Court File and Parties

Date: November 23, 2018

Court File Number: 141/18

Ontario Court of Justice at Orangeville

Between

D.R., Applicant

and

K.M., Respondent

Before: Justice B. E. Pugsley

Heard: November 21st, 2018

Released: November 23rd, 2018

Appearances

Applicant and Duty Counsel: Gary Wright

Respondent and Counsel: Mahzulfah Uppal

Endorsement

Background and Parties

[1] The Applicant and the Respondent have two children, SGM (DOB: …) and SMM (DOB: …).

[2] The parties do not agree that they cohabited together. The Applicant states that the parties never consistently lived together under the same roof. The Respondent states that they did indeed cohabit from 2013 until October 2017, including in a residence owned by his family. Both agree that there was no cohabitation after October of 2017.

[3] An older step sibling, from the Applicant's previous relationship, also resides with her and the girls.

Procedural History

[4] On November 8th, 2018, the Applicant issued the Application herein and also sought and obtained an order without notice to the Respondent. That order granted the Applicant custody of the children on a without prejudice basis, and ordered that the Respondent's access to the children be within her discretion.

[5] The Respondent was served and the matter set for a review of the order made without notice returnable on November 21st, 2018, at 10:00 am. The Respondent brought a cross-motion returnable on the same date seeking relief with regard to custody and access.

[6] Both the review and the cross-motion were heard before me on November 21st, 2018. The parties engaged in discussions before the hearing of the motions and agreed to terms of the next event in the case. The review and motion were however not settled. After hearing submissions I reserved my decision. This endorsement is that decision.

Evidence

Applicant's Evidence

[7] The Applicant's evidence consists of two affidavits: her affidavit filed in support of the request for an order without notice, and a reply to the Respondent's affidavit.

[8] In her initial affidavit, she states that after separation on October 20th, 2017, the children by agreement resided primarily with her and saw their father when arranged between the parties. She states that the Respondent was inconsistent in his visits. The Applicant states that she has been concerned about the Respondent's anger and that the children (4 and 2) have reported being struck by the Respondent and members of his family.

[9] The Applicant made a report to Dufferin Child and Family Services who suggested to her that the Respondent's visits should be supervised. She states that the Respondent initially agreed, but that he then admitted to slapping the eldest child's hand when she refused to do up her car seat belt and struck him. The children have spoken about being spanked by their grandmother and aunt. The Applicant alleges steroid abuse by the Respondent at some unknown earlier time, implying that his anger is related to that drug misuse.

Respondent's Evidence

[10] The Respondent's evidence consists of a detailed affidavit in support of his cross-motion.

[11] He states that the Applicant has not been accurate nor detailed in her affidavit in support of the request for an order without notice. For example, the parties lived together for a lengthy period of time after SGM's birth. His mother pretended to accept rent from the Applicant so that she could continue to receive her Ontario Disability Support Plan payments. His parents and extended family offered monetary and physical support to the parties and their children, but the Applicant unfairly now claims that they interfered in her parenting.

[12] Ultimately they stopped the pretense of residing together. The Applicant and the children moved from Brampton to Orangeville and reached a verbal agreement as to how to raise the children. They shared joint custody of the children and he and his family saw the girls every weekend. The Applicant raised an issue of his supposed anger and improper physical discipline and the Children's Aid contacted him. He was unable to connect with the worker in a timely way until just before the return of the motion. He was to meet with her this week.

[13] He notes that he never agreed to be supervised in his visits with the children and that in fact the Applicant wanted him to only see them in her presence. He stated that the Applicant wants to control his life by her control of the children. He states that the status quo ante was that the children saw him every weekend. He wishes to stipulate holiday season access also as part of the status quo. He states that he has a loving and engaged extended family who wish to continue to be highly involved with the girls and their extracurricular activities (they are the only grandchildren and are "doted on and spoiled" by his family), but that the Applicant reacts with anger to them and states that she does not want them in her home. When he goes to hockey on the weekends his family cares for the girls and enjoys spending family time with them.

[14] The Respondent slapped SGM's hand after she hit him and refused to buckle her car seat. It was a light slap on the hand to discipline his child. He states that he will not do this again. His mother and sister never struck the children and the Applicant is lying about this. He states that the Applicant smokes marijuana and is regularly intoxicated by marijuana when caring for the children. He did, once, take steroids for six weeks to lose weight.

