COURT FILE AND PARTIES

COURT FILE NO.: FC-15-1561

DATE: 2015/07/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kara-Lee MacPhee, Applicant

AND

David Thistle, Respondent

BEFORE: Shelston J.

COUNSEL: Catherine Calvert, counsel for the Applicant

Michèle Blais, counsel for the Respondent

HEARD: July 27, 2015 (at Ottawa)

ENDORSEMENT

[1] There are two urgent motions before me dealing with the interim custody of Kaia, born March 29, 2012. The parties are her parents and each has filed affidavit material. There has been no cross-examination on the affidavits or corroboration of the allegations made by both sides.

[2] The applicant is seeking sole interim custody of the child as well as an interim order for supervised access or access as determined by this court. The respondent is seeking permission to travel with the child to Newfoundland; dismissal of the applicant’s motion for primary care of the child and supervised access; implementation of an interim 2-2-3 schedule; an order that the child attend the French PP 3 program with Reine-des-Bois School in Orleans effective September 2015 as well as other relief.

Background

[3] The parties started cohabitating in 2011. They separated on July 1, 2015 as alleged by the applicant or June 23, 2015 as alleged by the respondent.

[4] From the parties relationship there is one child, Kaia. The respondent has two sons from a previous marriage namely Jeydrek, age 8 and Treyton, age 5. He has joint legal custody of these children and has the children half of the time. The respondent is a firefighter who works seven to eight 24 hour shifts per month. In addition he does part-time work as a paramedic to earn additional income but he can terminate this employment at any time. When he is not at work, he cares for the child.

[5] The applicant has two children from a previous marriage, namely, Alex, age 16 and Stephanie, age 14. The applicant is currently employed as a dental hygienist in the Findlay Creek area of Ottawa and now works Monday through Thursday from 8 a.m. to 4 p.m. and Fridays from 8 a.m. until noon with the possibility of working later if there are appointments. As well, on Tuesday and Wednesday the applicant’s work is located in Russell, Ontario.

[6] Prior to separation, the respondent cared for the child four weekdays out of five three weeks of every month and three weekdays out of five one week per month. He also had two full weekends off per month and on the other two weekends he was only available one of the two days. His parents, former spouse, and stepdaughter, Stephanie, covered the other 10% of the time on weekdays. Consequently, the child has never been in daycare.

[7] In the evenings, weekends and when she was not working, the applicant cared for the child. The evidence is that the parties both had active roles in the child’s life.

[8] The applicant alleges that the respondent has been verbally abusive towards her and all of the children, including her two children from a previous marriage, the respondent’s two children from a previous marriage and their three-year-old daughter. Further, there are allegations of physical abuse towards the applicant’s son Alex and Kaia. She alleges that she is concerned that the respondent is suffering from post-traumatic stress disorder.

[9] The allegations of physical and verbal abuse are denied by the respondent. The Children’s Aid Society (the “Society”) was contacted by the applicant on June 23, 2015 and she met with the worker on June 30, 2015 with her two older children Stephanie and Alex. She states that the worker told her to leave the family residence as there was abuse and that the Society would commence their investigation when she moved out of the family residence. The respondent was contacted by the Society on July 21 and met with the Society worker on July 24, 2015. There is no evidence submitted from the Society.

Interim Custody

[10] Credibility is always important even at this stage without viva voce evidence or transcripts of questioning. The applicant makes very serious allegations against the respondent. In her affidavit, dated July 23, 2015 at paragraphs 11 and 12, she states the following:

11. I am worried about the safety and wellbeing of all of my children, Stephanie, Alex and Kaia, when they are with the Respondent father. In addition, as Kaia is so young and cannot defend herself, I am very worried about the safety of Kaia when she is in the Respondent father’s sole care.

12. I strongly believe that the Respondent father would benefit from an Anger Management Program and Parenting program. In fact, since the abuse started on or about 3 years ago, I have been asking the Respondent father to obtain help.

[11] The respondent denies these allegations. In the face of making such allegations and other allegations in her affidavit material, four days later on July 27, 2015, the applicant consented in minutes of settlement that the respondent travel with the child unsupervised to Newfoundland from August 13, 2015 to August 22, 2015. Further, she permitted the respondent to travel unsupervised with the child to Montréal from July 11 to July 13 as well as a camping trip from June 25 to June 27. The actions of the applicant are not consistent with the allegations in her affidavits.

[12] The factual record regarding abuse is in serious dispute between the parents. The Society is investigating however considering that the allegations of abuse were made on June 23, it is telling that they waited until July 24 to meet with the respondent. Further, they have not commenced any court proceedings or made any restrictions on the respondent with the child.

[13] The courts have held that the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the child’s best interests. That is so, when the existing arrangement is a de facto or de jure. See McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. 4th 115 (Ont. Gen. Div.); Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.); and Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (S.C.J.)

