Court File and Parties
CITATION: A.C. v. D.J., 2019 ONCJ 465
DATE: March 13, 2019
Court File No. C182/18
ONTARIO COURT OF JUSTICE
FAMILY COURT
IN THE MATTER OF: The Family Law Act, R.S.O. 1990
B E T W E E N:
A.C. Applicant
- and -
D.J. Respondent
Appearances
BEFORE THE HONOURABLE JUSTICE S.E.J. PAULL on March 13, 2019 at WOODSTOCK, Ontario
APPEARANCES: J. Battin, Counsel for the Applicant D.J., Respondent, in person
Proceedings
WEDNESDAY, MARCH 13, 2019
THE COURT: Parties are present. So, the next step in this matter, I have reasons for judgment that I’m going to read in a moment. The next step in this matter is a settlement conference. Madam Clerk, can you see if there’s any time available on, left on April 24th?
MR. BATTIN: Your Honour, I’m in Simcoe that date, doing a couple of trials. I can’t be here.
THE COURT: I think that date might be full anyway. The next day is May 15th or May 29th.
CLERK REGISTRAR: One left at 2 on that date, Your Honour.
THE COURT: Okay.
CLERK REGISTRAR: What other dates, sorry?
THE COURT: May 15th or May 29th.
MR. BATTIN: May 29th, please.
THE COURT: That work for you? May 29th.
DJ: Yup.
CLERK REGISTRAR: At 10:00 o’clock, Your Honour.
THE COURT: Yes.
MR. BATTIN: Okay.
REASONS FOR JUDGMENT
PAULL, J. (Orally):
These are the reasons for judgment of the two motions that were argued before this court on February 25th, 2019.
This is the unfortunate situation involving a young girl named M., born […], 2016 and who is not quite three years old. She’s the only child of the parties in this proceeding. Her parents began living together in May of 2014 and separated, finally, on October 10th, 2018.
There are two motions before the court, one brought by each parent, with both claiming urgency and seeking interim custody of M. AC also seeks a restraining order and supervised access. However, her position with respect to the access when the motions were argued, is that the daytime access on Saturdays and Sundays be continued. DJ, among other things, sought an order placing M. in his primary care as an alternative to sole custody in his favour, or that there be a shared residential arrangement.
On October 29th, 2018, when the motion brought by AC was first returnable, DJ had not filed materials. An order was made that pending argument DJ was to provide a proposal for access supervisors and the applicant was ordered to consider and respond to the proposal. This prompting by the court did not result in an agreement on access pending the motion being heard. And when the matter was next returnable on November 19th, 2018, the court made an interim without prejudice order pending argument that included the following terms:
Custody to the applicant;
Access to the respondent on Saturdays and Sundays from 10 to 4, and otherwise as agreed;
The respondent not to consume alcohol 12 hours before, during access;
The respondent shall not communicate in a derogatory manner with the applicant and any communications between the parties shall be restricted to the issues related to access arrangements;
The parties shall only attend at the other’s residence for pick up and drop off, for access as agreed, or as outlined in this order, and shall not attend at other times unless invited;
Unless otherwise agreed, the child is not to be removed from Oxford County;
The child’s not to be exposed to conflict between the parties.
Both these motions were argued on February 25th, 2019. I’ve reviewed the affidavits filed by the parties at tab 2, 4, 10, 11, and 13. The affidavit at tab 14 was not considered, as it consisted of an unsworn statement by a third party attached to an affidavit of the respondent.
Ultimately, the court must decide what custodial and residential order is in the child’s best interests. The test for determining access is what order is in the child’s best interests as well. In making these determinations, I’ve considered the best interest factors set out in subsection 24(2),The Children’s Law Reform Act, as well as all other relevant considerations. The child should have maximum contact with both parents, if it is consistent with the child’s best interests. The best interests of a child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger, so the child’s physical and mental well being.
There’s a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, and to know and maintain or form an attachment to the non-custodial parent, is a fundamental right that should only be forfeited in the most extreme and unusual circumstances.
A starting point to assess the child’s best interest when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in the child’s best interest when making an order that his or her caregiver be physically and emotionally safe.
These are also motions for interim relief before the court and there are additional considerations. While there is no presumption in favour of custody to either parent in an initial application following separation, the status quo and avoiding the reckless creation of a new status quo, are important considerations at the interim stage.
