Veenstra v. McCabe, 2014 ONSC 7298

Superior Court of Justice

COURT FILE NO.: 3145/14

DATE: 2014-12-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTINE ELAINE VEENSTRA

Applicant

– and –

ROBERT STEVEN MCCABE

Respondent

John Paul Paciocco, for the Applicant

Eric D. McCooeye, for the Respondent

HEARD: December 4, 2014

REASONS FOR INTERIM ORDER

JUSTICE E. GAREAU

1Before the court are competing claims of custody with respect to three young children, Christopher and Kianna, both born on August 3, 2008 and Gracelyn born on March 15, 2010.

2The motions for interim custody were heard on December 4, 2014. After hearing argument, the court reserved its decision.

BACKGROUND:

3The applicant, Christine Veenstra, is the maternal aunt of the children. Her sister, Sarah Boyle, was the biological mother of the children. The respondent, Robert McCabe, is the biological father of the children.

4The applicant resides on the St. Joseph Island, which is approximately 45 minutes east of Sault Ste. Marie, Ontario. The applicant resides with her husband, Curt Veenstra, and their 14-year-old child.

5At the present time, Christopher, Kianna and Gracelyn reside in the applicant’s home. The children are presently enrolled at and attend the St. Joseph Island Central School, located at Richard’s Landing on St. Joseph Island.

6The respondent father is of First Nations heritage and is a member of the Batchewana First Nation. The children’s mother, Sarah Boyle was not a person of First Nations heritage, nor is her sister, the applicant, in these proceedings.

7The respondent resides on the Batchewana First Nation Reserve near Sault Ste. Marie, Ontario. If he had custody of Christopher, Kianna and Gracelyn, he proposes that the children reside with him in his own home on the Reserve and attend Tarrentorous Elementary School in Sault Ste. Marie, Ontario.

8Sarah Boyle and Robert McCabe had not lived together for some period of time before this application was brought. They separated in the early months of 2010, prior to the birth of Gracelyn.

9Tragically, Sarah Boyle, was killed in a motor vehicle accident on July 19, 2014.

10At the time of Sarah’s death, Christopher, Kianna and Gracelyn were residing at the home of their aunt, the applicant, on St. Joseph Island. It is disputed on the facts how much time the children were spending with their father during that period (December, 2013 to July, 2014) but it is clear on the evidence that after December, 2013, the children were residing on St. Joseph Island and attending the elementary school at Richard’s Landing.

11This arrangement was to accommodate Sarah Boyle’s attendance at school. It is apparent on the evidence that this arrangement existed since sometime late in 2013, likely in December.

12The application before the court was commenced by Christine Veenstra on September 12, 2014. The court dealt with the application and the companion motion at Tab 3 of the continuing record on September 18, 2014 on an emergency basis. The court ordered that on a temporary basis, the children be in the care of and reside with the applicant and be enrolled at and attend St. Joseph Island Central Public School. The respondent received court-ordered access to Christopher, Kianna and Gracelyn weekly from Friday at 6:00 p.m. to Sunday at 6:00 p.m. commencing September 26, 2014.

13The order on September 18, 2014 was made without the respondent having any material filed before the court. The order was granted as a temporary, stop gap measure to stabilize the situation for Christopher, Kianna and Gracelyn.

14The order granted on September 18, 2014 was to be reviewable on October 2, 2014. On that day, the court dealt with a motion brought by the Batchewana First Nation to be added as a party to the proceeding, which resulted in the motion regarding the interim custody of Christopher, Kianna and Gracelyn being adjourned to December 4, 2014 for argument.

THE ISSUE OF INTERIM CUSTODY:

15There is a factual dispute raised on the material as to how involved the respondent father was in the lives of Christopher, Kianna and Gracelyn prior to the death of Sarah Boyle in July, 2014. It is the evidence of Christine Veenstra that the respondent was a disinterested, absentee father and only became interested in the children after the death of Sarah Boyle. It is the contention of the applicant that the respondent’s lack of contact with the children was a constant source of friction between Sarah Boyle and the respondent.

