Court File and Parties

Court File No.: Brampton 1323/13 Date: 2014-09-18 Ontario Court of Justice

Between: R.F., Applicant

— And —

K.H., Respondent

Before: Justice S.R. Clark

Motion for Order for Sole Custody and Restricted Access

Motion heard on: August 25, 2014 Ruling released on: September 18, 2014

Counsel:

• Ms. Shawn Campbell, for the applicant father
• Ms. Maria Sirivar, for the respondent mother

CLARK, J.:

1:0 INTRODUCTION

[1] The applicant father, R.F. (the father) brings a motion on an urgent basis, dated May 27, 2014 (filed on August 1, 2014) seeking a final or temporary order granting him custody of the subject children, D., age 3½, and B., age 2½ (the children), retroactive to April 11, 2014, when the Halton Children's Aid Society (Halton CAS) together with the Peel Children's Aid Society (Peel CAS) placed the children in his care.

[2] There is an ongoing police investigation of the applicant mother, K.H. (the mother) relating to an alleged abuse incident involving B., who sustained facial injuries on December 6, 2013, while in her care.

[3] The father also seeks an order restricting access to the mother in the following manner:

• That it take place at a location authorized by both he and the CAS.
• That there be no overnight access.
• That the mother not exercise access while in the presence of her common-law partner, A.W.

[4] The mother, on the other hand, asks the Court to dismiss that part of the motion regarding custody, and to maintain the joint custody status quo pending trial, where she intends to seek sole custody, given the live substantive and credibility issues at stake. Pending this, a meaningful access schedule should be determined given that she has now secured appropriate accommodation and has terminated the relationship with the above-named individual.

2:0 THE ISSUE

[5] The main issue is whether the historical status quo of joint custody should be varied to reflect the de facto sole custody regime in favour of the father? It is a generally accepted principle of family law that the status quo ought not to be changed on an interim basis pending trial, in the absence of evidence that the existing arrangement is contrary to and indeed, harmful to the children's best interests.

3:0 HISTORY AND CHRONOLOGY OF EVENTS LEADING UP TO THIS MOTION

[6] The parties began dating in May, 2010. They were never married and never lived together. They broke up some time in October, 2012. They finally separated on or around January 26, 2013, when the mother entered into a new relationship.

[7] Also, in or around January, 2013, they entered into a "parenting agreement", or separation agreement. This agreement defined the custody arrangement to be that the children would not be in the care of each parent for less than 40% of the time.

[8] The father then brought an Application, dated October 4, 2013, seeking, inter alia, custody and child support. At the same time, he also sought leave to bring an emergency motion to obtain a temporary order of custody prior to a case conference on the grounds that the children were in need of urgent medical care; their current "uninhabitable" (to use his word) environment; the lack of proper supervision by the mother; their exposure to illegal narcotics; and the unsupervised discipline of the children by third parties.

[9] He also asked for an order appointing the Office of the Children's Lawyer (OCL) to assist in determining the best interests of the children.

[10] The first appearance was on November 14, 2013. The matter was adjourned to January 14, 2014, for a case conference.

[11] The mother then filed an Answer (dated November 13, 2013) on December 20, 2013, seeking, inter alia, sole custody, child support and a restraining order against the father.

[12] Subsequently, she brought an ex parte emergency motion, dated December 24, 2013, seeking the above, in addition to an order allowing access by the father, but at her discretion.

[13] Based on the materials filed, this Court made a temporary order granting custody to the mother, with access to the father, for at least 4 hours on Christmas day, and as mutually agreed. No restraining order against the father was made. The matter was adjourned to December 27, 2013 for a motion review.

[14] On December 27, 2013, a further temporary order was made by this Court on the basis of minutes of settlement. The salient terms included the following:

• Joint custody.
• After the Christmas break, the children would have primary residence with the mother.
• The father would have access on alternate weekends from Wednesday to Sunday and as required for purposes of attending assessments and counselling with the children at the Erin Oak facility, to address their clinical issues relating to speech therapy and learning disabilities.

[15] On January 6th, 2014, a meeting was held with the parties at the CAS. The file was then transferred from Peel to Halton CAS.

[16] The matter then proceeded as a case conference on January 14, 2014, and was further adjourned to March 31, 2014, with status quo in the interim.

[17] On March 31, 2014, at the settlement conference, the Court made a temporary order including the following terms:

• OCL involvement.
• CAS of Halton and Peel to provide a status report and clinical notes to the Court.
• Status quo re access.
• The trial coordinator to arrange a continuing settlement conference date once the CAS materials have been received.

