Court File and Parties
Ontario Court of Justice
Date: 2018-11-09
Court File No.: Kitchener 495/18
Between:
Hope Rehkopf Applicant
— And —
Justin Tucker Respondent
Before: Justice B. C. Oldham
Heard on: October 22, 2018
Reasons for Judgment on Motion for Interim Temporary Access
Released on: November 9, 2018
Counsel
Mr. R. Van Buskirk — counsel for the applicant (Hope Rehkopf)
Ms. G. McLeod — counsel for the respondent (Justin Tucker)
Judgment
OLDHAM J.:
[1] Introduction
[1] The two motions before me raise issues of placement and parenting time for the child, Millie Tucker, born […], 2012 ("Millie"). The first motion is the return of an emergency motion filed by the Applicant, mother ("Mother") seeking the return of Millie to her care. The second is a cross motion by the Respondent, father ("Father") seeking a shared parenting arrangement. The emergency motion was dealt with on July 26, 2018 by Justice Rogers by way of an interim without prejudice order placing the child with the Mother and granting alternate weekend access to the Father from Friday at 5:00 p.m. until Sunday at 8:00 p.m.
Background Facts
[2] The parties were married on December 13, 2013 and separated January 1, 2015. There is one child of their marriage, Millie. The parties continued to reside in the same home until January 1, 2016. The Mother has a child from a previous relationship; namely, Patrick Sawyer Healy born […], 2008 ("Sawyer"). Sawyer resides with the Mother on a shared basis.
[3] Millie remained with her Mother after the physical separation of the parties in January 2016. By March 2016, the Father had developed a routine of alternate weekend access. In July 2016, this expanded to include two evenings per week (Tuesdays and Thursdays) from 5:00 pm until 6:00 am the following morning. This routine continued until July 2018 when this matter came to court.
[4] The parties do not agree on what occurred between July 12, 2018 when Millie went for an access visit with her father and July 26, 2018 when the court proceedings commenced with the Mother's emergency motion.
Position of the Parties
Position of the Mother
[5] It is the Mother's position that she has been the primary caregiver for Millie since birth. She claims that it took some time for the Father to engage in daily parenting tasks following Millie's birth, but acknowledges that he has been consistently exercising access every other weekend from Friday to Sunday and every Tuesday and Thursday from 5:00 pm until 6:00 am the following morning for the past two years.
[6] The Mother denies the allegations that she has moved and been in multiple relationships since the separation. Millie was in Junior Kindergarten for the first year following the separation. She attended […] School in Elmira until the parties' physical separation in January 2016. The Mother then moved to a farm house in Elmira. The parties had agreed that Millie would attend school in the Mother's catchment area and accordingly this move necessitated a change in schools to […] School in Wellington County.
[7] The Mother made one final move to Cambridge in 2018 to be closer to work and to accommodate day care arrangements. As of January 1, 2018, Millie has been attending […] School. She is now in Grade 1.
[8] The Mother claims that she was forced to bring this matter to court because the Father threatened her on July 12, 2018 saying that "you won't see your daughter again" and that he then refused to return Millie on July 13, 2018 at 6:00 am. Millie was not returned to her care until the Order of Justice Rogers on July 26, 2018. The Mother claims that the July 12th incident was the third time the Father kept Millie beyond the scheduled return time.
[9] It is the Mother's position that she should maintain the primary residence for Millie and that the Father's alternate weekend access should be supplemented by two midweek visits, but not overnights. While the parties had agreed to an overnight with Millie returning at 6:00 am to accommodate the Father's work schedule, it is the Mother's position that the demands of Grade 1 are greater and that the early mornings will be disruptive to Millie's school routine.
[10] The Mother notes that Sawyer and Millie have a close relationship and the placement of Millie with the Mother ensures that the children will continue to attend school together and maintain their bond. Mr. Healy, Sawyer's father, provided a letter confirming that over the past ten years, he and the Mother have been able to maintain a positive co-parenting relationship in respect of Sawyer. He confirms his belief that Sawyer has a close bond with his half-sister, Millie.
The Father's Position
[11] It is the Father's position that he had a shared and equal parenting schedule prior to July 26, 2018 and that this status quo should be reinstated.
[12] It is the Father's position that the Mother embellished her affidavit and was not candid with the court on her initial affidavit which led to Justice Rogers' Order. Specifically, it is his position that he did not threaten to take Millie and that his decision not to return her on July 13, 2018 was because she was sick and he had been up all night with her. The Father is seeking to have the Order of Justice Rogers dated July 26, 2018 set aside.
[13] With respect to the shared parenting, the Father is seeking the following schedule:
Week One:
a) The child shall reside with the Applicant from Monday morning before school (or 8:30 am) until Wednesday morning before school (or 8:30 am).
b) The child shall reside with the Respondent from Wednesday morning before school (or 8:30 am) until Friday morning before school (or 8:30 am).
c) The child shall reside with the Applicant from Friday morning before school (or 8:30 am) until Monday morning before school (or 8:30 am).
