SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-13-5671-00
DATE: 20140722

RE: Anand Persaud, Applicant (Father)

AND:

Dawn Marie Hobbs, Respondent (Mother)

BEFORE: Ricchetti, J.

COUNSEL:
R. Stone for the Applicant
N. Da Silva for the Respondent

HEARD: July 8, 2014

ENDORSEMENT

[1] On July 11, 2014 I released my written endorsement setting out the interim parenting time for the children, Joshua Michael Hobbs (born 2005) and Brianna Akallie Marie Hobbs (born 2006) (the “Children”). Reasons on the parenting time order and other issues were reserved. These are those reasons.

BACKGROUND

[2] The parties commenced living together in May, 2004.

[3] The parties separated on November 2, 2013.

[4] The Mother left the primary residence in Brampton, leaving the Father with the Children. The Mother moved to Caledon. The Father alleges that the Mother left the home without notice or reason. The Mother alleges the Father threw her out of the home.

[5] On December 13, 2013, the Father commenced this application seeking among other things sole custody and permitting the Mother to have supervised access.

[6] On the same day the Father brought a motion for interim relief seeking among other things sole custody, access and child support.

[7] On the same day as the return of the Father’s motion, on December 17, 2013, the Mother brought a motion seeking Christmas access with the Children and for her to have interim access alternating weekends and each Tuesday overnight access after school.

[8] The motion came before the court on December 18, 2013. The parties entered into minutes of settlement which provided for Christmas parenting time. An order was issued to this affect. All other issues were adjourned.

[9] As a result of the inability to agree on parenting time, on January 22, 2014 the Mother brought a motion for interim custody of the Children, support and again seeking access (for parenting time) alternating weekends and every Tuesday overnight.

[10] On February 13, 2014 the court adjourned the motion on the basis that a case conference had not been held.

[11] A case conference was held on March 27, 2014. Leave was granted to bring motions.

[12] A settlement conference was held on July 4, 2014. The matter did not resolve.

[13] On July 7, 2014 the Father brought a motion which includes seeking sole custody of the Children and permitting reasonable access to the Mother as the parties might agree.

[14] On July 8, 2014 the Mother brought a cross-motion which includes seeking sole interim custody of the Children and equal parenting time.

[15] Given the last minute motions and the very late filing of materials, the parties have not had an opportunity to respond to many allegations, issues or questions arising from the affidavits. As a result, many facts are disputed without the other party having had an opportunity to respond to same. Neither party wanted the motions to be adjourned.

Historical Parenting Time

[16] Without an interim court order, there have been a number of disputes regarding parenting time with the Children since shortly after the separation. The parties could not agree on an access schedule. This issue has become a bitter one between the parties.

[17] Since the separation the Father appears to have had more parenting time. However, the Father sought to restrict the Mother’s access to supervised access based on the Mother’s alleged abandonment of the family. The Mother has since, shortly after the separation, sought to establish reasonable parenting time with the Children. For example, Christmas parenting time was a hotly contested issue with both parties seeking more parenting time. In January 2014, when the Father again restricted her parenting time, the Mother again brought a motion for greater parenting time.

[18] In early 2014 the Mother suggested a parenting schedule where she would have less than 50% parenting time, proposing alternate weekends and some weekday access each week. This was not agreed to. The dispute over access continued.

[19] While this matter continued to be held up in the courts awaiting a case conference, the Father continued to have more parenting time with the Children. Generally, the Mother had parenting time alternate weekends and every Wednesday after school and some disputed parenting time from time to time. This loose parenting arrangement continued for a short time only.

[20] Approximately one and a half months ago, the parenting time disputes between the parties started to escalate. The Mother sought greater parenting time. She alleged that the Father was not properly caring for the Children and involved in poor parenting choices for the Children.

[21] On June 23, 2014 (or June 26, 2014 a date which is disputed), the Mother has had de facto custody of the Children as she has refused to return the Children to the Father.

[22] The Mother does not dispute that she has taken this unilateral self-help action. There was no agreement for her to do so. There was no court order permitting her to do so.

[23] The Mother raises her concerns regarding the Children’s welfare and suggests that the Children do not want to see their Father.

[24] The Office of the Children’s Lawyer (the OCL) has agreed to accept an investigation into this matter. Both parties are confident that their respective positions will be borne out by the OCL’s investigation. Essentially, both parties are looking for an interim order which will likely be the subject of a variation after the OCL report is produced which expected to be late August, 2014.

THE POSITION OF THE PARTIES

The Father

[25] The Father submits that, given the Mother’s abandonment of the Children and that he has been the primary care giver since the separation, he should have primary parenting time. There is no dispute the Father has had de facto greater parenting time than the Mother since separation.

[26] The Mother submits that she did not take any court action earlier to obtain greater parenting time because she did not have the funds to alter this allegedly imposed access schedule by the Father. This submission is not borne out by the evidence. It was the Mother that actually suggested this parenting schedule early on in the proceeding.

