McCluskey v. Stewart, 2015 ONSC 5257

BARRIE COURT FILE NO.: FC-15-947-00

DATE: 20150820

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Mathew McCluskey, Applicant

and

Jennifer Cori Stewart, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Brooke M. Camlis, as agent for the Applicant

Robert Labossiere, for the Respondent

HEARD: August 17, 2015

ENDORSEMENT

[1] This is an urgent motion and counter motion brought by the parties to determine custody and access of their one year old son pending a case conference and motion relating to the collapse of their relationship and the respondent mother’s departure, with their son, from the matrimonial home.

[2] For the reasons set out below, I find that this matter should proceed as an urgent motion. It is in the best interest of the child that he be in the care and control of his mother pending final resolution of this dispute, and that it is in the best interest of the child that the respondent be permitted to relocate to her father’s home in Sioux Lookout.

Background

[3] This motion began on July 21, 2015, when the applicant commenced an application for sole custody of his one year old son with supervised access for the respondent. He also brought an urgent motion without notice under rule 14(12) of the Family Law Rules[1], seeking interim custody until final custody could be determined. He alleged that the respondent was breastfeeding his son while drinking excessive alcohol and smoking marijuana on a daily basis. He alleged that the respondent was placing the child in dangerous situations without proper supervision. He had made numerous calls to the OPP and the Children’s Aid Society (CAS), but no one had responded. He demanded that the respondent take their son to the hospital to be tested to determine whether any alcohol or drugs were being transferred from her breast milk to his son.

[4] His affidavit on this urgent motion includes the following paragraphs which set out his allegations in relation to the incident at the hospital:

(a) Cori [the respondent] stopped at her mother’s house on the way to the hospital to call a lawyer despite agreeing to go directly to the hospital.

(b) Upon arriving at the hospital Cori informed the hospital staff we had a disagreement.

(c) Hospital staff forced me to leave the hospital ensuring I was not able to tell anyone my wife was full of drugs and alcohol but took steps to make her more comfortable to breastfeed forcing more toxins into my son.

(d) No one will stop my son from being abused by hourly having alcohol and drug laced milk fed to him.

[5] This urgent motion without notice was dismissed because there was no corroborating evidence to support the applicant’s allegations (eg: letters from doctors, the police or CAS) and the allegations did not support a claim of immediate harm or danger to the child.

[6] On July 23, 2015, the applicant refiled the motion, this time with notice to the respondent. The evidence before the court, however, is that as a result of a technical issue with the original photocopying, the electronic notice was not legible to the respondent. In addition to interim care and control of the child, he sought an order prohibiting the respondent from removing the child from Simcoe County.

[7] On July 24, the court granted an order prohibiting either party from removing the child from Simcoe County without the consent of the other parent or further court order. By the time this order was issued, the respondent had already driven to Sioux Lookout where her father and stepmother live. The evidence clearly shows that the respondent did not know of this court order when she left Wasaga Beach. On July 27, the court ordered that the respondent return to Simcoe County with the child and appear in court on August 5, 2015 to address the applicant’s motion.

[8] On August 5, 2015, the respondent appeared through counsel and requested an adjournment until August 17, 2015, as well as temporary care and control of her son pending the return of the motion. She filed affidavit material explaining why she left the applicant and Simcoe County, setting out a very different story about the events in July. Based on the evidence filed in that proceeding, I granted the adjournment and concluded that the best interest of the child in the short-term was to stay with the respondent in Sioux Lookout. I granted temporary care and control to the respondent on a without prejudice basis. Facilitated access was granted to the applicant when the respondent returned to Barrie for the hearing during the week of August 16, 2015.

[9] The respondent’s affidavit states that she does drink one or two beers a day because she was told that this would increase her lactation. She states that her son is still being breast-fed every two hours and that breast milk is still his main source of nutrition.

[10] With regard to the events in June, she alleges that the applicant has violent episodes. She called the police on July 18, 19 and 20, 2015. On July 20, the police suggested that she not return to the house. She took her son to the emergency department at the Collingwood Hospital where he was examined by Dr. Rampershad who found the son to be in good health, with no signs of intoxication. At the hospital, the applicant was detained by security and the respondent was escorted out of the hospital by the OPP. After leaving the hospital, the respondent stayed for the night at her mother’s home in Wasaga Beach at the recommendation of the OPP.

