COURT FILE AND PARTIES

COURT FILE NO.: F1252/12
DATE: December 19, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Touk Phommasone, applicant

AND:
Sareth Tep, respondent

BEFORE: MITROW J.

COUNSEL:
Iain Sneddon for the applicant
Robert A Haas for the respondent

HEARD: October 10, 12, 2012

ENDORSEMENT

INTRODUCTION

[1] The issue before the court is a highly contested motion for interim custody.

[2] The applicant, Touk Phommasone (“Touk”), is the mother, and the respondent, Sareth Tep (“Sareth”), is the father of Alysha Sanika Phommasone (“Alysha”), born July 26, 2006. The parties are not married to each other.

[3] Pursuant to the interim interim order of Vogelsang J. dated August 22, 2012, Alysha was ordered to be returned immediately to the father, Sareth. Touk was awarded access on alternate weekends (Friday 3:30 p.m. to Sunday 5:00 p.m.) and also “such other periods as the parties may agree”. Sareth was awarded custody.

[4] On the motion before me, the position of each party was as follows:

a) Touk seeks interim custody, with access to father alternate weekends and Wednesdays overnight each week;

b) Sareth seeks interim custody, with access to mother alternate weekends and during the week, after school on alternate days, with Alysha to be at the home of Touk’s parents to visit until supper time, after which Alysha would return to Sareth’s residence.

[5] Counsel advised that the winter school break is to be shared and counsel shall work out the schedule. However, my order includes the winter break schedule, in case that issue was not resolved.

[6] The interim interim order of Vogelsang, J. must be viewed within the context of the circumstances in which it was made, which said circumstances include the following:

a) It was pursuant to an urgent motion before a case conference;

b) Touk was represented by duty counsel according to the preamble contained in the order. Touk had filed one brief handwritten affidavit. Sareth was represented by Mr. Haas and filed four affidavits (I am not including the mandatory form 35.1 affidavits in these totals);

c) The evidence before Vogelsang J. was that Touk had withheld Alysha from Sareth for several weeks because of alleged concerns Touk had about Alysha not being returned on time after seeing her father. In making his order, Vogelsang J. also set September 10, 2012 as the case conference date by which time Touk had retained Mr. Sneddon.

[7] By the time the motions were argued before me, a total of 24 affidavits had been filed. Counsel also prepared helpful written submissions.

[8] The affidavit material filed on behalf of each party conflicts on many material issues including the status quo. No oral questioning was held.

[9] Notwithstanding the conflicting evidence, it is possible from the material filed to discern some pattern of each party’s involvement with the child both before and after separation.

[10] Given the conflicting evidence as to status quo, the proper approach in this case is first to determine to the extent possible, each parent’s involvement in the child’s care, and second, to apply the criteria in the Children's Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) in crafting an order that meets Alysha’s best interests.

[11] For reasons set out below, I find that the substantial additional evidence does not justify the continuation of interim custody in favour of Sareth, and the existing order should be replaced by an order for interim joint custody with Alysha’s principal place of residence to be at Touk’s parents’ residence (where Touk says she still resides) and with a schedule where each parent has substantial time with Alysha.

CARE OF THE CHILD PRIOR TO SEPARATION

[12] Both parties agree they separated in October 2011. Sareth claims that the parties began living together in 2006, then they “lived back and forth” in the homes of their parents at 74 Bellrock Crescent in London (maternal grandparents) and at 41-311 Vesta Road (paternal grandparents).

[13] Sareth deposes that starting in 2009 until the date of separation in October 2011, the parties lived together with Alysha in a rented apartment on Huron Street.

