COURT FILE AND PARTIES
COURT FILE NO.: 88-2121D
DATE: 2014/10/01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sheri Lynn Peet (Applicant)
AND:
Bryan Lawrence Zolob (Respondent)
BEFORE: Justice I.F. Leach
COUNSEL:
David A. Reid, for the Applicant
Jenn M. McMillan and M. Raithy, for the Respondent
Alan Gorth, for the Office of the Children’s Lawyer (OCL)
HEARD: October 1, 2014
ENDORSEMENT
[1] The interim relief currently sought by the Respondent father is fully outlined and particularized in the notice of motion found at Tab 16 of the Continuing Record. However, his primary request, (supported by the OCL but opposed by the Applicant mother), is for an interim order that would give each access to their two sons on an “alternating week” basis pending trial.
[2] Although I am rendering this endorsement in the immediate wake of the parties’ oral submissions, and for the sake of brevity will refer only to some of the evidence and points raised by the parties, I emphasize at the outset that I have carefully reviewed and considered the parties’ material and positions in their entirety.
[3] In particular, while each party has filed a considerable amount of material, (including substantial affidavits, facta and books of authorities), addressing the motion, I fortunately had the opportunity to review and consider that material in advance and at length yesterday. Moreover, that review supplemented my prior familiarity with the matter, given my earlier review of material filed in relation to an earlier motion, (addressing summer access), which I was scheduled to hear in July of this year, prior to its resolution by way of a consent endorsement request.
Background
[4] The underlying facts are addressed in great detail in the motion material, but for present purposes generally may be summarized as follows:
• The parties were married but separated in 2010, after cohabiting for 8-10 years. Their relationship produced two children: James or “Jamie”, (now age 13), and Michael, (now age 9).
• Although there are some disputes as to their relative contributions to parenting during cohabitation, neither party disputes the fact that both were and are loving and caring parents, who have done their best to remain actively involved in their son’s lives, and that each enjoys a close personal relationship with the boys. For the most part, the affidavit material is refreshingly devoid of personal attacks by either party on the integrity and/or parenting abilities of the other. Similarly, the material discloses nothing in the way of major disagreements between the parties as to how the boys should be raised.
• All concerned also agree that each parent lives in a stable and loving home environment, and has the additional support of extended family, (including but not limited to grandparents), who are also loving, caring and actively involved in the lives of these two relatively well-adjusted and thriving boys.
• Moreover, no one disputes that, in the 4½ years since separation, (and prior to involvement of the OCL), the boys generally have lived primarily with their mother, while enjoying overnight access with their father every week-end, and additional frequent but flexible/irregular additional week-night access as the Respondent has continued to remain actively involved in the boys’ various extra-curricular activities.
• However, the parties have never come to a formal agreement about residence or relative parent access, as far as the boys are concerned, and the court has never been asked, until now, to make any type of formal order in that regard, (apart from the temporary consent order, mentioned above, which provided for alternating week access during the summer of 2014).
• The material makes it abundantly clear that discussion and resolution of residence and access arrangements has been an ongoing source of considerable tension, frustration and friction since the parties’ separation. Neither party disputes that reality, but each says the other is to blame.
• From the Applicant’s perspective, she is obliged to take the initiative in terms of access arrangements and proposals, and in many cases proceed with the setting of a schedule somewhat unilaterally, because the Respondent consistently fails to respond to such overtures, or responds belatedly and inadequately.
• As for the Respondent, he says he has never been content with what he views as erratic and inconsistent dictates of the Applicant, as far as his access to the boys is concerned, particularly insofar as they are at odds with his clear and long-standing requests for more and equal time with his sons. He acknowledges that, in practice, he frequently has capitulated to the Applicant from time to time, but says he did so in order to minimize conflict and to utilize whatever access time the Applicant was prepared to give.
• Whether because the children were saying different things to each parent, or each parent was inclined to perceive and hear what each wished to hear, the parties also had divergent views as to what the children wanted, in terms of residential and access arrangements. In particular, the Applicant believed the boys generally were content with existing arrangements, while the Respondent felt the boys wanted more time with their father, and were increasingly troubled by their parents’ ongoing dispute about access and residence.
• The current impasse follows the involvement of the OCL, which seems to have commenced with Mr Gorth’s appointment as the OCL’s legal agent in or about June of 2013.
