Court File and Parties
Ontario Court of Justice
Date: 2020-05-29
Court File No.: Woodstock D207/19
Between:
N.D. Applicant
— And —
R.K. Respondent
Reasons for Judgment on Motions
Per: Covid-19 Protocol
May 29, 2020
Barbara Storey ......................................................... counsel for the applicant(s)
James G. Batten ........................................................ counsel for the respondent(s)
PAULL J.:
Background and Motions
[1] Each party has brought a motion seeking urgent temporary custody of their only child, E.K. (female) born […], 2015.
[2] N.D., the child's mother, seeks a temporary order for sole custody or alternatively shared custody, or in the further alternative liberal access. She also seeks an order that the respondent be subject to an alcohol prohibition during periods of his care and control of the child.
[3] She claims urgency and supports the order she seeks on the basis of her concerns with R.K.'s alcohol use, and that he has acted unilaterally and unreasonably in denying her contact with E.K. when she was the child's primary care caregiver prior to separation.
[4] R.K., the child's father, seeks a temporary order that he be granted custody and that N.D. have access on alternate weekends and other times, and that her current partner S.S. and her father D.D. not be left alone with the child.
[5] He claims urgency and supports the order he seeks primarily on the basis of his concerns regarding N.D.'s lack of stability, and that there are significant safety concerns with her new partner S.S. He also states that he was the primary caregiver of E.K. prior to separation.
[6] Both parties have financial claims before the court which they agreed would not be proceeding at this time and would be adjourned without prejudice to a later date.
[7] In addition to the submissions of counsel I have reviewed and considered the affidavits of the applicant dated April 23, May 4, and May 19, 2020, and the affidavit of the respondent dated May 13, 2020, and the affidavit of M.R. dated May 12, 2020 filed on his behalf.
Background and Evidence
[8] The parties began living together in July 2013 and separated on September 20, 2019. Since that time the child has been in the care of R.K., with restricted contact with N.D. at times, and virtually no contact since March 12, 2020. Each feels the other is entirely responsible for these circumstances.
[9] With respect to the separation on September 20, 2019, N.D. deposed that R.K. forcefully excluded her from the home and would not let her take the child with her. She states that much of R.K.'s behaviour is aimed at controlling and belittling her and keeping E.K. from her.
[10] R.K. deposes that on September 19, 2019 N.D. and E.K. slept over at the home of K.N. and N.D. would not let him come and pick E.K. up. He stated that N.D. had slept over at the homes of various men and was concerned that she had taken E.K. with her on this occasion.
[11] N.D. acknowledged that she and E.K. went for a sleepover at a friends but disputes R.K.'s characterization of it as her once again being with another man. The parties had a disagreement over this when she returned to the home in the morning of September 20, 2019. R.K. acknowledges closing the front door while she was still on the porch, effectively excluding her from the family home, however denied raising his voice or slamming the door in her face.
[12] N.D. deposes that throughout the relationship she was the primary caregiver and made all the arrangements for E.K.'s daycare and medical appointments and took her to all the appointments. She states that the respondent worked full time and was minimally involved with E.K., preferring to be with friends and consuming alcohol. She states that the respondent drank alcohol regularly and excessively and that she had observed him drink and drive.
[13] N.D. alleges that on two occasions in December 2019 E.K. called her from R.K.'s home saying that he was asleep, and she could not wake him. She attended at the home to find R.K. intoxicated which required her to stay the night.
[14] He denies the allegations of his excessive alcohol use and alleges that N.D. regularly consumed alcohol with her friends, including at times when she was caring for E.K.
[15] R.K. states that N.D. stayed with K.N. in a small trailer from the date of separation to November 2019 when she separated from him. On December 1, 2019 N.D. moved to Tillsonburg where another man "B." was present. He alleges he had to attend N.D.'s home frequently to assist in calming down E.K. who did not like to be there.
[16] R.K. claims N.D. left that apartment to reside with S.S. at his home on January 1, 2020 and that he was not aware of this at the time. He states that he became aware that she was residing there in February 2020.