[14] Touk’s version is somewhat different. She disputes that the parties ever actually lived together at any time. Her evidence can be capsulized as follows:

a) Touk and Alysha have always lived with her parents (together with other family members) at Bellrock;

b) Although Touk and Sareth did not reside together, they did spend a lot of time at each other’s residences because they were a close couple and they shared a child;

c) Touk worked a steady nightshift (11:00 p.m. to 7:00 a.m.) and Sareth worked a steady afternoon shift (3:00 p.m. to 11:00 p.m.). It is agreed that starting summer 2012, Sareth began working a steady 11:00 p.m. to 7:00 a.m. nightshift;

d) Touk’s older daughter, Hangela (by a different father), also resided with Touk and her parents and other family members at Bellrock. Hangela attends Chippewa Public School (close to Touk’s parents’ Bellrock residence) and Alysha also attends this school. (Alysha is in grade one now);

e) There were many affidavits filed on behalf of Sareth purporting to corroborate that he and Touk lived at the apartment on Huron Street with Alysha. Touk admits a number of the allegations in those affidavits (for example, regarding her and Alysha’s personal belongings being at the apartment, and that Touk had a key to the apartment). However, Touk deposes that most of the time spent at the apartment was during weekends. She is firm in her evidence that the usual routine was that after work during the week she came “home” to Bellrock, would see Alysha and Hangela in the morning and then she would sleep during the day while the children were in school, and if not in school, her parents, sister or other family members would look after the children;

f) Although Touk admits she did occasionally spend time at the Huron Street apartment during the week, it was not that often. She also claims that her and Sareth’s work schedules were such that they had minimal contact during the week - by the time she would get up, Sareth had already gone to work. Touk does agree there were times during the week Sareth would pick up Alysha and care for her.

[15] Sareth’s sister and Touk’s sisters filed affidavits each corroborating their respective sibling’s version of events. Yon Tep, Sareth’s sister, deposed that during weekends (when the parties lived at the apartment), Hangela would come over and spend “the whole weekend with us”.

[16] Mr. Sneddon submits that much of Sareth’s corroborating affidavit material contains statements made by deponents as to certain facts, but without the deponent explaining how he or she came to that factual conclusion. There is some merit to that submission. Some examples are:

a) Yon Tep (tab 6) states that Touk and Sareth resided together at the apartment between 2009 and October 2011. How does she personally know that?

b) William Bulmer (tab 10), who lived in the unit next door to Sareth and Touk, deposes that Sareth, Touk and Alysha lived there from 2009 to “late” in 2011. His brief affidavit is silent on how he comes to this conclusion. He does not say anything about when he saw Touk and Alysha – was it during the week or on weekends?

c) Similarly, the affidavits of Voeun Ngeth and Nawee Cheo (tabs 23 and 24), who are common law spouses, confirm they lived in the same apartment building and they were constantly invited by Touk for meals or snacks. However, it is not clear whether that was on weekends or during the week. Nawee Cheo says Touk “almost always slept there”. She does not say how she knows this. I do agree that Nawee Cheo states they visited Touk while Sareth was at work “about three times a week” – however, Touk’s evidence conflicts with that evidence. Interestingly both Nawee Cheo and Voeun Ngeth state they “visited down at Touk and Sareth’s apartment … almost every day”. This choice of exactly the same wording is suspicious. Also unclear is who they actually saw “every day” when they were “down” at the apartment. Also Touk’s evidence contradicts any suggestion that she was at the apartment often during the week.

d) Shaun Karns’ evidence (tab 25) that he visited at the apartment “frequently” and had meals there and “Touk cooked”, does not clarify whether he was there on weekdays or during the weekend.

e) Michelle Brown (tab 28) describes herself as a “friend” of Sareth’s, having grown up together and that she “became Touk’s friend”, although Ms. Brown later has some uncomplimentary comments about Touk and her parenting ability. Ms. Brown claims to have visited Touk and Sareth “at least one hundred times” at the apartment and that she was constantly invited there for meals. As with other witnesses, she does not say whether these visits and meals were on weekends or during the week. However, Ms. Brown does say that Touk invited her to visit at the apartment “occasionally” when Sareth was at work. This evidence is somewhat corroborative of Touk’s evidence as to when she was at the apartment during the week.

[17] It is impossible on the conflicting affidavit material to make a finding at this interim stage that Touk and Sareth “resided” at the apartment with Alysha. I do find, however, that Touk and Sareth did spend a substantial amount of time at the apartment together, at least on weekends. This would at times include Alysha. It is also clear and I find that both Sareth and Touk’s parents and their extended families actively participated in Alysha’s life, including her care, prior to the date of separation.

