COURT FILE AND PARTIES

COURT FILE NO.: FS-13-389078

DATE: 20151020

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Graham Bissell Verdon, Applicant

AND:

Lisa Sophia Verdon, Respondent

BEFORE: Harvison Young J.

COUNSEL: Anthony Macri, for the Applicant

Christine Vanderschoot, for the Respondent

HEARD: October 20, 2015

ENDORSEMENT

[1] This motion and cross-motion arise within the context of what has become a high conflict custody/access matter. To a significant extent, each motion is a mirror of the other.

[2] The applicant, Graham Verdon, seeks to vary a temporary joint custody order dated July 2, 2013 to award him sole custody of the two children of the marriage. In the alternative, he seeks an order that he be given the authority to make major decisions with respect to the children, including those relating to education, health and residence (after consulting with the mother). In the further alternative, he seeks an order for access which provides for equal time with both parents. He also seeks an order that the children not reside outside a 5 km radius of the Kew Beach Public School. This is the neighborhood in which both parties currently live.

[3] By way of cross-motion, the respondent wife, Lisa Verdon, seeks an order for sole custody of the children. In the alternative, she seeks an order giving her the final decision making authority with respect to the children. She seeks an order that would provide the father with access during the school year on the basis of every second weekend (Friday to Sunday evening) and a mid-week after school visit but no overnight during the week. She also seeks an order that the parties communicate exclusively through Our Family Wizard. In the course of the motion, I was advised that the parties agree on this point. Accordingly, an order will issue that all communication between the parties about the children shall be conducted through “Our Family Wizard”.

[4] Mr. Verdon states that he has brought the motion because of Ms. Verdon’s unilateral reduction of school-year access so that he no longer has the children overnight during the week. His position is that the mother is attempting to reduce the time that the children spend of them in order to pave the way for a motion to move to the Collingwood, Ontario area on the basis that it will not involve a significant change to the status quo. Ms. Verdon has re-partnered with someone who is a firefighter who currently lives in Kansas and is seeking landed immigrant status so that he can move here. According to Ms. Verdon, it will be easier for him to find employment in the Collingwood/Blue Mountain area than in Toronto. Mr Verdon fears that Ms. Verdon is systematically trying to reduce his mid-week access and adjust the status quo so that it would be easier for her succeed in an attempt to move the children from the Beach area where the parties have all lived and where the children currently attend school.

[5] Ms. Verdon submits that her wish to eliminate the mid-week access is based entirely on the best interests of the children. Her view is that the mid-week overnight access during the school year is disruptive and stressful for these children. In particular, she submits that Ella, who is five, is demonstrating regressive behaviour which she attributes to the lack of stability of routine. She insists that she is willing to make up time in other ways, such as more time in the summer or longer mid-week visits (other than overnight), but submits that the change of residence is very stressful for Ella in particular. Mr. Verdon is adamantly of the view that the children are well adjusted and denies the mother’s claims that the mid-week sleepovers are stressful for them.

Background

[6] The parties separated in June, 2013 after a nine year marriage although they had lived together for about a year prior to their marriage. The children of the marriage, Noah and Ella, are 7 and 5 respectively. The joint custody order was initially made by Belleghem J. when Mr. Verdon brought an urgent motion early in July 2013 to stop the mother from travelling to Kansas (where she grew up, has family, and where her new partner continues to live). On the return of the motion, Barnes J. allowed the travel and the joint custody order was confirmed.

[7] The access provision in the Barnes order read as follows:

The children shall reside with the Respondent mother. The Respondent mother’s home shall be the children’s primary residence. The Applicant father shall have access to the children every weekend from Friday at 6.00 p.m. to Sunday at 6.00 p. m. commencing on July 27, 2013.

[8] It is common ground that the parties have, on consent, varied this provision as a matter of practice, although there has been no subsequent formal agreement.

