Court File and Parties
Court File No.: Windsor, 14-393 Date: 2014-10-21 Ontario Court of Justice
Between:
Brendan Bell, Applicant
J.J. Avery for the Applicant
— and —
Sarah Mallat, Respondent
Linda V. Hawkins for the Respondent
Heard: October 16, 2014
TOBIN J.:
ENDORSEMENT
[1] The applicant brought this motion before a case conference was held seeking a temporary order for custody of the parties' child, Paityn Mallat-Bell born December 25, 2013 ("the child"). In the alternative, the applicant asks for week about care of the child and in the further alternative unsupervised access including overnights.
[2] At the return of the motion leave was granted to the applicant to have this motion heard before a case conference because he has not had access with the child since the parties separated on September 2, 2014. Counsel for both parties had filed the affidavits they wanted considered on the motion.
Facts
[3] The applicant is 23 and the respondent is 24 years of age. They are the parents of the child who is almost 10 months old.
[4] The applicant's evidence is that he parented equally with the respondent while they cohabited. He described himself as a very active caregiver undertaking all of the child's care while the respondent worked or slept.
[5] The respondent's evidence is that she has always been the primary caregiver of the child. She took a maternity leave and during that leave was the child's sole caregiver. The respondent's material does not disclose the length of the maternity leave.
[6] Both parties allege that the other is abusive towards them. They both deny being abusive of the other.
[7] It is common ground that the parties separated on September 2, 2014 following an incident which resulted in the applicant being arrested and then charged with assaulting the respondent. He was released from police custody on an Undertaking Given to a Peace Officer or Officer in Charge. A term of that undertaking is that he abstain from communicating directly or indirectly with the respondent or from going to her place of residence, employment or education. He was granted one opportunity to attend at their residence in the company of a police officer to obtain his personal belongings.
[8] The criminal law proceeding remains outstanding.
[9] The child has been in the care of the respondent since the separation occurred.
[10] The applicant works on a fulltime basis. He intends to live with his family where there is a room and all the supplies necessary for the child.
[11] The respondent works on a part time basis. Her mother is available to assist her in caring for the child.
[12] The respondent continues to reside in the home where they and the child did prior to their separation.
Legal Considerations
[13] Both parties want a temporary order for custody of the child. They make this request under the provisions of Part III of the Children's Law Reform Act ("CLRA").
[14] In proceedings that involve the custody of an access to a child, the court may make such interim order as it considers appropriate. The appropriate temporary order in this case is to be based upon a determination of the best interests of the child.
[15] On a motion for a temporary order which addresses placement of a child, the best interests determination is focused on meeting the short term needs of the child and the ability and willingness of each party to do so.
[16] Providing for stability and safety in as stress free environment as possible are also of importance in determining the appropriate parenting arrangements for this child on a temporary basis.
Application of Legal Considerations
[17] I accept that both parents love their daughter and want to actively parent her.
[18] Based on the record before the court, it is in the best interests of the child to remain in the care of the respondent mother for the following reasons:
I find that while the parties cohabited the respondent mother was the primary caregiver of the child. She took a maternity leave. This was not disputed by the applicant.
The respondent mother works on a part time basis. The respondent father works on a full time basis and during the period of cohabitation had two jobs on occasion. She is more available to care for the child than is the respondent father at this point in time.
The respondent mother is residing in the home where the parties resided prior to the separation. This is the residence that is familiar to the child. Remaining in the parties' home will maintain stability in her residence and the routines that she is used to there. The applicant father is not able to return to this residence at this time because of the outstanding criminal charges arising from his alleged assault of the respondent mother.
The respondent mother's plan for the care of the child is already in place.
[19] In determining when the child should be in the care of the applicant, I consider the following factors:
The applicant is facing criminal charges arising from his alleged violence toward the respondent.
The parties are not able to communicate. The applicant is precluded from doing so by reason of the outstanding undertaking given by him in the criminal proceeding.
The affidavits filed disclose a high level of animosity between the two parties. Both claim the other is abusive towards them. The conflict is quite severe at the moment. Neither parent provided any positive observations about the other with respect to his or her ability to care for the child.
Access exchanges will need to take place with the assistance of third parties because of the undertaking given by the applicant father.
The applicant works full time. He did not include in his evidence his hours of employment or when he would be available to care for the child.
The applicant will be residing with his parents in their home. They have the necessary items that would allow them to meet the physical needs of the child there.
Neither parent provided the court with details of the child's routine. I do not know the child's nap, bath, meal, or bed times or any other aspects of her routine.
The court was not provided with the distance the child would need to travel between the paternal grandparent's home and the respondent's home.
[20] Considering all of these factors I find that it is in the child's best interests to be in the care of the applicant one time each week for a period of three hours. The access exchanges are to be arranged by the respondent and the applicant's mother, Robin Bell. If Ms. Bell is unable or unwilling to assist in arranging for and participating in the access exchange it is to take place at the access exchange program at the Windsor supervised access facility.
[21] The applicant's request to have the child in his care on week about basis is not supported on the evidence. This plan would not provide the child with the stability and certainty she requires.
[22] The amount of time the child will spend with the applicant father is limited because of those matters describe in these reasons that were not sufficiently addressed in the evidence regarding the child, her needs and the respondent father's plan.
Order
[23] Accordingly, a temporary order will go as follows:
The child shall reside in the care of the respondent mother.
The child shall be in the care of the respondent father one time each week for a period of three hours. Access exchanges and when access will take place are to be arranged by the respondent mother and the applicant's mother, Robin Bell. If Ms. Bell is unable or unwilling to assist in arranging for and participating in the access exchange it is to take place at the access exchange program at the Windsor supervised access facility at times when the respondent father is not working.
[24] If costs are sought, the respondent shall deliver cost submissions within five days and the applicant within five days thereafter. Cost submissions are to be no more than three pages together with any offers to settle and a draft bill of cost.
[25] A case conference has been scheduled in this matter for October 30, 2014. It is expected that the applicant's case conference brief and the respondent's supplementary case conference brief will be helpful in better understanding the needs of the child and the respective abilities of the parties to meet them.
Released: October 21, 2014
Barry M. Tobin Justice