COURT FILE NO.: FC-11-2465

DATE: 2012/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.F.

Applicant

– and –

S.B.[1]

Respondent

– and –

For this motion only

CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU CENTRE‑EST DE L’ONTARIO

Ann C. Scholberg, for the Applicant

Judy Overgaard, for the Respondent

Anne Sheppard

HEARD: January 16, 2012

REASONS FOR JUDGMENT

Annis J.

Introduction

[1] Both the applicant mother, A.F., and the respondent father, S.B.[1], bring motions seeking interim relief in the nature of custody and access in respect of their three children: S. “S.” B.[2] (born on […], 2002), A. “A” B. (born on […], 2005) and J.B. (born on [..], 2008). The mother also seeks child and spousal support.

[2] The issues before the court with respect to the interim orders sought concern the following:

(1) The addition of the Conseil scolaire de district catholique du Centre‑Est de l’Ontario (“Conseil scolaire”) as a party to the motion to require it to release the children to the care of the applicant without restriction and to adhere to the applicant’s directives;

(2) Sole interim custody requested by both parties;

(3) Access to the three children of the marriage, including an order imposing conditions restricting the mother from consuming alcohol before and during access; and

(4) Child support and spousal support.

[3] I will deal with the issues (2) to (4) in the order listed above, after which I will consider the matter of adding the Conseil scolaire as a party.

Factual Background

[4] The parties cohabited from March of 2001 until separation on or around July 19, 2011, whereafter they lived separate and apart in the home with the three children until August 23, 2011.

[5] The father is employed with the Canadian Food Inspection Agency. His current annual income is $85,988.

[6] During the relationship, the mother remained predominantly at home to care for the children. She had some outside employment, but these jobs were sporadic and earned income generally at the minimum wage level.

[7] She holds a high school diploma and a certificate in aesthetics and cosmetology. Prior to separation she had started her own business working as a nail technician from home, but earned little from it.

[8] Their initial separation appears to have been amicable. They agreed between themselves to jointly parent the children. The father also agreed to provide $1,300 per month in child and spousal support. This was evidenced in writing in a letter to the City of Ottawa dated August 9, 2011. The mother was apparently starting employment in September after which the support arrangements would be reassessed.

[9] The situation changed on August 22, 2011. They met over wine and dinner. This ended abruptly when the mother stormed out. She claims that she was upset because the father told her that he was having an affair with a co-worker. The father denies this indicating only that he told her he no longer loved her. He states that she assumed he was having an affair because he had added the co-worker to his Facebook friends.

[10] The mother went to a friend’s house where she continued to drink, becoming inebriated. She returned home in a rage at about 1 a.m. She proceeded to act in a deranged fashion. She committed several assaults on her husband and stormed around the house leaving a trail of destruction throughout all three of its levels.

[11] The mother first attacked the husband while he was sleeping in bed with J.B. J.B woke up and was crying. The other two children were also awakened and witnessed or heard their mother’s rampage.

[12] The mother first scratched and bit the father and then kneed him in the groin. Later downstairs, while the father was trying to calm her down to stop her destroying things, she threw objects at him, including a half broken coffee pot which sliced his ear. The bleeding ear apparently caused her to become even more out of control, and she threatened his life. The records of the Children’s Aid Society (“CAS”) dated August 24, 2011, note marks on the father’s right cheek, a cut on his right ear, scratches on his neck, and bruises on his shoulder and his left arm.

[13] She was only brought under control after her father arrived and physically removed her from the house.

[14] On August 23, 2011, the applicant was charged with assault, assault with a weapon, and mischief to spousal property.

[15] The applicant pleaded guilty to assault and was placed on probation for a period of one year. Her conditions of probation prohibit her from communicating with the father unless through counsel. She is not permitted to be within 200 meters of the matrimonial home or his workplace. She was required to attend a spousal abuse program offered through the Catholic Family Service of Ottawa.

[16] She moved out of the home into a women’s shelter leaving the children in the care of the father.

[17] As a result of the assault, the CAS began an investigation. The father, when interviewed on August 24, 2011, spoke positively of the mother and offered that he felt it was important that the children see the mother as soon as possible.

[18] In a statement given to the CAS shortly after the incident, the mother acknowledged that she went to the neighbour’s house to drink four or five times a week and that she would consume sometimes up to four to five drinks.

[19] During her interview with the CAS, the mother made several allegations against the father, accusing him of using cocaine and criticizing him for his handling of the children by manipulating and provoking them and being mentally abusive.

[20] The children were interviewed privately by the CAS. Their notes indicate that S.B[2] was able to recall lots of fun things with his dad, but very little with his mother. He referred to her as “fussy”. He also disclosed that he heard his mom throwing things in the middle of the night. He stated that she had thrown things in the past and recalled when she destroyed his laptop because she was mad at his dad and thought the laptop was the father’s laptop. He also indicated that his mother was often at the neighbour’s home in the evenings, almost every day.

[21] The father confirmed the foregoing evidence. He also said that, after the birth of J.B, the mother had resumed her relationship with their neighbour and began drinking heavily again. The father was required to care for the children, doing the shopping, laundry and cleaning the home, with minimal assistance from her.

