Court File and Parties

Ontario Court of Justice

Date: 2015-05-04

Court File No.: Toronto DFO 15 12828 B1

Between:

Michael Mills Applicant

— And —

Lindsay Hachey Respondent

Before: Justice E. B. Murray

Motion heard on: April 29, 2015

Amended Reasons released on: May 12, 2015

Counsel:

• Ms. Lisa Bauman — counsel for the applicant
• Ms. Ghina Al-Sewaidi — counsel for the respondent

MURRAY, E. B. J.:

Background

[1] Lindsay Hachey and Michael Mills are the parents of one child, Elijah, born December 25, 2012. Each brings a motion asking for an order for temporary custody of Elijah. This is my decision on the motions.

[2] The parties separated on March 13, 2015, when Lindsay left their apartment, taking Elijah with her, and went to a shelter for abused women. Elijah was enrolled in a daycare facility near the shelter. Within days, Michael gave up the apartment and moved to live with his sister Sandra in Markham. Lindsay and Michael commenced couples counselling. Michael says he saw Elijah "regularly" during the month after separation. Children's Aid contacted both parents, saying that they wanted to meet with them, and each parent had arranged a meeting with a Society worker for April 14, 2015. Then, on April 8, 2015, Michael began to keep Elijah in his care. The child did not return to his mother over the next week.

[3] Lindsay says that Michael's action was a reaction to her telling him that the relationship was over. She says that over the next 6 days Michael gave her various stories about why Elijah should stay with him longer, and promised to return the child, without doing so. Michael says that Lindsay vacillated about whether they were going to reconcile, and at times agreed that Elijah should remain with him because she intended to join them at Sandra's house. Michael says, however, that on April 9 he decided to keep Elijah because he did not think that his son should be living in a shelter. On April 10 Michael prepared and executed an application for custody, and on April 13 the application was issued by the court. Michael did not tell Lindsay what he was doing.

[4] Early on the morning of April 14, 2014, Lindsay went to Sandra's home, intending to get Elijah and take him to her appointment with Children's Aid. Prior to arriving, she called police to ask for their assistance in retrieving Elijah. She then called Michael, and says that she was surprised when he said that he would make Elijah available. Lindsay arrived at Sandra's home prior to police. Michael refused to release the child. Lindsay says that police quickly arrived, and that Michael falsely told them that she had broken into the home and assaulted him. Michael says that Lindsay did enter the home without his consent and tried to grab Elijah from him. Elijah was present for this incident.

[5] Lindsay was arrested by police, but released without charges the same day. Michael says this is because he refused to give a statement. Police gave Lindsay a referral to victim services. She went to the Legal Aid Family Law office to get assistance in bringing action to claim custody of Elijah.

[6] On the afternoon of April 15, 2015, both parties attended at court, each intending to apply for an ex parte custody order. A judge made a temporary order, to put in place arrangements for the child until further material could be prepared and fuller argument made on the merits. The order provided that Elijah would spend equal time with each of his parents, on a 7-day rotation, and that neither party was to remove the child from the area comprised of York region and the City of Toronto.

[7] During the 7-day period prior to the motion that Michael had Elijah in his care, he had enrolled the child in a new daycare facility, Macklin daycare, near Sandra's home. The presiding judge was of the view that in the short term and pending argument on the motion, Elijah should continue to attend that daycare. He made this order, providing that Michael pay the fees involved.

Positions of the Parties

[8] When this matter was argued on April 29, 2015, I had the benefit of more fulsome material than was before the court on April 15th, particularly as to each parent's role in providing care for Elijah in the 6-8 months preceding the separation.

[9] At argument of the motion before me, the parties agreed that a week on/week off schedule was not suitable for Elijah, given that he is only 2 years old. Seven days is too long for him to be away from either parent. Michael's lawyer submitted that the principle of equal time-sharing was still appropriate, and asked for a "2-2-3" schedule. Under this schedule, Elijah would live with one parent Monday and Tuesday of each week, with the other parent Wednesday and Thursday of each week, and would alternate weekends between his parents.

