Court File and Parties

Ontario Court of Justice

Date: August 17, 2020

Court File No.: Brantford F 84/20

Between:

Vince Courtnage Applicant

— AND —

Kristy McGinley Respondent

Before: Justice A.D. Hilliard

Heard on: August 12, 2020

Reasons for Judgment released on: August 17, 2020

Counsel:

• C. Bruni — counsel for the applicant(s)
• M. McCarthy — counsel for the respondent(s)

Judgment

Hilliard J.:

Overview

[1] This is a motion by the Applicant father, Vince Courtnage, for shared parenting time with the two subject children, Melody (9) and Emily (7). The proposal of Mr. Courtnage for a shared parenting schedule is opposed by the Respondent mother, Kristy McGinley. She instead is proposing that Mr. Courtnage have parenting time with the girls on alternate weekends and mid-week day visits as arranged between the parties.

[2] Mr. Courtnage, in his motion, also requests an order be made that Melody and Emily continue to attend the same school in which they were registered last school year, specifically Princess Elizabeth School. Ms. McGinley opposes this request as she is currently residing at Nova Vita and is on a waiting list for housing, which may or may not be in the catchment area for Princess Elizabeth School.

[3] On the day the motion regarding father's parenting time was to be argued, Ms. McGinley brought a motion on short notice requesting an order that Mr. Courtnage not be allowed to bathe the children during his parenting time. Although I did not allow Ms. McGinley's motion to be argued on the date it was brought, counsel agreed that the motion could be determined by me in chambers based on written material submitted.

Parenting Schedule

[4] Ms. McGinley's evidence on the motion regarding the parenting schedule consisted of five (5) affidavits sworn by her two (2) adult children, her father, and herself. The main thrust of the affidavit evidence filed on behalf of Ms. McGinley was that Mr. Courtnage was an absent and neglectful father to Melody and Emily and an indifferent and at times abusive step-father to Ms. McGinley's two older children.

[5] The content of the affidavit of Kayla McGinley, Ms. McGinley's 18-year-old daughter is deeply disturbing. She describes in detail, years of physical and emotional abuse that she alleges she suffered at the hands of Mr. Courtnage, including serious physical assaults that she deposes left significant and noticeable bruising on her body. Kayla further deposes that the abuse she suffered resulted in child protection authorities being called to investigate on two separate occasions.

[6] What is of great concern to me in assessing the veracity of Kayla's affidavit evidence, all of which is disputed by Mr. Courtnage, is the lack of any confirmatory evidence from Ms. McGinley. Kayla's evidence is that the physical abuse was inflicted upon her by Mr. Courtnage during a period of time when Ms. McGinley was residing in the home. Kayla further deposes that she told her mother about the assaults perpetrated by Mr. Courtnage. However, Ms. McGinley's affidavit does not mention any involvement with child protection authorities in the past, nor does she mention or even refer to the evidence of Kayla with respect to Mr. Courtnage's abuse. Although Ms. McGinley describes behaviour on the part of Mr. Courtnage that can be characterized as assaultive, both physically and sexually, during the course of their relationship, it is only in reference to herself that she describes such incidents, not Kayla.

[7] The involvement of child protection authorities with a family is a relevant consideration for the court in determining what parenting schedule should be imposed. If Mr. Courtnage abused Kayla in the manner described, I would have expected that Ms. McGinley would be raising serious concerns about the potential risk of harm to Melody and Emily while in the care of their father. However, no such concern has been presented to the court. On the contrary, during argument on the motion counsel for Ms. McGinley stated that the issue is the children being away from her for the lengthy periods of time proposed by Mr. Courtnage. Ms. McGinley is content for Melody and Emily to visit with Mr. Courtnage, unsupervised, on alternate weekends and during the week, with no concerns being raised about Mr. Courtnage being physically or emotionally abusive.

[8] Ms. McGinley's position on the parenting schedule is inconsistent with the affidavit evidence of both of her adult children, which is essentially that Mr. Courtnage was an indifferent and neglectful step-father who physically and emotionally abused Kayla over a period of years. I am therefore left to conclude that Ms. McGinley herself does not believe the allegations made by her daughter, Kayla, and therefore does not believe that Melody and Emily are at risk of harm while in the care of Mr. Courtnage.

[9] I find that I can place no weight on the evidence of Kayla and Ms. McGinley's son, Brandon, about the abuse perpetrated by Mr. Courtnage as that evidence is not corroborated by Ms. McGinley herself and is adamantly denied by Mr. Courtnage. I am therefore not satisfied that there is evidence of past abusive conduct that I can consider pursuant to section 24(4) of the Children's Law Reform Act.

