ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12,264/11
DATE: 20120126
BETWEEN:
RICHARD PANCEL Applicant – and – MICHELLE HENRI Respondent
Michelle E. McAnulty, for the Applicant.
David Contant, for the Respondent.
HEARD: January 19, 2012.
gauthier j.
Introduction:
[ 1 ] Michelle Henri (“Henri”) seeks an interim Order for the care of Page Peaches Pancel (“Page”), born January 18, 2008, for alternating periods of two weeks beginning January 19, 2012, with the child to be picked up and dropped off in Field, Ontario. Field is approximately half way between Sudbury and Temiskaming Shores, the residence of the Applicant, Richard Pancel, (“Pancel”), and the Respondent, Henri, respectively.
[ 2 ] Henri also was seeking an Order that the firm of Perspectives Inc. be retained to complete a custody and access assessment, pursuant to s. 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12. At the hearing of the motion, counsel for Henri indicated that, in addition, he was seeking an Order for a Psychological or Psychological/Social Assessment of both parties. I dealt with the request for the assessments by way of a consent order.
[ 3 ] For his part, Pancel seeks an interim order for joint custody of Page, with the child’s primary residence being with him. He suggested that Henri have access to Page twice per month, for four days at a time, and that Verner be the place where Page be picked up and dropped off.
[ 4 ] Pancel’s Notice of Motion also sought the following relief:
(a) An Order providing that the Respondent mother shall immediately disclose to the Applicant father any changes in address, employment, work schedule or child care providers;
(b) An Order requiring the Respondent mother to pay child support in accordance with her income and the Federal Child Support Guidelines for the child;
(c) An Order requiring that the Respondent mother provide extended health benefits for the child Page, if available through her employer;
(d) An Order requiring the Respondent mother to provide a direction to the Children’s Aid Society to release the files concerning her son Zachary Frescura to counsel for the Applicant; and
(e) An Order requesting the involvement of the Office of the Children’s Lawyer.
[ 5 ] I received no submissions regarding the relief requested in (c) above, and therefore I make no Order.
[ 6 ] With regard to (e), that Order has been made on the consent of the parties. I will address the other heads of relief later in this Ruling.
Facts:
[ 7 ] Henri and Pancel are 38 years and 43 years of age, respectively. They cohabited in Sudbury, from December 2007 until February 2010, and are the parents of Page, born January 18, 2008. Henri’s son from a previous relationship, Zackary Frescura, born October 23, 1998, resided with them, for the majority of their cohabitation. Zackary lives with Henri in Temiskaming Shores.
[ 8 ] Henri was employed as a nurse at the Laurentian Hospital in Sudbury, until September 2011, when she relocated from Sudbury to Temiskaming Shores where she secured employment with the Temiskaming Hospital. She works part time, five shifts every two weeks, which is 45 hours every two weeks. When Henri is working, Page is cared for by a licensed day care provider.
[ 9 ] Henri’s fiancé, Matt Duke, resides with her and Zackary.
[ 10 ] Pancel is employed at Vale, working 12 hour day shifts. When he is working, Page is cared for by Pancel’s mother.
[ 11 ] After the parties separated in February 2010, Pancel took up residence with his parents, where he resides to this day. He occupies one floor of the residence and Page has a bedroom there.
[ 12 ] Also following the separation, and continuing until September 2011, the parties had a joint defacto parenting arrangement regarding Page. Page’s time with each parent was coordinated around their work schedules resulting in Page spending very little time in day care.
[ 13 ] There is some dispute between the parties about (a) who the primary care giver to Page was during cohabitation, and (b) the actual amount of time Page has spent with each of her parents since February 2010.
[ 14 ] After the separation, Henri sold the home that she had been occupying with Pancel. She advised Pancel, by way of email on September 3, 2011, that she would be relocating to Temiskaming Shores if she secured a nursing position at the Temiskaming Hospital, which she did. She purchased a home in that community and relocated there. She proposed that Page’s primary residence be with her, and, that until Page begins school (September 2012), the shared schedule would continue. Henri proposed Verner or Field as the pick-up and drop off location.
[ 15 ] Pancel refused to meet with Henri to discuss the move to Temiskaming Shores.
