Cote v. Whitty, 2015 ONSC 3570
BARRIE COURT FILE NO.: FC 10-609-0001
DATE: 20150602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRADEN NICHOLAS COTE, JOHN EDWARD POLLARI and JANIS ELIZABETH McLEOD
Applicants
– and –
SHAWNA MARIE WHITTY
Respondent
Janis McLeod, for the Applicants on their own behalf
Shawna Marie Whitty on her own behalf
HEARD: May 28, 2015
EBERHARD J.
[1] Shawna Whitty is the mother of Jayla age nine and Bryson soon to be three. The Applicant Father, Braden Cote resides with his mother Janis McLeod and step-father John Pollari. The child Jayla is in their primary care in Barrie, Ontario. Bryson is in the primary care of his mother in Orangeville, Ontario. In the summer of 2014 the OCL recommended transition of the care of Jayla to the mother. On April 8, 2015 this long motion was fixed with directions in the endorsements as follows:
My inclination was to place this matter on the trial list for the May/15 as mother requested, but Mr. Craig (counsel for the applicant) is already on a two week trial. It is not an option to delay until the next trial sittings in November/15. Jayla needs an answer so that, if the OCL recommendations are going to be implemented, the transition can occur over the summer (the OCL has recommended that happen in the summer of 2014). The concern that it will be difficult to make this decision purely on affidavit evidence at a motion. The mother is self-represented at this point and faces some impediments to preparing material to a properly present her case.
As a compromise, recognizing Mr. Craig’s trial commitments, but also recognizing the need for the judge deciding whether there should be a change in Jayla’s residence pending trial, I am going to schedule a one day motion with the possibility of oral evidence at the end of the May trial sittings. The parties will file their evidence in writing but have up to one-half hour each to supplement their evidence with oral testimony and the other side will have one-half hour for a focused cross-examination, to assist the motions judge in gathering a sense of the dynamics of the concerns about a potential move versus continuing the status quo.
Mother to file (and serve) her motion for temporary change of residence for Jayla pending trial and supporting affidavit by April 30/15. The father/grandparents to file and serve responding materials on May 11/15. Reply if any by May 19/15. Motion set for one hour during May trial sittings, not to be called until Mr. Craig is available.
[2] The matter was called before me on May 28, 2015. Mr. Craig was not present. There had been an intervening motion before Wildman J. on April 30/15 brought by the father on his own behalf for disclosure. He was directed to consult counsel and that motion was dismissed without prejudice to the applicant to reapply through his counsel on proper notice to respondent and third parties whose records were being sought. I was thus aware that there are uncertainties about representation but the matter was called in before me and no-one sought adjournment. The paternal grandmother represented all the named Applicants and the father gave oral testimony. Despite the mother’s motion being framed as a motion for a final order, I interpreted the above-noted directions to anticipate a motion for change of primary residence at an interim stage in the proceedings. I did hear the oral testimony anticipated by Wildman J. I understand her view that the summer is an important period to facilitate a transition if it is to occur. I did not, however, understand her direction to mean that she was replacing trial for a final determination with a motion supported by additional oral evidence for a final determination.
[3] This unfortunately may prolong the delay in finalizing Jayla’s future. There are trial sittings in September, 2015 which would be ideal for hearing trial and finalizing the child’s residency. The presiding judge at the September sittings is Wildman J. If the parties consent the matter could go to that date for trial and school placement be finally determined early in the school term. Even so, I am adjourning this motion for continuation before me on Friday Aug 21, 2015, one half day set aside. I am also today setting the matter for trial in the November 2015 sittings if the final determination has not been reached, but invite the parties to consent to the earlier date upon reflection of the findings made in this interim order.
[4] There are inconsistent endorsements as to the status of the paternal grandparents. At the very least they have been invited to participate and it has been identified that the real contest is between the paternal grandmother and the mother. The mother appeared on her own behalf, testified on her own behalf and conducted cross-examination. The father expressed himself unable to represent himself by conducting cross-examination or legal argument. I permitted the maternal grandmother to perform those roles. It was, however, the applicant father who testified and was cross-examined.
