COURT FILE AND PARTIES

COURT FILE NO.: FC-12-948
DATE: 2012/10/05
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lea Button, Applicant

AND

Eric Konieczny, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Terry Drummond, for the Applicant
Marc J. Coderre, for the Respondent

HEARD: September 27, 2012

ENDORSEMENT

[ 1 ] The father Mr. Konieczny is seeking interim shared joint custody. The mother Ms. Button sought an adjournment of the motions which in effect would give her interim custody. There was also a contest over whether she could change the child’s daycare provider.

Issues

[ 2 ] Regarding interim custody there was no dispute that, in the absence of material evidence that the child’s best interests demanded an immediate change, the status quo is ordinarily to be maintained until trial: see Grant v. Turgeon (2000), 2000 22565 (ON SC) , 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton , 2002 CarswellOnt 5030 (Ont. S.C.) : Easton v. McAvoy , 2005 ONCJ 319 ; M.W. v. E.B. and the Minister of Citizenship and Immigration , 2005 18315 (Ont. S.C.); and Horton v. Marsh , 2008 NSSC 224 .

[ 3 ] The main issues to be decided then are:

1. What is the status quo for custody and access?
2. What interim order does the status quo support?
3. Do the child’s best interests demand a change of the status quo ?

Brief Summary of the Facts Relevant to the Motion

[ 4 ] The parties were married for five years and have one child between them, Ethan Konieczny, born June 18, 2009. The mother is a veterinarian and the father works in the security industry. They both have well-paid jobs.

[ 5 ] The parties separated on March 20, 2012, but remained in the same home. They retained counsel. On March 26, 2012 the mother`s counsel sent a letter to the father indicating that the mother wanted to negotiate in an amicable fashion. The father made clear his wish for a shared parenting arrangement. Shortly afterwards the mother spoke to a counselor at Ottawa Victim Services alleging a history of the husband threatening and bullying her and that this behavior was escalating. The counselor urged her to contact the police. The mother made a statement to a police officer and she reports that she was told that there would be an investigation but that her allegations of physical abuse were historical. The father was then told by the police to leave the home or he could be charged. The mother remained in the home with the child and initially gave the father restricted and limited access. The mother brought an urgent motion returnable April 12, 2012.

[ 6 ] On April 12, 2012 an order was made on consent. It granted the husband unsupervised access every other weekend (Friday to Sunday evening). The order was “without prejudice” and stated clearly that the motion for interim custody still had to be heard on its merits.

[ 7 ] On June 4, 2012 an order was made on consent for the Office of the Childrens Lawyers (“OCL”) involvement.

[ 8 ] On June 13, 2012, the parties attended mediation and entered into ‘Partial Minutes’ regarding some issues. With respect to custody and time sharing the Minutes state that the parties will attend a second mediation and that they will reserve a motion date in court to deal with interim custody if these issues are not resolved.

[ 9 ] At the second mediation on June 19, 2012, the parties entered into ‘Without Prejudice Short Form Minutes of Settlement’. The father`s access to the child, which had already increased to weekday access, was extended so that it is now every Wednesday overnight and every other weekend from Friday to Monday morning.

[ 10 ] The matrimonial home has been sold and the closing date is October 23, 2012. The mother has decided to move to Carleton Place where she will work, a short drive from the current home. Without consulting the father she has already decided to move the child’s daycare. She has the support of the current daycare provider, although there is no indication that the current service could no longer be provided.

[ 11 ] The mother has told the OCL investigator that she would like to be interviewed in her new home in Carleton Place with the child, and as of this time the investigator has not completed her report.

[ 12 ] The fathers counsel is upset with the mothers counsel. He maintains that he has always taken the position that the interim motion needs to be heard in a timely way, and he accuses mother’s counsel of stalling. The mothers counsel is upset with the fathers counsel, suggesting that he has badgered her with insulting communications to try to get equal access or to have the motion heard, and she wants costs to be ordered against him personally. All of this is unfortunate given the goodwill shown by the parties and counsel in the consent order and two subsequent agreements.

[ 13 ] In summary then, the mother alleges that she has been the victim of abuse by the father which he denies. She also alleges that she was the primary parent during the marriage. The father claims he was an equal parent. Since the separation the father has pressed for equal time with the child, and currently has significant unrestricted access.

What is the Status Quo ?

[ 14 ] The mother argues that the current time-sharing arrangement is the status quo . The father argues that the status quo is the situation as it stood before the mother took unilateral action and forced him into the role of the access parent.

[ 15 ] In Kimpton v. Kimpton, supra , it was noted at para.1 that “By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.” This is echoed i n Horton v. Marsh , supra , at para. 6 : “The status quo which ordinarily is to be maintained is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictates otherwise.”

[ 16 ] I have not accepted that the mother’s actions or her counsel’s were intended to gain a tactical advantage. However, the two cases noted do assist regarding the status quo . Further along these lines the Court in Howard v. Howard (1999), 1999 35009 (ON SC) , 1 R.F.L. (5th) 375 (Ont. S.C.), noted that the only status quo that counts is the one that existed prior to the separation. In Shaw v. Shaw , 2008 ONCJ 130 , (2008), 62 R.F.L. (6th) 100, the fact that the first order was granted on a without prejudice basis meant that it established no precedent as to custody and access between the parties.

[ 17 ] “Without prejudice” as used in the context of family law proceedings is generally understood to mean ‘without any loss to a party’s legal rights’. As such the status quo here must at least be the situation as it existed prior to the first order being made. In line with the cases cited I find that the actual status quo in this case goes back further, to the situation as it existed prior to the father being asked by the police to leave the matrimonial home.