[ 16 ] On September 21, 2011, Henri dropped Page off at Pancel’s residence. She understood that Page would be returned to her on September 28. Pancel kept the child until October 10. Pancel had advised Henri via text message, on or about September 28, that he did not consent to Page relocating to Temiskaming Shores and that she would remain with him in Sudbury. She did remain with him until after Henri brought a motion for access to Page.
[ 17 ] Pancel commenced the within proceedings by Application issued on September 29, 2011, seeking sole custody of Page, or alternatively, joint custody with the primary residence being with Pancel. He further advances a constructive trust claim in connection with the property the couple occupied before the separation.
[ 18 ] Henri’s Answer, delivered on October 3, 2011, claims sole custody of Page, or alternatively, joint custody with her primary residence to be with Henri.
[ 19 ] Henri brought a Motion, returnable on October 6, 2011, for access to the child. On October 6, the parties consented to an Order that Page be with Henri from October 10, to October 14, 2011.
[ 20 ] A further Consent Order was made on October 19, 2011, whereby Page was to be in the care of Henri from October 19 to October 30, then again from November 6 to November 11, following which she would be in the care of Pancel, from October 30 to November 6, and from November 11 to November 15.
[ 21 ] Once again, a Consent Order was made on November 24, 2011, whereby Page was to be with Henri from November 24 to November 30, from December 12 to December 24, and from December 29 to January 5, 2012. Pancel was to have Page in his care from November 30 to December 12, December 24 to December 29, and for seven days commencing January 5.
Issue:
[ 22 ] What is the appropriate Order to make, on an interim basis, concerning the care of Page, pending trial of the matter?
Position of the Parties:
[ 23 ] As stated earlier, Henri proposes that the parties continue to share the parenting of Page, on a more or less equal basis. She says that this will continue the status quo which has existed since the separation, save and except for the period of time that Pancel was on strike (February to August 2010). Henri states that, as Page is not yet in school, and given her young age, her relocation to Temiskaming Shores need not affect the time she spends with either parent, between now and September 2012.
[ 24 ] Pancel proposes that he should have the primary role in the care of the child and that Henri’s role be limited to approximately eight days per month. Pancel maintains that he has always been Page’s primary parent, and that Henri‘s ability to parent Page is compromised by emotional/behavioural issues such as extreme mood swings, violent temper, abuse of alcohol, and inappropriate and numerous personal relationships.
Analysis:
[ 25 ] Frequently, on a motion for an interim order regarding the care and custody of a child, the concept of status quo is front and centre. On an interim basis, the status quo will generally be maintained, in the absence of compelling reasons indicating that a change in the status quo is required in order to meet the child’s needs: see Grant v. Turgeon , 2000 22565 (ON SC) .
[ 26 ] An interim or temporary Order is intended to stabilize the parties’ circumstances until trial, when a full and complete consideration of the facts can be conducted in person: see Sellick v. Bollert , 2004 18894 (ON SC) , [2004] O.J. No. 2022 (S.C.).
[ 27 ] At this stage of the proceedings, the evidence consists only of the Affidavits of the parties, which contain a myriad of allegations of misconduct, some of which have little if any connection to the parties’ ability to provide Page with a safe, healthy, and nurturing home environment.
[ 28 ] It appears that from February 2010, until September 2011, the status quo was that the child resided in the City of Greater Sudbury, as did both of her parents, and she was cared for by both of her parents, with Pancel enjoying slightly more time with Page than Henri, particularly for the period from February to August 2010, when Pancel was on strike.
[ 29 ] As of September 2011, Henri’s residence is no longer the City of Greater Sudbury. It is Temiskaming Shores, located some 225 kilometres north of Sudbury.
[ 30 ] Since September 2011, the co-parenting arrangement which had been in place since August 2010 has not been significantly altered, notwithstanding Henri having relocated. In that sense, the status quo has not been significantly impacted by Henri’s move. There will be an impact on the status quo once Page begins school in September. However, right now the move has had little impact on what Page experiences in terms of the time with and the care being provided to her by each of her parents.
[ 31 ] Page is four years old, as of January 18, 2012. She is not in school. Although she has been involved in dance and other activities in Sudbury, and there is no doubt that these activities are important to her, they are not more important than her relationship and contact with her parents.