[17] R.K. states that he has worked full time for the same employer as a carpet/floor installer for 11 years with regular work hours of 8 AM to 4:30 PM. When he came home from work he became the primary caregiver because N.D. was more interested in spending time on her phone and with her friends or being in the company of other men.
[18] He feels that N.D. "has never made E.K. a priority in her life. The applicant's prime purpose in life is to stay with different men from time to time and to change residences."
[19] After separation N.D. states that she continued to see E.K. on a daily basis by picking her up from school and caring for her until bedtime but that R.K. would not agree to her requests for more time. From September to November 2019 she states she lived with her father until she found her own accommodation in Tillsonburg starting December 1, 2019. She denied residing with K.N. from September to November 2019.
[20] Starting in December 2019 when she obtained her apartment she alleges that the parties had a week about shared parenting arrangement which lasted until March 13, 2020 when R.K. unilaterally withheld E.K.
[21] She deposes that in spite of R.K. agreeing to the shared arrangement starting in December 2019, she alleges he undermined the arrangement by attending at her home unannounced almost every day. As a result of R.K.'s interference with her time with E.K. she commenced the court application in December 2019 seeking to confirm the shared residential arrangement.
[22] R.K. disputes that there was a shared arrangement in place for E.K. from December 1, 2019. He deposes that he received a call from an OPP officer telling him he had to provide access on a week about basis. As a result of this call he agreed to a shared arrangement where E.K. was with N.D. for approximately three weeks from mid-February 2020 to March 13, 2020.
[23] He acknowledged terminating the shared arrangement on March 13, 2020. He felt justified in terminating the shared arrangement because he became aware of concerns with S.S. in that he had "attempted suicide on several occasions" and was "using crystal methamphetamine as an opiate."
[24] After March 13, 2020 R.K. permitted only one brief face-to-face visit which occurred on April 16, 2020 at a Tim Hortons and he has insisted that he be present for any contact N.D. has with E.K. Since March 13, 2020 N.D. has continued to attempt to call E.K. however states that R.K. interferes in the phone calls by speaking in the background to E.K. about what to say.
[25] N.D. deposes that on March 1, 2020 she moved in with her current partner S.S. in St. Williams, however prior to that she and E.K. spent some time there, including overnights. S.S. resides in a three-bedroom single family dwelling with a large backyard. He has two children aged 8 and 5 which reside with him on a shared basis. E.K. gets along well with S.S. and his children and they enjoy spending time together. She denies that there any safety concerns with S.S. and takes the position that R.K. terminated her contact with E.K. over money issues and because he was upset she was in a relationship with S.S.
[26] Overall, in addition to his concerns with S.S., R.K. was concerned with N.D.'s lack of stability, E.K.'s poor school attendance when she was with N.D., and that E.K. needs protection from N.D.'s various "admirers/boyfriends."
[27] M.P., a friend of R.K.'s, deposed an affidavit supporting that he had observed the family prior to separation and that he had observed R.K. and E.K. to have a close relationship and that R.K. was often in a caregiving role. He agreed with R.K. that N.D. spent little time with E.K. and preferred to be on her phone.
[28] This family has not been involved with the CAS, although N.D. appears to have had historic involvement as a minor parent. Neither parent has a criminal record and the only police involvement appears to be one or two phone calls to the police about access issues post-separation.
The Law and Analysis
Urgency Standard
[29] These are both urgent motions brought pursuant to the OCJ Covid-19 Protocol and to Rule 14. Rule 14(14) states that there are no motions before a case conference save and except as outlined in Rule 14(4.2), and that is unless the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required. Prior to the pandemic, urgency has been held to include abduction or threat of an abduction, harm or threat of harm, dire financial consequences, extreme situations justifying the court in acting immediately, and issues which are determined or deemed to be crucial, serious, vital or essential.