Applicant's Reply Evidence

[15] The Applicant's reply affidavit essentially rejects all of the Respondent's substantive allegations and replies in kind. She was the subject of emotional abuse by the Respondent and by the family of the Respondent. Her daughter "I." was never treated as an equal grandchild by the Respondent's family. The children "regularly complain" about being yelled at by the Respondent's family and that the Respondent's mother and aunt have spanked them, on one occasion leaving a red mark on SMM's buttocks which she saw but was unable to photograph before it faded. Both the Dufferin and Peel CAS have required supervised access by the Respondent. An earlier investigation was completed and closed, but the current investigation is still unresolved. The Respondent has physically abused SGM and SMM is also at risk. Only supervised access is proper here.

[16] The Applicant has video recorded complaints by SGM made to one of the Applicant's friends while the Applicant recorded the conversation. The Respondent has a volatile temper and when he hit SGM's hand he left a bruise which the Applicant photographed and sent to Dufferin CAS.

[17] The status quo claimed by the Respondent is said to be an illusion.

Positions of the Parties

Respondent's Position

[18] The Respondent seeks a return to what he states is the status quo agreed to by the parties, including Christmas access. He wishes his costs herein.

[19] In submission he stated that the Applicant set up this court case in an attempt to lure him back into living with her.

Applicant's Position

[20] The Applicant seeks to continue the order made without notice. She submits that Dufferin Child and Family Services has an open file on alleged improper physical discipline of the children by the Respondent, and that until their investigation is complete she needs to control the Respondent's contact with the children.

[21] In particular, she proposes that the children see the Respondent for Christmas at her residence only, and in her presence at all times.

[22] The Applicant has placed her concerns before the Dufferin CAS. She states that an investigation is open and that it would be unsafe to allow unsupervised access by the Respondent until the CAS agrees that such should be the case.

Analysis

The Role of Child Welfare Agencies

[23] I disagree that the court should wait until some unclear date in the future when the Children's Aid agrees that the court should act here which is inherent in this submission. This would be an improper abrogation of the court's jurisdiction to a third party.

[24] To be clear, if there are child protection concerns that mandate the intervention of a Children's Aid Society under the Child, Youth and Family Services Act, 2017, then an agency must act by law, either by a service agreement or by a court application, including taking children to a place of safety by warrant or in an emergency without a warrant. Until they do trigger their ultimate statutory duty, agencies may and should offer advice, or try and achieve formal or informal agreements with parties in conflict, but otherwise have no authority to require parties to act or to refrain from acting without a formal court proceeding.

[25] On occasion in the past and in other circumstances, it appears that some child welfare agencies may have tried to compel parties to act such that the agency itself would have no need to do so, for example by suggesting that visits be changed or even curtailed. Unless an agency chooses to trigger a formal protection application however, such advice to the parties can have little evidentiary value.

[26] Indeed, such an agency should perhaps be sensitive to the risk the agency runs of being held up as an ally by one or the other party, including references in court material to conclusions by workers that may have not actually yet been reached by the agency, or in the end are never reached at all. The CAS has no control, and often no knowledge, of how the agency's views, or those of its employees, are cast by the parties in the evidence placed before the court in a domestic proceeding. Such views are often expressed in passing, verbally, and are used as unattributed hearsay.

[27] In the case before me facts have been placed before the local CAS. If that agency concludes that it must act to fulfill its statutory mandate then it will so act. Until it does however, the fact that a complaint is before the agency is not a hook for the court to hang its hat on to avoid addressing the issues placed before the court by the parties here. As I advised the parties, I will decide this matter on the facts before me now. If this decision prompts other action, so be it.

Status Quo

[28] The parties evidence discloses that when they stopped cohabiting (off and on as the Applicant states, or more or less full-time as the Respondent asserts) the children commenced residing in the full time care of the Applicant mother with their older sister. For almost the last year that has been in Orangeville. They saw the Respondent father on weekends. No written agreement was signed, and the pattern of access and custody is disputed. The Respondent paid "chart" child support. In the absence of a written agreement this is tantamount to the Applicant having custody and the Respondent having access and paying unaltered chart support. I find that that is the status quo ante for the purposes of this motion. In practical terms, a suggestion of joint custody in the face of the current highly combative affidavit evidence seems unlikely at this time.

Supervised Access

[29] The real issue is whether the access by the Respondent should be supervised or otherwise constrained.

[30] The idea that the Applicant, in the face of these conflict-laden allegations, should herself physically supervise the children's visits with their father is unworkable, a non-starter, and likely to inflame this action beyond its current level of conflict.

[31] The next level of supervision would normally be supervision at a family visit centre, or by a friend or relative of the Respondent. I found it puzzling that neither party addressed this option. The Applicant's position was simply her own personal supervision, which will not be ordered. This position lends some slight credence to the Respondent's submission that the Applicant's position is not solely based upon her desire for the protection of the children.