SEPARATION AND POST SEPARATION

[18] As indicated above, the relationship between the parties ended in October 2011. At that time, Sareth learned about Touk’s relationship with Mr. Ricardo Gomes.

[19] In relation to Alysha’s care post separation, Sareth’s evidence is that Alysha continued to live with him at the apartment, until about April 2012, when he and Alysha “returned” to live with his parents. Sareth’s sister, in various affidavits concurs with this, but also, confusingly contradicts herself (see para. 7, tab 7) when she deposes that since Sareth’s separation in October 2011, Sareth has lived with “me and my parents” on Vesta Road and that “Alysha has lived with us since approximately April 2012 when they returned to live with us”. This portion of the affidavit suggests Sareth lived alone at his parents’ residence from October 2011, and then Alysha joined them in April 2012.

[20] There is substantial, conflicted evidence on where Alysha had her primary residence after October 2011 (and also before separation).

[21] Touk submits that Alysha remained primarily resident at Bellrock. In the mornings, usually Sareth or someone from his family would take Alysha to school and on those school days, Touk or her family members would pick up Alysha from school. Sareth did not dispute that Touk or her family picked up Alysha from school usually, but he claimed Alysha would return to his home in the evenings to be looked after by his family (as he was then working 3:00 p.m. to 11:00 p.m.). This is disputed by Touk and her sisters, Tick and Poumpouy, who both also live at their parents’ home on Bellrock, and who both depose that Alysha always lived there.

[22] Touk points to records, including school records and her tax returns, that Alysha’s residence and Touk’s residence have always been on Bellrock. Touk points to two affidavits from Alysha’s family doctor (who is also Touk’s family doctor) that Touk is the parent who brought Alysha for appointments and that the doctor’s records show Bellrock as Alysha’s and Touk’s residential address. Sareth disagrees with the doctor’s evidence and claims he did attend with Alysha for doctor visits.

[23] The theory of Sareth’s case was that these address records were created from information supplied by Touk, and that Touk used the Bellrock address, while living with Sareth at the apartment because Touk wanted to keep Alysha at Chippewa Public School. The Bellrock residence was within the Chippewa School district area, unlike the apartment and Sareth’s parents’ Vesta Road residence.

[24] Further, Sareth argues that Touk is living with Mr. Gomes, and that she has taken her belongings there. This is corroborated, according to Sareth, by Ms. Brown who deposes that at the time of separation she helped Touk pack and helped transport “about 13 green garbage bags” of belongings to Mr. Gomes’ residence on Trafalgar Street where he lives with his 15 year old son.

[25] Touk and Mr. Gomes both depose that Touk is pregnant with his child and that they plan to move in together when they buy a house. They both state they do not live together, although it is admitted (see for example Mr. Gomes affidavit at tab 19) that “many” times Touk and her daughters would spend the weekend at Mr. Gomes’ residence. Mr. Gomes states also that “on occasion” he did sleep at Touk’s house. The affidavit of Mr. Gomes describes a good relationship with Hangela and Alysha. Mr. Gomes and Touk have the same employer.

[26] Mr. Haas has this interesting metaphor to describe Touk’s evidence – he submits Touk has “… created the façade of she and Alysha residing at Bellrock Crescent. Like the streetscape on a film set, nothing lies behind this representation”. Mr. Sneddon dismisses the metaphor as “interesting imagery” and argues there is “overwhelming evidence” to support that Alysha resided at Bellrock all her life.

DISCUSSION

[27] Each party criticizes the affidavits of the other. Sareth deposes that the record of completion of reading assignments for grade one starting September 2011 shows Alysha lived with him because he signed almost all of them proving he was the one who was with Alysha doing her homework. Touk agrees that although Sareth happened to sign the form most of the time, she too did a lot of the reading assignments.