[ 18 ] In many of the cases referred to, the time between the separation and the interim motion being heard on its merits was shorter than the five month gap here. That was not the father’s fault as his counsel was trying to have the matter heard earlier. Also the child or children in those cases were generally older than Ethan. These are important considerations, and it needs to be made clear that the decision to look at the pre-separation situation for the status quo does not mean that the court will ignore the current situation or what has transpired over the past five months. The court could still disregard the status quo if it determines that an order reflecting it is not in the child’s best interests.

What Interim Order Does the Status Quo Support?

[ 19 ] The mother says that she was the primary caregiver pre-separation and therefore the existing access arrangement reflects the status quo regardless. The father says that he had equal involvement in the home as a parent. The parties have filed, by my count, over 25 affidavits to address this issue.

[ 20 ] In Easton v. McAvoy , supra , the court noted a number of factors it considered on the temporary custody motion, many of which apply in this case: both parents have a strong bond with the child; both parents had a significant, if not equal, parenting role in the child’s upbringing; both parents appear committed to the child’s well-being; and both parents have the ability and willingness to provide the child with guidance and the necessities of life. In Zafar v. Ninala (2008), 2008 55144 (ON SC) , 60 R.F.L. (6th) 137 (Ont. S.C.), the court considered the Easton v. McAvoy factors and noted at paras. 15 and 16 other factors that apply in this case:

What is telling is that both parents have been involved in raising the child and neither parent asserts that there are any issues of risk or possible harm to the child while in the care of the other. They are both good parents. …

This is a temporary custody motion based on affidavits which present conflicting information. The stability of the child is critical at this time. It is in the best interests of the child that she have a close relationship with both parents but that she not be involved in the conflict between them.

In Easton v. McAvoy the Court granted equal shared parenting, and the Court in Zafar v. Ninala ordered a roughly forty percent parenting split.

[ 21 ] Shaw v. Shaw , supra , has similarities to the present case. The younger of the two children, like Ethan, was three years old. The mother in that case was charged criminally for assaulting the father, and he was effectively given instant custody and she restricted access through the criminal process. When the matter came before it the Family Court determined the status quo to be the way the parties themselves arranged their affairs when they were still together. In that regard it was noted at paras. 19 and 20:

The evidence of the parties is not, at this early stage, tested by cross-examination. Both assert that they have been the primary caregiver to the children and that the status quo should favour their plan for the future temporary care of their children. …

Decisions made by courts at this early stage of a family court proceeding are made upon scant and untested evidence. Nonetheless, the parties are at this stage unable to bridge the gaps between their respective positions and the court must rule on the temporary care of the children in a sometimes rough and ready way. On the evidence before me, both parents cared equally for the children.

[ 22 ] Appreciating that this is an interim motion based on conflicting affidavits, I am of the view that the status quo in this case supports an order of shared parenting similar to the result in Shaw v. Shaw .

Do the Child’s Best Interests Demand a Change of the Status Quo ?

[ 23 ] As noted above, the Court can still disregard the status quo if not in the child’s best interests. The argument has been made that over the past five months Ethan has benefitted from a level of comfort or stability that given his age should not be interrupted. Disruption to the child is always a primary consideration in assessing his best interests.

[ 24 ] The reality in this case, however, is that Ethan is going to suffer some disruption regardless. The matrimonial home has been sold and the mother will be moving.

[ 25 ] The father’s access is already significant. A shared parenting regime is not a huge increase in the overall percentage of his time with the child.

[ 26 ] Overall I do not find that the child’s best interests demand a change from the shared parenting status quo that existed prior to separation.

Other Relief Requested on the Motions

[ 27 ] Although the mother is moving only a fifteen-minute drive from her current location, she has proposed moving the child’s daycare at this time. I note the evidence of the current daycare provider who, while she clearly supports the mother, indicates that the child does not handle change well. Given the disruption in Ethan’s life at this time, I am not persuaded that his daycare should also change.

[ 28 ] I do not see a mobility issue in this case. The daycare, the father’s home, and the mother’s new home are all within a manageable driving distance.

[ 29 ] Regarding financial issues, the parties earn roughly the same income. I expect them to share equally in the daycare costs. Ongoing and retroactive child support and retroactive special expenses are issues that were not argued at any length and can be deferred to trial.

Decision

[ 30 ] In summary then, I make the following orders:

1. The parties shall alternate the care of Ethan week by week, until further order of the court or written agreement of the parties.

2. Ethan shall visit with the party with whom he is not residing on every Wednesday evening.

3. The parties and counsel shall work out the exchange times and details, and the length of the Wednesday evening access. Failing an agreement they can seek a brief appearance before me.

4. The parties shall not change the existing daycare pending further order or written agreement.

5. Either party may bring a motion to vary this interim order upon receipt of the OCL report.

Costs

[ 31 ] I am not making any finding that the mother’s actions were designed for a tactical advantage as the father suggests. I also am not of the view that the father’s counsel was acting in a way that would incur an award of costs against him personally. Indeed, in the circumstances of this case, and given the cooperation that is evident from the successes at mediation, I am not inclined to make any cost order. With those comments in mind if either party still wishes to address me on costs a date can be set.

Mr. Justice Timothy Minnema

Date: October 5, 2012

COURT FILE NO.: FC-12-948
DATE: 2012/10/05

ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lea Button, Applicant
AND
Eric Konieczny, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Terry Drummond, for the Applicant
Marc J. Coderre, for the Respondent

ENDORSEMENT

Mr. Justice Timothy Minnema

Released: October 5, 2012