[10] Ms. McGinley does raise in her affidavit concerns about Mr. Courtnage's use of prescription opiates and the extent to which his consumption of that controlled substance affects his ability to parent. This concern is echoed in the affidavits filed by Ms. McGinley's adult children, and by her father. Mr. Courtnage acknowledges that he has a prescription for Percocets due to severe back pain attributed to a medical condition described in great detail in his affidavit. He denies using them other than as prescribed.

[11] I have concerns about the veracity of the evidence regarding Mr. Courtnage's alleged substance misuse for reasons similar to those raised about Kayla's evidence. There are allegations of Mr. Courtnage buying and selling Percocets illegally, and being neglectful of the needs of the children as a result of his consumption of Percocets, which he adamantly denies. Yet despite these very serious concerns, Ms. McGinley has no issue with Mr. Courtnage having the girls unsupervised for an entire weekend. In her most recent affidavit, Ms. McGinley even makes the suggestion that Mr. Courtnage's offer for her to have the girls for of an hour on his weekend was to allow him to go and purchase drugs illegally. Her question in that regard does not, in my view, accord with the text message appended to her own affidavit. Mr. Courtnage's offer of some time for Ms. McGinley with the girls in the text message is directly linked to additional time that was afforded by Ms. McGinley for him to spend with the girls at some earlier point in time.

[12] I find that I cannot put any significant weight on the concerns raised that Mr. Courtnage is misusing his prescription medication, nor the allegation that he is illegally purchasing Percocets. There is simply no evidence that in the recent past Mr. Courtnage has neglected his responsibilities during his parenting time with Melody and Emily. There is similarly no evidence that Mr. Courtnage has been observed to be intoxicated by substances while in a caregiving role or in any way acting inappropriately in such a manner that a reasonable inference could be drawn that he was misusing prescription substances.

[13] The evidence I do accept is that Mr. Courtnage is an interested and caring father, who wishes to play a greater role in the lives of Melody and Emily than he is currently. I find that spending alternate weekends and some mid-week parenting time during the day with Melody and Emily is insufficient and would result in Mr. Courtnage's role in the girls' lives being minimized. There is no evidence before me that I accept which leads me to conclude that the maximum contact principle should not be applied in this case.

[14] I find a shared parenting regime should be instituted, however, not exactly as requested by Mr. Courtnage as I am concerned about the amount of exchanges that will be involved in the schedule he proposes. Given the ongoing level of conflict between these parents, exchanges should be minimized as far as possible.

[15] In determining the appropriate schedule to be implemented, I have also considered Ms. McGinley's evidence that when she returns to work she will be working Monday, Tuesday, and Wednesday each week from 3:30 p.m. to 11:30 p.m.

School Registration

[16] I must always be guided in my decisions by what is in the best interests of the children. Melody and Emily's lives have been disrupted by their parents' separation, going for extended periods of time without seeing either their mother or father on a regular and predictable schedule, and the closure of schools due to the COVID-19 pandemic. These are significant disruptions for these young girls who need stability and routine.

[17] Ms. McGinley now asks the court to allow for more unpredictability in the lives of her young daughters while she waits to obtain housing. Her position is that Mr. Courtnage, by locking her out of the family residence, was attempting to gain the upper hand and should not therefore be rewarded with an order that Melody and Emily attend school in his catchment area.

[18] The issue has nothing to do with punishment or reward. The inquiry is child-focussed. I must determine what order, if any, should be made with respect to where Melody and Emily should attend school in September, taking into consideration what is in their best interests.

[19] Ms. McGinley has presented no evidence as to when she will obtain housing, only that she is on a priority waiting list.[1] I have no way of determining how high on that priority waiting list Ms. McGinley is or how many other people are ahead of her on that list. I cannot make my decision on this matter based on speculation or assumption that Ms. McGinley will in fact obtain housing prior to the commencement of the school year, now just some three weeks away.

[20] Melody and Emily were enrolled at Princess Elizabeth School last academic year. It is therefore a school known to them where at least some children they know will be attending come the new school year. Allowing Melody and Emily to return to the school they were previously attending will allow for some continuity and stability in their lives.

[21] If I were to make no order as to where Melody and Emily attend school, I have no confidence that Mr. Courtnage and Ms. McGinley could come to an agreement on the issue. Based on the evidence before me, I find that there is significant and ongoing conflict between the parties and an inability to place the needs of their children before their own.

