COURT FILE AND PARTIES

COURT FILE NO.: FS-14-19554

DATE: 20150828

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Piotr Beyer, Applicant

AND:

Rebecca Palacios, Respondent

BEFORE: Kiteley J.

COUNSEL: Monika Curyk, for the Applicant

Darlene M. Rites, for the Respondent

HEARD: August 25, 2015

ENDORSEMENT

[1] This motion is about where the parties’ 4 year old child should be registered in school for the beginning of the year on September 8, 2015 or whether she should attend school this fall. For reasons that follow, I dismiss the Respondent’s motion for an order for temporary sole custody and I find that it is in the best interests of the child that neither parent have the authority to register her in school and hence she will not attend school in September 2015.

[2] The parties met in 1997. The details of their early relationship are not clear but it is not necessary to grapple with that vagueness. They were cohabiting in 2011 and Evelyn was born August 2, 2011. They separated in July 2014 when the Respondent left the home with the child without telling the Applicant where they were going. The Applicant brought this proceeding.

[3] As a result of an emergency motion brought by the Applicant, Horkins J. made an endorsement dated July 18, 2014 in which she indicated that the information of the Applicant was that the Respondent and the child were living at the Respondent’s mother’s residence. Justice Horkins ordered service of the documents; she asked CAS to inform the court if it had safety concerns regarding the child; she prohibited the Respondent from leaving the GTA with the child; and she adjourned to a case conference on July 25, 2014.

[4] On July 25, 2014, Justice Stevenson made an endorsement in which she indicated that the Respondent had attended and asked for an adjournment because she was scheduled to meet with a lawyer in two weeks. She noted that CAS had not responded and that neither parent wanted the other parent to be alone with the child. She adjourned the case conference to August 15. As of July 25, 2014 the Applicant had not seen the child for over a week. Stevenson J. made an order on consent that the Applicant would see the child twice per week for 3 hours on days agreed between the parties and as agreed with a supervisor (who was known to both of the parents) and otherwise by Brayden Supervision Services or any other supervision service. She included in her endorsement that the requirement of supervision of the Applicant’s access is “on a completely without prejudice basis as no finding has been made as to whether supervision is required”. That order included 3 hours with the child on August 2, her 3rd birthday. Stevenson J. also requested a letter from CAS describing their involvement with the family and whether there were any safety concerns. She added that the Applicant was entitled to telephone the child on a daily basis and that his calls would not be limited at “a few minutes”.

[5] There is no endorsement for August 15. I assume that the case conference was postponed.

[6] At the case conference on November 28, 2014 both parties were represented. In her endorsement, Justice Harvison Young noted that the Respondent did not attend but her counsel provided a letter from her doctor explaining her absence. The case conference was adjourned on consent on the basis that the parties would attend mediation on December 8, 2014; if necessary, the father could bring a motion for access to be heard as early as January 6, 2015; and the case conference would continue on March 2, 2015. She also ordered the Respondent to file her Answer no later than December 31, 2014 and the Reply if any to be served and filed by February 16, 2015. She made an order referring the matter to the Office of the Children’s Lawyer.

[7] The Applicant’s motion was before me on January 6. The Respondent had been served with the motion and affidavit on December 19, 2014. Her counsel asked for an adjournment to January 22, 2015 so that his client could respond. In view of the fact that she had been served more than 2 weeks earlier and that the adjournment was opposed, I granted the adjournment but only to January 15 and I established a timetable for delivery of materials. I reserved costs of the day to the hearing of the motion.

[8] My endorsement on January 15 is as follows:

This is a motion brought by the father for access to his daughter born August 2/11. Mother takes the position that access should be supervised by her. The basis upon which she insists on supervision arises from two circumstances. The first is that the father has taken photos of the child without clothes on. I accept the evidence of the father that he is a photographer and like many parents, he has taken hundreds if not thousands of images of the child in countless circumstances some of which not surprisingly were when the child was not clothed.

The second has to do with what I will refer to as the “erection incident”. I accept the evidence of the father as to the explanation.

Neither of those justify the concern that the mother expresses. Furthermore neither justify her insistence that he would only see the child on her terms which included supervision.

