Court File and Parties
CITATION: Monteleone v. Duin, 2015 ONSC 3942
COURT FILE NO.: F663-2015
DATE: 2015/06/18
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Samantha Ashley Monteleone (Applicant)
AND: Cole Emmerson Peter Douglas Duin (Respondent)
BEFORE: Justice D. R. Aston
COUNSEL: Carolyn J. Lloyd, for the applicant
Imran Khan, for the respondent
HEARD: June 17, 2015
ENDORSEMENT
[1] Both parents bring motions prior to any case conference, on the basis of urgency. The father has not had time to respond to the mother’s motion material. When the motion was heard he was offered the choice of adjourning the matter a week to enable him to respond or to argue the matter June 17 based on the material already filed. He chose the latter.
[2] The application is adjourned to a case conference September 29, 2015 at 10 a.m. (Templeton J.). Given that systemic delay and the fact that the father has not had time with his two year old son Hunter since May 3, I accept that the issue of parenting time during the next three and a half months is sufficiently “urgent” to warrant a determination of that issue before the case conference. However, the other issues raised by the parties do not meet the test in Family Law Rule 14(4.2) and those other claims are adjourned to the motions court list following the case conference, October 6, 2015. That adjournment is without prejudice to any further consent order using Form 14B, such as an agreement by the parents modifying today’s order or an order requesting the engagement of the OCL. Nor does it foreclose a fresh motion if required for the enforcement of this order, such as the requests pending for police assistance or for an order that neither parent remove the child from Ontario.
[3] Before May 3, 2015, the parties agreed informally to share responsibility for Hunter’s care on a 3/4/4/3 day pattern. Their arrangement was unilaterally terminated by the mother on May 3 after the father had moved from his own mother’s home in Aylmer into a new home some distance away in Thedford, Ontario. He shares this new accommodation with someone named “Tonya” but he denies he is in a romantic relationship with her, asserting that they are merely roommates.
[4] The mother is quite skeptical of that (pointing out that when she was at the father’s new home she was not allowed to go upstairs to see what the sleeping arrangements were) but the mother’s main concern is that when she saw the father’s new accommodation it was clearly an unsafe place for a two year old. The floor was littered with broken glass. The father’s knife and sword collection and various drug paraphernalia was in plain view and easy reach. The mother’s subsequent insistence that conditions be attached to the father’s care of Hunter have led to an impasse and the six week hiatus in his time with his son.
[5] Regardless of the nature of the father’s relationship with Tonya, his Form 35.1 affidavit is deficient because she is not named in paragraph 10 thereof. There is no disclosure about whether she has any history with a children’s aid society or the criminal justice system, disclosure that is required if she is living in the home where the father proposes to have custody of his son. In addition, the father deposes in paragraph 10(h) of his Form 35.1 that his own mother “lives in the same apartment block as me and is actively involved in all additional support I need”. That may have been true in the past but it was not accurate after the father moved or at the time he swore to the truth of this information on June 9, 2015.
[6] I attach little weight to the father’s expressed concerns about the risks to the child posed by medicinal marijuana use by the maternal grandfather. There is nothing new in his use of marijuana in the home where Hunter has resided since August 2014. The father’s concerns were never an issue before May 3 this year. Moreover, I accept the evidence of the mother and the maternal grandfather that they do not smoke either marijuana or tobacco in Hunter’s presence, nor does Hunter have access to tobacco or marijuana.
[7] The father’s self-serving opinion about “undue psychological harm and distress” to Hunter and the “long-term toxic effect of marijuana” are empty rhetoric, unsupported by any corroborative evidence
[8] Though I am skeptical about the father’s candour, there is no doubt that he was a very active and engaged parent before and after the parties separated in August 2014. The parental agreement to a 3/4/4/3 day cycle with the child is compelling evidence of a status quo that should not be disturbed except for a cogent reason.
[9] I am prepared to assume that the father is capable of addressing the safety concerns relating to broken glass, drug paraphernalia, swords and knives etc. relating to his new residence. I do not believe he would knowingly expose his son to risk of harm. The mother’s concerns seem legitimate but exaggerated.
[10] Pending the return of the motion, or a further order based upon an agreement or a significant change in circumstances after today, a temporary without prejudice order is granted, that the parents resume sharing responsibility for Hunter’s day-to-day care, modified to reflect the mother’s new hours of employment and the driving distance involved because of the father’s choice to move:
The child will be in the care of the father from Thursday 9 a.m. to Saturday at 6 p.m. each week.
The child will be in the mother’s care at all other times.
The father is responsible for the pick and drop off of the child but may delegate that responsibility to his mother or some other responsible adult. Pick up and drop off is to occur at the mother’s residence at 116 Culver Crescent, London, Ontario.
This order shall come into effect upon the father serving and filing an updated Form 35.1 affidavit.
[11] Notwithstanding that the father is the more successful party in the outcome on this motion, there shall be no orders to costs. The mother’s concerns were reasonable and legitimate and based upon her good faith perception of her son’s best interests.
“Justice D. R. Aston”
Justice D. R. Aston
Date: June 18, 2015