[22] He reported that there were occasions when the mother did not come home until 6 a.m., calling for him to help her up the stairs because she was so intoxicated. She was often unable to get up in the mornings and care for the children, which became his responsibility. Even so, there were issues at the school because of the number of late arrivals of the children.

[23] He further stated that the applicant had secured employment in April 2009, but eventually quit the job because of her drinking problems. He stated that the mother was becoming increasingly violent towards him, especially when drinking, which was a contributing factor to separation.

[24] There is no indication in any of the mother’s evidence that she acknowledges having a drinking problem, or that her drinking had an impact on the family, apart from rationalizing her conduct on August 23, 2011, by referring to the alcohol and the alleged provocation of the father.

[25] The CAS assisted the parties in negotiating an access schedule whereby all three children were with the mother every weekend, while the youngest, J.B, was in the mother’s care from Wednesday until Sunday. During the week, when at school, they stayed with the father.

[26] The mother claims that the father started limiting her access after she filed her application on October 25, 2011. As noted, she is seeking sole custody of the children and monthly child and spousal support of $1,500.

[27] The father stated that he wanted the mother’s access supervised after learning that she was moving out of the shelter. Prior to that he had concerns about the mother making inappropriate comments about him and their separation. She was also manipulating the children and had put S.B[2] into counselling without telling him.

[28] On October 3, 2011, the CAS called École élémentaire catholique Sainte‑Bernadette (“the school”) where S.B[2] and A.B attended and which is administered by the Conseil scolaire. The school reported that the mother had told them that she was in a shelter for women and that S.B[2] had been hurt by the father.

[29] The school advised the CAS that they had not seen the mother at school; that it was always the dad who looked after things. They indicated they had no concerns about the father. The school also told the CAS that sometime later the mother had called to ask to volunteer at the school.

[30] On November 8, 2011, in an e-mail to the CAS, the father described the problems he was having because of the mother’s manipulation of the children. S.B[2] was coming back with gifts while A.B received nothing, which was upsetting A.B. A.B had made a somewhat similar complaint earlier to the CAS worker, but in respect of preferential treatment for J.B. When asked to talk about the mother, he said that “she always plays with J.B, she never plays with me”.

[31] In the same e-mail, the father indicated that the mother had arranged to have S.B[2] seen by a counsellor, which S.B[2] initially denied. But when A.B told the father, S.B[2] admitted that he had been seeing a counsellor for quite some time, but that the mother had told him not to tell the father.

[32] More information on S.B[2]’s counselling was contained in a “to whom it may concern” letter dated November 28, 2011, from a counsellor at the shelter intended to support the mother’s position. The shelter had arranged for the counselling in response to the mother’s request. She claimed that S.B[2] needed counselling because the father had been abusing him.

[33] When the shelter worker interviewed S.B[2], he told her that his dad had been yelling at him and had thrown him onto his bed hurting his leg. The shelter worker reported that the father had put an end to the counselling and told S.B[2] that he was not allowed to talk to her. The shelter worker and the mother were continuing to seek counselling for S.B[2].

[34] In the same letter, the mother also told the shelter employees that she was being physically, verbally, and emotionally abused by the father, who she said was very controlling. The shelter worker reported that the mother was taking one-on-one counselling “to address and begin to heal from the abuse she has experienced in her relationship”.

[35] As it turns out, S.B[2] later admitted to the CAS worker that he had lied to the shelter worker because the mother told him he could change schools if he came and lived with her. Moreover, on November 7, 2011, the school reported that S.B[2] and A.B were doing “extremely well at school”, that they had stopped being late, and that it was like “night and day”. The CAS apparently stopped the counselling.

[36] There is no evidence to support the mother’s allegations of abuse by the father. The CAS indicated that the father “appears to be sympathetic to A.F.’s plight and speaks to the difficult time she has been going through.” The CAS also noted that the father was quick to respond to the mother’s demands, including providing her with money and transportation for her access after she complained that he was not doing enough.

[37] The father’s concerns about access arose when he learned that the mother would be moving out of the shelter at the beginning of December 2011. Initially, he was not concerned about access taking place at the shelter where people were around and where there were strict rules, including a zero tolerance alcohol policy.

[38] Towards the end of November, the father sent a letter to the children’s school indicating that the mother did not have authority to pick up the children or remove them without his authorization or that of the CAS. He asked the school to ensure that the children would be directed onto the bus for their return home. The mother could not pick the children up at the father’s home because of the probation order.

[39] He also requested the CAS to impose supervision on the mother’s access. The CAS denied his request.

[40] The mother obtained subsidized housing placement and moved in on December 1, 2011. The mother did not disclose her new address to the father.

[41] On Friday, December 2, 2011, the father advised the mother by means of their respective lawyers that he would not allow access unless it was supervised by her father and the mother agreed to refrain from consuming alcohol while caring for the children. The mother reluctantly agreed to have her father supervise access over that weekend on a one-time basis.

[42] On December 7, 2011, the mother, through her counsel, indicated that it was her expectation that access would occur during the coming weekend without supervision. The father’s lawyer replied the next day stating that there was no evidence to show that the mother had resolved her excessive drinking and violent outbursts while the children were home. She indicated that until the CAS file was available for review, access would be supervised. She also conveyed the father’s intention to reduce access to every other weekend in addition to three hours on one evening during the week. She indicated that the father would be exercising his access with the children during the coming weekend.