The evidence on behalf of the father also illustrates the conduct of the mother from which the only inference to be drawn is that the mother is deliberately interfering with and undermining the relationship the child has had historically with her father. First, the evidence of the mother in this motion as to the “erection incident” is materially different from the report of the police after she called the police in July 2014. From that I infer that the mother was motivated to exaggerate the incident in the hope that the police would lay a charge of a sexual nature against the father. Second, the father received a telephone call from the mother but instead of the caller speaking, the father overheard the mother speaking to the child and admonishing her for not paying enough attention to her mother while they were visiting the father. The recording that the father justifiably made of the call initiated by the mother is an alarming example of how the mother was undermining the relationship between daughter and father.[^1]

The police investigated the erection incident and concluded that the allegation was unfounded and false. The CAS were called by the father in 2013. They have no concerns about father’s parenting.

At the case conference on November 28, 2014 an order was made appointing the OCL. Both parties have completed intake forms. OCL has not indicated it will accept the referral. I am not prepared to maintain the status quo for the prolonged period of months until the OCL accepts the referral and is ready to report.

I also agree with counsel for father that the access need not be modest in order to re-introduce child to parent. There has been access, albeit in the presence of the respondent. Having said that, I am not persuaded that an immediate introduction of a half-time schedule is in the child’s best interests.

After reading the endorsement, counsel for father asked for costs of $1500 with payments of $100 per month. The mother is legally aided and receiving Ontario works. I agree that there should be a modest costs award given the reasons above and the inferences I have drawn.

Order to go as follows:

(1) Father shall have temporary unsupervised access as follows:

Friday Jan 16/15 at 10:00 a.m. to Sunday Jan 18/15 at 10:00

Friday Jan 23/15 at 10:00 a.m. to Sunday Jan 25/15 at 10:00 a.m.

Thursday Jan 29/15 at 10:00 a.m. to Sunday Feb 1/15 at 10:00 a.m.

Thursday Feb 5/15 at 10:00 a.m. to Sunday February 8/15 at 10:00 a.m.

Thursday Feb 12/15 at 10:00 a.m. to Sunday Feb 15/15 at 5:00 p.m. and on every Thursday to Sunday thereafter until varied by agreement or court order.

(2) Counsel for father may have the order signed and entered without approval by counsel for mother.

(3) At the case conference already scheduled for March 2, 2015 at noon, there will be a discussion about how the schedule is working.

(4) Access shall begin by father picking up the child and end by mother picking up the child at their respective residences, the addresses of which shall be inserted into the order.

(5) Each parent shall be entitled to speak with the child by telephone once per day when the child is with the other parent.

(6) The child may call either parent at any time.

(7) The mother shall pay costs of this motion including the adjournment of January 6, 2015 in the amount of $750.00 payable at the rate of $50 per month commencing March 1, 2015.

[9] The parties and counsel attended a case conference on March 2, 2015. The OCL had accepted the referral but had not completed the investigation. Justice Stevenson noted that the Applicant’s tie sharing is going well” but that the Respondent objected because the schedule meant she could not spend weekend time with the child and her family. Stevenson J. noted that both parties asserted that the other was videotaping the exchanges. She directed a settlement conference be held on April 22 assuming the OCL report would be available in advance and if not, an alternate date should be arranged.

[10] The OCL report is dated May 22, 2015. The Applicant filed a Notice of Dispute. The OCL filed an addendum to the report dated July 16, 2015.

[11] On July 6, 2015 the parties attended for a settlement conference. Justice Chapnik made an endorsement allowing the Respondent to file an Amended Answer and the Applicant a Reply. She directed the production of the CAS files. And she gave leave to the Respondent to bring a motion related to the child’s enrollment in JK for September 2015 and to vary the parenting plan accordingly.

Motion by Respondent

[12] In her motion, the Respondent asks for an order that she have temporary sole custody of the child; an order that the child attend St. Raphael Separate School (for which she has made a tentative registration); an order that the order as to access be modified to provide that the child resides primarily with the Respondent and she would reside with the Applicant every other weekend from Friday at school to Sunday evening and each Tuesday and Thursday from school to 7:00 p.m.; an order that the December school break be split evenly between the parties with the child with the Respondent the first half and with the Applicant the second half and that in any event the child would be with the Respondent from 11:00 a.m. on December 24 to 11 a.m. on December 25 and with the Applicant from 11:00 a.m. on December 25 to 11 a.m. on December 26. She also asks for an order that the child be with the Father from 11 a.m. on December 31 to 11 a.m. on January 1 and with the Respondent from 11:00 a.m. on January 1 to 11:00 a.m. on January 2.