[18] Subsequently, correspondence dated May 22, 2014, was sent to the Court by counsel for the father, advising that the children had been removed from the mother's care by the Halton CAS on April 11, 2014, and placed with the father. Accordingly, counsel sought leave to bring the within motion.

[19] On May 29, 2014, the Court granted leave to bring this motion.

[20] The motion was then heard on August 25, 2014. The ruling was reserved.

4:0 THE POSITIONS OF THE PARTIES ON THE MOTION HEARD ON AUGUST 25, 2014

4:1 The Father

[21] His affidavit, sworn May 27, 2014, sets out his main concerns as follows:

1. The impetus behind bringing the original motion in October, 2013, was based on receiving information from the mother's best friend about reporting incidents of child abuse by the mother to the Halton CAS. The mother's friend was frustrated with the lack of immediate response to these concerns. At the time, he had no knowledge that the mother's friend had contacted the agency. At no time did he ever contact them or file any complaint against the mother to the police.

2. On or around December 9, 2013, he received a text message from the mother advising that the younger son, B., age 23 months at the time, had tripped over her foot and fallen against the sofa. He sustained severe facial injuries and did not receive medical attention until 4 days later. He took B. to their family physician. It is his understanding that the medical opinion was that the injuries were inconsistent with falling into a sofa and consistent with someone striking B. in the face. The doctor was mandated to report the matter to the CAS. It was his further understanding that the family doctor advised the Peel CAS that she had no concerns with the children remaining in his care until such time as the CAS was able to further investigate.

3. He advised the mother that a meeting with the Peel CAS was arranged for January 6, 2014 regarding this incident.

4. Subsequently, the mother brought an emergency ex parte motion and obtained a temporary order of custody on December 24, 2013.

5. He submits that he is not the aggressor in this relationship. He has been subjected to physical and emotional abuse by the mother throughout their relationship. He endeavoured to, and did turn his life around after the birth of D. He dedicated himself to the children. He quit using drugs and alcohol. He went back to school. He obtained his forklift operator's licence. He obtained a full-time job and even when laid off, he went back to school and obtained his DZ driving licence. He has supported the children financially since the parties separated in January, 2013.

6. He submits that the mother's allegations referred to in her materials are misleading, incomplete, and maliciously designed in an effort to obtain custody of the children without providing the Court will all of the evidence.

7. In or around mid-March, 2014, he was advised by representatives of the Peel and Halton CAS that B. was to be examined by a physician as a result of the injuries he sustained on December 6, 2013.

8. On April 11, 2014, he was contacted by a representative of the Halton CAS and directed to pick up the children. He was also advised at that time that the mother and her common law spouse, A.W., were being independently investigated by the Halton Regional Police. On this same date, he was advised that the mother's eldest child, Jacob, age 9, was picked up from his school by the Halton Regional Police and placed in the care and control of his biological father in Brampton, Ontario. The mother's access to Jacob, he understands, is subject to the approval of the Halton CAS.

9. Since April, 2014, his affidavit sets out, in detail, a litany of missed access by the mother for a host of reasons, including missing dates, not calling to explain why she was not participating in the access event and not providing him with any details as to where she was living. Furthermore, she continued to assert that she was entitled to maintain her relationship with Mr A.W., notwithstanding the CAS restrictions on her access with the children.

10. Part of the difficulty is that the mother has consistently denied that the children have any disability. On the other hand, he has arranged all of their appointments at Erin Oak and has attended all of the appointments with them. Each of the boys is now participating in an individualized therapy program. Since April 11, 2014, when the children were placed in his exclusive care, he is of the view that there has been a remarkable change and that each has adjusted very well, both in their routines and eating habits as well as their attitude.

11. He asserts that the mother has left the children outside to play by themselves unsupervised while she socialized, and that she did not provide a stable, happy, loving, or safe environment for them.

[22] In his supplementary affidavit sworn August 14, 2014, he sets out the following further information:

1. The children continue to reside with him in his home, which he shares with his mother and step-father.

2. He has continued to work with the Halton CAS to encourage a re-introduction of the mother to the children first on a supervision basis, and thereafter without supervision. Although the Halton CAS was prepared to permit overnight visits, he was not prepared to do so because the mother could not provide him with information as to where the children would be staying or sleeping, and who would be involved with them. It is his position that the mother continues to "couch surf" between her mother's home in Caledon, her aunt's apartment in Brampton, and the apartment of her partner, Mr. A.W.

3. The Halton CAS suggested that the mother have access each Monday, Tuesday and Friday, to which he agreed. Unfortunately, the schedule was fraught with difficulty. The mother either did not attend for the access period, or would call immediately prior to the commencement of the access with an excuse as to why she could not attend. Furthermore, it is his belief and understanding that she maintains a relationship with Mr. A.W.

