Court File and Parties

Ontario Court of Justice

Date: May 7, 2019

Court File No.: 30210/19D

Between:

Linzey Alexandria Spracklin Applicant

— And —

Gervan Francis Respondent

Before: Justice Roselyn Zisman

Heard on: April 24, 2019

Reasons for Judgment released on: May 7, 2019

Counsel:

• Glenda Perry, counsel for the applicant
• Janet Daby, counsel for the respondent

Decision on Temporary Motion

Zisman, J.:

1. Introduction and Events Leading Up to the Court Proceedings

[1] This is the return of an urgent motion that was commenced on February 14, 2019 without notice for an order that the Applicant (mother) have custody of the child, I., born […], 2018, for a restraining order and police enforcement.

[2] The mother alleged that the urgency arose as the father was withholding the child from her, she was the primary caregiver and the child who was only 10.5 months had never been out of the care of the mother for more than 1 day. The mother also alleged that there was a lengthy history of the father being violent and threatening her, including threats to kill her. The police and the children's aid society have been involved due to conflict between the parents.

[3] The mother deposed that she was afraid that if the father found out that she had received a custody order and started court proceedings that he would get very angry and hurt her. She was afraid that he would try to take the child away from her and that he had threatened to kill her if she ever reported his abuse.

[4] The urgent motion came before Justice Sager on the morning of February 14th. She ordered that the father be immediately advised by text that the mother had commenced a court proceeding that would be heard that afternoon. The father was to be served with the court documents by email, delivered by a process server or courier.

[5] As it turned out the father was actually in court that morning and waiting to meet with advice counsel. Counsel for the mother served him personally with the court documents. It is not clear if Justice Sager was advised of this.

[6] The father with the assistance of duty counsel prepared a lengthy hand written affidavit in response to the mother's urgent motion.

[7] The mother wished an adjournment to respond to the father's affidavit and the father wished an adjournment to retain counsel and to prepare a more thorough affidavit.

[8] Due to the lateness of the day, Justice Sager adjourned the mother's motion to the next day. She advised both parents to prepare an affidavit setting out a proposed parenting plan. Justice Sager also directed that the court staff send copies of the parents' affidavits to the Children's Aid Society of Toronto to the attention of the society worker assigned to work with the parents.

[9] On the return date, neither parent prepared any further materials.

[10] It was the mother's position that she was residing with her grandparents and that the father should have access on alternate week-ends and that such access coincide with his access to his other child.

[11] The father was again assisted by duty counsel who advised that the father had already hired counsel, Janet Daby. The father handed the court a typed parenting proposal. It was the father's position that as long as the mother was living with her grandparents he was not opposed to a shared parenting arrangement pending the return of the motion.

[12] The parents provided very divergent versions of recent events. The mother alleged that the father was withholding the child and refusing her any contact. She alleged that the father was a drug dealer and a member of a gang. She alleged that the father was abusive and she was extremely frightened of him.

[13] The father denied those accusations and deposed that he had been working in a warehouse until the mother moved in with him at the end of January. He deposed that he stopped working in order to help care for the child as the mother regularly slept in until the early afternoon.

[14] The father agreed that the mother had been the primary caregiver of their daughter. But he alleged that he had become increasingly concerned about the mother's behaviour and questioned whether she suffered from a mental health issue.

[15] The father denied that he was deliberately withholding the child but he was acting on the advice of the police and his concern about the safety of the child.

[16] The father alleged that on February 12th, the police had been called to his home 3 different times due to the mother's erratic behaviour and to prevent the mother from taking the child out in a major snowstorm. The mother had been handcuffed and taken by the police to the hospital. But that she then returned and was told by the police to leave and that the child should remain with the father.

[17] Due to the very divergent versions of events, Justice Sager held that the court would require additional evidence, including the police records and records from the Children's Aid Society of Toronto.

[18] Pending return of the motion, Justice Sager ordered that:

a) the child shall reside in a shared parenting arrangement as follows:

(i) with the mother on alternate week-ends from Friday at 4:00 p.m. to Sunday at 4:00 p.m. and every Tuesday from 4:00 p.m. to Thursday at 4:00 p.m. or other times as agreed upon, and

(ii) with the father for the remaining of the time;

b) The mother shall reside in the home of the mother's maternal grandparents while the child is in her care;

c) The father shall reside in the home of the paternal grandmother while the child is in his care;

d) The parties will communicate with one another only via email or text messages and only about the child;

e) The parries may arrange for the exchange of the child by mutually agreeable third parties;

f) Neither party shall remove the child from the province of Ontario without an order of the court; and

g) The parties will cooperate in obtaining a copy of their records from the children's aid society and use their best efforts to have the records before the court on the return of the motion and the mother will use her best efforts to obtain copies of her hospital records regarding her February 12th admission.

