Court File and Parties
COURT FILE NO.: FS-13-1361-00 DATE: 2015-08-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MERIMA CEHO Applicant
- and -
MILAN CEHO and ZORICA CEHO Respondents
COUNSEL: Marianne Guirguis, for the Applicant Shannon Anderson, for the Respondent
HEARD: March 11, 2015, at Brampton, Ontario
BEFORE: Price J.
Reasons For Order
NATURE OF MOTION
1The applicant mother, Merima Ceho, has substantially recovered from a drug addiction and post-traumatic stress disorder that impaired her ability to care for the parties’ children three years ago. The Children’s Aid Society, which arranged at that time for the children to be in the care of the respondent father, Milan Ceho, who was also addicted to drugs, under the supervision of his parents, while Ms. Ceho recovered, now recommends that the children, who are 8 and 7 years of age, be returned to their mother. The Office of the Children’s Lawyer, which recommended the temporary placement of the children with Mr. Ceho and his parents three years ago, also recommends that the children be returned to their mother, because Mr. Ceho is still addicted to drugs and his parents are disrespectful of Ms. Ceho and are unable to co-parent effectively with her. The court must determine whether Ms. Ceho must prove, before the children are returned to her, that a material change of circumstances has occurred since the court made an order in 2012, on consent, on a temporary and without prejudice basis, endorsing the placement of the children with the father and his parents, and, if so, whether such a change has occurred. It must also determine, in any event, whether the return of the children to the mother is in their best interests.
BACKGROUND FACTS
The parties’ marriage and separation
2Mr. and Ms. Ceho were married in Mississauga, Ontario, on May 24, 2003. There are two children of the marriage, namely:
a) Aleksandar Milan Ceho, born August 19, 2003; and
b) Juliana Srdjana Ceho, born September 20, 2004.
3Mr. and Ms. Ceho separated on April 15, 2012. Until then, Ms. Ceho was the children’s primary caregiver. In April 2012, her addiction to drugs impaired her ability to care for the children. The parties initially agreed that Mr. Ceho would be the children’s primary caregiver while Ms. Ceho underwent treatment. Mr. Ceho, who was also addicted to drugs, then moved in with his parents.
4The Peel Children’s Aid Society intervened in the Ceho family and entered into a voluntary service agreement with Mr. Ceho and his parents, whereby the children would reside primarily with them. Ms. Ceho was not aware of this arrangement, and was not asked for her input or consent.
5Ms. Ceho began the present proceeding by application issued on March 27, 2013, in which she claimed sole custody of the children and access to them, and a restraining order against Mr. Ceho. Mr. Ceho delivered his Answer on May 7, 2013, in which he also claimed sole custody of the children.
6The parties attended an early case conference before Justice Coats on June 24, 2013. No endorsement appears for this appearance in the court file, and on August 28, 2013, the matter returned to court for a further case conference before Justice Mossip. On that date, Justice Mossip endorsed, “Temporary order to go in accordance with … consent filed.” Although the temporary consent order was not signed and entered until December 10, 2013, Justice Mossip signed a separate Order on August 28, 2013, in the form required by the Office of the Children’s Lawyer, requesting that Office’s involvement. Justice Mossip handwrote, in a paragraph provided for “Judge’s comments”, the following:
The children are 8 and 10 years old. They have already had a lot of stress in their lives both before and after the separation. The parties each accuse the other of substance abuse. The court would appreciate the involvement of the OCL in whatever way would be most helpful to the children.
7The temporary consent order of Justice Mossip dated August 28, signed on December 10, 2013, requested the Children’s Lawyer “to represent the children pursuant to s. 89 of the Courts of Justice Act or to report to the court on the needs of the children pursuant to s. 112 of the Courts of Justice Act.” The Order further provided, in part, as follows:
On a temporary and without prejudice basis, the respondent shall have primary residence of the children.
The applicant shall have interim and without prejudice access to the children as follows: [with a schedule set out, ending with the following]
iv. The access schedule shall then continue as outlined in (i), (ii) and (iii) above until parties alter the schedule by way of a written agreement or court order. [Emphasis added]
8The Office of the Children’s Lawyer accepted Justice Coats’ request for its involvement, and on August 28, 2013, the same day that Justice Mossip made her order and further request, the Office of the Children’s Lawyer (“OCL”) assigned its Clinical Investigator, Eileen Spraggett, M.S.W., R.S.W., to conduct an investigation of the children’s needs. Ms. Spraggett completed her investigation and held a disclosure meeting with Mr. and Ms. Ceho on February 20, 2014. She later issued a report dated April 16, 2014 (“the April 2014 report”).
9In her report, Ms. Spraggett stated that when the parties separated, Ms. Ceho was attending Homewood Heath Centre for treatment in their Post Traumatic and Recovery Unit. Ms. Ceho was born and raised in Sarajevo, Bosnia. She was six when the war in Bosnia began. When she was ten years old, she was on a bus with her mother and was taken off the bus against her will by the army, who detained her for about ten months, during which she sustained repeated physical and mental trauma. In 1995, she was rescued by the United Nations and reunited with her mother. Together, they immigrated to Canada. She had a difficult and strained relationship with her mother who, although herself a refugee in Bosnia for over a year, never wanted to talk about her experiences. Ms. Ceho felt unable to express her own traumatic experiences to her mother, who didn’t want to hear about them.
10Ms. Spraggett reported that Ms. Ceho began having problems with addictions in 2009, when she started taking pain medication such as Percocet and OxyContin, and by 2010, she was taking cocaine on a daily basis. She attempted suicide as a teenager and again as an adult, in 2011, following a trip back to Bosnia to visit her grandmother, where she experienced post-traumatic stress. In 2011, she entered rehabilitation at Pickerel Lake Recovery Centre, who referred her to Homewood Health Centre, where she was a patient in their Post-Traumatic Stress and Recovery Unit beginning in May 2012, and where she was an outpatient beginning in April 2014.
11Upon the parties’ separation, the Peel Children’s Aid Society became involved with the Ceho family due to concerns about Mr. Ceho’s alleged drug use and his capacity to provide care to the children. The Society entered into a voluntary service agreement with Mr. Ceho and his parents which granted Mr. Ceho’s parents the authority to act as the primary caregivers of the children while Mr. Ceho was residing with them. Since that time, Ms. Ceho has co-parented with Mr. Ceho’s mother.
12Mr. Ceho informed Ms. Spraggett that he had never had a co-parenting relationship with Ms. Ceho, and that their communication stopped altogether in January 2013. He stated that he had “erased” her from his mind and had not communicated with her in over a year. He explained that he had moved into his parent’s home when the parties separated, and that his mother had co-parented with Ms. Ceho since that time. He stated that the two women often “fought” about the children, their schedule, and over Ms. Ceho being late at exchanges. He continued to be angry at Ms. Ceho over her infidelity and drug use, and preferred the arrangement with his mother and Ms. Ceho co-parenting.
13In the April 2014 report, Ms. Spraggett noted that Aleksandar and Juliana had a strong relationship with both parents as well as with their paternal grandparents. The children were doing well in school. Both children were articulate and said that they would like to spend more time with their mother. Ms. Ceho continued to be an outpatient at Homewood and according to her psychiatrist, Dr. Anita Johnson, had made progress to the point where she was being taken off her medications. Dr. Johnson advised that while Ms. Ceho continued to suffer from post-traumatic stress symptoms and dissociated at times, she was learning to self-regulate when she experienced such episodes.
14Mr. Ceho tested positive for cocaine and oxycodone use when the Peel CAS ordered him to take a drug test. Ms. Ceho’s test results were negative. Ms. Spraggett was concerned that Mr. Ceho had initially reported that his drug test results were negative and only acknowledged at the disclosure meeting that he had tested positive.
15The Peel CAS worker, Sheila Amadume, continued to have child protection concerns about Mr. Ceho, as he was not following through with treatment to address his substance abuse problems. She also expressed concern that while Ms. Ceho seemed to be making progress, there was still a concern that she dissociated and that those episodes could have a negative impact on the children.
16Ms. Spraggett noted that Mr. and Ms. Ceho had not been successful co-parents, and that Mr. Ceho had indicated that he was not interested in co-parenting with Ms. Ceho. She concluded that neither party was ready to assume custody of their children, and that they needed more time to address their clinical issues and to learn skills in co-parenting. She recommended that primary residence remain with Mr. Ceho, with supervision by his parents as arranged by Peel CAS, and that the parties’ progress be reviewed in one year.
17Ms. Spraggett later explained, in an up-date of her report, that she anticipated that by April 2015, Ms. Ceho’s recovery would have been achieved and stabilized. She stated, “It was disclosed that the OCL was looking at returning Aleksandar and Juliana to the care of Merima Ceho; however, a further period of stability in her recovery was recommended. The children were doing well in the care of Milan Ceho and their grandparents, and a disruption to this arrangement was not seen to be in their best interests at the time.”
18Neither party accepted the OCL recommendations. On June 4, 2014, a case conference was held before Justice Van Melle, who noted that a motion was scheduled for June 20 to determine the primary residence of the children. On June 23, 2014, Ms. Ceho made a formal motion, for hearing August 13, 2014, for an interim order granting her sole custody of the children or, in the alternative, for joint custody, and for the primary residence of the children with her.
19On August 13, Justice Trimble adjourned Ms. Ceho’s motion to March 11, 2015, over Ms. Ceho’s objections, because Ms. Ceho had not proven that she had served her motion on Mr. Ceho’s mother, who had recently been added as a party to the proceedings. Justice Trimble additionally requested that the OCL provide an up-dated report.
