ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D23002/11
DATE: 2012-06-29
B E T W E E N:
Kimberly Jameson Gostick
Daniel Toppari, for the Applicant
Applicant
- and -
Arthur Gilbert Gostick
Joseph E. Sloniowski, for the Respondent
Respondent
HEARD: June 27, 2012
The Honourable Justice J. R. Henderson
MOTION FOR TEMPORARY CUSTODY
Introduction
[ 1 ] This is my decision on a motion for temporary custody of the two children of this marriage. It is anticipated that the temporary order will remain in effect until the trial of this action, currently scheduled for the week of November 19, 2012.
Background
[ 2 ] The applicant, Kimberly Gostick (hereinafter called “the wife”), and the respondent, Arthur Gostick (hereinafter called “the husband”), commenced a common-law relationship in 1993/4 and were married on October 20, 2001. They have two children of their marriage, Wilson born […], 2002, and Jesse born […], 2004.
[ 3 ] Both children were born prematurely. Wilson was born with cerebral palsy, and has difficulty walking. He uses leg braces or a wheelchair for mobility. Jesse also has had some health issues. Both children seem to struggle in school.
[ 4 ] The parties separated in October 2009. The wife left the matrimonial home with the children and moved to her parents’ home. Shortly thereafter, the husband moved his girlfriend, Amanda Bell (hereinafter called “Amanda”), into the former matrimonial home. The husband and Amanda continue to live in the former matrimonial home.
[ 5 ] In November 2009 the wife moved with the children into a two-bedroom apartment, and she continues to reside there to date. In September 2010 the wife began a relationship with Scott Stenhouse (hereinafter called “Scott”), and thereafter Scott had significant contact with Wilson and Jesse, until the wife ended the relationship in January 2012.
[ 6 ] From the date of the parties’ separation in October 2009 until approximately March 2011, the children resided with the wife during the week, and regularly saw the husband on weekends and for one overnight visit during the week.
[ 7 ] The wife is on ODSP as a consequence of a long history of chronic kidney disease. The wife suffered acute medical problems related to her kidney disease and fluid around her heart starting in March 2011, resulting in a brief hospitalization. In part because of the wife’s health problems, the children began to spend more time with the husband, and with the wife’s parents, Ronald and Donna Kozub. Wilson began to reside full time with the husband in March 2011, and Jesse went to live with the husband about two weeks later. The wife was hospitalized again in July 2011 for approximately 11 days.
[ 8 ] When the present court action was commenced in May 2011, the wife and her parents were the co-applicants. They collectively requested a joint custody order for the three of them so that Mr. and Mrs. Kozub could assist the wife with the child care due to the wife’s health issues. The husband in his Answer requested sole custody to the husband.
[ 9 ] On June 29, 2011 the parties consented to an order that involved a significant sharing of the children throughout the summer of 2011. The current temporary custody order is dated September 23, 2011, and was also made on consent. That order provides that the children will be in the care of the husband from Monday to Friday each week, and on the second weekend of each month. It also provides that the children will be in the care of the wife on all of the other weekends in the month, and on every Wednesday evening.
[ 10 ] The matter was referred to the Office of the Children’s Lawyer (“OCL”) by the court order of June 20, 2011. The OCL investigator, Wendy Bulthuis (“Bulthuis”), commenced her investigation in September 2011, and signed the OCL report on January 30, 2012. The report itself is very detailed and comprehensive. In summary Bulthuis recommends that the husband and wife should share custody of the two children in a parallel parenting arrangement, similar to the arrangement set out in the September 23, 2011 order. On the motion before this court today counsel for the wife endorsed the recommendations of the OCL investigator.
[ 11 ] In response, the husband relies on the affidavit of Jacqueline Boyer (“Boyer”), a child protection worker employed by the Children’s Aid Society of the Niagara Region (“CAS”), sworn on May 15, 2012. Boyer provided details of the involvement of the CAS with this family, and expressed concerns regarding the wife’s aggressive actions towards the children and the safety of the children. Boyer recommended that the husband have sole custody of the children and that access with the wife be supervised. On today’s motion counsel for the husband endorsed the recommendations of Boyer.
Analysis
[ 12 ] A review of the OCL report and Boyer’s affidavit discloses that the husband and the wife do not co-operate and are aggressively antagonistic toward one another. Both the husband and the wife show limited insight into their roles as parents of children in a separated family. Both have involved the children in these legal issues. And, both have made negative comments about one another, often in the presence of the children.
[ 13 ] I accept Bulthuis’s concerns regarding the inappropriate conduct of both the husband and the wife toward the children, as expressed at page 26 of her report, where she wrote: “There have been concerns noted about the demonstrated capability of both parents and there is little support to recommend sole custody to one parent or the other.”
[ 14 ] Each of the husband and the wife accuse the other of causing physical and/or emotional harm to the children. In particular, the wife alleges that the husband caused a gash in Wilson’s arm in January 2011. The husband accuses the wife of pushing Wilson into a bathtub in April 2012. Unfortunately, there are no reliable witnesses to either of these events.
[ 15 ] Also, many of the allegations made against both parents were as a result of statements made by nine-year-old Wilson. It is clear that Wilson suffers from some emotional issues. He has made threats about hurting himself and hurting both of his parents. I accept Bulthuis’s observation at page 24 that, “Wilson presented as a child who was deeply impacted by the conflict between his parents.”
