Morey v. Morey, 2012 ONSC 6808

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: (Kingston) 494/11
DATE: 2012/11/29

RE: Morey v. Morey

BEFORE: The Honourable Mr. Justice John M. Johnston

COUNSEL:
Mark S. LaFrance, for Stephen Adam Morey

John F. Black, for Haley Allison Morey

ENDORSEMENT ON MOTION

1This is a ruling upon a motion commenced by the Applicant father, Mr. Morey seeking an order that his time with the child, Jacob Logan Morey (“Jacob”) born […], 2010 be expanded to include overnights during the week and weekends, to coincide with his work schedule. The Respondent mother, Ms. Morey, commenced a cross-motion seeking sole custody of Jacob, subject to continued supervised access to the father.

Background

2The parties dated for a year, broke up and got together again in February 2008, and married on September 5, 2009. The parties have one child, namely Jacob, the subject of this motion. Jacob is now two years of age. The parties separated five months after his birth on April 3, 2011. Ms. Morey left the relationship, she claims as a result of Mr. Morey’s anger and temper issues. Ms. Morey claims she was assaulted by her husband while she was four weeks pregnant and alleges he said at the time, “I don’t care about you or that fucking baby if you are (meaning if you are pregnant).” Ms. Morey claims she sustained a bruise to her left arm and leg/ankle as a result of the assault. Mr. Morey went to an anger management course while the parties were together for two to three months, then stopped. He says he discontinued the counseling because the counselor told him he need not attend further. No evidence was filed before me on the counseling or reason for discontinuance.

3In addition to the assault incident, Ms. Morey states there were other incidents where Mr. Morey lost his temper, punched a wall, raised his voice such that she has concerns for the safety of her child in his care without supervision. The police were never contacted as a result of the assault allegation. Neither party has a criminal record.

4Mr. Morey has exercised regular access to Jacob since April 2011, however, it has consistently been supervised. Mr. Morey states he did not consent to the need to supervision, but went along with it as there was an agreement for involvement of the Office of the Children’s Lawyer. Ms. Trish Crowe was appointed by the OCL to conduct an investigation and provide a report, which she did, dated March 16, 2012. A number of recommendations were made in the report, but little progress has been made on the issues of custody and access of Jacob.

5Ms. Morey lived with her parents for a period of time after the separation, and now lives in Kingston with Jacob and attends College. Mr. Morey lives in Verona with a new partner and her seven-year-old child. Mr. Morey is employed fulltime and works shifts on a five week rotation. Access has been supervised mostly by Ms. Morey’s mother, the maternal grandmother, at her residence and sometimes by Ms. Morey. Access has been generally one and a half to two hours per visit, two to three times per week, as follows:

Week 1 -- Monday, Wednesday and Thursday evenings for two hours each and Saturday, 9:45 a.m. to noon;

Week 2 -- Saturday for two hours;

Week 3 -- Same as Week 1;

Week 4 – Wednesday and Thursday two hours each;

Week 5 – Monday, Tuesday and Saturday for usually two hours each.

6There is significant animosity and distrust between the parties and Mr. Morey and the maternal grandmother. The paternal grandparents have not seen the child in a year. There is disagreement over the reason for the lack of contact. There have been no allegations that the paternal grandparents are unsuitable caregivers. Mr. Morey’s new partner and her daughter, Emily, do not have a relationship with Jacob.

7While Ms. Morey is at school, Jacob is with his maternal grandmother or in daycare. Daycare varies each week, but is usually one to two times per week.

Issues

81. What should the interim custodial/residency arrangement be for Jacob?

2. What time should Jacob spend with his father and should it be supervised?

Analysis

Primary Care

9Jacob has been in the care of his mother since his birth. Mother has been the primary care giver. The status quo clearly favours maintaining Jacob in the primary care of his mother. Jacob is two years of age, appears to be progressing well and thriving in his mother’s care. Father seeks an order of joint custody.

10There is an obvious power struggle between these two young parents, hopefully on the basis that they both want what is best for Jacob, but disagree on what that is. I decline to order custody at this stage, but order the status quo be maintained, namely Jacob shall be in the primary care of the Respondent (Ms. Morey). She shall be entitled to make the day-to-day care decisions for Jacob, provided she shall consult with Mr. Morey before making major decisions on his health, religious, education, daycare, residence or related issue. In the event of a disagreement on issues, after reasonable consultation, Ms. Morey shall make the decision. Obviously, if emergency decisions need to be made by Ms. Morey, she may do so and, thereafter, consult with Mr. Morey forthwith when practical. If the parties are unable to consult on parenting issues directly, they shall do so in a communications book exchanged between the parties with exchange of Jacob. Mr. Morey shall have the right to independently access information about Jacob from his service providers and caregivers, such as doctors and daycare. If necessary, Ms. Morey shall provide consents to allow the exchange of information.