20A settlement conference began before Justice Bielby on December 12, 2014, and was completed by him on March 3, 2015. By the latter date, Mr. Ceho’s mother had begun her own application, and Justice Bielby ordered that it be joined with Ms. Ceho’s application so that the two could be heard together.
21In the interval between August 13, 2014, when Justice Trimble adjourned Ms. Ceho’s motion, to March 11, 2015, when the two motions were heard, Ms. Spraggett issued an up-date of her report on December 23, 2014 (“The December 2014 report”). In that report, Ms. Spraggett noted that since the OCL disclosure meeting in February 2014, Ms. Ceho had given birth to a daughter, Althea, born on July 28, 2014. Ms. Ceho’s long term partner, Jason Goetz, was the father and was providing support to her. While their relationship was serious, they continued to have their own residences. Ms. Ceho was looking for a three bedroom townhouse in Guelph to give the children more space and privacy.
22Ms. Spraggett noted that Ms. Ceho had not been on any medication since December 31, 2013. She continued to have significant contact with her psychiatrist, Dr. Johnson, who reported that she was stable and ready to assume full-time care of Aleksandar and Juliana. Dr. Johnson described Ms. Ceho as an exceptionally bright person and an excellent parent, who is emotionally attuned to her children’s needs.
23Ms. Spraggett consulted the family’s Peel CAS worker, Sheila Amadume, who advised that she did not have any child protection concerns with Ms. Ceho. However, Ms. Amadume’s file remained open for Mr. Ceho and his parents, and the voluntary service agreement remained in effect. While Mr. Ceho had tested negative in two recent urine samples since the disclosure meeting on December 3, 2014, he still had not taken personal responsibility for his treatment, and there was concern that he continued to deny and minimize his substance abuse.
24Ms. Spraggett noted that there had not been any progress made in the communication or co-parenting relationship between Mr. and Ms. Ceho. While Mr. Ceho stated that he had made an effort to co-parent for a brief period, it was not successful and “he just didn’t want to co-parent with Merima Ceho and he was happy to defer that responsibility to his mother, Zorica Ceho. He has maintained that he ‘doesn’t want to have anything to do with her.’”
25With regard to Mr. Ceho’s mother, Ms. Spraggett noted:
Zorica Ceho has provided a nurturing environment to the children since the separation; however, she continues to perceive Merima Ceho in a negative light and has not acknowledged the progress in her recovery over the last two-and-a half years. In the face of evidence from Dr. Anita Johnson to show the progress that Merima has made, Zorica continues to say that Merima is ill-equipped to parent Aleksandar and Juliana on a full time basis and that she is still an addict. [Emphasis added]
26Ms. Spraggett noted that while Ms. Ceho resides in Guelph, she has maintained a strong relationship with Aleksandar and Juliana. She calls them daily, attends parent-teacher interviews, maintains ongoing correspondence with their teachers, chaperones school field trips for both children, takes them to appointments, including to their doctor and psychologist, and provides significant support and guidance to Juliana with her homework and academic issues.
27Ms. Spraggett concluded:
This is not a case that allows for joint custody. While the children have resided with Milan Ceho and his parents, they have not consistently involved Merima Ceho in decision making for the children, and they have often been critical and hostile in their communication and interactions with her. Milan Ceho has openly stated that he will not co-parent with Merima Ceho. While he is a support to the children, there continues to be concern that he has yet to take personal responsibility for his treatment and recovery of his addiction. The Peel CAS has remained involved for this reason. While Zorica Ceho has provided warmth and caring to the children over the last few years, she has not demonstrated a successful co-parenting relationship with their mother. The children have a strong relationship with all of their caregivers; however, they regard their mother as their primary caregiver.
It is this writer’s recommendation that Merima Ceho should have sole custody and primary residence of the children. It is hoped that the fractured relationships that exist between Milan Ceho and Merima Ceho as well as between Zorica Ceho and Merima Ceho can be repaired. This can be achieved by taking proper steps that lead to positive change in their interactions and dynamic. [Emphasis added]
28Mr. Ceho filed a formal dispute to the December 2014 report on January 30, 2015, with a critique by Gregory Koval, M.S.W., based on his review of the report.
29The parties attended before me on March 11, 2015, for the hearing of a long motion, at the conclusion of which I reserved judgment.
ISSUES
30The court must determine the following issues:
a) Is Mr. Koval’s critique of the Clinical Investigator’s Report admissible as evidence in the present motions?
b) Does the court have jurisdiction to vary an interim custody order and, if so, is Ms. Ceho required to prove that there has been a material change of circumstances since the earlier order was made?
c) What order as to custody and access is in the children’s best interests?
d) Do the rights of Mr. Ceho’s mother to custody supersede those of the children’s mother in the circumstances of the present case?
e) Do the best interests of the children necessitate a change in the status quo?
PARTIES’ POSITIONS
31Ms. Ceho submits that the court may vary an interim custody order where there has been a material change of circumstances affecting the children’s best interests. She argues that there have been material changes in circumstances in the present case that warrant a change in the temporary custody order, namely:
a) Ms. Ceho has undergone three years of intensive treatment, counselling and therapy, and is in stable recovery from her drug and mental health problems.
b) The Children’s Lawyer now recommends that Ms. Ceho be granted sole custody and that the children reside primarily with her in Guelph.
32Ms. Ceho submits that it is in the children’s best interests that she have sole custody of them. She has been actively involved in addressing their academic and extra-curricular needs, and both children have expressed a desire to live with her. Additionally, she worked diligently towards achieving sobriety and improved mental health, and Mr. Ceho made no substantial efforts to address his substance abuse. Mr. Ceho continues to reside with his parents and has no intention to leave, and is entirely dependent on them to attend to the children’s physical, emotional, and financial needs.
33Ms. Ceho submits that it is contrary to the children’s best interests that they continue residing with their paternal grandparents. The relationship of Mr. Ceho and his parents with Ms. Ceho is hostile, she says, making co-parenting with them difficult. Additionally, Ms. Ceho believes that Mr. Ceho’s parents are creating a divide between her and her children. She fears that another year of the children residing with them will alienate the children from her.
34In the event that the children are returned to Ms. Ceho, she and Mr. Goetz intend to relocate from Ms. Ceho’s two-bedroom apartment in Guelph to a three-bedroom townhome in Guelph in order to better accommodate the children’s needs.
35A trial will not be held until January or May 2016, with the result that the final determination of the issues of custody and primary residence will not be made until after the beginning of a new school year in September 2016. If the interim order is not varied now, the children are likely to remain with Mr. Ceho and his parents for an additional year, as Ms. Ceho would not want to disrupt their schooling.
36Mr. Ceho submits that the custody issue should be determined at trial where there will be a full opportunity to cross-examine all parties and the experts. He argues that there are no exceptional circumstances that warrant a change in the status quo that has existed for the past three years. In April 2014, the Children’s Lawyer recommended maintaining the current arrangement for another year. Mr. Ceho argues that the children are thriving in his and his parents’ care, are actively involved in their school and extra-curricular activities, and express a desire to remain at their current school.
37Mr. Ceho argues that it is not in the children’s best interests to be in their mother’s custody. Before the parties’ separation, he says, she was incapable of caring for them on her own, and the children were neglected, unfed, and truant from school. Since the parties’ separation, Ms. Ceho has been absent from the children’s lives for extended periods of time, Mr. Ceho says, while she was in and out of rehabilitation.
38Mr. Ceho highlights the findings in the April 2014 report of the OCL that Ms. Ceho continues to “dissociate” as a result of her Post-Traumatic Stress Disorder, which is triggered by stress. Given that Ms. Ceho just gave birth a year ago, he doubts that she will be able to care for the children full-time while also caring for a newborn and dealing with her PTSD.
39Mr. Ceho disputes the findings of Ms. Spraggett in her 2014 report. He argues that there are factual errors in the report, which represents only Ms. Ceho’s version of events. He submits that this reflects bias on the part of Ms. Spraggett. Mr. Ceho submits that he has complied with the Children’s Lawyer’s recommendations regarding the children’s need to attend counselling, taking the children to as many counselling sessions as his employment benefits would cover. He does not agree that he had a substance abuse problem in the past, and says that he does not understand the insistence that he deal with the alleged problem. He says that he has not used any illicit drugs since at least May 2013 and is prepared to undergo random urine drug tests.
ANALYSIS AND EVIDENCE
a) Is Mr. Koval’s critique of the December 2014 OCL Report admissible?
40The admissibility of evidence for use in motions is governed by Rule 39.01 of the Rules of Civil Procedure. Rule 39.01 applies to family law proceedings by operation of Rule 1(7) of the Family Law Rules. Rule 39.01 states, in part:
39.01(5) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.1 [Emphasis added]
41Reports of the Office of the Children’s Lawyer occupy a unique place in family law proceedings. section 112 of the Courts of Justice Act provides:
- (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education.
(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.
(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness. [Emphasis added]
42Provided the Children’s Lawyer’s report conforms to the formal requirements of affidavit evidence as set out in Rule 39.01(1) of the Rules of Civil Procedure, it enjoys a special status, in that it is automatically admissible and forms part of the evidence. There is nothing in Rule 39.01 that precludes reliance on the report at a motion, but some courts have held that OCL reports should only be received at trial, where there the clinical investigator can readily be cross-examined, and where the report can be considered in the context of the full evidentiary record in the case.
