Court File and Parties

Ontario Court of Justice

Date: November 29, 2016

Court File No.: Brampton, 1114-16

Between:

Michael Edward Nykvist Applicant

— And —

Kaitlyn Tracy Tielve and Denise Tielve Respondents

Before: Justice Philip J. Clay

Heard on: November 24, 2016

Reasons for Judgment released on: November 29, 2016

Counsel

Ms. Barbara Barnett — counsel for the applicant

Ms. Shana Maiato — counsel for the respondent Denise Tielve

Ms. M. McCarthy — agent for the respondent Kaitlyn Tielve

CLAY J.:

MOTIONS FOR CUSTODY

MOTIONS FOR THIRD PARTY RECORDS

PROCEDURAL BACKGROUND

[1] The detailed background to this matter is well set out in the affidavit of the Applicant father ("father") dated November 21, 2016 and now filed at Tab 1 of Vol. 3 of the Continuing Record.

[2] Briefly stated, the father commenced an Application for custody of the child Toby Edward Nykvist-Tielve born June 9, 2016 with the Respondent mother ("mother") as the only respondent. The father sought an urgent order. I granted a without prejudice order on November 4 that provided him with custody and set out terms of supervised access to the Respondent mother pending the motion review today.

[3] Contemporaneously with that Application the Respondent Maternal grandmother ("MGM") brought an Application in the Brantford Ontario Court of Justice (OCJ) with both parents as respondents seeking essentially the same relief. The Honourable Mr. Justice G. Edward granted an order on November 4 that the MGM was to have a without prejudice custody order that was to be reviewed in Brantford on November 17. The MGM retained counsel and also brought a motion returnable November 17 in Brantford for the release of third party records including police and CAS records in both Brantford and Peel. Her argument was that the MGM should retain custody of the infant until those records were released.

[4] Justice Edward determined that the MGM should be added as a respondent to the Peel action and he transferred the review of both November 4 orders to this court and also transferred the third party record motion. He encouraged the parties to work out a time sharing plan pending the motion review in Brampton today. The parties were unable to agree as the MGM took the position that the baby should not leave her home pending the return. The Brantford OCJ transferred the entire file to this court on a final basis. All three motions are now before me.

ISSUES

(1) Should the Brampton court be the appropriate place of hearing of this matter?

(2) Should a review of the without prejudice orders be conducted prior to all third party disclosure being received?

(3) What terms should accompany a parenting plan pending a case conference?

THE LAW

[5] This matter began in each municipality by the bringing of a motion without notice and prior to a case conference. Such a motion is governed by Rule 14 (12) of the Family Law Rules (FLR) which reads as follows:

MOTION WITHOUT NOTICE

(12) A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child's removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences. O. Reg. 114/99, r. 14 (12).

FILING FOR MOTION WITHOUT NOTICE

(13) The documents for use on a motion without notice shall be filed on or before the motion date, unless the court orders otherwise. O. Reg. 114/99, r. 14 (13).

ORDER MADE ON MOTION WITHOUT NOTICE

(14) An order made on motion without notice (Form 14D) shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court. O. Reg. 114/99, r. 14 (14).

[6] As is noted above, the review date for the Brantford order was November 17 and the review of that order was adjourned to November 24 before me.

[7] The two Applications and urgent motions were accepted for filing under Rule 5 of the FLR which is set out below:

WHERE CASE STARTS

5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction - Family Court), a case shall be started,

(a) in the municipality where a party resides;

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,

(i) section 22 (jurisdiction of an Ontario court) of the Children's Law Reform Act, and

(ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act; or

(c) in a municipality chosen by all parties, but only with the court's permission given in advance in that municipality. O. Reg. 114/99, r. 5 (1).

STARTING CASE - DANGER TO CHILD OR PARTY

(2) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, if there is immediate danger that a child may be removed from Ontario or immediate danger to a child's or party's health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise. O. Reg. 114/99, r. 5 (2).

[8] On a motion review the reviewing judge has the opportunity not available to the granting judge in that they have affidavit evidence and submissions from both parties. Any decision made before a case conference in a custody matter should be to ensure that there is an organized plan that prima facie is in the best interests of the child pending further information being made available.

[9] The term best interests is defined in s. 24 (2) of the CLRA. A number of factors are listed. Sub-clause (h) provides that one factor is "the relationship by blood or through adoption order between the child and each person who is a party to the application."

[10] Many cases have considered the difference between the claims of a third party, including active and involved grandparents, and the claims of parents. In Charron v. Vignaux-Fines, the court stated that:

A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure the child's well being. He must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or the mother or returns to live with them. The third person must also show that, unlike the person having parental authority, he or she is able to provide the care and affection needed by the child.