• Mr Gorth met with the parties, and with the boys, and then made a number of suggestions to move the matter forward by way of agreement. For example, responding to one stated desire of the boys, Mr Gorth suggested a variation in practice so as to give the boys at least some week-end time with their mother, and the Respondent agreed to this. (The boys now apparently spend approximately every third week-end with her.) However, attempts at further agreement, (e.g., to address another stated desire of the boys for increased access with their father, by expanding the Respondent’s week-end and/or week-night access), were not successful.
• In an effort to move matters forward to resolution, without the need for an extended trial, Mr Gorth then requested and secured the involvement of a Clinical Investigator from the OCL; i.e., Robert Pittman. Mr Pittman then met with each of the boys in the Respondent’s home, (on July 8, 2014), and again at their mother’s home, (on July 18, 2014). His observations and findings are detailed in an affidavit sworn September 8, 2014, but generally indicate that the boys presented as “mature, responsible and intelligent” children, who were able to express in a “clear and effective way” that they love each of their parents, and now very much want to live with both parents equally, on an alternating week basis. Those findings and perceptions accord with Mr Gorth’s perception of what both boys clearly want, based on his conversations with them. Mr Gorth’s submissions also support those of the Respondent, insofar as he confirms that the boys are keenly aware of the conflict and tensions between their parents, and want that to stop.
• In the wake of those indications, the Respondent has decided to move forward with this request for interim relief, which effectively would restore and continue the temporary arrangement that was put in place this past summer.
Party Positions
[5] In broad terms, the Respondent says that some form of order, specifying residential and access arrangements is required to increase certainty for all concerned, and thereby minimize conflict between the parties and resulting stress and anxiety for the boys. The Respondent says that ordered arrangement should conform to the express and considered desires of the boys, as confirmed by the objective inquiries of the OCL counsel and investigator. It would recognize the reality that the boys are now older and more independent. The Respondent also submits that the proposed alternating week arrangement would greatly simplify life for all concerned, with minimal alteration and disruption to the boys’ lives in terms of school, friends and routines.
[6] In similar broad terms, the Applicant agrees that some form of order would be beneficial, in terms of certainty, but she says the existing arrangements represent a “status quo” that should not lightly be disturbed, especially when there is a realistic prospect of this matter reaching trial at some point in 2015, at which time all aspects of the residence and custody issues could be explored in much more detail; e.g., by way of cross-examination, and consideration of additional evidence from collateral sources such as other family members. She says that is advisable, in particular, in relation to the indications of the boys’ supposed views and preferences. In that regard, the Applicant believes that statements made to the OCL counsel and clinical investigator may have been tainted by Respondent manipulation of the boys, who also, in the Applicant’s opinion, do not really understand the possibly disruptive and detrimental impacts that may flow from alternating residence.
[7] The OCL supports the position of the Respondent, insofar as it accords with the clearly expressed views of the children, and because the OCL feels an alternating week arrangement would be more likely to minimize conflict between the parents that is inherently detrimental to the boys.
Analysis
[8] The court’s jurisdiction to entertain and make such interim orders is set forth in section 16 of the Divorce Act, R.S.C. 1985, c.3, which similarly outlines the considerations which must govern exercise of the court’s jurisdiction and discretion. In particular, pursuant to s.16(8), the court is directed to consider “only the best interests of the child of the marriage as determined by reference to condition, means, needs and other circumstances of the child”. However, other legislative guidance includes a direction, pursuant to s.16(1), that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”.
[9] The authorities in this area confirm that determinations pursuant to these broad provisions of the Divorce Act are inherently a very fact specific exercise, in respect of which Ontario courts frequently have structured analysis by reference to the expanded legislative definition of the “best interests of [a] child” set forth in s.24(2) of the Children’s Law Reform Act, R.S.O. 1990; see, for example, K.A.T. v. J.T., 1989 8818 (ON SC), 23 R.F.L. (3d) 214 (Ont.U.F.C.), at paragraphs 25-26. Those provisions outline eight broad categories of a child’s “needs and circumstances”, consideration of which should be included in determining the best interests of a child. I turn to those now, in succession, under the following indicated headings.
a. Love, affection and emotional ties
In my view, this is a neutral consideration in this case. The evidence indicates that the boys have strong and equivalent bonds with each parent, and with each parent’s extended family. The reality is that these two children fortunately will enjoy a completely loving and supportive environment when in the company or residence of either parent. Similarly, in my view, neither boy should be denied as much access as possible to each parent, and each parent’s extended family, if that deprivation realistically can be avoided.
b. Child views and preferences, if they can reasonably be ascertained
In my view, this is a factor that weighs heavily in this case, where the boys are no longer of tender years, and considerable efforts have been made to obtain their views through the most objective indirect means possible, short of the court hearing from them directly.