43Justice Pazaratz, in Marcy v. Belmore, in 2012, reviewed the jurisprudence respecting the admissibility and weight that a court at a motion for temporary custody and/or access should give to reports of clinical assessments prepared for consideration at trial.2 Justice Chappel, in Batsinda v. Batsinda, in 2013, gave a useful summary of the principles that emerge from the jurisprudence, which Justice Pazaratz had reviewed in Marcy v. Belmore, as follows:
As a general rule, courts would be very cautious about relying on conclusions and recommendations set out in untested assessment reports at a motion pending trial, and about implementing even some of the Assessor’s recommendations at the temporary motion stage. The rationale for this approach is that there is no opportunity at the motion stage to undertake a thorough analysis and evaluation of all aspects of the assessor’s report, including the assessor’s credentials, methods, observations, findings, theories, and recommendations (see Mayer v. Mayer, 2002 ONSC 2753, [2002] O.J. No. 5303 (S.C.J.); Kirkham v. Kirkham, 2008 CarswellOnt 3644 (S.C.J.).
It is only in exceptional circumstances that an assessor’s recommendations should be implemented immediately before the parties both have an opportunity to fully test the assessor’s evidence and recommendations (Verma v. Chander, 2009 ONCJ 136, 2009 CarswellOnt 1859 (O.C.J.); Winn v. Winn, 2008 ONSC 63195, 2008 CarswellOnt 7116, (S.C.J.). In general, motions for interim implementation of assessment report recommendations should be discouraged. As Pazaratz, J. stated in Marcy v. Belmore at paragragh 27, “parties should not perceive the arrival of an assessment report as creating an automatic strategic opportunity to secure a more favourable status quo, heading into trial.”
The court should not presume at the motion stage than an assessor’s recommendations would or should inevitably prevail at trial.
The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties, and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (S.C.J.).3
44Some courts have held that a critique of an OCL clinical assessment should not be received at a motion for temporary custody, and others have held that they should not even be received at trial, except in limited circumstances. In Mayfield v. Mayfield, in 2001, Wein J. ruled inadmissible a report critiquing the OCL report at a motion for interim custody/access. Justice Wein referred to the four factors “upon which the admissibility of all expert evidence depends…: relevance, necessity in assisting the trier of fact, the absence of any other exclusionary rule, and a properly qualified expert.”4 She held that “necessity” had not been established in the motion before her because the content of the critique did not go “beyond the scope of common sense” and could be “articulately argued by counsel for the father based upon answers to questions asked in cross-examination and simple logical inference.”5
45In Greenough v. Greenough, in 2003, Quinn J., at a custody/access trial, held that the applicant wife could introduce her expert’s critique of the clinical investigator’s report (which had been favourable to the respondent husband) in her reply testimony, once it was known whether the critique was, in fact, necessary. Justice Quinn stated:
The court in Mayfield expressly did not go so far as to say that “a critique of an assessment report could never meet the test for admissibility in a custody case.” The court, however, did indicate that it would “rarely, if ever, be ‘necessary’ to introduce the critique as original evidence or to call the critiquer as a witness.” I would have thought the reverse to be true. Even if critiques are only as to process and not facts, as seems to be the situation at bar and in other cases, they are helpful to the court in that they highlight lapses in accepted methodology and, importantly, point out the significance of those lapses.6
46Whether or not a critique satisfies the four general requirements for admissibility described by Justice Wein, it should, like an OCL report, comply with the formal requirements of Rule 39.01 of the Rules of Civil Procedure. In the case of an OCL assessment report, those formal requirements are set out in section 112 of the Courts of Justice Act. If the report is based on information not within the personal knowledge of the expert, it must state the source of the information upon which it is based and the fact that the expert believes it to be true. Mr. Koval’s report does not do this. Mr. Ceho says, in his affidavit:
…I asked my lawyer to obtain a critique of the reports prepared by Ms. Spraggett. Attached hereto and marked as Exhibit “K” is a copy of the critique that was prepared by Gregory Koval, MSW, RSW.
Mr. Koval states, in his report:
Mr. Ceho requested that I conduct a review of the investigations prepared by Ms. Spraggett dated April 10, 2014, and December 19, 2014. I have reviewed the two reports. I have reviewed most of the Court documents. I met with Milan on February 20, 2015, to verify some of the facts in this case.
47Except to the extent that Mr. Ceho, in his affidavit, attests to some of the facts that Mr. Koval relies on in his report, neither Mr. Ceho nor Mr. Koval attests to his belief in the facts on which Mr. Koval’s report is based. Courts have excluded letters or reports that are attached as exhibits to affidavits where the deponent has failed to swear to the truth of the contents, and where the source of the letter is unavailable to be cross-examined. Justice Aston, in MacArthur v. Demers, excluded four letters that were attached to one of the parties’ affidavits.7 In doing so, he relied on a decision of Provincial Judge Henry Vogelsang in LiSanti v. LiSanti. In LiSanti, Judge Vogelsang stated:
The exhibit is a lengthy prose statement consisting of material headed “History of Abuse”, “Interaction with Children”, “Interactions During Visits with Mr. LiSanti” and “Interactions with Staff of Women’s Community House”. The allegations made in the exhibit are clearly stated to be hearsay. The tone is highly pejorative and prejudicial to the husband. The exhibit is not in affidavit form. No one swears as to the source of information outside his or her personal knowledge and deposes to a belief that the statements are true. Not the subject of an affidavit, no one can cross-examine on the statements or the source of the information.
There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion in an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition. That is the situation with this exhibit.8 [Emphasis added]
48A further defect in Mr. Koval’s report is that it is not in the form of an affidavit upon which he could be cross-examined. Some courts have allowed parties to tender unsworn reports from professionals on the basis that the opposing party could cross-examine the professionals if they wished. In K v. Public Trustee, Craig, J.A., of the B.C. Court of Appeal, allowed an appeal by the mother of a cognitively disabled adult daughter from a decision that refused the mother the right to consent to a surgical procedure on her daughter’s behalf. In doing so, Justice Craig upheld a motion judge’s reliance on a doctor’s letter attached to the mother’s affidavit on the basis that the doctor’s unavailability, due to illness, for cross-examination, was a matter that affected the weight of his report, not its admissibility.9
49In Three Seasons Homes Ltd. v. Faris, in 2005, Simmons J.A., for the Ontario Court of Appeal, held inadmissible a lawyer’s letter, attached to an affidavit, which confirmed that one of the parties had requested the other to comply with a right of first refusal in a mortgage providing for sale of a property. Simmons J.A. stated:
… in his affidavit, Mr. Orsi did not confirm his lawyer’s statement as set out in the June 3, 2003 letter. … Accordingly, the lawyer’s statement in the June 3, 2003 letter … was not admissible to prove the truth of its contents: see Rule 39.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.10
50Where an unsworn letter or report is tendered for the truth of its contents in respect of contested facts, the closer those facts come to the dispositive issue, the closer scrutiny the letter or report deserves, including submitting to meaningful cross-examination evidence from witnesses with firsthand knowledge of the facts.11
51I find that Mr. Koval’s critique is inadmissible because he does not set out the source of all the facts of which he does not have personal knowledge and does not swear to the truth of the facts contained in his report.
52As to whether Mr. Koval’s critique is also inadmissible because it is not in affidavit form upon which he could be cross-examined, I find that the critique concerns an area of expertise that Mr. Koval obviously possesses.12 Mr. Ceho was cross-examined on his own affidavits and could have been cross-examined on the information he gave to Mr. Koval. Mr. Koval could also have been made available for cross-examination, pursuant to an order under Rule 39.03, if Ms. Ceho had sought one. Rule 39.03 provides, in part:
39.03(1) Subject to sub-rule 39.02(2), [providing the procedure for evidence by cross-examination on affidavit] a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.
(5) The attendance of a person to be examined under sub-rule (4) may be compelled in the same manner as provided in Rule 53 for a witness at trial.
53Additionally, Ms. Ceho could have sought an order requiring Mr. Ceho to produce Mr. Koval for cross-examination. If Mr. Koval had refused, the report could have been struck out. If Mr. Ceho was unable to secure Mr. Koval’s attendance, he or Ms. Ceho could have obtained an order pursuant to Rule 39.03, on notice to Mr. Koval, compelling him to attend.
54In 1632842 Ontario Limited v. Great Canadian Gaming Corp., Newbould J. ordered the corporate defendant to produce two of its officers and its senior outside counsel to be cross-examined on affidavits that had relied on information from them. He issued interprovincial summonses to facilitate their attendance. He stated:
A party seeking to examine a witness under rule 39.03 (1) has the onus to show on a reasonable evidentiary basis that the examination will be conducted on issues relevant to the pending motion and that the proposed witness is in a position to offer relevant evidence. If the evidence sought to be adduced from a non-party is relevant, there is a prima facie right to examine under rule 39.03(1) so long as the right is not exercised in a manner which constitutes an abuse of process. The onus is on the proposed witness to establish an abuse of process. See Ontario Federation of Anglers & Hunters v. Ontario, 2002 ONCA 41606, [2002] O.J. No. 1445 (C.A.); CanWest Media Works Inc. v. Canada 2007 ONCA 567, [2007] O.J. No. 3119 (C. A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 ONSC 7258, 27 O.R. (3d) 291; Pinsky v. Julien, [2008] O.J. No. 163.13 [Emphasis added]
55In response to the corporate defendant’s objection that the motion to cross-examine the individuals who had provided information to its affiant was an abuse of process, Newbould J. stated:
Great Canadian contends that the proposed examinations constitute an abuse of process in that what is sought is effectively examination for discovery long before that will occur, it asserts, in the Great Canadian action. I have difficulty with this argument. Great Canadian has led the hearsay evidence under a rule that allows evidence on a motion on information and belief and relies upon that evidence on its motion. It would be unfair to deny Kepinski the opportunity to test that evidence by examining the persons who are the source of the hearsay. There was no explanation given why these three persons could not have sworn affidavits for use by Great Canadian on its motion and one may be permitted to think that the failure to do so was perhaps a matter of tactics to avoid cross-examination of these persons. There is no evidentiary basis to support an assertion of bad faith or an abuse of process on the part of Kepinski in seeking to examine these witnesses and Great Canadian has not met its onus of establishing abuse of process.14 [Emphasis added]
56Based on the foregoing, I would not exclude Mr. Koval’s critique solely on the ground that it is introduced as an exhibit to Mr. Ceho’s affidavit and not in the form of an affidavit from Mr. Koval. It is, however, inadmissible as evidence of the facts that the court must consider in determining what parenting arrangement would be in Aleksandar’s and Juliana’s best interests, because Mr. Koval has not stated explicitly who gave him the information he is relying on for his opinion and has not stated his belief in the truth of that information.