[9] From the summer of 2013 to the summer of 2014, the children spent every Wednesday night and alternate weekends with Mr. Verdon. Beginning on June 30, 2014, Mr. Verdon’s access to the children increased to both Wednesday and Thursday nights each week, in addition to alternate weekends. During the school year beginning in September 2014, the parties agreed to continue this arrangement. Mr. Verdon picked up the children after school on Wednesdays and Thursdays at 5:00 pm and he brought them to school the next morning. These access arrangements stayed in place until September 24, 2015 when Ms. Verdon terminated the midweek overnight visits through her counsel.

Discussion of Issues

[10] With respect to interim custody orders, the status quo will generally be maintained on an interim custody motion. In Wozniak v. Brunton, 2005 18315 (ON SC), [2005] O.J. No. 2135 (Ont. S.C.) at paras. 12-14, Justice Brown wrote:

Generally speaking, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the child’s best interests. This is so, whether the existing arrangement is de facto or de jure: See Grant v. Turgeon, 2000 22565 (ON SC), [2000] O.J. No. 970 (Ont. S.C.J.). In the absence of material evidence that the best interests of the child demands an immediate change, it is not in the interests of children to be tossed back and forth pending final disposition of the custody/access issues. See Niel v. Niel (1976), 1976 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.). Preserving the status quo is a more important consideration in applications for temporary custody than at trial. See Papp v. Papp (1969), 1969 219 (ON CA), [1970] 1 O.R. 331 (Ont. C.A.).

[11] It is clear that, on an interim motion to vary custody or access, courts place a heavy weight on the status quo: see Abrego v. Moniz, 2006 ONCJ 500, [2006] OJ. No. 5167 at para. 12.

[12] Mr. Macri for the applicant father submits that the unilateral termination of the weekday access constitutes a material change that justifies a change in custody. Ms. Vanderschoot did not address the material change point directly but submits that the inability of the parties to cooperate renders a joint custody order unworkable.

Custody

[13] Both parents seek an order varying the temporary joint custody order to sole custody. I would not make such an order on this motion. There is a joint custody order in place. While the mother submits that it is unworkable because of the differences between the parents and their difficulties communicating, the status quo at this stage clearly is joint custody as reflected by the order that is in place.

[14] Ms. Verdon also submits that the level of conflict demonstrates an inability to communicate that renders joint custody completely impracticable. It is certainly true that the record shows significant differences between the parties about various issues such as what the children should be permitted or encouraged to eat. Somewhat ironically, however, the record also shows that up until this past summer, they were able to cooperate enough that they modified the access arrangements repeatedly between themselves. The access ordered by Barnes J. in July 2013 has evolved, though never by formal written agreement or court order. This suggests an ability on the part of both parties to communicate to the extent of revising access where appropriate.

[15] Given the differences between the parties on whether or to what extent joint custody can work, this is a triable issue and not one that should be changed on a motion such as this. The absence of independent evidence before the court which addresses the best interests of the children as far as custody and access is concerned is an additional serious obstacle to such an order at this stage of the proceedings.

[16] Mr Macri for the father submits that the mother’s unilateral action terminating the weekday access is a material change that justifies a custody order in his favour in that it shows that the mother is not supporting his role as a parent.

[17] There is no need for a sole custody order at this stage in favour of either parent. Particular difficulties with decision making as asserted by the mother can be addressed in themselves and I note that it does not follow that the parent with sole custody will have exclusive decision-making authority with respect to all aspects of the lives of the children. Moreover, the circumstances and evidence that bear on the question of whether a sole custody order would be appropriate and if so which parent should have it is highly contested and thus is a triable issue.

[18] I also note that courts exercise significant restraint with respect to making custody orders on interim motions in cases such as these where there are two involved parents to whom the children are attached: see Wozniak v. Brunton, Abrego v. Moniz, MacPhee v. Thistle. An interim order may affect the status quo. This is especially true in a case such as this where there is a temporary joint custody order in place and both parents are seeking orders for sole custody.