16On the other hand, it is the evidence of the respondent that he was actively involved in the lives of Christopher, Kianna and Gracelyn, both after the separation and up to the time of Sarah’s death. In fact, it is the evidence of the father that he and Sarah shared the care of the children and operated on a shared custody arrangement from their separation in 2010 to December, 2013.

17Although the respondent deposes that the fact that he shared in the care of his children, “can be verified by my family”, there are no affidavits from family members or friends in his community that corroborates this version of events given by the respondent. One would expect that this evidence would be readily available if it did in fact exist.

18The only independent source of information regarding the relationship between the respondent father and Sarah Boyle and their arrangements concerning the children is the text message communications between them attached as Exhibit “A” to the applicant’s affidavit sworn on October 27, 2014 at Tab 16 of the continuing record. Portions of those text messages may lead to the conclusion that there was, at one time, a sharing of the children between the respondent and Ms. Boyle, or at least that Ms. Boyle desired such a sharing of the children with the respondent. Portions of the text messages also suggest that the relationship between Ms. Boyle and the respondent was riddled with conflict and disagreement. Portions of the text messages portray a dysfunctional and toxic relationship between Mr. McCabe and Ms. Boyle, which would certainly not lead to the conclusion that a co-operative co-parenting relationship existed between them. As an example of shared parenting, there is a text that appears to be sent in early 2011 that reads as follows:

“Sarah: Can we switch u take them the first half and I take them the second? I have to do two assignments and email them to my teacher by Wednesday and its kind of hard when I have the kids and no internet on the Island to access the programs I need.

McCabe: No…just drop them off Tuesday then get them Friday…like quit changing your mind every time u turn around!! Like U say when I got to do something “no my problem”, “sorry for being an ass…but its what U do to me.”

In a January 17, 2011 entry, Sarah says in a text message:

“So you figure something out for the two weeks you have them. Because I already have day care for the two weeks I have them.”

These text messages between Sarah Boyle and Robert McCabe suggest that they are sharing the care of Christopher, Kianna and Gracelyn.

19However, there are text messages later on, closer to 2013, that suggest otherwise. These text messages indicate that Mr. McCabe is not seeing his children regularly and indicate a level of frustration by Sarah Boyle and a conflict between the two of them because of it. For example, in a text message dated September 17, 2013, Sarah says to Mr. McCabe:

“You can’t even take the kids one night this weekend coming up.”

The November 22, 2012 text from Boyle to McCabe reads as follows:

“I hate your guts you falldown deadbeat, can’t even watch your kids for a couple of hours so I can go buy Christmas gifts. Wow.”

On November 7, 2013, Boyle wrote to McCabe:

“I’m going to assume you not answering me means you aren’t taking them – had them 3 days out of a month. You deserve a father of the year award.”

An April 7, 2011 text message from Boyle to McCabe reads:

“You haven’t seen them in almost a month. You’re so selfish. Whatever don’t message me again. I will let them know.”

20The aforementioned text messages indicate possible scenarios from a sharing of the children by Sarah Boyle and Robert McCabe to Mr. McCabe being absent from the lives of Christopher, Kianna and Gracelyn. From the chronology of the text messages, it appears that at the beginning of the separation, Mr. McCabe was more involved with his children with this tapering off in 2012 and 2013. What the text messages clearly indicate is a toxic relationship between Sarah Boyle and Robert McCabe. It is difficult to appreciate how a co-parenting relationship could have been fostered and sustained given the high level of dysfunction between the parents of Christopher, Kianna and Gracelyn, which is clearly evidenced by the text messages.

