CITATION: Trites v. Mallett, 2015 ONSC 441
COURT FILE NO.: FC-14-1271
DATE: 2015/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Lynne Trites
Applicant
– and –
Jason Augustus Mallett
Respondent
Tania Pompilio, for the Applicant
Marc J. Coderre, for the Respondent
HEARD: January 16, 2015 (at Ottawa)
DECISION ON INTERIM MOTION FOR CUSTODY AND ACCESS
Lalonde J.
Overview
[1] Jason Augustus Mallett, the respondent (husband) brings a motion for joint shared custody of the children of the marriage, Jaxson, who is 7 years old and Lena, who is 6 years old (the children).
[2] Jennifer Lynne Trites, the applicant (mother) brought a cross-motion seeking sole custody and primary parenting of the children. Further, she is requesting that the court fix (a) access for the husband; (b) support for the children; (c) the husband’s share of section 7 expenses; and for orders that (d) the husband maintain his life insurance coverage and extended health and dental plan; (e) that the husband be required to pay $1,515 monthly as his half share of the carrying costs related to the matrimonial home and joint debt; and (f) five other requests for orders on matters related to the above.
Background
[3] The parties began residing together in July 2007, were married on June 6, 2008 and separated on March 17, 2014 while continuing to live separate and apart in the matrimonial home.
[4] The father is a police officer with the Ottawa Police Service where he has worked for the past nine years. During the first four years, he has worked as a resource officer with the Catholic School Board. His base annual salary is $99,000 and in 2013, his income climbed to $131,000 per annum due to the overtime hours he worked.
[5] The wife is a duty manager with West Jet Airlines and she earns $80,000 as her base income. In 2013, she earned $106,000 because of the additional hours she did as overtime.
[6] Both parents have been impressively involved with their children. As the mother travelled often for her work and pleasure, the father cared for the children. The mother, on the other hand, cared for the children while their father was putting in additional hours at work. Post separation, by agreement, both the father and mother had an equal involvement and time sharing with the children. When both parents were out of town, the parents relied on the paternal grandparents to babysit the children as they lived very close to the children’s school.
[7] At a case conference on July 24, 2014, both parties agreed to engage the services of a social worker in order to conduct an assessment of the parenting abilities of each party and hopefully arrive at a parental regime. The arrangement of the parties remaining separate and apart while living in the same house lasted for seven months and would have lasted until trial of their custody and access issue.
The Catalyst
[8] I was informed that both parties committed marital indiscretions that led to a lot of bickering and unfortunately, as what usually happens in such cases; this was done at times in front of the children. The father had a relationship with one woman that met the children, who were told to keep their knowledge of this woman a secret from their mother. The mother in her affidavit outlines the ill effects of this episode on Jaxson’s well-being and behaviour at school.
[9] The mother claims that following the case conference, when both parties could reach consensus on important matters, the father started to keep his service revolver on a shelf in his closet, loaded, instead of in a lock box they had in their home. The mother took pictures of the gun and showed them to the social worker, Valerie Morinville, who in turn showed the pictures to the Children’s Aid Society, who promptly got the police involved. At the police station, the mother told police that she felt intimidated by her husband’s bullying and the father was charged with harassment, unsafe storage of his firearm and theft of a defibrillator, which was owned by the Ottawa Police and was stored in the home.
[10] The Children’s Aid Society obtained an undertaking from the father, following his arrest to remove himself to his parents’ home and to have supervised access to his children once per week in his parents’ home. Such access to the father is now on Saturdays from 10:00 a.m. to 7:00 p.m. and every Tuesday evening from after school until 7:00 p.m.
The Mother’s Plan of Care Pending Completion of Assessment
[11] The mother submits that her lifestyle and schedule are better suited to provide a consistent and stable routine for the children. She works four (4) days per week (5:30 a.m. until 4:00 p.m.) from Wednesday to Saturday. She is available to pick up the children every day after school and engage in their evening routines. With the exception of Wednesdays to Fridays, she is also available to take the children to daycare and school in the mornings.
[12] Since the father’s arrest, the mother has arranged for the maternal grandparents to sleep over at the matrimonial home so that they can assist with getting the children off to school in the mornings on Wednesdays, Thursdays, and Fridays.
[13] The children have adjusted well to the routine in the home and seem to be doing much better now that they are no longer exposed to conflict in the home. Jaxson, in particular, no longer wets the bed every night. In fact, he has only wet the bed on four (4) occasions since the father left the home. He no longer acts out in school and has also stopped biting his nails and his clothing.
