ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2839/14
DATE: 2014-07-03
BETWEEN:
Candace June Coe
Applicant
– and –
Derek Robert Tope
Respondent
Catherine Haber – Counsel for the Applicant
Michael Clarke – Counsel for the Respondent
HEARD: June 27, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
Breaking Bad, meet Breaking Bad Parents.
The former is an acclaimed fictional TV show whose title needed a bit of explaining: “BREAKING BAD: A southern U.S. expression for when a good person suddenly loses their moral compass and starts doing bad things”.
The latter is a sad reality show playing out in family courts across the country. “BREAKING BAD PARENTS: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation; oblivious to the impact on their children”.
SPOILER ALERT: The main characters in both of these tragedies end up pretty much the same: Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.
To prolong the tortured metaphor only slightly, the “urgent” motion before me might be regarded as this family’s pilot episode. Will these parents sign up for the permanent cast of Breaking Bad Parents? Will they become regulars in our family court building, recognizable by face and disposition? Or will they come to their senses; salvage their lives, dignity (and finances); and give their children the truly priceless gifts of maturity and permission to love?
Stay tuned.
The profile of this family unit is straightforward:
a. Each parent is 38 years old.
b. They have two sons, Gannon and Maguire, ages five and three.
c. They started living together in 2000.
d. They were married September 5, 2004.
e. They separated within the jointly owned matrimonial home on July 19, 2013.
f. They remained separate and apart under the same roof for almost a year.
g. The parties waited a long time to retain counsel: the Applicant in March 2014; the Respondent in April 2014.
h. On April 15, 2014 they accepted an offer for the sale of their Dundas, Ontario home. At that point – nine months after deciding to separate – they still hadn’t resolved parenting arrangements upon physical separation.
i. As the June 26, 2014 closing date for the sale of the home approached, suddenly custody issues became urgent.
j. The mother commenced her Application June 5, 2014. She brought a motion for custody (or residency); child support; and related relief.
- This is the third time in a week this case has been before the courts:
a. On June 20, 2014 Justice Chappel decided the Applicant mother’s motion wasn’t “urgent” enough to proceed without a case conference.
b. On June 24, 2014 Justice Lafreniere convened an early case conference, without success.
c. On June 27, 2014 I heard the motion. It took a couple of hours; entailed multiple affidavits; numerous exhibits; many provocative lawyers’ letters back and forth; and legal argument which referenced at least 10 cases. And that was only on temporary residency.
d. A second case conference has already been scheduled for July 31, 2014 for remaining issues.
e. All this, and the Respondent father hasn’t even filed an Answer yet.
- Incredibly, during the short history of this case, we’ve already had issues of non-compliance with a court order:
a. In her June 20, 2014 endorsement, Justice Chappel tried to prevent any misunderstanding or mischief between June 26, 2014 when the parties had to vacate the former matrimonial home, and June 27, 2014 when the parties would be back in court.
b. Justice Chappel ordered that the children would be with the Respondent father from after school/daycare on June 26, 2014 until 7:30 p.m. They would then be with the mother until the following morning. The father was to drop the children off at daycare and school on June 27, 2014.
c. But that didn’t happen. The father didn’t get any of the time he was supposed to.
d. At the June 27, 2014 motion both parties filed last minute affidavits on the topic.
e. The mother’s position: It was an honest mistake. She misunderstood the order, and couldn’t reach her lawyer for clarification.
f. The father’s position: The order was clear. The mother was present when it was made. This was another example of the mother’s predisposition to exclude him from the children’s lives as much as possible.
g. Innocent mistake or not, the incident certainly increased the tension and mistrust between the parties.
- At first glance – and that’s really all we get to do at an early motion – these parents seem pretty evenly matched. I dare say, they both sound like pretty decent people:
a. They’re both well-educated.
b. They both have stable, intellectually rewarding employment.
c. The Applicant works daytime hours (with some flexibility) Monday to Friday in a local hospital, as an occupational therapist. Last year she earned $78,759.00.
d. The Respondent earns $97,000.00 as a technical service engineer, working primarily from a home office, with a weekly commitment in Mississauga. He says his schedule affords even more flexibility to be available for school and daycare exchange times.
e. Neither of these parties has a criminal record.
f. Neither has any unsuccessful history of children from previous relationships. Certainly no child protection involvement.
g. Each party has now purchased their own residence within the pleasant Hamilton suburb of Dundas. They live minutes from one another; minutes from their former neighbourhood, Gannon’s school, Maguire’s daycare, etc.
h. They both have a support network.
The Applicant seeks temporary sole custody, with the Respondent to have access four overnights within a two week cycle, including alternate weekends.