[43] On Friday, December 9, 2011, the father telephoned the school to request that the children be put on the bus and not permit them to leave with the mother.

[44] The school had apparently understood that there was an agreement between the parents that the children would attend school by bus and return in the same manner. The school’s evidence was that occasionally the father would advise the school that someone else would be coming to pick up the children, and they had acted on his directions.

[45] There is a dispute as to how often the mother attended on Fridays. The father contends that on most occasions pick-up was done by her father who has a vehicle. The mother and her paternal aunt say that she picked up the children on numerous occasions on Fridays.

[46] Despite the letter from the father’s lawyer, the mother attended at the school on Friday, December 9, 2011, with the intention of picking up the children. The school complied with the father’s request, leading the children away from the mother and placing them on the bus. The mother was critical of the means used by the school to direct the children onto the bus. The school does not accept her version of the events.

[47] On December 12 and 13, 2011, there was another exchange of letters between the lawyers demanding and denying access by the mother. The mother indicated that the father should seek leave of the court if he wished to deny her access. The mother’s lawyer wrote a similar letter to the school.

[48] Being caught in the dispute between two parents, the school decided that, until the conflict was resolved by the parents or by court order, it would continue to place the children on the bus, as was normally done to transport the children back and forth from the home and school throughout the year.

[49] A case conference was held on December 13, 2011. Production of the CAS file was ordered. Neither party made a request for an urgent motion.

[50] On Thursday, December 15, 2011, the Conseil scolaire wrote the mother providing its explanation for the decision to continue to place the children on the school bus. It asked the mother to cooperate and accept its decision. The letter urged the parents to quickly resolve the dispute between themselves by agreement or before the court.

[51] Despite the letter from the Conseil scolaire, the mother showed up at the school on December 16, 2011, to pick up her children with the same result of the school placing them on the bus. There were further exchanges between the mother and school employees witnessed by the children as well as other students, parents, and staff members. The mother’s father video taped some of the events at the mother’s request, despite being asked by the school employees not to do so.

[52] On December 21, 2011, the applicant filed her notice of motion which included a letter dated November 24, 2011, from Serenity Renewal for Families confirming that she had completed four sessions of the alcohol education program.

[53] Her materials also included a letter dated December 19, 2011, from the Elizabeth Fry Society of Ottawa indicating that the mother had attended and successfully completed their ten week anger management program. The letter stated that the mother had demonstrated an ability to understand and apply the information skills discussed during her involvement program.

[54] Having confirmation that the mother had completed the counselling programs, on December 21, 2011, the father indicated that the mother could have unsupervised access of the children. However, he continued to impose a condition on the mother that she would refrain from consuming alcohol prior to or during access.

[55] The mother rejected the imposition of this condition. She insists that she never had nor has a drinking problem. The mother has not provided evidence that she refrains from consuming alcohol in the presence of the children.

[56] In a later affidavit, the mother filed a letter dated December 15, 2011, from Bruce Johnston, an addiction counsellor. Mr. Johnson indicated that the mother had been in his office that day for an assessment of a “potential alcohol problem”. His conclusion was that the mother has a low probability of having a substance abuse disorder in all categories. He commented “she easily spends periods of time with no alcohol intake at all and when she drinks socially, it appears to be responsible, appropriate and in control”.

[57] The mother also submitted a medical certificate dated November 25, 2011, from her family doctor Michael Yachnin where he states that the mother “is well known to me and has no evidence of problem drinking”.

[58] The CAS notes make reference to a conversation with Dr. Yachnin on September 22, 2011, where he “acknowledged that A.F.’s self-report regarding her drinking was a fair amount of drinking. The doctor indicated that he could not say that alcohol was not a problem for A.F..”

Custody

[59] The father shall have sole custody of the children. I make this order for a number of reasons.

[60] Firstly, the evidence would appear to demonstrate that the mother had abdicated important decision-making responsibilities to the father, even before the distressing incident of August 23, 2011. He had responsibility for the educational decisions and appears to have taken over main responsibility for the welfare of the children as the mother engaged in drinking sessions with their neighbour.

[61] Under his direction the children are doing well at school as demonstrated by a letter from their principal dated December 12, 2011, wherein she rejects the father’s request for extra help for the children, stating that they were “smiling, happy children with good spirits” (my translation of “enfants souriants, heureux et plein de bonne volonté”).

[62] Secondly, the evidence set out above convinces me that the mother will have difficulty working with the father in arriving at decisions that are in the best interests of the children. She was extremely angry on August 23, 2011, and based on her conduct afterwards continues to demonstrate a hostile animus towards him, for reasons that are not clear.

[63] After the events of August 23, 2011, the mother attempted to undermine the father’s fitness to have custody of the children, but in a more duplicitous fashion. Firstly, she lied to shelter workers that he was abusing her and S.B[2]. More pertinent for the purpose of these proceedings, she manipulated S.B[2] to participate in her schemes. For her own purposes, she encouraged S.B[2] to lie to the shelter worker by saying that the father had physically harmed him.

