Court File and Parties
Court File No.: 452/12 Date: September 3, 2013
Ontario Court of Justice
Re: Ann Marie Marques – Applicant And: Jeffery Melo Raulino – Respondent
Before: Justice Roselyn Zisman
Counsel: Paula Bateman for the Applicant Marcel Banasinski for the Respondent
Heard On: August 13, 2013
Endorsement
Motion and Issues
[1] This is a motion by the respondent ("father") to immediately implement the recommendations by the Office of the Children's Lawyer in the report dated June 19, 2013 by Krystal Dorian and that the temporary order of November 13, 2012 be varied accordingly.
[2] The applicant ("mother") opposes any change to the current order. In her responding affidavit she takes issue with many of the facts in the Office of the Children's Lawyer report and takes issue with the process. She has filed a 17 page dispute.
[3] A letter from the Office of the Children's Lawyer indicated that the mother's dispute was reviewed and it was determined there were no factual errors in the report or new information that would change the recommendations.
Background
[4] The parties were in a common-law relationship from 2009 until they separated October 17, 2012. There is one child of the relationship, Olivia Marques Raulino ("Olivia") born October 15, 2010.
[5] During the mother's maternity leave she stayed home with Olivia until returning to work in September 2011. The maternal grandmother provided daycare for Olivia while the mother was at work.
[6] The father is self-employed as a real estate agent but at this time has limited listings and sales and he also owns a maintenance company.
[7] Both the mother and father agree that they had a difficult relationship.
[8] The mother alleges that the father, despite having a significant amount of free time, did not play an active role in caring for Olivia, that he smoked marijuana on a consistent basis, that he has a bad temper and would routinely yell and belittle her.
[9] The father alleges that he was actively involved in Olivia's life. He wishes to continue to be involved in all aspects of Olivia's life and participate in decision making. He alleges that the main source of their arguments related to the mother being extremely messy and disorganized and he fears she will not provide a safe environment for Olivia. He also fears the mother will exclude him from Olivia's life.
[10] On the evening of October 16, 2012 the mother returned home from work quite late and the parties began to argue and the father accused her of having an affair. As the argument escalated, Olivia woke up, and the mother fearing for Olivia's safety agreed to let the father call the paternal grandmother and both the father and Olivia left the house.
[11] The mother attempted to see Olivia and on October 18th with the assistance of the police the father agreed that she could see Olivia but only for one hour in the home of the paternal grandmother. The father alleged he was afraid the mother would flee with the child. The mother alleged that the father wanted her to sign an agreement for joint custody and when she refused he withheld Olivia from her.
[12] The father arranged for Olivia to be cared for by his cousin, Mellany Carrusca. On October 19th, the mother attempted to see Olivia and attended at Ms Carrusca's home. An altercation ensued and the police were called. Ms Carrusca alleged that the mother grabbed Olivia from her and punched and choked her. No charges were laid as the police concluded that the mother was only trying to protect Olivia and she only pushed Ms Carrusca out of the way.[1]
[13] The mother began an application and served and filed an emergency motion. Both parties filed their own affidavits, affidavits from both sets of grandparents, the father's brother and Ms Carrusca. The motion was before the court on October 25th and by that time the mother had not seen Olivia for 8 days except for an hour on October 18th and for a few minutes on October 19th.
[14] The parties agreed to a temporary shared parenting arrangement pending the hearing of the motion.
[15] A temporary motion was heard on November 13, 2012. The following order was made:
Olivia shall reside in the primary care of the mother;
The father shall have access:
- a) every Monday and Wednesday from 9:00 a.m. to noon
- b) alternate weekends from Saturday at 9:00 a.m. to Sunday at 7:00 p.m.
- c) The father is responsible for pick up and drop off;
Olivia shall continue to be under the care of her pediatrician Dr. Quadir. Both parents shall follow any recommendations regarding Olivia's diet. Both parents shall arrange to obtain an opinion from Dr. Quadir as to the benefits and concerns of Olivia being vaccinated and when such vaccination should optimally occur;
Olivia shall continue to be babysat by the maternal grandmother when she is not in the care of the father and the mother is required to work; and
Neither party or anyone in Olivia's presence shall speak disparagingly about the other parent.
[16] The case was next before the court at a case conference on November 30, 2012. The parties agreed that the Office of the Children's Lawyer would be appointed. The father also agreed to pay child support of $275.00 per month on a without prejudice basis and the parties were able to agree on Christmas access.
[17] A settlement conference was scheduled for February 28, 2013 but was adjourned to June 26, 2013 to allow for the participation of the Office of the Children's Lawyer. A disclosure meeting was held on May 14, 2013 and as the report of the Office of the Children's Lawyer was not received until June 19th the parties and counsel did not attend court and filed a Confirmation requesting a further adjournment of the settlement conference to review the report. As counsel did not provide an adjournment date, the court set the date of October 2, 2013 for a settlement conference.