[10] Lindsay's lawyer suggested that the child live with Mother during the week and with Father on weekends. I was puzzled by this proposal, as that schedule did not seem to take into account her client's plan to be working full-time shortly.

[11] Michael's lawyer submitted that a custody order was not necessary at this time, and suggested instead that the court impose certain parenting rules, set out below:

1. Elijah shall not be removed from the Toronto/York region area without consent of the other parent or a court order.

2. Both parents will have access to all information about Elijah from service providers.

3. Elijah will continue to attend Macklin daycare, with Michael paying the fees.

4. Elijah will continue to see his current family doctor, Dr. Ng, and the parents will follow his recommendations.

5. Neither parent will consume alcohol or non-prescription drugs while Elijah is in his/her care or within 24 hours prior to the child coming into his/her care.

[12] Lindsay maintained her request for a temporary custody order, but did not object to the inclusion of any of these parenting rules in the short term.

The Facts

[13] Michael is 32 years of age and works as a millwright. Lindsay is 30 years of age; prior to Elijah's birth, she worked as a bilingual customer representative for Scotiabank online brokerage. Except for teaching an occasional yoga class, she has not worked outside the home since Elijah's birth. She plans to try to re-enter the work force.

[14] The parties began living together in 2009. Elijah is a first child for each of them. As the parties agreed, Lindsay was a stay-at-home mother and Michael provided financial support for the family.

[15] Michael's work has involved lengthy out of town assignments. Michael says that he cut way back on out-of-town work after Elijah was born, and that this past year his only out-of-town work was in B.C., from September to mid-December. Lindsay's evidence is that he has worked out-of town more frequently than that. Michael was also away from Lindsay and Elijah for 6-8 weeks after this past Christmas. The family had gone to Timmins to spend the holiday with Lindsay's parents; Michael left on December 26th early in the morning and returned to Toronto. It is unclear whether this departure was pre-planned or the result of an argument. According to Lindsay's evidence she and Elijah returned to the family's apartment in Toronto at the end of February 2015; Michael's evidence is that they returned in the second week of February.

[16] Lindsay says that Michael never altered his bachelor lifestyle after Elijah was born, and that even when he has been home, he has spent his time socializing with friends, snowboarding, and working on cars. She says that Michael often refused or complained if she asked him to watch Elijah so she could go out, and that he objected to being asked to watch Elijah for more than 3 hours.

[17] Michael does not dispute that Lindsay was Elijah's primary caregiver. He says that Lindsay is "a caring, compassionate and loving mother". He offers no criticism of her care of Elijah. Michael says, however, that he was an active co-parent in all respects. He says, for example, (in reply evidence) that he did "90%" of meal preparation.

[18] Lindsay has doubts about Michael's parenting abilities.

[19] She maintains that Michael has consumed alcohol to excess throughout their relationship; because she has found cocaine and ecstasy in or near his clothing, she is concerned that he may also be using drugs. Michael acknowledges that at the end of January 2015 he was arrested for impaired driving; his license was suspended until the end of April, and he still faces charges. Michael's 35.1 affidavit discloses that he was convicted in 2006 of impaired driving (as well as assault). Michael says that he is ashamed of the recent charge, and that he will follow recommendations for alcohol counselling he was given recently by a worker from Children's Aid. Michael suggests in his reply affidavit that Lindsay may have a drinking problem, and he alleges that she has taken cocaine and ecstasy. (Lindsay had no opportunity to respond to these allegations.)

[20] Lindsay's evidence is that Michael was disrespectful and verbally abusive to her throughout the relationship. She says that Michael used martial arts techniques to physically control her during arguments, and that in March 2015, when she asked him to leave their apartment, that he assaulted her, pushing her on the bed, jumping on her, and shaking her. Michael says that it is Lindsay who has been violent to him. He acknowledges that there was an incident involving violence in March 2015, but alleges that the violence was initiated by Lindsay.