[64] It is obviously wrong for parents to involve their children in their inappropriate schemes and to that end to encourage them to be untruthful. The mother’s inducement of a promise to allow S.B[2] to withdraw from his schooling in French was equally lacking in judgment, most pointedly in terms of the best interest of the child, given the benefits that proficiency in the French language provides opportunities for persons living in Ottawa.

[65] To the same effect, I am troubled by the mother’s apparent inequitable treatment of the children in favour of S.B[2], which I find is suggested by the statements of both A.B and J.B to the CAS. The father states that the mother told S.B[2] that “mommy could not go home anymore because daddy called the police”. Overall, I accept the father’s submission that the mother is attempting to alienate S.B[2], and perhaps the other children, from the father.

[66] I have searched the record for some probative evidence that the father has contributed to these events, but have found little, if any. The CAS described their conclusions about the father in their October 5, 2011, report as follows:

Throughout the Society’s involvement S.B.[1] has presented as concerned about the children's needs and ensuring that they have access with their mother. S.B.[1] has addressed all of the concerns as they have been brought forward by A.F.. Many of the concerns brought forward by A.F. regarding S.B.[1] have been easily explained away or determined to be unfounded. S.B.[1] 's care of the children has been continually called into question by A.F. however the children have not disclosed any concerns in relation to the father and any concerns noted during visits to the home have been dealt with in a timely manner by S.B.[1], such as removing the inflatable pool from the backyard. S.B.[1] appears to have the children’s best interest at heart and has made many efforts to ensure their needs are met such as providing money to A.F. during visits, providing transportation, supplies for visits, paying for A.F. cell phone, and recognizing the difficult time the children are experiencing. S.B.[1] still hopes to work out the custody of the children with A.F. without needing to go through the court system. S.B.[1] appears to be sympathetic to A.F.’s plight and speaks to the difficult time that she has been going through.

[67] Based on the records and opinions of persons at the CAS and the children’s school, the father is doing his best to go forward and work around the mother’s problems. The father’s negative comments started after he found out that she was trying to undermine him and paint him as an abusive husband and father.

[68] Thirdly, I share the father’s concerns that the mother has not fully appreciated the consequences of her actions and that the family remains at risk from more inappropriate conduct by her. I find no real acknowledgment or recognition on her part for her conduct on August 23, 2011, and its consequences on the family.

[69] Instead, she pursued her schemes concerning the father. Her confrontational attitude towards school authorities and her preparedness to create a scene in front of her children is equally troubling. From all the evidence it appears that the mother will continue creating problems around the children and with the father. Unless there is a serious change in her attitude, I see little hope that she can work with the father in the best interests of the children.

[70] In the same vein, the mother denies any problems associated with her consumption of alcohol. She asks the court to disregard her previous behaviour on the basis of her having attended four sessions of an alcohol education program and Mr. Johnston’s positive conclusions about on her “potential” alcohol problems, which frankly suggest that he was not aware of the events of August 23, 2011, or her preceding alcohol-related conduct with their neighbour. Dr. Yachnin’s conclusions I reject for its obvious contradiction with earlier statements he made to the CAS. Certainly, the father paints a completely different picture of the mother’s drinking problems.

[71] I am satisfied that the mother has a drinking problem. Even if she is not addicted to alcohol, her drinking habits were a recessive factor in bringing out psychological issues that account for her anger and shocking behaviour on August 23, 2011.

[72] Finally, in awarding sole custody to the father, I simply cannot set aside the serious implications that I attach to her conduct on August 23, 2011, as measured against the standards which this Court normally applies in similar situations.

[73] She came within inches of very seriously injuring her husband by throwing what in law is clearly a weapon. Fortunately, the injury to his ear was not more severe. The accompanying destruction of family property, including mementos of the family, and her inability to control herself over an extended period of time, requiring her father to eventually arrive and to physically remove her from the home, are events that will leave an indelible mark on the family.

[74] I am not singling out the mother for special attention. In my view, it is generally a standard of this court that when cases involve dangerous assaults, accompanied by issues of substance abuse and ongoing anger issues, the question of custody simply does not arise. The only issue in such a situation is if and how to reintegrate the offending spouse and over what period of time. See generally for example, Ruscinski v. Ruscinski, [2006] O.J. No. 1274 (S.C.); R.A. v. T.R., 2006 CanLII 6196 (ON SC), [2006] O.T.C. 216 (S.C.); S.E.C. v. G.P. (2003), 2003 CanLII 2028 (ON SC), 41 R.F.L. (5th) 250 (Ont. S.C.)

[75] My decision on custody takes into consideration the factors set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). In particular, the ability of each party to act as a parent and their ability and willingness to provide the children with guidance and education are factors that are pertinent in light of the facts of this case.

[76] Awarding the father custody does not mean that he is able to act unilaterally without first consulting the mother on issues of importance. For this purpose, I lift the ban prohibiting direct communication between the parents on issues of custody and access which is limited to exchanges by e-mail only, unless an emergency situation arises.

Access

[77] Section 20(4) of the CLRA is relevant to the issue of the mother’s access. By having the children live with the father, it implies the mother’s consent to his exercising the entitlements and incidents to custody, but it makes an exception for the mother’s entitlement to access.