[30] Concerns due to Covid-19 and urgent motions brought during the suspension of regular court operations are subject to additional considerations. The issue of when an urgent hearing is justified in these circumstances was reviewed in detail in Ribeiro v. Wright, 2020 ONSC 1829 and Thomas v. Wohleber, 2020 ONSC 1965. The court in Thomas v. Wohleber found that the following factors are necessary in order to meet the requirement of urgency at this time:
The concern must be immediate; that is one that cannot await resolution at a later date;
The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child's health, welfare, or dire financial circumstances) rather than theoretical;
It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[31] Both parties have filed lengthy affidavits outlining extensive allegations against the other. Without the benefit of viva voce evidence and cross-examination the court is not in a position to assess the veracity and credibility of all these allegations. Neither is it necessary to do so at this time for the purposes of these urgent motions.
[32] Neither parent is raising any concerns related to Covid-19. The concerns raised by each relate to the other's fitness to parent.
Assessment of Respondent's Allegations
[33] For the purposes of this motion R.K. has not established that N.D.'s lifestyle has led to instability that puts E.K. at risk or that she needs to be protected from her mother's various "admirers/boyfriends". N.D. has moved 2 times since the parties separated in September 2019. However, R.K. acknowledged closing the door on her on September 20, 2019 effectively dispossessing her from her home which required her to find living arrangements with little or no notice.
[34] N.D. ultimately found rental accommodation effective December 1, 2019 and then moved in with her new partner at some point in early 2020.
[35] R.K. has not established on the evidence that N.D. is not interested in parenting E.K. and more interested in pursuing various relationships with different men. R.K. offered little or no specific factual evidence about the basis for his belief that N.D. was with K.N. and later "B." other than brief comments made by E.K., the full particulars and context of which he did not provide. R.K. states that N.D. "took up" with "B" in December 2019. The evidentiary basis he offered in support of this is that he "knew this because my daughter told me that she and B. where cuddling on a couch in the applicant's apartment". N.D. denies that she has taken up with different men, and stated that the individuals were friends of hers, who she and E.K. occasionally spent some time with. The evidence provided by R.K. is insufficient to establish that E.K. needs to be protected from the men in N.D.'s life.
[36] I am also not persuaded on the evidence that R.K. has established that there are significant safety concerns with N.D.'s new partner S.S., which has justified what has essentially been a termination of all contact since March 13, 2020 except for very limited and supervised contact on one brief occasion at Tim Hortons and monitored phone calls.
[37] R.K. alleges that S.S. has been suicidal and that he abuses illicit drugs. The source of this information was not clearly outlined but appears to have been his cousin, K.M. There was no direct evidence from K.M. and few if any particulars were provided.
[38] While the Rules permit evidence on a motion that is not within the personal knowledge of the affiant in certain circumstances, the information provided regarding safety concerns with S.S. fell well short of what would be required to establish them. His allegations were conclusory in nature and offered little or no factual underpinnings.
[39] Further, R.K.'s allegations regarding both N.D. and S.S. are brought into serious question on the basis of the text messages between the parties at the time, including between R.K. and S.S.
[40] R.K. denied that he terminated the shared arrangement over not receiving a portion of the Child Tax Benefit rather than any safety concern with S.S. However, his own texts at the time, which he did not dispute he wrote, clearly suggest his actions were motivated by money and by anger towards S.S. and N.D. for having had a relationship.
[41] In the text exchange between R.K. and N.D. on March 20, 2020, R.K. directs N.D. to drop off the "baby bonus" when she attends to pick up E.K. and then states, "if I don't get my half of baby bonus she staying with me have a good night [sic]". She did not have the Child Tax Benefit at that time and R.K. followed through with his threat and kept E.K. from her.
[42] The text exchanges between R.K. and S.S. on or about April 15, 2020 are also strongly suggestive that R.K. was not motivated by safety concerns. They were discussing making access arrangements wherein R.K. stated the following:
"I don't get y u two want E.K. I have a job I can support her I have everything she needs and wants and you guys can't give her what I can she's happy has a family that support her and financial support u 3 don't have jobs and already have five people living there I know N.D. loves her Im willing to do weekends [sic]".
[43] A further text from R.K. to S.S. at that time clearly suggests his upset that S.S. had a relationship with N.D. when he stated the following:
"don't ly dude I don't care what bullshit lines u trying to feed me u cheated with my ex and with other girls in relationship that's your problem u actually don't care about anything but yourself your sister said u were good at trying to manipulate people so once a week every other weekend that's the deal [sic]".
