Clairoux v. Clairoux, 2014 ONSC 877

Court File and Parties

COURT FILE NO.: 328/13

DATE: 20140306

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Peter Clairoux, Applicant

AND

Amy May Clairoux, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Christina Rorabeck for the Applicant

Deborah Swartz for the Respondent

HEARD: February 19, 2014

ENDORSEMENT

Issue

1The issue on this interim motion is whether the access arrangement should remain as set out in the existing without prejudice order, or whether it should be changed to reflect the recommendation in the recently received Report of the Children’s Lawyer.

Facts

2The parties separated in 2006. They have one child Brooklyn who is 10. Until these proceedings commenced at the end of June 2013, the parties made decisions about her care without court involvement.

3In February 2013, Ms. Clairoux and her partner made a decision to move to St. Catherines because his job was transferred there. They bought a house and enrolled Brooklyn in school for the next year. At some point Ms. Clairoux ended her job in Kingston and took one in St. Catherines. She registered to go back to school. She only told Mr. Clairoux of her plan for the first time on June 21, 2013, at the end of the current school year, approximately 4 months after making her decision. Up until that point the parties had been very cooperative and accommodating of each other regarding access, and had worked well together as the parents of Brooklyn.

4Immediately upon learning of Ms. Clairoux’s plan, Mr. Clairoux brought an application and an urgent motion to prevent Ms. Clairoux from moving with the child, and for joint custody and equal time sharing. His evidence was that he had had Brooklyn every other weekend since 2006, and then starting in 2009 he still had her alternating weekends plus additional days during the week to accommodate Ms. Clairoux’s work schedule. In his first affidavit he said the additional days were “3-5 days per week” and in his second affidavit he said “two to three days a week”. He claimed that the parties made joint decisions regarding Brooklyn’s care. Although it does not appear to be an actual record, his girlfriend provided an affidavit summarizing his time with the child from June of 2012 to June of 2013, as averaging slightly more than half. Mr. Clairoux noted that Brooklyn has only lived in Kingston her whole life, and has family here on both sides, friends, and community connections, which is not disputed.

5Ms. Clairoux disagreed with the evidence about access and said that she was the defacto custodial parent with primary residence. She did confirm that Mr. Clairoux began having Brooklyn after school overnights during the week along with his every other weekend access as of 2009. However, she claimed it was 1 or 2 nights per week and said there was no consistent overnight access schedule. She maintained that Brooklyn would have a stable home with her in St. Catherines, and that she would accommodate Mr. Clairoux’s access by meeting him half way for exchanges.

6The urgent motion was heard on July 31, 2013. An interim order was made that the child’s residence was to remain in Kingston until September 1, 2013, thus allowing time for a case conference. The Office of the Children’s Lawyer was also appointed.

7The case conference was heard on August 12, 2013, and afterwards Mr. Clairoux brought a motion for the same relief he sought on the urgent motion. Further evidence regarding the pre-existing arrangement was provided from the parties and other witnesses. Mr. Clairoux said his time with the child was “on an equal basis” for the past four years. Ms. Clairoux provided an access calendar which she had drawn up and which she said established that Mr. Clairoux’s average time with the child was 35% in 2011 and 34.5% in 2012. The picture for 2013 was not clear, as January, February, and March showed no mid-week access, but April, May and June showed about 40% of total time for Mr. Clairoux’s time with Brooklyn. It was not established that the calendar entries were made contemporaneously. There was also evidence, mostly from Brooklyn, that she was now experiencing anxiety.

8Mr. Clairoux’s motion was argued before Abrams J. on August 28, 2013. Justice Abrams made a temporary without prejudice order along the lines requested by Mr. Clairoux, namely prohibiting Ms. Clairoux from removing the child from Kingston and providing for equal time with the child on a week-on/week-off basis.