Week Two:
d) The child shall reside with the Applicant from Monday morning before school (or 8:30 am) until Wednesday morning before school (or 8:30 am).
e) The child shall reside with the Respondent from Wednesday morning before school (or 8:30 am) until Friday morning before school (or 8:30 am).
f) The child shall reside with the Respondent from Friday morning before school (or 8:30 am) until Monday morning before school (or 8:30 am).
[14] It is Father's position that the above schedule is better for Millie as it reduces the number of transfers between homes. With respect to the proposed change in drop off time from 6:00 am to 8:30 am, the Father's counsel advised that he can either make adjustments through his employer or his mother can assist in the morning care arrangements.
Issues
What is the status quo in respect of access and primary residence?
What access schedule is in Millie's best interest?
The Law
[15] With respect to interim access orders, consideration must be given to the status quo, but the primary focus, as always, is on the best interest of the child. The best interest considerations are set out in subsection 24(2) of the Children's Law Reform Act ("CLRA") as follows:
Best Interests of Child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[16] Counsel for the Father referred the court to a number of decisions which set out the general principles to be considered on a motion for temporary care and access. These include the following:
a. The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life. (See: Rifal v. Green, 2014 ONSC 1377, ("Rifal") at paragraph 25)
b. A temporary order is significant because it will frequently influence or form the basis for a final order. Once a child settles into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child's best interests to disrupt or significantly change the temporary arrangement. (See: Rifal, supra, at paragraph 17.)
c. Generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of change to meet the children's best interest. This is so, whether the existing arrangement is de facto or de jure (See: Grant v. Turgeon, 2000 Carswell Ont 1128, ("Grant") at paragraph 15.)
d. A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply cannot be entrusted with custodial authority they would likely abuse. (See: Rifal, supra, at paragraph 22.)
[17] Each case must be considered in its own context and the factors set out in subsection 24(2) of the CLRA may be given different weight or consideration in different cases.
Analysis
What is the Status Quo in Respect of Access and Primary Residence?
[18] This is not a case where the court is being asked to make a decision about the placement of the child immediately, or soon after the separation. The parties separated in January 2015.
[19] It is the Father's position that there was no established primary residence and that Millie enjoyed a regime of equal and shared parenting. In my view, that position is not borne out in the evidence before me. Since the parties physically separated in January 2016, Millie has resided with her Mother and was registered in school within the catchment area of her Mother's residence. The Father had parenting time every other weekend from Friday at 5:00 pm until Sunday at 8:00 pm and two overnight visits from 5:00 pm until 6:00 am on Tuesdays and Thursdays. This is the clear and undisputed status quo that has been in place since at least July 2016.
[20] The Father seeks to have the Order of Justice Rogers dated July 26, 2018 set aside. While the Father submits that he simply wishes to have the court reinstate the status quo, the shared parenting plan that he proposes is significantly different from the parenting time exercised by the Father prior to the commencement of these proceedings.
[21] The issue therefore is whether there are compelling reasons in Millie's best interests to change the status quo.
What is in Millie's Best Interests?
a. Placement of the Child
[22] This matter came before the courts because of an incident in July 2016. The Father denies that he kept Millie in his care beyond the agreed-upon access schedule. The Father claims that he did not return Millie on July 13, 2018 because she was sick, but does not dispute that she would have otherwise been picked up by the Mother at 6:00 am and returned to her summer camp program for the day.
[23] The parties do not agree on whether Millie was to be in the Father's care for the weekend or the following week through to July 20, 2018. It is not disputed, however, that Millie was not scheduled to stay at the Father's until July 26, 2018.
[24] The Father denies that he over-held Millie. The Mother produced a series of text messages from July 13, 2018 which read as follows:
Father: "either we sign an agreement. Or Court.
Mother: "court"
Father: "See u in court. Don't come to my house or try to take Millie until then."
[25] The Father disputes the fact that he made that comment by text message, but indicates that even if that is what was said, it was not a situation of over-holding, because in fact it was his week. Again, that still does not explain why Millie was not returned following his scheduled week (which by his own evidence was to end on July 20, 2018), or why she was not returned following his contact with the Mother on July 23, 2018.
[26] The Father is critical of the Mother's decision to insist upon Millie's return on July 13, 2018 and her decision to engage the Police. The Mother claims that she was concerned given the Father's threat the night before that she would never see her daughter again. His decision to take Millie from his home to his sister's home in Elmira to "spend the day resting and recovering peacefully, without further interruption by the Applicant", did nothing to alleviate the Mother's concerns about the whereabouts of her daughter or the Father's intentions in respect of her return to the Mother's care.
[27] Perhaps the Mother could have simply accepted that Millie was being well cared for by her Father. However, there is no doubt that unilaterally extended access visits create anxiety for a parent. I cannot accept the submissions by counsel that the Mother was acting irrationally or unreasonably in light of the fact that there have been at least two other occasions where Millie was not returned at the scheduled time. This, coupled with the text messages and comments made on July 12, 2018 explain in part her reaction and need to involve the police.