[ 16 ] It is not clear if Wilson’s emotional problem is a genetic mental health issue, or is one caused by the behaviour of the husband and the wife toward one another. However, there is no doubt that Wilson picks up on the adversarial approach between his parents, and thus he likely feels free, or encouraged, to make negative comments about both of his parents. For these reasons, I cannot rely on uncorroborated statements made by Wilson as to his parents’ conduct.
[ 17 ] Regarding collateral adults, it is clear that Scott has been a negative factor in the children’s relationship with their parents. He has behaved inappropriately, causing the children to dislike him and feel threatened by him. It is concerning to note that the wife relies upon a videotape that was made by her and Scott of the two children expressing negative comments about the husband. I specifically do not rely upon anything that the children said in that videotape.
[ 18 ] On the other hand, I find that Amanda has been a positive influence on the children. I accept that she has assisted the children with their homework, and has been responsible for some improvement in their schoolwork.
[ 19 ] I also accept that the wife’s parents, Mr. and Mrs. Kozub, have been a positive factor in the parenting of the children. They became involved to facilitate access to both parents in 2011 when the wife became ill. They have now withdrawn as applicants in this action, but they both appeared at this motion, and both indicated that they would continue to be supportive.
[ 20 ] In making this decision today this court has the assistance of the OCL report. The benefit of a detailed objective OCL investigation cannot be overstated in any custody or access dispute. Moreover, the CAS has been involved with this family since January 2011, and it is significant that the OCL investigator, Bulthuis, interviewed Boyer, the CAS worker, on three occasions prior to the finalization of the OCL report.
[ 21 ] In my view, the OCL report is quite detailed and objective. Conversely, the affidavit of Boyer seems to be slanted against the wife. Considering that Boyer’s affidavit was sworn in May 2012 after the OCL report had been completed in January 2012, I have examined Boyer’s affidavit carefully to determine what events have occurred between January 2012 and May 2012. It would appear that there were only two incidents of any significance that occurred during this period. The first involved Wilson telling his father that his mother was upset about a hockey sweater that he was wearing. The second incident involved Wilson telling his father that his mother had pushed him from the toilet into a bathtub at the Kozub home.
[ 22 ] Unfortunately, both of these significant incidents are based entirely on Wilson’s statement. As I indicated earlier, I must be very cautious about making a decision based solely on the statement of a nine-year-old who suffers from an emotional difficulty. Boyer seems to put great weight on what Wilson had to say, but this court does not.
[ 23 ] Consequently, I find that there is very little compelling evidence that the circumstances have changed since the completion of the OCL report in January 2012. Therefore, I prefer the recommendations made by Bulthuis to those made by Boyer.
[ 24 ] As to the suggestion that the wife’s time with the children should be supervised, I note that for about 18 months post-separation the children resided primarily with the wife, and thereafter the wife had a significant amount of parenting time with the children, all of which was not supervised. In my view, considering that the trial is only five months away, it is not appropriate to start supervised access at this point. Moreover, on a positive note, the wife has commenced attending at counselling, which I suspect will benefit all parties.
Conclusion
[ 25 ] For the above-mentioned reasons I will rely upon the gist of the recommendations made in the OCL report. Therefore, there will be an order for shared parenting on the following terms:
The husband and the wife shall share custody of Wilson and Jesse under a parallel parenting arrangement.
The wife will be primarily responsible for the children’s non-emergency medical and dental care. The husband will have access to information from all health care providers and will contribute to major medical issues.
The husband will be the primary contact with the school and will attend to educational issues. The wife will have access to information from the school and will contribute to major educational issues.
When significant decisions need to be made regarding the children’s education, health or religion, the parties will utilize the services of an independent third party such as a mediator or counsellor.
The parties will utilize a web-based format for communication about Wilson and Jesse’s special activities, appointments, or other issues that arise.
The residence for Wilson and Jesse will be as follows:
(a) The husband will provide residence for Wilson and Jesse from Monday after school until Friday morning before school.
(b) The husband will also provide residence for Wilson and Jesse on the second weekend of every month.
(c) The wife will provide residence for Wilson and Jesse every weekend except the second weekend of the month from Friday after school until Monday morning when school starts.
(d) The wife will also provide residence for Wilson and Jesse each Wednesday of the week after school until Thursday morning when school starts.
(e) If there is a school PA day or if one of the children is sick on the day following either parent’s access time with the children, this day will be the responsibility of that parent until the regular school dismissal time would have occurred
With respect to summer parenting, the school summer holiday will be divided into two week segments, with each parent having the children for alternating two week periods.
I also order that the husband and the wife attend the Divorce and Separation Group at Pathstone Mental Health Services, and that Wilson and Jesse attend the children’s component of this group.
[ 26 ] I will not make any further order as to Christmas access, exchanges, or access on any special dates, and I will not incorporate any of the other recommendations made in the OCL report as part of this order.
Henderson J.
Released: June 29, 2012
COURT FILE NO.: D23002/11
DATE: 2012-06-29
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Kimberly Jameson Gostick Applicant - and – Arthur Gilbert Gostick Respondent MOTION FOR TEMPORARY CUSTODY Henderson J.
Released: June 29, 2012