9The Report of the Children’s Lawyer is authored by clinical investigator Sandra Kapasky, and is dated December 12, 2013. It is the only real change since August 28, 2013. It indicates that:

(a) Brooklyn enjoys school in Kingston in the French immersion program, and is involved with the student counsel and extra-curricular activities. She has many friends in school and through soccer and girl guides. She is close to her extended families in Kingston. Brooklyn’s clear wishes are to keep her primary residence in Kingston. Ms. Kapasky said that would be in her best interest.

(b) Mr. Clairoux has been consistent and supportive during access and in the last few years has increased his involvement. Ms. Kapasky did not purport to make a finding about how much time he had – the main factual dispute between the parties here – but regardless of the amount she said that Brooklyn has been in the primary care of her mother.

(c) The conflict has damaged the parents’ ability to work together. While Brooklyn always had parents working together on her behalf and this made her feel safe and secure, upon the litigation starting that sense of security has been damaged. This evidence comes for the most part from the child herself.

(d) The recommendations include joint custody, primary residence with Ms. Clairoux “in Kingston”, and access to Mr. Clairoux every other Thursday after school to Monday morning at school, as well as every other Thursday after school to Friday morning.

10Ms. Clairoux did not obtain a residence for her and Brooklyn in Kingston until a week after receiving the OCL recommendations, and she still owns the home with her partner in St. Catherines. Mr. Clairoux argues that Brooklyn is not attending the same level of activities in Kingston as before, and she is being taken out of school early and returned late to accommodate Ms. Clairoux’s need to travel to and from St. Catherines. That evidence was not disputed.

Positions

11Ms. Clairoux has now brought this motion dated January 21, 2014 to vary Abrams J.’s order, seeking to implement the OCL’s access recommendation. She maintains that it will put the parties back to their previous arrangement. She now agrees to Brooklyn remaining in school and having her primary residence in Kingston. She argues that Mr. Clairoux cannot rely on the week-on/week-off change that flows from the August 28, 2013 order, as that order was made “without prejudice”.

12Mr. Clairoux indicated that he disputes the OCL recommendations. He alleges bias, although does not indicate the basis for that claim. His main complaints are that Ms. Kapasky purported to make a factual finding that Ms. Clairoux was the primary caregiver when his evidence indicated otherwise, and that she did not consider the benefits to Brooklyn of the current week-on/week-off arrangement. He argues that the order of Abrams J. has been in place for 6 months without incident and, as it was made right after the split summer access, in effect the parties have been in a shared custody arrangement for 8 months not including the half time he claims existed for at least a year before that. Lastly, he argues that the child is doing well in the current arrangement, and that the anxiety she experienced was as a result of Ms. Clairoux’s plan to move.

Law

13In looking at interim custody and access, the status quo is ordinarily maintained until trial unless there is material evidence that the best interest of the child requires a change: see Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.): Easton v. McAvoy, 2005 ONCJ 319; M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 18315 (Ont. S.C.); and Horton v. Marsh, 2008 NSSC 224.

14As to what reliance can be given to the Report of the Children’s Lawyer, both parties referred to Bos v. Bos, 2012 ONSC 3425. That was a similar case to the case at bar as the previous order was without prejudice and, after the order was made, an assessment had been received making recommendations regarding the access arrangements. The court summarized the law, noting that an assessment prepared for trial should not be acted upon until trial, except in exceptional circumstances where immediate action is mandated by the report. However, it noted that the court can consider the content of the report where it provides additional probative evidence that would be of assistance, particularly where the court is being asked to make an order that is not a substantive departure from the existing order or status quo. It added at para. 24:

The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

The court went on to note at para 26 a number of factors to be considered in deciding what weight should be given to parts or all of the report, although the list was stated to be not exhaustive.

15With respect to the best interests of a child, the court is to consider all the child’s needs and circumstances including the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, C. C.12, as amended.

Analysis

16There is no dispute that the access prior to the August 28, 2013 order was every other weekend with the extra time during the week as determined in part by Ms. Clairoux’s work schedule. This required cooperation and flexibility between the parties. Ms. Kapasky’s recommendation, being a set schedule, does not reflect the status quo. Neither does the current order. It is impossible to restore the pre-August 28, 2013 arrangement at this time. The high level of cooperation that made that arrangement possible no longer exists. Therefore a specific schedule that deals with the mid-week access is required.