57Even if Mr. Koval’s critique were admissible, I would not attach significant weight to it as evidence of what parenting arrangement would be in Aleksandar’s and Juliana’s best interests. Mr. Koval did not interview Ms. Ceho or the children, or observe the children’s interaction with either of their parents.
58Mr. Ceho relies on Mr. Koval’s critique principally with regard to the process that Ms. Spraggett followed in conducting her assessment on behalf of the Office of the Children’s Lawyer. He states that:
a) She failed to set out the source of her knowledge and belief regarding alleged facts that were not within her personal knowledge.
b) She relayed information about Ms. Ceho rather than focusing on the best interests of the children.
c) She relied wholly on the information from the CAS for Mr. Ceho’s alleged addiction.
d) She failed to make inquiries directly with Mr. Ceho regarding his alleged addiction.
e) She failed to rely on her own observations of Mr. Ceho.
f) She failed to draw a distinction between drug use and drug abuse.
g) She failed to weigh contradictory statements or investigate the veracity of these statements.
h) She failed to interview any collateral in person or obtain reports or check credentials.
i) She failed to factor in the misrepresentation of why Ms. Ceho was taken off her medication by Dr. Johnston during the course of the first report where she cited that it was a result of progress and not her unplanned pregnancy which was stated in Dr. Johnston’s May 10, 2014, letter.
j) She failed to suggest a contingent plan if Ms. Ceho were to dissociate or require re-admittance into Homewood.
59I give reduced weight to Mr. Koval’s critique of Ms. Spraggett’s assessment because she did not speak with Ms. Spraggett or review her notes. In R.L.D. v. M.E.D., in 2002, the court gave substantial weight to the conclusions of a social worker who conducted the initial assessment, whose conclusions were consistent with other evidence in the case.15 However, it gave little weight to a critique of the assessment by a psychologist who did not contact the assessor or request her notes. In that case, unlike the present one, the social worker who conducted the original assessment was not cross-examined on her report, and therefore was not given a chance to defend her conclusions. In the present case, Ms. Spraggett was cross-examined on her report.
60I have reviewed Ms. Spraggett’s December 2014 report, and find that she conducted her assessment in a proper manner. In particular:
a) She interviewed each of the parties, as well as Mr. Ceho’s parents and Ms. Ceho’s partner, Mr. Goetz.
b) She interviewed each of the children and observed them interact with each of the parents.
c) She interviewed, among others, the principals of the children’s schools, the children’s psychologist, Dr. Gilani, Ms. Ceho’s psychiatrist, Dr. Johnson, the children’s family doctor, Dr. Lester, Mr. and Ms. Ceho’s family doctors, Dr. Adams and Dr. Walk, Mr. Ceho’s parents’ family doctor, Dr. Lahnstainer, the Peel CAS worker, Sheila Amadume, the social worker, Mr. Afram, and Lorie Ann Chapman from the Family Education Centre.
d) She appropriately set out the information she obtained from each of the sources in her report.
61I find that Mr. Koval’s criticism that Ms. Spraggett focused on Ms. Ceho and not on the children’s interests is unfounded. Ms. Spraggett noted that the children have a strong relationship with both parents as well as with their father’s parents. She reviewed the children’s report cards and noted that they are doing well in school. She noted that Juliana has shown signs of distress since her parents’ separation and appears to act out while in her mother’s care. She noted that Aleksandar has talked about suicide but that the Peel CAS worker, Ms. Amadume, has concluded that he is not, in fact, suicidal. She described the children’s interaction with each parent, based on observations she made in October 2014, and she ascertained from the children that they wished to spend more time with their mother.
62Mr. Koval’s chief criticism of Ms. Spraggett’s assessment is that she relied wholly on information from the CAS regarding Mr. Ceho’s use of drugs, and failed to ask Mr. Ceho directly about the issue, and that she failed to distinguish between drug use and drug addiction. I find these criticisms to be unsupported. Ms. Spraggett notes in her report that Mr. Ceho tested negative for cocaine use and oxycodone use in urine tests on March 6 and July 28, 2014, but had not attended for hair follicle drug testing, allegedly because it is expensive. Ms. Amadume noted in a telephone conversation with Ms. Spraggett on October 23, 2014, that hair follicle testing is more reliable and that when Mr. Ceho last underwent such a test, the results were positive. Ms. Spraggett noted that Mr. Ceho initially reported that his drug test results were negative, but that he himself acknowledged at the disclosure meeting that he had tested positive in the hair follicle testing.
63With regard to Ms. Spraggett’s failure to distinguish, in her December 2014 report, between drug use and drug abuse, I note that the drugs in question are Cocaine and Oxycodone. I accept the views of Ms. Spraggett and the Peel Children’s Aid Society that Mr. Ceho’s use of those drugs, even if he is not addicted, would tend to impair his ability to care for his children and that his drug use is a risk to the children’s safety.
64For the foregoing reasons, I would attach little weight to Mr. Koval’s critique of the process Ms. Spraggett followed.
b) Does the court have jurisdiction to vary an interim custody order and, if so, is Ms. Ceho required to prove that there has been a material change of circumstances since the order was made?
The legislative framework
65The criteria set out in section 29 of the Children’s Law Reform Act have been unchanged since their enactment in 1982. Section 29 requires a finding that there has been a material change in the circumstances of such nature and consequence that it affects or is likely to affect the best interests of the child. It provides:
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.16
66The legislation highlights the importance of the children’s welfare, a factor that, pursuant to subsection 24(1) of the Act, is paramount in determinations of custody and access. Subsection 24(2) requires the court to consider “all the needs and circumstances of the child” and lists a number of factors that the court must weigh as part of that consideration.
67For the reasons that follow, I find that section 29 does not apply to the facts of the present case. Section 29 implicitly refers to orders that have disposed of motions or applications. The order of Justice Mossip did not do so. Rather, it established the temporary terms that were to prevail until the motions were heard.
68An order that disposes of a motion or application is based on either:
a) The court’s adjudication of the issue of what custody or access order would be in the children’s best interests; or
b) The parties’ consent as to what would be in the children’s best interests.
In either case, it is reasonable to require the party who is applying to change the status quo to demonstrate that there has been a material change of circumstances since the order was made, which affects the welfare of the children. In the present case, there was no adjudication as to what custody or access order would be in the children’s best interests, and the parties agreed that the order would be a temporary one that would be “without prejudice” to either party’s position. Requiring a party to establish a material change of circumstances would be contrary to that agreement.
69If I am incorrect in my interpretation of Rule 29, I would find that, where a temporary without prejudice order is made pending the parties’ cross-examination of each other on their respective affidavits, or pending a clinical assessment by the Office of the Children’s Lawyer, the only change of circumstances that a party must show in order to have the order varied is that the cross-examinations or clinical assessment have been completed. This is especially so in the present case, where the Children’s Lawyer, based on its assessment, recommends a change in the custody and access regimen that was put in place pending the completion of the OCL’s assessment.
70If I am incorrect in this alternative interpretation of Rule 29, I find that Ms. Ceho’s completion of three years of intensive counselling for her drug addiction and mental health issues, and the fact that she is now in stable recovery from her drug and mental health problems, are material changes of circumstances that affect the welfare of the children and satisfy the requirements of Rule 29.
The factual context of Mossip J.’s order in the present case
71The court must consider the status quo as a factor whenever it makes an order concerning a child’s custody, access, or primary residence. I will consider the evidence in relation to this factor below, in my analysis of the children’s best interests.
72The rules require “a material change of circumstances” only in the context of an application to vary an existing order. In such as case, the court must compare the circumstances that existed when the original order was made with those that exist at present, in order to determine whether, had the latter circumstances existed when the original order was made, they would have resulted in a different outcome.
73In order to understand why a material change in circumstances is not relevant in the present case, Justice Mossip’s order dated August 28, 2013, must be placed in the context of the sequence of decisions that are made in most disputes involving a child’s custody and access.
74The dispute between two spouses regarding the custody of, access to, or residence of their children usually comes before the court soon after the spouses have separated. Their separation has often been precipitated by a crisis which may have involved the intervention of police or child welfare authorities. The court, in those circumstances, must reconcile conflicting priorities. It must make a timely decision that will, most immediately, de-escalate the conflict and avoid violence, or further violence, between the spouses that may place the children’s safety, as well as that of the parties, at risk. At the same time, the court must make a decision that will situate the children in the household and within a parenting arrangement that is most conducive to their well-being as the children transition from an intact family to separate households.
75When the parties first appear in court, either at an early family law case conference, or at a regular case conference, or at an emergency motion preceding a case conference, they often apply for an order based on a single party’s affidavits, or based on conflicting affidavits, in which their different views of the facts are accentuated by emotional turmoil brought on by the anger, disappointment, and resentment that may accompany a separation, and sometimes by the fear of further police or child welfare intervention.