Although the Applicant is inclined to minimize the strength of this evidence by suggestions that the OCL has made less than thorough inquiries, that the Respondent has manipulated the boys into making responses favouring his position, and/or that the views of the boys are naive or uninformed, I disagree. The OCL takes its role seriously, and employs, in particular, clinical investigators who are very sensitive, through training and experience, to the possibility of parental manipulation, and the need to ensure that a child’s statements represent an accurate and meaningful view of the child’s independent perceptions and desires.
In this case, the affidavit evidence from Mr Pittman describes, in very straightforward and compelling terms, two boys who are keenly aware of their environments and possibilities, who see very little difference between the very loving, caring and supportive environment they experience at each parent’s home, and who now simply want to spend equal time with each parent. To the extent Mr Pittman objectively detected any possible manipulation, his evidence suggests such efforts may have been made intentionally or unintentionally by the Applicant, rather than the Respondent. In particular, according to the boys, the Applicant encouraged them to say what they want, but also simultaneously conveyed her worries about the boys spending more time at their father’s home, and the detrimental impact such a change might have on such things as their continued ability to partake in sports. Notwithstanding such comments by the Applicant, the boys still were asking, through OCL counsel and the OCL clinical investigator, for equal time with both parents through an alternating week arrangement.
c. Length of time child has lived in a stable home environment
This consideration addresses the court’s understandable reluctance to uproot a child from familiar surroundings, with simultaneous exposure to considerable change and inherent instability through the need for important adjustments. Such changes must not be undertaken lightly.
In this case, there is no question that the Applicant has provided a generally stable home environment for the boys since the time of the couple’s separation; a home with which they are very familiar and comfortable, and factors into all of their existing routines.
However, the “second home” provided by the Respondent, (who lives with the boys’ paternal grandparents and intends to remain there for the foreseeable future), is also unquestionably stable, and an environment in which the boys are equally comfortable and familiar. It too has factored into their routine since the time of their parents’ separation.
Moreover, I think it needs to be recognized and emphasized that the Respondent’s proposal does not entail the boys being uprooted from their mother’s home, or significant alterations to the daily routine of their lives. If the Respondent father’s proposal is accepted, the boys would continue to spend half their time in their mother’s home, would continue to attend the same school, continue to have the same access to the same friends, and continue to engage in the same extracurricular activities, which largely are supported by both parents. The only real difference is that they would be dividing their overnight stays equally between both homes over time, with fewer access transfers and fewer uncertainties as to when and how they be seeing their father, and which parent will be responsible for facilitating participation in extra-curricular activities during the week.
In that regard, it seems to me that ongoing disputes about access arrangements, and ad hoc adjustments to mid-week access arrangements to accommodate the boys’ busy schedules even when the parents are trying to agree with each other, effectively creates a degree of instability in both homes, from the boys’ perspective. It seems to me that an alternating week arrangement, with each parent assuming primary responsibility for all activities during his or her week, is far more likely to ensure consistency and certainty from the boys’ perspective.
d. Ability and willingness of each person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child
I see this as an entirely neutral factor in this case. There was no suggestion that either parent was incapable of addressing such needs of the children, particularly when each parent’s extended support network is taken into consideration.
e. Plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing
As noted above, the Respondent’s proposal does not contemplate any significant changes to the overall routine of the boys’ life, apart from their place of residence and the time they will spend with each parent. The houses in which each boys have lived and slept for the past 4½ years will remain the same, (although the time spent in each now will be equally divided), and there will be no changes to such important matters as the boys’ schools, friends and extracurricular activities, (although the boys necessarily will go to and from their school through different routes and methods of transportation).
The Respondent’s “plan” simply contemplates that there will be weekly transfers and assumption of primary parent responsibility for extracurricular activities, reducing the need for ongoing negotiation, debate and probable disagreement about arrangements and more frequent transfers of responsibility during each week.
