DATE: January 31, 2021 Sudbury Court File No.: D 180-20
ONTARIO COURT OF JUSTICE
IN THE MATTER OF the Children’s Law Reform Act, R.S.O. 1990, c. C.12
BETWEEN:
Christina Paul, Applicant George Florentis, for the Applicant
— AND —
Gregory Raymond Paul, Respondent Lucia Mendonca, for the Respondent
HEARD: January 29, 2021
Kukurin J.
[1] These are my Reasons for my decision on two motions. The first was by the Respondent father. The second, a cross motion, was brought by the Applicant mother.
[2] The major issue in these motions was interim custody of the parties’ two children – L, age 9 and G, age 6.
[3] There was also a claim by the father for an Office of the Children’s Lawyer (OCL) order for the children. The mother initially opposed this, but seemed to concede that this was an appropriate order to be made. I make such order and request that the parties file their intake forms with the OCL.
[4] The issue of interim access was raised and argued as a contingent claim dependant on the outcome of the interim custody claims.
Background
[5] The parties started cohabiting in 2008. They married in July 2015. Their daughter L was born in 2011. Their son G was born in 2014. They separated in October or November 2016. The father asked the mother to leave their home in Sudbury. She did and took the two children with her. She apparently lived with an aunt for a few months, then found her own accommodations. The father also left their home and found accommodations in Azilda, a community close to Sudbury. He remained in Azilda, or at least in the Sudbury area, until March 2018 when he relocated to Timmins, a three hour drive from Sudbury. In Timmins, he soon entered in a cohabitation relationship with another woman (Amy) who had at least one child from a former relationship. She and the father had a child together who is now age 2 years.
[6] Following the separation, there is considerable dispute as to factual events. What is certain is that the father had contact with the children in the context of access visits. He also provided some child support to the mother. The parties did not enter into any written separation agreement, nor was here any court order obtained by either of them. The children resided with the mother and went to school in Sudbury. The father continued to exercise access after his move to Timmins although it was less frequent than when he was in Sudbury. The parties remained in contact mainly through text messages and other digital communications, more than too many copies of which found their way into the continuing record. The mother is a stay at home mother and apparently a recipient of social assistance.
Incident of August 16, 2020
[7] I piece together, in bullet form, the events of August 16, 2020 from the narratives provided in affidavits filed by the parties.
- The children were having a sleepover at the home of their maternal grandparents’ home in Coniston (near Sudbury)
- The grandmother noticed some bruising on the child L and questioned her on how they came about.
- The grandmother called the father and related that the child had bruises which the child said had been caused when her mother had thrown things at her.
- Both the Children’s Aid Society (Sudbury CAS) and the (Sudbury) police were called to come to the grandparents’ home
- The Sudbury CAS sent a worker (Carly- surname unknown) who interviewed the child L, and took photos of bruises
- The father drove from Timmins to the grandparents’ home and arrived when Carly was still there
- The Sudbury police never showed up
- The mother says she also spoke to Carly and to her parents (the maternal grandparents) and all agreed that the children could stay with the grandparents until investigations were complete. It is vague when this took place.
- The father left with both children and drove back to Timmins, apparently with Carly’s approval for him to do so.
- The Sudbury CAS contacted NEOFACS (the Timmins CAS) to send a worker to interview the children
- The Timmins CAS worker (Ms Laforest) went with the Timmins police to the father’s home and interviewed both children
- Photos were again taken of L’s bruises by Timmins police
- Statements of the children made to the Timmins CAS worker were recorded and later included as exhibits in the father’s affidavit
- The father sometime later started a proceeding seeking custody in the Timmins court
- The Timmins court declined to hear the matter because the proper place for hearing was Sudbury where the children were ordinarily resident. The Timmins file was transferred to Sudbury court, but an order was made that the children remain in Timmins until the Sudbury court had made some order, so as not to disrupt the children.
- The mother, in the meantime, started this proceeding in Sudbury court seeking joint custody and primary residence with herself
- There is conflicting information about the mother’s contact with the children and what the parents did or did not do.
- The children were in Sudbury and apparently stayed with the maternal grandparents for a week or so over the Christmas season during which time, the mother spent some time with them.
- The Timmins CAS reported to the Sudbury CAS which closed the investigation file it had opened and wrote a letter to the mother advising that its file was closed. It took no further action.
- The father spoke to Sudbury CAS worker Carly who reported that no society or police action was being taken and that the father could return the children. The father felt the children needed protection and did not return them.
- The Timmins police sent an e-mail to the mother indicating that its investigation was completed and no charges would be laid.
- The mother had registered the children to go to school in Sudbury before the August incident. They did not do so as they were taken to Timmins.
- The father registered the children in a Timmins school for the September term and had letters stating that they were doing well
- The father reported that the daughter L had stated that she did not want to return to the mother’s care.
The Law on Interim Custody
[8] The purpose of an interim custody order was most succinctly put by the Ontario Court of Appeal as far back as1986, and it is just as valid today as it was then:
“ … interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible of error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.” [Zuber J.A in Sypher v. Sypher, [1986] O.J. No. 536 (Ont CA)]
[9] During this period between the interim custody hearing and the trial, courts have, for the most part, made decisions that maintained the status quo.
“There are two principles of law at play in this case. The first is that, generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children's best interests.”
[Mackinnon J. in Grant v. Turgeon, [2000] O.J. No. 970 (Ont SCJ)]
“It is a generally accepted principle of family law that the status quo ought not to be changed on an interim basis pending trial, in the absence of evidence that the existing arrangement is contrary to and indeed, harmful to the children's best interests.” ….. More simply put, the custodial status quo should not be changed in the absence of compelling reasons indicating the necessity of such change to meet the children's best interests.