The Respondent argues it’s premature for any custodial designation. His lawyer submits the Applicant deliberately waited until the eve of the house sale to create a crisis, and she’s now unabashedly trying to create a strategically favourable status quo. He seeks equal timesharing and equal parental involvement while the parties pursue alternative dispute resolution, through mediation or a parenting professional.
The basic themes advanced by the parties are straightforward:
The father says “let’s be friends”. The mother says “I can’t be friends with an abuser”.
Both parties urge me to maintain the status quo, but they have diametrically opposed views of what that entails:
a. The mother says she has always been the primary caregiver, so she should continue to be the primary caregiver.
b. The father says there was never any “primary caregiver”. They both took turns doing everything, at various times. Not necessarily in equal or consistent proportions. But they are both equally experienced and competent to address all issues in the children’s lives.
c. The mother counters: It’s not a question of whether the father is capable of doing things. He didn’t do them in the past. The children are used to mom doing everything. That should continue because we know it works.
The father says both parents are equally loving; equally emotionally bonded to the children. The children need both parents equally.
The mother questions whether a truly loving parent would behave the way she says the father has behaved.
The mother wants to focus on conduct. The father disputes allegations of misconduct; correctly identifies that factual determinations are extremely difficult based on untested affidavit materials; and proposes an emphasis on parenting skills and opportunities to make separation less traumatic for the children.
Among the issues raised:
a. The mother says father has been rigid, insisting he’d settle for nothing less than joint custody and equal time. The father counters that for months he has been proposing mediation or jointly retaining a child care professional to help them with a parenting plan. The father’s lawyer says he proposed a four-way meeting. Mother’s counsel says a date was proposed when she was unavailable. In any event, the mother is not prepared to attend mediation.
b. The mother says the father is controlling and wants things his way. The father counters that he has never tried to exclude the mother or reduce her from having equal involvement in every aspect of the children’s lives.
c. The mother complains the father was unfair by refusing the move out of the matrimonial home, forcing her to bring this motion. The father says it was presumptuous for the mother to assume she’s going to get sole custody of the children, simply because she’s the mother. He says there was no justification for either of the parties moving out of their home -- and away from the children – until parenting issues were resolved.
d. The mother says the father is physically, verbally and emotionally abusive and intimidating. She outlined periodic instances of conflict over the past few years. The father denies the mother’s allegations, but acknowledges that at various times they have both said or done things against their better judgment. He alleges tensions were compounded by the mother’s adultery (which she denies). He admits the last year of separation under the same roof has been difficult for both of them. But he says it’s unfair to blame one more than the other. In any event, he argues home conditions couldn’t have been too bad if the Applicant waited almost a year after separation to initiate court proceedings.
e. The Applicant filed an affidavit of her mother, who spent a great deal of time in the home. The Applicant says the maternal grandmother was not only a witness to the Respondent’s aggression, but she was also the target of his abuse. The Respondent counters that the maternal grandmother’s evidence is hardly impartial. He notes the frequent presence of the maternal grandmother in the home added needless stress and provocation to an already difficult marital situation.
f. The mother questions the father’s mental health, noting that he has attended for anger management counselling (in her view, without success). The father counters that his willingness to get counselling in 2012 should be regarded as a positive rather than negative factor. In his view, seeking counselling and following up on recommendations demonstrates insight and commendable problem-solving.
g. The mother says ongoing tension created by the father created a negative environment and that the children needlessly suffered. The father says the mother’s complaints are exaggerated; he wasn’t the only one contributing to the marital tension; and in any event now that the parties are separated they can each spend quality time with the children, without marital distractions.
h. The mother says the father has at times been physically aggressive with the children, and that Gannon has expressed fear. The father categorically denies this, and says he has seen the mother physically discipline Gannon. Courts must take allegations of physical aggression toward children very seriously. Here, I must comment that the mother’s evidence is vague and unconvincing. Her unhesitating willingness to allow the father to have the children perhaps 30 percent of the time, suggests the real issue here is how time is to be divided – and not whether the father represents a danger to the children during whatever time that he is allowed.
i. The mother emphasizes the children are young and have special needs. Gannon is seeing an occupational therapist regarding fine motor skills relating to writing and perception. He also suffers from attention deficit. Maguire is being treated for chronic constipation, and also has some developmental delays. The father acknowledges these issues (although his lawyer suggests the “special needs” characterization is a bit overblown). Letters from daycare and health care service providers confirm the mother has been more involved with these agencies than the father. The father insists he’s equally capable of interacting with third party service providers in the future.
j. The mother emphasizes she took two maternity leaves in relation to the children, totalling 34 months, and that this is consistent with her view that she was the primary caregiver. The father countered by producing a journal which he has maintained since March 2013 keeping track of his extensive day to day involvement with the children. I share the mother's curiosity about why the father would have been maintaining a daily diary prior to the July 19, 2013 date of separation. Perhaps I can add to my “both parties evenly matched” list, the fact that both parties appear to have been jockeying for position in this inevitable custody dispute for quite some time now.
k. The bottom line: The mother says the father was never involved. The father says the mother doesn’t want him to be involved.