[19] Finally, the evidentiary record for the motions seeking sole reveals two inconsistent versions in relation to most of the facts that are relevant to an order for custody. Making determinations as to what is in the best interests of the children can be difficult after a full trial with viva voce evidence, cross examination and independent expert assessment as to the best interests of the children. Here, there are very contradictory versions of how the children are doing, why, and what is in their best interests, and the only evidence before the court is the untested affidavit evidence of the two parents. (The mother also seeks to rely on a letter written by Ella’s pediatrician which I will discuss below). In short, there is no compelling evidence that the best interests of these children require that the joint custody order be varied. I see no basis for doing so on this motion.

Access

[20] With respect to both custody and access, it is clear that the courts are reluctant to vary the status quo unless there are compelling circumstances. This is true whether the existing arrangement is de jure or de facto. As J.A. Maresca J. states in Abrego v. Moniz, 2006 ONCJ 500, [2006] OJ. No. 5167 at para. 12:

…generally speaking, the status quo should be maintained pending trial. See Sypher v. Sypher, 1986 6337 (ON CA), 2 R.F.L. (3d) 413, [1986] O.J. No. 536, 1986 CarswellOnt 282 (Ont. C.A.). Where, however, the best interests of the child require a change, the court may disrupt the status quo. See McGuire v. McGuire, 39 A.C.W.S. (2d) 412, [1986] W.D.F.L. 2025, [1986] O.J. No. 2021, 1986 CarswellOnt 1636 (Ont. Dist. Ct.); 1986 CarswellOnt 2602 (Ont. Dist. Ct.).

[21] In MacPhee v. Thistle, 2015 ONSC 4803, [2015] W.D.F.L. 4979, at para. 13, Shelston J. writes:

The courts have held that the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the child's best interests. That is so, when the existing arrangement is a de facto or de jure. See McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp (1969), 1969 219 (ON CA), [1970] 1 O.R. 331 (Ont. C.A.); and Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.)

[22] Thus, the two questions to be addressed are what the status quo is with respect to access and whether there are compelling reasons to change it on this interim motion.

The Status Quo

[23] The parties do agree that they had varied the interim access order of Barnes J. on a few occasions. In the early summer of 2014, the parties attended mediation. A Memorandum of Understanding (“MOU”) was prepared but not signed. There is no dispute, however, that as of the summer of 2013, a weekday overnight access visit commenced (Wednesday). From the summer of 2014 the children began spending both Wednesday and Thursday overnights with their father in addition to three nights on alternate weekends. This continued until September 23, 2015.

[24] Ms. Verdon stated that the overnight access was not intended to continue during the school year. She stated that she had agreed to this only for health reasons (as a result of which she needed time without the demands of the children) and that she terminated this mid-week access because it is disruptive for the children and particularly Ella who she says has been showing regressive behaviour.

[25] In oral argument, Ms Vanderschoot on behalf of Ms. Verdon also submitted that the access had increased really only because Ms. Verdon had “capitulated” because of an inherent power imbalance that has been, in effect, a continuation of that imbalance and of the abusive relationship that existed during the marriage in which she achieved peace by giving in. I find this to be a self-serving submission that does not advance the case. Ms. Verdon is clearly a devoted and caring mother, a fact that is readily acknowledged by Mr. Verdon. I do not believe that she would have agreed to access arrangements that she really believed at the time were not in the interests of her children because she felt pressured into it by Mr. Verdon.

[26] For his part, Mr. Verdon states that he and Ms. Verdon cooperated very well with respect to the children and consensually modified the access schedule through 2014. It was not until January 2015 that tensions increased. It was at that point that Ms. Verdon advised him that she was hoping to relocate to Blue Mountain with the children. He states that he did not know of any health reasons for the access increases until sometime shortly after a case conference held before Spies J. on July 8, 2015 on the subject of relocation. He states that this was never, to his knowledge, a basis for the increased access to which they had agreed from summer 2013 until September 2015.

[27] Mr. Verdon denies witnessing regressive behavior on Ella’s part and asserts that Ms. Verdon is attempting to redefine the status quo in the hopes of being able to move out of the GTA to the Collingwood area if and when her new partner is able to relocate to Canada.