[5] To come to my determination, I read the affidavit material filed pursuant to the directions of Wildman J. as well as the report of the Children’s Lawyer which has been before the court since July of 2014.
[6] The evidence before the court is that the Children’s Aid Society was sufficiently concerned about the father’s ability to care for the children that they would not have left Jayla in his care unless he was supervised by the paternal grandparents. There is evidence of abuse of alcohol and mental health issues that impact on his parenting. There is no evidence before me whether the Children’s Aid Society has lifted that condition but I do not require their input to find that Mr. Cote himself is unable to provide for the care of Jayla. By his own testimony he works six days a week. He has little participation in the advocacy for Jayla’s health and educational needs. By his own words, he urges upon the court that Jayla has the care of three persons in the Applicants’ and that is what she requires.
[7] There is evidence of loving interaction between the father and Jayla but no indication in his evidence, written or oral, or in the observations of the OCL, that he has insight into the tasks of parenting or indeed into the needs of his children. As between himself and the mother, she clearly demonstrates as the more fit parent to assume the care of the children. Indeed, the mother is parenting Bryson and there is no reason to require a change. She has been regular in exercising her access with Jayla and although there have been complaints to the Children’s Aid Society concerning her compliance with administering medication and smoking, there has been no need for intervention from the Orangeville CAS. She has employment and stable housing in Orangeville. Her relationship with Jayla appears to be healthy though she is somewhat isolated from particular circumstances around the needs for a child. She expresses a willingness to continue the medical resources that are in place for Jayla in Barrie and indicates she would build new resources over time when she has Jayla in her care.
[8] Meanwhile, the paternal grandmother is proactive in addressing the child’s needs. The child Jayla came into her care due to the chaos, conflict and uncertainty surrounding the separation of the mother and father. The mother appropriately shielded Jayla from that chaos by acquiescing to her remaining in the care of the grandparents. This went on rather long and the grandmother rather took over. The grandmother should be commended for her diligence in pursuing medical interventions and special programming at the school. Jayla is on considerable medication which the mother would like to reduce if it is possible to do so. The grandmother reports that the child psychiatrist and the doctor with expertise in asthma have grave concerns about any changes. The mother has had little interaction with these professionals herself. Partly she has made that inconvenient by her move to Orangeville, but I find that the grandmother has initiated these relationships and her conflict with the mother has impeded the mother from an interaction with the doctors which could bring all the caring adults onto the same page in terms of the child’s treatment needs.
[9] This file is five years in litigation and yet the very basic structures for the exchange of information about the health, education and wellbeing of the child are not in place. The distance between Barrie and Orangeville is not an insurmountable barrier to the continuation of services now in place or transition of resources to a new community. What is absent is the necessary availability of information to all of the parties who provide care for these children so that each of them has an opportunity to meet the needs of the child.
[10] The OCL did have access to the medical records. The OCL did interview the principal of the school that is providing special resources for Jayla. Evidence before me suggests there are decisions pending on applications the grandmother has made on behalf of the child for increased educational resources. Obviously, the mother cannot meet those needs now because she does not have the information. Conflict and distance have kept her out of the picture. This must be remedied whether or not it results in a transition of care from the primary care of the grandmother to the primary care of the mother.
[11] I find that the mother is more capable of encouraging relationship with the grandparents and father than they are in encouraging relationship with her. There have been instances of overholding in the chaotic period of the parents’ separation. That phase of adjustment is over. The mother, not unreasonably, moved herself to Orangeville to avoid the conflict that existed at the time. Since then, access has been regular except when dispute arises over holiday periods. Of considerable note is the absolute refusal of the Applicants to participate in driving. Speaking for all, the grandmother declares that it was the mother who moved unnecessarily so that, in her view, for all time it would appear, the mother must take responsibility for all driving. This is so even though the mother does not have a driving licence. The father indicates his schedule in which he does not work on Sundays. I accept that the grandfather has a health difficulty that impacts him in lengthy driving but note that they have no hesitation in driving six hours to the cottage. The grandmother’s arguments continued that driving a long way once in a while was much different than driving to Orangeville regularly and that their vehicles were in poor shape, and that it would be a financial burden to participate in the driving. These excuses I find ridiculous after the paternal grandmother had placed considerable emphasis in the Applicant’s evidence of the enhanced opportunities they can give to Jayla as a result of their financial position as compared to the mother.
