ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-FA-014889 FIS
DATE: 20120827
BETWEEN:
MONIKA WYSZYNSKI Applicant – and – GARFIELD EBGERT BRAHAN Respondent
Marlo K. Shaw , for the Applicant
Samantha Keser , for the Respondent
Catherine Bellinger , for the Children’s Lawyer
HEARD: August 21, 2012
SPIES J.
[ 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 and varying the temporary order made by Greer J. on May 29, 2012. This order was made after the Mother was charged with assaulting her 14 year old daughter, Nikita. The Mother also asked for an order that she be granted temporary sole custody of three of the children of her common law relationship with the Father, namely Vivienne, age 8, Logan, age 13, and Nikita.
[ 2 ] These are my Supplementary Reasons for Decision with respect to the Mother’s motion, further to my Endorsement and Order released August 22, 2012, a copy of which is attached as Schedule “A”.
The Respondent Father’s Request for an Adjournment
[ 3 ] As set out in my Endorsement, I reserved on the request of the Father for a further adjournment of the Mother’s motion and heard from counsel on the merits of the motion. I ultimately decided to adjourn the motion insofar as the son, Logan, is concerned. I granted the relief sought by the Mother with respect to Nikita, as that was not disputed by the Father and was supported by the Children’s Lawyer. I refused the Father’s request for an adjournment with respect to the youngest child, Vivienne, because in my view a decision with respect to where she would live in advance of the start of the school year was urgent.
[ 4 ] In support of her request for an adjournment, Ms. Keser submitted that she did not have the entire file from the Children’s Aid Society (“CAS”), but that appeared not to be the case as argument on the motion proceeded. Although I appreciate that Ms. Keser had very little opportunity to prepare for the motion, she clearly was familiar with the materials. She suggested in her oral submissions that the documents received from CAS reflected notes of interviews with Vivienne that made it clear she wanted to stay living with her Father. It was apparent that one of the notes referred to by Ms. Keser was in fact information received from the Father. At this point Ms. Keser had not had an opportunity to file any of the documents from CAS and so I presumed, for the sake of considering her request for an adjournment, that she could establish that there was some reliable evidence of Vivienne expressing a wish to remain with her Father. That, however, even if established by the Father, would not have impacted on the decision that I made with respect to Vivienne, and given the urgency of her situation, was not in my view a reason for adjourning the motion in so far as she was concerned.
[ 5 ] Vivienne is very young and Ms. Szende, the Clinical Investigator with the Office of the Children’s Lawyer (“OCL”), in her affidavit sworn August 13, 2012, ascertained, as best she could, Vivienne’s wishes when she met with her on June 15, 2012 and August 2, 2012. She vacillated as to what she wanted when she spoke to Ms. Szende who described her as a “sad little girl who could not understand what had happened to change her life so drastically.” This is not surprising as she is very young and had not seen her Father for about five years, prior to the events of May 27, 2012. She was very clear that she wanted to stay at Maryvale Public School which she has attended since kindergarten. Given her confusion and her age, I did not view it necessary to consider what she may have said about where she wants to live at different times, even if that information is disclosed in CAS records.
[ 6 ] The other suggestion from Ms. Keser was that the CAS records would show earlier involvement with the police and the Mother. In his Factum the Father stated that Nikita was the second child the Mother had physically hurt and that the CAS had “all on file”. As noted in Ms. Szende’s affidavit, there has been ongoing involvement with the Toronto Police Department but it has largely been initiated by the Father. The CAS has been involved with this family off and on since 1994 on a voluntary basis and at no time were the children before the court pursuant to the Child and Family Services Act . Ms. Szende was in touch with the CAS case worker, Lisa Henry and CAS must be aware of these proceedings given my order that they provide their records. They chose not to intervene and there is no evidence that apart from the events of May 27, 2012, that the Mother does not provide a safe home environment for the children. There is no evidence of any criminal charges against the Mother apart from the charge on May 27, 2012, which I have concluded is not a reason to be concerned about her ability to provide a safe environment for the children. Accordingly, I did not view this as a reason to grant the adjournment.
[ 7 ] Furthermore, the Father’s request to retain counsel came very late. He has been self represented since these various proceedings began in 2007. As set out in my Endorsement, given Vivienne’s situation, it would not have been in her best interests to grant a further adjournment to the Father and in my view it would cause her more harm. Accordingly, in so far as Vivienne was concerned, his request for an adjournment was dismissed.
