COURT FILE NO.: FS-15- 83370-00

DATE: 2015-09-14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DALE SARGOOD

Applicant

AND:

ROSA SARGOOD

Respondent

BEFORE: Ricchetti, J.

COUNSEL: L. Perelman (agent for P. Viater) for the Applicant (Father)

J-P Ung for the Respondent (Mother)

HEARD: September 8, 2015

ENDORSEMENT

OVERVIEW

[1] The parties were married for just over eight years. They had two children, Kian and Kasen (“Children”). They separated in August 2012. For a number of years the parties were able to deal with their matrimonial issues, most importantly, raising their Children by agreeing on parenting time and making decisions regarding the Children’s lives.

[2] In early 2015 conflict between the parties increased. This continued to a point where parenting time could no longer be agreed upon and these urgent motions had to be brought.

[3] It is unfortunate that judicial intervention is necessary to deal with parenting issues three years after separation but this court is now compelled to make an interim custody and access order for the Children.

THE BACKGROUND

[4] The parties were married on May 22, 2004. The parties moved to Florida for about five years and then returned to Ontario.

[5] The Father is 35 years old. The Mother is 33 years old.

[6] There are two children of the marriage. Kian Sargood was born on October 16, 2006 and Kasen Sargood was born on July 12, 2008.

[7] The parties separated in August 2012.

[8] Both parties are fortunate to have employment which does not have traditional hours of work and are such that both can spend considerable time with the Children.

[9] In October 2012, the Father obtained suitable accommodations and commenced to resume substantial parenting time with the Children. On the record before me, I do not accept the Mother’s statement that up until December 2014 the Father did not have extended parenting time with the Children. I also do not accept that the Mother repeatedly told the Father to “make time to see the children”. These statements by the Mother appear designed to marginalize the Father’s involvement with the Children since separation and to assist her in achieving greater parenting time with and custody of the Children. I am satisfied the Father has had a significant role as care giver for the Children before and after separation.

[10] The parties were able to deal with their matrimonial issues for about 2 ½ years without legal proceedings. However, in March 2015 the Mother commenced a family law proceeding in the Ontario Court of Justice. She sought custody of the Children, support and other relief.

[11] The timing of the increased conflict between the parties appears to stem from the Father moving in with his current partner in January 2015. This is evident from the Mother’s statement that “the children require time to adjust”, to the new relationship, despite the fact the Father had had a serious relationship with his new partner for some time. The Mother also now complains about the drive between Mississauga and the Father’s current residence in Burlington – a complaint which had not been raised as an issue until recently.

[12] In April 2015, the Father commenced a family law proceeding in the Superior Court of Justice, seeking a stay of the Ontario Court of Justice proceeding, various relief and a divorce.

[13] Despite the passage of four months, the Mother has not filed an Answer to the Application in the Superior Court of Justice. No explanation was given for this failure but was likely due to a change in counsel.

[14] On September 4, 2015, a serious dispute arose regarding which parent was to have parenting time with the Children. According to an email by the Father dated August 20, 2015 the Father was to have picked up the Children from their jiu jitsu classes. The Mother did not respond until she sent an email to the Father on September 3, 2015 denying the long-time standing 50/50 parenting time and rejecting the Father’s August 20, 2015 schedule. The Mother sought to impose her own schedule and unless the Father accepted it: “Should I not hear back from you by then, the children will remain with me as I am their primary care giver; subsequently and unfortunately they will miss their advance BJJ classes”.

[15] The matrimonial conflict had come to a head and the Children were the ones caught in the middle.

[16] The Father wrote back re-iterating his position regarding his parenting time. The Mother kept the Children.

[17] The Father did not have parenting time on September 4, 2015 as the Mother did not take the Children to their jiu jitsu classes where the Father was to have picked up the Children. The Father could not find out where the Children were and whether they were “ok”. Despite numerous text messages from the Father seeking to know where the Children were and that they were “ok”, the Mother refused to tell the Father where they were or let the Children speak with the Father. At one point, the Mother told the Father to stop texting her or she would call the police reporting the Father’s “harassment”. Eventually, the Father called both the Peel and Halton Police seeking the whereabouts of the Children and for a welfare check to make sure everything was fine with the Children. The Mother responded the next day by email dated September 5, 2015. Again the Mother was imposing her will on the parenting time the Father was to have and concluded “If I don’t hear from you by tonight, I will have to call for protection for myself and the boys when picking them up on Wednesday”.

[18] An urgent motion was inevitable. The Mother’s counsel threatened to bring her own motion on parenting time if the Father didn’t agree to the Mother’s proposed schedule. The Mother’s actions required some response by the Father to re-instate his parenting time.

[19] On September 6, 2015 the Father brought a motion seeking leave to have the motion heard before a case conference and for specified parenting time according to, what the Father alleges, was the “status quo”. Further the Father wanted the Children to continue with the Children’s Brazilian Jiu Jitsu classes.

[20] On September 7, 2015 the Mother brought a “Counter-Motion” seeking to have the Motion and Counter Motion be heard prior to the case conference. The Mother seeks primary residency of the Children and a specified parenting time schedule for the Father.