76At the time of the parties’ early attendance in court, their affidavits are as yet untested by cross-examination, and the court does not yet have the benefit of evidence from neutral third parties, such as child welfare authorities, staff of supervised access centres, or clinical investigators from the OCL. If the court requests the involvement of the OCL, the OCL may require six weeks to process the request and decide whether it will become involved. If it agrees to undertake a clinical assessment pursuant to s. 112 of the Courts of Justice Act, it will normally require a further three months to complete its assessment and meet with the parties to review its recommendations. If the parties are still unable, at that point, to agree as to an appropriate order for custody, access, and residence of the children, the investigator will prepare a report, which may require a further month to complete.
77In the five and a half month interval between the parties’ first appearance in court and the completion of an OCL report, the court relies heavily on negotiations between the parties and their respective lawyers to achieve a temporary resolution of the issues until the parties can complete their cross-examinations on affidavits and/or await the OCL report. One of the reasons for this reliance, especially in busier jurisdictions, is that the parties often schedule their motions for temporary remedies on “regular” motion days, when less than an hour is allotted for the hearing of each motion.
78An appointment of less than an hour is rarely sufficient to permit a full consideration of complicated factual histories, sometimes recited in multiple affidavits from each of multiple witnesses. An appointment for the hearing of a “long motion” of an hour or longer may require a delay of three or more months. During this interval, the parties cross-examine each other on their affidavits and obtain the transcripts of the cross-examinations, which the parties or their lawyers then incorporate, with references to the relevant legislation and jurisprudence, into factums, which are required for long motions. The time required for the court to consider such factums and the underlying affidavits, transcripts, and briefs of authorities, may cause the court to reserve its decision on the motion until later, which adds further delay to the decision-making.
79This sequence of events usually entails multiple decisions respecting custody and access made at different points in the judicial proceeding. The ultimate trial of a family law proceeding in a busy urban jurisdiction can often occur two years or more after the parties deliver the pleadings that begin the proceeding. Before that final judgment at trial, there will usually be temporary orders, often on consent, made at conferences or at motions, designed to reduce conflict and bring temporary stability to the children’s lives.
80The temporary orders made at early court appearances, before the final hearing of a motion, are the least informed decisions, often based on a single party’s affidavits or on both parties’ conflicting and un-tested affidavits. It is sometimes referred to as a “temporary-temporary,” or “interim-interim” order, meaning that it is expected to govern the parties’ conduct only until the temporary, or interim, order is made following the cross-examination of the parties, if they are required, and the hearing of the motion.
81If the temporary-temporary order is the result of an actual adjudication, even though based on an “incomplete evidentiary record”, not including the transcript of cross-examinations, it will be regarded as a “with prejudice” order, meaning that the court at a later hearing will give some importance to the order in its decision-making. If the decision is simply the result of negotiation between the parties, as a temporary expedient designed to achieve a more timely and less expensive resolution of the issues than what would result from a pre-mature adjudication, which will usually be superseded, after the hearing of the motion, by a still “temporary order”, it may be regarded, and sometimes will be explicitly stated to be, a “without prejudice” order. This expression means that the court at a later hearing should not regard the order as the result of a true adjudication, reflecting the court’s preliminary assessment of what custody and access order is in the best interests of the children but, rather, should regard it only as a means of protecting each party’s position while moving the proceeding toward the hearing of the motion.
82At the hearing of the motion itself, the court will often be better informed, as it will usually have the benefit of both parties’ affidavits and, in some cases, the transcripts of cross-examinations of the parties and their witnesses on their affidavits, and evidence from neutral third parties such as Supervised Access Centre staff, Children’s Aid staff, police, and professionals who have conducted assessments under s. 30 of the Children’s Law Reform Act, or clinical investigators with the OCL who have conducted assessments under s. 112 of the Courts of Justice Act.
83Unless a final resolution of the issues is achieved by consent at one of the early court appearances, the proceeding will eventually end with the most highly-informed decision following a trial, when the court has the benefit of hearing witnesses testify in person, tested by cross-examination on their respective affidavits and testimony, and with reference to answers they have given previously in out-of-court cross-examinations, as recorded in transcripts.
84Justice Mossip’s order dated August 28, 2013, was a “temporary temporary and without prejudice” order. It was not intended to prevail until trial, but only until the parties agreed or the court, on the basis of a more complete evidentiary record, made a further order after the hearing of the parties’ motions. In interpreting Rule 29 and determining whether the “order” referred to therein includes a “temporary temporary without prejudice” order, I must consider Rule 2 of the Family Law Rules, which concerns interpretation. It provides, in part:
2.(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
85To require a party to establish that a “material change of circumstances” has occurred since a “temporary temporary and without prejudice order” was made would not promote the primary objective of resolving disputes fairly in the most timely and least expensive manner. Rather, it would discourage the temporary settlement of disputes pending counselling, or questioning, or a clinical investigation by the OCL. Parties would be more likely to argue the issues prematurely in order to avoid a presumption arising from the status quo in the future. They would be less willing to adjourn a motion in the interest of counselling, or questioning, or OCL investigation, if they thought that the court, upon the return of the motion, would require proof of a material change of circumstances before it would consider the results of those steps.
86The very expression “without prejudice” is intended to preserve the position of each party. It would be rendered meaningless if the temporary temporary order, in fact, prejudiced the party who consented to it, by imposing on that party a higher threshold of proof in the future, and requiring him or her to prove a material change of circumstances.
The jurisprudence relevant to the application
87The jurisprudence in relation to Rule 29 demonstrates that the requirement it imposes of proving a material change in circumstances goes beyond the need to consider the status quo as one of several factors relevant to the best interests of the children. In any motion involving custody or access, or primary residence of a child, the welfare of the child is paramount,17 but the existence of a prior determination of those issues, by adjudication or consent, requires the court to weigh the status quo more heavily than other factors. If it is not possible to arrive at a determination that reflects the best interests of the child, then the status quo should be preserved.18 Additionally, where a prior determination of the issues has been made, stronger evidence of a risk of harm to the child is required to support an interim variation of the status quo than at trial.19
88The party applying to change a status quo that has resulted from a consent order for custody must generally prove a “manifest” change of circumstances justifying the change.20 In Serruys v. Serruys, the Court of Appeal did not find such a “manifest” change of circumstances, to justify a change in the status quo. This case was decided on the basis of the Family Law Reform Act, R.S.O. 1980, c. 152, just prior to the enactment of section 29 of the Children’s Law Reform Act. In Eaton v. Eaton, the British Columbia Court of Appeal echoed the words of Justice Zuber in Sypher v. Sypher,21 in 1986:
I start with this position: that this court should be slow to interfere with any decision respecting custody, and particularly slow when interfering with any interim custody decision.22 [Emphasis added]
Having started with that principle, the Court of Appeal set aside the interim variation order on the ground that there was no evidence of a risk of harm to the child.
89In Nottingham v. Emond, in 1997, Dilks J., in the Ontario Court (General Division), dismissed a father’s appeal from an temporary order on the ground that the motion judge had erroneously ended a status quo joint custody arrangement of 4 years’ duration that had been confirmed by a consent order, based on the father’s failure to submit to an English language assessment.23 Justice Dilks found that the evidence supported the motion judge’s finding that there had been a material change in circumstances, based on the father’s failure for two years to provide the mother with a work schedule that would facilitate shared care and control, his inactivity for the past two years to arrange a bilingual assessment component, the father’s promotion of his own interests rather than those of his son, his failure to reimburse the mother for medical expenses, his conviction for making harassing phone calls to the mother, and his violations of the interim order through his arbitrary attempts to extend his access. His conduct created an atmosphere, Justice Dilks found, in which it was difficult for the parties to co-operate with respect to the child’s upbringing.