Applicant’s position

[13] The Applicant opposes her motion and takes the position that it is not feasible that the child be registered in JK in the current circumstances. He deposed that he had told the Respondent and the OCL at the meeting in May 2015 that he had registered the child at Norman Cook Jr. Public School in his neighborhood for September 2015 but realizes now that there is no prospect that the parents would agree. He asked that the status quo be maintained until trial or settlement but if the court decides that the child should attend JK, he asks that it be at Norman Cook Jr. PS and he proposed a parenting schedule that would accommodate the transportation issues since he lives in the north end and the Respondent lives in the east end.

Analysis

A. Admissibility issues

[14] At the outset, Ms. Rites and Ms. Curyk raised certain admissibility issues as follows:

(a) Ms. Rites objects to the admissibility of paragraphs 34 and 35 and exhibit F to the affidavit of the Applicant sworn August 17, 2015. The Respondent telephoned the Applicant and inadvertently left a message on his answering machine in which she was speaking to the child in angry tones and was critical of the child and her behaviour in the presence of the father. At those paragraphs the Applicant explains the context and provides a transcript of what she is heard saying. Exhibit F is a digital version of the recording. I do not agree that that is not admissible. The Respondent made the phone call and left a message on his answering machine. The Applicant was justified in keeping the recording that the Respondent’s call generated. It is admissible to show the negative and critical attitude that the Respondent communicates to the child about the Applicant. I referred to it in my January 15 endorsement.

(b) Ms. Curyk objects to Exhibit A to the Respondent’s affidavit sworn August 9 which is a letter dated June 12, 2015 signed by the Women’s Program Counsellor at the Centre for Spanish-Speaking Peoples. I agree that that letter is not admissible because the author provides no information about her educational qualifications for expressing the opinion contained in the letter; and because the opinion she expresses is stated to be based on the information provided by the Respondent. It is hearsay and oath-helping and is not admissible.

(c) Ms. Curyk objects to Exhibits H and I to the Respondent’s affidavit sworn August 9 which is material obtained from two websites: www.schoolgrades.ca and www.scholarhood.ca. The contents are meant to provide information with respect to the quality of the education provided at the two schools in question. Ms. Rites was unable to provide any information as to who was responsible for the websites.

We do see such information in motions for temporary orders. Where there is no objection, the court may receive it subject to a ruling as to weight. That is not the case here. I agree that those Exhibits are not admissible because of the lack of information of provenance and hence reliability.

(d) At the outset of the motion, Ms. Rites filed a reply affidavit of her client sworn August 24, 2015. Ms. Curyk did not object to the court receiving the affidavit but she did object to the admissibility of Exhibit A which is called “A Meta-Perspective on the Evaluation of Full-Day Kindergarten during the First Two Years of Implementation”. The sources of this document are the Ministry of Education of Ontario, McMaster University Offord Centre for Child Studies and Queen’s University Social Program Evaluation Group. I agree that Exhibit A is not admissible because, while it speaks to the benefits of early full-day kindergarten, it does not address the unique situation of this child.

(e) Ms. Curyk objects to the admissibility of the recommendations contained in the OCL report. She points to the evidence of the Applicant that he agrees with some parts of the report and the recommendations and that he has filed a Notice of Dispute. In the report, the author makes a recommendation that the mother should have custody of the child and that the parenting schedule should be shared equally on what is called a 2/2/3 split. I agree that the recommendations are not necessarily admissible in the context of a motion for an order for temporary custody, particularly where the Applicant has filed a Dispute. Since the OCL conducted an investigation as a result of an order of this Court I am obliged to review and consider it but I do not consider the recommendations of the report of the OCL to be determinative of the outcome of this motion, particularly since the Respondent has cherry-picked those on which she relies. For that reason, I do not see the need to analyze the authorities to which counsel referred on the subject of admissibility and I make no formal ruling.