These and other allegations raised by the parties are all relevant – or at least have the potential of being relevant, once the court is in a position to make factual determinations. But none of the allegations rise to the level of compelling the court to conclude that these children currently need to be protected from either parent.
This file – this family – has gotten off to a terrible start with needlessly confrontational and hurtful affidavit materials. I say this not to discourage prompt and effective access to the courts where truly dangerous circumstances warrant. Physical and emotional safety is always the paramount concern. But there’s nothing about this case that justifies the level of nastiness and entrenchment which has quickly emerged. Particularly where young children are involved, wherever possible we should err on the side of healing as opposed to warring.
The Applicant and the Respondent are both hurting. That’s understandable. They blame each other (even though I don’t blame either one of them).
Both parents fear losing their children. And that fear is well founded. When parents live together within a functioning family unit, nobody pays attention to percentages of time or labels like “primary residence”. Inevitably both parents perceive they have their children 100% of the time. It’s tough coming to terms with the fact that when you decide to see a lot less of your spouse, you’re also going to see a lot less of your children.
But section 24 of the Children’s Law Reform Act and section 16 of the Divorce Act set out the considerations the court must address in determining issues of custody, access and parenting. Those considerations are child-focussed, not disgruntled-parent-focussed. The law is well established, and the recurring theme is to promote the best interests of the child. Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).
Parenting determinations at temporary motions are particularly challenging:
a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.
b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.
c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing “status quo” even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.
d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process – quite often at a trial. Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (SCJ); Neilipovitz v. Neilipovitz 2014 ONSC 3889 (SCJ).
e. The status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change. Button v. Konienczny, 2012 ONSC 5613, 2012 CarswellOnt 12353; Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (SCJ); Rifai v. Green 2014 ONSC 1377 (SCJ); Kimpton v. Kimpton [2002] CarswellOnt 5030 (SCJ).
f. Courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ).
g. Physical separation between parents usually entails some continuing geographic proximity — usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705 (Ont. C.A.).
h. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Rifai v. Green (supra).
- In this case, I find that the parenting arrangement prior to the July 19, 2013 separation under the same roof – and prior to the June 26, 2014 departure from the matrimonial home – was effectively shared parenting. For clarification:
a. I am not specifically finding that the “status quo” entailed an exactly equal division of time or responsibility.
b. I am not specifically finding that the best interests of the children require an exactly equal future division of time or responsibility. There will be lots of time to talk about specific schedules and division of authority.
c. But particularly at this very turbulent time for these two young children, I find that their best interests require a continuation of an exactly equal psychological or emotional bond with both parents.
It is far too early to speculate about final orders or parenting arrangements. I make no finding or prediction that an equal time arrangement is either the best or inevitable long term solution.
Neither parent has established that a primary residence designation in their favour – let alone custody – is either necessary or in the best interests of the children. (I reject the father’s argument that only residency, not custody, was case conferenced. If I felt a temporary custody order was appropriate, I would make one.)
I make no prediction or recommendation as to the eventual custodial label, if any. For the moment these parties don’t appear to be candidates for joint custody. Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). But it’s early, and there’s time for mature problem-solving. There are many creative options available to help these parents get what they want; and to ensure these children get what they need.
On a temporary basis an equal time sharing arrangement will provide a balanced structure, and minimize disruption or diminution of parent-child relationships.
Equal time is not an objective in itself. But it can be a tool to promote the objective of maximizing a child’s psychological and emotional bond with each parent.
I am not suggesting that equal-time is the automatic starting point in each case. That’s a very simplistic and unrealistic interpretation of the well-established “maximum contact” doctrine.
But here we have two good parents, with two equally viable temporary proposals. The mother and father have the ability to make a temporary equal time sharing arrangement work well for the children if they want to.
I have considered different types of equal time orders. Alternate weekends should be the cornerstone of an equal timesharing arrangement, but these children are too young for alternating weeks. The periods of absence between parent and child would be unacceptable.
I agree with the Respondent’s counsel that a two-week rotating schedule which includes alternating weekends and either Monday-Tuesday or Wednesday-Thursday would allow frequent, meaningful contact with both parents. This type of schedule is frequently used to maximize timesharing opportunities for parents who work 12 hour shifts.
