Superior Court of Justice - Ontario
COURT FILE: F2025/11 DATE: 2013-06-04
Elizabeth Anne Royston - Applicant – in person (saw duty counsel)
Benjamen Matthew Powell - Respondent – Kathryn Junger
(CHILDREN’S AID SOCIETY – Jacalyn Walters)
MOTION ENDORSEMENT
The Applicant mother says the parties never lived together.
The Respondent father says they lived together both before and after the birth of their daughter Grace on September 3, 2011. He says they separated in about February 2013.
The parties don’t agree on how much time 21-month-old Grace has spent with each of them since birth. Each claims to have been the primary caregiver. The Respondent says at the very least he was enjoying approximately equal time-sharing.
Each party now raises serious concerns about the other party, even though it is clear that for an extended period of time the parties were able to work together in a very loose and generous timesharing arrangement, without any court orders – and without restrictions.
The pace at which this file has proceeded [or failed to proceed] is telling:
On December 14, 2011 the Applicant filed an Application seeking, among other things, sole custody with no restrictions on the Respondent’s access. At the time she described the pattern of access as being one day during the week for three hours and one day during the weekend for six hours.
On January 17, 2012 the Respondent filed an Answer claiming joint custody or in the alternative access. His materials described a pattern of generous “access”. At the time he requested an increase to equal time-sharing which he said could be facilitated because his “continental shift” employment schedule means he works 14 days per month.
The parties went through the case management process in 2012. There were gaps in activity because the parties were getting along (there is a strong suggestion they periodically reconciled). Eventually the matter was adjourned to the timelines. On February 26, 2013 the Application was dismissed administratively because neither party was pursuing their claims with any diligence.
On April 2, 2013 the Respondent father brought a motion to set aside the dismissal order. His accompanying affidavit stated the parties had been attempting to work through the issues and negotiate a settlement, but there appeared to be recent complications precluding settlement. As a result the Respondent was asking for another settlement conference. The Applicant did not contest the Respondent’s materials and on April 12, 2013 Justice Mazza set aside the dismissal order and the trial coordinator was directed to set a trial date.
Soon afterward, the conflict between the parties heated up dramatically.
On May 30, 2013 the Respondent brought an emergency motion seeking custody or in the alternative joint custody and specified equal time-sharing. He also sought a police enforcement clause, and an order prohibiting the Respondent from removing the child from the City of Hamilton. He expressed concern that even though he had been enjoying equal time-sharing for at least several months, the Applicant was unilaterally trying to reduce his time and involvement in the child’s life. He also expressed worry that she might relocate Grace’s residence outside of Hamilton.
In his materials the Respondent expressed a number of concerns about the Applicant’s mental health, and her physically aggressive behaviour. He also alleged that she was deliberately attempting to reduce his involvement in the child’s life, even though the existing equal time-sharing arrangement had been working well.
The Applicant filed an affidavit expressing a number of concerns about the Respondent. By far the most serious was an allegation that for a period of time she had noticed the child returning from visits with redness in her vaginal area which she initially attributed to diaper rash. She said when the redness persisted following several visits, she feared it might be more than diaper rash. She was concerned enough that at one point she made an anonymous call to the Children’s Aid Society (“CAS”) asking for advice. On another occasion she took the child for examination at McMaster University Medical Center. She said she had to wait so long to see a doctor that by the time the child was examined the redness was gone.
The Applicant described an incident on May 19, 2013 which caused her to be so alarmed that she immediately suspended any further access by the Respondent. She said on that date the Respondent returned Grace at 7 p.m. following a weekend visit. When she changed her daughter’s diaper she said the child “grabbed her vagina and said ‘rub it, rub it’.” The Applicant said the child had diaper rash cream on the opening of her vagina.
The Applicant stated in her affidavit that on the next business day she contacted CAS. She said she denied access in accordance with CAS recommendations, while their investigation was underway. When the motion initially came before me on May 31, 2013 the Applicant expressed continuing concern about the possibility of child abuse. She said the CAS investigation was still pending. As a result I adjourned the matter briefly to June 4, 2013 with a request that CAS make its best efforts to produce at least some preliminary written information about the status of any investigation and whether the Society took any position regarding time-sharing.
The Applicant requested sole custody in her favor, arguing that the parties have very different views about raising Grace. She also said they cannot communicate and that the Respondent has at times bothered her with sexual advances.
The Respondent adamantly denied any sexual misconduct. He and his mother filed affidavits setting out that on the weekend before the allegation arose, the child had been with them for a visit. The paternal grandmother confirmed the Respondent’s explanation that the child had been experiencing some ongoing difficulties with a diaper rash, and on that weekend they were both present when the Respondent applied some penaten cream to treat the diaper rash.
When the motion returned on June 4, 2013 Jacqueline Walters, a solicitor with the Hamilton CAS provided the following verbal report: The Society has closed its file. There are no child protection concerns with either parent. Grace is a very happy child who was observed with both parents. Both homes are very appropriate. The Society contacted the child’s doctor and daycare who also expressed no child protection concerns with the family. The child is very happy in the care of either parent. The Society takes no position in relation to time-sharing.
After hearing the CAS summary, the Applicant abandoned any suggestion that the Respondent’s access needed to be restricted or supervised. However, she continued to refute the Respondent’s description that he had always been equally involved in the child’s life, or that she was attempting to significantly reduce his time. She proposed that the Respondent have access alternate weekends and one overnight weeknight per week in accordance with his employment schedule.