EVIDENCE

[11] Four large volumes of evidence were filed on these two motion reviews. Some of it was duplicated as each party wanted to ensure that information filed in one municipality was reviewed in the other. The sheer volume of material at this early stage and the emotional and financial cost to the parties in preparing it is a good illustration of why Rule 14 (12) should be narrowly construed in favour of conferencing first. This particular matter did involve very young parents, an infant child, and allegations of mental health and substance abuse issues and it needed some direction.

Father's Position

[12] The father's position was well set out in his affidavit material and Ms. Barnett wisely confirmed that the court had just read it and kept her submissions brief. She said that Justice Edward had effectively decided that this is a Brampton case and she did not see why opposing counsel still raised that as an issue.

[13] She objected to the position of opposing counsel that the court should not decide any custody or access issue for a 5 month old infant until all the police and CAS records have been received. She noted that the parents resided together in Brampton with the child from prior to the child's birth on June 9, 2016 to mid-July 2016. The MGM moved to Brantford leaving the baby in the care of the father at the home he lived in with his parents. She had the child with her in her home from mid-July to mid-August and acquiesced in the child returning with the father to the paternal grandparent (PGP) without raising any issues of violence or alcohol or drug abuse during all of that time. It was only since the mother brought the child to her again in October 10 and she decided to be the primary parent for the child that she unduly limited the father's time with the child to two or three hours in her home. The result has been that the father has only had access twice for three hours since Justice Edward's November 4 order. Ms. Barnett said that there was nothing in the Brantford order that said that the access needed to be supervised.

[14] With respect to the third party records generally Ms. Barnett said the father consented to any disclosure motion. He had already produced a Peel Police clearance. He had provided clear drug and alcohol screens. He had a full time job and his plan was to care for the child in his parent's home in which he had resided with the mother off and on until October 10. Ms. Barnett effectively said that the request for responses from third parties was simply a delay tactic as the child was currently with the MGM.

[15] With respect to protecting the infant child from the mother given her unstable and at times bizarre conduct Ms. Barnett said that the affidavits and all the attached messages showed the father's concern for the mother's mental health and the steps that he had taken to ensure that the mother was safe and that she would not be alone with the child.

[16] By way of contrast she said that while the MGM obtained an order partly on the basis of a doctor's letter stating that the mother had mental health concerns and should not parent the child on her own, the MGM had in fact left the mother in charge of the child for a full 5 hours with only the mother's 15 year old sister to help out. The mother was in crisis during this time.

Mother's Position

[17] Ms. McCarthy stated that the father sought an urgent order when he knew that the child was safe with the MGM. The mother now supported the MGM's claim for temporary custody. She argued that consistency of care is important. The MGM was home full time. The father worked as does the PGM.

Maternal Grandmother's Position

[18] MGM moved on June 30, 2016 to Brantford. Ms. Maiato acknowledged that the child was with the mother and father at the PGP's home when she moved. The mother was supposed to attending her high school in Brampton during the 2016/17 year. Ms. Maiato said that the mother brought the child to the MGM from mid-July to mid-August. She said the MGM's affidavits stated that the father was not involved with the child and rarely visited or asked about him. On the other hand, she said that the father consistently provided her with money and diapers/formula for the child. Ms. Maiato said that this was evidence that the father had acknowledged that the MGM was raising the child and he was providing her with child support. The MGM admitted that the mother had begun to spiral out of control in the Fall. She left her home and the baby and went to try and live with the father. Ms. Maiato said in effect that the father was a bad influence upon the mother and either encouraged her to party or did little to support her as a mother. When the mother brought the child back to Brampton from mid-August to October 10 the MGM disapproved of that step. When the mother brought the child back to her home October 10 the MGM determined that the only safe thing to do was not to let either mother or the father take the child out of the home.

[19] Ms. Maiato noted the father did not act responsibly when he denied that he and the 17 year old mother were drinking over the November 4-7 weekend as the mother took a picture of the father at a liquor store. The PGP were away for the weekend. The father had the weekend off work which is why he tried unsuccessfully to pick up the child from the MGM on November 3. The MGM called police when he came to get the child. The police told him to come back in the morning and in that time frame the mother obtained the without notice custody order. The father then had to leave the child with the MGM, but the mother insisted on going with him rather than staying with the MGM and the baby. The father bought liquor to party as he did not have the child and his parents were not home. In the course of this weekend the mother fell down the stairs. The father claimed drinking was not involved but he did not take her to the hospital until the next day. The MGM claimed that the father left the hospital without the mother being seen and the father claimed that the mother refused to stay over his objections. The MGM said either way he knew or should have known that the mother could be concussed and he should have ignored her protestations and taken her directly to the hospital on the night of her fall. His failure to do this was relied on heavily in the MGM's argument that the father could not be trusted to be alone with a vulnerable 5 month old child.