One final comment:
I hope I didn’t offend the parties with my Breaking Bad Parents analogy. They’re not bad parents. Yet.
Mainly, I was trying to give both parties a sobering warning: Stop!
Stop being nasty.
Stop jockeying for position.
Stop playing hardball.
Stop acting like you hate your ex more than you love your children.
It didn’t have to be this way. These parties had a year between separation in July 2013 and the sale of the house in June 2014 to work out a comprehensive, sensitive parenting plan. They could have spent a lot less money on parenting professionals than they’re spending on lawyers. They could have negotiated a civilized final agreement by now. There was no need for crisis and brinksmanship.
Now that things have stabilized (albeit, by court order) both parties have a chance to rethink their strategies and start over.
They can waste time, money and energy on more case conferences, motions, settlement conferences, trial management conferences, questioning, and a long trial.
Or, they can declare a truce; focus on their children; call in some therapeutic help (like social workers or mediators); make a few compromises; work out a plan everyone can live with – and take the kids on annual vacations to Disney World with the money they save.
The temporary order:
The parties shall share equal time and equal residency of the children Gannon and Maguire.
In the absence of any other agreement between the parties (confirmed in writing, in advance), timesharing shall be as follows:
Week 1:
Monday 9 a.m. to Wednesday 6 p.m. – Father
Wednesday 6 p.m. to Friday 9 a.m. – Mother
Friday 9 a.m. to Monday 9 a.m. - Father
Week 2
Monday 9 a.m. to Wednesday 6 p.m. – Mother
Wednesday 6 p.m. to Friday 9 a.m. – Father
Friday 9 a.m. to Monday 9 a.m. – Mother.
This endorsement is being issued on Week 1. The next transition will occur Friday July 4, 2014 9 a.m. at which time the father shall commence his weekend with the children.
If possible, exchanges shall occur at neutral locations such as school or daycare, to minimize direct interaction between the parties at exchange times.
Each party shall be entitled to one week of uninterrupted vacation time during the summer of 2014, with a week constituting 7 days including that party’s weekend. If the parties are unable to agree as to scheduling, the father may select the 7 day period of any “week one” and the mother may select the 7 day period of any “week two”. Selection of these vacation weeks shall require at least 7 days advance notice in writing.
Each party shall assume responsibility and decision-making authority for the children during times when the children are in their care.
Neither party may unilaterally change any of the children’s existing relationships with schools, daycare providers, medical personnel, or recreational facilities.
There shall be a presumption that both parties are to be equally involved with all third party service providers. In the absence of any other mutually agreeable arrangement, the parties shall alternate attending for appointments with professionals relating to the children, so that on an overall basis each party is involved with approximately 50% of such appointments.
The parties shall notify one another immediately upon any urgent issue arising in either child’s life, including any medical issues.
Both parties shall be equally entitled to communicate with all third party service providers, agencies and professionals involved in the children’s lives. Each party shall keep the other fully informed of any communications with third parties, and any appointments or commitments involving the children.
All time-sharing provisions herein are intended to provide a base schedule which the parties must adhere to if they are unable to mutually agree with respect to alternate arrangements. But the parties are allowed and encouraged to negotiate alternate such variations and accommodations as may be in the best interests of the children, so long as the overall time-sharing remains equal.
Any consent schedule changes and all communication between the parties shall be in writing by e-mail. Any verbal agreements shall be confirmed by e-mail. The parties shall check their e-mail accounts daily, and they shall respond to child-related e-mail inquiries in a timely fashion, and in any event within 24 hours of receiving the inquiry.
Each party shall encourage the children to have a positive, respectful attitude toward the other party, and the other party’s family and friends. Neither party shall allow the children to be exposed to any negative comments about the other party, or the other party’s family and friends.
The parties are encouraged – but not ordered – to consider alternative dispute resolution options to deal with parenting issues, including mediation, a parenting co-ordinator, or retaining an expert in child-parenting issues to assist with a parenting plan.
Counsel may arrange a time to see me in court regarding any residual issues other than costs.
If costs are in issue, the parties shall file written submissions on the following timeline:
a. A party seeking costs shall serve and file submissions within 21 days.
b. The responding party shall serve and file submissions within 14 days of receiving the initial costs claim.
c. Any reply costs submissions shall be served and filed within 7 days thereafter.
Pazaratz, J.
Released: July 3, 2014
COURT FILE NO.: 2839/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANDACE JUNE COE
Applicant
-AND-
DEREK ROBERT TOPE
Respondent
REASONS FOR JUDGMENT
Mr. Justice A. Pazaratz
Released: July 3, 2014.