[28] I find that the status quo has, until recently, been the arrangement that the children spent 2 weekday overnights with their father as well as every second weekend. For whatever reason, that arrangement had been in place from the summer of 2014 until September 23, 2105.

[29] The fact that there is no court order reflecting such an access schedule is, in my view, of no moment because it is clear what the de facto arrangement has been and that it was in place since the summer of 2014, ending only when Ms. Verdon unilaterally terminated it.

[30] The interim joint custody order by Barnes J. did not provide for any weekday overnight access. It provided for access every weekend from Friday evening until Sunday evening in the presence of either maternal or paternal grandparents. However, from the summer of 2013 until the summer of 2014 the children spent every Wednesday overnight as well as alternating weekends with their father, from which point they spent every Wednesday and Thursday overnight as well as alternating weekends.

[31] The fact that the evidence is inconsistent as to how or why these arrangements came to be in place does not change the fact that this was the arrangement and that it was the status quo until September 23, 2015.

[32] One of the issues in dispute raised in the course of argument was the relevance of the MOU that had been prepared following mediation early in the summer of 2013 but which had never been signed. In my view, this MOU has no effect on these proceedings, although it does corroborate the parties’ evidence that as of summer of 2013 the access schedule was changed to include a Wednesday night overnight access visit. This is not in dispute in any event. None of the other provisions may be relied on in this motion. In particular, the fact that it contained a provision that the parties would review weekday access in August 2014 is irrelevant to this motion.

Are there compelling circumstances that warrant changing the status quo?

[33] As I have noted above, Ms. Verdon expresses deep concern over regressive behaviour on the part of Ella and submits that the midweek access should be eliminated during the school year for this reason.

[34] Mr. Verdon insists that he finds the children to be happy and well adjusted. Ms. Verdon indicates in her affidavit in para. 69 that weeknight sleepovers are disruptive for the children. Mr. Verdon submits that the children are used to sleeping in their bedrooms at his home during the week and that, conversely, Ms. Verdon’s proposal of returning the children to their mother right before bedtime at 8pm on Wednesdays and Thursdays would be more of a disruption to them.

[35] Furthermore, Ms. Verdon submits that during child exchanges, Mr. Verdon has a tendency to raise his voice and make demeaning comments in front of the children, which is detrimental to them. Mr. Verdon suggests that the access exchanges in public places such as in Ms. Verdon’s lobby, and picking up the children from school, reduce the conflict between the parties. Ms. Verdon questions some of Mr. Verdon’s parenting practices, for example by suggesting that when they are with their father, the children eat fast food, are rarely bathed, and bedtimes are inconsistent. Mr. Verdon insists that he ensures that the children are properly fed and clean.

[36] Ms. Vanderschoot submitted that the court can and should make credibility findings on this record. She points to emails sent by Mr. Verdon, such as one sent on September 10, 2015, “I guess I can see your concern, given the sick people in your past with severe boundary issues”, and “[t[his is pretty sad and desperate”. In another email sent on September 19, 2015, Mr. Verdon wrote, “I’ll make you a deal: you cop to 10 lies you’ve told through this process and I’ll send back another 15.” While I agree that these emails were ill-advised and improper in a number of respects, I do not think that they are of much assistance in addressing the question of the best interests of these children for the purposes of this motion.

[37] Ms. Verdon’s evidence is somewhat self-serving, particularly when it comes on the heels of her (candidly acknowledged) hope of relocating outside of the GTA with the children if and when her partner comes to Canada and finds employment there. Similarly, Mr. Verdon’s insistence that the children are entirely well adjusted and that there is no problem at all is self-serving in that it supports his hope that the children will continue to live in the same neighborhood that he lives in. None of the evidence has been tested by cross examination. More importantly in my view, there is no independent evidence of the best interests of these children and, in particular, of the connection, if any, of any regressive behaviour which the mother asserts on the part of Ella, and the midweek overnight access.