21As with the text messages, there are many other unanswered questions in this case in areas where the court should be confident and comfortable before making such an important decision as to who will have custody of Christopher, Kianna and Gracelyn. We know that the applicant is married and resides with her husband, Curt Veenstra, but the court knows little about Mr. Veenstra. He has not sworn an affidavit in this proceeding. The court knows nothing about his relationship with Christopher, Kianna or Gracelyn or his level of commitment to them. We know that Mr. Veenstra is employed, as is the applicant, Christine Veenstra. The court does not have the particulars of their work schedules or a clear understanding of what happens to the children when Mr. and Mrs. Veenstra are working and unable to care for them. How often does this happen and for what period of time? There is no information provided to the court concerning this. The court is advised that when the Veenstras are working at night, that the children’s great aunt, Jenny Simons assists with the children. This fact was disclosed in the first affidavit provided by the applicant, sworn on September 12, 2014 at Tab 4 of the continuing record. Attached to that affidavit as Exhibit “B” is a typed letter signed by Jenny Simons and dated August 20, 2014. Depending on how that letter is read, and what portions of the letter are focused on, the court could be left with the conclusion that the children are not living with the applicant and her husband, but rather with Ms. Simons and are being cared for by her. For example, the first paragraph of Ms. Simons’ letter reads as follows:

“Christopher, Kianna and Gracelyn McCabe have stayed at my house (the “family home” for over 50 years) since December, 2013 when they moved in so their mom could complete her studies at Sault College (expecting to be there for at least 2 years). They adapted well to the structure and routine (family meals at the dinner table, regular bath time/story time/bedtime) with myself and their Auntie Christine, Uncle Curt, and cousin Gavin (14), who live next door.”

The last paragraph of Ms. Simons letter reads as follows:

“All of the children express confusion about where and with whom they belong, although they speak of being “at home” and returning to “their school”. They need stability, continuity and structure. Being in the care of Christine, with the support of close family with available time, as well as financial stability, the children can begin to re-build their lives in a loving, secure environment. To remove them from this ‘home’ would result in further trauma at a time when they are desperately clinging to the structure and family that they know.”

22With all due respect to Jenny Simons, her letter dated August 20, 2014 raises more questions than it answers about the caregiving arrangements for Christopher, Kianna and Gracelyn and the schedule of care that is being provided to them by the applicant and Ms. Simons.

23There is also unanswered questions about the respondent’s work schedule, the particular caregivers required when the children are with him and he is required to work and a specific plan of care for the children. The earlier affidavits filed by the respondent in the continuing record indicated that he was available for the children on a full-time basis but at paragraph 54 in his most recent affidavit at Tab 19 of the continuing record, Mr. McCabe indicates that “I am working, living a stable lifestyle”. No particulars of this employment are provided by Mr. McCabe or how it will impact his ongoing care of the children if they reside with him.

24Perhaps the most troubling absence of information before the court concerns the special needs of Christopher, Kianna and Gracelyn and the educational plan in place for them at the St. Joseph Island Central Public School. The special needs of the children are identified by the applicant in the initial affidavit she filed with the court at Tab 4 of the continuing record. Gracelyn is identified as having “attachment and abandonment issues”. Kianna is identified as having “development delay” and difficulty with her language skills. The applicant indicates at paragraphs 50 to 53 of her affidavit at Tab 4 of the continuing record:

“Although Kianna is six years of age, she frequently releases her bowels in her pants, notwithstanding her age. Kianna has also exhibited serious adverse reaction prior to any visits with the respondent. She is academically behind and has a poor memory. The St. Joseph Island Central Public School has enlisted Kianna in the Primary Intervention Program to assist in assessing and providing for her unique needs.”