[28] After the police were called, the parties arranged to meet at Sportsworld at 5:00 pm. The Mother understood that this was the exchange location and that Millie would be coming home with her. The Father claims that he was advised by the police to get a written agreement signed to avoid confusion in the future. He used this opportunity to try to get the Mother to sign a written agreement confirming Millie's shared parenting regime. The Mother claimed that the agreement proposed did not reflect the status quo and she was not prepared to sign it.
[29] The events that unfolded that weekend, whether based on the Mother's version or on the Father's version were unfortunate and likely support the need for a written agreement confirming the access arrangements. However, the meeting at 5:00 pm on July 13, 2018 was clearly not the proper time to be insisting on a written agreement. Millie was brought to the exchange location and was not allowed to leave the Father's vehicle. The agreement was not signed and the Father left with Millie.
[30] The circumstances also highlight the need to confirm Millie's primary residence. While the Father has enjoyed generous parenting time, the circumstances up to July 12, 2018 do not support a shared parenting arrangement such that Millie has two primary residences. The Father acknowledges that school enrollment has been 'historically based upon the Mother's residence' and that is certainly one factor.
[31] The Father put forward a parenting plan in his materials which confirms that he has a separate bedroom and toys for Millie at his home and that he has resided in that home since January 2017. The Father is critical of the Mother for not outlining her plan in a similar fashion.
[32] Although the Mother's parenting plan was not specifically referenced in her affidavit, it is clear throughout her materials. Millie is to continue to reside with the Mother, Mr. McLeod and Sawyer. She is to continue to attend school at Central Public School with her half-brother, Sawyer. She will continue to have significant access with her Father.
[33] The Mother has provided a copy of Millie's report card to confirm her attendance and accomplishments in school. I do not agree that the Mother's moves from Elmira to Cambridge create a compelling reason to change Millie's primary residence from the Mother's home. Millie is doing well in school. There is no evidence to suggest that the Mother is not providing Millie with guidance and education and the necessities of life. She is closely bonded with her Mother and sibling, Sawyer.
[34] The plan that each parent has for a child is one of the considerations set out in subsection 24(2) of the CLRA. That said, this is not a case where the court is assessing competing plans to determine which best meets the child's needs. This is a case where in my view there is a clearly established status quo and I can see no compelling reason to change Millie's primary residence from the Mother's home to the Father's home; nor do I see any compelling reason to set aside Justice Rogers' order which simply confirms the status quo in terms of Millie's primary residence.
[35] It is also noteworthy that the parties were able to resolve matters themselves for almost two years. I credit some of that success to the Mother's approach. As she noted, although the Father had not had any access to Millie for approximately three months following their physical separation in January 2016, she agreed to alternate weekend access which commenced in March 2016. There is no evidence before me to suggest that she was resistant or that she made access difficult for the Father at that stage. Similarly, when he asked for mid-week visits in July of 2016, it appears that the Mother agreed. This approach demonstrates the Mother's ability to recognize and support the importance of Millie's relationship with her father. The Father's conduct from July 12 to July 26, 2018 does not provide me with the same confidence that he will respect and promote a relationship between the Mother and Millie.
b. Parenting Schedule
[36] Although each of the parties submits that the court should reinstate the status quo, each has asked for an adjustment to the Father's parenting time from what has been acknowledged to be the schedule.
[37] The Father suggests significant changes to the schedule which provides Millie with more continuity and less traveling between homes. While the Father will no doubt be able to make alternative arrangements for Millie from 6:00 am to 8:30 am each day, it is not clear to me that this is in Millie's best interest. The Mother has been the parent to take Millie to school each day. Even when the Father exercised overnights during the week Millie would return and go to school from the Mother's home with Sawyer. The Mother is currently at home doing on-line courses for her apprenticeship as a millwright and therefore has additional flexibility in her schedule. There is no compelling reason to change this routine.
[38] The Order of Justice Rogers does not incorporate any mid-week parenting time for the Father. The Mother suggests two nights per week from 4:30 pm to 7:30 (or 8:00) pm. She is seeking a change from the two overnights given the heavier work load of Grade 1.
[39] The revisions by both parties to the access schedule appear to acknowledge that the back and forth throughout the week may not be the best for Millie during the school year. I would tend to agree, but recognize that it is important for the Father to have some mid-week parenting time. This allows him to connect with Millie around her school curriculum and extra-curricular activities. Given that she is used to overnights, I do not see any reasons why one mid-week overnight from 5:00 pm until 6:00 am would not be in her best interest. The reduction from two nights to one reduces the number of early mornings and transfers between homes, but respects the time that she needs with her Father. A short evening visit does not provide the same opportunity for bonding.
[40] For the foregoing reasons, the order of Justice Rogers will be made temporary and the following order issued.
Order
The Order of Justice Rogers dated July 26, 2018 is confirmed as a temporary order.
In addition to the alternate weekend access, Millie will have one mid-week access visit with her Father on Tuesdays 5:00 pm to 6:00 am, or such other night as the parties may mutually agree upon.
[41] If the parties cannot agree on the issue of costs, submissions may be made at the return of this matter or in writing as directed.
Released: November 9, 2018
Signed: Justice B. C. Oldham