Bojarski v. Bray, 2015 ONSC 264
COURT FILE NO.: 14-978
DATE: 2015/01/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Joel Bojarski, Applicant
AND:
Allyson Elaine Bray, Respondent
AND:
Christopher Carrière, Respondent
BEFORE: Justice Ronald M. Laliberte Jr.
COUNSEL: Penelope G. Gardner, Counsel for the Applicant
Christopher Giggey, Counsel for the Respondent, Allyson Elaine Bray
Christopher Carrière, self-represented
HEARD: January 9, 2015
ENDORSEMENT
Introduction
[1] The Court is dealing with a motion brought by the Respondent mother whereby she is seeking a temporary order for the primary care of the five children subject of this litigation, namely:
-Thaison: born March 29, 2006;
-Monthanna: born March 14, 2007;
-Jayden: born July 11, 2011;
-Kingston: born November 8, 2013;
-Thorin: born November 8, 2013.
[2] While not Thaison and Monthanna’s biological father, the parties agree that the Applicant has stood in the place of a parent for these two children. The biological father of those two children, Christopher Carrière, is now a party to these proceedings. The Applicant is the biological father of the three other children.
[3] In terms of the existing parental arrangement, four of the children (Thaison, Monthanna, Kingston, Thorin) have been under the Respondent’s primary care since she left the home with them on or about October 5, 2014. The child, Jayden, who was on a few days visit with the paternal grand-parents at the relevant time has remained under the Applicant’s primary care since.
[4] On November 18, 2014, the parties agreed, on a without prejudice basis, to maintain the above-noted arrangement. This was subject to access and a review once a Children’s Aid Society investigation was concluded and a written position was provided to the parties. The Applicant had raised concerns with the Society as to the Respondent’s care of the children.
[5] In a letter dated December 10, 2014, senior counsel for the Children’s Aid Society, Elizabeth MacLennan, articulated the agency’s position as follows:
“I have spoken to the supervisor involved with this matter and can advise you that at present the Society does not have any concerns with either parent having custody of, or access to, any of the children.”
[6] While not without controversy, it seems that the parties’ relationship has been marked by conflict and that the children have been subjected to this. In fact, they were married on October 16, 2010 and separated one month later on November 16, 2010. According to the Applicant, they resumed cohabitation in July, 2011. The Respondent’s position is that they remained apart until August, 2013. The children were under the Respondent’s primary care during this first period of separation.
[7] Both recognize that they began living separate and apart in the matrimonial home since August 26, 2014. As noted above, the Respondent left the home on or about October 5, 2014.
[8] The issue for the Court is to identify the temporary parental arrangement which will best serve, at this juncture, the best interests of these five children.
The Law
[9] In deciding this matter, the Court is guided by the following principles:
a) The primary objective of motions for interim custody is stability for the child who is caught in the middle of the matrimonial dispute; the existing arrangement should not be disturbed unless there is some compelling reason.
Kimtpon v. Kimpton [2002] O.J. No. 5367.
b) 24. (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3) Past Conduct – A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) Violence and Abuse – In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
c) As a general rule, siblings will be kept together to minimize the effect of a family breakdown on the child.
Maracle v. Maracle [2006] O.J. No. 1135
d) All things being equal, the parenting schedule should promote the following :
− maximum contacts with each parent;
− stability and consistency;
− provide the parties with a predictable schedule so as to minimize unnecessary stress and possibility of conflict;
− minimize transitions between the parents and travel time;
− avoid unnecessary interactions between parties who are prone to conflict.
Discussion
[10] Both litigants have provided contradictory affidavit evidence. The Court must attempt to assess their respective positions and make such a significant decision on the basis of a less then desirable evidentiary record.
[11] The Respondent is portrayed in negative terms by both the Applicant and his father, Allen Kenneth Bojarski. The suggestions in their Affidavits are as follows:
− she is mentally and emotionally unstable;
− she displays outbursts of rage;
− she has been physically and verbally violent with the children;
− she has been physically and psychologically abusive to the Applicant in front of the children;
− she has historically, and more recently, shown little interest in the children.
[12] The Applicant is of the view that the children’s best interests rest in them being placed in his primary care coupled with the assistance of his immediate family. He is described by his father as “amazing with the children” and that he has always been there for them.
[13] The Applicant rejects the suggestion that the Respondent has historically been the primary caregiver. He states that his brother Jeremy and his parents frequently cared for the children.
[14] In the alternative, the Applicant is seeking shared parenting.
[15] The Respondent also portrays the Applicant in negative terms. The sum total of the Affidavits filed by the Respondent and friends (Adam Roach, Tiffany Roberge) is as follows:
− he has been aggressive with the children;
− he loses patience when caring for the children;
− he raises his voice with the children and is too firm;
− he is not very motivated when it comes to caring for the children;
− displays anger in front of the children;
− shows lack of insight on issues relating to the safety of the children.
[16] The Respondent’s position is that the children should be returned to her primary care coupled with significant access to the Respondent.
[17] The Court notes that the Respondent, Christopher Carrière, (Thaison and Monthanna’s biological father) filed an Affidavit in this motion. In essence, he is supportive of the Respondent’s position. In the end, not much turns on the information contained in this Affidavit.
[18] Having considered all of the circumstances in this matter, the Court comes to the following conclusions on the issue of what temporary parental arrangement is in these young children’s best interests:
- The least disruptive plan for these children is found in them being in the Respondent mother’s primary care. This is seen, on balance, as a continuum of what has historically been in place. Specifically, the Court notes the following:
− The children resided with their mother following the initial separation of November 2010;
− Four out of the five children have been with their mother since the October 2014 departure from the home;
− The Respondent has historically been a “stay at home mother” while the Applicant worked.
The child Jayden needs to be reintegrated with his siblings. The Court sees no basis justifying why this has not already occurred.
The allegations raised by the parties against the other as to their respective ability to properly care for these children are offset by the Children’s Aid Society’s stated position that there are no concerns with either parent.
The care provided by the Applicant is seen as significant for the children and should be maximized as reasonably possible in the context of this acrimonious relationship between the parents.
Conclusion
[19] Therefore, the Court makes the following temporary order:
- The five children, namely:
− Thaison Bray-Carrière, born March 29, 2006;
− Monthanna Bray, born March 14, 2007;
− Jayden Bojarsky, born July 11, 2011;
− Kingston Bojarski, born November 8, 2013;
− Thorin Bojarski, born November 8, 2013;
shall be in the primary care of the Respondent mother.
- The Applicant father shall have the following of the said five children:
a) Commencing Friday, January 16, 2015, every other weekend from Friday at 3:30 p.m. to Sunday at 6:00 p.m.;
b) Commencing Wednesday, January 21, 2015, every other Wednesday from 3:30 p.m. to Friday 4:00 p.m.
The parties shall agree on how the exchanges (pick-ups and drop offs) are to take place. If the parties are unable to agree, the Court orders that the party who is to care for the children will be responsible for picking up and returning the children to the other party. These exchanges will take place at their respective homes.
The parties are asked to make reasonable efforts to resolve the issue of costs on consent. If unable to do so, parties are to file brief submissions on the costs issue. This is to be filed on or before January 30, 2015.
The parties are to communicate with the trial coordinator to set a date for a settlement conference.
Justice Ronald M. Laliberte Jr.
Date: January 14, 2015