It’s a longstanding legal principle that absent compelling evidence that immediate change is required, the status quo is ordinarily to be maintained until trial. In other words, in making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests. The reference to status quo in a fresh separation entails a look at the status quo when the family was together.
The rationale for this principle lies in the fact that there is a concern for fairness to the parties, and a concern for the best interests of the child. Generally, it’s not in the best interests of a child to change the residential arrangements if there is the possibility of yet another change because of a pending trial. Through the lens of the child’s best interest, the court must determine what temporary living arrangements are the least disruptive, most supportive, and most protective for the child. If appropriate, the status quo of the child, that is the living arrangements with which the child is most familiar, should be maintained as closely as possible.
With respect to the evidence of the parties, AC’s position is based on numerous concerns with DJ that she deposes in her affidavits, primarily related to DJ’s alcohol use and his verbal and emotionally abusive behaviour. She states that throughout the relationship, DJ’s alcohol use was a problem and led to financial difficulties and ultimately their separation. She also states that she was the primary caregiver of the child and the respondent had little awareness of M.’s special needs.
AC surreptitiously recorded a lengthy interaction between the parties on October 14th, 2018, during which the child was present and DJ made numerous inappropriate comments in front of the child, included repeatedly swearing and denigrating AC and her family. Some examples include DJ stating the following: early in the conversation he spoke to M. and said, “You probably don’t go for walks anymore, eh, M. You probably don’t have any fun in your life anymore. Daddy bought those things for you. You probably have a shitty life now.” Later in the conversation, still in the presence of M., DJ stated to AC and then to M., “Fuck you, fucking threatening me. Daddy’s leaving M. Sorry, this is fucking bullshit and she should be in her fucking house. I’m her fucking dad.” Shortly after he stated to M., “It’s all right, M., you’re not going to see me again. I’m going to drive my car off the 401. No purpose to live anymore,” and later said to AC, “to get the fuck out of my life,” followed by, “Bye M. I’m sorry M., your mom thinks she’s so fucking perfect. Well, maybe I’ll see you at Christmas.” These are just some of the examples in a lengthy interaction in the child’s presence, that was entirely inappropriate throughout.
DJ does not dispute the content of the conversation outlined in the transcript but feels that AC manipulated the events and set up the exchange to use against him in court. He deposed that both parties had been inappropriate at times, using swearing and derogatory language toward the other. He deposed that she is equally inappropriate in front of M. at access exchanges and he also taken to recording interactions. He disputes that AC was the primary caregiver and that he does not understand M.’s needs.
The parties attended counselling in the spring of 2018 and both signed an agreement which included several terms as follows: both parties agreed that there would be no alcohol in the house; both parties agreed that there would be no more drinking alcohol inside or outside the house; both parties agreed that there will no longer be any swearing; and both parties agreed that there will no longer be any name calling.
There were numerous text messages filed by the parties that highlight the toxic communication between them. Since the parties’ separation, DJ has been charged with sexual assault against AC, in August 2018, for alleged incidents prior to the separation. He’s also facing a charge for breaching the no contact order put in place following the charge.
DJ adamantly denies an alcohol problem but states that he has and will abide by the court’s alcohol prohibition before and during access that was first imposed on November 19th, 2018. DJ alleges that AC has been verbally and physically assaultive during arguments towards him. He also deposes that she has significant mental health issues involving obsessive, compulsive, and controlling behaviours, which resulted in mood swings and violence, including that she smashed the phone and threw a pop bottle at him. He also states that she has been diagnosed with social anxiety disorder and has difficulty leaving the home alone and that she has not been on any medication for these issues throughout their relationship.
Both parties raise concerns for M.’s well being. AC sought support for M. at Wellkin on November the 6th, 2018 and filed a summary report from that organization. The report outlines that AC advised that M.’s acting out included screaming and hitting and that she was exposed to conflict between the parties. Under the heading, Therapist’s Perspectives, it notes that, “Mom is struggling with her own emotions of leaving her partner. She’s also struggling with M.’s emotions and trauma re: separation.”
The first issue to be determined is whether urgency has been established as both these motions were brought before a case conference. The rule of no motions on substantial issues before case conferences is tempered by Rule 14(4.2), which states that the rule “does not apply if the court is of the opinion that there is situation of urgency or hardship or that a case conference is not required for some reason [sic] in the interest of justice.”
