ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0015
DATE: 2013-01-25
B E T W E E N:
F.E.B. and P.J.B.
Richard Culpeper, for the Applicants
Applicants
- and -
J.M.M.C. and J.W.D.,
Meghan Y. de Souza, for the Respondent, J.M.M.C.
The respondent J.W.D. unrepresented but assisted by duty counsel, Kelly Labine
Respondents
HEARD: January 24, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] On Friday, January 18, 2013, on a motion without notice, Justice Wright granted an order that the applicants, F.E.B. and P.J.B., have interim, interim custody of the child, H.B.D., born […], 2011, to remain in effect until January 24, 2013, at 4:30 pm or further order of the court. The applicants are the paternal grandparents of the child. They are represented by Mr. Culpeper.
[2] On the afternoon of January 18, 2103, the respondent, J.M.M.C., who is the mother of the child, appeared without representation before Justice Herald, seeking to set aside the order of Justice Wright. Justice Herald refused the request to set aside the order on the basis that there was no urgency to do so and that the matter could be dealt with at motions court six days later on January 24, 2013.
[3] Ms. J.M.M.C. retained the services of Ms. de Souza of the Family Law Office. Ms. J.M.M.C. has brought a motion for the return of the child.
[4] Ms. J.M.M.C. and the father of the child, the respondent, J.W.D., are separated. Mr. J.W.D. has not filed any material with respect to either of the two motions.
[5] The matter came before me on January 24, 2013. The applicants and Ms. J.M.M.C. filed affidavits that obviously had to be prepared quickly given the exigencies of the situation. There was urgency to the initial appearance before Justice Wright. Subsequent to that appearance, there was little time available to Ms. J.M.M.C. to retain counsel and get materials together. The applicants then had to respond quickly. Affidavits were exchanged as late as the morning of January 24, 2013.
[6] On the return of the motion before me, Mr. J.W.D. appeared through duty counsel and addressed the court directly. He had not yet retained counsel nor filed responding material. Duty counsel initially advised that Mr. J.W.D. was content that the child either remain with the applicants or be returned to Ms. J.M.M.C. However, during the argument of the motion, duty counsel advised that Mr. J.W.D.’s position had changed and that he supported the return of the child to Ms. J.M.M.C..
[7] The event which gave rise to the ex parte motion before Justice Wright on January 18, 2013, was an apparent suicide attempt by Ms. J.M.M.C. on the evening of January 17, 2013.
[8] The facts surrounding this event and what followed are not described in any detail in the evidence before me. I set out paragraphs 18 and 19 of Ms. J.M.M.C.’s affidavit sworn January 21, 2013, which contain the only description of what happened the night of January 17, 2013, and the next morning.
“18. The evening of January 17, 2013, I was very upset. I had learned that F.E.B. was threatening to try to take H.B.D. away from me. J.W.D. does not help me and spends most of his time with his friends drinking, and when he is around me, he is hurting me, physically or emotionally. Our relationship is over and when that happened, he had said many very hurtful things to me. CAS had been in contact with me as a result of our relationship. I have continued with my schooling and trying to make the best home possible for H.B.D.. I had allowed H.B.D. to stay with my brother for the night, on a visit. I was alone, and feeling very overwhelmed. Never before in my life had I contemplated suicide, and I have not since. It was an act of desperation and despair, and a completely isolated event. I have since established further supports, and I am attending meetings. My biggest goal is to raise my daughter, to make sure she is happy, healthy and safe.
- I attended emergency at the Thunder Bay hospital the morning of January 18, 2013. I was discharged that same morning. There were no mental health concerns flagged by the hospital and I was not required to have a psychological referral.”
[9] Although the attempt at suicide was the event which triggered these proceedings, the applicants, through their solicitor, had been requesting access and had recently written to Ms. J.M.M.C. advising that legal action would follow if negotiations were not successful. Ms. J.M.M.C. advises that she did not read the letter until these proceedings were started. The applicants had had no access to the child since June 2012. They had previously had frequent access during the period August 2011 to June 2012, but no access in the first seven months following the child’s birth.
[10] The affidavits which have been exchanged speak to a highly conflictual relationship between the applicants and Ms. J.M.M.C., and between the applicants and their son, Mr. J.W.D. The affidavits present completely different versions of events. The credibility of the applicants is attacked by Ms. J.M.M.C., and the credibility of Ms. J.M.M.C., and the character of Mr. J.W.D. is attacked by the applicants.
[11] As has been observed many times by judges in family law motions, where the parties disagree entirely on the truth of alleged material facts, it is virtually impossible, and rarely advisable, to make findings of credibility on conflicting affidavits. Credibility findings in such situations should be made only after hearing viva voce evidence, with cross-examinations and a more complete evidentiary record.
[12] Compounding the problem in this case is the fact that the affidavits contain hearsay and sometimes double and triple hearsay. The affidavits are also unclear as to when many of the alleged events are supposed to have occurred. It appears that most of the respective criticisms in the affidavits relate to events prior to June 2012, when the applicants last had access.
[13] However, what is known with some certainty is that on the evening of January 17, 2013, Ms. J.M.M.C., who had de facto custody of her two year old child, was in a situation of such despair and emotional hurt that she attempted suicide. She deposes that the child was not with her at the time, but rather with her brother. The affidavit of the applicants, which was before Justice Wright on January 18, 2013, implies otherwise:
“The Respondent J.M.M.C. attempted suicide on January 18, 2013, at which time the child was taken by her brother D.C., who is in his mid-twenties.”