The Background
[ 8 ] Who should have temporary custody of Logan will be determined when the parties appear before me on August 30 th . These supplementary reasons are with respect to my decision to grant the Mother’s motion terminating the restraining order and giving her temporary custody of Vivienne.
[ 9 ] The parties were in a common law relationship and separated in 2007. They consented to an order granted by Justice Wilson on July 31, 2007 referring the issues of custody and access for the children to the OCL. It was agreed that pending further order of the court the children would remain with the party with whom they were presently residing. At that time the three younger children, Nikita, Logan and Vivienne were residing with the Applicant Mother. Jordan was residing with the Respondent, his step-father. He is the son of the Mother. The order set out access that the Respondent would have to the three younger children and that the Mother would have to Jordan. A further consent order was made by Justice Czutrin on June 13, 2008 dealing with access. At the time both of these orders were made, the Mother was represented by counsel, the Father was not. By the time of the order of Justice Czutrin, Ms. Bellinger, counsel for the Office of the Children’s Lawyer, was attending the proceedings.
[ 10 ] On December 6, 2011, Justice Herman heard a motion brought by the Father for custody of Logan and for access to Nikita and Vivienne. Justice Herman’s reasons state that by this time although the Father had been seeing Logan regularly, he had only seen the two daughters on a limited number of occasions. The Mother’s son Jordan, who has lived with the Father since the parties separated in 2007, was having no contact with his Mother by this point and it appears from Ms. Szende’s affidavit that this has been the situation since separation. Ms. Szende was involved at this time and was of the view that “Logan appears to be burdened by the protracted conflict”. Logan, however, was consistent at that time in his expressed wish to live with his Father when he spoke with Ms. Szende.
[ 11 ] At this time the Father also alleged that the Mother was abusing Logan physically, emotionally and verbally. Justice Herman noted, however, that although there had been ongoing involvement with the police, largely contacted by the Father, that no charges had been laid against the Mother. The CAS had also been involved but on a voluntary basis and had reported that the children live in a “safe home environment” with the Mother. The children’s school principal had reported to Ms. Szende that Logan was doing well at school. He had had significant behavioural issues the previous year but his behavior was now fine.
[ 12 ] Herman J. noted that to vary the earlier order there needed to be a material change in circumstances. The only change was Logan’s expression of his wish to live with his Father. She noted that the allegations of abuse made by the Father were serious but not otherwise substantiated. She added:
An additional factor to consider in deciding whether Logan should live primarily with his Father is whether his relationship with his Mother and sisters would continue. Given the complete lack of a relationship between Jordan and his Mother and sisters, and the lack of a relationship between the Father and the two girls, there is a real risk that the relationship could be severed if Logan were to live with his Father.
[ 13 ] Justice Herman concluded there was insufficient evidence to warrant a change. With respect to the request for access, she noted that there were existing access orders in place and that the Father acknowledged he had not followed up on access but said he had legitimate reasons for not doing so. She concluded no further order was necessary and that if the Father wanted a relationship with his daughters he would need to take the initiative.
[ 14 ] Accordingly, it is clear that from the time of separation until May 27, 2012, Nikita and Vivienne lived with their Mother and had very little contact with the Father. Logan also lived with his Mother but did regularly see his Father. By the time of the attendance before Justice Herman, he expressed a wish to live with his Father.
[ 15 ] The status quo changed dramatically on May 27, 2012 when the Mother was charged with assault pursuant to section 266 of the Criminal Code in connection with Nikita. She was released on a promise to appear and signed an undertaking not to communicate with Nikita or Vivienne. On May 29, 2012, the Father obtained an ex parte order granting him temporary sole custody of the younger three children until further order of the court. The Father had alleged that he was concerned not only about the children’s safety but his own safety and Justice Greer was satisfied that he required a restraining order be put in place against the Mother, that she granted.
[ 16 ] The restraining order went further than the undertaking the Mother gave in connection with the criminal charge. It prohibited the Mother from contacting or communicating directly or indirectly with the Father and three younger children.
[ 17 ] As a result, the children had had no contact with the Mother after May 29, 2012 until my Endorsement of August 22 nd .
The Merits of the Mother’s Motion
[ 18 ] The Mother gives her version of what happened with Nikita on May 27, 2012, in her affidavit in support of her motion. There clearly was an altercation and the Mother admits restraining Nikita but says it was after Nikita struck her. Apparently as a result of the altercation, neighbours heard the screaming and called police. Vivienne was upset at the sight of her Mother and Nikita fighting.