90The burden of proof on the moving party is a substantial one where there has been a prior order based on an adjudication or consent determination of what custody or access order is in the children’s best interests. Once a temporary order is made in such circumstances, even the expressed wishes of the children may not prevail over the principle that “temporary custody proceedings must not be used to circumvent the trial process.” The moving party will be required to demonstrate a pressing need to up-root the children from their existing home environment and school.24
91Where an order has resulted from an adjudication or consent determination of the parties as to what temporary custody or access order is in the children’s best interests, the party moving to vary the order will be met with the argument that moving, or “shunting”, the children back and forth should be avoided. In Cropper v. Cropper, in 1974, Dubin J.A. stated for the Court of Appeal:
In most cases where a trial is close at hand, and where the child is being well taken care of, it is preferable that one must seek to avoid the shunting of a child from parent to parent because of the unsettling effect which such changes may have on the infant.25 [Emphasis added]
92In Papp v. Papp, in 1969, Bora Laskin J.A. stated:
It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind. The conduct of the parties inter se may not as such have any bearing on custody, let alone interim custody; but if it offers any assistance on how the children are likely to fare in their material or moral up-bringing in the hands of one parent or the other, it has relevancy.26
93The court generally avoids varying interim orders at a motion on a pending application unless the circumstances are urgent. Justice Jarvis, in Pakka v. Nygard, in 2003, refused a motion in 2003 to vary an earlier interim child support order, made in 2002, pending a trial that was scheduled to take place in February 2004. He stated:
The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainty of the parties and vastly increase the cost of litigation. To echo the words of Wolder J. in Thompson v. Thompson, [1995] O.J. No. 2106 (Ct. J. (Prov. Div)), such an order should be varied only where the failure to vary “would cause the payor to suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.”27 [Emphasis added]
94Justice Kukurin, of the Ontario Court of Justice, in Bellerive v. Hammond, in 2003, held that Rule 29 should not be interpreted as preventing a court from making an interim variation of an existing order where the requirement for a “material change of circumstances” would result in “real hardship” from continuing the status quo:
Finally, in particular for matters such as custody and access, common sense dictates that there should be authority for courts to make interim orders varying existing orders. Changes, even material changes, are not uncommon in families. It would make no sense to handcuff the court where changes in circumstances make existing orders no longer viable. A status quo that is overtaken by circumstances could work a real hardship to a child. The Act should not be interpreted as Patty suggests. Rather it should be interpreted to permit the making of interim orders varying provisions of existing final orders. In fact, interim variations can also be made of interim orders in variation proceedings. The best interests of a child demands that there be sufficient flexibility in the law to permit making adjustments to custody and access orders where so indicated.28 [Emphasis added]
95I am aware that Wood J., in Green v. Cairns, in 2004, suggested that there be a high threshold for varying an interim order on an interim basis and that such a variation should be made only where “the evidence establishes clearly and unequivocally that the present arrangement is not in a child’s best interests and the proposed arrangement would be.”29 Justice Mitrow, in Miranda v. Miranda, in 2013, expressed a similar view.30 However, Justices Wood and Mitrow were not dealing with “without prejudice” interim orders. Justice Minnema made this distinction in Thom v. Thom, in 2014, holding that there is no power, before trial, to change a temporary custody or access order at all, unless it was made “without prejudice”. He stated:
A legal pathway for this relief was not charted or explored by Ms. Thom in her factum. I make the following general observations. Ms. Thom seeks to vary an interim custody order not made ‘without prejudice’. Given that interim orders are “meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial” (see Brown v. Brown, 1999 ONSC 15074, 45 O.R. (3d) 308 (Ont. S.C.J.) at para. 34), requests to change them should be rare.31
96Justice Himel, in V.A.W. v. R.C.L., in 2004, noted the competing priorities that apply to a temporary order for custody and access pending the determination of the application. Her comments are especially applicable where the interim order is made on a “without prejudice” basis. She stated:
A court may make an interim order for custody of or access to children of the marriage pending determination of the application: see section 16(1) of the Divorce Act. In making such an order, the court is required to consider only the best interests of the child as determined by reference to the “conditions, means, needs and other circumstances of the child”: section 16(8). The best interests of the child is a fluid concept and custody/access arrangements may need to be varied to reflect those interests.32 [Emphasis added]
97The requirement that a party demonstrate a “material change of circumstances”, then, does not apply where the previous order was made on a temporary and “without prejudice” basis. Such orders are intended to remain in effect only until a full hearing of the motion for a temporary order, when they will be changed by the written agreement or court order that ultimately disposes of the motion. Such a “without prejudice order” is made in contemplation of a further order, based on a more complete evidentiary record.
98I respectfully disagree with the contrary view expressed by Justice Marion Cohen of the Ontario Court of Justice in Children's Aid Society of Toronto v. D.-R.(L.), in 2007, in the context of a motion to vary a temporary without prejudice access order under s. 51 of the Child and Family Services Act. Although Justice Cohen suggested that the threshold of proof for establishing a material change of circumstances might be lower where the prior order was made “without prejudice”, she nevertheless held that a material change had to be established to justify varying the temporary order. She stated:
At the commencement of this motion, I heard submissions from counsel as to the applicable legal test on a motion to vary an access order under section 51 of the Act, including whether a material change in circumstance had to be demonstrated when the order being varied was made “without prejudice”. I expressed my view that the meaning of a “without prejudice” order was that, because such orders were made at an early stage of the proceedings without the opposing parties having a meaningful opportunity to reply, the court would not draw adverse, prejudicial inferences against the parties on a subsequent motion as a result of the order having been made. Although this reasoning would suggest a low threshold for variation, nonetheless, it was my view that a material change would have to be established. Without any change, either factually or in terms of the information before the court, there would be no reason to vary an order that was justified based on the material before the court at the time the order was made. The change would have to be material in the sense of being likely to influence the result, but it could be established by proof of circumstances which could have arisen either prior to or subsequent to the previous order, that is by circumstances which were not before the court, or known or foreseen by the court, at the time the order was made. Following this reasoning, I concluded that the court has a broad discretion to vary a temporary “without prejudice” order.33
99Changing the meaning of “change” to include circumstances that arose prior to the temporary order confuses the analysis of when and how Rule 29 properly applies. It is preferable to recognize the implications of a “without prejudice order” and except such orders from the application of Rule 29.
100Justice Chappel, in Batsinda v. Batsinda, in 2013, made it clear that, absent an adjudication or a consent based on a determination or acknowledgement that the custody/access or parenting schedule is, in fact, in the best interests of the children, a temporary order, especially one that has prolonged a status quo that one of the parties imposed unilaterally when the parties separated, should not give rise to a presumption that must be rebutted. Justice Chappel gave the following analysis of the court’s deference to a “status quo” regarding access:
In a number of cases, this court has held that as a general rule, changes to existing custody, residence and access arrangements that have evolved either as a result of temporary orders or otherwise should not be made pending trial unless there are compelling circumstances which render a change absolutely necessary in order to satisfy the child’s best interests. (Doell v. Cassar, 2009 CarswellOnt 7217 (S.C.J.); Osama v. Sayegh 2004 CarswellOnt 3732 (S.C.J.); David v. McCain, 2005 CarswellOnt 7183 (S.C.J.); Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.))
However, I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp 1969 ONCA 219, [1970] 1 O.R. 331 (C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.
As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.). It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.
The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.
In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by “the status quo.” The courts have clarified that the phrase “status quo” with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 1986 ONSC 6303, 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example Howard v. Howard (1999), 1999 ONSC 35009, 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.34 [Emphasis added]
101I would paraphrase Justice Chappel’s decision by saying that it is a prior adjudication, or a determination based on a consent of the parties that represents a true acknowledgement by them that a custody or access arrangement is, in fact, in the best interests of the children, that commands deference by a court in the future. It is not the fact that a status quo has existed, or been extended, even if it is embodied in a temporary and without prejudice order. If there was no prior adjudication or judicial determination based on a consent that implies acknowledgement that the children’s best interests have been achieved, the status quo is only one of several factors to be considered in determining what outcome would be in the children’s best interests, and it should not, except where there has been an actual determination that it is in the children’s best interests, be presumed to be so.
102Based on the foregoing reasoning, I find that the court does have jurisdiction to change Justice Mossip’s order dated August 28, 2013, and that Ms. Ceho is not required to prove that there has been a material change of circumstances since that order was made.
c) What order as to custody and access is in the best interests of the children?
A. Legislative Framework
103The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (“CLRA”).35
104The Supreme Court of Canada in Young v. Young and Gordon v. Goertz (1996) held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child.36
105Under Section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare.37
106Section 24(1) of the CLRA provides as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) The love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) The child’s views and preferences, if they can reasonably be ascertained;
(c) The length of time the child has lived in a stable home environment;
(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) The permanence and stability of the family unit with which it is proposed that the child will live;
(g) The ability of each person applying for custody of or access to the child to act as a parent; and
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.38
107I will review the evidence in relation to each of the above-mentioned factors, insofar as they are relevant to custody of Aleksandar and Juliana and access to them.
a) Love, affection, and emotional ties
108As noted above, Ms. Spraggett concluded that Aleksandar and Juliana have a strong relationship with both parents as well as with their paternal grandparents.
b) Facilitating contact with the other parent
109The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must 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”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests.39
110As for how the parties should share parenting of Aleksandar and Juliana, I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act.40 Justice McLachlin, speaking for the majority of the Court, said:
... s. 16(10) provides that in making an order, 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." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18).41
111Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so.42
112A significant factor for the Court to consider in seeking to maximize each parent’s contact with Aleksandar and Juliana is the role that the paternal grandparents are likely to play under any parenting regime that the Court imposes. Dragan and Zorica Ceho have clearly aligned themselves with their son in his dispute with Ms. Ceho.
113Ms. Spraggett says that both Mr. Ceho and the paternal grandparents have denigrated Ms. Ceho and resist co-parenting with her. In describing her interview with Mr. Ceho, she states, “Milan Ceho stated there has never been a co-parenting relationship with Merima Ceho and that communication stopped altogether in January 2013. He stated he has ‘erased her’ from his mind and he has not communicated with her in over a year.” Mr. Ceho stated that Ms. Ceho and his mother often “fight” about the children, the schedule, and over Merima being constantly late at exchanges. Ms. Spraggett relates, “He prefers the arrangement with his mother and Merima Ceho co-parenting as he doesn’t want to have anything to do with Merima Ceho.”
114In discussing Mr. Ceho’s custody/access concerns, Ms. Spraggett states, “Milan Ceho is concerned that Merima Ceho is ‘not all there’….” Milan Ceho is concerned that Merima Ceho is not a very good mother because she always put the children to bed late, got them up late in the morning, and she didn’t provide meals or any structure to the day.”…“he is concerned that Merima Ceho never talked to her [sic] about her childhood and that he suspects she is lying to everyone about her experiences as a child. He stated that Merima Ceho’s lying is a sickness.”
115If the denigration of Ms. Ceho to the children continues, it will be increasingly detrimental to Aleksandar’s and Juliana’s regard for their mother, both as a role model and a source of security.
c) The children’s views and preferences
116Ms. Spraggett noted, in her up-dated report, that both children have expressed the desire to spend more time with their mother. The children were content to either remain in their current arrangement or to move to Guelph to live with their mother.