[19] The motion was then to be returnable on March 22, 2019 before myself as the case management judge.

[20] On March 5th, counsel for the father who had just been retained, submitted a Form 14B request for an adjournment of the motion as she required further time to prepare responding materials and had a prior court attendance on the return date.

[21] Counsel for the mother opposed the adjournment on the basis that father's counsel should obtain an agent to appear on the return date, the adjournment was prejudicial to her client and that the motion had become more urgent due to the father's arrest and as of February 15th he had the child in his care for 50% of the time.

[22] The court granted the adjournment as the issues before the court related to the parenting arrangements for a very young child with serious accusations by both parties and it was important for the court to have all relevant information. The father was entitled on such an important motion to have his counsel of choice, not an agent, present. Further, the court wished to ensure that counsel were able to obtain the relevant records from the children's aid society, the police and the hospital records regarding mother's February 12th hospital attendance for the return date.

[23] The motion was then rescheduled to April 24th.

2. Urgency and Proper Procedure

[24] The motion that was heard on April 24th was the return of the urgent motion originally returnable before the court on February 14th.

[25] However, Ms Perry candidly admitted that the original issues that were urgent were no longer urgent namely, the father withholding the child and the issue of a restraining order. There was a parenting schedule in place and since the matter was last in court the father had been charged with allegations of historical assaults and as a term of his release he was not permitted contact with the mother.

[26] I find that this motion should never have been commenced as an urgent motion and certainly not without notice to the father.

[27] The leading case with respect to urgency and the interpretation of subrule 14 (4.2) of the Family Law Rules (FLR) is the case of Rosen v Rosen that has been cited and followed by many courts. Justice Ramona A. Wildman confirmed that an urgent motion within a court proceeding contemplated issues such as abduction, threats of harm or dire financial circumstances.

[28] Justice Wildman also set out the procedure to be followed in requesting an urgent motion prior to a case conference as follows:

1. An inquiry should be made when a case conference date is available to deal with the matter and

2. If there is a particularly pressing issue, the trial co-ordinator should be made aware of this, as sometimes earlier case conference dates are available.

[29] I would also add:

1. A motion under subrule 14(10) [procedural, uncomplicated or unopposed matters] of the FLR, by a Form 14B, can be used to advise the court of the pressing need for an early case conference date and

2. Prior to bringing a motion, there should be some settlement discussion to try to obtain a resolution of pressing matters prior to the case conference

[30] In this court in particular, counsel should be aware that early case conference dates can be easily obtained by submitting a form 14B. That was not even attempted in this matter.

[31] The entire principle of case management is to avoid this type of escalating affidavit warfare that has intensified the existing conflict and mistrust between the parents in this case.

[32] I would also point out that if this case had been commenced by the proper process, the court would have actively case managed the proceedings at a very early stage.

[33] Sub-rule 2(5) FLR describes the court's duty to promote the primary objective by active management of cases. This includes:

a. at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

b. encouraging and facilitating use of alternatives to the court process;

c. helping the parties to settle all or part of the case;

d. setting timetables or otherwise controlling the progress of the case;

e. considering whether the likely benefits of taking a step justify the cost;

f. dealing with as many aspects of the case as possible on the same occasion; and

g. if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[34] If an early case conference had been held, the court could have suggested a reasonable parenting plan (without the parties filing extensive affidavits), directed the parents to attend the Parent Information Program, recommended mediation to help the parties craft a parenting plan and suggested services to assist the parents in learning better ways to communicate with each other and to avoid ongoing conflict.

[35] In considering how to now deal with to this motion, the court could have simply dismissed the motion as not meeting the criteria of urgency. However, to do so would result in an inordinate waste of the parties' financial resources and a waste of court resources.

[36] I find it instructive to consider that the guiding principle of the sub-rule 2 (2) FLR, is to deal with cases justly.

[37] Sub-rule 2(3) FLR describes what it means to deal with cases justly. It includes:

(i) ensuring that the procedure is fair to all parties;

(ii) saving expense and time;

(iii) dealing with the case in ways that are appropriate to its importance and complexity; and

(iv) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[38] Sub-rule 2(4) FLR requires the court to use the rules to promote the primary objective, and requires the parties and counsel to help the court promote the primary objective.