[18] In the interim, the father filed this motion for a temporary order to implement the recommendations of the Office of the Children's Lawyer.
Report of the Office of the Children's Lawyer
[19] The Office of the Children's Lawyer report recommends joint custody with primary residence of Olivia to the mother. Both parents to consult with a parent coordinator if they are unable to jointly make a parenting decision.
[20] It is recommended that the father have expanded access on alternate weekends from Friday after school until Sunday to be extended to Monday on a statutory holiday and on non-access weeks Wednesday until Thursday. The father is to be responsible for picking up and the mother for dropping off Olivia. There are further recommendations for the sharing or rotating of holidays including that the father has two uninterrupted weeks in July and two uninterrupted weeks in August.
[21] There are further recommendations regarding how the parties should conduct themselves, how they should communicate and travel and mobility restrictions. There is a recommendation that the parties engage in counseling to address issues that the separation has caused and to obtain strategies on how to jointly parent.
[22] The report describes the observations of Olivia in both of the parents' homes and concludes she is comfortable in both homes and there are no concerns about either parent's abilities.
Position of the Parties
[23] Counsel for the mother submits that this motion must be considered in its procedural context that is, it is a variation of a temporary order and that section 29 of the Children's Law Reform Act governs. It is submitted that the onus is on the father to prove that there has been a material change of circumstances that would require the temporary order to be changed.
[24] It is submitted that as the mother seeks sole custody the issue of joint as opposed to sole custody should be determined by the trial judge. She also submits that this is a triable issue as there is ample evidence that the parties are not able to make joint decisions or communicate successfully enough with each other to make a joint custody order workable. She submits that there are no observations or analysis in the report of the Office of the Children's Lawyer that at this stage would justify any change to the current status quo arrangements.
[25] It is the position of the father that the Office of the Children's Lawyer was appointed on consent of the parties and the report is the most independent evidence with respect to Olivia's best interests. It is submitted that the report should be given considerable weight and implemented immediately as a settlement conference has yet to be held and a trial, if necessary, will not take place for quite some time. It is submitted that the order could be made on a without prejudice basis so as not to prejudice the positions of the parties at trial.
Analysis
[26] This is a motion to change a temporary order that was fully argued on its merits with extensive affidavit materials.
[27] Pursuant to section 29 of the Children's Law Reform Act the onus is on the father to prove, on a balance of probabilities, that there has been a material change of circumstances that affects or will likely affect the best interests of the child and that requires the status quo to be changed pending trial.
[28] It is submitted by father's counsel that the temporary order was made very early in the litigation process and that the report of the Office of the Children's Lawyer now provides the court with further information that requires the temporary order to be changed. However, counsel could not point out any new significant information in the Office of the Children's Lawyer report that had not already been before the court when the temporary order was made.
[29] The issues in this case are whether or not an order should now be made for joint custody and whether or not the father's current access should be increased.
[30] There are two generally accepted principles to consider in motions of this nature.
[31] Firstly, generally the status quo will be maintained on an interim custody or access motion unless there is a compelling reason indicating a need for a change to meet a child's best interests. See Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) paragraph 15 and cases cited therein.
[32] Secondly, it is generally accepted that courts should not rely on assessments for interim motions, but only after a trial where they can be tested. In Grant v. Turgeon, supra, Justice McKinnon quotes with approval this principle as articulated by Justice Granger in Genovesi v. Genovesi, 41 R.F.L. (3d) 27 (Ont. Gen. Div.) at p. 32:
An assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding. In rare cases the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement.
[33] Justice Granger goes on to say at p. 33 that the general rule that the assessor's recommendation ought not to be acted upon without a full trial should be followed except in exceptional circumstances where immediate action is mandated by the assessor's report.
[34] I further agree with the submission of counsel for the father that several cases have drawn the distinction between relying on the evidence in an assessment or Office of the Children's Lawyer report as opposed to the recommendations. More specifically, observations of a child's interaction with a parent or a child's statement have been relied upon.[2]
[35] It is submitted by father's counsel that pursuant to section 30 of the Children's Law Reform Act that a court can rely on the expertise of an assessor appointed by the court and that the report can be relied upon at any stage of the proceeding.
[36] However, this is not a section 30 assessment but an investigation by the Office of the Children's Lawyer. At this stage of the proceedings, the court has no knowledge of the educational background, training or experience of Ms Dorian except that she is a social worker who is employed by the Office of the Children's Lawyer and conducted a clinical investigation in this matter. She has not been chosen by the court or the parties and has not been recognized or appointed as an expert.
[37] The mother has raised factual disputes in the report that will have to be considered by the trial judge. Credibility will be an important issue at trial. It appears that Ms Dorian has accepted the father's version of events leading up to and shortly after the separation and his concerns about the mother not involving him in the child's life. For example, she concludes that the mother did not advise the father about the child's enrollment in extra-curricular activities but the mother states that Olivia is not enrolled in any activities at this time. Ms Dorian states that both parents feared the other would flee the jurisdiction with Olivia. She accepts the father's statement that this is the reason he would not initially permit the mother access. Ms Dorian does not even refer to the mother's statement that she never feared the father would leave the jurisdiction. Further, in view of both parents' ties to the community and their respective families this does not appear to be a rational conclusion.