[44] R.K. and S.S. exchanged additional texts in mid-April 2020 when R.K. reiterated his position:
R.K.: "… I'm willing to do every other week Wednesday till Sunday as long as u promise she wont mise school if they ever go back lol sorry that was my bad should have read my messages [sic]".
S.S.: "if you agree to that I can promise you that she will not miss school unless she is puking or really bad fever same rules with mine and we will have the lawyer draw something up and have it spend to you for approval thank you [sic]".
[45] R.K. does not dispute making these statements. They indicate that his concerns related to money and the fact that he felt S.S. and N.D. "cheated" on him. His own comments suggest that the termination of the shared arrangement and his position of only offering the alternate weekends was based on these issues alone.
[46] Most importantly, there was a conspicuous absence of any reference by R.K. in any of the text exchanges to his apparent concerns with S.S. being a risk to E.K., particularly since these exchanges took place after he acknowledged becoming aware they were residing together and after he alleges he became aware of the concerns. Further, he was offering regular overnight access without restriction in spite of the concerns he claims to have had at the time. By his own admission, he was aware that N.D. lived with S.S. when the texts were exchanged and was in fact communicating directly with S.S. to discuss access arrangements.
[47] No access occurred and the within motion by N.D. was brought when she received a letter from R.K.'s counsel on April 20, 2020 which stated his position at that time that S.S. posed a serious safety risk to E.K., and that she needed to sign an undertaking that S.S. not be present for access, or alternatively that her access be supervised at a facility. There is no evidence that he raised any of these issues previously in any of his text communications with either N.D. or S.S., including those the week prior to the date of his counsel's letter.
[48] R.K. also seeks an order that N.D.'s father, D.D. never be left alone with the child. The only reference to D.D. is a brief statement in his 35.1 affidavit that D.D. misuses non-prescription medication. No particulars were provided except a statement in his affidavit that he felt it was not appropriate for D.D. to be involved with E.K. He simply states that he has a concern and provides no factual underpinnings to support it. This is not sufficient and falls well short of establishing urgency or that the best interests of E.K. require a court order restricting his contact.
[49] R.K. also states that there was a major concern with N.D. not ensuring E.K. attended school during her weeks. He provided the school attendance report from October 10, 2019 to March 12, 2020 when the school year was suspended because of Covid-19. The attendance record outlined some missed days and late arrivals throughout October 2019 to March 2020. The numbers were not excessive and appeared fairly consistently throughout the entire period, much of which was when he alleged he had E.K. in his sole care.
[50] A further difficulty with his evidence is that he was less than clear about when E.K. was with N.D. R.K. disputes that the shared arrangement was in place from December 2019 to March 2020. He acknowledged he agreed to a shared arrangement in January and February 2020, however he indicated it did not go well and E.K. only spent two weeks with N.D. (para. 35 of his affidavit).
[51] Elsewhere in his affidavit he stated that he received a call from the OPP in April 2020 (this date likely being a typo) telling him he had to abide by the week about shared arrangement. He states that as a result of this call he agreed to a shared arrangement where N.D. had E.K. for approximately three weeks from mid-February 2020 to March 13, 2020 (para. 17, 18).
[52] Then in paragraph 38 of his affidavit R.K. states that he got a call from the OPP on March 20, 2020 as a result of a call from N.D. when she attended to pick up E.K. but that the police did not tell him to send E.K. with N.D. because he outlined his concerns.
[53] R.K. claimed in paragraph 38 of his affidavit that the applicant "unexpectedly" showed up at his home on March 20, 2020 to pick up E.K. which resulted in an altercation and the call to the police. However, in the texts between the parties on March 20, 2020 R.K. directs N.D. to bring the "baby bonus" when she came to pick up E.K. His own texts suggest that N.D.'s arrival was not unexpected, and it was the day N.D. expected to begin her week of the shared arrangement, having had her last the week ending March 13, 2020.