25In her affidavit at Tab 4 of the continuing record, the applicant identifies Christopher as having the most extreme special needs of the three children. The applicant particularizes the special needs of Christopher in paragraphs 55 to 59 inclusive of her affidavit sworn on September 12, 2014 as follows:

“Christopher exhibits frequent violent outbursts at school and an inability to control his emotions. He is significantly developmentally delayed and suffers impairment of his fine motor skills. For example, he cannot hold a fork or a pencil. Although he was supposed to start grade one this fall, he is essentially about one and a half years delayed beyond his chronological age. Christopher requires occupational therapy to deal with his impairments. Although Christopher was to be in full-time attendance at St. Joseph Island Central Public School commencing January, 2014, his behaviour precluded full-time attendance. In fact, it took a consistent concerted effort of me, my husband, his teacher and other school support staff to bring Christopher to the point where he could tolerate school for a full day. This, in fact, took us until March, 2014. Christopher’s school on St. Joseph Island has assisted Christopher with an individualized education plan, including in-class behaviour planning and one-on-one educational assistance assigned solely to Christopher. Christopher’s needs clearly demanded such specialized personal intervention.”

26To fully appreciate the special needs of Christopher, Kianna and Gracelyn, the court will require information from the children’s health care providers, including physicians and counsellors. This information is not presently before the court. Additionally, in order to fully appreciate the children’s unique educational needs, the court will require detailed information about what the St. Joseph Island Central Public School can provide by way of special programs, educational plans and school environment as it pertains to Christopher, Kianna and Gracelyn. This is not presently before the court. Additionally, there is no such similar information before the court from Tarrentorous Public School, although this is the school that the respondent proposes that the children attend if he had custody of them.

27These, among other questions, are questions that must be answered and information that must be before the court before the court can determine, in the long term, what is in the best interests of the children and who should have custody of them. This decision must be made by considering a balancing of all the factors set out in s. 24(2) of the Children’s Law Reform Act, including the blood relationship of the parties to the children and the parental status of the parties. It is well-settled law that in cases involving custody claims involving a parent and a non-parent, the best interest and welfare of the children is the paramount consideration not a parental right to custody. That principle enunciated by the Ontario Court of Appeal in Moores v.Feldstein, 12 R.F.L. 273, was confirmed again by that court in the case of Crocker and Crocker v. Sipus, 41 R.F.L. (3d) 19. In the Crocker case, the Ontario Court of Appeal confirmed its earlier decision in Moores v. Feldstein as the law of Ontario. As indicated in the annotation to the Crocker case, “although parental status is not irrelevant, neither is it an overriding factor. It is but one consideration to take into account in deciding what is in the child’s best interest.”

28Thus, the fact that the respondent is the biological father of Christopher, Kianna and Gracelyn does not give him an advantage in the proceeding. It does not in and of itself disentitle the applicant to custody of the children. Having said that, all things being equal, without a distinct advantage of one home over the other, it is hard to imagine why the children would not have the right to reside with their biological parent.

29The difficulty with this case, as it currently stands, on the material presently filed, the court is unable to determine if all things are in fact equal between what Ms. Veenstra can offer to Christopher, Kianna and Gracelyn and what Mr. McCabe can offer. As noted earlier in my Reasons, there is currently an absence of evidence in several critical areas pertaining to the determination as to what is in the best interest of the children.

30This matter requires a trial at the earliest opportunity for the court to hear viva voce evidence from all potential caregivers to the children, from their health care providers, and from the educators at the St. Joseph Island Central Public School and Tarrentorous Public School as to what educational plans would be in place for the children and what would be available to the children in each educational setting. Only with this information, by way of viva voce evidence tested by cross-examination, will the court be able to find a long-term solution that is in the overall best interest of Christopher, Kianna and Gracelyn. I am, therefore, directing a trial of the issue of custody and access with this trial to take place before June, 2015 subject to the court’s schedule and counsel’s schedule to accommodate this. My rationale in doing so is that the ultimate decision as to custody should be well in place before the summer school holidays of 2015 to accommodate any adjustments which may be necessary to take the children into the 2015/2016 academic school year commencing in September, 2015.