The Mother

[27] The Mother submits that she provided primary care for the Children for the approximate 9 years prior to separation. The Mother submits the Father has done everything to restrict her parenting time with the Children. The Mother submits the Father is not providing proper care for the Children. She points to the lack of sanitary and proper child care by the Father or the Children’s paternal grandfather and poor life choices the Father makes for the Children.

[28] I have doubts regarding the Mother’s evidence regarding the Father’s failure to properly provide and care for the Children. If this was a real concern by the Mother, she would have moved before this court to alter the access schedule before this. Furthermore, if this were true, the Mother would not be suggesting that the Father have equal parenting time during the summer. However, if real, these concerns would affect the best interests of the Children.

THE ISSUES

[29] The following issues are to be determined on an interim without prejudice basis:

i. custody of the Children;

ii. parenting time with the Children; and

iii. Child support.

THE ANALYSIS

Interim Custody

[30] There is no reason to prefer one parent over the other. It appears from the materials that the Mother had a greater caregiver role prior to separation but the Father has had a greater caregiver role since separation.

[31] There is no evidence that they have not been able to agree on major decisions regarding the Children.

[32] There is no reason to minimize either parent’s role on making major decisions affecting the Children.

[33] Joint custody will permit both parents to be involved in any major decisions involving the Children which, in my view, is a safeguard for the Children’s best interests given the highly disputed facts.

[34] There shall be an interim order for joint custody of the Children.

Interim Parenting Time

[35] Given the highly disputed facts on late filed materials, the OCL report should provide considerably more clarity to the issues raised by both parents.

[36] The Mother put her new relationship ahead of the Children for a period of time by accepting less parenting time. The Mother has made efforts to increase her parenting time with the Children since the separation.

[37] The Mother’s allegations (if true) are serious and could negatively impact on the Children’s best interests. There is no supporting or collateral evidence that the allegations are true. Hopefully, the OCL will be able to determine the Children’s living conditions and relationship with their parents and caregivers.

[38] The Father, on the other hand, appears to have been controlling the amount of parenting time and contact he would permit the Children to have with their Mother. This is of concern as it is in the Children’s best interests to maintain and have full and meaningful relationship with both parents despite the separation and the reasons for the separation.

[39] Pending the OCL report in August 2014, there is no reason for one parent to be favoured over the other parent. In the Father’s care, there is stability, familiar surroundings and a grandfather for additional caregiving. In the Mother’s care, there is a continuation of the caregiving that the Children enjoyed prior to separation. She now appears to have a stable home environment for the Children. She has a strong desire to have a meaningful relationship with the Children.

[40] As a result, it is in the Children’s best interests that the parents have equal parenting time for the summer until further order of this court.

[41] One last comment on the Mother’s actions. Self or unilateral actions as taken by the Mother in this case to withhold parenting time from the Father is to be strongly discouraged. It is simply not acceptable to use Children in this manner. It is not in the Children’s best interests. It promotes unnecessary, expensive and divisive litigation. It also clearly demonstrates that the Mother does not always put the Children’s best interests first but rather her own interests. While it would be tempting to grant greater parenting time to the Fatheras a result of her conduct, I am not satisfied in the particular circumstances of this case that it would be in the Children’s best interests to make such an order.

[42] In conclusion, the following interim parenting schedule is imposed:

i. The Father shall have parenting time with the Children commencing July 11, 2014 at 4:00 p.m. for two weeks;

ii. The Mother shall have parenting time with the Children commencing 4:00 p.m. on July 25, 2014 for one week; and

iii. Thereafter, the parties shall have parenting time for periods of one week commencing at 4:00 p.m. each Friday until further order of this court. For clarity, this starts with the Father’s parenting time on August 1, 2014; and

iv. If the OCL has not provided their report by September 19, 2014, either party may move before me to vary the parenting time to deal with parenting time during the school year.

[43] The parties shall agree on a place for the change of parenting time and which parent shall arrange for the drop-off or pick-up. If the parties are unable to agree, the parent who is going to commence their parenting time shall pick-up the Children at the other parents’ residence.

Interim Child Support

[44] There were no submissions on this issue. This issue was overshadowed by the interim parenting time order sought by both parties. There is a serious discrepancy in the income stated in the Financial Statements of the parties.

[45] I am not prepared to deal with this issue until such time as the parties have had an opportunity to respond to the materials and can make submissions on this issue. As a result, this part of the relief sought is adjourned sine die and may be brought back on by either party on 7 days’ notice. I am not seized of this part of the motion.

Further Orders

[46] In addition, the following order shall issue:

i. The Children shall not be removed from the Province of Ontario without the express written consent of the other party or court order;

ii. This order may be varied without the need to demonstrate any material change in circumstances upon the delivery of an OCL report; and

iii. The Father shall maintain any medical, dental or other benefits available to him through his employment for the Children.

COSTS

[47] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[48] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[49] There shall be no reply submissions without leave.

Ricchetti, J.

Date: July 22, 2014