Jacob’s time with his father

11Since the separation, Jacob’s time with his father has been supervised. Ms. Morey expresses concern about Mr. Morey’s anger issues and believes he may pose a threat to Jacob’s safety. Further, Ms. Morey has expressed concern about Jacob’s safety when in the unsupervised care of his father on the basis Mr. Morey is careless and inattentive. She cites examples including taking the child on the riding mower with insufficient safety gear, bathing, smoking in his presence and the child having bruises during access.

12The most significant issue when considering what the appropriate time Jacob should be with his father is the issue of physical abuse and the risk of harm to the child. Ms. Crowe indicates in her report that Mr. Morey must deal with the anger issue. To his credit, he has taken the parenting training recommended by Ms. Crowe, but not counseling directed towards anger issues. I recognize there is an issue of availability of such counseling in this area, but the recommendation is meritious. Ms. Morey was recommended to take a parenting course, Mr. Morey completed the course, but it ceased to be offered before Ms. Morey could enroll. In my view, it is vital that both parents take counseling and understand the significant impact their behaviours can have on Jacob as he develops. The law presumes and the case studies support that it is in a child’s best interests to have meaningful contact with both parents. This presumption is overcome in instances of abuse or serious risk of harm.

13Ms. Crowe recommended a course of action for these parents that would see gradual increase in contact between Jacob and his father and the parties to take counseling and recommended a review in six months. Those recommendations were in March and little progress has been made, except Mr. Morey has taken some of the counseling recommended and continued to exercise access albeit, supervised by the Respondent’s mother. He apparently declined additional offers of access in the presence of the Respondent. Under the circumstances and animosity, it is not surprising Mr. Morey declined further access with Ms. Morey present.

14The parents must understand that they cannot involve Jacob in future disputes, nor is he a chattel to be traded. The future contact between both parents and Jacob must be based upon his best interests. Jacob is still very young, just attaining the age of two. Two-year-olds require stability, safety and a loving environment. Studies tell us the harm that comes to a child exposed to violence, aggression and loud yelling behaviour.

15The allegations of abuse by the Applicant to the Respondent are disputed, although there was some acknowledgement to Ms. Crowe of an issue by father. He has made some gains in taking courses and raising his awareness of Jacob’s needs. Mr. Morey appears to be in a stable relationship and has the support of his new partner. Ms. Crowe does not have concern about Jacob exposed to the Applicant’s partner and child.

16It will be for a court at trial to decide the issues of alleged past violence and physical risk. In the interim, I am satisfied the risk can be managed with oversight. The existing supervision is not necessary and is overly restrictive and will limit the relationship of Jacob with his father.

17Contact to Jacob can be overseen by his partner, Kim Lees, or his parents. There is no reason that access should not occur at his home in Verona, or out in public, if he desires. Time spent between father and son needs to progress, but it must be done in a fashion that meets Jacob’s needs as a two-year-old, who has not spent an overnight or, in fact, any time alone with his father without his mother or maternal grandmother. The parties now agree to requesting the re-involvement of the OCL and Ms. Crowe; it is unfortunate mother did not agree until now.

18This order for time to be spent with father by Jacob is subject to review after the OCL has again reviewed the case, or in the event they decline to become re-involved; after at least four months of this new order. The Order is based upon consideration of Jacob’s best interests and his condition, means, and needs including: his young age, the status quo, the allegation of physical abuse by father upon mother in the past, the schedules of the parties, the fact Jacob appears well adjusted.

19When pressed to do so, both counsel provided the court with concrete proposals of time sharing between father and child. Both sides agree it must increase; mother suggests increasing visits to three hours from two and an overnight in weeks one and three, provided it is supervised at least in the first month by her mother and, thereafter, by a responsible third party. Father seeks daytime contact in Week 1, Wednesday afternoon and day visit on Sunday; in Week 2, two overnights Friday and Saturday; in Week 3, same as Week 1; and Week 4, one overnight, Wednesday to Thursday at 6:00 p.m; Week 5, two overnights, Friday and Saturday to Sunday at 6:00 p.m.