4. It is his position that from April until August, 2014, the mother has only exercised a total of 5.3 hours of access with the children. She has cancelled a number of visits, or has not attended at all on other occasions.

5. As well, other "unusual" occurrences have taken place. For example, on July 23, 2014, after a 1.5 hour access visit with the mother, B. returned home with an eye injury. The mother claims to have had no knowledge of this. His concern, however, is that this represents the third occasion when B. has suffered an injury while in the exclusive care of the mother without any explanation. He believes that these injuries are not as a result of the usual toddler mishaps, but rather, deliberate acts by the mother either out of frustration or anger.

6. He filed, through his counsel, a letter from the Halton CAS dated August 19, 2014, indicating that the child welfare file has been closed, since the boys now live with him in Brampton. However, the authors of the letter indicate that if the children were to return to the mother's care the Society would have concerns regarding their safety and well-being and would therefore encourage him to contact the Peel CAS. The Society is supporting the mother having access with the children, however, only if the visits take place at her aunt's home in Brampton or her mother's home in Caledon. However, should the children have any direct or indirect contact with Mr. A.W., it is recommended that the Peel CAS should be contacted immediately.

[23] In his oral submissions, counsel for the father asks the Court to consider the following points:

1. The mother's affidavit materials suggest that she is residing in the Halton region, in which case she is outside the scrutiny of the CAS, since they have closed their file.

2. Part of the difficulty is that the mother has not secured permanent accommodation or residency.

3. If she is residing in Halton, there is a strong indication that she is living in the same building as Mr. A.W.

4. Accordingly, he submits that the Court should make a final or temporary order to change the status quo based on the material change in circumstances.

5. He submits that such an order would reflect the reality of the current situation. The children are thriving. Furthermore, there have been no concerns expressed by the CAS or otherwise about his parenting ability.

6. Unfortunately, the mother does not have the present ability, or stability in her life to be involved with the children in a more meaningful way. Nonetheless, he is still prepared to facilitate meaningful supervised access to her.

4:2 The Mother

[24] Her affidavit, sworn August 20, 2014, summarizes her position as follows:

1. She has taken the investigation into B.'s injury very seriously and has done everything asked of her to show her support for and cooperation in the process, in an effort to ensure his safety.

2. She submits that she has put the needs of her children ahead of her own and has taken all necessary steps in order to have them returned to her care.

3. It is her understanding that the CAS and Halton Regional Police have concluded their investigations and have taken the position that she would not and did not hurt B.

4. Throughout the course of her relationship with the father, he was the one who was verbally abusive and aggressive toward her.

5. He would insult and belittle her in the presence of the children. After separation, he would constantly contact her and would threaten to take the children from her. He continued to exhibit abusive and controlling behaviour. She believes he uses the children as a tool to hurt her and assert control over her as he did during their relationship.

6. From the time the children were born they have lived with her. In or around February, 2012, she rented a house owned by the father's parents. He would visit frequently and would come and go as he pleased.

7. In or around January, 2013, the father and his own mother forced her to sign a separation agreement, setting out a 50/50 access schedule, threatening that if she did not agree to the arrangement they would not return the children to her. Furthermore, she did not dispute the shared parenting and joint custody term because she was afraid the father would keep the children from her.

8. After a regular access visit on December 11, 2013, the father refused to return the children to her care. He told her the CAS was investigating her. He also told her that he would not return the children until he was satisfied that her home was safe for them. She countered by stating that she had done nothing wrong and if the children were not returned she would bring an emergency motion.

9. She attended the police station in Brampton on or about December 17, 2013, hoping they would assist in having the children returned to her. She was advised that she would need a court order.

10. In early January, 2014, she was contacted by the CAS regarding B.'s injury. She was told that the injury was consistent with a handprint. She was quite devastated by this information and was prepared to cooperate in any way possible. Accordingly, she agreed to a temporary safety plan arranged by the Society where the children would stay with the father. After the investigation, it was her understanding that the CAS and the police did not have any concerns with her directly but that they believed Mr. A.W. may have been responsible for B.'s injuries. In an effort to protect the children and show her cooperation, she broke up with Mr. A.W., moved out of the apartment building, looked for alternative housing, and agreed that the children could stay with the father temporarily.

11. She maintains that she has never hurt the children nor caused any of B.'s injuries in the December, 2013 incident.

12. It is her understanding that the CAS did not deem the temporary removal of the children in April, 2014 as an apprehension.

13. In any event, she had provided a polygraph test to the Halton police and was subsequently advised that they took the view that she did not hurt B. No charges were laid and the investigation was closed.