[12] The OCL Clinical Investigator, Adrienne Ambrozic made a very clear recommendation a year ago, anticipating her move to Orangeville, that the Respondent Mother have custody of both children. The Respondent Mother has been ineffective in moving this to implementation and the paternal grandmother has been enthusiastic and inventive in her dispute of the findings. Nevertheless, the report does shed much light on the family dynamics and relationships. I draw back from the suggestion that a biological parent should be the presumptive caregiver if she is fit. Continuity for the child is also an important factor among others in the statutory expression of best interests of the child.[^1] Another factor, recognizing that relationships with other family members with whom the child does not primarily reside may be of considerable importance, I find on the evidence and in the presentation, that the Applicants, particularly the paternal grandmother, has great resistance to relationship between Jayla and her mother and will not facilitate it unless required to do so. The mother’s move to Orangeville has done less to impede ongoing relationship for the children with all their important relationships than the attitude of the paternal grandmother towards the mother has done.
[13] I remind myself that on an interim motion the onus is on the party who wishes to make a change. I remind myself that the more significant the change the more certain the court should be that this is the result which trial will eventually bring. I intend to order a significant change but not one that affects the transition at this time. Rather, I intend to order a parenting schedule during the summer which will permit the mother, while Jayla is in her more regular care, to begin to put into place relationships and programs to replace those that would be lost with a move out of Barrie. With the child in her joint care, she can explore the educational possibilities and opportunities that may be available for the child in Orangeville. She can seek advice from the resources that the child now attends for transition to similar resources in Orangeville.
[14] She can attend at the medical resources, at scheduled appointments when Jayla attends, or on her own if necessary, to discuss with the clinicians both the necessary ongoing medical care required by Jayla but also whether it might be practical to transition at least some of that care to physicians in Orangeville.
[15] Similarly she can discuss Jayla’s needs with the current school officials and learn what would be necessary for a transition to an Orangeville school. She can make preliminary contacts with the proposed Orangeville school to find out exactly what would happen if on August 21, when this matter is returned before me, I order the interim transition of primary care to the Respondent Mother.
[16] Meanwhile, Jayla can enjoy summer activities with both sides of the family. The mother intends day camp for Jayla. She intends a two week holiday with Jayla. The grandparents would like Jayla at their cottage near Sault Ste. Marie for the maximum amount of time possible and the father has stated that he intends a two week holiday to go to the cottage as well though he has not been there for some years.
[17] Although the cottage is remote, I reject the contention that a holiday shorter than four weeks is impractical. Last year, an interruption to two weeks was accomplished by short notice court order. That uncertainty and disappointment should be avoided by planning ahead this year. The Applicant Father said he has not booked his holidays but did not communicate any difficulty with any particular dates. Bryson got started going to the cottage last summer despite the OCL recommendation that he was too young. I find no reason to backtrack on progress already made, so I intend to include Bryson in the holiday schedule.
[18] Ordinarily I would ask parties to work out particular schedules to accommodate their own preferences and work schedules. Here, I have no confidence that the parties can negotiate a schedule and they had only rudimentary information about plans and appointments. I was not told where the children are on their alternate weekend access schedule so I must simply impose a summer schedule.
[19] I do know that Jayla has some medical, educational and counselling appointments in June. I require the paternal grandmother to forthwith notify the Respondent Mother of those appointments so that she can make arrangements to attend if possible or meet with those same professionals herself if she is unable to get there on the scheduled date.
[20] I do know that education personnel can be difficult to contact after the end of the school year so I direct the Respondent Mother to make contact in June, referencing this order, to learn and begin implementing steps to transition Jayla to an Orangeville school in September should that be my order on August 21. The school year appears to end Thursday June 25.