B. Temporary Custody

[15] I agree with Ms. Curyk that since this is a temporary order that has been in place since January 2015, the Respondent must establish that there has been a material change in circumstances in order to justify the making of an order for custody, changing the parenting schedule, and permitting the Respondent to register the child for school in her neighborhood.

[16] I dismiss the motion brought by the Respondent for these reasons.

[17] First, during the last 13 months (which constitutes about ¼ of the child’s life) there has been ongoing conflict and controversy between the parents. As a result, for several weeks in July and early August 2014, the Applicant did not see his then 3 year old daughter and for almost 6 months he saw her infrequently and under supervision because the only way he could maintain his relationship was to acquiesce in the Respondent’s demand for supervision. It was not in the best interests of the child for that to have happened. Since the order dated January 15, 2015, the situation has developed into something far more normal and relaxed and, as noted by Stevenson J. in her March 2 endorsement, the time sharing is going well. This stability is in the best interests of the child. It is imperative that the status quo continue to unfold so that that relationship will evolve in a natural fashion.

[18] Second, the Respondent continues to insist that the “erection episode” occurred and that she is traumatized by it, notwithstanding that the CAS and the police conducted investigations and took no steps and notwithstanding that the OCL did not consider it as a barrier to the father child relationship. The Respondent’s preoccupation with the allegation is such that if the status quo is not maintained, there is a risk that the Respondent will become even more committed to her version of events and the estrangement between the father and the child will resume. That will not be in the best interests of the child.

[19] Third, the issue as to whether the Respondent has sole temporary custody need not be resolved now. The only relevance is the question of registration at school to which I will refer below. It is not necessary that an order be made unless registration has to be resolved.

[20] I am not persuaded that it is in the best interests of the child that an order be made that either child have sole temporary custody. It would legitimize the parenting skills of one parent over the other and demonize one parent over another at a time when the evidence as to the circumstances of the separation remain in conflict; when the status quo has evolved and is working and ought not to be interrupted; and when the Respondent’s preoccupation with the “erection episode” means that the court must be concerned about increasing her authority over the child at this step in the proceeding because, unchecked, the situation could evolve into permanent damage to the father/daughter relationship.

[21] Fourth, it is not mandatory that the child attend JK. As indicated, the Respondent seeks to register the child at her local school. If the child does go to school, the Applicant proposes his local school. There are logistical challenges in both scenarios. The Applicant lives in the north end of the city and the Respondent lives in the east end of the city. She does not have a car. If the child is registered in either neighborhood, the transportation challenges for a 4 year old are not in her best interests. Even accepting that JK generally has positive implications for future learning, on this record, I am not persuaded that any possible positive implications offset the far more likely negative effects if the child is in school in the neighborhood of the mother’s residence and if the parenting schedule is changed to accommodate it.

[22] In Dion v. Glasgow[^2] J. Mackinnon J. dealt with a similar situation. The following is taken from her decision:

10 There is no temporary order or agreement addressing legal custody or decision making for this child. The child has resided primarily with her mother since the parental separation in February 2014. The OCL report is disputed. It does recommend the mother have custody and decision making of the child. Other factual disputes exist between these parents. The father did file material from the Ontario Government outlining the benefits of JK attendance for children in general; nonetheless I have nothing specifically addressing the needs of this child.

11 Given the disputed factual motion record before me, including that the parents do not agree whether their child should be registered for what is non-compulsory school attendance, and the fact that there is no order yet with respect to legal custody or decision making, I have determined not to make an order in this regard. For better or for worse, the child will therefore not attend JK until at earliest the parents agree, or the case proceeds to trial and a final determination as to decision making authority is made.

[23] I agree and endorse that approach.

[24] It is unfortunate that the degree of conflict is so high that each parent has registered the child and each parent has introduced the child to the school s/he proposes. There may be some disappointment on the part of the child that after hearing about two options, neither will materialize. The fact that each parent took that initiative does not mean that the reasons for not making an order permitting one parent or the other to register the child in school are lessened. I am not persuaded that there has been a material change in circumstances since the temporary order was made on January 15, 2015.

C. Variation in parenting schedule

[25] The Respondent ask for a variation in the parenting schedule because the Applicant has all of the weekends and she has none, which means that she and the child do not have the opportunity to visit with her relatives, most of whom work during the week.