Parental Alienation Concerns

[32] The Applicant has obviously on occasion pumped the children for information about their time with their father. Her own evidence suggests this. She has arranged for a friend to listen (or question?) her 4 year old about the supposed abuse by her father while the Applicant video-recorded that conversation, taking on the role of CAS investigator. She has inspected her children for signs of trauma and photographed what she saw.

[33] The Applicant should take advice from the CAS about continuing such cross-examination of the children after access visits. Such activity runs a great risk that the children will come to associate their time with their father as risky and to perhaps lead them to the conclusion that they shouldn't go to see him or his family. Common sense suggests that young children hear and see more than parents believe, and may become sensitive to the signals given by those who care and love them. They may learn what a parent wants to hear from them, and to colour their answers to a parent's questions to promote harmony with that parent. On occasion children say one thing to one parent and their allies, and the opposite to the other parent and their allies. The potential for serious confusion and upset to a child is obvious. This in itself can lead to child protection concerns.

Importance of Court Procedures

[34] This Application would normally have been the subject of the process required by the Rules at the start of any court application: a process carefully designed, I would suggest, to force the parties to discuss their issues before they are permitted to litigate those issues on an interim basis.

[35] Mandatory Information Programmes are required to be taken to try to make sure that the parties understand the damage potential inherent in hard fought family law litigation to both the parties and their children. Case conferences identify the issues – often leading to a narrowing or settlement of the differences between the parties. The parties have to talk before they can fight.

[36] When an ex parte order is made on an emergency basis that carefully prescribed process is short-circuited. The parties feel forced to take extreme positions in their evidence and submissions very early in the proceeding, which can ripple down through the litigation causing much potential grief. Part of what the court tries to do on a motion review such as this is to guide the parties back into the process mandated by the Rules and perhaps reset the litigation back to a less contentious state. The court strives to establish a sometimes rough template that the parties can build on as they get used to raising their children together for the next twenty years.

Best Evidence of Parties' Intentions

[37] As is often the case in matters such as this where the parties figuratively speaking come out swinging at the start of an Application, the best evidence of the way the parties intended to raise their children, separately but apart, is what they themselves did before the contemplated court action.

[38] As already noted, they agreed that the girls would live with their mother and older sister, and would see their father and indeed his family while he exercised his access. The Respondent paid regular chart child support voluntarily and in full without any claimed adjustment. The nature and extent of the exercise of that access is disputed, but now that the parties are before the court there will be an order that establishes a routine for the parties and the children. The order will provide that the parties themselves can agree to change that access regime. The parties may wish to try agreeing here. The issues are not at all unique for experienced counsel.

No Basis for Supervised Access

[39] There is no present need for any form of supervised access. The Respondent accepts that he was wrong in how he chose to discipline SGM. He states that he will not do so again. The parties are under the eagle eye of each other and of the court. The risk of repeated physical discipline is minimal at this time.

[40] There is no basis for the court on this evidence to restrict where or who the children go, or see, during their access time with the Respondent. I trust that the Respondent will take no steps to allow the children to come to harm while in his care.

Access Schedule

[41] The Respondent states that he seeks the "status quo" every weekend access. There is little untested evidence to support that regime, and every weekend access is inherently unfair to the children's need for weekend time with each parent and their extended family. SGM is at school age. SMM will not be far behind. They deserve leisure time with both parents. Fun time on weekends with dad should not be contrasted with work time during the week with mom. In addition, every weekend access impacts their time with their older sister "I.".

[42] The Respondent works a mandatory weekend shift each month at the Ford plant in Oakville. He has not set out his work schedule nor his hours (nor whether they are straight days or rotating shifts). I will establish an access regime for every other weekend on the basis that if that routine is blocked by the Respondent's required weekend work, then the parties will try to compensate for that. I expect that the parties will advise the court at the case conference on whether they have been able to work together for the sake of the children on this issue if it arises.

[43] Given that the "base" access will be every other weekend, there should be midweek access available so that the Respondent can come to Orangeville and visit the girls on a weekday evening every week. As just noted, I don't know the Respondent's work schedule. I will set out a day of the week, again trusting that the parties will try to establish a different weekday evening access together if the day of the week I set out here doesn't work.

[44] The key message in the last two paragraphs is that the access right is that of the children and it is for the parents to make that access work even if it means that they have to carry the burden of disappointment on their shoulders. They can bear that burden better than their 2 and 4 year old girls.