[54] His evidence on these points was unclear or inconsistent, and when considered in the context of his motivation at the time that is reflected in his text messages I am not persuaded by the evidence he has offered to establish his concerns. That N.D. commenced her application in December 2019 seeking to confirm the shared arrangement is also supportive of her view of when this arrangement occurred. However, the issue of how long the shared arrangement existed will be determined at trial if necessary. Regardless of when or for how long the shared arrangement existed, R.K. acknowledged agreeing to it, that it occurred for a period of time, and that he unilaterally terminated it in March 2020.
[55] Overall, on the basis of all these considerations R.K. has not established urgency on the grounds submitted.
Applicant's Urgency
[56] However, I am of the view that urgency is established by N.D. with respect to her motion in that as of March 13, 2020 R.K. unilaterally and unreasonably terminated all but extremely limited contact between her and E.K.
[57] Urgency is also established in my view by the strong likelihood that without court directed terms there is little hope these parties will agree on any arrangements going forward that will serve E.K.'s best interests and ensure that she has the opportunity to maintain regular and meaningful contact with both of her parents.
Best Interests of the Child
[58] Ultimately, the court must decide what custodial and residential order is in the child's best interests. The test for determining access is also what order is in the best interests of the child.
[59] In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.
[60] Children should have maximum contact with both parents if it is consistent with the children's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.
[61] The best interests of the 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 to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).
[62] There is 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 and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).
[63] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.
Alcohol Concerns
[64] N.D. raises concerns about R.K. related to drugs and alcohol, and N.D. seeks an alcohol prohibition while R.K. is in a caregiving role. R.K. raises concerns about N.D.'s alcohol consumption. Both parties deny the allegations.
[65] N.D. deposed that on two occasions in December 2019 she had to attend and stay overnight at R.K.'s because he was intoxicated, and she got a call from E.K. that she could not wake him up. R.K. does not specifically address this allegation but denies that there are any concerns with this consumption of alcohol.
[66] There is no evidence to suggest that during the relationship the applicant ever had to monitor or intervene as a result of the respondent's alcohol consumption or that she raised the issue with him at that time. R.K. points out that both parties would consume alcohol socially with friends.
[67] There is no independent evidence to support that alcohol was a concern for either party. There is no evidence of police or child protection involvement or that the parties raised these concerns during the relationship. I also note that in her original application and 35.1 affidavit filed she did not seek an alcohol prohibition or note alcohol or drugs as an issue.
[68] However, it is a concern to this court that both parties claim that alcohol is an issue for the other that impacts their ability to parent. In the circumstances and given the young age of E.K., at this interim stage of the proceeding it would be in her best interests that neither parent consume alcohol excessively while in a caregiving role.
Primary Caregiver Status
[69] For the purpose of this motion I accept that N.D. was the primary caregiver while R.K. worked. R.K. worked regular full-time hours throughout the relationship and acknowledged that N.D. provided care during this time and was responsible for arranging to take E.K. to appointments.
[70] However, I also accept that R.K. cared for E.K. at those times when N.D. worked outside his work hours, and that both parties likely provided primary care to E.K. when neither party was working. N.D. did acknowledge that R.K. and E.K. have a good relationship.
[71] Prior to separation this family had an arrangement where R.K. was the primary income earner, and the evidence establishes that he has always maintained regular and gainful employment. N.D. worked at times also, and both clearly share a great love for their daughter. During the relationship there is no independent evidence that E.K.'s needs were not met and, as previously noted, there is no evidence of CAS or police involvement.
[72] It was not until the time around their separation and since then that their ability to agree on child focused arrangements seems to have significantly deteriorated to the point where E.K. is at serious risk of becoming unjustly estranged from her mother as a result of R.K.'s actions if the court does not intervene.
Comparative Parenting Plans
[73] Both parties' plans before the court have merit, and I am satisfied that both parents would be able to meet E.K.'s basic needs. I accept that they both have a loving and bonded relationship with E.K. R.K. continues to reside in the family home and it would permit E.K. to continue to attend the same school next year for senior kindergarten. N.D. resides with her new partner in a three-bedroom home with a large backyard. His children are a similar age to E.K. and I accept that they have a good relationship. N.D. has been off work since March 2020 and does not plan on returning in order to be available for E.K. There is a nearby school where E.K. could be enrolled for senior kindergarten in September. Given E.K.'s young age and level of school the need for her to change schools if she resides with N.D. is not a significant factor that detracts from her plan.