[26] Exhibit D to the affidavit of the Applicant sworn August 17 is a copy of a letter dated March 4, 2015 from his lawyer to her then lawyer in which Ms. Curyk indicated her client’s willingness to discuss an occasional adjustment. The Respondent’s lawyer did not reply to that letter.

[27] Ms. Curyk indicated that her client was still willing to discuss an accommodation but since that letter, he had adjusted his work schedule to be available for all of the weekend parenting time and consequently the suggestion in that letter was no longer viable.

[28] I am not persuaded that a material change has occurred and I am not prepared to make a change to the parenting schedule. I am optimistic that the parties will be able to arrive at an accommodation on a temporary basis pending the trial.

D. December 2015

[29] As indicated above, the Respondent has made a proposal with respect to December 24 to 26 and December 31 to January 2. In late 2014, the Applicant did not have the opportunity to share any of those important events with the child and the child did not have the opportunity to share with her father. In future years, the division may be as proposed by the Respondent. However, in the year 2015, the Applicant should have the key interval of December 24-25.

E. Outstanding costs

[30] As indicated in my endorsement dated January 15, 2015, I directed the Respondent to pay costs in the amount of $50.00 per month commencing March 1, 2015 until the total of $750 had been paid.

[31] The Respondent has made no payments. She must comply with that order.

F. Costs of this motion

[32] I doubt that the parties will be able to agree on costs of this motion in which the Applicant was successful. I will establish a timetable below for making written submissions.

G. Next steps

[33] I am not making an order permitting either parent to register the child at school for September 2015. The parents may agree to do so in which case, one of the lawyers may forward a Form 14B consent motion to my attention. I encourage the parties to resume their efforts to resolve matters at Mediate 393.

[34] Aside from these immediate issues, the trial must be scheduled. As indicated below, I will set a date for a Trial Management Conference at which the trial date will be set.

ORDER TO GO AS FOLLOWS:

[35] Paragraph 1 of the notice of motion is dismissed. Neither parent shall have temporary sole custody of the child, Evelyn Anna Bayer, born August 2, 2011.

[36] Paragraph 2 of the notice of motion is dismissed. Neither parent shall register the child for junior kindergarten (or any other level) for the academic year commencing September 2015.

[37] Paragraph 3 of the notice of motion is dismissed. Unless the parties agree otherwise, the parenting schedule established in the order dated January 15, 2015 continues until trial.

[38] With respect to paragraph 4, 5 and 6 of the notice of motion, the following shall occur:

(a) The period Friday December 18, 2015 to and including January 4, 2016 shall be split evenly between the parties;

(b) The child shall be with the Applicant from 11:00 a.m. on December 24, 2015 to 11:00 a.m. on December 25, 2015 and with the Respondent from 11:00 a.m. on December 25, 2015 to 11 a.m. on December 26, 2015;

(c) The child shall be with the Respondent from 11:00 a.m. on December 31, 2015 to 11:00 a.m. on January 1, 2016 and with the Applicant from 11:00 a.m. on January 1 to ll:00 a.m. on January 2, 2016.

[39] If by September 11, 2015 the parties have not agreed as to costs of this motion, then counsel for each party shall make submissions in writing not exceeding 3 pages plus costs outline and offer to settle (if any) on this timetable:

Counsel for the Applicant: by September 18, 2015

Counsel for the Respondent: by September 25, 2015.

[40] Paragraph 7 of the endorsement dated January 15, 2015 is modified with respect to the payment dates as follows. Commencing October 1, 2015, the Respondent shall pay costs in the amount of $750 of the motion heard January 15, 2015 (including the adjournment on January 6, 2015) payable at the rate of $50 per month.

[41] The parties and their counsel shall attend before me on October 30, 2015 at 2:30 for a Trial Management Conference provided that both parties serve and file their briefs and related documents by October 23, 2015 and provided that counsel for the Applicant ensure that it is properly confirmed.

[42] Counsel for the Applicant may take out this order without approval as to form and content by counsel for the Respondent.

Kiteley J.

Date: August 28, 2015

[^1]: As indicated below, the message was recorded on the father’s answering machine.
[^2]: 2015 ONSC 4334