20 (4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

[78] Once the parties had agreed to an arrangement on access, I am satisfied that the father should not have unilaterally imposed restrictions or conditions on the mother. He ought to have initiated court proceedings to obtain an interim order, as he was invited to do by the mother, and implicitly, by the school.

[79] However, I do not interpret s. 20 as a substantive provision intended to override my determination in fixing access, which should be based solely on considerations as to what is in the best interests of the children. If I had found that the father’s conduct in limiting access was detrimental to the children or taken in bad faith, that would be another story. I do not find so and consider that his failure to adhere to the requirements of s. 20(4) is only relevant to costs.

[80] After careful consideration of the mother’s conduct, I am not satisfied that it would be in the best interests of the children to place them in a regime of shared parenting. This conclusion is arrived at because I do not have confidence that she has yet accepted responsibility for the events that occurred and that she will not continue to undermine the father in the eyes of the children due to her anger and hostility towards him.

[81] I also am not satisfied that there does not remain significant risk of her causing further unacceptable incidents involving the father and the children, despite the evidence put forward by her that all is well.

[82] Despite my concerns about the mother, I share the father’s views first conveyed to the CAS that she should be fully involved in the children’s lives. My decision is intended to implement that objective with a trial period of sorts, over a relatively short timeframe.

[83] The mother is initially to have access to the children occurring on every alternate weekend from Friday after school until Tuesday morning, when the children are to be returned to school. On Tuesday morning, the father will pick up J.B at the school, at the same time as S.B[2] and A.B are dropped off.

[84] In addition, the mother will have access to the children on the evenings from after school until 8 p.m. of the Thursday after the Tuesday drop off, as well as the following Tuesday before the Friday pickup.

[85] To facilitate the mother’s access, I further modify the terms of the probation order. In addition to allowing direct communication between the parents via e-mail, the mother is permitted to be in the presence of the father for the purposes of dropping off the children and to attend at meetings with medical practitioners and educational staff, as well as attending public events involving activities by the children.

[86] The access order will remain in place for a minimum of six months assuming that no further incidents or breaches of the terms of this order occur. Assuming that access proceeds without incident over this period of time, the parties are to work out a mutually convenient shared parenting arrangement for the remainder of the interim order. If an agreement cannot be quickly achieved, an urgent case conference can be arranged with the court for that purpose.

[87] It would have been my preference that the mother engage in counselling to ensure that she is capable of maintaining normal relations with the father over a long period of time. As the situation stands now, I am concerned about the risk of her losing self‑control or wishing to cause him harm or prejudice due to her anger towards him, her susceptibility to alcohol as a trigger, or any of the other factors that a medical practitioner might consider relevant to her inappropriate behaviours described above.

[88] However, the respondent has not requested that this condition be imposed, and it is logically difficult to require her to take counselling as a condition for shared parenting when my order permits her to have the children on alternate weekends without it. Nevertheless, it remains my opinion that unless the mother changes her attitude and behaviour towards the father, their conflict will persist and the children will be the losers for it.

[89] I also recommend that both parties engage in parent counselling.

[90] Given my concerns expressed above, the mother will be prohibited from consuming alcohol 24 hours before access with the children and during access with them. This prohibition will also apply to other persons who will be in the presence of the children when the mother has access. The children should not see any evidence of alcohol in the mother’s home during access.

[91] There was evidence in the CAS reports that the father smokes marijuana from time to time. This is against the law and must stop. Moreover, the father and the mother are to ensure that no one smokes marijuana at any time in their presence or in or near the home where the children will reside.

Support

[92] Little time was spent during the hearing on issues of support.

[93] Until a change in access occurs to shared parenting, the mother is not entitled to child support. As a mother who mostly stayed at home with the children, she is entitled to spousal support. The father acknowledges his obligation, but has failed to take any steps to unilaterally pay monthly support. There is some evidence from the CAS that he gave money to the mother. However, no concrete evidence was introduced to that effect in these proceedings.

[94] DivorceMate calculations submitted by the father, based on his income of $85,988 and no income attributed to the mother, provide a range of spousal support for low, mid and high monthly payments in the amounts of $649, $758 and $866 respectively.

[95] Given the mother’s obvious immediate needs to set up a new home, I fix her interim spousal support at $800. For the same reason, payments are retroactive to November 1, 2011. The father may have credit for any payments made to the mother that are evidenced in writing or are acknowledged.

[96] The mother should attempt to find employment during the initial access period. It was her intention to do so prior to the August 23^rd incident commencing September 1, 2011. There is no reason why she should not continue with those plans.

[97] Should she not obtain employment, I nevertheless impute salary to her of $17,500 annually at the time shared parenting is implemented, with the dependent credit being claimed by the father. Both parties should disclose any changes in their income forthwith upon their occurring.

[98] Once shared parenting commences, the mother should receive a combined interim monthly child and spousal support of $1,500 from the father.

[99] Section 7 expenses should be shared in proportion to the parties’ incomes. No expenses exceeding a cumulative total of $100 should be incurred without first consulting the other spouse.

The Conseil scolaire

[100] The mother requests that the Conseil scolaire be added as a party and costs be awarded against it because of its refusal to “adhere to the directives of parents”. I find that her veritable complaint is that the school followed the father’s instructions instead of her own when placing the children on the bus at the end of school days on Fridays commencing December 9, 2011.