Christmas Access

[45] The Respondent cites a status quo regarding Christmas access. One Christmas does not a status quo make. Christmas is a holiday that notoriously occurs each year on the same date. Children in school routinely have two weeks off. Few parents do. In other cases the holiday has been split between the parties equally, with a special focus on the three days proximate to that happy Christmas morning for children: Christmas Eve, Christmas Day and Boxing Day. While the season is happy it is also stressful for separated parties – trying to establish a routine for the children while balancing the expectations of extended family. Short of an agreement on this issue, knowing that the holiday is only weeks away, and being ignorant of the Respondent's work holiday schedule, I will stipulate this year's holiday access. If the parties agree, it can be changed; if they don't my order will govern this year. The parties might be mindful of the fact that for many families the focus of the holiday for children is their happy celebration, not a means to score invisible points off the other parent. This year the children will wake up on Christmas morning in their beds at the Applicant's home, but will have a visit overnight Christmas evening at the Respondent's home. The parties may wish to try to adjust the dinner plans of their extended family to recognize this unusual first year.

Extracurricular Activities

[46] The Applicant shall also let the Respondent know when extracurricular activities such as SGM's hockey are scheduled. There is no basis to exclude the Respondent from attending such activities. It would be a good opportunity for the girls to see their parents coexisting in a civil fashion so that they come to understand that seeing dad or living with mom is perfectly okay with the other parent.

Extended Family Contact

[47] In-laws can cause friction in happily cohabiting couples at the best of times and often without even knowing it. In a separation their actions can cause expensive and confusing conflict. On this record there is no current basis to restrict the contact that the Respondent may wish between the children and his extended family, keeping in mind however that the girls access time is their access to him, and that they may be confused in their feelings with regard to his side of the family given recent events. A go slow policy may be helpful.

Parental Conduct

[48] Children deserve to have the adults in their life act in their best interests without placing a burden on their young shoulders to explain what they did or where they went when with the other parent.

[49] Neither parent is acting in the best interests of their child by cross-examination or off hand comments about the conduct or lifestyle of the other parent. Children will listen. In their immature minds they may act in way that seems to please their loved ones – the persons most important in their world. At a very young age, such actions may have little or no relationship with what actually happened. Parents should show their children that they support and value their former spouse's role in their children's lives, even if parents approach the same childhood issues in a different way.

[50] The Applicant and the Respondent created two wonderful girls. They both profoundly love their girls. It is a hard task to raise them separately but together. The girls deserve the best job their parents can do. This does not include making their journey between their two homes a courtroom cross-examination.

Child Welfare Agency Resources

[51] The CAS has been asked to look at recent events. This agency also has resources to help parties co-parent better. Having been introduced to the agency, there may be much that the agency can do to help the parties voluntarily.

Costs

[52] I told the parties at the hearing of this matter that I would give each side an opportunity after my decision to make submissions as to costs. The Respondent specifically desired an opportunity to raise that issue. If the parties feel that it is wise to seek such costs, and if they are unable to agree on that issue, the parties may make submissions as to costs in the following manner: the Respondent within ten days of the release of this endorsement; the Applicant within ten days after receiving the Respondent's submissions; brief reply if desired by the Respondent within five days of receiving the Applicant's submission. Submissions shall not be longer than two A2 double spaced pages, exclusive of offers to settle and bills of costs. The court will stop reading after two pages. Offers to Settle should be referenced and attached. Submissions shall be filed through the judicial secretary at Orangeville.

Order

[53] I make the following temporary order, not on consent:

1. The Order made without Notice dated November 8th, 2018, is vacated and replaced by this order.

2. The Applicant (mother) shall have custody of the children of the parties SGM (DOB: …) and SMM (DOB: …).

3. The Respondent (father) shall have access to the said children upon the following schedule: commencing on Friday November 30th, 2018, every other weekend from Friday at 6 pm until the following Sunday at 6 pm; every Wednesday from 6 pm until 8 pm; and, such further and other times as the parties may agree to in writing.

4. The Respondent shall have Christmas access in 2018 as follows: he shall pick up the children at 4 pm on Christmas Day and shall return them to the Applicant's care on December 26th, at 8 pm. This access replaces the regular access schedule set out in Paragraph 3, above.

5. Pick up and return of the children shall be by the Respondent at the Applicant's residence, or at such other place as the parties may agree.

6. Pick up or return of the children by a person other than the Respondent shall be permitted if the parties so agree.

7. The terms of access set out above may be at any time varied by the written agreement of the parties. The parties are encouraged to work together to accomplish the meaningful access contemplated herein.

8. The Applicant shall provide the Respondent with the children's extracurricular schedule in a timely fashion such that he may attend if able.

9. The parties shall refrain from discussing this litigation with the children and will not permit anyone else to do so save in connection with any child welfare investigation conducted by an official agency.

10. The parties shall not put down nor disrespect the other party to or in the presence of the children, nor permit anyone else to do so.

11. If desired, the parties may address the issue of costs herein in accordance with paragraph 52 of this endorsement.

12. Matter is otherwise adjourned as previously endorsed to February 13th, 2019, at 10:00 am for a case conference.

Justice B. E. Pugsley