[38] Ms. Verdon sought to introduce a letter written by the family pediatrician Dr. Danayan at the hearing that was vigorously opposed by Mr. Macri. The mother relies on this letter in support of her submission that she should have sole custody, but particularly that there should be no mid-week overnight access. Although Mr. Macri initially submitted that the letter should not be admitted at all, his position shifted such that he argued that the contents of the letter support his client.

[39] The letter does not assist the mother in any event. The central paragraphs state as follows:

I recently became aware that there has been some regression in Ella’s behaviour, particularly in the areas of eating and sleeping where she has reverted to wanting to being fed by her mother, requests to breastfeed, and sleeps most nights in her bed. Ella confirmed this story today. She seems more clingy and emotional. Her mother reports a tumultuous relationship with her ex-husband, Graham Verdon and cites this being a potential cause for Ella’s regression and requests advice on seeking counselling for both of her children.

In my experience, conflict often triggers behavioural, emotional, and physical problems in children. Thus far, in my interaction with Ella and Noah, I have not cited any significant concerns. However, Lisa’s report suggests emotional regression in Ella and her need for a supportive, safe, and consistent environment. I feel it is critical to minimize conflict between the children’s biological parents as this is often the source of a child’s insecurity and fear. An amicable relationship where their children’s wellness is the focus is key to helping children cope with transitions and a complex family situation. Further, a consistent daily routine helps foster healthy child development including adequate sleep, nutrition, learning and play in their daily lives.

Often when there is high conflict amongst parents children may regress and develop emotional or social difficulties. Consideration of early intervention with a family counsellor and/or a child psychiatrist is often helpful for my patients to provide support for children, guidance for parents, and improve communication within the family. I would only proceed with a referral if both Graham and Lisa make this request.

[40] There is nothing in the letter that refers to the issue of weekday overnight access. What it does underline is that conflict is damaging for children. There is nothing that establishes any link between any of the orders sought by these parents and the conflict between these parents. There is nothing that establishes or supports a link between midweek overnight access and Ella’s regressive behaviour.

[41] In essence, it is clear that Ms. Verdon believes that the children and Ella in particular require the stability of being in their own primary residence during the week and that a mid-week move during the school year is destabilizing. The statement from Dr. Danayan’s letter, “a consistent daily routine helps foster healthy child development…” is not helpful because the mid-week overnights with Mr. Verdon have been a consistent part of their routine for some time. The consistent routine has included midweek overnights (until a few weeks ago). Moreover, read in context, Dr. Danayan emphasizes the role of parental conflict. It is by no means obvious how or why the elimination of midweek overnight visits would result in itself in the exposure of these children to less conflict.

[42] In short, the question of whether or to what extent the mid-week overnight access works and of what the connection is, if any, with any regressive behaviour demonstrated by Ella, is one which is left entirely open on the record before this court. This is a triable issue and not one that can or should be resolved on such a record on a motion. I am not satisfied that the mother has shown compelling reasons that justify a change in the status quo.

Other issues

Travel

[43] The mother seeks an order that she be permitted to travel to DisneyWorld with the children without the father’s consent but after providing him with a full itinerary. On consent, this order will issue.

My Family Wizard

[44] The parties also advised during the hearing that they agree that all communications about the children should be conducted using My Family Wizard, and an order will issue on consent accordingly.

[45] In conclusion, the existing interim joint custody order will remain in place. The access order of Barnes J. dated July 2, 2013 is varied to reflect the access arrangement that had been in place pursuant to the agreement of the parties from the summer of 2014 until September 23, 2015 according to which Mr. Verdon picks the children up at 5.00 on Wednesdays and Thursdays and takes them to school the next morning, and also has the children for alternate weekends on the schedule that the parties were following before September 23, 2015 of this year.

[46] Orders are to issue accordingly. If the parties are unable to agree as to the costs of this motion, they may file brief submissions (along with their bills of costs) to the court within 30 days on a schedule to be agreed between themselves.

Harvison Young J.

Date: October 20, 2015