[21] The evidence is that Elijah is a happy, healthy child who is meeting his developmental milestones. It appears that Lindsay and Michael may have disagreements about the child's health care. For example, Lindsay says that she had to fight Michael to get the child vaccinated in a timely fashion; from Michael's point of view there was no disagreement—he says they agreed to delay vaccinations. Lindsay says that last year, when Elijah was running a high fever, she wanted to give him baby Tylenol, but Michael objected, because he had read that use of the medication was linked to ADHD. Michael says that he did initially object to the use of baby Tylenol, but agreed later when they took Elijah to hospital and emergency room staff prescribed the medication.

Each Parent's Plan

[22] Each parent plans to work full-time, Monday to Friday, and to have Elijah cared for at daycare centre during work hours.

[23] Michael is living with his sister and her 11 year old son at her home in Markham, where Elijah has his own bedroom. While Michael's driver's license was suspended, he was unable to work. The license was reinstated April 29th. Michael says that he is confident that he can get work in the Toronto area for daytime hours.

[24] Lindsay has arranged to rent an apartment in a home owned by the family's former landlords, Shelly and Kent Faulkner. The home is in the neighborhood that she and Michael lived in until March, 2015. That apartment is available June 1st. Lindsay has been contacted recently by an agency with a job opportunity. She is confident that she will be able to obtain a position similar to that which she had prior to Elijah's birth.

[25] For the time being, Lindsay is content to have Elijah in Macklin daycare, an English-speaking centre. Elijah is being raised in an environment in which both French and English are spoken. Eventually Lindsay would like to have Elijah attend a French-speaking daycare facility. However, given that Elijah recently had to adjust to one change in daycare, she does not want to change it again so quickly. Although Lindsay is content to have Elijah continue to see Dr. Ng for the time being, she would like to arrange for the child to have a pediatrician; Dr. Ng is a family practitioner.

Analysis

[26] In making a decision about the temporary custody of a child, a court should be guided by what is in the child's best interests, and consider the factors set out in s. 24 of the Children's Law Reform Act. Those factors are child-centered. As other courts have said, the principle set out in The Divorce Act, which provides that a child should have the maximum contact with each parent which is consistent with the child's best interests, has equal application to cases decided under the CLRA. There is nothing in either the CLRA or the Divorce Act, however, which leads me to believe that a consideration of a child's best interests should involve the application of a principle of equal time-sharing as the default alternative for a child of separated parents.

[27] In rejecting an argument in which a parent asked for equal time-sharing for a 4-year old child, Justice Jennifer Blishen noted as follows:

A claim for equal time sharing was considered by Mr. Justice Vogelsang in Foster v. Foster. The Court notes at para. 35:

35 The annotation of Philip Epstein Q.C. to Cavanaugh v. Balkaron (2008), 2008 ABQB 151, 53 R.F.L. (6th) 295 (Alta. Q.B.) is instructive. Conceding that the Divorce Act promotes maximum contact, Mr. Epstein observes that the statute does not create a presumption of shared parenting and that no onus is placed, in this case on Ms. Foster, to prove that shared parenting should not be ordered. That, I think, correctly states the law. While spending more time with the children would be in the best interests of Mr. Foster, it does not necessarily follow that it would be in the best interests of Olivia and Gavin: Coulson v. Farmer (1999), 50 R.F.L. (4th) 345 (Ont. Gen. Div.). Where "maximum contact" is raised, it is important to remember that "quality parenting time is not measured by days and hours alone - those are a measure of quantity ..." in the words of Sandomirsky J. in Milleker v. Milleker (2005), 2005 SKQB 455, 21 R.F.L. (6th) 381 (Sask. Q.B.).

[28] Michael does not deny that Lindsay has been the child's primary caregiver. He has no criticism of the care she provides for Elijah. He says, however, that he is a committed co-parent, and that Elijah deserves the chance to be with him for periods of time equal to those he spends with his mother.

[29] I cannot at this point assess the quality of care that Michael has provided to Elijah when he has been present to care for him. What is clear is that Michael has been not present in the child's life for very substantial periods over the past 8 months. Eight months is a long time in the life of a two year old.