[14] On the hearing of the motion on January 24, 2013, I advised the parties that because of the completely contradicting allegations in the affidavits, and because the affidavits, especially from Ms. J.M.M.C., were lacking in detail about the suicide attempt and its aftermath, it would be ill-advised for me to make an interim order on the basis of the affidavits alone and that there should be a short adjournment to permit the parties to better prepare their respective cases and to then proceed on the basis of viva voce evidence, supplementing the existing affidavits, with further affidavits to perhaps be filed on less controversial issues such, for example, as prior Children’s Aid Society involvement, Children’s Aid Society records, Faye Peterson Transition House involvement, hospital and medical records, to mention only a few.
[15] Because of the urgency of the matter, where a two year old child has been separated from her primary caregiver, and in the context of highly contested allegations of neglect and abuse, I arranged for a hearing of the motion to take place quickly , commencing at 10:00 am on Monday, February 4, 2013. Two and one half days have been set aside. Counsel have advised that they are available.
[16] A decision has to be made as to what should happen over the next eight days before the matter is heard on February 4, 2013. In my view, there are three significant factors that have to be considered in that regard.
[17] Firstly, the pivotal issue is the suicide attempt. Mr. Culpeper acknowledged in his submissions that the ex parte motion was made only after the applicants learned of the suicide attempt. As much as one’s heart may go out to this young 20 year old mother, the suicide attempt raises concerns about Ms. J.M.M.C.’s ability to adequately care for her young child during a time when she has been so overwhelmed by events in her life that she saw suicide as an answer. At two years of age, the child is totally dependent on her caregiver. The court’s responsibility is to make a decision that is based solely on the best interests of the child. Those best interests I add, however, include maintaining in the best way practicable the bond between the child and her mother, a mother who has been the child’s primary caregiver for her entire life.
[18] Secondly, this decision is for a relatively short period of time. It will be just over one week before the matter is heard. The order to be made is interim, interim only, pending further and better evidence that may result in quite a different result.
[19] Which leads to the third factor. The parties will have an opportunity, albeit a short one, over the next week to marshal evidence to assist the court to make a more informed decision. In particular, Ms. J.M.M.C., who in the context of already extremely difficult personal difficulties has had little time to respond to the removal of her child, will have a better opportunity to present evidence, especially from third parties, as to what supports are in place, what her present emotional state is, what her living arrangements will be, whether she is still attending school, whether the child continues to be in daycare as apparently she once was, details of the past and perhaps future involvement of the Children’s Aid Society, records from the hospital as the result of her admission in the morning of January 18, 2013, opinions to doctors. In this regard I note Ms. J.M.M.C.’s affidavit refers to the attempt as a “completely isolated event” and that she has “since established further support,” is “attending meetings,” and that “there were no mental health concerns flagged by the hospital” and that she “was not required to have a psychological referral.” All this may be expanded on. The court requires more than her assertion that, “I do not have any thoughts of hurting myself as having my daughter and family close has kept me strong” and that “When I need help, my Dad and other siblings are just a telephone call away.” As true as those assertions may be, they did not prevent the events of January 17, 2013.
[20] Ms. J.M.M.C. had not seen nor spoken to her daughter after the January 18, 2013 order was implemented. After the motion had been heard, I ordered that Ms. J.M.M.C. have access to the child from 4:00 pm to 6:00 pm on Thursday, January 24, 2013, while accompanied by a worker from Faye Peterson Transition House, who offered to accompany her.
[21] Tomorrow is the child’s second birthday. The evidence is that plans have been made for Ms. J.M.M.C.’s family to attend a birthday party.
[22] I have decided that on an interim, interim basis, without prejudice to the position of any of the parties, Ms. J.M.M.C. shall have the child with her:
(a) from 10:00 am to 6:00 pm on Saturday, January 26, 2013;
(b) from 10:00 am to 6:00 pm on Sunday, January 27, 2013;
(c) from 10:00 am to 6:00 pm on Saturday, February 2, 2013;
(d) from 10:00 am to 6:00 pm on Sunday, February 3, 2013;
(e) each weekday from Monday, January 28 until Friday, February 1, 2013 for 3 hours, each day, to be returned no later than 7:00 pm those days.
[23] The applicants shall have the child with them at all other times. When Ms. J.M.M.C. returns the child to the applicants on January 27, 2013, she shall give the applicants written notice of the times during the weekdays that she wishes to be with the child. Ms. J.M.M.C. shall make arrangements to pick-up and return the child.
[24] At all times, Ms. J.M.M.C. shall be in the company of an adult member of her family or a support worker while she is with the child. She shall not be alone with the child.
[25] No party is to discuss these legal proceedings with the child nor make any critical remarks about another party while in the presence of the child or in the presence of another party.
[26] This motion shall be heard commencing 10:00 am February 4, 2013.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: January 25, 2013
COURT FILE NO.: FS-13-0015
DATE: 2013-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
F.E.B. and P.J.B.,
Applicants
- and –
J.M.M.C. and J.W.D.,
Respondents
DECISION ON MOTION
Shaw J.
Released: January 25, 2013
/mls