Endicott v. Endicott, 2015 ONSC 3180

COURT FILE NO.: FC-15-595-00

DATE: 20150519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARK DOUGLAS ENDICOTT, Applicant

AND:

KAREN ELIZABETH ENDICOTT, Respondent

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: J. Powers Counsel, for the Applicant

M. Gordon Counsel, for the Respondent

HEARD: May 14, 2015

ENDORSEMENT

[1] This motion was brought by the Applicant father on May 14, 2015, seeking leave to hear the motion on an urgent basis prior to a case conference under Rule 14(4.2) of the Family Law Rules. The Applicant seeks various relief, but he primarily seeks a temporary without prejudice order that he has parenting time with the two children (ages 6 and 3) on an equal basis, without supervision, pending a case conference and if needed a potential motion after a case conference.

[2] As indicated below, in the circumstances of this case I have concluded that it is in the interest of justice that this motion be heard prior to the holding of a case conference. For the reasons given below, I conclude that the best interests of the children require continued access to their father, and I make a temporary Order that the Applicant be permitted unsupervised access to his two children in accordance with the terms set out in the Order set out at the end of these reasons.

Background

[3] The parties were married in 2006, and separated on February 16, 2015. Sometime around February 13, 2015, the Respondent mother called the Barrie Police to report that the Applicant had threatened her, and on February 17, 2015, he was charged with uttering a threat to cause death contrary to s. 264.1(1)>(a) of the Criminal Code. The Applicant entered into a peace bond and signed an undertaking on that date to abstain from communicating with the Respondent or from going to the matrimonial home. The Applicant has not seen or spoken to the children since that date. On February 27, 2015, the terms of that peace bond were amended to permit the Applicant to exercise access to the children through a third party. The terms provide that the Applicant “abstain from communicating directly or indirectly with [the Respondent] except (a) through a 3^rd party for the purpose of access to the children; (b) through counsel; (c) pursuant to the terms of a valid family court order.”

[4] Following the amendment of the peace bond in early March, the Applicant sent a friend to the Respondent to try to arrange access, but the Respondent refused to make such arrangements. The Applicant retained counsel on March 5 in an effort to negotiate access. The Respondent’s position at that time was, and continues to be, that she will only agree to supervised access, and that she will consider unsupervised access only if the Applicant agrees to undergo a complete psychiatric assessment and follows the psychiatrist’s recommendations. Otherwise, she states, access must be held at a Supervised Access Centre. The Respondent confirms in her affidavit (para. 37) that she is “not fearful of the father’s physically hurting the children”. Instead, her fear stems from her allegations relating to “the impact that his obsessive personality has on their mental well being”.

[5] The Applicant has refused to agree to supervised access because he is concerned that such an environment will harm his relationship with his children. He correctly points out that there is no court order or undertaking limiting him to supervised access. The Respondent did not bring any motion to limit the father to supervised access, but did raise this relief in a cross-motion filed in response to the Applicant’s motion.

Urgency

[6] The first issue is whether this motion meets the test for urgency set out in Rule 14(4.2), which provides that motions may not be brought before a case conference unless “the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”

[7] Counsel have advised that the first available case conference is June 9, 2015, and that if no agreement can be reached at that conference, the first available date for a motion would be after June 18, 2015 (the next available motion date as of May 13 when this motion was brought). Counsel for the Applicant explained that he waited until now to bring this motion because he has been engaged in settlement discussions with Respondent’s counsel, although these discussions have not resulted in a settlement of the access issue, even on a temporary or short-term basis (See Rosen v. Rosen 2005 480 (ON SC), [2005] O.J. No. 62, para. 9).

[8] The cases have defined “urgency” in this context to refer to circumstances such as abduction, threats of harm, and dire financial circumstances and have held that dispensing with a case conference is an exception to the procedural requirements that should be made infrequently (Gonzales v. Trobarovic [2014] O.J. No. 4384, at para. 24). While access is an important issue, it does not, in the circumstances of this case, fall into the category of “urgency” or “hardship” as those terms have been defined in prior cases. There is no evidence that the children will be “harmed” if this motion is not heard for another month, or if the Applicant accedes to the Respondent’s demand that access be supervised, however unreasonable or unfounded the Applicant may consider that demand to be.

[9] In addition to “urgency”, however, a motion may also be brought before a case conference if the case conference “is not required for some other reason in the interest of justice.” This portion of Rule 14(4.2) was given extensive consideration by Justice Price in the case of Gonzalez v. Trobarovic, supra, which arose on facts similar to the matter at hand. In that case the Applicant was charged with assaulting her common law partner and was arrested. She was released on terms of bail that prohibited her from returning to her home or contacting the Respondent, except for the purpose of arranging access to their daughter. Unlike the present case, the Gonzalez case dealt with both access and possession of the matrimonial home. In his reasons Justice Price canvasses a number of similar cases and circumstances where the Court permitted a motion to proceed before a case conference. In all of these cases the Court was concerned that the terms of the judicial interim release in the criminal proceeding could compromise or interfere with the interests of the parties’ children or the parties’ property rights in the family law context. In such cases, the “interest of justice” could require dispensing with the requirement that a case conference take place before the motion is heard. In these cases the parties are already caught up in the judicial system by virtue of the criminal proceedings. These criminal proceedings may seriously affect the dynamics of a regular family law case (Gonzalez, supra, at para. 34, and Shaw v. Shaw, 2008 ONCJ 130 at paras. 5 and 6). It is the existence of these prior criminal proceedings that may, in some circumstances, create an injustice if the parties are held to the strict requirements of Rule 14(4).