[14] The only time that Jaxson has shown any signs of regression or distress is when it comes to visits with his father. For example, Jaxson cries hysterically when informed that he will be having a visit with his father each Tuesday evening. He regularly returns from visits with red swollen eyes and both Jaxson and Lena have confirmed that Jaxson often cries during visits because he wants to come home. Jaxson has also complained of headaches upon returning from visits which are at times so severe that they cause him to be sick to his stomach. In contrast, Jaxson rarely complains of headaches on days that he is not visiting with his father.
[15] Furthermore, the children often arrive home from visits complaining that they are hungry as they have not been fed dinner. In addition, while Lena’s homework is completed at the end of the Tuesday night visits, Jaxson’s homework is rarely done.
[16] In light of the father’s criminal charges and Jaxson’s adverse reactions to visits with his father, it is not in the children’s best interests to make any significant changes in access at this time.
[17] Furthermore, seeing as Jaxson seems to be quite upset by the recent addition of the Tuesday evening visit, a further increase in time may not be appropriate at this stage. The mother’s position is that visits should continue every Tuesday evening (from after school until 7:00 p.m.) and every Saturday from 10:00 a.m. to 7:00 p.m. This schedule allows for the children to see their father every two to three days.
[18] In the event that the court is inclined to award overnight visitation at this stage, then it is the mother’s position that one (1) overnight should be implemented per week on Fridays after school until Saturdays at 7:00 p.m. while also maintaining the Tuesday evening visit until 7:00 p.m. Overnight visits during the school week would be too disruptive for the children, particularly Jaxson, and it would be best for them to maintain the stability of their bedtime and morning routine in the matrimonial home.
The Husband’s Plan of Care
[19] Prior to the above incident, the husband’s bond and involvement with the children cannot be questioned. It included the following:
• Regularly attending church with the children.
• Volunteering for both children’s classes since they were in Junior Kindergarten.
• Attending numerous in and out of school events with the children such as, the scientists and bugs fair, the building engineering day, the Sugar Bush, etc. (the wife never volunteered and / or partook in the children’s outings with school).
• Taking the children to all play dates (and organizing those), birthday parties and get-togethers.
• Knowing all of the children’s friends and parents by name.
• Actively taking part in the children’s medical, dental, vision, and educational rendezvous.
• Actively and routinely taking part in the children’s every day routine from waking time, to bedtime.
• Being present at all of the children’s extracurricular and sporting activities.
• Doing the majority of the drop offs and pickups of the children for school / daycare, and not as a result of the wife not being available because of her work schedule.
[20] If prior conduct of the parties was the determining factor in a custody / access dispute, both parties would require scrutiny by this Honourable Court.
[21] Regardless of personal decisions the parties have made throughout the course of their relationship / marriage and post-separation, the fact remains that both parties are equally devoted, doting, committed and unconditionally loving parents to Jaxson and Lena.
[22] In her Application, the wife has presented allegations against the husband all in her mission to secure a custodial advantage over the children of the marriage.
[23] The husband denies wholeheartedly that the wife has been more involved than he with the children and / or that she is the better moral individual to guide the children in their upbringing.
[24] From the date of separation to October 10, 2014, the husband saw the children daily, partook in their routines that he assisted in implementing since their birth, was an ever present figure in their life and nurtured and cared for them as they had both been accustomed since birth. The husband wants to care jointly with his wife for the children.
Analysis of the Custody / Access requests and Other Demands
[25] I agree with Minnema J.’s decision in Button v. Konieczny, 2012 ONSC 5613, that status quo means the primary or legal status quo, not a short lived status quo created to gain a tactical advantage. His decision also quotes the decision in Kimpton v. Kimpton, 2002 CanLII 2793, Easton v. McAvoy, 2005 ONCJ 319, and Horton v. Marsh, 2008 NSSC 224. At para. 6 of Horton v. Marsh, the court states:
The status quo which ordinarily is to be maintained is the same status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child, dictates otherwise.
[26] I have received the independent affidavit of Joanne Meredith, the principal at St. Theresa Elementary Catholic School, in Orleans, Ontario, where Lena and Jaxson attend. I was told at the hearing by the mother’s counsel that I should not rely on the affidavit as Joanne Meredith, due no doubt to pressure exercised by the mother, wishes to withdraw her sworn affidavit. With due respect, all Ms. Meredith can do now is to say she is sorry that she gave the affidavit as it cannot be taken back. The court needs the information about the children from a witness who has unbiased knowledge of the situation.