14. Despite the safety plan, access has been entirely at the father's discretion. Although the CAS has approved her mother's home for overnight access, the father has refused. He has only allowed her to see the children approximately once every two weeks.

15. Her current situation is that she has moved out of her apartment, which is motivated solely by her desire to do what is in her children's best interests. There have been a number of negative consequences for her personally. Since the children are no longer with her, her Ontario Works payment has been reduced significantly. Furthermore, since the father advised the Canada Revenue Agency that the children were in his care the child tax benefits have also been suspended. It has been problematic finding new housing since she requires a first and last month's rent. In the result, she has been staying with family and friends and is looking for employment. She commenced a new job on August 22, 2014 and is earning $11.00 per hour. She believes that it will take approximately two months to save for the first and last month's rent.

16. She is hopeful that she will be in a position soon to have a new apartment and to have the children returned to her.

[25] In her oral submissions, counsel for the mother asks the Court to consider the following points:

1. It is important to note that despite the positions advanced by both parties, historically, the mother has had primary care of the children.

2. It would have a significant impact on the children if the Court were to make an order now shifting primary care.

3. There is a significant amount of information for the Court to weigh and consider. Because of this, the Court does not have the present ability to assess all of the sources of information.

4. The Court should strongly consider that the mother has fully cooperated with any and all investigations.

5. Despite the parties' differences, there is no clinical or professional information or evidence suggesting that she has ever hurt the children.

6. Furthermore, she has taken significant steps to demonstrate her ability to continue to cooperate. She has broken up with her partner, and is actively looking for alternative housing. She moved out so she could facilitate the acceleration of the investigation. She should not be penalized or faulted for "couch surfing" or staying with family or friends.

7. It is important to note that she has moved out of her previous residence without even knowing where she was going to be living. Furthermore, she allowed the father to have the children despite their ongoing differences. This demonstrates that she was putting the interests and safety of the children ahead of her own.

8. Counsel acknowledges that this may not be one of the more prudent steps for the mother to have taken, looking for alternative accommodation when she of limited financial means. However, it demonstrates her earnest in maintaining the safety of the children, even if this is done to her financial detriment by having her Ontario Works benefits substantially reduced, and having her child tax benefit either reduced or eliminated.

9. She has now found full-time employment and has the means to provide for the children. In any event, it is clear from the extant case law that poverty, in and of itself, is no reason against any parent being able to care for his or her children.

10. She vehemently disagrees with the father's characterization that she has only taken advantage of 5.3 hours of access to the children since April, 2014. She submits that she has made every effort to create a meaningful and appropriate access schedule. Unfortunately, it was problematic because she had no car and had to rely on public transit, and it was difficult to coordinate given the father's schedule. She was endeavouring to arrange access visits so that the children could benefit from seeing her other son, Jacob, at the same time.

11. On many occasions, she would contact the father in an effort to arrange access, however, he was selective in giving his consent. Although she concedes that he was at times pleasant, it was only on the basis that he approved of what was being proposed. For example, he maintains the position that there should be no overnights because he did not know where the children would be or with whom. However, the CAS specifically identified that access would or could take place at her mother's residence.

12. In conclusion, she submits that she has cooperated with all authorities on an ongoing basis. Her actions support and confirm her appreciation of the severity of the situation. She has endeavoured to make significant efforts to rebuild her life and to ensure the children's safety.

4:3 Reply Submissions by the Father

[26] Counsel for the father asks the Court to consider the following points in reply:

1. The mother's position that she was endeavouring to cooperate throughout, is an implausible explanation. She has continued to deny that anything ever happened to B. Furthermore, she would have the Court believe that her actions and ability to cooperate were altruistic. In fact, she had little choice because she was being investigated by both the Children's Aid Society and the police.

2. Furthermore, her position that the father somehow denied her access flies in the face of his detailed affidavits.

3. It is perhaps interesting to note that even her other son, Jacob, presently resides with his biological father, and not her.

4. Perhaps the greatest concern of all is that the mother apparently still lives with a friend in the same building as Mr. A.W.

5. Accordingly, although it may be laudable for the mother to suggest that she is trying to get her life in order, she needs to rehabilitate her own circumstances first, before she can provide the necessary stability for the children.

6. The father can and does demonstrate such stability. He honours all of the necessary clinical appointments with the children at the Erin Oak facility. He is making the necessary arrangements for the children to attend pre-school in September, and it would be very helpful if he had the weight of a Court order to effect this arrangement.

4:4 Reply Submissions by the Mother

[27] The Court should be reminded that the parties initially had joint custody. Quite frankly, there is nothing to stop the father from making whatever arrangements are required for the children to attend pre-school without the necessity of Court order now granting him either final or temporary custody.

