NEWMARKET

COURT FILE NO.: FC-15-48983-00

DATE: 20150902

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Collinson
Applicant

– and –

Kathleen Newhook
Respondent

Elliot Starer, Counsel for the Applicant

Jasmeet Dara, Counsel for the Respondent

HEARD: August 31, 2015

Ruling

jarvis j.:

[1] This Ruling deals with two emergency motions brought by spousal parties prior to a Case Conference. The principal issues involve a five year old daughter and exclusive possession of the parties’ matrimonial home.

[2] On August 17, 2015, the husband obtained an Order from McCarthy J. for temporary care of the parties’ daughter, Jazmin, born August 6, 2010, for police assistance in enforcing the Order, and restraining the wife from attending the matrimonial home. The Order was made returnable August 24, 2015. On that date Kaufman J. set aside the restraining Order and returned the child to the wife’s care. As the wife had just retained counsel (the husband represented himself) and she had brought a motion for, among other things, custody of the child and exclusive possession of the matrimonial home, all matters were adjourned to August 31, 2015 to permit the husband to deliver responding material.

[3] The husband retained counsel.

[4] In his Endorsement made August 24, 2015 Kaufman J. noted that the York Region Children’s Aid Society had opened a file and, when the motions were argued, both parties confirmed that they had been interviewed by a Society representative, and that an investigation was underway. The Society had become involved as a result of a police attendance at the matrimonial home when the parties separated, and it was what the husband reported had happened on that occasion that led to the Order of McCarthy J.

[5] The husband is a unionized electrician, between job assignments. The wife is disabled. Although no Financial Statements had been filed, neither disputed in argument that their financial circumstances were very modest. While the husband had friends and relations in proximity to the matrimonial home, the wife contended she had none. When the Order of McCarthy J. was made, the wife was obliged to reside with her mother in Brampton, now there with the child. Both parties have made allegations of abuse by the other. No criminal charges are pending. Given the early stages of these proceedings, neither side has delivered pleadings in accordance with the Rules, save and except for their emergency motion material.

[6] I am not prepared, based on the evidence, to make a temporary Order in favour of either party for either temporary care and custody of Jazmin nor exclusive possession of the matrimonial home. Defaulting to a situation where both parties would continue residing in the matrimonial home is no better, and probably worse, an option. In my view, and pending the outcome of the Society investigation and a properly constituted Case Conference (after delivery of pleadings) the least disruptive option is a week about “nesting” one where Jazmin will continue to live in the matrimonial home and enjoy equal time with both of her parents.

[7] Both parties confirm through counsel that they were prepared to participate in mediation and so a referral to Blue Hills has been made.

[8] Accordingly, an Order shall issue, as follows:

(1) There shall be a “week about” rotating parenting schedule. The parent with whom Jazmin will be residing shall have temporary exclusive possession of the matrimonial home for his or her week;

(2) Jazmin shall reside with her father commencing Saturday September 5, 2015 at 12:00 noon until the following Saturday September 12, 2015 at 12:00 noon when Jazmin shall reside with her mother at the matrimonial home. This arrangement, alternating weekly, shall apply until the earlier of a Case Conference or a motion based on the outcome of the Society investigation. The mother shall deliver the child to the father on September 5, 2015 at the matrimonial home no later than the appointed time;

(3) The parent with whom Jazmin is not then residing shall be entitled to telephone contact with her at 7:00 p.m. on Sunday, Tuesday and Thursday evenings, and shall initiate the call. The resident parent shall ensure that Jazmin is present and available for the call;

(4) Leave is granted to either party to move before the Case Conference for a further Order based on changed circumstances arising from the Society investigation;

(5) The husband is granted leave to deliver an amended Application in accordance with the Rules by September 16, 2015;

(6) The wife shall deliver her Answer and any claim in accordance with the Rules after service upon her of the husband’s amended Application;

(7) Both parties shall comply with the Family Law Rules dealing with delivery of Financial Statements and prescribed disclosure;

(8) The York Regional Police are requested to expedite delivery to the husband (which shall be forthwith shared with the wife) of the Incident Reports dated May 29, 2015 (#15-147938) and August 14, 2015 (#15-227308);

(9) A Case Conference shall be held on December 11, 2015 (9:30 a.m.). Prior to the Case Conference the parties shall have attended Blue Hills for mediation purposes.

[9] As there is insufficient financial information before the court, no Order shall be made at this time dealing with child and/or spousal support, or payment of expenses for the matrimonial home. It is expected that the financial status quo as now exists shall apply but if the parties are unable to reach a consensus then either may bring a motion on seven days’ notice to the other side for a temporary Order prior to the scheduled Case Conference.

[10] Costs of today are reserved.

Justice D.A. Jarvis

Released: September 2, 2015