The Applicant works part-time on a variable schedule and has placed Grace in full-time daycare. She proposes that the child continue to attend daycare -- even on those days when the Respondent is off work. She says daycare has an important socializing role in their daughter’s life. She also says if Grace does not attend on a full-time basis she will lose her daycare subsidy.
The Respondent argued that the Applicant had acted in bad faith making an unfounded allegation of sexual impropriety to the Society, and continuing to use the “pending investigation” as an excuse to delay the resumption of access even after she knew [or could easily have ascertained] that CAS had concluded there were no concerns. His lawyer argued that the Respondent’s parenting skills are exemplary; he has extensive family support which is beneficial for the child; and his employment schedule allows him to spend a great deal of time with the child.
The Respondent denied the Applicant’s allegation that she has shown flexibility in modifying time-sharing to accommodate his employment schedule. He said there is no need for the child to spend so much time in daycare if the father is available. His lawyer noted that the Applicant had not provided any particulars as to the daycare center’s exact policy concerning how much time the child had to attend day care in order to continue to qualify for the subsidy.
There is merit in each party’s position. But as often happens, both parties overstated their case.
The Respondent father was excessively critical of the Applicant’s parenting skills and mental state. I believe he also somewhat exaggerated his historical time-sharing with the child, as part of his “maintain the status quo” argument. While he may – in the recent past – have had something close to equal time-sharing, for a significant period of time after the birth of the child he himself was characterizing his involvement as “access”. He was paying full guideline child support. He appeared to be quite content to allow the child to spend the majority of her time in the Applicant’s care, without concern for any of the mental health issues which the Respondent now raised.
As for the Applicant, it is unfortunate that having allowed an evolution of fairly generous time-sharing between the parties, at some point she decided for her own reasons that she wanted to reduce the Respondent’s involvement in Grace’s life. More troubling, she appeared predisposed to jump to the worst possible conclusions about an apparently straightforward diaper rash problem. There is absolutely nothing about the history of these parties which would have justified the Applicant’s prolonged accusation that the Respondent had been sexually inappropriate with his daughter.
Child abuse is horrific. Every parent should be cautious and vigilant.
But not every diaper rash amounts to child abuse. And not every father who applies penaten cream to an infant daughter is a child molester. These sorts of devastating allegations need to be very carefully thought out. The extent to which the Applicant jumped to dubious conclusions raises as many concerns about the Applicant as she intended to raise about the Respondent.
All of this could and should have been avoided. As stated, for an extended period the parties got along. More recently, they had legitimate disagreements about time-sharing. Those issues could easily have been resolved through calm and civilized discussion, perhaps assisted by child care professionals or mediation.
The Applicant and the Respondent are both good parents. Grace is well cared for with each of them. But – at least for the moment -- the trust between them is gone. And that leaves it up to the court to impose a temporary regime which will maximize the child’s involvement with each parent, despite any resistance or lingering hard feelings.
Temporary order:
a. The child Grace shall reside with the Respondent father up to a maximum of 50% of the time, with the exact scheduling to be determined based on the Respondent’s rotating “continental shift” employment schedule. More specifically, the child shall spend up to 7 out of 14 overnights with the Respondent, in a two week cycle. This shall include alternating weekends and either Monday-Tuesday or Wednesday-Thursday. However, even on those days the child shall stay overnight with the Applicant if the Respondent is starting a night shift (7 p.m. to 7 a.m.) or starting a day shift (7 a.m. to 7 p.m.) on his first day back to work. This schedule commences June 4, 2013 at 7:15 p.m.
b. The child shall reside with the Applicant the remaining time (ie, at least 7 out of 14 overnights in a two week cycle).
c. The Respondent shall provide the Applicant with his employment schedule and proposed exchange times at least 60 days in advance. Exchanges may be at either the Applicant’s residence or the daycare center, with transportation being the Respondent’s responsibility.
d. In the absence of any mutual agreement concerning vacations or special occasions, the time-sharing schedule shall continue as if the Respondent were on a regular employment cycle.
e. The parties may return this matter to my attention for any clarification or better specification of time-sharing details.
f. Both parties shall be entitled to communicate directly with all third party service providers and professionals. The child’s current medical and daycare service providers shall be maintained, with any changes requiring mutual agreement. Both parties shall be entitled to attend all meetings with third party service providers and health care professionals. The parties shall keep one another fully informed, in advance, of any non-emergency appointments. They shall notify one another immediately of any emergency situations.
g. The parties shall keep one another fully informed as to their respective addresses, telephone numbers, and contact information.
h. Neither party shall relocate the child’s ordinary residence outside of the City of Hamilton.
i. The parties shall exchange updated financial disclosure and financial statements within 14 days, and child support (based on this timesharing regime) may be returned to court by way of motion if the parties are unable to reach agreement. This issue should be returned to my attention if I am available, but given summer scheduling issues, I am not seized.
j. The parties may arrange for any other issue (including costs) to be returned to me on a regular motions list.
k. The main action is adjourned to the timelines, which are extended to November 1, 2013.
Right now the parties are still hurting. This recent flurry of affidavits in motions court has been very upsetting for both of them.
Hopefully, in the near future, they will realize that things were going better when they got along so well that they forgot about their court case and allowed it to be dismissed.
Although not part of the order, I am strongly recommending that the parties consider mediation or retaining a parenting co-ordinator.
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