[ 32 ] What is proposed by Henri would more closely maintain the status quo and be the least disruptive temporary arrangement for Page. It would not significantly impact on the duration or the quality of the time that Pancel will have with Page.
[ 33 ] On the other hand, Pancel’s proposal would result in Page spending a lot less time with Henri. The proposal would have the effect of changing Henri’s role, from a co-parent to an access parent.
[ 34 ] Henri’s proposal and plan will best meet Page’s best interests at this time and until trial. I have considered each plan in the context of s. 24(2) of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 .
[ 35 ] Henri’s plan will better preserve the emotional ties the child has with each of her parents, as well as with her half brother, Zackary, and Pancel’s mother, who are significant people in Page’s life.
[ 36 ] As indicated earlier, Page just attained the age of four years. Her views cannot, on the record before me, be either assessed or considered in the context of her best interests.
[ 37 ] Henri appears more willing than Pancel to continue to facilitate Page’s contact and time with both parents.
[ 38 ] Both Henri and Pancel have family which supports their position. Each of them appears to be capable, despite the untested allegations, to provide Page with affection, care, and guidance. The proposed shared parenting is therefore reasonable and appropriate.
[ 39 ] There will be an Order that Page be in the care of Henri, for alternating periods of two weeks, effective January 19, 2012, and that she be in the care of Pancel, for alternating periods of two weeks, commencing February 2, 2012. The pick-up and drop off shall take place at Verner, Ontario, at a time to be determined by the agreement of the parties through their counsel. If they are unable to agree, they can bring the matter to me to be determined.
[ 40 ] I turn now to Pancel’s request for the Children’s Aid Society records. The evidence does not justify the making of such an Order. Pancel relates that the child Zackary was removed from Henri’s care by the Children’s Aid Society, after the separation, because Henri was abusive of Zackary. That is not admissible evidence. It is hearsay, as it is being offered for the truth, and it is not within Pancel’s direct knowledge. He did not indicate, in his material, the source of this information. Additionally, Zack is in Henri’s actual care. That fact is not disputed.
[ 41 ] The only admissible evidence of the involvement of the Children’s Aid in Henri’s life is a letter from the Society, addressed to both Henri and Pancel, dated April 1, 2008, confirming that the Society had closed its file effective March 31, 2008.
[ 42 ] Pancel’s request for disclosure of changes of address, employment, work schedule, or child care is reasonable, and it is appropriate, given my Order for the shared parenting, that the responsibility for disclosure of such information be mutual.
[ 43 ] Henri’s Notice of Motion did not seek custody or joint custody, however Pancel’s motion did. Given the Order I am making for the care of Page, it is appropriate that joint custody be ordered.
[ 44 ] Henri’s Notice of Motion did not seek child support, however Pancel’s Motion did. No submissions were made about child support in the context of the shared parenting arrangement. The parties are free to bring a motion if they want to address child support. I will make no Order at this time.
Conclusion:
[ 45 ] IT IS ORDERED THAT:
Henri and Pancel shall have joint custody of the child Page Peaches Pancel, born January 18, 2008;
Page will be in the care of Henri, for alternating periods of two weeks, effective January 19, 2012,;
Page will be in the care of Pancel, for alternating periods of two weeks, effective February 2, 2012;
The pick-up and drop off of the child shall take place at Verner, Ontario, at a time to be agreed upon. Failing agreement, the matter can be brought back to me by Motion;
Each party shall disclose to the other any change in address, employment, work schedule, income, and child care providers, within 10 days of such change occurring;
Pancel’s request for production of the records of the Children’s Aid Society relating to the child Zackary Frescura, is denied;
If the parties are unable to agree on costs of this motion, they are to communicate with the Trial Coordinator, within twenty (20) days of the date of this Order, to set a date and time to argue costs, failing which they will be taken to have agreed on costs and no Order shall be made. The parties may request that the hearing be by teleconference call; and
The within Order supercedes the interim interim access Order the parties agreed to on January 19, 2012.
Madam Justice L. L. Gauthier
Released: January 26, 2012
COURT FILE NO.: FS-12,264/11
DATE: 20120126
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RICHARD PANCEL Applicant – and – MICHELLE HENRI Respondent RULING ON MOTION GAUTHIER, J.
Released: January 26, 2012