RESTRICTION ON PUBLICATION

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

A. Z. v. C. Z., 2015 ONSC 3540

Court File No.: FS-161/15 Date: 2015-06-03 Superior Court of Justice - Ontario

Re: A. Z., Applicant And: C. Z., Respondent

Before: The Honourable Justice D.A. Broad Counsel: Tara Lattanzio, for the Applicant Louis Townsend, for the Respondent

Heard: May 25, 2015

Endorsement

Background

[1] The applicant mother and the respondent father lived together in an on-again off-again relationship from 2003 until February 19, 2015. Although the applicant changed her name to adopt the respondent’s name, they never married. Until their separation, the parties resided in a home owned by the respondent in Cambridge, Ontario.

[2] The parties have one child of their relationship A.L.Z., aged seven (DOB […]/[…]/07) (the “child”). A.L.Z. is the subject of this motion. The respondent has a daughter from another relationship K.Z. (DOB […]/[…]/97) and the applicant has two children (twins) from a previous relationship, N.Z. and S.Z. (DOB […]/[…]/97).

[3] On February 15, 2015 the respondent took the child to visit his ailing mother in Pontypool Ontario, which is in the Kawartha Lakes Region some 185 km from Cambridge. He advised the applicant that they would stay overnight and return the next day. The respondent asserts that the child refused to return to Cambridge on the day set for their return. He alleges that the child was fearful of the applicant.

[4] The respondent notified the child’s school that he would not be returning and registered him at the school in Bethany Ontario, near Pontypool, without the applicant’s consent or knowledge.

[5] The respondent returned to the parties’ residence in Cambridge on February 19, 2015, without the child, to retrieve some belongings at which time he advised the applicant that their relationship was over.

[6] On March 3, 2015 Justice Taylor made an order, pursuant to an urgent motion by the applicant, made without notice to the respondent, on an interim, without prejudice basis, declaring that Waterloo is the proper jurisdiction in which to determine the custody and access issues, granting sole custody of the child to the applicant and granting access to the respondent at the applicant’s discretion. The order included a police enforcement clause.

[7] The respondent did not comply with the order of Justice Taylor and on March 12, 2015 the Ontario Provincial Police apprehended the child and returned him to the care of the applicant.

[8] The respondent has brought a motion to set aside the order of Justice Taylor and for an order that child be in his full-time care at Pontypool and that he continue to be enrolled at the school in Bethany. The motion proposes that the applicant have access to the child on alternating weekends and that the proceedings be transferred to Oshawa, Ontario.

[9] A case conference was held on March 17, 2015 at which time it was agreed that the applicant would bring a motion, on consent, for disclosure of the file of the Family and Children Services of the Waterloo Region (“FCS”) and that once the FCS records were received the respondent may bring his motion for the return of the child to his care back on for hearing.

[10] The FCS records relate to the period November 10, 2009 to April 22, 2015 and comprise some 241 pages.

[11] For reasons given orally on the argument of this motion, I ruled the Affidavits of K. Z. sworn April 17, 2015 and of the respondent’s counsel Louis Townsend sworn March 16, 2015 to be inadmissible on the motion.

Respondent’s Position

[12] The respondent argues that the applicant, in her affidavit in support of the urgent motion before Justice Taylor, misrepresented the facts or failed to disclose relevant facts. The misrepresentations relied upon by the respondent consist of the following:

(a) the applicant deposed that in May, 2011 the respondent took the child to Pontypool without her consent and did not return him for 14 days until she was granted interim custody by Justice Hardman. The respondent states that this version was not true and that FCS and the police had no concerns for the child’s safety and that the applicant was aware that the respondent was intending to visit his mother and his grandmother and to take child with him;

(b) the applicant deposed that it was a ground of urgency that the respondent removed the child from his school and moved him to the Regional Municipality of Durham. Respondent states that the applicant did not disclose her communications with the respondent regarding a separation agreement, that she had no concern for the child’s safety and that the child had refused to return to her care; and

(c) the applicant deposed that the respondent has a documented history with FCS for domestic abuse, specifically emotional abuse including manipulative and controlling behaviour towards the four children and towards her on several occasions. The respondent states that the FCS records do not sustain this allegation and that the applicant misrepresented the involvement of FCS by failing to disclose that she has a documented history for inappropriate and excessive physical discipline of the children.

[13] The respondent argues that the applicant did not have grounds to bring a motion without notice under subrule 14(12). He states that neither FCS nor the police had safety concerns with child being in the care of the respondent and that she could have given the respondent notice of a court proceeding through their email exchange on February 28, 2015 or could have arranged for the police to have documents served on him.