[74] E.K. is too young to provide views and preferences, however, I accept that both parties share love, affection, and an emotional attachment with her.
[75] While N.D. is in a relatively new relationship with S.S. I have accepted that E.K. has developed a positive relationship with him and his children, and I have not found R.K.'s evidence persuasive that he poses a safety concern.
Status Quo Considerations
[76] R.K. submits that the status quo from the date of separation on September 20, 2019 of E.K. in his care has been established, and that it should continue as it supports her best interests and provides for a continuity in her care.
[77] While there is no presumption in favor of custody to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo – are important considerations at the interim custody stage. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.
[78] It is a long standing legal principle that absent compelling evidence that an 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.
[79] 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.
[80] However, self-help is to be discouraged. Status quo, in a fresh separation entails a look at the status quo when the family was together. Howard v. Howard (1999), 1 RFL (5th) 375 (SCJ). Children should not be needlessly disrupted by a parent unilaterally creating a new status quo through manipulation or deliberate acts. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ); Nyari v. Velasco, 2008 ONCJ 272. In Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.), it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage. The court in Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.), noted that the status quo is the status quo which existed without reference to the unilateral conduct of one parent unless the best interests of the child dictates otherwise.
[81] As previously noted the evidence R.K. has provided does not justify his unilateral termination of all but limited and supervised contact. His own text messages are highly suggestive his motives were not what he is now submitting. In the circumstances I view his actions in severely limiting contact and terminating the agreed-upon schedule in March 2020 as self-help and contrary to the best interests of E.K.
[82] 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 can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement, 2010 ONSC 1113 (SCJ); Rifai v. Green, 2014 ONSC 1377.
[83] It was through this unreasonable and high-handed behaviour that he created the current status quo. In the circumstances it is not appropriate that he be permitted to rely on it now. Further, as previously noted, I accept that the status quo during the relationship was that N.D. provided the primary care while R.K. worked and that they shared it at other times.
[84] However, I am mindful that regardless of the manner that the circumstances came about, apart from the period of the shared arrangement, E.K. has spent a majority of her time since separation with R.K. Other than R.K.'s approach towards N.D. in making reasonable residency and access arrangements, there is no evidence to support that he has not provided adequate care for his daughter. As previously indicated N.D. acknowledged that E.K. has a good relationship with R.K.
[85] On the issue of which residential arrangement will serve E.K.'s best interests, while both parents have plans that are capable of providing appropriate care to E.K., this court's primary concern relates to R.K.'s actions in unreasonably limiting and then terminating contact between E.K. and her mother. I view his actions as manipulative and self-help designed to support his claim for sole custody rather than based on genuine concerns or a thoughtful and child focused approach which recognizes the importance of both parents in E.K.'s life.
[86] He is clear in his affidavit that he feels E.K. is not a priority for N.D. and that her "primary purpose in life is to stay with different men". On the basis of these comments and by his actions he clearly does not value the role of N.D. in E.K.'s life and has taken steps to diminish her involvement.
[87] Without seeking a court order he forcefully excluded N.D. from the family home, kept E.K. in his care, significantly restricted N.D.'s contact with the child, and then essentially terminated contact unjustly in March 2020. At the same time, he delayed this matter by not filing an answer in a timely fashion. On the first return date of the application on January 27, 2020 the respondent was present and acknowledged on the record that he had been served. He did not file an answer in spite of two extensions granted to file by February 19, 2020 and then by March 26, 2020. He did not file his answer until April 28, 2020 when responding to N.D.'s urgent motion.
[88] In the circumstances of R.K.'s behaviour as I have found it, he has not done all that would be reasonably expected to ensure E.K. maintained regular and meaningful contact with her mother, and he has not acted in her best interests in this regard.