[101] Section 20(4) of the CLRA applies to the Conseil scolaire. Challenging questions arise for its application when schools are caught in the middle of parents in conflict over access. This occurred here when the school became implicated by its authority to direct the children to use its transportation facilities while they were under the school’s control.

[102] I do not agree with the mother’s submission, which seems to imply that the school should simply send the child outside and let the parents fight over who has access on the school grounds. When the school learns of a conflict between parents over access involving a child at the school, it is in the best interests of the child that the school decide the immediate access issues that are under its authority.

[103] It is axiomatic that because the school is acting in the best interests of the children, the parents should respect its decisions until superseded by their agreement or court order. In my view, the mother should not have presented herself at the school after being advised that the children would be placed on the bus.

[104] No jurisprudence was brought to my attention concerning how a school board should conduct itself when implicated in an access issue involving parents in conflict. I would think that the procedure the school should follow consists of up to three steps.

[105] The first step would be to determine whether there is any suggestion of a risk of harm to a child by providing access to one parent as opposed to the other. The threshold to determine whether a risk presents itself should not be set too high. That conflict that exists between the parents should put the school on high alert for possible harmful consequences, mostly of an emotional kind, to the child. If there is a suggestion of a risk of harm, the school should be prudent and follow a course of conduct which avoids or minimize this risk.

[106] The Conseil scolaire did not raise issues of concern over a possible risk of harm to the children. I note that the father indicated that access would be subject to the approval of the CAS. Apparently, the school did not communicate with the CAS to obtain information from it, pointing out only in its correspondence with the mother that the CAS remained implicated in the file.

[107] I agree with the mother that the school should have spoken to the CAS to allay any concerns of this nature. However, had it done so, my view is that there are sufficient facts on the file that doubts could have arisen about the risk to the children to allow the mother to take custody of the children. Nevertheless, not having consulted the CAS, its position that it was upholding one of its directions is somewhat tenuous. To some extent it appears to have abandoned reliance upon this reasoning in its subsequent correspondence.

[108] As a second step, after the school is satisfied that there is no risk of harm to the child, it should consider the status quo in terms of pre-existing access arrangements, written or otherwise. If one is in place, the school should give effect to it with instructions to the parent not obtaining access to arrive at an agreement or proceed to the courts.

[109] There is evidence that the school was initially relying upon a purported understanding that the mother had conceded at the beginning of the school year that the father had custody and the mother agreed not to pick up the children from the school. By the terms of s. 20 (4) the father's de facto custody, or the mother acquiescing, should not be a relevant consideration, at least not prior to her advising of her change in position.

[110] Similarly, the fact that the mother was not participating in the children’s affairs at school would not be relevant to the resolution of the access dispute between the parents where a previous access arrangement was being followed.

[111] The difficulty that I have with the mother’s situation in respect to a pre-existing arrangement is that there is no evidence that the school was advised of the arrangement worked out with the assistance of the CAS. The only information apparently conveyed to the school was that in her lawyer’s letter dated December 12, 2011, that “there is no court order in place granting custody of the children to Mr. S.B.[1]”. The further letter of December 16, 2011, added that there were no restrictions imposed by the CAS.

[112] The mother’s evidence is that she had picked up the children on numerous occasions before December 9, 2011. This is likely true, although the father contends that the occasions were not numerous because the maternal father picked up the children on most occasions as he had an automobile and the mother had to travel a considerable distance by public transportation (30 to 45 minutes) to pick up the children and take them back home.

[113] Because the Conseil scolaire was not aware of the details of the pre-existing arrangement, it appears that the school did not understand that picking up the children was to occur only on Fridays. This is evidenced by the statement of the lawyer of the Conseil scolaire in her letter of December 15, 2011, that the school was preoccupied by the suggestion (of the mother’s lawyer) that the mother could pick up the child after school on any day. There is no evidence that the mother corrected this misapprehension.

[114] It is perhaps arguable that the school should have inquired into the pre-existing arrangements on access. I think the better conclusion is that it is up to the party asserting access to convey all information about pre-existing arrangements. Accordingly, I find on these facts that the school was entitled to assume that there was no previous arrangement in place.

[115] If no access arrangement is in place, the third step would involve the school having a fairly broad discretion to decide how to resolve the issue. I do not think that it would be appropriate to simply fall back on an equal access routine outlined in s. 20(1) of the CLRA.

[116] The Conseil scolaire decided to maintain the status quo used to transport the children to and from the school, which was to pick up and deliver them by bus in the large majority of cases (nine times out of ten), which seems reasonable.

[117] I think that the school could have also considered the de facto custody of the children and rely on lack of involvement of the mother at school for the children. It would be in the best interests of the children, where information is lacking and concerns are raised over access, to place the children under the control of the parent who seems most implicated in the children’s school life, bearing in mind that the consequences of the decision are likely short-lived, pending the parents’ agreement or an order of the court.

[118] On this basis, I conclude that the Conseil scolaire acted appropriately in sending the children home in the fashion normally followed to the parent most involved in the children’s school activities, rather than permitting the mother to remove them.

[119] Accordingly, I can find no basis for the Conseil scolaire being joined as a party to this motion. The applicant’s motion is therefore dismissed. I can see no reason why the Conseil scolaire is not entitled to costs on the motion, which I award it in the amount of $500, should it demand them from the mother.

