-examination of the parties and the clinical investigator who authored the OCL Report.

[45] Given the significant period of time over which the father has had custody, the status quo should not be changed on an interim motion in the absence of compelling reasons necessitating change. The concerns raised by the mother are "disturbing" but not so compelling as to alter the status quo.

[46] The Court is unable to make a clear determination of the facts that might justify a material change in circumstances.

[47] Therefore, in light of the inclusive, conflicting, contradictory and untested material, the Court is in no position to conclude that a change of custody would necessarily serve the child's best interests.

4:2.2 Change of Primary Residence

[48] For the same reasons noted above, the Court declines to change primary residence.

5:0 CONCLUSIONS

[49] However, there is good and valid reason to expand access to the mother.

[50] This does not require a finding of exceptional circumstances, nor must there be a material change in circumstances. It should merely reflect the present needs and interests of the child, taking into account her express wishes to have more time with the mother.

[51] It is important to consider that the trial cannot be heard until September, 2013, at the earliest. The following order aims to better promote the best interests of the child in the interim.

6:0 ORDER

[52] The Court makes the following temporary order:

1. The mother's motion to vary custody on an interim basis is dismissed.

2. The mother shall have expanded access to the child, Heavenly Renee Williams-Ruddock, born January 9, 2005, on alternate weekends from Friday after school or 4 p.m., until Sunday at 6 p.m., commencing May 3, 2013, and each Tuesday and Thursday from 4 p.m. until 7:30 p.m., commencing Thursday May 2, 2013, and as further agreed between the parties.

3. The father shall have access on Father's Day from 10 a.m. until 7:30 p.m. whether it is his weekend for access or not. The mother shall have the child on Mother's Day from 10 a.m. even if it does not fall on her access weekend.

4. All exchanges shall take place at the child's school, or if a non-school day, the exchanges shall take place at an agreed upon public place in the father's neighbourhood.

5. The mother shall be permitted four one week access periods (7 days) during the summer school break from the end of June to the end of August, 2013.

6. This matter is otherwise adjourned to July 24, 2013, in courtroom 201 at 9:30 a.m. to be placed on the trial audit list, and to be set down for trial for the sittings between September 3 and 6, or 9 and 13, 2013.

7. The parties may make written submissions on costs for the court appearance on March 13, 2013, as well as costs on the motion heard on April 23, 2013. The mother has until May 15, 2013, to serve and file same. The father has until May 30, 2013 to serve and file his submissions.

Released: April 29, 2013

Justice S.R. Clark