Court File and Parties

Court File No.: D81879/15 Date: March 14, 2016

Ontario Court of Justice

Re: Roberto Palma Tobar – Applicant And: Lyndsay Bowley – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Paul Cooper for Roberto Palma Tobar
• Paul Krumeh for Lyndsay Bowley

Heard On: February 29 and March 2, 2016

Endorsement on Temporary Motion

Introduction

[1] The Applicant ("father") commenced an Application for custody of the two children, Natalie Palma born March 29, 2015 and Dahlia Palma born March 29, 2015, for access by the Respondent ("mother") to be supervised, orders incidental to custody and for a non-removal order by the mother.

[2] An urgent motion, before a case conference was heard on November 5, 2015. The father was represented by his counsel and the mother by duty counsel. A temporary without prejudice order was granted for the children to continue to reside with the father. The motion was adjourned to December 21, 2015 and the mother was granted leave to bring a motion to transfer proceedings or any other motions.

[3] On December 21, 2015 counsel for the mother requested and was granted an extension to serve and file the mother's responding materials. The date to argue all motions was set for February 29, 2016.

[4] On February 29, 2016 counsel for father asked for a brief adjournment and for mother's counsel to produce all of the Catholic Children's Aid Society's ("society") un-redacted disclosure notes. Father's counsel had only received a redacted version of the society notes and he appended some of these notes to the father's affidavit. He wished to compare his notes to those received by mother's counsel and also any further disclosure that was received by mother's counsel. The mother's counsel was ordered to provide a copy of all of the un-redacted society notes to father's counsel and the motions were adjourned to March 2, 2016.

[5] The motion was argued on March 2, 2016 and my decision was reserved.

Background

[6] The father is 25 years old and the mother is 24 years old. They met in 2009 and began a relationship shortly thereafter. There is a dispute as to when they began to live together which is not relevant to these motions. In about June 2014, they discovered they were pregnant and then learnt that the mother was pregnant with twins.

[7] The twins were born on March 29, 2015. The parties resided in Toronto with the paternal grandparents. The father was laid off from his employment as an automotive service technician. The mother was a manager at a restaurant before her commencement of maternity leave. As a result both parties were at home full-time when the twins were born.

[8] There is a dispute as to which parent was the primary caregiver to the children during this time. The mother returned to work in about July 2015 as she alleges she had not choice as the father resisted her suggestion that he seek employment. The mother transferred her maternity benefits to the father.

[9] In mid-July the parties and the children moved to Crystal Beach as they sought more affordable accommodations. The mother obtained employment at restaurant in Crystal Beach and the father continued to stay home with the children. Despite the move, the parties agreed that the children's doctor would remain in Toronto.

[10] The relationship between the parties deteriorated. The father alleges the relationship ended on or about October 1, 2015 whereas the mother alleges the relationship ended on October 15th when the police were called and she finally had the courage to end the relationship. The mother deposes that she did not advise the police of the assault that day or of any previous assaults in order to protect the father.

[11] The father alleges that the mother was "unwilling or unable" to care for the children and told him to take them. The father took the children back to Toronto and they have continued to reside in his care. The father is residing with the paternal grandparents who assist him in caring for the children.

[12] The father alleges that prior to the week-end of October 24 to 26th the mother only requested access from Sunday to Monday. For the week-end of October 24 to 26, the mother requested that he drop the children off at 10:00 p.m. on Saturday October 24th and despite his concern about the late time he agreed.

[13] The father alleges that he was contacted by the Niagara Child and Family Services ("FACS Niagara") on the next day and told to pick up the children from the maternal grandfather's home. The father alleges that when he was able to locate the children, the mother demanded money from him including the money he received for the child tax benefit. The father alleges that the children were wheezing, smelt like burnt plastic and smoke. He alleges that the mother was high on marijuana and maternal step grandmother was high on crystal methamphetamine which when smoked smells like plastic. He was very disturbed by this as he had been told that the children had been cared for by the step maternal grandmother.

[14] On the other hand, the mother alleges that the father improperly "hijacked" the children from her in the guise of exercising access and then filed an ex parte motion for sole custody.[1] The mother denies the allegations regarding the incident of October 26th and denies any drug use by herself or the step maternal grandmother. She alleges the parties fought over her request for child support.