20I am of the view that access should move to include overnights, but this must occur gradually. When overnights do begin, the parenting time overnight needs to be restricted from what it might otherwise be if the child were older. The focus of parenting time with son and father at this time ought to be upon establishing a relationship and allowing Jacob to become comfortable with father’s routine and home. I am mindful that my order in the short run has the effect of not allowing the mother a full weekend with Jacob. While it is normally advisable for the parents to have a weekend alone on a regular basis, the circumstances are such that it is in Jacob’s best interests to be with his father, to begin to build bonds. Balanced against the need to foster the father/son relationship is the need for Jacob to have bonding time with his mother and to know that he will spend most nights sleeping in his own bed, for now. Overnight access shall increase as time goes on and it is in Jacob’s best interests.

Order to go:

21Jacob shall be in the interim care of his father on the following times, however the parties are free to agree to other or increased time:

Friday, November 30, 2012 : Jacob shall be with his father for three hours. If the parties cannot agree on times, it shall be 9:00 a.m. to 12:00 noon; Saturday, December 1, three hours, again 9:00 a.m. to 12:00 noon if no agreement; Sunday, December 2, three hours, same hours.

Friday December 7, 2012 ; Saturday, December 8, 2012, four hours each day, Sunday December 9, three hours. In the event no agreement on time can be reached, the time sharing shall commence at 9:00 a.m.;

Friday December 14, 2012: Saturday December 15; four hours each day, Sunday December 16, 2012, three hours. In the event no agreement on time can be reached, the time sharing shall commence at 9:00 a.m.;

Friday December 21, 2012: Saturday, December 22 and Sunday, December 23, five hours on Friday, five hours on Saturday, and three hours on Sunday. In the event no agreement on time can be reached, the time sharing shall commence at 9:00 a.m.

Christmas Day, December 25, 2012: Noon to 7 p.m. (at father’s discretion, he shall be entitled to have Jacob in his care December 26 th , same times; instead of December 25, he shall notify Mother of his election in writing by email or in the communication book within seven days of this decision).

Wednesday, January 2, 2012 for four hours; Friday, January 4, 2012, four hours and Saturday January 5 th , 2012, four hours. In the event no agreement on time can be reached, the time sharing shall commence at 9:00 a.m.

22Thereafter, the schedule for Jacob to be in the care of his father shall be as follows:

Week 1: commencing week of January 7, 2013:

Friday, Saturday and Sunday: five hours each visit.

In the event no agreement on time can be reached, the time sharing shall

commence at 9:00 a.m.;

Week 2: Thursday, four hours. In the event there is no agreement, access shall

commence at 11:00 a.m.

Friday, five hours. In the event no agreement on time can be reached, the

time sharing shall commence at noon;

Week 3: Same as Week 1;

Week 4: Overnight Wednesday, noon, to Thursday at 6:00 p.m.

Week 5: Same as Weeks 1 and 3.

23While Jacob is in Father’s care, either Mr. Morey’s spouse, Ms. Lee, or one of his parents are to be present in the house. He may be with Jacob shopping or in public without another party present. During times Jacob is with his father, there shall be no smoking in his presence or inside the house, no physical discipline of the child, no display of physical aggression to another person in Jacob’s presence, no yelling in his presence. Neither party shall at any time undermine the other in Jacob’s presence or speak negatively of the other to Jacob or in his presence. The child’s health card shall accompany him on all visits.

24Both parties are recommended to follow the counseling recommendation of the OCL report.

25Transportation of Jacob is to be shared equally by the parties. If they cannot agree, father shall pick up the child at the commencement of parenting time from the mother’s residence or paternal grandmother’s residence (at mother’s discretion, provided she gives reasonable advance notice of the location). At the conclusion of father’s parenting time, Mother shall pick up the child from Father’s residence. The parties shall use a communication book that shall accompany the child at drop off times for the purpose of issues relating to parenting only.

26If the father is not available to be with Jacob on any date provided herein, Jacob shall remain in Mother’s care and father shall provide reasonable advance notice of his unavailability.

27I am urged by Mother’s counsel to apply the status quo pending the further report of the OCL. I am of the view that the circumstances of this case and best interests of the child require a variation of the parenting arrangement. It is not in the child’s best interest to curtail access and require the restricted supervision of access until trial.

28I decline to make an Order at this time for retroactive Section 7 claims related to daycare, as further financial information is required from both parties.

29In the event the parties cannot agree on costs, I may be addressed in writing, limited to two pages, in addition to bill of costs; the Applicant to serve and file their submissions within three weeks; reply from the Respondent within three weeks.