SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO .: FS-12-74389-00
DATE: 20121029

RE: Renata Gorenc v. Andrej Gorenc

BEFORE: Baltman J.

COUNSEL: Judith Holzman, for the Applicant

Carol Struthers for the Respondent

E N D O R S E M E N T

[ 1 ] This is a motion to determine interim parenting arrangements for two children, Matej, an 8 year old boy, and Alenca, a 7 year old girl, and in particular to what extent the recommendations of a recent s. 30 assessment should be implemented.

Factual Background

[ 2 ] The parents married in 2001 and separated in November 2011. The separation was initiated by the father. The mother is 36 years old and earns approximately $65,000 annually as a computer consultant. The father is 42 years old and is self-employed, installing windows and doors. His income fluctuates but appears currently to be somewhat lower than the mother’s. There is currently no custody or access order in place, and to date dealings between the parties have been highly acrimonious.

[ 3 ] The father continues to live in the matrimonial home. After he advised the mother he wished to end the marriage, she spent increasingly more time with the children at her parents’ home. The maternal grandparents live on the same street and only two doors away from the matrimonial home.

[ 4 ] Eventually the mother essentially moved the children into the grandparents’ home, without the consent of the father. The children currently reside primarily with their mother and maternal grandparents. Until July 2012 the father had occasional but erratic access. However, since then, as a result of recommendations made by Howard Hurwitz pursuant to a consensual s. 30 assessment, the father has had (more or less) regularized access, consisting of alternate weekends plus one additional overnight each week, along with shared holidays and vacations.

[ 5 ] Hurwitz was appointed in April 2012 to conduct a custody and access assessment pursuant to s. 30 of the CLRA . The resulting report, 63 pages in length, was released July 3, 2012, following numerous interviews with the parties, their children, and various other “collateral contacts”.

[ 6 ] Hurwitz recommended that the mother have sole custody and that she be responsible for decision making, with her home to be considered the children’s primary residence. He also recommended that the father’s access be increased and that both parties work on their parenting relationship so that the children do not feel caught in the middle. In arriving at those recommendations he made the following observations:

• The father relates well to the children, can manage their behaviours and is alert to safety concerns;

• He has a strong desire to increase his role in the children’s lives and there is no indication his behaviour is threatening to the children;

• The mother has strong parenting skills, particularly in managing the schedules and activities the children are involved in;

• Overall, the mother is a stronger parent; she is highly organized and provides the children with a structured, consistent and nurturing environment, supported by the grandparents;

• Since separation the level of conflict between the parents has escalated: both have demonstrated an inability to parent co-operatively, and both attempt to paint the other in an unfairly negative light.

[ 7 ] Hurwitz also expressed concern about the mother’s efforts to limit the father’s access to the children. This has distressed the children and intensified the loyalty conflict they are experiencing. She gives priority to herself and her family v. the father and his family.

[ 8 ] Despite those concerns, Hurwitz ultimately concluded that the mother’s high level of structure and routine made her the stronger parent. Given the high conflict between the parents he predicted that joint custody would not be feasible.

[ 9 ] The mother seeks a temporary order in line with Hurwitz’s recommendations, i.e. sole custody with regular access by the father. The father also seeks interim sole custody, with the children to reside primarily with him in the matrimonial home and regular access by the mother. In the alternative, he seeks a shared parenting arrangement, wherein the children alternate homes on a week about basis.

Analysis

[ 10 ] What emerges from the record and submissions is that while both parents profess to be co-operative and reasonable, each one has at various points allowed their animosity toward the other get ahead of the children’s interests; for example, the mother claims the father “missed” spending Father’s Day with the children, when in fact he was unable to attend because of a work commitment in Ottawa, and the mother turned down his request for a make-up day before or after. The father, in turn, has accused the mother of various transgressions in front of the children, causing them to feel conflicted.

[ 11 ] There is no doubt that father does not always adhere reliably to drop-off and pick-up times. And it is not clear that he is diligent about getting the children to and from scheduled recreational activities. Nor does he do enough to insure the children attend to their homework assignments.

[ 12 ] But while the father could certainly be more organized and reliable, the mother’s approach is overly rigid and controlling: she wants to travel out of the country with the children but does not want him to do so; she wants to approve his volunteering in the school; she wants him to give her the right of first refusal but she does not want to give him that right. She wants to have sole responsibility for all recreational and other activities without any meaningful consultation with the father.

[ 13 ] In short, they are both flawed, and have both, at various times, overlooked the children’s needs in order to satisfy their own agenda.

