Court File and Parties
Court File No.: FO 240-12 Date: 2013-05-14 Ontario Court of Justice
Between: David Thomas Evans, Applicant
— And —
Catherine Lynn Evans, Respondent
Before: Justice Lawrence J. Klein
Endorsement released on: May 14, 2013
Counsel: B. Kritinic for the Applicant Joe Sinicrope for the Respondent
Endorsement
Klein, J.:
[1] This matter proceeded on the motion brought by the Applicant Father for specific terms of access (Tab 11) as amended (Tab 17). The Respondent Mother replied with a cross-motion (Tab 13) re: specific terms of access. All of the motion was accompanied by a great deal of affidavit material being tabs 12, 18 and 20 by Applicant and tabs 15, 16, 21, 22, 23 and 24 by Respondent.
[2] The issue before me as to whether the present access arrangements should continue requires me to decide that issue on the basis of the aforesaid affidavit evidence. I am acutely aware that on that basis it is very difficult to determine credibility of all deponents as to what amounts to the best interests of the children.
[3] The history of this matter is that after the parties separated they entered into a separation agreement dated March 15, 2010 whereby they agreed that the children, Tyler David Camille Evans, born 10 November 2003 and Lauren Karoline Evans, born 25 May 2006, would be in the joint custody of the parties and would reside primarily with the Respondent mother. The parties also made provision for the children to reside with the Applicant every 2nd weekend and during portions of the holiday periods.
Shortly thereafter, the Respondent decided that it would be in her and the children's best interests to move to North Bay. The Applicant agreed to the move on the basis that the children's visits with him would continue. The parties made arrangements to meet and exchange the children every second weekend, ultimately settling on Gravenhurst. Some difficulties did occur but access visits were facilitated on the original schedule up to the events leading to the bringing of these motions.
[4] It is trite law as set out in Gordon v. Goertz by the Supreme Court of Canada that it is a fundamental premise that children's best interests are paramount and the objective of promoting maximum contact with the non-custodial (or non-primary residential) parent is consistent with those interests. The right of the children to visit with that parent is a fundamental right and should only be interfered with in the most extreme and unusual circumstances. The party who seeks to reduce normal access, to reduce the status quo, must provide a justification for doing so. The greater the restriction sought, the more important it becomes to justify that restriction.
[5] In making a temporary order in custody/access cases, the court should generally attempt to maintain the status quo in the absence of important reasons suggesting that change is necessary to meet the children's best interests. It is the children's best interests that are to be considered and not those of the parents.
[6] Generally, the parent who moves away from an established situation assumes the cost of access and other problems connected with facilitating access by the children to their other parent. In the case at hand the Respondent has functioned as a problem-maker and not as a problem-solver.
[7] The reasons advanced by the Respondent as to why access could not continue morphed as solutions were suggested. Firstly, she claimed that her anxiety prevented driving at night or in less than ideal situations. Secondly, she claimed that her husband's back problems only permitted him to drive to Gravenhurst one weekend per month. Thirdly, she claimed that claustrophobia prevented her from accompanying the children on the bus to and from Gravenhurst. She had not facilitated skype access for the children because the computer in her home belonged to her husband. The only suggestions to alleviate the problem suggested by the Respondent involved either the Applicant driving from Burlington to North Bay and back again one weekend per month on the basis that the Applicant was unemployed and the extra travel time would not be a burden on him or that the children's access could be restricted to one weekend per month. Frankly, restrictions in children's contact with their parent will not improve their relationship with him. Such restrictions will only serve to penalize the children.
[8] I am further very concerned that the Respondent would consider it appropriate to bring the children to a consultation session with the Respondent's psychologist on April 10, 2013 in relation to the "upcoming court proceedings on April 19th". The fact that the Respondent would consider this consultation to be in the children's best interests is beyond rational belief and has dragged them into the middle of this dispute. Consultation with or counselling by any mental health professional for the children shall only occur with the consent of the Applicant, their father, or pursuant to an order of this court.
[9] The Applicant raised the issue of the Respondent's motion to change having not been brought in good faith in that the Respondent mother was attempting to frustrate the Applicant father's access to the children and further attempting to remove the Applicant father from the children's lives. Any determination of that issue is best left to the trial.
[10] As is the case here, where the court only has competing affidavit material, the judge should not choose which affidavits he prefers nor should the judge decide credibility on that basis. A trial should be ordered where significant issues are in dispute. In this case, the issue of access arrangements and child support.
[11] No further motions should be brought and this matter should proceed without delay to a final solution by trial of an issue pursuant to rule 15 of the Family Law Rules.
Temporary Order
The Applicant father, David Thomas Evans, shall enjoy access with his children, David Tyler Camille Evans, born 10 November, 2003 and Lauren Karoline Evans, born 25 May, 2006 as follows:
a) Every 2nd weekend from Friday at 6:30 p.m. to Sunday at 4:00 p.m. with the exchange to occur at the McDonalds in Gravenhurst. This access will be extended to Monday at 4:00 p.m. on Holiday Weekends.
b) One week in each of July and August from Friday at 6:30 p.m. to the 2nd Sunday following at 4:00 p.m. with the pick-up to occur at the McDonalds in Gravenhurst and the return at the children's home in North Bay.
Bi-weekly access is to be suspended during the summer access period and will resume on the weekend following Labour Day.
The Applicant father shall enjoy weekly skype access with the children on Tuesday nights at 7:00 p.m. The Respondent mother shall take all steps necessary to establish skype access. This access will occur in private.
If a visit is missed due to illness of either child, it shall be made up at the earliest opportunity.
Neither parent shall speak negatively about the other parent in front of the children.
Neither parent shall permit the children to consult with or be counselled by any mental health professional without the prior consent of the other parent or pursuant to a further order of this court.
Pursuant to rule 15 of the Family Law Rules a trial of an issue shall be scheduled by this court on the issues of access arrangements and child support.
No further motions shall be brought without first obtaining the consent of this court.
The Applicant father's position having prevailed in this motion, he should have costs awarded. The Applicant shall serve and file his submissions on costs on or before May 31, 2013. The Respondent shall file and serve her response on or before June 14, 2013. The Applicant shall serve and file any reply on or before June 21, 2013. The submissions of the parties are to be no longer than five pages in length (excluding the bill of costs) and counsel can be assured that I have read the following cases: Serra [2009] O.J. No. 1995, Boucher (2004), 71 O.R. (3d) 291 and Delellis [2005] O.J. No. 9345.
Released: May 14, 2013
Signed: "Justice Lawrence J. Klein"
