ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0255
DATE: 2014-09-08
B E T W E E N:
Karen Ann Bruneau,
The Applicant being unrepresented
Applicant
- and -
Theodore Richard Wark,
The Respondent being unrepresented
Respondent
HEARD: September 4, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] Ms. Bruneau brought an application in August 2013 in which she sought, among other relief, sole custody of the child Andrew Carter Wark, born November 25, 2006 (age 7).
[2] The application was defended by Mr. Wark, who also claimed custody of Andrew.
[3] Both parties are unrepresented.
[4] A settlement conference was scheduled before Fitzpatrick J. on May 30, 2014. Justice Fitzpatrick’s endorsement from that date noted that neither party had provided a settlement conference brief and that neither party was in a position to discuss settlement. He indicated that a trial would be necessary to resolve the issues, including the issue of the custody of Andrew. He stated that either party could set the matter down for trial, and that a trial management conference should be held. He recorded that he had not conducted a settlement conference that day.
[5] Neither party has set the matter down for trial.
[6] Ms. Bruneau now brings a motion for custody of Andrew, supported by her affidavit, which sets out in some detail the history of the parties prior to and after their separation in August 2008, and her concerns for the safety and wellbeing of Andrew while in Mr. Wark’s care.
[7] Mr. Wark has responded with his own motion for custody of Andrew, supported by his affidavit in which he deposes that Andrew is a happy, healthy child who is content and well cared for.
[8] There is a dispute between the parties as to who had primary care of Andrew and his brother, Bryson Joseph Wark, born March 3, 1998, in the three years immediately following separation in August 2008.
[9] However, there is no dispute that in or about October 2011, Ms. Bruneau suffered a mental health issue, leading to a suicide attempt, following which Andrew moved in with Mr. Wark. Ms. Bruneau then moved to Alberta in November 2011 and resided with her parents to assist in her recovery from her mental health issues. Andrew has lived with Mr. Wark, exclusively, in the Thunder Bay area since October 2011. Ms. Bruneau continues to reside in Alberta.
[10] Ms. Bruneau requests that she be granted custody of Andrew, forthwith, so that she can take him back with her to Alberta. I am not prepared to grant that request.
[11] I agree with the observation of Fitzpatrick J. in his endorsement of May 30, 2014, that a trial will be necessary to determine whether it is in the best interests of Andrew to change his residence from his father’s home in Thunder Bay to the home of Ms. Bruneau and her parents in Leduc, Alberta.
[12] On this motion, there would have to be compelling evidence, beyond the present competing affidavits of the parties, to change by way of a temporary order, pending trial, the status quo which has been in place for three years, and require Andrew to move to Alberta from the Thunder Bay area where he has lived his entire life. The status quo was created by Ms. Bruneau’s move from Thunder Bay to Alberta.
[13] It is unclear what contact Ms. Bruneau has had with Andrew since October 2011. In her application, which she signed on August 22, 2013, Ms. Bruneau stated that she had not seen Andrew since she left Thunder Bay in November 2011. In her submissions on the motion, Ms. Bruneau referred to speaking to Andrew by Skype.
[14] In her notice of motion dated August 15, 2014, Ms. Bruneau requested the involvement of the Office of the Children’s Lawyer. However, she did not pursue this request in her submissions on the hearing of the motion on September 4, 2014, and indicated that she wanted the case to conclude on a final basis that day by way of an order granting her custody. Because neither party asked in their submissions for an order that Andrew have representation by the Children’s Lawyer, I will not go further in considering that possibility. However, this is without prejudice to the right of either party to bring a motion in that regard.
[15] The trial judge will be in the best position to fully investigate the conflicting positions and make findings of credibility and fact and to determine what is in the best interests of Andrew.
[16] I do not intend to make any order for interim custody. However, an order is granted that pending trial or further order of the court, Andrew shall continue to reside with Mr. Wark and in his day-to-day care and control.
[17] In his submissions, Mr. Wark expressed willingness to develop a schedule for Andrew to visit with Ms. Bruneau, including during the school Christmas vacation. I would encourage the parties to explore the possibility of resolving access pending trial.
[18] In conclusion, the motions by each party for interim custody of the child, Andrew, are dismissed but, pending trial or further court order, Andrew shall continue to reside with Mr. Wark in his day-to-day care and control.
[19] There shall be no order as to costs.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: September 8, 2014
COURT FILE NO.: FS-13-0255
DATE: 2014-09-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Karen Ann Bruneau,
Applicant
- and -
Theodore Richard Wark,
Respondent
DECISION ON MOTIONS
Shaw J.
Released: September 8, 2014
/mls