[28] There are numerous examples where each party tries to poke holes in the other’s evidence to convince the court he or she is telling the truth – and that the other party is a liar. No purpose is served to meticulously discuss this conflicting evidence where no cross-examinations have been conducted.

[29] I disagree with Mr. Haas that his metaphor is an apt finding to be made, considering the substantially conflicting material at this early stage in the proceeding and the lack of cross-examinations.

[30] I make the following findings:

a) Post-separation, each party and his or her extended family continued to have regular contact and care of Alysha. I find this was also the case prior to separation.

b) Both parties have agreed that Alysha should continue to go to Chippewa Public School where her sister Hangela also goes. The only evidence as to the school boundary issue was Touk’s evidence that Alysha could not attend Chippewa if she lived with Sareth. However, no explanation was offered how Alysha was able to still attend there given the order of Vogelsang J. placing Alysha with Sareth.

c) It is not possible to find on the conflicting evidence that Touk and Mr. Gomes live together. I do find that they frequently spend weekends together with Touk’s children at Mr. Gomes’ residence. Similar to the issues regarding the apartment on Huron Street, in some of the affidavits filed on behalf of Sareth, the deponents merely state that Touk and Mr. Gomes are cohabiting without laying a foundation as to the facts relied on.

d) In his zeal to prove that Mr. Gomes and Touk were cohabiting, Sareth deposed (paragraph 33, tab 26) that his friend “Scott Miller,” who lives across the road from Mr. Gomes, told Sareth that Touk has lived with Mr. Gomes “… coming and going regularly and staying over almost every night – since October of 2011.” Sareth incorrectly referred to his friend as “Scott Miller” – his correct name is Scott Milne. Touk then obtained an affidavit from Mr. Milne where he confirms he is friends with Sareth but that Sareth’s evidence about what Mr. Milne allegedly told Sareth was false and that Mr. Milne did not advise Sareth of anything other than telling Sareth that he knew nothing and did not want to be involved. Mr. Milne added that he does not know whether Mr. Gomes is living with anyone or not.

e) Mr. Milne would have no motive to tailor his evidence against Sareth – he is a friend of Sareth. I prefer Mr. Milne’s evidence. This leads to the inference that Sareth may be prone to exaggerations, and hence some caution needs to be exercised in accepting his evidence.

THE FACTORS IN SECTION 24 OF THE CHILREN’S LAW REFORM ACT

[31] The court is requested to consider the best interests of a child in accordance with subsections 24(2), (3) and (4) of the Children's Law Reform Act, R.S.O. 1990, c. C. 12. Subsection 24(2) states as follows:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[32] In relation to subsection 24(2)(a), I find that both Touk and Sareth have strong emotional ties to Alysha. Each set of grandparents, and other family members who live with each party, clearly have had an ongoing relationship with Alysha and have been involved in Alysha’s care and upbringing. Also, there are the ties between Alysha and her half-sister Hangela.

[33] There was no specific evidence regarding Alysha’s views and preferences (subsection 24(2)(b)) given her young age. I find that Alysha has lived in a stable environment, whether in Touk’s or Sareth’s home (subsection 24(2)(c)) and that this has been the case since her birth. I do not accept the veiled and somewhat murky allegations from Sareth and some of his witnesses suggesting that Touk is a bad mother or a “party girl.”

[34] Regarding subsection 24(2)(d), both Touk and Sareth are loving and devoted parents to Alysha. They have each been able to meet Alysha’s needs, with the help and assistance, when required, from their respective families.

[35] In assessing the plan proposed by each party (subsection 24(2)(e)), both parties recognize the importance of maintaining Alysha’s relationship with the other parent and his or her extended family. I do recognize that Touk faltered this past summer when she withheld Alysha from Sareth. However, against the totality of the evidence, I find that Touk has otherwise acted appropriately and that this incident was an isolated occurrence of poor judgment.

[36] I find that the plan proposed by Touk better meets Alysha’s best interests and that Alysha should be primarily resident with Touk at Bellrock. This allows Alysha and Hangela to spend more time together. It removes any potential issue arising regarding school boundary problems (although I wish to make clear that on the evidence, the issue of Alysha continuing to attend at Chippewa, while living with her father, was never canvassed in any detail and, importantly, there was no evidence on this point from school authorities).