As for the Applicant, she asks that the parties continue with the arrangements generally followed to date in practice, albeit buttressed by the greater security and certainty that will come from any order of the court. However, when I pressed Applicant counsel for details of what such an order should stipulate, in terms of mid-week access for the Respondent, there was an acknowledged difficulty in specifying a rigid but workable timetable, (e.g., in terms of particular weeknights or the timing of access transfers), given the varying demands of the hectic extra-curricular pursuits of these two very active boys.
In my view, the above considerations simply underscore the difficulties and challenges inherent in the current situation, which is simply not working, in terms of minimizing parental conflict and maximizing certainty for the boys. Alternative week access, inherently minimizing the number of access transfers required, and enabling not only the boys but their parents to make more simple and reliable plans, seems far more likely, in my view, to address such concerns in these particular circumstances.
f. Permanence and stability of the family unit with which it is proposed that the child will live
This too is a neutral factor in the circumstances of this case.
The homes offered by each parent are characterized by permanence and stability, with regular involvement and support of and by each parent’s more extended family.
g. Ability of each person applying for custody of or access to the child to act as a parent
This is another neutral consideration, in my view.
In particular, both parents now have jobs that give them the flexibility to be there for the boys during non-school hours and on week-ends.
Although the Applicant suggested that the Respondent’s job was less flexible than hers, and might interfere with his availability and ability to parent the boys, (resulting in care necessarily being provided by his parents), there was no evidence that the Respondent’s job responsibilities presented any significant challenges or concerns in that regard during the alternative week arrangements put in place over the recent summer months.
Moreover, although the Applicant indicates and emphasizes that she has assumed a greater share of responsibility for parenting the boys in the past, (and the Respondent’s past employment demands suggest there must have been periods when this was so), the reality is that children’s needs change over time, and a parent’s role in a child’s life may change as a child’s needs change. Access should be determined according to a child’s current age and stage of development, and in my view there is really no evidence to indicate that either parent, in this particular litigation, is less available or less capable of addressing those current needs.
h. Relationship by blood or through an adoption order
This self-evidently is a completely neutral consideration in this case. The boys stand in equal proximity not only to their parents, but to others such as the paternal and maternal grandparents, who are equally concerned for the boys’ welfare.
[10] On the whole, I think a review of the individual considerations set forth above therefore favours the Respondent’s “alternative week” proposal, and the interim order requested by the Respondent.
[11] As to whether that preliminary view should result in the interim order sought by the Respondent, I am very mindful of what has been referred to variously as a “working rule” or “principle”, relied upon heavily by the Applicant in this case, that a “status quo” generally should not be disrupted or altered on an interim basis, where child custody arrangements are concerned, unless there are good and compelling reasons for the change.
[12] The concern raised by the Applicant has been articulated by the courts in various ways.
[13] For example, in Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.), Laskin, as he then was, said the following:
It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration.
[14] More recently, Justice Blishen made the following observation in Samson v. Samson, 2006 42645 (ON SC), [2006] O.J. No. 5108 (S.C.J.), at paragraph 24:
It is generally accepted that the status quo should not be changed on an interim basis in the absence of evidence that the existing arrangement is harmful to the children. Maintaining the status quo may not always be in the best interests of the child but there should be some significant evidence to justify a change.
[15] In my view, however, such comments must be kept in perspective for a number of reasons, which include the following.
[16] First, as emphasized in Holt v. Anderson, 2005 3226 (ON SC), [2005] O.J. No. 449 (Div.Ct.), at paragraphs 9-10, cases turning on preservation of the status quo actually reflect exercise of the discretion by motion judges in the circumstances of the cases actually before them, and do not elevate the maintenance of status quo into “an immutable principle”. As demonstrated in the articulations of the status quo concern noted above, courts usually qualify their comments; e.g., by emphasizing that the overall concern is for a child’s best interests, and changes to the status quo may be justified. Moreover, as noted above, concerns about stability, (reflected in concerns for disruption about the status quo), are already factored into the considerations suggested by s.24(2) of the Children’s Law Reform Act, supra, but must be weighed against competing considerations. In that regard, I agree with the editors of the Mamo and McLeod Annual Review of Family Law, at p.209, that “preservation of the status quo on an interim motion … should not be seen as a goal in and of itself”.
[17] Second, it seems to me that concerns about disturbing status quo have more force when that status quo is reasonably clear, and especially when it has been clearly defined by previous party agreement or a court order. Such arguments have less resonance in circumstances, such as the one before me, where there is evidence that arrangements have remained somewhat unsettled, and the subject of ongoing disagreement and negotiated changes, without any prior court determination of what arrangement might be in the best interests of a child.