[14] The status quo is the one that existed prior to separation and not what is created after separation. See Kimpton v. Kimpton, 2002 2793 (S.C.J.)

[15] Justice Pierce in Crocker v. Hooke, 2003 CarswellOnt 1624 (S.C.J.) held at para. 30:

Interim custody, in the face of conflicting affidavits and a climate of recrimination, is not a time for experimentation with the child’s life. Such decisions are difficult enough for the court when it has the benefit of hearing evidence presented by the parties. …

[16] The applicant decided to move to Russell, Ontario on July 25, 2015 with the child and enrolled the child in a daycare program at a local elementary school all without the consent of the respondent. The real issue is what was the status quo before separation?

[17] Prior to separation the parties jointly parented the child. The applicant worked full-time as a dental hygienist and the respondent worked seven to eight days during the month. If the respondent was unable to take care of the child, he would enlist the aid of the paternal grandparents, his former spouse and the applicant’s daughter Stephanie to take care of the three-year-old child.

[18] The applicant’s plan is a fundamental shift from the status quo. The child has never been in daycare. She has been co-parented by both parents. I do not see any compelling reason to change the status quo which was that these parties co-parented this child.

Daycare or the French PP3 Program

[19] The child had been registered to attend the program in Orleans commencing September 2015. The program runs from 9 a.m. to 11:30 a.m. five days per week. Prior to separating, the parties agreed that this was the program that their daughter would be enrolled in. On June 24, 2015, the text messages confirm that the applicant consented to registering the child in the program.

[20] However, after meeting the Society, the applicant decided to move and now wishes to have the child registered at a daycare in Russell which is open during the week from 6:30 a.m. to 5:30 p.m. She proposes that she can drop the child off in the morning on the days that she has the child and pick the child up at the end of the day. She indicates that she may receive a subsidy and if not the cost is $150 per month. Further, she indicates that the respondent can pick up the child at the daycare and return the child at the daycare and this will provide the child with consistency.

[21] The respondent’s position is that he wishes that the child attend the program at the French PP 3 effective September 2015. The program is free of charge. The respondent’s plan is that when the child is with him he will care for her and take her to the morning program. When the child is with the applicant and she is working he is prepared to meet the applicant halfway on her way to work, take the child home, deliver the child to the program, retrieve the child at 11:30 a.m. and then meet the applicant at the end of her workday on her days of custody at a midpoint drop off location. He had proposed an area of Carlsbad Springs which he indicated was approximately halfway between Orleans and Russell, Ontario.

[22] As stated by Zuber J.A. in Sypher v. Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413, (Ont. C.A.):

… the purpose on an interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

[23] In my view, the proposal by the respondent to meet the applicant halfway between their homes is a “reasonably acceptable solution to a difficult problem until trial.”

Decision

[24] Based on the above, I make the following temporary order:

(a) the parties shall have joint custody of the child, Kaia, born March 29, 2012 in all major decisions regarding the child;

(b) commencing July 27, 2015, the child shall be in the care of the applicant on Mondays and Tuesdays, the respondent Wednesday and Thursday, the applicant Friday to Sunday with the schedule alternating in the following week and alternating every week thereafter, except for the period set out in paragraph (d) herein. The parties to agree on the time of exchanges failing which the parties may make further submissions to the court;

(c) on the days that the child is in the applicant’s physical custody during the week, the parties shall meet at the Greyhawk golf course parking lot on Boundary Road in Carlsbad Springs to exchange the child both before and after the applicant’s day of work or as the parties may agree;

(d) the respondent shall be permitted to travel with the child to Newfoundland on August 13, 2015 by flying and will drive back to Ottawa with the child returning on August 22, 2015. The applicant shall cooperate by providing the respondent with the child’s passport and a health card for the trip;

(e) commencing September 2015, the child shall attend the French PP3 program at Reine-des-Bois School in Orleans;

(f) the respondent is permitted to serve and file his Answer, Form 35.1 affidavit, financial statement, 2014 income tax return, and his 2012, 2013 and 2014 notices of assessment without his 2012 and 2013 personal income tax returns; and

(g) the parties are granted permission to schedule an expedited case conference.

[25] If the parties are unable to resolve the issue of costs, written submissions may be made by the respondent by August 11, 2015 with a right of reply by the applicant by August 25, 2015. Submissions are not to exceed three pages plus any offers to settle and a cost outline attached.

[26] Order accordingly.

Shelston J.

Released: July 29, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kara-Lee MacPhee, Applicant

AND

David Thistle, Respondent

BEFORE: Shelston J.

COUNSEL: Catherine Calvert, counsel for the Applicant

Michèle Blais, counsel for the Respondent

ENDORSEMENT

Shelston J.

Released: July 29, 2015