[27] Joanne Meredith has known the father for seven years as he was her resource officer at a previous school where she was a principal also. Contrary to the picture painted by the mother concerning how many ill effects the father’s behaviour had caused here is what Joanne Meredith states in her affidavit:
Jason as a parent
In one word, Jason is an amazing father.
He is an engaged, loving nurturing very involved father with both his children, Lena and Jaxson.
Although I know Jennifer as the children’s Mother, it is Jason that I have most often than not observed coming to the school to address the children’s issues with their teachers and / or to pick up the children if they were sick, or had appointments. Jason was the person coming for them.
Jason was always pleasant, professional, even-tempered, patient and committed to each of his children’s needs.
Prior to Jason’s arrest, Jason was the parent that I view as the children’s primary caretaker in terms of his role with the children’s educational needs.
If the children had issues, raised by their respective teachers, Jason attended all meetings.
Post-separation / arrest
The children, since changes have been imposed upon Jason due to his arrest, have not displayed any form of behavioral issues at school other than voicing to me, that they miss their father.
In fact, on all days, that Jason has been allowed to pick up the children from school, he has been punctual, and showed the greatest joy in doing so.
The children have demonstrated such comfort and happiness at the sight of their dad being at the school to retrieve them.
Today, for example, is Tuesday December 16, 2014. Jason is now allowed to pick up the children from school on Tuesdays.
When Lena saw Jason, she did as she always does when her dad is there for her: she runs to him, smiling, and flies into his arms.
Jaxson always shows the emotion of being overjoyed at the sight of Jason. His first question is always: “Am I going to your house?”
I have no concerns for the children’s safety when in Jason’s presence.
I reiterate the fact that Jason is a loving, doting, wonderful, amazing father.
[28] The court needs to know the reality of the current situation. In a situation such as this one, unless the children are exposed to danger, the court is faced with the demand to embark upon the impossible task of attempting to assess the relative merits of the parties who have filed numerous affidavits contradicting the affidavits of the other. Cross-examination of the affidavits is very important to weed out false representations and exaggerations. On a motion such as this one, we do not have that benefit.
[29] I echo the words of Himel J. in Zafar v. Ninala, 2008 CanLII 55144 (ON SC), [2008] 60 R.F.L. (6th) 137 (Ont. Sup. Ct.) and adopt the principles she set out as follows:
- On a motion for temporary custody, the court must consider the best interests of the child which includes a number of relevant factors. Section 16(10) of the Divorce Act, R.S.C. 1985, c. 3 [as amended] provides as follows:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for who custody is sought to facilitate such contact.
- In the case of Easton v. McAvoy, 2005 ONCJ 319, [2005] O.J. No. 5479, [2006] W.D.F.L. 3837, Y.A. Renaud J. outlined various factors he considered on a temporary custody motion:
In considering what temporary solution is in the best interests of these children, the court looks at all the needs and circumstances of the children, which include the following largely un-contradicted facts:
both parents have a strong bond with the children;
the parents have each had a significant, if not entirely equal, parenting role in the care and upbringing of the children since they began cohabitation;
both parents appear committed to the well-being of the children;
the views and preferences of the children cannot yet be ascertained independently;
the not insignificant time the children have lived in a stable home environment, which environment has included both parents;
the expressed ability and willingness of each parent to provide the children with guidance and necessaries of life;
the fact that the parent’s respective plans for the children each have some strengths but also suffer from the inevitable difficulty that the separation has just recently occurred and some time is to be permitted to allow the situation to stabilize; …
All of the above principles apply to this case. I agree with counsel for the husband that neither parent asserts that there are issues of risk or possible harm to the children while in the care of the other. They are both good parents.
[30] I will not grant an order to give access to the wife to the husband’s police records. What has happened in the past either at the husband’s place of employment or the wife’s place of employment has no place in the resolution of the parents’ conflict. This Court does not desire a quantity of mini trials inside of the issues that need to be resolved. The issue is what is in the best interests of the children and no irrelevant distractions should interfere with the resolution of the question.
[31] In her letter of November 19, 2014, Leandro Silva-Stone of Child Protection Services of the Children’s Aid Society of Ottawa states: “Mr. Mallett no longer has access to a weapon and the stolen defibrillator which was in his possession, has been seized.” With due respect to the author of the letter, it has not been established that the defibrillator was stolen nor that Mr. Mallett’s service revolver can be classified as a weapon that has no place in the house. It only needs to be placed in a lock box.