[11] In her material, the respondent deposes that on July 21, 2015, she was visited by a worker from the CAS who was satisfied that her son was safe in her care and no further action was required. She states that she was terrified to return to the applicant’s home in Wasaga Beach and to the continuing escalating anger, unpredictable behaviour and abuse by the applicant. Dr. Rampershad informed her that adult conflict could have a negative impact on even very young children. Finally, she went to her father’s home in Sioux Lookout because she feels safe there, she is familiar with the community and has family support. She does not want to stay with her mother in Wasaga Beach because she fears that the applicant will be abusive to her mother if she and the son stay there.

[12] There is evidence to corroborate the respondent’s versions of events. She has provided a letter from her son’s doctor, dated August 4, 2015, that states that her son “is a healthy 1 year old male who has been in my care since September 2014. I have assessed [him] on 3 occasions since that time and I have no concerns about his health and there have been no signs of abuse or neglect during my examinations.”

[13] She also provided the emergency room report of Dr. Rampersad who conducted the examination on July 20, 2015, at the request of the police. This report states, “On examination in the Emergency Room today, the patient looks well. He is alert, active, eyes open, pink, giggling and laughing with mom and with me.” While the patient did not produce a urine sample for testing, Dr. Rampersad states, “Given his normal appearance in the Emergency Department, the decision was made not to hold mom in the Emergency Department to obtain a urine sample and that she should see Dr. Stewart to have a urine sample sent off for urinalysis and urine drug screen”.

[14] Dr. Rampersad also states, “I was informed that the father was in the waiting room and was quite disruptive to staff, and security had to be called. OPP was actually called to escort mom and the patient to his maternal grandmother’s house.”

[15] The respondent has also provided the CAS “Contact Logs”. These logs confirm that the CAS has no concerns with regard to the respondent, but do raise concerns about the behaviour of the applicant. The concerns raised relate to verbal abuse and intimidation of CAS workers and are consistent with the behaviour described by the respondent and Dr. Rampersad.

Analysis

[16] This motion raises two issues. Firstly, should it be heard as an urgent motion under rule 14(4.2)? Secondly, if so, which parent should be given temporary care and control of the son until the case conference can be heard on October 27, 2015?

[17] The first issue is whether this motion meets the test for urgency set out in rule 14(4.2), which provides that motions may not be brought before a case conference unless “the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.” For the reasons set out below I conclude that this case does meet the test under rule 14(4.2).

[18] The cases have defined “urgency” in this context to refer to circumstances such as abduction, threats of harm and dire financial circumstances, and have held that dispensing with a case conference is an exception to the procedural requirements that should be made infrequently[2]. The parties should have an opportunity to engage in settlement discussions to try to obtain a resolution of the pressing matters to see if a short-term agreement can be reached before the case conference date[3].

[19] This motion is a bit unusual. When the matter first appeared before me on August 5, 2015, both parties agreed that the matter was urgent. The applicant wanted to proceed immediately, the respondent wanted to adjourn until August 17, 2015. I granted the adjournment. When the motion was heard on August 17, 2015, the applicant took the position that now that the respondent was back in Simcoe County the motion was no longer urgent and should wait until after the case conference on October 27, 2015.

[20] In my view, the purposes of rule 14(4.2) have already been met in this case because the aborted August 5 motion date provided the parties with what was, in effect, a case conference. Counsel for both parties were present in court and, in arguing whether the motion should be adjourned, had an opportunity to canvas the care and control and access issues, as well as review the evidence that was then available. The parties’ counsel also had an opportunity to meet and try to reach a short-term resolution of those issues. In that respect, the concerns raised by the court in Rosen[4], have been satisfied. The order of August 5, 2015 was understood to be a temporary resolution until the issues could be more fully argued on August 17.

