CITATION: Gibson v. Emmons, 2015 ONSC 4458
NAPANEE COURT FILE NO.: 341/14
DATE: 2015 Jul 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shannon Leigh Gibson
Applicant
– and –
Quincy Andrew Emmons
Respondent
– and –
Holly Louann Emmons
Respondent
Lucienne MacLauchlan, for the Applicant
S. Daniel Baldwin, for the Respondent/Quincy Andrew Emmons
Holly Louann Emmons, self-represented and assisted by Duty Counsel
HEARD: June 15, 2015 at Napanee
bELCH, j.
motion decision
[1] Shannon Gibson, applicant (Shannon) commenced her application first returnable November 10, 2014 for access to Ava, born June 16, 2007 to include regular weekly periodic access, fixed access during the summer, and access throughout the year on statutory and other holidays. In addition, she seeks access to all medical records, school documents and records, and any other information important in the child’s life. She wishes to participate in any activity Ava is involved in or registered for through school. Finally, she seeks costs on a solicitor/client basis. This is a notice of motion within the Application seeking a temporary order granting access on a progressive schedule of visits and seeking costs from the respondents, jointly and severally.
[2] Quincy Emmons, respondent (Quincy), is the biological father of Ava. Holly Emmons, respondent (Holly), is the biological mother of Ava. Both respondents are opposed to the relief requested by the applicant. Quincy Emmons has brought his own motion for an order dismissing the motion of Shannon Gibson and her claim for access, an order for security of costs in the amount of $7500.00 and his costs of this action on a substantial indemnity basis.
[3] For the reasons that follow, the court dismisses the applicant’s motion for interim access deciding it is not in Ava’s best interests; the court dismisses the respondent’s (Quincy) motion for security for costs. As success was divided, the court awards Quincy set off costs of $3500.
BACKGROUND
[4] The respondents, Quincy and Holly, cohabited from the spring of 1997. They married on October 5, 2002, Ava was born June 16, 2007 and they separated in December 2008. After separation, they shared custody of Ava on a week-on/week-off basis.
[5] After their separation, Quincy and Holly, were involved in litigation over the care of Ava. Quincy’s documents suggest Holly’s parenting was suspect and described Shannon as a wonderful mother to Ava. Now, Quincy suggests Shannon had an active hand in the preparation of his court documents which she used to downplay Holly’s role and to enhance her own position as stepmother in the life of Ava.
[6] The applicant, Shannon, and Quincy Emmons had begun cohabitation in July 2010, were married July 2011, and separated September 28, 2012. It appears Ava resided with them during the periods when Quincy enjoyed his shared parenting. Shannon and Quincy disagree about who did the parenting when Ava resided with them. Shannon claims she was the primary caregiver; Quincy deposes they shared parenting. After Shannon and Quincy separated in September 2012, Shannon deposes she continued to have access with Ava until November 2013 when her access was cut off by Quincy, she says in a dispute over money which she had refused to lend to Quincy.
[7] The biological parents, Quincy and Holly, have set aside their differences, and now suggest each has been and continues to be a good parent to Ava, and they are united in their opposition to any access by Shannon claiming it is not in the child’s best interests.
APPLICANT’S POSITION
[8] Shannon deposes; Ava had her own room at Shannon’s house. During the time Ava spent there, she parented Ava while Quincy was a “play” dad. Not only was she Ava’s stepmother, but a loving friend and they developed a special relationship. Ava referred to her as “my Shannon.” She tended to all of Ava’s physical, educational, and emotional needs while Ava was in their care including bathing, toilet training, meal preparation, taught her to swim, helped pick out her clothes, played board games, made crafts, arranged for enrolment in a French immersion program, attended parent-teacher meetings, assisted her with her homework, read to her, arranged and paid for summer day camps, took her to all of her regular doctor appointments and maintained a routine and boundaries for her. She even left her employment in Kingston, accepting a position in Napanee, for the sole purpose of being readily available to her.
[9] While Shannon appreciates she has not seen Ava for some time, this was not for lack of effort on her behalf. Unfortunately, document preparation by a former lawyer did not move quickly. She wishes to be reintroduced to Ava through access supervised by the Salvation Army.
[10] Quincy Emmons’ affidavit Shannon submits contains allegations against her which are not true. Quincy’s main complaint is Shannon was controlling, preventing him from contact with his parents, controlling the family finances, Ava’s diet, her hygiene and alleges Shannon had an inability to control her anger. This description does not equate to his Answer filed in a previous court proceeding (2010) wherein he states “Shannon Gibson is a loving, caring person who cares deeply for Ava and works hard to provide a stable environment for her to grow up in and, further, Ava’s best interests are solely met by the applicant (Quincy) and Shannon Gibson.”
[11] Shannon submits she was being deeply involved in Ava’s life from when they met in July 2009, until separation in September 2012, and later during access visits from September 2012 until November 2013. She and Ava did indeed have a special relationship and continuing that relationship would be in the best interests of the child. She believes she has much to offer in the child’s development which the biological parents do not adequately provide.