[39] At this juncture of the proceedings and in view of the extensive affidavits that have been filed, I find that the only method of following the objectives of the FLR is to consider this motion as a temporary motion with respect to custody, access and the appropriate parenting schedule.

3. Background of the Parties

[40] The mother is 22 years old. She is currently not employed and in receipt of social assistance and living with her grandparents.

[41] The father is 25 years old. He has a child from another relationship who is 7 years old and since birth he has had alternate week-end access to that child.

[42] The father was in a serious car accident in 2012 and received a settlement that he has lived on. He has had some sporadic employment but is currently not employed and in receipt of social assistance. He is living with his mother.

[43] The parents met in 2017 through the maternal grandmother who was dating a friend of the father's.

[44] Although the parties differ as to some exact dates and details as to their living arrangements, the basic facts are agreed upon.

[45] The parents lived together in their own residence from about June 2017 to May or June 2018. During this time, the maternal grandmother and her other daughter Riley, who was 14 years old, lived with the parents.

[46] In September 2017, the maternal grandmother move out but her 14 old daughter continued to reside in the parents' home until June 2018.

[47] In May or June 2018, the mother moved with the child to her grandparents' home. According to the mother, she and child she would reside 1-2 times a week with the father and spend the remainder of the time in the home of her grandparents.

[48] According to the father, the mother and child stayed with him for 2 days or more and then she would return to her grandparent's home for 2 days and this pattern continued until October 2018, when the father moved into his mother's home. The mother and child then began to spend less time, only day or so a week, with the father.

[49] On January 24, 2019 the mother and child moved into the paternal grandmother's home. The father deposes that the mother called him crying and told him she was kicked out of her grandparents' home.

[50] The mother deposes that the floors in her grandparents' home were being renovated and she did not want their daughter exposed to the fumes from the flooring renovations.

[51] Regardless of the circumstances both parents resided together with the child up until the events of February 12th 2019.

[52] Both parents allege that the other parent did not properly care for the child. The mother alleges that the father was out all night several times during this time period, that he slept in and that she was the primary caregiver.

[53] The father and the paternal grandmother, who filed an affidavit, allege that the mother slept a great deal, had no routine for the baby and was frustrated with attempting to feed the child solid foods so she only gave her milk. They both depose that the father was very involved in the caring for the child.

[54] The father and paternal grandmother depose that they had concerns that the mother may be suffering from post-partum depression as she was sleeping a lot, seemed to space out at times and other times exhibited an explosive temper.

[55] The mother meticulously went through her text messages and provided copies to indicate that she was not sleeping throughout the day.

4. Events of February 12, 2019 and Subsequent Police Involvement

[56] The mother deposes that she was not getting along with the paternal grandmother and she told the father the day before that she was leaving. As she was packing the father begged her to stay, he became angry and grabbed the child and locked himself and the child in the bedroom.

[57] The mother deposes that she heard the father tell the police that she was "psychotic" and taking the baby out in a blizzard on foot. The mother states the father was aware that her grandfather was on his way to pick her up and that she would not have left in a blizzard.

[58] The mother further deposes that when the police arrived they told her she could not remove the child as there was no custody order and that she needed to go to family court and it could take up to two years. The mother deposes that she interpreted this to mean that it could take two years to get her child back.

[59] The mother was handcuffed and taken to the hospital where she was then released.

[60] In reviewing the mother's affidavit, in support of the urgent motion, I find that she misled the court as to the extent of her erratic behaviour and the police involvement and the advice she was given.

[61] The mother obtained a copy of the police records that were attached as an exhibit to her responding affidavit.

[62] The police records provides the following information:

a) The father called as the mother was "spazzing out," yelling at him and the baby. She was packing up her things and wanted to take the baby out;

b) There was a special weather warning about heavy snow, ice pellets, rain, freezing rain and serious wind gusts. There was an advisory to stay home unless it was absolutely necessary to go out;

c) The officer spoke to the mother who was angry the father called them. She told the police that the father was a drug dealer and a criminal. She told the police to focus on that, she then said she had nothing else to say. The police advised the mother that she could pack up her things and go to her grandparents but the child needed to stay. The mother wanted to take the child's bed as she paid for it but the police told her to leave it. Throughout the mother kept accusing the father of "trivial slights" and again said he was a drug dealer and criminal. The mother left the residence and shortly after the police then left;