[21] The following chart is the summer schedule commencing June 26:
JUNE 2015
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
1
n/a
2
n/a
3
n/a
4
n/a
5
n/a
6
n/a
7
n/a
8
n/a
9
n/a
10
n/a
11
n/a
12
n/a
13
n/a
14
n/a
15
n/a
16
n/a
17
n/a
18
n/a
19
n/a
20
n/a
21
n/a
22
n/a
23
n/a
24
n/a
25
n/a
26
Applicant /Respondent
27
Respondent
28
Respondent
29
Respondent
30
Respondent
JULY 2015
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
1
Respondent
2
Respondent
3
Respondent/ Applicant
4
Applicant
5
Applicant
6
Applicant
7
Applicant
8
Applicant
9
Applicant
10
Applicant
11
Applicant
12
Applicant
13
Applicant
14
Applicant
15
Applicant
16
Applicant
17
Applicant
18
Applicant
19
Applicant/
Respondent
20 Respondent
21
Respondent
22
Respondent
23
Respondent
24
Respondent
25
Respondent
26
Respondent
27
Respondent
28
Respondent
29
Respondent
30
Respondent
31
Respondent
AUGUST 2015
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
1
Respondent
2
Respondent
3
Respondent
4
Respondent
5
Respondent
6
Respondent
7
Respondent/
Applicant
8
Applicant
9
Applicant
10
Applicant
11
Applicant
12
Applicant
13
Applicant
14
Applicant/
Respondent
15
Respondent
16
Respondent
17
Respondent
18
Respondent
19
Respondent
20
Respondent
21
Respondent/
Applicant
22
Applicant
23
Applicant
24
Applicant
25
Applicant
26
Applicant
27
Applicant
28
Applicant
29
30
31
[22] This schedule gives opportunity for the Applicant to take both children to the cottage in early July and also gives the Respondent opportunity to schedule day camp or her own holidays in late July with both children. Otherwise the schedule is week about for both children.
[23] The Respondent Mother will arrange for driving on June 26, July 19, August 14
[24] The Applicant Father will arrange for driving on July 3, August 7, August 21
[25] All pick-ups will be at 6pm. on the transition days shaded in gray on the schedule.
[26] The driver and persons arriving to pick up the children shall remain in the car in the driveway of the residence and telephone they have arrived. The children shall be brought to the car with their belongings by the person in whose care they have been. One of the Applicants or a person known to the children and must be in the car when it is the Applicant’s turn to drive. The Respondent Mother or a person known to the children must be in the car when it is the Respondent’s turn to drive.
[27] Belongings needed for the children should be communicated by text message before 6pm the night before the transition and sent with the children.
[28] The children shall not be left in the care of any person impaired by alcohol or drugs. No one who has ingested alcohol in the preceding 12 hours shall drive the children in a vehicle or boat.
[29] In addition to the paternal grandmother forthwith providing the mother with Jayla’s appointment dates, by August 15, 2015 each party shall serve and file (in affidavit form) such further information they intend to rely on for the continuation of this motion before me on August 21, 2015.
[30] In the meantime, the parents remain in joint custody of both children and both parents are equally entitled to information from all clinicians, educators and others involved in the well-being of Jayla and of Bryson.
[31] On August 21 I will be looking for evidence on the mother’s effort to inform herself of the current resources in place for Jayla and how they can be transitioned to Orangeville. I will be looking for evidence on the degree of cooperation by the paternal grandmother to facilitate the mother getting this information. I will be particularly looking for evidence of the conduct of the parties on transition of the children in accordance with my the schedule set out herein. Evidence of conflict on transitions will attract immediate terms to control the conflict so I will require evidence from both sides as to how transportation can be shared and where the transitions can take place without conflict.
EBERHARD J.
Released: June 2, 2015
[^1]: Under subsection 24(2) of the CLRA, as amended on February 23, 2006, in determining what is in the best interests of a child, 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 care and upbringing of the child;
(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) any plans proposed 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.