117Dr. Gilani, the children’s psychologist explained that through her use of play therapy with Aleksandar, he projected that emotionally, he wanted to live with his mother. He saw his father as a friend, not a father figure. He saw his grandmother as doing most of the parenting at the house, and while he had advantages residing in that home, he wanted to be with his mother, whom he saw as his primary caregiver. Juliana also, emotionally, saw her mother as her primary caregiver and wanted to reside with her. She talked little about her father and didn’t see him as her primary caregiver. Juliana conveyed that she feels insecure with her grandmother and feels angry towards her for giving Aleksandar more attention. Neither of the children expressed any negative issues about their mother.
d) Length of time Aleksandar and Juliana have lived in a stable home environment
118Alexander and Juliana have resided with Mr. Ceho and his parents since April 15, 2012, when Mr. and Ms. Ceho separated and Mr. Ceho moved in with his parents. Mr. Ceho continues to reside with them. Mr. Ceho and the children have separate bedrooms. The home is spacious and the children have their own space to do their homework. Mr. Ceho plans to continue to reside with his parents and to have them take care of the children together.
119Ms. Ceho plans to continue to reside in Guelph. If custody of Aleksandar and Juliana is granted to her, she plans to keep Mr. Ceho informed of their progress with school, medical care and other events and to encourage their contact with the extended family, especially Mr. Ceho’s parents, with whom they are very close.
120Aleksandar, who is now eleven years old, started grade six at Tomken Middle School in September 2013. He has been described by his principal as a very good student and athlete, and a good fit for the school. Juliana is now ten years old and in grade five at Millwood Junior School where she is in French Immersion. Her principal described her as a leader, a strong athlete, struggling in math. She recently underwent testing at the school for a learning disability.
121Aleksandar spoke favourably of his parents, grandparents, and Jason. He stated that he would be fine with going to Guelph; however, he wouldn’t be able to continue with soccer, except on weekends. He explained that he was “okay” with that and that he would still practice soccer in Guelph. He advised that everything in his life was “10 out of 10” and he didn’t have any complaints.
122Juliana talked at length with Ms. Spraggett about her sports activities and said that she aspired to compete in track and field at the Olympics. She talked about wanting to take Art courses and horseback riding lessons in Guelph. She indicated that everything is “10 out of 10” in her life. She is happy with both parents and her grandparents. She explained that she has a friend in Guelph now and she lives upstairs from her mother’s apartment. It wouldn’t be a problem for her to live in Guelph now that she has a friend. She advised that her mother is more strict than her grandparents and her father, that she gives her chores to do and takes away the television.
123I conclude that while Aleksandar and Juliana have lived in a stable family environment with their father and grandparents for the past three years, they have also exercised access regularly with their mother and her partner in Guelph, where their mother has been actively involved in all areas of their lives. They both say that they would like to spend more time with their mother and have said that they would be content to move to Guelph.
e) Ability and willingness of each parent to provide Aleksandar and Juliana with guidance and education, the necessaries of life, and to meet any individual needs she has
124Dr. Gilani indicated that Ms. Ceho was supportive of the children’s counselling and was encouraging of them to attend, as she recognized the emotional struggles they have faced and continue to face. He indicated that Ms. Ceho’s insight into the children’s emotional needs was evident; however, this was lacking in Mr. Ceho and his mother.
125Dr. Anita Johnson, Ms. Ceho’s psychiatrist at Homewood Health Centre, advised that Ms. Ceho assumed personal responsibility for her treatment and recovery and made significant progress and is now stable and able to assume the parenting of Aleksandar and Juliana. As noted above, she described Ms. Ceho as exceptionally bright and an excellent parent who is emotionally attuned to the children’s needs.
126Ms. Gordon, the principal at Tomken Middle School, stated that Ms. Ceho is very concerned about her son, and is a hands-on parent. Both Mr. Ceho and his mother were interested in Aleksandar’s progress and Mr. Ceho’s mother, in particular, seemed attuned to him.
127Mr. Pinkney, the principal of Millwood Junior School, said that Juliana is bright but is struggling academically. She is passing but not where she should be. In December 2014, he advised that Juliana was tested by the school psychologist for a possible learning disability. He did not have the assessment at the time of the December report, but was meeting with the staff in the next few days and would have the assessment at that time. He was able to say that Juliana does have a learning disability and that it relates to memory. She is entitled to additional support at the school to help her with this.
128I am confident from the descriptions given of Ms. Ceho’s involvement in the children’s counselling and their academic efforts that she will support the school’s strategies for addressing Juliana’s special needs. Ms. Spraggett noted in her December report that Ms. Ceho has provided significant support and guidance to Juliana with her homework and academic issues.
129I am not confident that Mr. Ceho or his parents would be as likely to provide Juliana with the support she needs. At the cross-examination of Mr. Ceho’s mother on March 4, 2015, she was asked about the recent diagnosis of Juliana’s learning disability and said (at question 174) that she did not agree with it. When asked why, she replied, “Because the kids are completely okay and everything. Only that’s need little bit time to – and now she just very good student even. Better and better.” She stated that she did not think that Juliana needed the school’s help.
130Ms. Ceho’s lawyer also asked Mr. Ceho about the assessment of Juliana at his cross-examination on March 4, 2015. He noted that Mr. Ceho’s “Response to Identification Placement and Review Committee, IPRC Invitation” had responded, “I don’t agree for my daughter, Juliana Ceho, to be in a special class or education. I would like her to attend regular school like the other kids.” At the cross-examination, he reiterated that he disagreed with the assessment. He stated, “I think she’s just a little bit behind in one subject and that’s – other than that, there’s nothing wrong with the kid.” He then added, “This is the information should not be brought up to my daughter in the school, besides all this stuff and all the issues that she has, attend counselling, attend OCL, and now she’s gotta’ attend with this. We are ruining kids in my opinion.”
f) Plans proposed for the child’s care and upbringing
131As noted above, Mr. Ceho and his parents propose to continue as in the past three years. Ms. Ceho plans to move the children to Guelph but to maintain their involvement with Mr. Ceho and his parents.
g) Permanence and stability of each family unit
132Both family units appear to be stable and permanent.
h) The ability of each person applying to act as a parent
133I find that Mr. Ceho and his parents offer a warm relationship with the children, but are not as capable of recognizing their needs. I find that Ms. Ceho is better equipped to meet the children’s needs, particularly as they concern the children’s counselling and Juliana’s learning issues.
B. Jurisprudence
i) General principles
134“Custody” refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young, “the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health, and well-being of the child.”43
(ii) Three options for custody
135Traditionally, courts have awarded either sole custody or joint custody. The courts have generally declined to award joint custody where the conflict between the parents is so intense that it precludes effective co-operation between them.
136In recent years, the courts have developed a third option, which is referred to as “parallel parenting.” Courts have recognized that where an order for sole custody would result in one parent’s involvement with the child being minimized or eliminated, parallel parenting may be the most appropriate regime, in spite of the conflict existing between the parents.
137There has been a high level of conflict between Mr. and Ms. Ceho. Mr. Ceho has been unwilling to co-parent with Ms. Ceho and his mother’s co-parenting has been fraught with conflict and impaired by the disrespect Mr. Ceho and his parents have for Ms. Ceho. It is not an appropriate situation in which to order joint custody, and Mr. Ceho’s and his parents’ lack of insight into Juliana’s needs make parallel parenting undesirable.
d) Do the rights of the paternal grandmother to custody supersede those of the children’s mother?
138In Rodriguez v. Guignard, in 2013, I reviewed the jurisprudence on this subject at length. I adopt the comments I made in that case for the purpose of this analysis.44
139Mr. Ceho’s parents have played an important role in the children’s lives and in the conflict between Mr. and Ms. Ceho. The Court must therefore consider the impact of any custody and access regime on the children’s relationship with each of their parents, as well as on the children’s relationship with their paternal grandparents. In this analysis, it is Aleksandar’s and Juliana’s best interests, and not their parents’, or grandmother’s, interests that must be given paramount importance. I find, for the reasons stated above, that Ms. Ceho is best able to respond to the children’s needs. I am satisfied that she is more likely to maintain the children’s relationship with Mr. Ceho and his parents than Mr. Ceho and his parents are to maintain the children’s relationship with her. In all the circumstances, Mr. Ceho’s parents’ claim for custody should not stand in the way of an order returning them to their mother’s care.
e) The children’s best interests
140No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence, whether at an interim or a final determination. But the court pays particular attention to:
- the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;45
- the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner;46
- the extent to which the person displaying the objectionable conduct has the ability and the motivation to alter the behaviour; and
- whether the parent is acting responsibly, reasonably and in a child-focused fashion in her own assessment of what is in the child’s best interests.47
141Generally, the status quo will be maintained on an interim custody motion, absent compelling reasons for a change to meet the child’s best interests. This is so whether or not the existing arrangement is officially sanctioned (that is, whether it is de facto or de jure).48
142In the present case, Aleksandar’s and Juliana’s interests are best served by departing from the current status quo. While there still have not been cross-examinations on the parties’ affidavits, the court has had a better opportunity than on the initial return of the motion to review the affidavits and the law that the parties have submitted. I adopt the comments of the court in McEachern v. McEachern in this regard:
Maintaining the status quo may not be justified in every case in the best interests of the child, but I think there should be some compelling evidence to justify a change…49
143In the present case, I find, for the reasons stated above, that there is compelling evidence to justify a change. Aleksandar and Juliana will therefore be returned to their mother’s care.
CONCLUSION AND ORDER
144Based on the foregoing, it is ordered that:
Merima Ceho shall have temporary sole custody of the parties’ children, Aleksandar Milan Ceho, born August 19, 2003; and Juliana Srdjana Ceho, born September 20, 2004.
Access to Milan Ceho and his parents shall be as follows:
(a) The first two weekends of the month from Friday at 5:00 p.m. to Sunday at 7:00 p.m.; and the fourth weekend of the month from Friday at 5:00 p.m. to Sunday at 7:00 p.m. (Milan Ceho or designate to pick up and drop off the children).