[21] The Mother also seeks an order that the police enforce the access schedule. I advised counsel at the motion that I decline to make this order at this time. Such an order should only be made on clear and unequivocal evidence that such an order is necessary and the only means by which this court can enforce its order. Making an order directing police to utilize their resources to deal with such family matters is an exceptional order that should be made only in the clearest of cases where necessary. The evidence at this time falls extremely short in this regard.

LEAVE TO HEAR THIS MOTION BEFORE A CASE CONFERENCE

[22] Both parties seek to have this court deal with the access issue. The Mother adds the issue of “primary residence”. I have no hesitation concluding that unless these issues are dealt with immediately, it will affect the best interests of the Children. Their stability and emotional well-being is at risk.

[23] Leave is hereby granted to hear both motions.

INTERIM CUSTODY

[24] The Mother seeks “primary residence” of the Children. Much of her affidavits deal with why she should have primary residence, why she is the better parent of the two and cares more about the Children and makes a number of accusations against the Father such as being abusive, threatening, controlling and having a lack of interest in the Children. Essentially, the Mother equates “primary residence” with custody of the Children.

[25] On the record before me, I do not accept the Mother’s allegations:

a) There is no independent or confirmatory evidence of the Mother’s allegations. They are simply bald, self-serving allegations:

i. The Mother went to the Salvation Army assistance program in 2012 before the separation. The Mother spoke with a Salvation Army Transitional Support Worker and reported that the Father had “assaulted her and left the home” which the Mother described as being “grabbed” and “put out the door”. The Mother said that she told the police she had decided not to file charges against the Father. The Mother does not include this police report in her materials despite having included two other police reports. In fact, the police reports produced by the Mother state that there were no police reports prior to the August 2012 report described below. Aside from the Mother’s statements as to what happened, there is nothing further relating to any physical abuse or threatening attitude by the Father;

ii. In August 2012, shortly after the separation, the Mother called the Police. The Police attended and concluded it was a verbal argument. The police took no further steps;

iii. In December 2014 the Mother again called the Police. Again the Police found that it was a verbal argument and took no further steps; and

iv. the Mother reported “child protection” issues to the Children’s Aid Society (CAS) in April 2015. Coincidently, the timing was when the conflict between the parties had escalated after the Father had moved in with his new partner. By May 11, 2015 the CAS had closed its file. The CAS appears to have had no child protection issues or the file would not have been closed. What and the extent of their investigation is not known. What is troubling is that it does appear the Children are being exposed to the matrimonial conflict between the parties.

b) The Mother’s unilateral decision to withhold the Children from the Father’s parenting time and not respond to the Father’s queries above the whereabouts and condition of the Children suggests an animosity and attitude by the Mother that is not in the best interests of the Children;

c) The Mother’s “demand” that the Father pay her a lump sum payment ($20,000) and periodic payment ($2,100 per month) while coincidentally depriving the Father parenting time with, or even knowledge of, the Children’s whereabouts, is also very disturbing and demonstrates that the Mother does not put the Children’s best interests first and appears to puts financial interests first. As part of this “demand” the Mother only proposed to give the Father one week and a weekend per month parenting time. This proposed parenting time would provide parenting time for the Father below 40 per cent which would result in full child support payable by the Father whereas a 50/50 parenting schedule as suggested by the Father would likely result in a “set-off” child support obligation. I recognize that the Mother now proposes greater parenting time for the Father but still approximately less than 40 per cent depending on how the time is counted. On the other hand, the Father’s evidence that he has solely paid for the Children’s private schooling and extra-curricular activities (approximately $17,000 per year), is evidence that he has not put his financial interests ahead of the Children;

d) The Mother’s written warning to the Father that if she did not hear from him, she would call for “protection” is particularly troubling and strongly indicative of an unhealthy attitude towards the Father;

e) If the Mother’s serious allegations regarding the Father had any merit, there is no reason why the Mother would agree that the Father have significant parenting time she agreed to in the past and the amount of parenting time she now proposes; and

f) The Mother’s allegation that the parties are not “able to communicated effectively”, is inconsistent with the history of being able to jointly raise the Children for three years. Similarly and for the same reasons, the Mother’s suggestion there is a power imbalance in favour of the Father because of his alleged threats or intimidation is not accepted.

[26] I conclude that the Mother’s allegations at this time are designed and raised to achieve a particular end – to give her a greater role in the Children’s lives and obtain child support.

[27] The Father submits that the Mother suffers from depression and has at times been suicidal. I do not accept this. Again, why would the Father agree to a 50/50 division of parenting time if the Mother was truly suffering from depression which at times resulted in her being suicidal? There is no support for these bald statements. There is no detail regarding these allegations.

[28] As for the Father’s allegations that the Mother is alienating the Children, there is no direct evidence of this but certain of the Mother’s actions are questionable and appear to attempt to gain an advantage in this matrimonial proceeding.

[29] In my view, given the Mother’s position that she has primary residence with the Children which allow her to make decisions regarding the Children, I will have to make an interim order for custody of the Children.

[30] Given the history, I am satisfied that a joint interim custody order is in the best interests of the Children. It will maintain both parties’ involvement in the life decisions for the Children and is consistent with the past decision making by these parties for the Children.