d) Twenty minutes later, the police received a call from the father that the mother was screaming outside for him to come out and fight and that she would break down the door. When the police arrived the mother said she refused to leave without the child, she refused to let the police drive her anywhere, she had no one coming to get her, she had no plan of what she was going to do except stay outside for the night. She said she would stay outside and freeze to death before she left without the child. After a lengthy conversation, she was apprehended pursuant to the Mental Health Act and transported to the hospital;

e) The mother spoke to the emergency doctor and after being advised of the impact of a Form 1 would have on her chances of obtaining custody, the mother calmed down and agreed it was better for the child to remain with the father then being taken out in a blizzard. She permitted the police to drive her to her grandparents' residence;

f) Shortly after, the father called the police to report the mother was texting and calling him to say she was coming back with the police to take the child. The father reported that the mother was threatening him. The police re-attended at the father's home and advised that the messages were not threats under the Criminal Code;

g) A further police check revealed that the mother had called a different police division claiming the father had her daughter and her property and wouldn't give the child or property back. The police advised the other police officer what had previously occurred;

h) Both parents were advised that the children's aid society had been notified;

i) Both parents were also advised to attend at 47 Sheppard and get a custody agreement. They were advised if they wanted to be a family they should go to counselling and talk through their issues. Neither party alleged an assault.

[63] Another police report dated February 13th, indicated that a telephone call was received from counsel for the mother, in the presence of the mother, inquiring if the father was being charged. Counsel advising that the mother had told her about a "horrific assault" against the mother by the father and that she had seen the photographs of the injuries. The mother explained that she had previously mentioned this in the past but was told that if it was not reported on the actual day nothing could be done.

[64] The police advised that there had been 4 previous reports and in none of them was there any indication of domestic violence. The officer advised that domestic violence could be reported any time to any police station and encouraged the mother to report these allegations.

[65] There is a further police report dated February 16, 2019 that the mother called and advised that she had been in family court and that on February 15th the judge had ordered a 50/50 parenting schedule. The mother did not disclose any assault or threats during the phone call.

[66] On March 1st, the father was charged with 2 counts of assault on July 1, 2017. He was further charged with assaults occurring on July 1 to 31, 2017, August 1 to September 31, 2017, January 1 to 31, 2018 and July 1 to 31, 2018. He was also charged with forcible confinement and uttering threats, by telephone causing death between July 1 to 31, 2017.

[67] The father was released with his mother being his surety. The father is not to have any contact with the mother except through counsel or be within 100 metres of any place she is known to be except as required for court purposes. The father is also not to have any contact with the maternal grandmother or Justin Lavigne.

[68] The father intends to plead not guilty to the charges and deposes that he does not recall ever meeting Justin Lavigne.

5. Parenting Plans

[69] The mother is home full-time caring for the child. It is her plan to continue to reside with her grandparents. She will continue to take the children to her regular doctor. She outlined her routine for the child.

[70] The mother applied for daycare subsidy while she was pregnant. She states that she has confirmed that the child is on a waitlist. She further deposes that all of the daycares she has selected are "very close to my residence."

[71] However, it is unclear if it is her plan to live with her grandparents long term as previously she deposed that she had applied for her own subsidized housing.

[72] The mother's grandparents did not file an affidavit on this motion despite the conflicting evidence that was provided about the reason for the mother leaving her grandparent's home in January 2019.

[73] The mother provided a letter from her long-time family doctor that she has never had any concerns about the mother's mental health. The discharge summary from the hospital regarding the February 13th incident states that it was a "situational crisis".

[74] It is the father's plan to continue to reside with the child in the paternal grandmother's home. The father outlines a routine for the care of the child that is similar to the mother's routine.

[75] The father is primarily caring for the child as his mother works during the day. He has the assistance of his mother.

[76] The father also did not outline his long term parenting plan.

[77] The father deposes that the current arrangement is working well as the child is not away from either parent for long periods of time. The specified schedule ensures that the mother does not unilaterally decide not to give him time with their daughter as he alleges she had done in the past.

[78] The father and the paternal grandmother depose that since his criminal charges, his mother and the mother's grandmother have been arranging for the access exchanges that have occurred without any incidents. The times have been changed to 5:00 p.m. to accommodate the paternal grandmother's work schedule.

6. Discussion

[79] The court is required to make any decision with respect to custody and access in accordance with the best interests of a child.