Costs

[120] The father has been successful on the issue of custody and to a large extent on access. I have, however, added to the mother’s access somewhat over what he was seeking.

[121] In addition, I have granted her spousal support in circumstances where the father acknowledged she was entitled to receive it and yet made no effort to commence making payments without an order of the court.

[122] As mentioned, I also am of the opinion that the father should have brought an urgent motion to deal with the access issue, rather than unilaterally imposing conditions on the mother’s access and thereafter reducing it.

[123] Taking into consideration all factors presented in this unfortunate case, I award the father $500 in costs.

[124] In making this order, the mother should recognize that the parties cannot afford to litigate this matter much further. Even assuming that she is on legal aid, she should understand that funds used by the father in these legal proceedings are those that the family and the children will not have to meet their needs in the future.

[125] It is in the best interests of the children that the parents pick up where they started from, before the events of August 23, 2011, knocked everything asunder. They had agreed to work together to put in place a regime of joint custody and shared parenting with reasonable support with the mother planning to go back to work.

[126] It is everyone’s hope, and particularly that of their children, that the parties work towards achieving this objective.

Order

[127] I have attached a draft order that includes numerous terms regarding custody and access. These are intended to assist the parties transition from sole to joint custody and shared parenting.

[128] The parties are to agree on an interim order which should generally incorporate the terms of the draft order attached, subject to any changes they wish to make on consent. It should also include my orders regarding support and dismissal of the motion against the Conseil scolaire. If unable to settle the terms, I will be available to assist the parties.

Mr. Justice Peter Annis

Released: January 27, 2012

COURT FILE NO.: FC-11-2465

DATE: 2012/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.F.

Applicant

– and –

S.B.[1]

Respondent

– and –

For this motion only

CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU CENTRE‑EST DE L’ONTARIO

REASONS FOR JUDGMENT

Annis J.

Released: January 27, 2012

TERMS OF DRAFT INTERIM ORDER ON CUSTODY AND ACCESS

The following terms apply, subject to compliance with the probation order of Madam Justice Maisonneuve of the Ontario Court of Justice dated November 2, 2011, as amended

AMENDMENT OF PROBATION ORDER

1. The above-referenced probation order is amended as follows:

a) The parties may communicate directly by e-mail.

b) The applicant mother may be in the presence of the respondent for the purpose of access drop off and pick up, to attend meetings with educational workers, medical practitioners and similar professionals concerning the children and to attend public events involving the children at school or similar places.

CUSTODY, DECISION-MAKING AND RIGHT TO INFORMATION

2. The respondent shall have custody of the children of the marriage, S.B.[1], born […], 2002, A.B., born […], 2005, and J.B., born […], 2008.

3. All decisions concerning the children’s health, education, religion and social and extracurricular activities shall be decided in accordance with the following procedure:

a) Major decisions regarding the children's medical care and treatment or their educational programming shall be made in consultation with the children’s current healthcare providers and teachers.

b) Any party wishing to change the status quo in matters of health, education, religion and social activities of one of the children will request consideration by the other party, by email, setting out the details of the proposed change and why the change is considered necessary in the best interests of the child. For major decisions, 14 days notice must be provided; for other decisions, 48 hours must be provided.

c) The other party will seek to accommodate the request as long as it is generally reasonable and not contrary to the best interests of the child. If the request is not viewed to be in the best interests of the child, the responding party, within the time provided above after receipt of the request, will either propose a compromise solution or indicate an unwillingness to consent to the change with a reasonable explanation.

d) If the parties are otherwise unable to agree on the change in status quo in these matters, the respondent father will decide.

4. Both parties shall have the right to be given information as to the health, education and social activities of the children from all individuals involved with the children (i.e. teachers, school officials, doctors, health care providers, counsellors, etc.). Each party shall be listed on all documents pertaining to the children and shall be entitled to attend any of the children's scheduled appointments.

5. Both parties shall provide any information obtained concerning the children to the other party in a timely fashion. Each parent shall cooperate in providing the other with particulars of any upcoming school programs/activities and medical/dental appointments so that the other parent may attend.

6. In making requests to obtain information from individuals in these fields the parties should cooperate, using e-mail, so as to avoid both parents having similar or repetitive communications with professionals and individuals involved with the children.

7. Neither party shall voice opposition or disagreement with the conduct or decisions of the other when attending these events; such comments should be brought forward in a process similar to that used for decision-making described above.

8. Each party shall be responsible for making day-to-day decisions for routine emergency medical care while the children are in his/her care, and shall keep the other party fully informed, by e-mail, of any minor illnesses, emergencies, treatments, medications administered or prescribed while the children are is in his/her care.

9. In the event of a serious illness, accident or other misfortune involving one of the children, the party then having the child in his/her care shall immediately and promptly notify the other party. During any period of serious illness and recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.