[15] The mother alleges that the parties had agreed on her exercising access based on her work schedule at the time and that the children were to be in her care on her days off from Sunday night to Monday night until she obtained proper accommodations.

Position of the Parties

[16] The father seeks an order for sole custody and that the children continue to reside in Toronto. It is the father's position that the mother consented to the children being in his care and being returned to Toronto. The father proposes that the mother exercise day access to the children in Toronto.

[17] The mother seeks an order that the court proceedings be transferred to Welland, Ontario as this is the habitual residence of the children prior to their wrongful removal by the father. She seeks an order for sole custody, child support and is prepared to offer the father access on week-ends under the supervision of his mother.

Involvement of the Children's Aid Society

[18] A social worker from the hospital where the children were born contacted the society and reported concerns that the parents were young with newborn twins and the mother had a history as a teenager for cutting and anxiety and therefore she was at high risk for post-partum depression. Both parents admitted drug use. The mother admitted to past use of marijuana and cocaine during her first trimester but stopping after she found out she was pregnant. The father admitted that he had used medical marijuana for pain but has now stopped.

[19] A social worker from the society met the parties. She concluded that the both parents cared for the children and appeared motivated to meet their needs. Both parents were very involved, hands-on and comfortable in the caregiving role. They were living in the home of the paternal grandparents who offered a lot of support but the parents were hesitant to accept their help. The social worker noted that was financial strains on the parents, there was conflict in the relationship and that they were both immature in the way they interacted with each other. The parents were prepared to work voluntarily with the society and to follow through with the referrals made by the society worker.

[20] The file remained open from April to September 2015. The father reported on April 14, 2015, that he was concerned about the mother who was sleeping all of the time and did not appear to be committed to caring for the children. The father was concerned that the mother was suffering from postpartum depression. The father was advised not to leave the mother alone with the children until she could be further assessed. At a home visit the next day, the worker observed that the children were well-cared for and that both parents were comfortable and appropriate in caring for the children. The worker assisted the parents in resolving their dispute about the children visiting with the maternal family which the father was opposed to by suggesting that the children not be left unattended and that one of the parents should be present. The society notes also state that there was no report of any physical violence.

[21] There were several other visits by the society social worker and a society health specialist. No concerns were noted with respect to the care of the children. The file was to be closed as the parents were moving out of the jurisdiction. During the last visit on June 26th the mother reported that she was considering returning to work and that the father would remain home to care for the children. There were no reports of any domestic violence.

[22] In November 2015, the Catholic Children's Aid Society in Toronto received a referral from the FACS Niagara who at the time had an open investigation with the family due to concerns about domestic violence, mental health concerns and drug use. It was reported that the father alleged that he left the mother due to domestic violence that existed in their relationship, that he had concerns about the mental health of the maternal grandparents and the mother and he had concerns about alcohol and drug abuse in the maternal grandfather's home. The mother was alleging that the father, who had taken the children to Toronto, was abusing the children. The FACS Niagara found no evidence of this.

[23] A society worker was assigned and attended at the home of the father. The case note of January 16, 2016 indicates that since her involvement the father has been open to working with the society as has the maternal grandmother who assists him. She reports that there are no concerns about the care of the children and that they are being well cared for and their medical needs are being met by their family doctor.

[24] A letter summarizing the society's involvement was filed. The letter states that on January 18, 2016 the society worker left a message for the mother to contact her about the children. As of the writing of the letter dated February 11, 2016 the mother had not yet returned the call.

[25] In the mother's affidavit sworn February 24, 2016 she does not indicate she has now followed up with the society. This is despite the fact that she alleges in her affidavit that the father is giving inaccurate information to the society about the mother her and about her access visits with the children.

[26] The mother appended and relied on an Ontario Family and Child Strengths and Needs Assessment prepared by a society worker that covers the periods of May to July 2015. The mother deposes that this assessment covers areas such as drug use, parenting skills, family history of criminal behaviour and supports. She deposes that overall she is rated as having an adequate support system, protective of children, adequate coping skills and no criminal record and no history of child maltreatment. There is no summary statement by the author of the assessment, parts are blacked out and no information about how the scoring is done.

[27] A Risk Assessment completed by a society worker was also appended to the mother's affidavit completed on July 26, 2015 that indicates "low risk" and there is no indication of any domestic violence, any physical altercations and only a notation about conflict between the parties.