Access Facilitation
[89] Access is the right of the child. A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.
[90] Based on his conduct since separation, and particularly since March 13, 2020, I am not convinced going forward he would promote the relationship between E.K. and N.D. if he were the custodial parent with primary residence.
Joint Custody Considerations
[91] With respect to the interim custodial designation, this is not a case where I have confidence at this time that the parties will be able to communicate effectively going forward. Since separation there is little evidence of effective communication and problem-solving even with the assistance of two capable and experienced family law lawyers. When these motions were first before the court to be spoken to on May 4, 2020 I was concerned that counsel had made no prior effort to communicate with each other on behalf of their clients in an effort to resolve these issues, even on a temporary without prejudice basis.
[92] In all the circumstances of this case a joint custody or a shared parenting arrangement is not workable or in the best interest of the child at this time. A shared residential arrangement, particularly for a young child, requires a high degree of cooperation, communication, mutual respect, and a commitment to put the child's needs first. R.K. has not displayed enough of these qualities on the evidence before me to support a joint custody or a shared residential arrangement. For the benefit of E.K., hopefully this will change going forward.
Access to Father
[93] With respect to access I have accepted that R.K. has a close and loving bond with E.K. and that he is able to provide appropriate care for her. Her best interests support frequent and meaningful contact with her father which will include an equal sharing of holidays and summer break in addition to alternate weekends and regular weekly visits, and any other times as agreed between the parties.
Final Determination
[94] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the child support an interim order for sole custody to N.D. with regular and liberal access to R.K.
Mediation Encouragement
[95] On February 24, 2020 when both parties appeared in court I was advised that they were pursuing mediation. In spite of the suspension of regular court services, the mediation program at the Woodstock Courthouse remains available. An on-site mediator is available each Monday from 8:30am until 12:30pm. The Information and Referral Coordinator is available each Monday and Friday from 9:00am to 4:00pm and Thursdays from 9:00am until 12:30pm and can be reached at 1-888-796-0483 x 703.
[96] The parties should reconsider availing themselves of this service.
[97] The parties have no doubt gone to great effort to prepare their lengthy affidavits to support their claims. These resources could have been put to better use in these uncertain times. Both parties, with the assistance of counsel, should carefully consider this issue and the financial issues between them before this matter returns to court.
Order
[98] On the basis of all these considerations an interim order shall issue as follows:
1. Custody and primary residence of the child with the applicant.
2. The applicant shall consult with the respondent concerning major decisions affecting the child's health, welfare and education.
3. The respondent to have access to the child as follows unless otherwise agreed in writing by the parties:
a. While the child is attending school, alternate weekends from Friday after school to Sunday at 6 PM.
b. For as long as the child's school is suspended as a result of Covid-19, the alternate weekend access shall be extended from Thursday afternoon to Sunday at 6 PM.
c. One other midweek daytime visit per week as agreed between the parties.
d. During the months of July and August there shall be a week about parenting arrangement with exchange times and on a schedule as agreed between the parties.
e. Such other times as agreed including an equitable sharing of holidays.
4. Neither party shall consume alcohol excessively 12 hours prior to or during any periods of care and control of the child.
5. Neither party shall be permitted to communicate with the child or to expose the child to discussion about adult issues, or to negative or derogatory language about the other parent or their family.
6. Unless otherwise agreed in writing by the parties, they shall only attend at each other's residence for scheduled pickups and drop offs, and shall remain in their vehicles in front of the home.
7. The parties shall not communicate with each other during access exchanges or otherwise in the presence of the child.
8. The parties shall maintain strict Covid-19 safety precautions in each of their homes and shall immediately notify the other if the child, or either of them, or any third party having contact with the child exhibit any signs of infection.
9. Once regular court operations resume, counsel shall attend the Court Office and ensure that their client's materials are appropriately filed in the Continuing Record.
Operative Order
In the circumstances of the Covid-19 emergency, these Reasons for Judgment are deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry before normal Court operations resume, however, these Reasons are an effective and binding Order from the time of release.
Released: May 29, 2020
Signed: "Justice S. E. J. Paull"
