SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 07-FA-014889 FIS
DATE: 20120822
RE: MONIKA WYSZYNSKI, Applicant
AND:
GARFIELD EGBERT BRAHAN, Respondent
BEFORE: Justice Spies
COUNSEL:
Marlo K. Shaw , for the Applicant
Samantha Keser , for the Respondent
Catherine Bellinger, the Children’s Lawyer
HEARD: August 21, 2012
ENDORSEMENT
[ 1 ] The Applicant Mother served the Respondent Father with a Notice of Motion on August 7, 2012, returnable August 14, 2012 seeking an order terminating the ex parte restraining order with respect to her three younger children and the father and varying the temporary custody order made by Greer J. in favour of the Father on May 29, 2012. This order was made after the Mother was charged with assaulting her 14 year old daughter, Nikita on May 27, 2012. The Mother also asks for an order that she be granted temporary sole custody of her three younger children of her common law relationship with the Father, namely Vivienne, age 8, Logan Lee, age 13, and Nikita. The Mother has an older son, Jordan, who is 20 years old and lives with the Applicant.
[ 2 ] This family has been in conflict since the parties’ separation in June 2007. It appears that the Father has been self represented throughout many court attendances. This included his attendance before Justice Greer on May 29, 2012. On the date set by Greer J. to review her restraining order; June 12, 2012, the Father had the assistance of Duty Counsel. On August 14, 2012, when the Mother’s motion first returned to court, for the first time Mr. Brahan requested a short adjournment to retain counsel, through Duty Counsel who was assisting him. As set out in my endorsement of that day, I was of the view that Mr. Brahan had had ample opportunity to retain counsel, and had given no prior indication of his intention to do so. That said, I concluded that a short adjournment would not prejudice the parties and adjourned the matter to be argued on the merits on August 21, 2012 before me. Terms of the adjournment were ordered including a term that Mr. Brahan ensure that any lawyer that he retained be able and willing to argue the motion on August 21 st . This date was selected with the agreement of all parties since on that date Ms. Bellinger, the Children’s Lawyer, who has been involved with this family since 2008, would be away on holiday until August 29 th . Despite an order made by Greer J., CAST records involving the family had not yet been produced and I ordered that those be provided to Ms. Bellinger by August 17, 2012. The CAST apparently had not been aware of Greer J.’s order but complied with mine.
[ 3 ] When the matter returned before me on August 21, 2012, Mr. Brahan had counsel; Ms. Keser. She requested an adjournment as she had only been retained on August 20 th and had only then received the materials including the CAST file. This request was vigorously contested by Ms. Bellinger and counsel for the Mother, Ms. Shaw. I decided, given the urgency of the matter, that I would hear submissions on the motion for adjournment, reserve my decision on the adjournment request and hear the submissions on the merits of the motion as well. I was and remain particularly concerned about the urgency of making a decision given the children had not seen their Mother since May 27, 2012, which was a dramatic change to the status quo since separation and given the new school year is about to start and the parents live a considerable distance from each other. Furthermore, the evidence of Ms. Szende, a clinical investigator with the Office of the Children’s Lawyer, made it clear that Vivienne is a confused and sad little girl who cannot understand what has happened to change her life so drastically. But for these recent events, the status quo for these children had been residing with the Mother since the separation and only Logan had had regular access with the Father. The children have not seen the Mother since May 27 th .
[ 4 ] I have carefully considered the reasons advanced by Ms. Keser for an adjournment and all of the evidence presented to date. I have come to the conclusion that an adjournment of this motion in connection with Vivienne cannot be granted as it would, as Ms. Bellinger put it, be cruel not to let her life as she knew it with her Mother resume immediately and allow her Mother to get her ready to continue at Maryvale Public School where she has attended since Junior Kindergarten. This is in accordance with her wishes and the position of Ms. Bellinger. As I advised counsel at the conclusion or oral submissions, I will supplement this endorsement with further reasons in writing.
[ 5 ] As argument proceeded, Ms. Keser advised the court that the Father does not object to Nikita returning to live with her Mother or that an order for temporary sole custody of Nikita be made in favour of the Mother. This is consistent with Nikita’s wishes and the position of Ms. Bellinger. For the written reasons to follow, I am satisfied that the Mother provides a safe environment for the children, notwithstanding the events that led to her arrest for an alleged assault on Nikita, on May 27, 2012. The CAST has been involved with the family since July 2006 on a voluntary basis and there is no evidence that they have ever had any protection concerns with this family. The mother has no criminal record. There is therefore no reason not to make this order now.
[ 6 ] With respect to Logan, the Mother seeks an order that he return to live with her as he did from the time of separation until May 27, 2012. She seeks an order for temporary custody as well. The position of Ms. Bellinger is that Logan wishes to live with his Father even though that will mean changing schools for his Grade 8 year. Ms. Bellinger recommends however, that the Mother be granted temporary sole custody of Logan to ensure that he will continue to have access to his Mother and sisters. There is a concern that the Father will not facilitate access otherwise. Ms. Keser seeks an order that Logan continue living with his Father and that his Father also continue to have temporary sole custody of Logan. As she points out, if this is where Logan is going to live, his Father needs to make decisions for Logan. Given the high conflict between the parents there is no possibility of joint custody.
[ 7 ] A determination of this motion insofar as Logan is concerned is not as pressing as it is with respect to his younger sister Vivienne given his wishes. I have concerns about separating Logan from his sisters and his changing schools for Grade 8. He has been at Maryvale Public School throughout and Grade 8 is presumably his graduation year. He has done well at this school despite behavioural issues one year. I would like to see Logan’s report cards for Grades 5, 6 and 7 and hear further submissions from the parties on the relief claimed with respect to Logan particularly on these two issues. Accordingly, no order will be made with respect to Logan and the motion insofar as he is concerned will be adjourned to August 30, 2012.
[ 8 ] Finally, I am satisfied that the restraining order should be terminated so that all of the children can resume contact with the Mother. I am not satisfied on the evidence that it needs to continue with respect to the Father. I permit Officer Routh or his designate to vary the Undertaking the Mother gave to the criminal court so that my order can be implemented.
[ 9 ] Accordingly, for these reasons and for written reasons to follow, order to go as follows:
An order terminating the restraining order made by Greer J. on May 29, 2012 effective August 21, 2012. A copy of the order prepared by Ms. Shaw signed by me is attached. Ms. Shaw may attend at the court office to pick up the original executed order.
The Applicant shall have temporary sole custody of the children Vivienne Wyszynski-Brahan, born December 22, 2003 and Nikita Wyszynski-Brahan, born September 5, 1997. The children shall reside with the Mother with reasonable access to the Father to resume in accordance with existing access orders.
The Mother’s motion seeking temporary sole custody of Logan Lee shall be adjourned to August 30, 2012 to be heard before me. The parent who has Logan’s report cards shall file a supplementary affidavit containing only a copy of Logan’s report cards for Grades 5 through 7, which shall be served and filed as quickly as possible, and in any event no later than August 27, 2012. If it is possible, I request that Ms. Szende meet with Logan alone, and ask him whether or not he would prefer to continue at Maryvale for Grade 8. The Father has already offered to take the children on the bus, from his home to Maryvale, and I presume that he would be prepared to do so, if that is in Logan’s best interests, should I permit Logan to live with him. I will hear further submissions on this issue when the matter returns before me on August 30, 2012.
SPIES J.
DATE: August 22, 2012