[22] The issue of where Melody and Emily are to attend school in the fall should not have needed determination by the court. Ms. McGinley has no address at present and therefore no ability to register the girls in any school other than Princess Elizabeth. The only reason I can infer that Ms. McGinley does not agree to allowing Melody and Emily to attend Princess Elizabeth is that it may cause her inconvenience if her housing, once obtained, is far away from that school causing her difficulty in getting the girls to and from school.

[23] When parents separate, children have two homes instead of one. Being registered for school in the catchment area of one parent rather than the other creates no advantage in family litigation. I must consider the possibility that making no order could result in a situation where the first day of school arrives and Ms. McGinley still has no housing and yet continues to refuse to allow Melody and Emily to attend Princess Elizabeth School. That scenario would create further disruption and chaos in these girls' lives and it most certainly is not in their best interests.

[24] I find that for continuity, predictability, and stability, Melody and Emily should attend Princess Elizabeth School this coming academic year.

Bathing the Children

[25] Ms. McGinley was provided until August 13, 2020 to file a reply affidavit on her motion requesting that Mr. Courtnage be ordered not to give the children baths. A reply affidavit was electronically filed late in the afternoon on August 13, 2020.[2]

[26] The affidavit of Ms. McGinley filed in support of her motion is full of inuendo and speculation. Her evidence is that Melody had blood in her underwear the morning of August 6, 2020, prior to attending access with her father. The access visit prior to August 6, 2020 was August 3, 2020. Ms. McGinley complains that Mr. Courtnage is needlessly giving the girls baths when they are in his care and suggests that the bleeding Melody had the morning of August 6 was somehow caused by something Mr. Courtnage had done 3 days prior. In direct contradiction to this speculative comment, is the evidence that Melody was diagnosed by a doctor as having contact dermatitis, possibly caused by fragrance or soap.

[27] The reply affidavit filed contains similar inuendo in the form of questions in the body of the affidavit about Mr. Courtnage's motives and timing for giving the girls a bath. Ms. McGinley specifically questions the timing of Mr. Courtnage bathing the girls on his weekend, the Sunday evening prior to their return. I note that there is no evidence in the reply affidavit filed that there was any further discharge, bloody or otherwise, noted in Melody's underwear after any of the visits with her father, where according to Ms. McGinley he is "needlessly" bathing them.

[28] For an order to be made with so specific a direction about parenting as not to give the children baths, there need be some basis in fact for such intervention. Speculation is not fact. There is no evidence before me that Mr. Courtnage did anything to harm either Melody or Emily, or in any way bathed them inappropriately.

[29] The issue with Melody that ultimately resulted in a diagnosis of "contact dermatitis possibly secondary to fragrance in soap" starting the morning prior to Melody attending for access with her father and after having spent three days in the care of her mother. I cannot conclude that there is any evidence to support that Melody's contact dermatitis was as a result of fragrant soap used by Mr. Courtnage. Therefore, there is no evidentiary basis upon which I can make an order prohibiting Mr. Courtnage from giving the children baths.

Conclusion

[30] A temporary order shall issue as follows:

(1) The Applicant father shall have parenting time with the children each week from Sunday at 1:00 p.m. until Thursday at 9:00 a.m. or the commencement of the school day. The Respondent mother shall have parenting time with the children each week from Thursday at 9:00 a.m. or after the school day concludes until Sunday at 1:00 p.m.

(2) The children shall attend Princess Elizabeth Public School in September 2020 and for the remainder of the academic year unless the parties agree otherwise in writing.

(3) The Respondent mother's motion regarding bathing the children is dismissed.

(4) The affidavit of the Respondent mother, sworn August 12, 2020, late filed, may now be filed in the continuing record.

(5) Counsel may electronically file written submission on the issue of costs within 30 days.

Released: August 17, 2020

Signed: Justice A.D. Hilliard

Footnotes

[1] There was an "update" on the housing issue provided through a reply affidavit filed on Ms. McGinley's motion on the bathing issue. I did read that Ms. McGinley has now been approved for housing, but this evidence is not proper reply and indicated only an address for the residence without reference to where in Brantford the residence is, particularly in relation to Princess Elizabeth School. As that evidence was improperly put into a reply affidavit filed in relation to a separate motion, I have disregarded it.

[2] Paragraphs 20 through 23 inclusive of Ms. McGinley's affidavit, sworn August 13, 2020, is not proper reply and I have therefore disregarded it as not properly before the Court.