[14] The respondent argues that granting him interim custody and primary care of the child are in the child’s best interests. In support of this, the respondent makes the following allegations:

(a) The child’s views and preferences are to live with the respondent as disclosed in an interview conducted by Constable Vienneau of the OPP and in subsequent interviews with FCS;

(b) the respondent has a stronger ability to parent and he can provide more education and necessaries of life to the child and to address his special needs. In support, he points to an interview given by his daughter K.Z. to FCS in June, 2011 reporting that the respondent did a lot of the routines like putting the child down for a nap because the applicant would not bother to do so. He also asserts that the FCS records indicate that the child has been missing school while under the care of the applicant and that the applicant has difficulty providing food to the child. He also states that the applicant deposed in her affidavit that the child does not have a disability whereas he does have hearing loss in one ear and at the school in Bethany the child received the proper classroom accommodations to facilitate his learning;

(c) the applicant has significant unresolved anger management and mental health issues. He points to a FCS record of November 2009 that the applicant recognizes that she has anger management issues which require support and intervention and that she has expressed suicidal thoughts in front of her children. He points to an interview in January, 2012 with an FCS worker that there is an issue with physical discipline involving the applicant and that in October 2012 the applicant’s physician informed FCS that she had not been attending medical appointments on a regular basis. The respondent also points to a report by the applicant in January, 2015 to a FCS worker that she takes antidepressants and that when the applicant called Waterloo Regional Police about the custody dispute on February 20, 2015 the constable ascertained that the applicant was suffering from depression and that the domestic dispute was complicating it. He pointed to a FCS record on March 2, 2015 respecting a phone call from the applicant’s physician stating that the applicant was not attending medical appointments and was noncompliant;

(d) the applicant was negligent or careless in the operation of her daycare business. In this respect he points to his own report to FCS in June, 2011 respecting an issue relating to a child in her care, as well as to a report by his daughter K.Z. in June, 2011 that the applicant was ignoring the daycare children. He also references an anonymous complaint letter referred to FCS in early January, 2015 respecting the lack of care of the daycare children on the part of the applicant including sleeping, lack of cleanliness and the applicant swearing and screaming obscenities. The respondent expressed concerns regarding the applicant’s operation of her daycare, including the applicant sleeping while the children are awake and unsupervised;

(e) the applicant has engaged in alienating behaviour. In this respect, the respondent references records of FCS in 2011 relating to allegations by the biological father of N.Z. and S.Z.. He also asserts that the applicant has frustrated his efforts to exercise access to the child;

(f) the applicant has a lengthy documented history with FSC for excessive physical discipline against her children and that this is a relevant to her ability to act as a parent. In this respect, the respondent refers to an incident involving the applicant’s son N.Z., who has a disability, in November, 2009 and again in February, 2011. He also references an incident in 2007 in which the applicant taped S.Z.’s mouth as well as an earlier incident involving S.Z. in 2005. The respondent refers to a physical altercation between the applicant and his daughter K.Z. in May, 2014.

Position of the Applicant

[15] The applicant denies that she made any misrepresentations in her affidavit in support of her urgent motion. She also denies the allegations made against her by the respondent and argues that it is not in the child’s best interests that he be removed from her care and placed in the care of the respondent in Pontypool. In support of her position, the applicant makes the following allegations:

(a) that the respondent has been continually abusive to her and as a result their household was in shambles. K.Z. and S.Z. each engaged in self-harming behaviours, including burning and cutting themselves and the child would consume himself playing video games and covering his ears so he would not hear the respondent’s yelling and abusive conduct;

(b) that the respondent and his daughter K.Z. have coached the child to be negative towards her and have involved the child inappropriately in the custody dispute. She points to the police records indicating that the police believe that the statements that the respondent has made about her are false and were made in an attempt to secure custody of his son. In particular, in response to a complaint made by the respondent, a police officer attended on March 16, 2015 at the applicant’s home and found it to be clean and tidy with no sign of abuse or lack of care of the daycare children. The police spoke to parents of the daycare children and determined that there were no signs of child abuse or neglect within the daycare.

(c) that she ran her daycare business successfully and that it was the respondent that attempted to destroy the business. She states that the parents of the daycare children were uncomfortable with the respondent’s presence in the home and his involvement with their children.

(d) the FCS records indicate that FCS is supportive of her having custody of the child and that they were concerned about the children witnessing the respondent’s behaviour;

(e) the FCS records of interviews conducted with the child on March 25 and April 7, 2015 disclose that the child reported that he loves his school and has multiple friends. The child was reported to be very interactive, comfortable and affectionate with the applicant.

Guiding Principles

[16] The starting point for consideration of the issues in this case is s. 19 of the Children’s Law Reform Act R.S.O. 1990, c. C.12 (the “CLRA”) which sets forth the purposes of the custody access and guardianship provisions of the Act as follows:

The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.