17Each party asked me to incorporate certain elements from what they say was the status quo into the interim order. Mr. Clairoux said the most important factor is that he had the child half time. With flexibility no longer being an option, a week-on/week-off schedule best captures the previous arrangement. Ms. Clairoux said that the most important element of the pre-existing arrangement is that Brooklyn’s principle residence was with her. Mr. Clairoux was only an ‘access parent’ having every other weekend with additional mid-week access that, all totalled, was much less than half time. She argued that the existing week-on/week-off does not resemble the pre-existing arrangement. I agree it is different, but I note that it is not completely dissimilar; it continues the every other weekend cycle, with the difference being that Mr. Clairoux’s midweek access now occurs on a set schedule and all in one week.

18I examined the arguments and the positions of the parties in light of the law summarized above and specifically the needs and circumstances of Brooklyn looking at s. 24(2) of the C.L.R.A.

19There is no question that the child has love, affection, and emotional ties with both parents. There is no issue that both parties have the ability and willingness to provide the child with guidance, education, and the necessities of life, and to otherwise meet her needs and to act as a parent to her. With Ms. Clairoux now indicating that Brooklyn’s primary residence will remain in Kingston, both plans for the child’s care are sound.

20I have considered the length of time the child has lived in a stable home environment and the permanence and stability of the family units. I cannot ignore the fact that Brooklyn has been in the current arrangement for the past 6 months. Her mother’s home in Kingston is now a rental unit and different from before. The living arrangement at her mother’s is also different, as Ms. Clairoux’s partner now lives in St. Catherines. There are some questions with respect to the stability of her circumstances, as it is hard to ignore the practical difficulties of Ms. Clairoux maintaining Brooklyn’s primary residence in Kingston while her partner lives and works in St. Catherines.

21Regarding Brooklyn’s views, whether a few days more or less in a month on average with one or the other parent is significant to her, is unknown. Ms. Kapasky noted, and I find, that they both have been involved parents, and she specifically noted that Brooklyn wants and needs both of her parents to remain very involved in her life.

22Turning now to the role of the Report of the Children’s Lawyer in my decision, both parties are able to draw on certain aspects of it to support their positions. However, as noted, Ms. Kapasky’s final recommendation on access is what Ms. Clairoux is asking me to adopt. That recommendation appears to be based at least in part on a factual finding that the child’s recent ‘principle residence’ has been with Ms. Clairoux, on which there is competing evidence that still needs to be tested and determined by the trial judge. Per Bos v. Bos, supra, I put more weight at this time on the uncontested objective evidence in the report than on this finding.

23In my view the report does not suggest that there are exceptional circumstances requiring immediate action. As in Bos v. Bos, the assessment seems to have been prepared for trial. It does not contemplate or weigh the benefits or risks of an interim change. A change now and potentially another after trial seems contrary to Ms. Kapasky’s caution that Brooklyn requires stability in all aspects of her life. Further, I see the access recommendation as part of the larger package of final recommendations, and not necessarily severable. Specifically, it seems tied to the recommendation that both parents engage in counselling to enhance their ability to communicate in regards to Brooklyn. The parties have yet to start that counselling, notwithstanding that the report is already over two months old.

24Even accepting as I do that the existing without prejudice order does not establish a precedent as to custody and access, I still find that over-all it represents the most appropriate arrangement for Brooklyn at this point in time in all the circumstances, pending a full airing of the issues and evidence at trial.

Decision

25For the reasons stated above, the motion by Ms. Clairoux is dismissed.

26Given that the Report of the Children’s Lawyer came after the without prejudice order, I am in no way critical of Ms. Clairoux’s decision to bring the matter back to court. I am not inclined to make an order for costs. However, if there are other considerations that the parties wish to argue that could impact on my decision, they may schedule a date to have that addressed.