[80] The criteria for a determination that involves the best interests of a child is set out in Section 24 (2) of the Children's Law Reform Act.

[81] I have considered and applied those provisions in this decision.

[82] As this is a temporary motion the court is also required to consider the principles with respect to temporary orders.

[83] A temporary order 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, the issues will be resolved at a trial.[1]

[84] The status quo should be maintained until trial unless there is material evidence that the child's best interests requires an immediate change.[2]

[85] Children should have maximum contact with both parents if it is consistent with the child's best interests.[3]

[86] I have also considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations and such orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial.

[87] I have also considered that a temporary order can have and frequently does have long term implications.

[88] In this case, there is some dispute about which parent was the primary parent. At this stage, although it appears that the mother had the child in her care more than the father, the father was significantly involved in also caring for the child.

[89] Counsel for the mother emphasizes the serious criminal charges the father is facing. However, the father is presumed to be innocent until proven guilty. I also note the timing of those charges was only after the mother commenced these proceedings and after the court had ordered shared parenting.

[90] The police had been involved with the parents on at least 4 prior occasions and the mother never mentioned any such concerns. However, I am aware and have considered that many victims of domestic violence do not report abuse while residing with their partner.

[91] In this case, the alleged serious assault and forcible confinement and uttering death threats are alleged to have occurred from July 1 to 31, 2017. The mother deposed that she separated from the father in April or May 2018 and does not report any abuse.

[92] Further, the mother alleged that the maternal grandmother was aware of the incident and tried to intervene. However, the maternal grandmother and her 14 year old daughter lived with the father until September 2017 and maternal grandmother then left her daughter to live there until June 2018. There is no explanation to why the maternal grandmother would have continued to live in the father's home, left her 14 year old daughter there or would not have reported or encouraged the mother to report such abuse.

[93] The mother's explanation that the police told her she could not report domestic violence that occurred in the past was disputed in the police report.

[94] I have concerns that the mother has exaggerated or falsified her concerns about the father's criminality. If as she alleges the father is a drug dealer and belongs to a gang, she then does not explain why she continued to live with him, continued to return with their child to spend significant amounts of time with him and moved in full-time in January 2019.

[95] I have concerns about the mother's lack of stability as outlined in her own history of moving in and out of her grandparents' home.

[96] I have concerns about the mother's version of the events of February 13th and her irrational and erratic behaviour that was not focused on the best interests of her daughter.

[97] Since the shared parenting schedule has been in place, neither parent has alleged any issues regarding the care the other parent is providing for the child.

[98] Although the records of the Children's Aid Society of Toronto have not yet been received, there is no evidence that the society has expressed any concerns about the care either parent is providing for their daughter.

[99] I find that at this time, the best interests of the child are to continue in a shared parenting regime.

7. Order

[100] Pending further order of the court there will be a temporary order as follows:

1. The child I. born […], 2018 shall reside with both the Applicant and Respondent as follows

(i) with the Applicant mother on alternate week-ends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and every Tuesday from 5:00 p.m. to Thursday at 5:00 p.m. or other times agreed upon, and

(ii) with the Respondent father for the remaining of the time;

2. The Applicant mother shall reside in the home of her maternal grandparents, Linda and Roy Eadie while the child is in her care;

3. The Respondent father shall reside in the home of the paternal grandmother, Veronica Francis while the child is in his care;

4. Linda Eadie and Veronica Francis, or other third parties agreed to by counsel, shall be responsible for the exchange of the child to be done in a neutral location as agreed between them;

5. The Applicant mother and Respondent father shall not communicate directly or indirectly with each other and shall not be within a 100 metre radius of each other, except as required for court purposes, and in compliance with the terms of the Respondent father's terms of recognizance of bail;

6. The Applicant and Respondent shall be responsible for the day to day decisions regarding the child, while the child is in his or her respective care;

7. Neither party shall make any major non-emergency decision regarding the child without consulting the other parent and without the other parent's prior written consent. Such consultation to occur through counsel while there is a restriction on their ability to communicate directly or indirectly with each other;

8. Neither party will remove the children from the province of Ontario without a court order.

[101] If there is a request for costs, this can be addressed orally at the case conference returnable on May 27, 2019.

Released: May 7, 2019

Signed: Justice Roselyn Zisman

Footnotes

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

[2] See above and cases cited therein

[3] Gordon v. Goertz, [1996] 2 S.C.R. 27