[32] This brings me to ask everyone involved in this case, especially counsel for the parties to tone down their interventions to re-establish a dialogue that will serve the children’s best interests. It is in the best interests of the children that they continue to have a close relationship with both parents and that they not be placed in the middle of their parents’ conflicts. This is also a case where by exception joint custody should be imposed even though there has been conflict between the parents. The status quo that I am considering is the status quo that existed when they were separated and both parents gave the children the care and attention needed as they are both fit parents.
[33] The husband is living with his parents and close to the children’s school. This should now minimize the conflict with his wife. I strongly suggest that between now and the trial of this matter, the husband should follow an anger management course. If both parents make a concerted effort to cooperate to meet their children’s needs, this order for joint custody can succeed. For the time being, the parties can exchange a notebook about the children’s problems as they arise. As I told the parties in court, they have over ten years of parenting ahead of them and they cannot ask the court on a yearly basis to fix their problems. I make the following order on a temporary basis:
The parties will have interim joint custody of Jaxson Mallett and Lena Mallett until trial or until a further order of this Court.
The parties will have the children on alternate weeks, with the children staying with their father commencing after school on Friday, January 30, 2015, until the following Friday when the mother will pick up the children at the school.
There shall be telephone access for the children with the other parent so that they speak to that parent once a day.
The parties shall keep each other informed and consult with each other about the children’s educational, medical, social and emotional needs.
The parties shall arrange a reasonable holiday schedule dividing time with the children in a manner that meets their best interests.
Neither party shall make derogatory comments about the other parent or their family members.
Both parents shall facilitate contact with the children and the other parent, the failure of which will be considered by the court on a motion to vary the order.
Matrimonial Home
[34] I do not make an order for the immediate sale of the matrimonial home. It is clear to me that unfortunately the home will have to be sold. When the parties pooled their resources, they could afford their home. Now it is obvious that the parties cannot service a $432,000 mortgage and a line of credit debt of $72,000.
[35] While I can order the husband to contribute to the payment and the debt, and that is frequently done, I will only do so for a short period of time to allow the children to adjust to the new custody and access regime. Also, I do not think that the father is obliged to live with his parents indefinitely to help pay for the matrimonial home. Prior to separation, both parties did too much overtime, keeping them away from their children in order to pay for their home. I suggest that the matrimonial home should be placed on the market for a sale in May 2015.
[36] I order the father to pay $1,515 each month to the mother for his half share of the carrying costs related to the matrimonial home and joint debt from January to May 2015, both dates inclusive. This matter should be reviewed in May 2015 by the parties. A court application can be made if the parties cannot agree on what comes next in relation to the house.
Child Support and Section 7 Expenses
[37] Further, I grant an order that the husband pay to the wife, $1,326 monthly child support for both children and $450 per month for section 7 expenses commencing on January 1, 2015 and continuing thereafter until further order of this Court.
[38] I make no order concerning:
(a) A 50% payment to the wife of the husband’s retroactive pay bonus as this will be dealt with in the division of the parties’ net family properties later.
(b) The parties’ choice of motor vehicles; this is not a proper item on an interim motion.
(c) As underlined previously in this decision, there will be no order concerning the disclosure of the father’s police records for the current criminal charges and Valerie Morinville does not need distractions to complete her assessments. This decision applies to the husband’s police employment records and / or complaints.
[39] I make an order that the father maintain the mother and the children as beneficiaries of his extended health and dental plan.
Consent Order
[40] I order that the parties continue their custody and access assessment with social worker, Valerie Morinville, and undergo psychometric testing as recommended by Valerie Morinville.
Costs
[41] In light of the heavy financial burden placed on the father who is foregoing at the moment the comfort of the matrimonial home and his contribution to the mortgage and joint debt, leads me to make no order as to costs. The success of this motion is divided between the parties in such a manner that costs should not be ordered.
Lalonde J.
Released: January 23, 2015
CITATION: Trites v. Mallett, 2015 ONSC 441
COURT FILE NO.: FC-14-1271
DATE: 2015/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Lynne Trites
Applicant
– and –
Jason Augustus Mallett
Respondent
DECISION ON INTERIM MOTION FOR CUSTODY AND ACCESS
Lalonde J.
Released: January 23, 2015