[37] Regarding subsections 24(2)(f), (g) and (h), both Sareth’s and Touk’s current family units are stable now and have been so in the past. Regarding the prospect of Touk moving in with Mr. Gomes, there was no specific timeframe in the evidence as to when they would be buying a house together. However, any change in Alysha’s principal residence from Bellrock will require court approval. Touk and Sareth each have a good ability to parent Alysha and to meet her needs.

[38] It is in Alysha’s best interests for there to be interim joint custody. The evidence does not suggest that Touk and Sareth are unable to make joint decisions. I have included a requirement for both parties to attend a program at Merrymount Children’s Centre to assist in communication between the parties.

[39] In relation to violence (subsection 24(4)), there is no credible evidence on the motion material as to violence between the parties, or towards Alysha or other children, or in the parties’ respective homes.

ORDER

[40] For reasons set out above, I make the following interim order:

1. Touk and Sareth shall have joint custody of Alysha.

2. Alysha shall spend the following time (“the regular schedule”) with each party:

a) alternate weekends with Sareth from after school Friday until school time on Monday, to be extended to school time Tuesday if Monday is a non-school day;

b) for the week immediately following Alysha’s weekend with Sareth, Alysha shall be with Sareth on Tuesday from after school to 8:00 p.m. and on Thursday from after school overnight to school time Friday morning;

c) for the week immediately following Alysha’s weekend with Touk, Alysha shall be with Sareth on Tuesday from after school to school time Wednesday morning and Thursday from after school to 8:00 p.m.;

d) Alysha shall be with Touk at all other times;

3. Unless the parties have agreed otherwise, the following is the schedule for 2012 Christmas break for Alysha to be with the parties:

a) with Touk from after school Friday December 21, 2012 to 1:00 p.m. December 25, 2012;

b) with Sareth from 1:00 p.m. December 25, 2012 to 1:00 p.m. Saturday, December 29, 2012;

c) with Touk from 1:00 p.m. December 29, 2012 to 1:00 p.m. Wednesday, January 2, 2013;

d) with Sareth from 1:00 p.m. January 2, 2013 to school time Monday, January 7, 2013.

4. The regular schedule applies only during the school year. Provisions for Christmas holidays and March Break supersede the regular schedule.

5. For March Break 2013, unless the parties agree otherwise, Alysha shall spend equal time with each party, with the exchange to occur at 1:00 p.m. Wednesday.

6. During the 2013 school summer vacation, Alysha shall spend equal time with each party, with the schedule to be agreed to by the parties and, failing agreement, Alysha shall spend alternating weeks with each party, with the exchange time to be 10:00 a.m. Saturday and, during each week, Alysha shall be with the other party mid-week from 10:00 a.m. Tuesday to 10:00 a.m. Wednesday.

7. Alysha’s primary place of residence shall be at 74 Bellrock Crescent, London, Ontario and her primary residence shall not be changed from that location except on order of the court.

8. Alysha shall continue to attend Chippewa Public School unless the court orders otherwise.

9. Within 30 days, Sareth and Touk shall each register for a parenting program at Merrymount Children’s Centre and the program shall include information to assist the parties in communicating with each other in relation to Alysha. Each party shall complete the program by April 30, 2013 and shall file proof of attendance in the continuing record.

10. If the parties cannot agree on costs of the motions, then within 30 days, counsel shall contact the trial coordinator to arrange an appointment to argue costs, and the appointment may be set at 9:30 a.m.

11. If any issue arises in implementing this order, counsel may arrange a time from the trial coordinator to speak to the matter.

12. Any further motions relating to interim access or interim custody, or any matter incidental to custody or access, shall be brought before me unless the matter is urgent and the trial coordinator is unable to schedule the motion before me in sufficient time to deal with the urgency.

13. This order is made pursuant to the Children's Law Reform Act.

“Justice Victor Mitrow”
Justice Victor Mitrow

Released: December 19, 2012