[Clarke J in R.F. v. K.H., 2014 ONCJ 4545 [2014] O.J. No. 4545 (Ont CJ)]
[10] The “status quo” in many cases has been whatever was the existing arrangement that the parents had before separation. However, in this, as in many cases where separation took place some time ago, the status quo is what existed by either agreement of or by the acquiescence of the parent with whom the child did not live. Section 20(4) of the Children’s Law Reform Act (the CLRA) provides:
S.20 (4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4); 2016, c. 23, s. 2 (3).
[11] Accordingly, where the parents separated in October or November 2016, and the children have lived with the mother since that time, the status quo is that the children resided in the custody of their mother, and under the law, the right of the father to exercise the entitlement to custody or the incidents of custody were suspended until a separation agreement or a court order provides otherwise. By removing the children and taking them to Timmins, he engaged in a ‘self help’ remedy that wrongly deprived the mother of her custodial rights.
[12] I can sympathize with the father’s reasoning at the time. He observed bruising on his daughter. He became aware of what she was saying had happened. He was also aware that the mother had stated to him, more than once, that she was having trouble managing the children. He also made other allegations about the mother, unfortunately, mostly hearsay, that were very disquieting. He was quite right to seek assistance from the society and from the police. However, once society and police investigations concluded, and he was told by the Sudbury society worker (Carly) that he could return the children to their mother and did not do so, he was clearly acting wrongly.
[13] The children should be returned to their mother. I have orally advised that this return should be effected within the next ten days on arrangements made between counsel, failing which the return shall take place at the Watershed Restaurant and Truck Stop in Gogama, about half way between the parents’ residences, on such date and time as is decided by their counsel.
[14] This does not resolve the claims in these motions, a more problematic matter. One problem with interim custody motions is that they create a status. Moreover, they are almost universally decided on affidavit evidence, almost always contradictory (as is the case here). This conundrum has been noted by other jurists facing interim motions.
“Temporary orders can have a huge impact on final orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party.
And yet, as often happens, these weighty temporary decisions have to be made based on hastily prepared, incomplete, contradictory, and untested affidavit materials.” [Pazaratz J. in Cosentino v. Cosentino, 2016 ONSC 4622 [2016] O.J. No. 4622 Ont SCJ)]
[15] The word “custody” has not provided universal judicial or legislative comfort as a legal right. Other jurisdictions have done away with words like custody and access as they are often seen by litigants as winner and loser. Ontario has recently passed similar legislation that will dispel such suggestions, and provide a better reflection of the roles of separated parents with respect to their children.
[16] The problem with an interim custody order is that it will set up a new status quo, one that is founded on the order itself. All custody orders are required to be made in the best interests of the child. This court has only preliminary information, mostly in affidavit form, none of it tested by cross examination, and much of it contradictory. The evidence at trial may be quite different than it is at present, and it may be much more fulsome. The involvement of OCL counsel may be of great assistance to not only the parties, but also the court, in the ultimate resolution of this case. The court has to question whether an interim custody order is necessary. This same quandary is expressed by others.
“Custody orders on a temporary basis should be the exception and not the rule. Granting an order for one parent to have the custodial designation on a temporary basis creates a status quo that is difficult to overcome. A temporary custody order also has the potential to create a power imbalance between the parties, as it allows the parent granted custody to make all custodial decisions without the consent of the other parent.
In my view, a temporary custody order should only be made on consent, or where there is evidence that is accepted by the court that such an order is necessary in the best interests of the children. On the evidence before me on this motion, I am not satisfied that an order granting Ms. XXXXX temporary custody is either necessary or appropriate.” [Hilliard J. in Miller v. Jonathan, 2020 ONCJ 3451 [2020] O.J. No. 3451 (Ont CJ)]
[17] I am of the same mind. I am more inclined to make an order that the primary residence of the children shall be with their mother. This preserves the status quo. It does not create a new and court ordered custodial regime. The custody and access rights of the parties as set out in s.20(4) CLRA continue until a final order is made. The children are in the same situation as before August 16, 2020 and as far as this court is concerned, both the police and the children’s aid society have investigated and not taken any further steps, from which it is a reasonable inference that neither child is considered by them to be in need of protection at this time.
[18] I heard little by way of submission on “access”. This is not surprising as most litigants almost always assume they will be successful in their primary claim and forget that they might not be. The father should have time with the children and should also be able to have communication with them by electronic means. I leave this issue to be worked out by the parties and their counsel. However, if they are unable to do so, I wish to set some minimum parameters of this father and child contact. He may have telephone or internet contact by whatever App or program is most convenient, three times per week for at least ½ hour each time. In addition, the children can spend two weekends per month with him in Timmins starting Feb 13, 2021, including an extra day if a non-school day happens on such weekend, one half of any spring school break, all with exchanges at the Watershed Restaurant in Gogama. With respect to any other access, especially during summer vacation days, the parties can work these out having regard to their respective commitments and the wishes of the children.
[19] I heard no submissions on the issue of interim child support and there is insufficient evidence, in any event, to deal with that issue.
[20] I do not know what the parties wish to do with the Timmins proceeding My suggestion is that it be dismissed now that the order in this proceeding has effectively superseded that made in the Timmins proceeding.
[21] The parties are encouraged to attend a case conference to sort out the issues between them. One thing that stands out as an incongruity is that the mother has a claim for a final order of joint custody in her application, yet in this motion, she seeks interim sole custody. This is yet another reason why she should not be awarded interim sole custody. The date of March 30, 2021 at 10:30 am is set by the trial co-ordinator for a case conference. Hopefully, OCL counsel will have been appointed and have interviewed the children by that date.
Released: January 31, 2021 Justice John Kukurin