Urgency has been held to include the following: abduction or threat of abduction; harm or threat of harm; dire financial circumstances; extreme situations justifying the court in acting immediately; and issues which are determined or deemed to be crucial, serious, vital, or essential. In considering the urgency, the court must balance the urgency claimed against the irreversible impact of the exchange of inflammatory and provocative affidavits, and how it will affect the ability of the parties to resolve the case. Attempts should also first be made to make short term arrangements or obtain an early case conference date.
For the following reasons, the requirement of urgency is satisfied. From the perspective of M., the manner in which her parents have behaved around their separation cries out for the court’s intervention on an urgent basis. For reasons which will follow, it is clear M. has been exposed to entirely inappropriate behaviour and conflict between the parents that is not in her best interest and that has, as outlined in the Wellkin report, likely impacted her behaviourally and puts her at risk of emotional harm. With respect to what interim arrangement will be in her best interests and sufficiently protective in the circumstances, the following additional considerations are relevant.
DJ alleges that AC has various mental health diagnoses that are untreated and that impact her ability to parent, which support in his view, an order for custody in his favour. AC acknowledges social anxiety for which she sought support for in her twenties. She has attended college and worked as a PSW for six years. The evidence indicates she has followed through with M.’s medical needs with the pediatrician and with Wellkin to address the impact of the separation on M. On the basis of the evidence before this court, DJ has not established that AC has significant mental health issues which ought to preclude her from providing primary care for M.
Both parties acknowledge recording their interactions post-separation and seek to rely on them in this proceeding, as well as various text message exchanges that have been filed. Recordings, including surreptitious recordings, of interactions between litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust without the parties worrying about whether the other is secretly taping them.
As Justice Sherr noted in Hameed and Hameed: In constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
Parties relying on this type of evidence, including surreptitious recordings, rely on it as being highly probative of parenting ability, when often its probative value relates more to the parties’ ability to get along and of the high level of animosity between them. These types of recordings often show that the parents are putting their own need to win in the litigation ahead of the child’s needs.
In this case, the court is extremely concerned about the nature of the parents’ communication and M.’s exposure to parental conflict. The October 14th, 2018 exchange detailed by AC is troubling for various reasons. DJ’s abusive and vulgar language to ac and in front of M., including a threat to kill himself, are extremely inappropriate, and on their own raise serious doubts about his parental judgment. However, I must also question why AC would permit M. to be exposed to this disturbing and lengthy exchange, the transcript of which went on for seven pages. It was clear at the very beginning that this was not appropriate for M. to hear. However, AC continued to engage and expose M., likely to facilitate her gathering of evidence in this proceeding, instead of simply removing herself and M. from the situation.
Both parents, and particularly DJ, have created a situation where the communication is toxic and highly inappropriate. Both have permitted M. to be exposed to it at times and both seek to benefit from recording it. What this tells me is that the parents have no ability to communicate respectfully and that neither party has made sufficient efforts to ensure M. is not exposed to their conflict. However, DJ’s comments are particularly concerning and regardless of the fact that AC may have facilitated the discussion to record it for court, they established a serious lack of insight into M.’s interests.
Further, in spite of DJ’s adamant denial, alcohol was clearly an important factor in the difficulties the parties had that led to separation. The texts and Facebook communications filed in evidence make repeated references to alcohol. The counselling agreement for both parties, that they signed, included that they both agree that there would be no more alcohol in the house, and no more drinking alcohol inside or outside the home. The paternal grandmother, in a text exchange with AC, makes reference that from her point of view, DJ has learned, “Nothing but drinking and violence,” which suggests she also has a concern for his alcohol use. She also states, quite accurately, her concern that the child was caught in the middle of the fight between her parents.
At this stage of the proceeding, the appropriate order is that DJ shall not consume alcohol 12 hours before or while in a caregiving role to M. Any order dealing with custody and access of a child should be based solely on the best interests of the child, with those interests analyzed from the child’s perspective.
With respect to the custodial designation, courts do not expect communication between separated parties to be easy, or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future so that the best interests of the child can be ensured on an ongoing basis.
Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly, and uneventfully. This has not been M.’s experience.
On the evidence before the court, I have no confidence that a joint custody order will serve M.’s interests or will result in any change in the current toxic relationship between her parents. There is no evidence of positive communication, no evidence of an ability to work together, and the evidence support the conclusion that to impose joint custody and an expectation that they communicate and work together, will only perpetuate the hostility and power struggles and strongly increase the likelihood of M. being exposed to further toxicity and parental conflict.