5:0 ANALYSIS

5:1 General Principles

[28] S. 24 (1) of the Children's Law Reform Act provides that the merits of any application or motion shall be determined on the basis of the best interests of the child or children in accordance with subsections (2), (3) and (4).

[29] A determination of "best interests" is very much a fact-specific exercise which is peculiar to each child in his or her circumstances.

[30] The focus of the exercise, however, must be on the children.

[31] In due course, at trial, the framework for analysis will include considerations of the love, affection and emotional ties each parent has to the children; the children's views and preferences; the length of time the children have lived in a stable home environment; the ability and willingness of each parent to provide the children with guidance and education, the necessaries of life an any special needs; any plans proposed for the children's care and upbringing; the permanence and stability of the family unit; and the ability of each parent to act as a parent.

5:2 The Principles Applied

[32] There has been a profound collision of facts, accusations and allegations put before this Court by both parties.

[33] It is very difficult, and indeed folly, to try to determine wherein the truth lies at this stage of the proceedings.

[34] Both parties are adamant that the other is responsible for undermining the best interests of the children.

[35] Accordingly, it would be dangerous to merely rely on the subjective interpretations of each party in trying to determine the merits of this motion.

[36] Although there is an objective and reliable dimension to this case, given the investigations by two branches of the CAS, as well as the Halton police, the Court does not have the results of any of the investigations, sufficient to tip the balance in favour of one party or the other.

[37] When trying to decide an issue or issues on the basis of conflicting, contradictory, or untested evidentiary material in what has been characterized as a "high-conflict" custody and access dispute, the Court is in no position to fairly conclude that a change in the custody would necessarily serve or advance the interests of the children pending trial.

[38] Perhaps by maintaining the status quo, which the parties were actually able to craft on December 27, 2013, it may have a salutary effect on preventing them from continuing to wage their differences against one another by a series of motions, or in other complaints to the authorities.

[39] If in fact the CAS files have now been closed, perhaps this is the time to implement a term of a previous temporary order (March 31, 2014) to have the Office of the Children's Lawyer now involved.

[40] Although present circumstances appear to have allowed the mother's parental role to slip into a new reality which has now become a de facto sole custody regime in favour of the father, the Court is confident that in fairly short order, the mother will "get it together" so to speak, and be out from under the scrutiny of the authorities, now that she has apparently made a final decision to terminate her relationship with Mr. A.W.

[41] The Court is otherwise relatively satisfied at this stage that each party is equal in parenting skills.

[42] The Court is mindful of the principle that where the needs of the children warrant a decision, at least on a temporary basis, the Court should not shy away from making such an order merely on the basis that it might disrupt current arrangements. This is particularly important where there may be lengthy waiting times for trials.

[43] However, the Court finds that that part of the father's motion to change custody either finally or temporarily fails to meet the threshold test of a material change in circumstances on a balance of probabilities.

[44] Accordingly, the Court finds that a temporary variation or change of custody should not be granted where there is conflicting evidence and no imminent threat or harm to the children. More simply put, the custodial status quo should not be changed in the absence of compelling reasons indicating the necessity of such change to meet the children's best interests.

[45] The parties were able to agree, on December 27, 2013, albeit on a temporary without prejudice basis, that they could go back to a joint custody arrangement, notwithstanding the concerns set out in the father's affidavits.

[46] This determination will hopefully encourage the parties to seek more meaningful solutions, knowing that they both have a vested and equal interest in directing and guiding their children's lives, rather than fighting over "who is the better parent."

6:0 ORDER

[47] The Court makes the following temporary order:

1. The father's motion seeking a final or temporary order for custody of the children is hereby dismissed.

2. The parties shall continue to have joint custody of the subject children until further Court order.

3. The children shall have primary residence with the father.

4. The parties, through counsel, shall craft a meaningful and regular unsupervised access schedule which includes overnights. Access shall not take place, however, in the presence of A.W.

5. The trial coordinator shall arrange an expedited date, with input from counsel, for a continuing settlement conference. Briefs required. The matter can be set for 9 a.m. on any date that is mutually convenient to counsel.

6. In that there has been divided success on this motion, the father maintaining primary residence, and the mother successfully having the motion otherwise dismissed, the Court takes the preliminary view that there should be no order for costs. Given that both parties have made a claim for same, however, if either or both still wish to pursue this issue, this can be dealt with on the next or subsequent Court appearances.

[48] The other issues relating to the involvement of the OCL, and child support shall also be the subject of further discussion at the continuing settlement conference.

Released: September 18, 2014

Justice S.R. Clark