[31] As in many matrimonial proceedings, both parties make negative and disparaging comments regarding the other party without any evidence to support those allegations with the hope of achieving some advantage in the proceeding. Such unsubstantiated allegations are not helpful. In fact, they reflect negatively on the party making the bald “allegations” when, as in this case, the allegations are inconsistent with the position put forward by the party. This becomes particularly problematic in motions for interim relief where the allegations in the affidavits are often conflicting and not challenged through cross-examination.

PARENTING TIME

[32] The Father puts much emphasis on the status quo. The Mother states there is no status quo. Essentially, the parties disagree on what the parenting schedule has been for approximately three years.

[33] The historical parenting schedule relied on the cooperation of the parties and accommodations for their respective work schedules. This has been admirable and to the benefit of the Children. However, this level of cooperation has come to an end (much to the detriment of the Children) and so it becomes necessary that a fixed schedule be imposed by this court, with the hope that the parties will somehow return to the previous level of cooperation to accommodate each other’s schedule and promote healthy parent-child relationships with the other party. If not, they will have to abide by the Court’s interim order strictly or face the consequences.

[34] The Father submits that the status quo is a 50/50 division of parenting time and has been for the past three years. The Father seeks to continue this 50/50 division of parenting time.

[35] The Mother submits that there was greater parenting time by the Father for summer school holidays but not during the school year. The Mother alleges the Children were to be primarily residing with her while the Father had approximately ten days per month access times. The Mother is now proposing a four week rotating schedule where the Mother has parenting time for 17 nights and the Father has 12 nights.

[36] I do not accept the Mother’s repeated statement that the Children have always had their primary residence with her. The evidence is clear that the Children have enjoyed a healthy and significant amount of parenting time with each of the parents over the past three years.

[37] I do not accept the Mother’s suggestion that the Children are tired after parenting time with the Father, in need of time to adjust to moving in with the Father’s partner and more rested and relaxed when with the Mother. These are just self-serving bald statements and disputed by the Father. I also question why these matters only became issues at this time.

[38] I accept that there has been roughly an equal or substantially equal division of parenting time for a number of years since shortly after separation. The work schedule and cooperation of the parties accounts for any difference. The Father’s affidavit which states that between February 26, 2015 and August 30, 2015 he had parenting time with the Children for 100 days is supported by the correspondence between the parties. This is, out of the 185 days between these two dates, close to a 50/50 division of parenting time.

[39] Equally important, I am not persuaded that it is in the Children’s best interests that there be an unequal division of parenting time. Both parents have time to be with the Children. Both parents care and want the Children with them for as much time as possible. Both parents, when not focused on issues with the other parent, appear to put the Children’s interests first and have done so in such matters as selecting schooling and extracurricular activities. I am satisfied that equal parenting time is in the Children’s best interests.

CONCLUSION

[40] The following order shall issue:

a) The Mother shall file an Answer within 30 days of the release of this endorsement;

b) Neither party shall have any discussion or communication with the Children regarding these proceedings or make any disparaging or negative comments regarding the other parent.

c) As both parties seek such an order, the Children shall not be removed from the Province of Ontario without the written consent of the parties or a written order of this court;

d) The parties shall have interim joint custody of the Children;

e) The parties interim parenting schedule with the Children is as follows:

i. The Father shall have parenting time effective immediately at the end of school today (the date these reasons are released) until the end of school on Friday, September 25, 2015. The Mother shall pick the Children up at school on the end of day Friday, September 25, 2015. I do this to effectively equal the parenting time over the past few weeks during this dispute.

ii. Thereafter, the parties shall have parenting time with the Children on a week-about basis from Fridays, with pick up (by the party to next have parenting time) at the end of the school day or, if there is no school on that Friday, at 4 p.m. at the home where the Children are then residing. The party who has parenting time with the Children shall ensure the Children go with the other parent save an except for any medical emergency;

iii. Both parties shall, unless there is a medical reason supported by a written note of a medical doctor, continue to take the Children to their Brazilian Jiu Jitsu classes;

iv. The parties may vary this parenting time schedule but may only do so with the written consent of the other party which consent may be electronically given including by email or text message. Otherwise, this interim parenting schedule is to be complied with until further order of this court; and

v. During the time that a party has parenting time with the Children, the Children will be permitted telephone access with the other party as and when the Children desire. In addition, the party who has parenting time with the Children shall arrange for the Children to make a telephone call to the other party on Sunday evenings and Wednesday evenings at 7 pm.

f) In the event there is a breach of this order, either party may bring this matter back before me if available or before another Justice of the Superior Court; and

g) A Case Conference is to be scheduled immediately through the Trial Coordinator’s Office for the first date available.

COSTS

[41] The parties shall make written submissions for the costs of these motions.

[42] Either party seeking costs shall make and serve written submissions within 2 weeks of today’s date. The written submissions are limited to 3 pages of submissions, plus a Cost Outline and any authorities.

[43] Reply submissions shall be served within one week thereafter with the same limitations.

[44] There will be no reply submissions without leave.

Ricchetti J.

Date: September 14, 2015