ANALYSIS

Should the Brampton Court Be the Appropriate Place of Hearing of This Matter?

[20] Notwithstanding that, Justice Edward added the MGM as a party to the Brampton action, transferred the Brantford review and the entire Brantford file to Brampton. Counsel for the MGM and the mother took the position that the place of the hearing was still in issue. They were correct in stating that Justice Edward did not specifically state in his endorsement or order that the case should be heard in Brampton. I find that everything else he did implied that he felt that the child was ordinarily resident in Brampton or that Brampton was the appropriate place for this matter to continue. I note that Justice Edward had the authority to make an urgent order under R. 5 (2) of the FLR and in granting that motion he must have concluded that there was an urgent risk to the health or safety of the child if he did not make it. The making of an urgent order did not mean that he felt that the child was ordinarily resident in Brantford.

[21] On the evidence before me I find that the child is in fact ordinarily resident in Brampton. Both parents lived in Brampton when he was born there on June 9, 2016. Immediately after his birth the parents and the child continued to reside at the home of the PGP in Brampton. The MGP and their three daughters had lived in Brampton from 2005 to June 30, 2016 when all of them except the mother moved to Brantford. Where the child stayed and under what terms after mid-July is in some dispute. The parties did generally agree with what I find to be the facts that the child went with the mother to the MGP's home in Brantford from approximately mid-July to approximately mid-August. The child and mother were back in Brampton at the PGP home from approximately mid-August to October 10. The mother took the child back to Brantford on October 10 where the child was staying at the time of this motion.

[22] This matter is properly before this court and I will be the case management justice.

Should a Review Be Conducted Before All Disclosure Is Received?

[23] All parties want all the CAS and police disclosure that they can obtain and I have signed orders for same.

[24] As the Brant Society had already opened a file I will send a copy of these reasons to their worker and legal counsel. It is not clear if the Peel Society has been contacted by Brant but to ensure that everyone is on the same page I will also send this to Peel counsel.

[25] I have been advised that the doctor is in Peel and the physiotherapist in Brantford. As I have found Peel to be the child's ordinary residence any other health professional that the child might be referred to must be in Peel region unless the father consents otherwise in writing. I note that the mother and MGM's doctor is the same one as Toby is taken to in Mississauga.

Should Either the Father or the MGM Have Temporary Custody of the Child?

[26] In order to address this question I need to make some findings of fact.

Findings of Fact

[27] This is a very early stage in these proceedings and there is still quite a bit of disclosure to be received. The evidence may look different once all the information is received. The evidence reviewed was by affidavit only and was not tested in cross-examination. However, at this stage I make the following findings of fact:

(1) The father lives in an appropriately furnished basement apartment in the PGP's home and has all of the necessary items to care for the child.

(2) The father receives support from his parents, particularly the PGM who primarily cared for the child when the father was at work, even when the mother was still living in her home.

(3) The father has a secure full time job in which he works shifts and has historically had three out of four weekends off. He states that in January he will have every weekend off until the end of March.

(4) The father has shown the ability to care for the 5 month old child without the PGM being present.

(5) The father and the mother were enmeshed in an unhealthy relationship. The father claimed to have ended that relationship well before October 10 but the mother did not accept that the relationship was over. The father states that he was clear in his communications with the mother but if so what he was saying she was not hearing. The father may have given the mother mixed messages and false hope by permitting her to return to the PGP home after he claimed the relationship was over.

(6) The mother may have an undiagnosed mental health disorder. The mother's doctor thinks that is the case as do the MGM and the father. The mother's actions are consistent with such a theory. The mother put her safety, even her life, at risk despite the best efforts of the father and MGM to prevent this.

(7) In the period mid-July to November 11 the mother had not fully reconciled with the MGM, was not attending high school and was engaging in risky behaviour. She was either not consistently living at the MGM's home and or not following the rules.

(8) Since November 11 the mother has reconciled with the MGM and her plan is to live with her parents and sisters, accept treatment for a possible mental health disorder and attend a regular high school in Brantford.

(9) There is no evidence that the father has an ongoing drug or alcohol issue and the only tests received came back negative for both.