[ 14 ] I recognize courts are often reluctant to alter the status quo on an interim custody or access motion. However, in this case there is no court order in place, and the “ status quo ”, to the extent one exists, arose largely through aggressive steps taken by the mother to minimize the father’s role in the children’s lives. In fact, before Hurwitz’s report was released, she was permitting the father very limited access, despite numerous requests on his part to be more involved. Since then she has followed Hurwitz’s recommendations, but grudgingly, and she continues to argue the father is dangerous and a drunkard, despite Hurwitz’s express finding to the contrary.

[ 15 ] Under s.16(10) of the Divorce Act the court shall provide for the maximum contact with both parents that is consistent with the best interests of the children. While Hurwitz suggests the mother is the “stronger” parent of the two, he clearly views both parents to be capable and loving, with each highly bonded to the children. Moreover, the case law is clear that an assessor’s recommendation ought not to be acted upon without a full trial, except in highly unusual circumstances where immediate action is required: Marcy v. Belmore 2012 ONSC 4696 ; Grant v. Turgeon , 2000 22565 (ON SC) , [2000] O.J. No. 970 (S.C.) There is no call for such urgent action in this case.

[ 16 ] It will be several months at least before this case comes to trial. If the mother is given sole custody now, come trial the father may face an uphill battle to alter the status quo . In the absence of any evidence that he is neglectful or unfit, or that the children’s best interests are compromised by shared parenting, I believe he should enter the trial on an even playing field. Better yet, given Hurwitz’s findings that both parties are responsible for the negative environment surrounding the children, over the coming months the parties may choose to reconsider the wisdom of further litigation, and recognize that their limited funds would be much better spent on parenting counselling.

[ 17 ] Given those factors, I make the following interim order:

a) Parenting shall be shared on a 50/50 “week about” basis between the two parents, with the transfer to take place each Friday after school or such other time as the parties agree;

b) There shall be telephone contact between the “week off” parent and the children at 7:30 p.m. on Monday, or any other or additional time that the parents agree to. The “week on” parent must ensure that s/he facilitates this contact;

c) Holidays and vacation periods are to be shared equally, at such times and dates as agreed upon by the parties or, failing agreement, as directed by a parenting coordinator to be jointly retained by them;

d) Should either parent not be available to spend time with the children at their assigned time for a period of longer than 4 hours, the other parent will first be given the opportunity to provide child care;

e) Communication between the parents shall be by email. Neither parent will make any disparaging comments about the other parent in front of the children;

f) The mother shall be responsible for any major decisions regarding the children’s health, education, religious and recreational activities; however, she shall solicit the father’s views by email regarding any such decisions in advance. Wherever possible, she shall take his views into consideration, and shall notify him of her decision before implementing it;

g) Should any of the above activities occur during the father’s parenting week, he will be responsible for transporting the children to those events; if he is unable to do so, he will notify the mother in advance;

h) Either parent shall have access to all medical, educational, or recreational reports concerning the children;

i) Neither parent shall move from their current residence without the consent of the other or a court order;

j) Either parent may travel outside of the province or the country with the children, provided s/he notifies the other at least 3 weeks in advance and provides the phone number and address of where s/he will be staying;

k) Both parents shall sign passport renewal applications for the children when required.

[ 18 ] Finally, it became apparent during submissions that in addition to the fundamental question of where the children should reside, the parents had many other squabbles they wished to air in court. I have tried to address or anticipate many of those, but undoubtedly the parents will still find something to argue about. This family is of limited means and the parents should now start focussing on a collaborative rather than divisive approach. In other words, they should spend their money on their children, rather than their lawyers’ children.

[ 19 ] For that reason I am also ordering that if any further disputes arise with respect to access or other parenting related issues, the parties are required to engage and consult with a parenting coordinator before returning to court. That includes, but is not limited to, any type of relief requested in the materials on this motion that could not be addressed during the time allocated for this hearing.

[ 20 ] Given that neither party achieved their primary goal on this motion, barring a compelling submission to the contrary I would order that each shall bear their own costs of this motion.

Baltman J.

DATE: October 29, 2012

COURT FILE NO .: FS-12-74389-00
DATE: 20121029

SUPERIOR COURT OF JUSTICE – ONTARIO RE: Renata Gorenc v. Andrej Gorenc BEFORE: Baltman J. COUNSEL: Judith Holzman, for the Applicant Carol Struthers for the Respondent ENDORSEMENT __________________________________ Baltman J.

DATE: October 29, 2012