POSITION OF QUINCY EMMONS
[12] Quincy deposes when he first met Shannon, he was in a vulnerable state. His marriage had broken down, he had lost the family business and was bankrupt. These stressors affected his physical and mental health. He was depressed and Shannon took advantage of his depressed state and became a controlling and dominating spouse. She attempted to control every aspect of their relationship while struggling to control her own temper and her inability to control her anger led to her physically and emotionally abusing both Quincy and Ava.
[13] In his diminished mental state, he states he was unable to recognize her problematic behaviour and take charge. After receiving counselling for his depression and with the ability to see the negative effects of the relationship, he decided the final straw for him was when he observed Shannon angrily grab and shake his daughter and he knew then he had to leave to protect the child.
[14] He further deposes Shannon was not Ava’s primary caregiver; this was a role shared by Holly and himself. Shannon simply assisted with various parenting duties. He agrees she did control Ava’s hygiene, but the child was already being toilet trained by the biological parents prior to her meeting the applicant, she may have assisted to teach Ava manners, but the child learned her manners from all family members. He states Shannon controlled Ava’s nutrition to a fault, she didn’t teach her how to swim. She did however purchase clothes for Ava. He also assisted with homework and while Shannon would read to her, so would he, her mother and her grandparents. Yes, Shannon took Ava to one doctor’s appointment and consistently tried to change Ava’s doctor to her own. Finally, the boundaries Shannon attempted to create for Ava “did not allow Ava to thrive; it scared her.”
[15] Holly is a fantastic mother who is fully capable of caring for our daughter just as she has done since Ava was born. Between Holly and I, we have always been there to provide Ava with the guidance, care and companionship she needs on a daily basis. We are loving and caring parents. The applicant is unable to appreciate the vital role Holly plays in Ava’s life.
[16] In addition, Quincy Emmons filed an affidavit from Dr. Sandra Cowan, Ava’s doctor as well as the doctor for Quincy and his parents. The doctor conducted an interview with Ava on December 10, 2014 to check on her emotional health. No members of the Emmons family were present. She deposes during their talk, Ava was questioned about what it was like to live with the applicant, Shannon, to which she stated “not good, Shannon was mean. “……” her [Ava’s] body language exhibited signs of sadness…[she] stated the applicant would often yell at her and her father… The applicant had spanked her for peeing her pants.”
[17] The doctor observed that Ava was very clear in expressing her fear of the applicant and opined, “I am concerned that an order granting the applicant custody and/or access over Ava will have a negative effect on her physical and mental well-being. Ava is happy and secure in her current living arrangements.”
POSITION OF HOLLY EMMONS
[18] Holly deposes that since the separation of Shannon and Quincy, the relationship between herself and Quincy has never been better. They have great communication and are very happy to help one another out where Ava is concerned. Shannon was always a barrier of communication between she and Quincy and her negative attitude towards her made it very difficult to communicate and solve problems on issues that would arise. Shannon refused to get to know her and only ever saw her as an evil ex-wife. In conclusion, she and Quincy live separate lives, are healthy and happy sharing joint custody with Ava in a week-on/week-off basis. Since the applicant is no longer in the picture, there has been nothing but happiness had by all.
[19] Allowing Shannon access to Ava would be unfair to Ava. It would mean another adjustment and adding stress to her life that has finally become what she has wanted.
APPLICANT’S REPLY
[20] Shannon, in her affidavit sworn May 6, 2015, deposes she does not want to be a mother to Ava and appreciates Ava has a mother. She simply wants to continue the relationship she had with Ava as her stepmother and friend believing she has many things to offer the child in her growth and development most notably unconditional love.
[21] With respect to the affidavit of Dr. Cowan, the doctor has never observed Ava in her care nor does she have any knowledge of her relationship with the child.
[22] Concerning the request for security for costs, she views this as a tactic to prohibit having her claim for relief adjudicated by a court. She resides in the Province of Ontario, owns real estate in the Province of Ontario, specifically her home located in Camden East with an estimated equity of $66,000. There are no cost orders against her in any court case.
THE LAW
[23] In examining the Annual Review of Family Law, 2014, McLeod and Mamo, Carswell and particularly, page 210 the court notes from previous court decisions: a non-parent does not have a presumptive right to access or to maintain an ongoing relationship with the child. The onus is on a non-parent seeking access to prove that it is in the child’s best interest to have such a relationship. A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact… The court further observes that in a Saskatchewan case, the court granted stepmother access to the children who were in the care of their mother after the death of their father. The court held that the stepmother had a close relationship with the children and that in addition, it was in the best interest of the children to continue to be in touch with their step siblings.
[24] Further, courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with the custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs….. From page 211, an application by a mother’s former live-in boyfriend for access to the child was denied on the basis that the dysfunctional relationship which existed during cohabitation would make such access not in the child’s best interests.
[25] Grandparents are legal strangers; the concept of treating grandparents as legal strangers, however, does not apply in circumstances where the grandparents had raised the child for the first 15 months of her life. See page 212 and at page 213, the grandparents’ rights should not be placed ahead of those of the custodial parent’s.