[17] S. 20(1) of the CLRA provides that, unless otherwise provided in Part III of the Act, the father and the mother of a child are equally entitled to custody of the child.

[18] S. 20(4) of the CLRA provides that where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to custody of the child suspended until a separation agreement or order otherwise provides.

[19] Pursuant to s. 24(1) of the CLRA the court is required to consider the best interests of the child as the sole criterion in matters of custody and access. S. 24(2) requires the court to consider all of the child’s needs and circumstances including the factors listed at paragraphs (a) to (h) as follows:

(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 up-bringing;

(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.

[20] Pazaratz, J., in the recent case of Rifai v. Green 2014 ONSC 1377 (S.C.J.), very usefully summarized at paras. 16-30 the factors that make temporary custody determinations particularly challenging. These factors include the following:

(a) Immediate determinations must be made based upon often incomplete and untested evidence;

(b) A temporary order will frequently influence or form the basis for a final order. Once a child settles into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child's best interests to disrupt or significantly change the temporary arrangement;

(c) The same concern about minimizing the risk of needless disruption often becomes even more acute at the temporary order stage, where courts are reluctant to change the status quo unless there are compelling reasons to do so;

(d) Accordingly, consideration of the "status quo" becomes an enduring component of access and particularly custody disputes, at virtually every stage of the process. As a result parties often become preoccupied with the strategic implications of any pattern or routine a child comes to be used to;

(e) Sometimes, determining the status quo can be problematic;

(f) Very much related to this is the court's increasing concern that parents should not be allowed to gain strategic advantage — and children should not be needlessly disrupted — by a parent unilaterally creating a new status quo through manipulation or deliberate acts.

(g) A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment;

(h) Where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate;

(i) The longer the child has been in a new situation — however it may have been created — the more closely the court will have to focus on the child's best interests, as opposed to any violation of parental rights;

(j) The starting point is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life;

(k) Physical separation between parents usually entails some continuing geographic proximity — usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations. Maximum contact with both parents is presumed to be beneficial;

(l) Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Ongoing modifications to arrangements are relatively easy (and inevitable) as children get older. But where one of the parents proposes — or imposes — a significant geographic relocation, a host of additional legal and parental complications immediately arise;

(m) More fundamentally, the greater the distance, the more challenging the overall "best interests" analysis. Distance greatly reduces options, and courts should be cautious about permitting — or condoning — temporary relocations where custody or mobility are going to be in issue at trial; and

(n) Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community.

[21] Marshman, J., in the case of Plumley v. Plumley 1999 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.) indicated that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.

[22] In the case of Terris v. Terris 2002 46107 (ON SC), [2002] O.J. No. 3018 (S.C.J.) the court made the additional observation at para. 29 that an interim mobility decision must be made on a temporary basis until the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses and that this is particularly relevant where evidence is conflicting and there is a triable issue of whether a parent should be permitted to change the residence of the child. The jurisprudence establishes that on a temporary basis, there must be a pressing reason for an immediate move. This does not affect the overriding test of the best interests of the children in any decision, whether temporary or permanent.

Analysis

[23] As indicated, the respondent argues that the applicant misrepresented the grounds on her ex parte motion before Justice Taylor.

[24] Mitrow, J. in the case of Ayala v. Giron 2011 ONSC 3302 (SCJ), at paras. 87-91 reaffirmed the undesirability of, and dangers associated with, parties too readily using ex parte procedure in interim custody motions. In doing so, he made reference to the earlier cases of Tomanec v. Tomanec 1990 12316 (ON CJ), 1990 CarswellOnt. 311 (Ont. Prov. Div.) and Browne v. McLaughlin, [1988] W.D.F.L. 687 (Ont. Dist. Ct.).

[25] Justice Mitrow reiterated that it is incumbent on the party who seeks ex parte relief to make full and frank disclosure of all material facts, even where some of those facts may not be helpful to that party’s position.

[26] Although it may be argued that the applicant could have provided a more a complete and fulsome account of the background facts and circumstances, I am not satisfied that her affidavit material on the ex parte motion before Justice Taylor fell short of the obligation on her to make full and frank disclosure of all material facts so as to justify the setting aside of the order on that basis alone.

[27] With reference to the earlier incident of the respondent removing the child to Pontypool in 2011, the applicant did not dispose in her affidavit that FCS and the police had concerns for child’s safety. Even if the applicant had consented to the respondent taking the child to visit his mother temporarily, that consent did not extend to the respondent retaining the child there and not returning him to his home in Cambridge.