(b) Christmas Holidays: To be shared equally. In even years, Aleksandar Ceho and Juliana Ceho to be with Merima Ceho for the first half of the holiday, beginning the last Friday before the Christmas break to the midpoint of the break. In even years on Christmas Day, they will be with Milan Ceho and Zorica Ceho from 1:00 p.m. to 7:00 p.m. In odd years, Aleksandar Ceho and Juliana Ceho to be with Milan Ceho and Zorica Ceho for the first half of the holiday, beginning the last Friday before Christmas break to the midpoint of the break. On Christmas Day, in odd years, Aleksandar Ceho and Juliana Ceho will be with Merima Ceho from 1:00 p.m. to 7:00 p.m.
(c) March Break: To be shared equally. In odd years they will be with Milan Ceho and Zorica Ceho from Friday at 5:00 p.m. until the following Sunday at 6:00 p.m. In even years they will be with Merima Ceho from Friday at 5:00 p.m. until the following Sunday at 6:00 p.m.
(d) Summer Holiday: Equal sharing of the summer vacation. Alternate weeks with Merima Ceho and Milan Ceho and Zorica Ceho. Milan Ceho and Zorica Ceho to provide their weeks of choice to Merima Ceho by April 1st of each year.
(e) Easter Weekend: Equal sharing of this weekend. In even years, Aleksandar Ceho and Juliana Ceho will be with Milan Ceho and Zorica Ceho from Thursday at 5:00 p.m. to Saturday at 6:00 p.m. and with Merima Ceho from Saturday at 6:00 p.m. for the duration of the weekend. In odd years, they will be with Milan Ceho and Zorica Ceho from Saturday at 6:00 p.m. to Monday at 6:00 p.m.
(f) Family Day: In odd years, Aleksandar Ceho and Juliana Ceho will be with Milan Ceho and Zorica Ceho from 10:00 a.m. to 6:00 p.m. In even years, with Merima Ceho.
(g) Victoria Day Long Weekend: In even years, Aleksandar Ceho and Juliana Ceho will be with Milan Ceho and Zorica Ceho from Friday at 6:00 p.m. to Monday at 6:00 p.m. In odd years they will be with Merima Ceho.
(h) Thanksgiving Weekend: In odd years, Aleksandar Ceho and Juliana Ceho will be with Milan Ceho and Zorica Ceho from Friday at 6:00 p.m. to Monday at 6:00 p.m. In even years they will be with Merima Ceho.
(i) Mother’s Day: With Merima Ceho from 10:00 a.m. to 6:00 p.m.
(j) Father’s Day: With Milan Ceho from 10:00 a.m. to 6:00 p.m.
(k) Any other arrangement agreed upon by Merima Ceho and Milan Ceho and Zorica Ceho.
Milan Ceho to attend treatment for addiction to address concerns of substance abuse problems.
Merima Ceho to continue with Dr. Anita Johnson.
Aleksandar Ceho and Juliana Ceho to continue counselling/play therapy with Dr. Gilana.
Zorica Ceho to attend counselling to address residual feelings associated with Merima Ceho.
Communication between the parties by email, text or phone calls. All communication to be brief and child focused.
If the parties are unable to agree on costs, they may submit written arguments, not to exceed four pages, and a Costs Outline, by September 15, 2015.
Price J.
Released: August 28, 2015
Footnotes
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 39.01.
- March v. Belmore, 2012 ONSC 4696, 27 R.F.L. (7th) 412.
- Batsinda v. Batsinda, 2013 ONSC 7869.
- Mayfield v. Mayfield (2001), 2001 ONSC 28213, 18 R.F.L. (5th) 328 at para. 35 (Ont. S.C.).
- Ibid at para. 43.
- Greenough v. Greenough (2003), 2003 ONSC 2127, 46 R.F.L. (5th) 414 at paras. 15-19 (Ont. S.C.).
- MacArthur v. Demers (1998), 1998 ONSC 14932, 166 D.L.R. (4th) 172 at para. 6 (Ont. S.C.).
- LiSanti v. LiSanti (1990), 1990 ONCJ 4229, 24 R.F.L. (3d) 174 (Ont. Prov. Ct.).
- K v. Public Trustee (1985), 63 B.C.L.R. 145, 1985 BCCA 766 at para. 5 (C.A.), per Craig J.A.
- Three Seasons Homes Ltd. v. Faris (2005), 2005 ONCA 41803, 204 O.A.C. 166 at para. 50 (C.A.), per Simmons, J.A.
- Isakhani v. Al-Saffaf (2007), 2007 ONCA 539, 226 O.A.C. 184 at paras. 37-39 (C.A.).
- Alberta Treasury Branches v. Ghermezian, 1999 ABQB 1028 at para. 13, 241 A.R. 107.
- 1632842 Ontario Ltd. v. Great Canadian Gaming Corp., 2008 ONSC 39608 at para. 8 (Ont. S.C.).
- Ibid at para. 10.
- R.L.D. v. M.E.D., [2002] O.J. No. 3201 (S.C.).
- Children’s Law Reform Act, R.S.O. 1990, c. C-12.
- Carter v. Brooks (1990), 1990 ONCA 2623, 2 O.R. (3d) 321, 30 R.F.L. (3d) 53 (C.A.).
- Ibid at page 63 [R.F.L.].
- Papp v. Papp, 1969 ONCA 219, [1970] 1 O.R. 331 (C.A.); Hubert v. Hubert (1976), 1976 ONCA 1893, 28 R.F.L. 273 (Ont. C.A.).
- Serruys v. Serruys (1982), 1982 ONCA 4563, 29 R.F.L. (2d) 215 (Ont. C.A.); Eaton v. Eaton (1987), 1987 BCCA 2950, 11 R.F.L. (3d) 92 (B.C.C.A.); Hurdle v. Hurdle (1991), 1991 ONSC 12850, 31 R.F.L. (3d) 349 (Ont. Gen. Div.), per Granger J.
- Sypher v. Sypher (1986), 1986 ONCA 6337, 2 R.F.L. (3d) 413 (Ont. C.A.).
- Eaton v. Eaton (1987), 1987 BCCA 2950, 11 R.F.L. (3d) 92 at p. 92. (B.C.C.A.).
- Nottingham v. Emond, 1997 ONSC 17034 (Ont. S.C.).
- Dunning v. Dunning, 1986 CarswellOnt 1497 (H.C.), per Thompson D.C.J.
- Cropper v. Cropper (1974), 16 R.F.L. 113 at p. 115 (Ont. C.A.).
- Papp v. Papp, 1969 ONCA 219, [1970] 1 O.R. 331 at pp. 344-345 (C.A.), per Laskin J.A. See also Hartley v. Hilton, 1990 CarswellOnt 1409 (Ont. Dist. Ct.).
- Pakka v. Nygard (2004), 2004 ONSC 5071, 47 R.F.L. (5th) 184 at para. 5 (Ont. S.C.), per Jarvis J.
- Bellerive v. Hammond, 2003 ONCJ 68734 at para. 8 (Ont. C.J.).
- Green v. Cairns, 2004 ONSC 9301 at para. 14 (Ont. S.C.), approved by Tulloch J., as he then was, in Johnson v. McFadyen, 2005 ONSC 8727 at para. 21 (Ont. S.C.).
- Miranda v. Miranda, 2013 ONSC 4704 at paras. 26-27.
- Thom v. Thom, 2014 ONSC 2738 at paras 60-64.
- V.A.W. v. R.C.L., 2004 ONSC 7043, 7 RFL (6th) 444 at paras. 29-31.
- Children's Aid Society of Toronto v. D.-R.(L.), 2007 ONCJ 706.
- Batsinda v. Batsinda, 2013 ONSC 7869.
- Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, s. 24.
- Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3 at pp. 47, 99; Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27, at pp. 67-68.
- CLRA, ss. 20(1), (4)-(5).
- CLRA, ss. 24(1)-(3).
- Young v. Young, at pp. 46, 117-18.
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.
- Young v. Young, at pp. 46, 117-18.
- Wiedrick v. LeMesurier (2006), 2006 ONSC 919, 27 R.F.L. (6th) 312 (Ont. S.C.), per Wood J.
- Young v. Young, at p. 99, per L’Heureux-Dube J. (dissenting in the result).
- Rodriguez v. Guignard, 2013 ONSC 146 at paras. 90-114.
- Greber v. Moskowitz, 1982 ONCJ 74 (Ont. Prov Ct. (Fam. Div.)), per Lalande J.; Tramble v. Hill (1987), 1987 ONSC 1201, 7 R.F.L. (3d) 85 (Ont. U.F.C.), per Van Duzer J.; Milne v. Milne (1985), 1985 BCCA 786, 44 R.F.L. (2d) 241 (B.C.C.A.); Wylde v. Wylde, 1984 ONCJ 91 (Ont. Prov. Ct. (Fam. Div.)), per Fisher J.
- Lusher v. Lusher (1988), 1988 ONCJ 1433, 13 R.F.L. (3d) 201 (Ont. Prov Ct. (Fam. Div.)), per Main J.
- Salter v. Borden (1991), 1991 NSFC 12943, 101 N.S.R. (2d) 171 (Fam. Ct.), per Sparks J.
- Grant v. Turgeon (2000), 2000 ONSC 22565, 5 R.F.L. (5th) 326 at para. 15 (Ont. S.C.), per Mackinnon J.; Dyment v. Dyment, 1969 ONCA 438, [1969] 2 O.R. 748 (C.A.), per Laskin J.A.
- McEachern v. McEachern (1994), 1994 ONSC 7379, 5 R.F.L. (4th) 115 (Ont. Gen. Div.), per Sheppard J., cited with approval in K.A.C. v. P.P., 2007 ONCJ 217 per E.B. Murray J., at para. 48