[26] Other excerpts from this text remind us of the factors governing access, namely, age of the child, conduct and lifestyle, health, religious and cultural bringing, welfare of the child, wishes of the child, status quo etc.
[27] The Court is also mindful this is not the trial, but is a motion for a temporary order dealing with interim access.
ANALYSIS AND CONCLUSION
[28] At this point, Shannon is 20 months from when she last enjoyed access with Ava. Unfortunately, time does not stand still and I suspect there have been many changes in Ava’s development. At trial, Shannon’s evidence will probably consist of her own testimony and that of friends and family. She may get something helpful during cross-examination of the biological parents, their families and friends. In addition, she is up against the testimony of the child’s doctor, Dr. Cowan which will likely not be helpful to Shannon’s position.
[29] If successful on this motion, she will hope to receive positive reports from the employees at the Salvation Army who observe exchanges between Ava and herself. Even if the office of the Children’s Lawyer was involved, she would need a positive report from a social work assist who might testify Ava was indeed interested in a relationship with Shannon.
[30] The most helpful independent evidence would likely result from an assessment of the family including the biological parents, Ava, and Shannon. Such a report would be costly and require additional time before a trial date. It would add further delay to the already 20 month status quo.
[31] On this motion Shannon, as a non-parent has the onus of showing it is in Ava’s best interests they enjoyed access with one another. Applying the aforementioned case law, the court notes the custodial parents are objecting to access. In addition, despite Quincy and Holly’s present position that shared parenting is working theirs is a relationship which unraveled in the past. The court would be loath to disturb the relationship as an award of interim access might undermine the parents’ ability to parent.
[32] There is no doubt Shannon enjoyed a relationship with Ava which spanned almost one half of Ava’s life as of the date access was stopped. It was not simply access exercised on a few occasions. This would tend to favour access.
[33] The child’s wishes can be a factor, but this is a young child, age 8. Courts are usually cautious about accepting a young child’s wishes because of the opportunity others have to influence her decision. This would tend to weaken the evidence of the biological parents on child’s wishes, however, Dr. Cowan has provided affidavit evidence and will likely testify at a trial This doctor who has practised for over 38 years and whose background indicates she did her internship with an elective training in psychiatry, did considerable training in the 80s in childhood abuse, has spoken about childhood abuse to teachers, principals and the CAS and who serve on a committee at Queen’s to develop the teaching curriculum regarding abuse and in practice has seen hundreds of children over the years who she has counsel. Evidently, counselling children and adolescents and adults has always been a large part of her practice. Any testimony from this witness about Ava’s wishes may be considered by the court to be credible, especially her opinion access is not desirable.
[34] While an award of interim access might produce some positive feedback from the Salvation Army along with Shannon’s involvement for over one half of Ava’s life, those possible positives must be weighed against the parents’ objection, the possibility of undermining the parents’ ability to parent, the child’s wishes, the status quo. After considering the materials filed, submissions and case authorities, this court is not prepared to make a temporary order, believing it not to be in the best interests of Ava, accordingly, the applicant’s motion for interim access is dismissed.
SECURITY FOR COSTS
[35] The respondent, Quincy Emmons, requests the applicant pay $7500 as security for costs. Given Shannon is a resident of Ontario, has substantial equity in her home, and there are no outstanding orders of costs that have been made against her, Quincy’s request is entirely without foundation and is dismissed.
TODAY’S COSTS
[36] At the conclusion of this motion for temporary relief, each counsel filed their respective bill of costs in a sealed envelope which was opened after the decision was written.
[37] Shannon, the applicant seeks costs of $12,833.98 representing what she has been charged in fees, disbursements and HST. Quincy, the respondent seeks costs of $22,728.81 for his fees, disbursements and HST.
[38] Neither provided evidence either had made an offer to settle. The respondent presented no evidence of what he had paid his own counsel, a consideration identified by the Court of Appeal in Zesta as important. There was no breakdown of what efforts went into access as opposed to security for costs although it seems likely each counsel spent more time on access.
[39] The court is aware of these factors:
a. Shannon was billed $12,833.98 by her lawyer who in terms of her year of called to the bar is the more senior.
b. Quincy’s Counsel is a more recent call to the bar.
c. Quincy sought security for costs in the amount of $7500. Perhaps this is indicative of what his counsel thought costs might be.
d. Success was divided: Quincy won access; Shannon was successful on security for costs.
[40] Taking these factors into account, Quincy is awarded set off costs of $3500 for fees, disbursements and HST.
Honourable Mr. Justice Douglas M. Belch
Released: July 10, 2015
CITATION: Gibson v. Emmons, 2015 ONSC 4458
NAPANEE COURT FILE NO.: 341/14
DATE: 2015 Jul 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shannon Leigh Gibson
Applicant
– and –
Quincy Andrew Emmons
Respondent
– and –
Holly Louann Emmons
Respondent
mOTION dECISION
Belch, J.
Released: July 10, 2015