[30] Elijah is now having to deal with many changes in his life—two new homes, his parents' separation, starting daycare, and then changing daycare. From Elijah's point of view, stability now means a continuation of being with his mother much of the time. She is the parent who has been caring for him most of the time for at least the past 8 months. Her move to the family's former neighborhood will mean that Elijah can be reconnected to his playmates and play groups.

[31] My conclusion on this point does not mean that Elijah should not see his father regularly, but it does lead me to reject any schedule premised on equal time sharing.

[32] Michael's admitted recent and historic difficulties with alcohol consumption are a concern that is relevant in determining the amount of time that Elijah should spend with him. Michael has only recently decided to get counselling for this problem, and the counselling has not yet started. Given these facts, and the lack of clarity as to whether Michael has ever in the past been solely responsible for the child's care for any extended period, I might have been hesitant to provide for overnight stays. The fact that Lindsay has proposed a schedule which entails Elijah spending overnights with his father is an indication to me, however, that she does not believe that the child would be at risk in Michael's care if there were overnight stays. I am prepared to order that Elijah spend time with Michael on alternate weekends.

[33] Given Elijah's age, it would be beneficial for him to see Michael for short, frequent daytime periods in addition to overnight stays on some weekends. This schedule will likely mean that the parents have more frequent contact. That is a worry because of the level of recent conflict between them. I direct that they not attempt to use the transfer times as opportunities to discuss issues between them or concerning Elijah; they should attempt to be cordial, and reserve any discussion to another time, preferably through email. They may wish to consider using Family Wizard to communicate.

[34] In my view, the appropriate temporary schedule for Elijah is one that provides that he resides primarily with Lindsay, and with Michael as follows:

• Alternate weekends, from Saturday at 10 a.m. until Sunday at 7 p.m.;
• Each Tuesday, from after work to 7 p.m. that evening;
• Each Thursday, from after work to 7 p.m. that evening.

[35] This schedule shall commence this coming weekend on May 9, with Elijah to be with his father from 10 a.m. to Sunday at 7 p.m.

[36] I intend that, if Michael wishes and while he is not working, that he may remove Elijah from daycare for the Tuesday and/or Thursday visits at any time in the afternoon after the lunch period and nap (if applicable).

[37] The schedule which I set out may have to be modified when the parties obtain their work schedules.

[38] With respect to the issue of temporary decision-making for Elijah, I will impose the parenting rules suggested by Michael's lawyer with some modification to the non-removal clause. Although Elijah has the opportunity to see Michael's family often because they live in the Toronto area, Lindsay's family lives in Timmins. Elijah should have the opportunity to have contact with both sides of his extended family. Paragraph one of the parenting rules will read: "Except for trips with his mother to visit family in Timmins, Elijah shall not be removed from the Toronto/York region area without consent of the other parent or a court order".

[39] I expect that these rules will be revisited in the case management process as the situation in this family stabilizes. For example, each parent will likely want to take Elijah on a vacation outside the Toronto/York region area. It may be appropriate for Elijah to move from Dr. Ng's care to that of a pediatrician.

[40] I do not believe that the stipulation of these parenting rules obviates the need for a temporary custody order. It is difficult to anticipate every issue which may arise concerning a child's upbringing that requires a decision. Right now, Lindsay and Michael are at a high-conflict point in their relationship. That may change, but the temperature of the conflict increases the likelihood that they may be unable to communicate in a timely fashion to reach a decision together. Lindsay is the parent with whom Elijah will be living most of the time, and it is appropriate that she have the authority to make such decisions if, after consultation, she and Michael are unable to agree.

[41] An order will issue providing that the parties shall consult each other with respect to any major issue concerning the child's upbringing, and that, subject to the parenting rules set out, Lindsay shall have temporary custody of the child.

[42] If costs are sought by either party, written submissions of no more than 8 pages, with any offers attached, shall be submitted within 10 days. Any response shall be submitted within a further 10 days, and reply, if any, shall be submitted within a further five days.

Released: May 5, 2015

Signed: Justice E. B. Murray