(10) The father did use poor judgment on the weekend of November 4-7 when he allowed the 17 year old mother to come back to the PGP's home with him and a male friend (she would not stay with MGM and baby). The father purchased liquor for that weekend. The mother had an unexplained fall in his home and it was subsequently revealed that she had a mild concussion. The events of that evening and the subsequent follow-up are very contested and it is not necessary to make a finding with respect to them for the purpose of this motion.

Urgency

[28] This is a review of two urgent motions. Given the facts that were before Justice Edward in Brantford on November 4 I fully understand why he made the order that he did. He had evidence that the mother of a 5 month old child was suffering from mental health issues that made her life unstable and put the child at risk. He also had some evidence that the young father was irresponsible and was prone to substance abuse and violence.

[29] That same day I had evidence that the father, with the support of the PGM, had primarily cared for the child since birth. The mother was said to be very mentally unstable and graphic examples of risk to her life were presented. The MGM and mother were not getting along due to the mother's actions and choices and she could not, or would not, reside with the MGM on an ongoing basis. The father addressed any concerns the court might otherwise have had about his age, maturity and ability to care for a young child. The urgent nature of the motion before me, as it was to a large extent before Justice Edward, was to ensure that while in crisis the mother did not harm this infant child.

Post-Order Evidence

[30] The November 21 affidavit filed in court by the MGM addressed a critical issue that I had to resolve prior to devising a time share pending the return that would be in the best interests of the child. That affidavit stated that the mother had reconciled with the MGM and now had a plan for both her health and her education. This was the single most important piece of evidence.

[31] Prior to receiving confirmation that the mother would be living with the MGP the matter presented as a contest between an active and involved young father and an active and involved and experienced parent in the MGM. When this urgent motion was filed in Brantford it might have been thought that there was little to no risk in placing a 5 month old with a woman who has parented three other children and who is home all of the time. The alternative initially presented in Brantford of a 21 one year old father who worked full time and who was said to be a parent who did not or could not care for the child may have made a without prejudice decision to mitigate an urgent risk fairly straightforward.

[32] This is the difficulty courts face with urgent motions. We receive one side of what is often a complicated story. I have made my findings above about the father's competency and parental support. If the mother had continued to refuse to return to the MGP's home and continued to refuse treatment I would not be able to consider a parenting plan that involved her other than supervised access by a neutral party. I would then have looked to the father as the only parent capable of providing for this infant's needs.

[33] The law is clear that we must look to biological parents as primary caregivers before we turn to other family members. In many, if not most, case with very young parents the grandparents on both sides are actively involved. That is the case here. Both the MGP and the PGP are to be commended for being prepared to support their child in whatever way possible in raising their grandchild. It appears that early on the grandparents co-operated with each other even to the extent that the PGP attended a BBQ at the home of the MGP.

[34] Sadly, it appears that the decline in the mother's mental health and her choices at that time caused a rift between the two support networks. Perhaps understandably the MGP blamed the father for her daughter's unsafe actions. Her daughter was young and vulnerable and possibly suffering post-partum depression. It was at this time that the father chose to end their relationship. This deeply hurt the mother and she spun out of control. To be fair to the father he feels that the mother's bizarre and unsafe actions and her obsession with him made it impossible for the relationship to continue and if he took her back time and time it was only because she had nowhere else to turn and he was worried about her. Perhaps both of them are right in some way. There is evidence that supports both views. It is very important that the father maintain a consistent position. It would be best if he did not communicate directly with the mother but instead communicated any important information about Toby directly with the MGM. Any communication between mother and father directly runs the risk of mis-interpretation. The mother needs a break from contact with the father and if he really cares about her treatment and recovery he will grant her that. It is critical to the child longer term best interests that his mother and his father move from an unhealthy on and off romantic relationship to a mature relationship as parents. It is important that the mother stays with the MGM, gets treatment and goes to school.

[35] At this moment in time both parents will benefit from the support of their own parents. The father needs the support in terms of appropriate housing and caregiving for the child when he is at work. The mother has more challenges. She needs more direct support in caring for this infant child as there is no evidence that she has looked after the child on her own. Fortunately, the MGM does not work outside the home so she can provide that constant support. The without prejudice parenting plan that I will set out depends on this arrangement continuing.

What Terms Should Accompany a Parenting Plan Pending a Case Conference?

[36] Where possible a child should be with a parent and not another caregiver even if that other caregiver is a very involved and competent grandparent. However, there are practical considerations involved. There is quite a distance between the homes in Brantford and Brampton respectively. For a child of this age frequency of contact is more significant than length of contact but distance does put some constrictions on that. It is not fair to the child, or to the caregivers, to have them driving back and forth every couple of days. Therefore, the schedule may result in the child being in one home for 4 nights in a row and the other for 3 nights in a row.

