CITATION: Haneca v. Haneca, 2015 ONSC 7433
COURT FILE NO.: FS-15-0202
DATE: 2015-11-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jana Lexine Haneca
Applicant
- and -
Jeremy Benoni David Haneca
Respondent
Fhara Pottinger, for the Applicant
Samantha A. Filipovic, for the Respondent
HEARD: November 26, 2015, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Motion
[1] The respondent father, Mr. Haneca, seeks certain temporary orders. At the commencement of this motion, counsel for the parties advised that some issues have been resolved on consent. The terms of the consent order are attached as schedule A to these reasons.
[2] The remaining issues are custody, access and whether a non-harassment order should issue against the applicant mother, Ms. Haneca. Counsel agree that this is a "high conflict" separation.
Custody
[3] Since separation, in March 2015, the two children of the marriage, Ezekiel Alex David Haneca (born June 17, 2004) and Nevaya Lexine Haneca, (born July 10, 2007), have resided with Mr. Haneca. Mr. Haneca seeks a temporary order for sole custody. Ms. Haneca agrees that, on a temporary basis, Mr. Haneca should have primary care and control of the children but argues that joint custody is appropriate with decisions regarding the children to be made jointly. Mr. Haneca submits that joint decision-making is impractical based on the mother's conduct to date.
[4] Under subsection 16 (8) of the Divorce Act, R.S.C. 1985 c. 3, the court shall take into consideration "only the best interest of the child… as determined by reference to the conditions, means, needs and other circumstances of the child". Past conduct of either parent is not to be considered "unless the conduct is relevant to the ability of that person to act as a parent of the child." (Subsection 16 (9))
[5] The assistance of the Office of the Children's Lawyer has been sought. It is not known, at this point, whether the Office of the Children's Lawyer will assist in this case.
[6] The determination of custody on a temporary basis is a difficult task at this early stage given that it is based on affidavit evidence only and that the allegations of one parent are disputed by the other.
[7] Critical to joint custody is evidence that the parents are able to communicate with one another about issues regarding the children. Sadly, the text messages between the parents which were exhibits to the affidavits do not satisfy me that, at this point in time, the parents can communicate effectively about issues surrounding the children. In making that observation I note that Mr. Haneca has selected some text messages covering a wide period of time. Not all text communication between the parties was before me. As counsel agree, this is a "high conflict" divorce.
[8] Some background information regarding the children is important.
[9] Ezekiel was diagnosed with liver and lung cancer in 2006. He is cancer free at present but requires yearly checkups in London, Ontario. Ezekiel also requires counseling for behavioral issues. Mr. Haneca has authorized counseling as suggested by a school social worker. Ms. Haneca has, to date, not given her consent for counseling.
[10] Ezekiel also has a hearing impairment and now requires a hearing aid.
[11] According to his last year's report card, Ezekiel was absent from school for 23 days and late 53 times. His academic performance is below average. He may require tutoring. Currently there is no issue with his attendance.
[12] Ms. Haneca acknowledges that Nevaya needs counseling and has not given her consent, at this time, for that counseling to occur. Nevaya missed 22 days from school last year and was late 56 times. Her academic performance is better than her brothers but she still has some issues with reading. Currently, her attendance is not a problem.
[13] There are allegations that Ms. Haneca has been abusive to her children. Mr. Haneca, however, does not dispute that Ms. Haneca should have access.
[14] The foregoing facts demonstrate that important decisions need to be made for the benefit of the children and that these decisions need to be made in a thoughtful yet timely manner. One of the most important of these is the decision regarding counseling. In "high conflict" family cases it is imperative that the mental health needs of children are addressed. Any parent should appreciate that, when the need is identified, the sooner that counseling is in place the better it is for the child. Delay with respect to these important decisions is not in the children's best interests.
[15] In order that important decisions are made in a timely manner, I conclude that one parent, Mr. Haneca, should have the authority to make these important decisions and, therefore, order that Mr. Haneca have temporary sole custody of Ezekiel and Nevaya.