[21] Second, I am satisfied that the facts of this case still qualify as a matter of urgency for the respondent. Her evidence is that she has fled an abusive relationship, which was marked by escalating anger, unpredictable behaviour, harassment and episodes of violence. She continues to have these concerns as long as she remains in Wasaga Beach. There is sufficient corroborating evidence to satisfy me that there are real threats of harm to the respondent if she remains in Wasaga Beach, and that this case should proceed under rule 14(4.2).

[22] In making a determination with regard to interim care and control of the child, I am bound by section 24 of the Children’s Law Reform Act[5], which requires that the decision be based on the best interests of the child. In the present case, there are two issues that I have to resolve on an interim basis. Which parent should have care and control of their son, and, if that parent is the respondent, should she be permitted to move to Sioux Lookout until at least October 27, and if so, what arrangements can be made to provide the applicant with access?

[23] In the present case, I find that it is in the best interest of the child that he be in the care and control of his mother pending final resolution of this dispute. I base this conclusion on several considerations.

(a) The child is still breast feeding several times per day;

(b) The respondent has been his primary care giver since birth;

(c) The medical evidence that neither doctor who recently examined the child had any concerns regarding his health while in the care of the respondent; and,

(d) The evidence regarding the applicant’s anger management issues and his apparently exaggerated concerns regarding the son’s health while in the care of the respondent.

[24] On the other hand, the evidence shows that the applicant has love, affection and emotional ties with his son. I have also considered that minor children with attachment to both parents need sufficient contact with both parents, without prolonged separations, to maintain meaningful and close relationships with them[6]. The evidence of the respondent relates primarily to the threats to her own security and safety rather than that of their son.

[25] Nonetheless, I am satisfied on the evidence provided that it is in the best interest of the child that the respondent be permitted to relocate to her father’s home in Sioux Lookout in order to fully extricate herself from the situation in Wasaga Beach and secure her own and her son’s health, safety and security. This conclusion is based on the premise that some access can be arranged for the applicant in Simcoe County while the respondent resides in Sioux Lookout.

[26] In making this decision, I have reviewed the principles relating to determinations of temporary mobility set out by the Supreme Court of Canada in Gordon v. Goertz[7], and the helpful summary and discussions of those principles prepared by Justice Sherr in more recent cases such as Costa v. Funes[8] and Boudreault v. Charles[9]. I have also considered the very recent decision of Justice G.A. Campbell in Kapoor v. Kapoor[10].

[27] While I have considered all of the relevant considerations set out in those decisions, the principles most relevant to the present case relate to the need for the respondent to re-establish a secure residence for herself and her son. For example, in Boudreault[11], Justice Sherr states at paragraph 26(j):

Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. (citations omitted)

[28] In the same case, at paragraph 26(k), Justice Sherr states:

There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

[29] The respondent has testified that she plans to relocate to Sioux Lookout because that is where she lived before she met the applicant, and she has family there, as well as an established social and professional life. Through family and friends she will have emotional and financial support as well as help with childcare. Her father and stepmother live in Sioux Lookout and they have offered to take care of her son so she can find work and develop some independence. She is also familiar with a network of doctors and health care professionals, including her own social worker with whom she has recently re-established a therapeutic relationship to help work through the issues of domestic violence and abuse.

[30] While the respondent’s own mother recently moved to Wasaga Beach to help her care for her son, her mother does not have any ties to that community, and is in ill health. Her mother is not familiar with Wasaga Beach, has no friends or family there, and will likely return to Hamilton where she lived all her life.

[31] The respondent has provided a letter from her therapeutic counsellor in Sioux Lookout, dated August 10, 2015, who has met with her for three sessions, and presents the following summary of her clinical view:

Presenting issues are the following, verbal and emotional abuse and intimidation from her husband resulting in emotional trauma to this client. Ms. Stewart is a mature, stable, conscientious young mother who recently fled her home with her one year old baby due to a traumatic struggle with her now estranged husband. She took the child since she feared for his safety due to serious disagreement s between herself and her husband. The abuse and intimidation has been ongoing throughout the marriage. …She wishes to remain in this area to continue with me due to our established therapeutic relationship. She believes the stress of the marital separation, custody and access matters require the development of new skills and support.