[18] Third, as emphasized in authorities such as Holt v. Anderson, supra, not each and every proposed change, and corresponding alteration in the status quo, will be of equal magnitude and concern. As Justice Lane observed at paragraph 11 of that decision, “a case of bouncing a small and bewildered child back and forth between parents”, with significant disruptions to an infant’s surroundings and ongoing contact with the non-custodial parent, has to be distinguished from a variation, supported by the OCL, where “a child of the age of reason …wants a return to an arrangement allowing [him or] her to see more of [his or] her father than the arrangement imposed by the mother permits”, and where the new arrangement “involves no great change, no moving from one city to another and no separation from either parent”.
[19] In my view, the circumstances of the particular case before me fall into the latter category of variations and change described by Justice Lane.
[20] The Respondent’s proposal involves no great changes, or the imposition of any unfamiliar surroundings or activities, from the boys’ perspective. To the contrary, it is a workable arrangement with which they are already somewhat familiar, given the arrangements implemented this past summer.
[21] The boys simply will be spending, on a more extended basis, equal time with each parent in already familiar surroundings, in a much more structured and predictable way.
[22] The boys want this, and I frankly see no real justification for resisting the desired change, apart from the Applicant’s understandable desire not to see less of her boys, and adherence to the status quo as a goal for its own sake.
[23] To the extent “evidence that the existing arrangement is harmful to the children” or “significant evidence to justify a change” is required to alter the suggested status quo, I think that is sufficiently provided in this case by:
i. evidence from the Respondent and OCL that the parents’ ongoing disagreements and conflict concerning access are having a detrimental impact on the boys, who want the fighting to stop; and
ii. objective evidence of the boys’ independent views and preferences, now that they are older and their needs have changed.
[24] In relation to the first concern, the Applicant denies such suggestions, and points to the fact that the boys generally seem to be doing well. However, the tensions and acrimony between the parties, in relation to the residence and access issues, was amply demonstrated in evidence of the written communications between them. I think it highly unlikely that such unpleasant realities would escape the attention of two boys with the maturity, intelligence and sensitivity described by the OCL and their teachers. The evidence and submissions of the OCL make it clear that the boys, and Jamie in particular, are aware of the fighting, and understandably want it to stop. In my view, the Respondent’s proposal will go a long way to reducing the need for communication, negotiation and apparently inevitable disagreements between the parties. The Applicant’s suggestion of adherence to the status quo will not.
[25] As for the second concern, my comments in that regard are set forth above.
[26] Acceptance of the proposal also obviously fosters the principles emphasized in s.16(10) of the Divorce Act, supra.
[27] In the result, an order shall go, granting the relief requested in paragraphs 1 and 2 of the Respondent’s notice of motion at Tab 16 of the Continuing Record.
[28] I nevertheless wish to make clear, (consistent with the confirmation obtained from Respondent counsel during the course of submissions), that the resulting interim order is not intended to be a determination of all aspects of access pending trial.
[29] In particular, the requested relief was not intended, and my order is not intended, to end all further discussion and decision regarding further specific access issues such as those dealing with where the boys should spend particular holidays, (whether summer or festive), and other special occasions such as Mother’s Day and Father’s Day. Such additional matters were not addressed in the material placed before me, or the parties’ submissions, and I in no way am meaning to suggest, by the relief granted, that the boys necessarily should spend such time or times with the parent who happens to have them according to the “ordinary” alternating week schedule effectively established by my interim order.
[30] My hope is that the interim order will lend some measure of stability and reduction of conflict to the parties’ further necessary discussions in that regard, thereby helping to reduce the need for further litigated solutions.
[31] At the close of submissions, counsel agreed that costs of the motion should follow the event, (i.e., with costs awarded to whichever of the parents was successful in advancing or resisting the motion), with costs fixed in the all-inclusive amount of $3,500.00. The Applicant therefore shall pay the Respondent his costs of the motion, fixed at $3,500.00, payable within 30 days.
“Justice Ian Leach”
Justice I.F. Leach
Date: October 1, 2014
COURT FILE NO.: 88-2012D
DATE: 2014/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHERI LYNN PEET
Applicant
- and -
BRYAN LAWRENCE ZOLOB
Respondent
Endorsement
JUSTICE I.F. LEACH