[ 19 ] The Mother deposes that Nikita is a troubled, depressed and angry teen and that her behaviour deteriorated in December 2011 when she learned that Logan would continue living with them. She believes that Nikita requires counselling but that she has been unwilling to access services despite her attempts. She has made arrangements for Nikita to go to Youth Link. It is notable that the Father agrees that Nikita needs counselling. He deposes that he has informed Ms. Henry that Nikita needs counselling and is waiting to hear from her.
[ 20 ] It appears from the evidence that the Father has been alleging that the Mother has been physically abusive to the children for many years. As already stated, notwithstanding earlier and ongoing police involvement with this family, the police have never charged the Mother prior to May 27, 2012. At the time of that incident neither the Father nor Logan were present. There is no evidence that CAS has ever had any protection concerns with this family. Although I appreciate that the criminal charge against the Mother is outstanding, there has been no trial on the merits or any evidence of any physical harm to Nikita or Vivienne. Both Nikita and Vivienne want to return to live with their Mother which is the status quo they knew for five years. There are no reasonable grounds to conclude that any of the children or the Father have reasonable grounds to fear for their safety.
[ 21 ] It is for these reasons, that I concluded that the restraining order should be terminated so that my order with respect to Nikita and Vivienne could be implemented and hopefully the Mother will be able to see Logan.
[ 22 ] Pursuant to s. 29 of the Children’s Law Reform Act , the onus is on the Mother to demonstrate a material change in order to vary the order of Greer J. and return these children to her temporary custody. In my view, the fact that the Mother’s undertaking in the criminal proceedings has been varied to allow this court to permit her to communicate with Nikita and Vivienne as well as the results of the investigation by Ms. Szende which is now available to the court, is sufficient. She concludes in her affidavit that:
Whatever the reason for leaving their mother’s home, it has very negatively impacted on Vivienne and Nikita . They have been in a stable environment with their mother for many years. They attended one school, Maryvale, until Nikita graduated to high school. All their friends and activities are in their mother’s neighbourhood . They very much want to return to things the way they were. [emphasis mine]
[ 23 ] Living with their Mother was the status quo for Nikita and Vivienne since 2007. The evidence is clear that the Father chose not to exercise his right of access to his daughters and for some unknown reason he kept in contact only with Logan. Clearly it is in the best interests of Nikita and Vivienne to return them to their Mother. The concerns Justice Greer would have had when presented with the fact that the Mother had been charged have now been satisfied. The Father has presented no other evidence, apart from that charge, that would justify a change from what was the status quo for many years.
[ 24 ] I also share the concern of Justice Herman about the fact that the Mother’s biological son, Jordan, is living with the Father and wants no contact with his Mother. Apparently until the girls moved in with the Father, he had not had contact with his sisters either. The Father told Ms. Szende that Jordan did not like having his sisters with them as they “remind him of his mom”. There is a real concern that if the Mother does not have custody of Vivienne that the same will happen to her. On the other hand, Ms. Szende reports in her affidavit that the Mother has previously expressed the view that all of the children should visit their Father.
[ 25 ] The children all attended Maryvale following the parents’ separation. They all do well in school. Nikita graduated in 2011 and has completed Grade 9 at Winston Churchill High School. Both these schools are in the Mother’s neighbourhood. The Father lives a considerable distance away from the Mother. In his affidavit in support of his claim for custody he deposed that the children would go to new schools in his neighbourhood. However he advised the court that he could keep them at their old schools and he would bring them to school on the bus. It would take 45 minutes on the bus for the children to attend Maryvale if living with him. That in my view is too long for an 8 year old to travel each day just to get to school or get home.
[ 26 ] Furthermore, the children’s wishes are important. It is telling that when Nikita and Vivienne were removed from the home by CAS they were placed in a foster home temporarily, before going to live with their Father. It is unclear how long they remained in foster care, but in the Father’s affidavit in support of his claim for custody sworn May 28 th , he showed them as still residing there.
[ 27 ] For these reasons I concluded that the status quo should resume for Vivienne and that she too ought to return to her Mother. The issue with respect to Logan is not as urgent but is a difficult one, notwithstanding that he is clear that he wants to stay with his Father. I will consider who should have temporary custody of him when the motion returns before me.
SPIES J.
Released: August 27, 2012
SCHEDULE “A”
COURT FILE NO.: 07-FA-014889 FIS
DATE: 20120822
SUPERIOR COURT OF JUSTICE - ONTARIO
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 , 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., CAS records involving the family had not yet been produced and I ordered that those be provided to Ms. Bellinger by August 17, 2012. The CAS 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 CAS 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 CAS 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 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