[28] An Ontario Safety Assessment completed by a society worker on May 26, 2015 was appended to the father's affidavit that indicates there is no conflict in the home and no risk of serious physical and/or emotional harm or neglect to the children.

[29] At this stage of the proceedings and without an explanation by a society worker about the rating scores of any of the assessments relied upon by either parent, I put no weight on these assessments. I have considered and put weight on the actual case notes and the society summary letter filed on this motion.

Applicable Statutory Provisions and Legal Principles with Respect to Jurisdiction

[30] Family Law Rule 5 (1) (b) states that a case with respect to custody of or access to a child should be heard in the municipality where the child ordinarily resides, except for case described in section 22 (jurisdiction of an Ontario court) of the Children's Law Reform Act.

[31] Section 22 of the Children's Law Reform Act states as follows:

Jurisdiction

22.--(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual Residence

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

Application of Legal Principles to the Facts of This Case with Respect to Jurisdiction

[32] It is submitted by counsel for the mother that applying the definition of habitual residence in section 22 (2) of the Children's Law Reform Act that the parties had moved to Crystal Beach with the children and that the father had removed the children without the mother's consent. It is therefore submitted that the habitual residence of the children was not changed by the father's abduction and the case should be transferred to the Ontario court of Justice in Welland which is the court in the municipality where the children ordinarily resided prior to their removal by the father.

[33] It is submitted by counsel for the father that the mother consented to the children being in his care and that he reside with them in his paternal family's home in Toronto. It is further submitted that the move to Crystal Beach was only temporary and that the best evidence with respect to the children is in this jurisdiction where they have resided for their entire lives except for about three or four months.

[34] I find that based on the affidavits filed, that the mother did consent to the father having the children in his care and moving back to Toronto. She admits this in her affidavit although she does state that this was only a temporary arrangement until she could find appropriate accommodations which she now deposes she has. However, the pivotal time to consider is the time the children were removed and based on her own affidavit she agreed to the father having care of the children and that they agreed she would have access on the days she was not working. She further alleges that the father was evicted from their apartment in Crystal Beach. Although the father denies he was evicted, she was aware that he was no longer residing in Crystal Beach and his intention was to back to his family's home where the children had resided before the move to Crystal Beach.

[35] Even if I had found that the mother did not consent to the removal of the children, on a balance of convenience the best evidence about the children is in this jurisdiction. Their family doctor is in Toronto and the society was involved with the parents and children since their birth and was again involved with the father and children after they returned to this jurisdiction. Although the FACS Niagara was involved with the parents, case notes from that society have not yet been obtained and their involvement would have been quite brief.

[36] I find that the proceeding should continue in this court.

Applicable Statutory Provisions and Legal Principles with Respect to Temporary Custody of Children

[37] Any proceeding with respect to custody or of access to children is determined with respect to the best interests of the particular child before the court in accordance with the factors set out in section 24 (2) to (4) of the Children's Law Reform Act.

[38] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not resolved at a trial.[2]

[39] The status quo should be maintained until trial unless there is material evidence that the children's best interests require an immediate change.[3]

[40] It is also well established that especially for young children frequency of contact is important to maintain a close bond with both parents and where parents reside in relatively close proximity a court has more options to create a parenting plan that ensures meaningful contact with both parents.

Application of Legal Principles to the Facts of This Case with Respect to Temporary Custody and Access

[41] I have considered the factors set out in section 24 of the Children's Law Reform Act.

[42] The challenge on a temporary motion is to make such an important decision based on affidavit materials that have not been tested by cross-examination and on an incomplete record. A temporary order can have and frequently does have long term implications.

[43] In this case, although both counsel filed detailed affidavit evidence and obtained disclosure from the Catholic Children's Aid Society, there is no information from the FACS Niagara, no police occurrence reports and the mother has not yet met with the Catholic Children's Aid Society. This information is important as it may assist the court in determining issues with respect to the credibility of the parties, an assessment of the mother and her plan to care for the children, suitability of the maternal family to have unsupervised access to the children and their ability to provide support to the mother. There are allegations of drug use by both parents and some members of the maternal family and some concerns about the mother's mental health. Reports from the parties' family doctors will also be helpful to alleviate concerns about these issues.