[37] It was very unfortunate that the father and the PGP were denied an opportunity to take Toby out of the MGM's residence from October 10 to November 25. The restrictions were such that the father did not see his son at all for about two weeks. I note though that access is the right of a child not the right of a parent. Rightly or wrongly this very young child has spent a large block of time in the MGM's home and while it might seem fair to the paternal side of the family it would not be in the child's best interests to have a correspondingly long block of time away from the maternal side of the family.

[38] As a term of the adjournment on November 24 I ordered that the child would be with the father this past weekend when he was off work. This resulted in just two nights and he will then be back with the mother for three. The MGM noted that while the child's doctor will remain in Mississauga that he is now seeing a physiotherapist in Brantford and he has an appointment on December 2 and a party there on the 4th. The MGM and mother can take Toby to both. I noted from the father's work schedule that he is off work every day but December 8 and 9th in the period December 5 to 12. I find that this is a good opportunity to give the father, with the caregiving support of the PGM, an extended block of time with Toby. In all of the circumstances this time should not be interrupted by time with the mother and MGP. With this schedule the child will have left one home and gone to the other and so on and hopefully he will feel somewhat secure in the knowledge that he will see both of his parents on a consistent basis. The holiday time is largely based upon parental availability.

[39] Beginning in January the father has weekends off but it is not clear in the evidence before me exactly when his shifts begin and end. Clearly, if he works a night shift he needs time to sleep before assuming a care giving role. I have chosen to provide that the father can have what amounts to a 4 day three night weekend. I recognize that this will leave times when the PGP are in a caregiving role when the mother is at home in Brantford.

Summary

[40] As noted above the time sharing set out in this order is intended to ensure that as far a reasonably possible both parents have a roughly equivalent amount of time with their infant child and frequent contact with him. It is dependent upon the mother residing with the MGP as the time is for the mother supported by the MGM. I want to be clear that I am not dividing time roughly equally between a parent and a grandparent. If the mother moves out of the MGP home this may lead to a re-examination of the parenting plan.

[41] The return date shall be for a case conference. The briefs for same shall not include any facts that occurred before today, but shall be focused on next steps and attach any disclosure that might be relevant to a future parenting plan.

ORDER

[42] The without prejudice temporary order of the Honourable Mr. Justice G. Edward, dated November 4, 2016 in file F629/16E is set aside.

[43] The without prejudice temporary order of the Honourable Mr. Justice P.J. Clay dated November 4, 2016 in this file is set aside.

(1) The maternal grandmother Denise Tielve is added as a respondent to this file.

(2) This matter is adjourned to February 23, 2017 in courtroom 202 for a case conference. The briefs may only contain facts that occurred after today's date provided only that the parties may file disclosure received that might be relevant to a future parenting plan.

(3) Pending the adjournment, the child Toby Nykvist-Tielve born June 9, 2016 shall be in the care of the Applicant father as follows:

a) from November 30 at 11:00 a.m. to December 2 at 11:00 a.m. or one hour prior to the child's physiotherapy appointment in Brantford whichever comes first;

b) from December 5 at 11:00 a.m. to December 12 at 3:00 p.m.;

c) from December 16 at 11:00 a.m. to December 19 at 3:00 p.m.;

d) from December 22 at 11:00 a.m. to December 25 at 11:00 a.m.;

e) from December 30 at 11:00 a.m. to January 2 at 3:00 p.m. (provided that if the father is working during the day on January 2 the time will be until January 1 at 6:00 p.m.);

f) from January 5 at 11:00 a.m. to January 8 at 3:00 p.m.;

g) every Friday at 11:00 a.m. to Monday at 3:00 p.m.;

h) unless otherwise agreed 24 hours in advance by text or e-mail the Applicant father or the PGM shall pick up the child in Brantford at the beginning of his time and the MGM shall pick up the child at the end of his time;

i) the said child shall sleep at the MGP's home when with the mother and the PGP's home when with the father;

j) the father, mother and MGM shall not use non-medically prescribed drugs or alcohol while caring for the child; and

k) the MGM shall supervise all contact that the mother has with the child.

(4) There shall be no order as to costs.

(5) A copy of these reasons for order and the subsequent issued order shall both be sent by Ms. Barnett to the Legal Departments of the Brant Children's Aid Society and the Peel Children's Aid Society for their information only.

(6) The First Appearance Date of December 22, 2016 at 9:00 a.m. in courtroom 209, is vacated.

Released: November 29, 2016

Justice P.J. Clay