ACCESS

10. The applicant shall have access as follows:

a) During the six months following the release of this decision,

i) every second Friday from after school to Tuesday morning when school begins, commencing the first weekend after the issue of this decision; and

ii) on the evenings from after school until 8 p.m. of the Thursday after the Tuesday drop off, as well as the following Tuesday of the next week before the Friday pickup.

b) After the expiration of the six month period described above, the parents will agree on a shared parenting arrangement in accordance with an access schedule incorporating vacation days and other holidays. If agreement cannot be reached, or the respondent contemplates seeking an order to vary this interim order, a case conference may be arranged on an urgent basis.

c) The applicant is prohibited from consuming alcohol 24 hours before access with the children and during access with them, which probation applies to other persons who will be in the presence of the children when the applicant has access.

d) The respondent is prohibited from smoking marijuana. The applicant and respondent are required to ensure that no person smokes marijuana at any time in the presence of the children or in or near the home where the children will reside.

PICK-UP / DROP-OFF / TRANSPORTATION

11. All of the children's transitions between the parties’ care at school shall take place at the end of school and the start of school (or at 3:30 p.m. and 9:00 a.m. respectively if the children are not in school). When the children are not in school, the applicant shall be responsible for picking up the children at and returning them to the respondent’s residence at the commencement of and the end of her access visit unless otherwise agreed to the parties. Other individuals who are known to the children may only pick them up if necessary, provided the other party is advised in advance and has consented, which shall not be unreasonably withheld.

VACATIONS / HOLIDAYS

12. The applicant and respondent shall prepare an access schedule to share the school vacations and holidays, with appropriate make-up to regular access as required, as follows:

a) Christmas vacation.

b) Easter.

c) Summer vacation, not to exceed two weeks for either parent.

d) Thanksgiving weekend.

e) Every Father’s Day weekend (with the father) and every Mother’s Day weekend (with the mother).

f) The children’s birthdays.

g) All other holidays and special occasions, including but not limited to Victoria Day, Canada Day, the August Civic Holiday, and Halloween shall follow the schedule set out at paragraph 2.

13. There shall be no makeup time for missed visits.

14. If one or both of the children are sick, the access is to proceed unless the child is too sick to travel between the parties' homes.

15. Neither party may object to the other's plans with the children, but must respect each other's ability to care for the children appropriately.

16. Neither party will arrange activities for the children when the children are scheduled to be with the other parent without that parent's consent.

17. Both parties shall be at liberty to attend scheduled school events and extra-curricular activities whether or not they occur during their parenting time.

18. Both parties shall be at liberty to attend field trips and participate in classroom events when the children are in their care, and will not attend events if the children are in the care of the other party at that time.

19. There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take with them between the residences of their parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other parent.

TELEPHONE ACCESS

20. Each party shall be entitled to make one telephone call to the children on any day that the children are out of their care for a 24-hour period. The telephone call shall be made at 7:00 p.m. and may last up to ten minutes with each child.

21. Neither party shall go to the other's home except for the purpose of picking up the children, or on the consent of the other.

22. The children's health cards shall travel with the children between the parties' households for overnight access.

23. The children's school(s) will be advised to contact the respondent in the event of an illness, or other emergency at the school, unless otherwise agreed to by the parties. The parties shall provide the school(s) with their contact numbers for this purpose.

24. Both parties are to provide the other by e-mail with their current addresses and a phone number at which he/she can be reached at all times.

25. Both parties are to advise the other by e-mail if the children will be other than in applicant's home or respondent's home for more than one night, and to provide the details of where the children are, as well as a phone number.

COMMUNICATION

26. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child.

27. Neither party shall discuss with the children, or with another party in the presence of the children, the present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by one of the children.

28. Neither party shall leave out or make accessible to the children information or documents pertaining to any issue arising from the parties’ separation and divorce, including any material that pertains to the matters referred to in the preceding paragraph, and neither will permit the children access to their personal e-mail where communications regarding these matters are stored.

29. The parties shall communicate about the children by e-mail. The emails shall not be read by the children. Each party will respond promptly by return e-mail to the email of the other. The e-mails shall be, at all times, respectful, brief and businesslike. Criticisms should be avoided. Suggestions of alternative courses of action or solutions supported by explanations such as to invite rational discussion focused on the children’s best interests should be offered instead.

30. All emails between the parties regarding the children shall not be deleted nor shall they be forwarded to third parties without the other parent’s consent. Apart from communicating information concerning the children, the parties shall limit the use of e-mail to situations of emergency or reasonable necessity such as when dealing with decisions or other issues of significant concern to them relating to the children or child and spousal support.

31. The parties shall share all the documents pertaining to the children by scanning the document and then sending it to the other party by e-mail. The parents shall not rely on the children to transport documents between them.

32. Any discussions between the parties at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by e-mail.

COUNSELLING

33. The parties are encouraged to engage in a counselling program to improve their communication skills with each other regarding the parenting of the children.

34. The applicant is encouraged to take counselling in respect of the issues raised in the reasons accompanying this order.

PASSPORT/TRAVEL

35. Should a passport be required for the children, the parties shall cooperate with each other in providing the necessary information to make the application. The respondent shall keep the passports at his residence, and they will be made available to the applicant as required. Both parties shall provide necessary authorizations to allow the other party to travel outside the country with the children. A detailed itinerary, including travel locations, addresses and telephone numbers, is to be provided to the party not travelling with the children at least seven days prior to traveling to the United States and 21 days prior to traveling elsewhere outside of the country.