[38] The report does not consider in any depth the mother's allegations of emotional and verbal abuse. Ms Dorian does not refer in her report to questioning why the father did not reveal his criminal record for drug possession on his sworn Form 35.1 parenting affidavit filed with the court or why he did not execute a consent to the release of the records of the children's aid society. Ms Dorian does not question or comment on the father's parenting ability when he refused to permit the mother access for over a week.
[39] The Office of the Children's Lawyer report has little if any analysis explaining the basis for recommending joint decision making or changing the current access arrangements.
[40] Ms Dorian concludes as follows:
Based on my conversations with the parents there is no doubt that both parents continue to be impacted by the separation and have used Olivia to hurt or intimidate the other party by refusing access or withholding information regarding Olivia. Both parents have articulated the importance of Olivia having both parents in her life, however are struggling to get past the hurt and anger the separation has caused. Despite this concern both parents on one occasion during the course of this assessment were able to attend a medical appointment together to make a decision jointly regarding Olivia's immunizations. There has been no conflict reported during the course of this assessment and parents have demonstrated the ability and maturity to communicate respectfully in the presence of Olivia. In order to ensure that both parents continue to be actively involved in Olivia's life, joint custody will be recommended. It is strongly believed that it will be beneficial to Olivia to know that both her parents will be actively involved in all aspects of her life. In the event the parents cannot agree to a decision jointly they will be referred to consult with a parenting coordinator that will assist them with working through their difficult decisions.
…..it is evident that the current access schedule is creating unnecessary travel for Olivia and driving for Mr. Raulino…..Based on observations and the disclosures by the parents, there is no doubt that Olivia is comfortable in the care of Mr. Raulino and would benefit from having increased access, including extended overnight access.
[41] However, a successful joint custody regime requires more than one joint meeting with Olivia's doctor to discuss the issue of vaccinations especially as the temporary order contemplated that both parents would attend. Further, there is no evidence that the parents have yet agreed on the issue of vaccinations. The parties also do not seem to agree on whether or not Olivia should attend daycare.
[42] As the court has no jurisdiction to delegate its authority to appoint a parent coordinator to make final decisions if the parties do not agree, it is not clear how the parties could resolve their disputes without resorting to the court. At this time there are already several parenting decisions that the parents do not agree upon.
[43] Based on the comments in the report by both parents, the parents continue to raise concerns about the other parent's ability to properly care for Olivia. A joint custody order requires that the parents respect each other's competency as a parent. At this stage of the proceedings, based on the material before me including the report of the Office of the Children's Lawyer, there still appears to be a great deal of hostility between the parties and a lack of any meaningful communication.
[44] Ms Dorian states as a fact that in order for both parents to remain actively involved in Olivia's life a joint custody order is being recommended. She does not cite any social science research that confirms this belief although she may at trial be able to expand on the basis of this conclusion.
[45] At this stage of the proceeding, there is no evidence to suggest that Olivia is having any difficulties with the current access schedule. In the report Ms Dorian states as a fact and a conclusion that Olivia is having trouble with too many transitions but there is nothing in the observations that suggest the basis for this conclusion. Although it is natural that overnight access with the father will be expanded at some time in the future, it is difficult to understand the basis for Ms Dorian's recommendation that Olivia spend four weeks of summer access with her father in blocks of two consecutive weeks when currently she is only spending one overnight with him on alternate weekends.
[46] I find that there are no exceptional circumstances or any information in the Office of the Children's Lawyer report that indicates an immediate change in the current access is necessary or in Olivia's best interests at this time. I also find that there is no basis for ordering joint custody in fact in my view such an order would simply encourage more litigation at this time. I therefore find that the father has not met the onus to prove there has been a material change in circumstances.
[47] I would add that at the conclusion of the hearing submissions an order was made regarding the father's summer access as that issue had to be dealt with immediately.
Order
[48] Order as follows:
The respondent's motion to vary the temporary order of November 13, 2012 is dismissed except for the terms that were agreed upon.
If counsel cannot agree upon costs, the applicant shall submit brief written submissions with a Bill of Costs and any offer to settle within 2 weeks and the respondent shall submit brief written responding submissions with any offer to settle within 2 weeks following service of the applicant's submissions.
Justice Roselyn Zisman
Date: September 3, 2013
Footnotes
[1] The police report was subsequently filed as an exhibit to the mother's affidavit on this motion which supported the mother's version of events and not that of Ms Carrusca.
[2] For example see, Forte v. Forte, [2004] O.J. No. 1738 (SCJ) – statement of child relied upon; Abrego v. Monitz, 2006 ONCJ 500, [2006] O.J. No. 5167 (OCJ) – observations of interaction between child and parent relied upon.