[28] In my view, the fact that the parties had had discussions regarding a separation agreement was not material to the issue of whether the child ought to be returned to his residence in Cambridge. She did not represent that she had concerns for the child’s safety. She did depose that the respondent had told her that the child did not want to return to her care and that the child had told her the same thing.

[29] The applicant should not be expected to have related the details of the contents of the FCS records in her affidavit in support of the ex parte motion. Those records were not in her possession and were not disclosed by FCS until after the Order for production was made on March 31, 2015.

[30] The reality of the situation was that the respondent had unilaterally moved the child from Cambridge to Pontypool without the knowledge or consent of the applicant and had gone to the extent of terminating his enrollment at his school in Cambridge and enrolling him at the school in Bethany. The respondent had taken a similar step of removing the child to Pontypool in 2011 which resulted in an interim order for custody being made by Justice Hardman restoring the child to the applicant’s care. The applicant, in her affidavit, disclosed the difficulties that her counsel had experienced in attempting to effect service of documents on the respondent in 2011.

[31] The fact that the child may have expressed reluctance or even a refusal to return to Cambridge is not to be considered a determining or even an important factor. A seven year old child cannot be expected to appreciate what is in his best interests and the respondent’s inability or unwillingness to exercise control over the child to return him to his home following the visit with the respondent’s mother may be indicative of problems with his parenting ability, or with his appreciation of his parental responsibilities.

[32] I have carefully considered the materials and submissions of counsel. In my view, there is a triable issue with respect to custody of the child. Each of the parties point to isolated passages in the voluminous FCS records, some of which are historical, in support of their respective positions that the other is not a suitable custodial parent for the child. They each seek to cast the other in the worst possible light in order to bolster their position.

[33] The evidence of the parties in their lengthy affidavits has not been tested by cross-examination, as would take place at trial. Moreover, the court has not had the benefit of direct testimony from the relevant workers at FCS who would be able to give a more comprehensive overview of the involvement of FCS with the family, as opposed to the disparate isolated references selected by the parties from the FCS records to support their own positions.

[34] On the evidence, I see no compelling basis for the child to be relocated from his ordinary residence in Cambridge where he has resided for his entire life, away from his accustomed school and from his siblings N.Z. and S.Z., to Pontypool. Moreover, I am unable to determine that there is a strong probability that respondent’s position will prevail at trial. On the authorities cited above, these considerations would militate against ordering a change in the child’s primary place of residence from Cambridge to the respondent’s new residence in Pontypool.

[35] FCS has taken no steps to apprehend the child from the applicant’s home. The letter from FCS dated May 19, 2015 filed by the respondent indicates that the FCS is providing on-going support to the applicant in the development of home routines and strategies. There appears to be no compelling reason to move the child’s primary residence to Pontypool.

[36] It is the respondent who seeks to move the child 185 kms to Pontypool. He has led no convincing evidence as to why he must reside in Pontypool and cannot continue to reside in Cambridge, which would facilitate the maximization of contact by the child with both parents. Conversely, the respondent has not, in his materials, put forward a parenting plan, premised on an award of interim custody to him in Pontypool, which would facilitate frequent contact between the child and the applicant.

Disposition

[37] On the basis of the foregoing, the motion of the respondent is dismissed.

[38] The applicant has proposed that the respondent have scheduled access with the child to include every second weekend from Saturday morning until Sunday evening and one weekday evening each week.

[39] The parties did not make submissions with respect to the details of access to the respondent. It is in the child’s interest that he enjoy frequent access to the respondent. I will leave it to the parties to work out an access schedule which best achieves this objective and which is commensurate with his best interests. Pursuant to my order of March 17, 2015, a further case conference is to be held after the pleadings are completed at which time the details of the access arrangements can be worked out, if necessary.

[40] Pending further order of the court, it is ordered on a temporary, without prejudice, basis that the respondent have access to the child on alternate weekends from 9:00 a.m. on Saturdays to 7:00 p.m. on Sundays, commencing the weekend following the release of this Endorsement, and on each Wednesday evening from 4:30 p.m. to 8:00 p.m. In the event that the Monday of a weekend on which the respondent has access is a statutory holiday, access to the respondent shall be extended until 8:00 p.m. on that holiday Monday.

[41] Neither party shall discuss the court proceedings with the child nor involve him in any adult conflict in any other fashion. Each party shall use his/her best efforts to ensure that other members of his/her family do not seek to involve the child in adult conflict or to engage in disparaging the other party in the presence of the child.

Costs

[42] If the parties cannot agree on costs, the applicant may make written submissions as to costs within 14 days of the release of these reasons for decision. The respondent has 10 days after receipt of the applicant’s submissions to respond. All such written submissions are to be forwarded to me at my chambers at Judges’ Chambers, 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D. A. Broad

Date: June 3, 2015