SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brie Dawn Davies, Applicant
AND
Matthew Brian Frederick Murdock, Respondent
BEFORE: Justice L. Ratushny
COUNSEL: Stephen M. Pender, for the Applicant
Jennifer M. Reynolds, for the Respondent
HEARD: April 17, 2014
ENDORSEMENT
1The applicant-mother brings a motion for interim sole custody and spousal support. The respondent-father opposes this motion and seeks instead an order for the appointment of the Office of the Children’s Lawyer in respect of the two children, James (six years of age) and Kirsten (almost eight years of age).
2The parties separated in July 2013 and the applicant moved out of the matrimonial home in August 2013, after a relationship lasting 12 years and a marriage lasting nine years.
Care Arrangements
3The present parenting schedule is based on equal time with the children, organized on a 2-2-3 basis. The parties have recognized that this schedule requires the children to move between residences three times each week and that fewer weekly moves would be advantageous for them. The respondent has suggested a 2-2-5-5 schedule; however, the applicant has rejected this variation and requests, instead, sole custody on an interim basis.
4I have read the detailed and thorough affidavits from each party together with their supporting materials. It is fair to say that they are conflicting affidavits. It is not fair to conclude that this is a high conflict case. Over the last eight months the parties have been able to communicate and co-operate to achieve the present parenting arrangement, to attend together at the children’s school, to agree to some counseling for the children although this has not yet been effected, and to agree to mediation in the future for themselves.
5The broad issue is, of course, the parenting schedule that is in the best interests of each child. The applicant seeks to change the existing arrangements for the children’s care on an interim basis and the Court has been presented with conflicting evidence that makes it difficult to weigh evidence and assess credibility. I accept the wisdom of the jurisprudence that in these short-term circumstances, stability is a primary need for children and existing care arrangements should only be disturbed if it is clearly shown that they constitute a danger to the children or there is some other compelling reason to change.
6I do not conclude there is any clear or compelling evidence that the existing care arrangements need to be changed. I conclude the children are not in any danger when they are with the respondent. His affidavit evidence indicates a reasonable and measured approach to the applicant’s allegations. Certainly the two parties disagree as to how the other has parented, however, there is no clear evidence the children have been placed in any danger by the respondent’s care of them and there is no compelling evidence that their care situation requires changing.
7Instead, I assess the applicant, as best I can at this point, as having overreacted to and consequently exaggerated the children’s inevitable concerns and necessary adjustments after their parents’ separation, before settling into their new routines. Without minimizing the applicant’s difficulties in the past and her improvement at the present time, I conclude that she has emotional fragilities that could have contributed to her approach to the children’s behaviours. Of course I am not an expert in the field, however, her psychiatrist has commented that she has been highly anxious in the past and is suffering at present with post-traumatic stress disorder arising out of being sexually assaulted by a third party as a teenager. It is not merely speculative, therefore, to comment that it appears to me from the evidence on this motion that the applicant has continued to exhibit a degree of anxiety for the children in this post-separation phase of her life that could have led her to overstate their issues.
8A few examples suffice. The applicant points to concerns for the children’s safety while with the respondent, over allegations that he hit James and did not provide competent care to Kirsten in respect of her allergies and a skin condition. The applicant says the children are “struggling now”. Yet, the Children’s Aid Society investigated the allegations of assault and indicated no concerns and closed their file; in March 2014 Kirsten admitted she had suggested to James that he make up a story about his father hitting him; James did “very well”, the applicant said, when he was with her for March Break in 2014; the respondent has not had concerns expressed by James’ teacher as of late regarding his behavior at school; Kirsten is managing to apply her own steroid cream to her vaginal area when she is in the respondent’s care and the respondent’s decision to have her apply it herself and not do this for her is certainly a prudent one in all of the circumstances; the respondent says he has not witnessed the extreme behavior when the children are with him that the applicant says she has to contend with from the children when they are with her.
9I give no weight for the purposes of the issues on this motion to the allegation from the applicant that during their marriage the respondent “sexually abused” her. The respondent vehemently denies this. I only comment that it is not an allegation that causes me any concern whatsoever for the safety of the children when they are with their father.
10I assess the respondent’s request of the applicant and her parents that they not make plans for the children while the children are in his care as a reasonable request, particularly given the brevity of each period of the 2-2-3 care arrangement.
11The applicant says the children need to return to her primary care and that is the status quo arrangement that should be reinstated. The respondent disagrees. He says the status quo is the existing shared parenting arrangement agreed upon at separation. He disagrees the applicant was their primary caregiver before separation and says that while he had to work outside the home, he shared in the children’s care from their birth.
12I conclude that the children’s needs are being met by the existing shared parenting arrangement; there is no clear evidence that it is in their best interests to change this arrangement; there is no compelling reason to order a private assessment and instead, it is appropriate that the Office of the Children’s Lawyer be involved.
Interim Spousal Support
13The applicant’s motion for interim spousal support was not the subject of oral submissions at the hearing of the motion so that I do not have the benefit of the parties’ updated advice in this respect.
14The respondent has indicated he has no issue paying spousal support to the applicant but that he cannot afford support at the level she is claiming without going into debt. He asks for further disclosure regarding the amount and nature of her income, her search for employment and her current debts. This is reasonable. Pending that further disclosure, I make no order with respect to interim spousal support.
Conclusions
15It is for these reasons that I make the following Orders:
The applicant’s motion with respect to custody and access is dismissed;
The applicant’s motion with respect to interim spousal support is dismissed;
There is an Order as sought by the respondent that this matter be referred to the Office of the Children’s Lawyer to provide such services under section 112 of the Courts of Justice Act as they deem appropriate for the two children.
Costs
16If the parties cannot agree as to costs, brief written submissions (a maximum of three pages from each party exclusive of attachments) on costs may be forwarded to me before May 12, 2014.
Justice L. Ratushny
Date: April 23, 2014
COURT FILE NO.: FC-13-2186
DATE: 2014/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Brie Dawn Davies, Applicant
AND
Matthew Brian Frederick Murdock,
Respondent
BEFORE: Justice L. Ratushny
COUNSEL: Stephen M. Pender, for the Applicant
Jennifer M. Reynolds, for the Respondent
ENDORSEMENT
Ratushny J.
Released: April 23, 2014