[10] One of the circumstances considered by Justice Price is when “the accused spouses’ parental and/or property rights have been interfered with in the absence of judicial consideration of the factors that normally guide the family court in its determination of those rights” (para. 32(d)). In the motion before me there has been no judicial determination that the Applicant’s access to his children should be denied or restricted to supervised access. Quite the contrary, the restraining order he signed restricts his communication with the Respondent, but specifically contemplates his access to the children. That access has been denied by the Respondent by virtue of her sole possession of the matrimonial home. In these circumstances I find that it is in the interest of justice that this motion be heard prior to the holding of a case conference.

Access

[11] In Gonzalez Justice Price states (at para. 57): “I infer from the criminal court’s failure to place any restrictions on [the Applicant’s] access to [her daughter] that it did not find that the allegations against her to raise a concern about [her daughter’s] safety in her presence. I also do not find a basis for such a concern”. Justice Price’s inference is equally applicable to the present motion before me, and I make the same finding that the Applicant’s presence is not a safety concern for the children. This is not disputed by the Respondent in this case. As indicated above, the Respondent has stated in her affidavit that she is “not fearful of the father’s physically hurting the children”. While she does have other parenting concerns, it is my view that these concerns do not justify or require supervised access for the purposes of the limited access I will order in this case. Accordingly, I conclude that the access order will be on an unsupervised basis.

[12] In making a determination as to the Applicant’s access to the two children I am bound by s. 24 of the Children’s Law Reform Act, which requires that the decision be based on the best interests of the child. The evidence satisfies me that both parents have love, affection and emotional ties with the children and have been involved in the care and upbringing of the children until the date of separation. I have also considered that minor children with attachment to both parents need sufficient contact with both parents, without prolonged separations, to maintain meaningful and close relationships with them (Gonzalez, paras. 77, 79). I note that the Respondent has challenged the admissibility of some of the paragraphs in the Applicant’s affidavit. While I am not deciding on the admissibility of these paragraphs, I have found it unnecessary to consider or rely on these paragraphs in order to arrive at my decision.

[13] Given the history of conflict that gave rise to the separation in this case, the Applicant’s proposal that the parties be given exclusive possession of the matrimonial home on a schedule that permits the children to remain in the home and allow the parents to alternate staying with the children in the home on an equal basis (a “nesting order”), pending a case conference and further motion if needed, would not be in the children’s best interest. It is apparent from the affidavit material filed by both parties that the events leading to the separation are still too raw to permit the kind of cooperation that such a nesting order would entail. In the short run I would see it as a recipe for further conflict that would undermine the stability that the children require. It would also be very difficult to implement in the face of the restraining order signed by the Applicant.

[14] The Applicant has sought, in the alternative, the he be given parenting time with the children on an equal basis with the Respondent pending a case conference. In the absence of a nesting arrangement where the children reside at the matrimonial home, this proposed alternative is short on details. The evidence before me does not, for example, explain the Applicant’s current living arrangements or where the children will stay when they are with him. In any event I do not believe that it is, at this stage, in the children’s best interest to disrupt their residential status on a temporary basis.

[15] Taking into account the age of the children and the importance of maintaining contact with both parents, it is in the best interests of the children to see their father one evening per week and one day per weekend until this dispute is able to proceed through a case conference and a more permanent arrangement can be worked out between the parties or on a motion to the Court. This is not the “equal parenting” requested by the Applicant, but is a temporary measure designed to ensure that the children maintain contact with their father until the Court can hear a full motion with a complete record. It is intended to ensure that the case conference proceed expeditiously on the basis of the applicable principles of family law and not be side-tracked by criminal proceedings which appear to be of only tangential relevance to the access issue.

Conclusion and Order

[16] Based on the foregoing, it is ordered that:

(i) The children shall continue to reside with the Respondent mother;

(ii) The Applicant father will have access to the children on one evening a week (to be agreed upon between the parties) after school, camp, or day care until one hour before bed time;

(iii) The Applicant father will have access to the children on one day per weekend (to be agreed upon between the parties) from 10:00 a.m. until 5:00 p.m.;

(iv) The access referred to above will be on an unsupervised basis;

(v) In making arrangements to pick up and drop off the children, and in picking them up and dropping them off, the Applicant father must comply with the undertaking signed on February 27, 2015, until that undertaking is amended or rescinded by the Court;

(vi) If disputes arise in the implementation of this Order, either party may apply for directions, by motion on short notice, to be heard by me on a date when I am presiding, to be arranged with the Trial Coordinator in consultation with my judicial secretary;

(vii) This temporary Order will remain in force until amended by the Court or agreement of the parties;

(viii) The parties will schedule a case conference if they have not already done so.

CHARNEY J.

Date: May 19, 2015