[32] Given the circumstances surrounding the termination of the relationship between the applicant and the respondent, I am satisfied that forcing the respondent to remain in Wasaga Beach would result in isolation, financial hardship and additional emotional trauma, if not further abuse and harassment. I am also satisfied that this will adversely affect the child. Accordingly, I conclude that the respondent should be permitted to move with her son to Sioux Lookout on a temporary basis.

[33] In making this finding, I understand that I have to be particularly cautious because this temporary order is made on the basis of affidavit evidence without the benefit of a full trial, and that such temporary orders create a new status quo that can influence the final order. When the adjournment was granted on August 5, 2015, I emphasized to both parties that I would be more interested in the evidence of objective, professional third parties than the competing allegations of the applicant and the respondent. The supporting evidence provided by the respondent – particularly the medical evidence and the evidence of the CAS records – provides compelling evidence to corroborate and support the respondent’s position. I have also considered the evidence of the respondent’s therapeutic counsellor, although I have given it less weight since it is based exclusively on the respondent’s reports to the counsellor. Nonetheless, given the independent corroboration of the respondent’s evidence of the events of July 18 -21, 2015, I do accept the counsellor’s opinion of emotional trauma to the respondent.

[34] In contrast, the applicant has provided no objective, professional third parties to support his allegations against the respondent.

[35] The respondent has indicated that she is prepared to drive from Sioux Lookout to Wasaga Beach in September and October, 2015, at her own expense, to enable the applicant to have some access to his son. This is no small commitment since it is an eighteen-hour drive. I understand that, based on my August 5, 2015 order, the applicant did have access to his son the week of August 16. While the respondent has recently expressed concerns regarding her son’s safety, it appears that the applicant has historically been a good father and that his anger and abuse appear to be directed at the respondent. The access provided during the week of August 16 was facilitated rather than supervised access. My primary concern was that the applicant and the respondent not be in direct contact with each other to make the transfer. I understand that the respondent’s father was responsible for making the transfer to the applicant. Assuming that this worked without difficulty, there is no reason why it cannot continue.

Conclusion

[36] Based on the foregoing I make the following temporary order:

(a) Temporary interim care and control of the child, James “Liam” McCluskey-Stewart , dob July 21, 2014, is granted to his mother, Jennifer “Cori” Stewart, until further order of the court;

(b) There shall be a temporary order that the mother be permitted to relocate with the child to Sioux Lookout as of the date of this order. She may remain in Sioux Lookout until further order of the court unless she chooses to relocate to Simcoe County;

(c) Access is granted to the child’s father, Mathew McCluskey, to occur over a period of three to four days, in three hour blocks, during the weeks of:

(i) August 17, 2015

(ii) September 21, 2015

(iii) October 26, 2015

(d) Additional access dates will be discussed at the case conference of October 27, 2015 and may be ordered by the court;

(e) Access will be facilitated by the respondent’s father, James “Mel” Stewart, who will be responsible for the transfer and pick up;

(f) Access should be stopped if any of the following happens:

(i) The applicant is not ensuring the child’s safety;

(ii) The applicant is talking about adult issues in front of the child;

(iii) The applicant’s behaviour is inappropriate; and,

(iv) The applicant does not return the child to James “Mel” Stewart on time.

(g) Simcoe Child, Youth and Family Services are ordered to produce all CAS records and files involving the applicant and the respondent, to the parties and the court; and,

(h) The case conference is scheduled for October 27, 2015.

Charney J.

Released: August 20, 2015

[1] O Reg 114/99.

[2] Gonzales v. Trobarovic [2014] O.J. No. 4384, para. 24.

[3] Rosen v. Rosen 2005 480 (ON SC), [2005] O.J. No. 62 (Ont. S.C.J.).

[4] Ibid.

[5] RSO 1990, c C.12.

[6] Gonzalez, supra, paras. 77, 79.

[7] 1996 191 (SCC), [1996] 2 S.C.R. 27, paras. 49 and 50.

[8] 2012 ONCJ 466, paras. 20 – 21.

[9] 2014 ONCJ 273, paras. 25- 33.

[10] 2015 ONSC 4000, paras. 19 – 20.

[11] Ibid.