31In the meantime, I am not prepared to alter substantially the present arrangement that is in place on the evidence that is currently before me in the continuing record. There is no reason to doubt that the children have special needs, although I am not comfortable that I know the extent of those needs. There is also no doubt to believe that Christopher, especially, had a great deal of difficulty in transitioning to his new school on St. Joseph Island, so much in fact that his full-time attendance at the school was delayed as a part of the transition. With these antecedents, I am not of the view that changing the schools of the children during the middle of the school year is in the best interest of the children. I realize that a change in schools could be accomplished over the upcoming Christmas school break, but I am not confident that a two-week break is sufficient to properly effect a transition, especially given the difficulties Christopher has had in the past. All three children have attended their present school on St. Joseph Island since January, 2014, except for a short period of time in September, 2014 at Tarrentorous Public School. The children had not previously attended Tarrentorous School prior to September, 2014, having previously attended F.H. Clergue Elementary School before attending St. Joseph Island Central Public School in January, 2014. There is no information presently before the court which would lead me to conclude that Christopher, Kianna and Gracelyn are not progressing well at their present school. To place interim custody with the father would require a change in schools which, in my view, creates too great a risk to the overall stability and progress of the children at this time.

32It may be that after a full investigation into this matter, that only a trial will provide, all things will be equal between the applicant and the respondent father and the father will receive custody of his children. This decision cannot be made at this time and my view is that any change in the current situation will involve too much of an adjustment for Christopher, Kianna and Gracelyn and may create too many difficulties for them.

33As a result, there will be the following interim order pending the trial of this matter:

(a) the applicant and the respondent shall have interim joint custody of Christopher Colton McCabe born August 3, 2008, Kianna Rosslyn McCabe born August 3, 2008 and Gracelyn McCabe born March 15, 2010. The said children shall be cared for by the applicant, Christine Veenstra during the week and by the respondent, Robert McCabe, on the weekends;

(b) the applicant and the respondent shall have all the incidents of joint custody;

(c) the children shall continue to attend St. Joseph Island Central Public School for the remainder of the 2014/2015 academic year;

(d) there shall be a trial of the issues of custody and access with this trial to take place prior to June, 2015. This will enable the court to make a decision about final custody prior to the start of the 2015/2016 academic school year and enable any transitions required for the children to be in place prior to September, 2015;

(e) the respondent shall have the children in his care each weekend from Friday evening at 6:00 p.m. to Sunday evening at 6:00 p.m. to be extended to Monday at 6:00 p.m. if Monday is a statutory or school holiday. At all other times, the children shall be in the care of the applicant;

(f) the weekend provisions shall be suspended for the Christmas vacation period in 2014 and March school break in 2015. For the Christmas vacation period in 2014, the respondent shall have care of the children from Friday, December 19, 2014 at 6:00 p.m. to Sunday, December 21, 2014 at 6:00 p.m. The respondent shall have the children with him again from December 26, 2014 at 1:00 p.m. to Friday, January 2, 2015 at 1:00 p.m. The respondent’s regular weekend care of the children will re-commence on Friday, January 9, 2015.

(g) the respondent shall have the children in his care for the March school break in 2015 from 6:00 p.m. the Friday school is released to 6:00 p.m. on Sunday the day prior to school re-commencing.

34Let me make it clear to the parties that the intention of my previous order of September 18, 2014 and this order is not to create a status quo which the applicant can rely upon. I am fully aware that the order made on September 18, 2014 was made without the respondent having an opportunity to fully put his position before the court. It was in effect an ex-parte order. The order that I am making today is not based on placing any weight on the argument of status quo. My decision on interim custody is not based on a status quo of care favouring the applicant. The decision of today’s date is based on the fact that both the conflicting facts and absence of information before the court cannot be rectified without a trial of the issue where all the pertinent information is before the court. On the material currently before the court, I have serious concerns about the effect of changing the children’s school in mid school year without a lengthy transition period between a change of schools would have on the children given their unique challenges. This is the overriding factor in my decision not to substantially change the present arrangement pending the trial of this matter.