I note in particular that reasons of Justice Murray in the case of Jackson and Jackson, which highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children, which continues in both the short and the long term and is a major source of harm for children. Both parties deposed to a concern for M.’s emotional well being. However, both show a significant lack of insight and both to some extent have created circumstances where she has been exposed to highly inappropriate behaviour and parental conflict.
AC is not presently working and is available to care for the child and she has taken the appropriate and proactive step of seeking to initiate supports from Wellkin. I also accept that at the time of separation she was the primary caregiver. DJ works from 7:30 a.m. to 4 Monday to Friday and is available at other times to care for M. and I accept that he also played a role in caring for M. when the parties were together, particularly when AC was working.
Neither party has a criminal record or been involved in court proceedings with the CAS. Both parties indicate that the CAS has investigated during this matter but is not currently involved. It’s not clear whether CAS have been privy to the recorded communications in coming to that conclusion.
My primary concerns relate to DJ’s alcohol use and the toxic interactions between the parties and M.’s exposure to parental conflict. AC acknowledges drinking with DJ at times and arguing with him and, “occasional physical struggles,” between them. While I question both parties’ behaviour and motivation at times, DJ’s behaviour has been a particular concern for the reasons noted. However, since access began based on the interim without prejudice order of November 19th, 2018, which included various terms to control the interactions between the parties, and an alcohol prohibition for DJ, there are no allegations that he has consumed alcohol during access or that M. has not be properly cared for during access. However, there is evidence of his continued inappropriate communication with AC in spite of this court’s order and a criminal recognizance prohibiting communication.
In all these circumstances, a limited step towards additional access for DJ with strict terms in place is appropriate. When all these factors are considered, the best interests of M. support an interim order that she remain in the sole custody of AC with access to DJ, with both parties being under strict terms, fashioned to alleviate the clear risk posed by their toxic interactions and by DJ’s alcohol use.
If the parties are unable to behave in a manner that does not expose M. to their conflict, then supervised access exchanges and more intrusive measures may be required.
On the basis of these considerations, there shall be an interim order as follows:
Custody to the applicant;
Access to the respondent on alternate weekends from 10 a.m. on Saturday to Sunday at 4 p.m. and each Wednesday from 4:30 to 7 p.m. or otherwise as agreed;
DJ shall not consume alcohol 12 hours before and while in a caregiving role;
The parties shall not communicate in a derogatory manner and any communications between the parties shall be restricted to issues related to access arrangements;
The parties shall not communicate with each other in any manner, including by phone, voicemail, text message, or in person, in the presence of M.;
Neither party shall speak in a derogatory manner about the other party, or their family, or about this litigation in the presence of M., and shall ensure that she is not exposed to any derogatory language about the other party or their family;
The parties shall only attend at the other’s residence for pick up and drop off for access as agreed or as outlined in this order and shall not attend at other times unless invited;
The child shall not be exposed to conflict between the parties or any other vulgar or derogatory language.
This matter is adjourned to a settlement conference on May 29th, 2019 at 10 a.m. with briefs to be filed. Anything else?
MR. BATTIN: Does Your Honour have what you just said in a written format so I can draw an order?
THE COURT: The order is – Madam Clerk, can you, can you make two photocopies of that, please?
CLERK REGISTRAR: Sure.
MR. BATTIN: Okay.
THE COURT: It’s time for you both to take a step back and calm this matter down. And I expect you both, particularly you sir.
DJ: I understand.
THE COURT: To change how you’re approaching this matter. It will not end well for you if you don’t, I suspect. Yes, sir.
DJ: Am I allowed to take M. to see, like her grandmother?
THE COURT: I have not imposed an order that she not be removed from Oxford County.
DJ: Okay.
THE COURT: You have her overnight on Saturdays, you need to exercise appropriate parental judgment and if you are going somewhere, it would be appropriate for you to let AC know that if you’re going to spend the night at your mother’s or somebody else’s home, the expectation is you’re the primary caregiver at these times and that you will let her know.
DJ: Okay.
THE COURT: So, there’s no misunderstandings.
DJ: Okay. So, if I take her to Hamilton, I just tell AC. ’Cause I – so I’m allowed to take her to her grandma’s house?
THE COURT: There is no prohibition on you doing so.
DJ: Okay, thank you.
THE COURT: There are other prohibitions that you need to review carefully, but that is not one of them.
DJ: Okay.
THE COURT: Okay, anything else?
DJ: Thank you.
THE COURT: Thank you. That’s it. Thank you.