[44] Based on the materials before the court at this stage of the proceedings, I find that it is in the children's best interests to continue in the primary care of the father for the following reasons:

(a) Both parents love the children and there are emotional ties between the children and their parents. The children are attached to the paternal family, especially the paternal grandmother, who has been and will continue to be involved in their care. There is no information about the children's relationship with the paternal family;

(b) The children have resided in the paternal home for their entire lives except for three or four months when they resided with both parents in Crystal Beach. Since October 2015 the children have resided with the father in the same home;

(c) Based on the involvement of the society when the children were first born, both parents are capable of meeting the physical needs of the children. The children have no special needs. The children's aid society has met with the father and the paternal grandmother since his return to this jurisdiction, investigated his home and confirmed that the children are being well-cared for and all of their needs are being met. The mother did not return the telephone call of the society worker and has not yet contacted the society worker. Therefore the society has been unable to investigate the current allegations that have been made about the mother and her family and as a result the court is left with no objective evidence about the mother's circumstances;

(d) The father's plan provides the children with stability as they are residing in their previous home, cared for by the father with the assistance of the paternal grandmother and other members of the paternal family. The father is currently not working having been laid off from his previous employment. He is currently receiving Ontario Works. The children have continued to have their medical needs met by their family doctor;

(e) The mother has moved to new accommodations with her mother. She is currently not employed and also in receipt of Ontario Works. She plans to return to school in the Fall and will then arrange for daycare for the children. She will have the assistance of her mother. Although this plan may be suitable in the future, at this time it would result in the children being moved from their familiar surroundings to a new home. There is no current independent investigation of this plan from either the society in Toronto or Niagara that would assist the court in assessing the suitability of this plan;

(f) There is no compelling reason to change the current status quo; and

(g) Although there are allegations of domestic violence by the mother against the father, these were not reported until after the father obtained temporary care of the children on the urgent motion. I am cognisant that there are many reasons that women in particular do not report incidents of domestic violence and it is only after they have left an abusive relationship that they feel safe enough to report such violence. The father reported domestic violence by the mother against him and concerns about her belligerent and aggressive behaviour before the separation. The society confirmed that there was verbal conflict between the parties. The mother's former employer filed an affidavit alleging that on October 15th he drove the mother home after her shift, that the father was angry and aggressive and then he heard screaming and found the mother on the floor. Although he called police, waited for them to arrive and made a statement apparently no charges were laid. According to the father the mother was taken to the hospital by the police due to concerns about her mental health. Without police reports about this incident and in view of the contradictory evidence, I am not able to make any findings as to whether or not either party inflicted violence against the other and whether or not the children were present during any such incidents.

[45] With respect to the mother's access, the father submitted that he has no desire to curtail the mother's contact with the children and offered the mother day access on Saturdays and Sundays as long as the mother exercised access in this jurisdiction. He submitted that he has concerns about the children being with the mother overnight due to his various concerns about the mother and her family.

[46] Pending further evidence, I find that at present the mother's access should be exercised only in this jurisdiction and that the children should not be left alone with any members of the mother's family.

Order

[47] There will be a temporary order as follows:

1. The Applicant, Roberto Palma Tobar shall have custody of the children, Natalie Palma born March 29, 2015 and Dahlia Palma born March 29, 2015.

2. The children shall reside in the primary care of the Applicant.

3. The Respondent, Lyndsay Bowley shall not remove the children from the City of Toronto pending further order of this court or the prior written authorization of the Applicant.

4. The Respondent shall have access to the children once a week on Saturday or Sunday for a minimum of six hours. The Respondent shall confirm the day and time of each visit by text message or email to the Applicant at least 48 hours prior to the visit. The Respondent shall not permit the children while in her care to have access to any third party except in her presence and she shall not leave the children in the care of any third party.

5. The matter is adjourned to May 17, 2016 for a case conference. Briefs to be filed.

[48] If the Applicant is seeking costs, brief written cost submissions, not to exceed 3 pages with a bill of costs and any offers to settle attached, shall be served and filed within 14 days of the release of this decision. The Respondent shall serve and file his brief written response, not to exceed 3 pages with any offer to settle attached, within 14 days of the receipt of the Applicant's costs submissions.

Justice Roselyn Zisman

Date: March 14, 2016

Footnotes

[1] The mother was actually served on October 31st with the urgent motion and attended court on November 5th when the motion was heard.

[2] Coe v. Tope, 2014 ONSC 4002, para. 25; Costello and McLean, 2014 ONSC 7332, para. 11

[3] See above and cases cited therein