Access
[16] Mr. Haneca argues that Ms. Haneca’s access should be on alternate weekends from Friday at 4:30 p.m. to Sunday at 7:30 p.m. and every Tuesday from 4:30 p.m. to 7:30 p.m. Mr. Haneca also submits that Ms. Haneca should provide 72 hours notice if she will not be exercising access.
[17] Ms. Haneca proposes a slightly different access schedule with access on alternate weekends commencing after school rather than at 4:30 p.m. and every Monday and Tuesday from after school until 7:30 p.m. Counsel for Ms. Haneca also made submissions regarding Christmas access. Counsel for Mr. Haneca was not prepared to make submissions regarding Christmas access and suggested that I fix something that was reasonable and that could be reversed next Christmas.
[18] Subsection 16 (10) of the Divorce Act provides that the court "shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interest of the child."
[19] Accordingly, regarding access I order that Ms. Haneca is to have access commencing Friday, December 4, 2015 as follows:
a. Every other weekend with weekend access commencing on Friday, December 4, 2015, from after school to Sunday at 7:30 p.m. The applicant shall pick up the children after school at the beginning of the access visit and the respondent shall pick up the children at the applicant's house at the conclusion of the access visit;
b. Every Monday and Tuesday night from after school to 7:30 p.m. The applicant shall pick up the children after school at the beginning of the access visit and the respondent shall pick up the children at the applicant's home at the conclusion of the access visit;
c. The applicant shall ensure that the children attend all other extracurricular activities when the children are with her and the respondent shall refrain from enrolling the children in any extracurricular activities without her consent if said activity occurs during her time with the children;
d. The applicant shall provide the respondent with a minimum of 24 hours notice if she is not going to exercise access and that access period shall be cancelled.
[20] With respect to access during the Christmas holidays 2015 Ms. Haneca is to have access as follows:
a. December 25, 2015 from 2 p.m. until December 26, 2015 at 2 p.m.;
b. December 28, 2015 at 8 a.m. until December 30, 2015 at 4:30 p.m.;
c. January 1, 2016 at 2 p.m. until January 2, 2016 at 2 p.m.;
d. The applicant shall pick up the children at the respondent's home at the beginning of the access visit and the respondent shall pick up the children at the applicant's home at the conclusion of the access visit;
e. As of January 3, 2016 regularly alternating weekend and Monday and Tuesday access will resume.
Non-harassment Order
[21] Paragraph four of the consent order (Schedule A) provides that "all communication between the parties shall be through email and shall be child focused only". The consent also includes a provision that the parties may return to court if that process is not working.
[22] In the circumstances, a non-harassment order is not required. The parties are reminded to keep communication civil. I have no doubt that if one party feels that communication has not been appropriate then the court will learn of this through affidavit evidence which will include, as exhibits, text messages and emails.
Conclusion
[23] An order is to issue for temporary custody and access as outlined in these reasons. The consent terms of Schedule A are to be incorporated into the order.
Costs
[24] Subrule 24 (10) of the Family Law Rules provides that a judge shall decide entitlement to and amount of court costs promptly in a summary way. Counsel had not discussed costs in advance of the hearing and counsel did not attend with costs outlines. I could have dealt with costs promptly had counsel agreed to costs or had costs outlines available. As this did not occur, if counsel are unable to agree to costs, counsel may make written submissions on costs not to exceed two pages plus the cost outline. The submissions are to be served upon opposing counsel and filed with the court within 10 days of the release of his reasons. If submissions are not filed within 10 days of the release of these reasons then costs will be deemed settled. The failure to address costs at the time of the hearing may be a factor to be taken into consideration in assessing costs.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: November 30, 2015
CITATION: Haneca v. Haneca, 2015 ONSC 7433
COURT FILE NO.: FS-15-0202
DATE: 2015-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jana Lexine Haneca
Applicant
- and -
Jeremy Benoni David Haneca
Respondent
REASONS ON MOTION
Newton J.
Released: November 30, 2015
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