Court File and Parties

COURT FILE NO.: F1324/14 DATE: June 20, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Tracy-Ann Marie Caza, applicant AND: Larry Joseph Kelly, respondent

BEFORE: MITROW J.

COUNSEL: Edward J. Mann for the applicant Louise Mimnagh, agent for Alla Kikinova, for the respondent

HEARD: June 15, 2016

Endorsement

[1] There are two motions before the court for interim relief.

[2] The applicant brings a motion for the following: an order prohibiting the respondent from having his mother, Nelly Brum, and one Meaghan Churchill from picking up or dropping off the children for access visits; and an order prohibiting Nelly Brum “from discussing adult issues with the [children] including the court proceedings herein and her concerns expressed to the children about them.”

[3] The respondent brings a motion for varying the respondent’s interim access to the children; an order requiring the applicant to assume all the driving responsibility to and from access; various orders in relation to disclosure of information regarding the children and designation of the respondent as alternative emergency contact for school; and an order dealing with interim child support.

[4] Dealing first with interim child support, the parties have consented to an order for interim child support in accordance with a consent endorsement request filed; accordingly, an order is granted as asked in the consent endorsement request dated June 15, 2016 in relation to child support. The order shall specify that the child support is being ordered pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

[5] In terms of disclosure of information to the respondent regarding the children, and naming the respondent as an emergency contact person, the applicant agrees with the respondent’s request for that relief and, accordingly, an interim order is granted in accordance with paragraphs 4, 5 and 6 of the relief sought in the respondent’s notice of motion at tab 28.

[6] The parties were married to each other in 2009 and separated in 2014. The parties are the biological parents of children, Kyle, age 10, and Riley, age 6. The applicant also has an older daughter, Erika; the applicant is the mother of Erika and Erika’s biological father is not the respondent. The custody and access issues do not involve Erika.

[7] I now turn to the issue of changes in relation to access or incidents of access requested by both parties in their respective motions.

[8] This longstanding high conflict case was placed on the trial list when the motions were argued before me. This case was ordered placed on the trial sittings for the sittings commencing December 5, 2016 and a trial management conference was ordered for October 24, 2016 at 10:00 a.m. before me.

[9] Secondly, there exists already an interim order that deals with custody and access. Pursuant to the order of Miller J. (as he then was) dated March 18, 2015, the applicant was awarded interim custody of the children and, “on an interim without prejudice basis,” the respondent was awarded access to the children that included regular access consisting of alternate weekends from Friday at 4:00 p.m. to Sunday at 4:00 p.m. and every Wednesday from 4:00 p.m. to 7:30 p.m.; the respondent was responsible for all pickup and drop-off of the children for access visits.

[10] The request of each party in his or her respective motion amounts to an interim variation of an interim order.

[11] In Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), I stated as follows at para. 26 in relation to the test on an interim variation of an interim order:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.

[12] Dealing first with the motion of the applicant, the evidence in relation to that motion is in conflict. At the heart of the applicant’s request that Meghan Churchill and Nelly Brum be prohibited from being present at pickup and drop-offs of access visits is an incident involving a car seat. I tend to agree with the submissions of Ms. Mimnagh that in large measure this may well have been a misunderstanding as the respondent’s evidence suggests that Ms. Churchill did in fact have a car seat available for the child when she came to pick up the child at the request of the respondent.

[13] A relevant background fact is that the respondent currently is unable to drive. His licence is suspended for reasons including an accumulation of fines that he deposes he is unable to pay at this time. It is unclear from the evidence whether the respondent would be entitled to an immediate reinstatement of his driver’s licence should he pay off all his fines at this time or whether there are still some periods of suspension that have to be served. Accordingly, in order to facilitate the access exchanges, the respondent has enlisted the assistance of others to do the pickup and drop-off.

[14] I am unable to agree with the applicant, on the evidence filed, that the respondent’s mother and the respondent’s friend, Meghan Churchill, should be prohibited from being involved in picking up and dropping off the children for access visits.

[15] The applicant deposes that she does not want to do any driving. She deposes that she did share voluntarily in some driving to facilitate access exchanges but ceased doing so after the incident involving the car seat.

[16] The reality is that the respondent needs the assistance of family and/or friends to facilitate pickup and drop-off of the children for access visits; otherwise he will not be able to see the children, which is not in the children’s best interests.

[17] No one disputes, and in fact the report of the Office of the Children’s Lawyer, filed as part of the motion material, confirms that the children enjoy access visits and wish to see their father.

[18] Accordingly, the applicant’s motion to prohibit Nelly Brum and Meghan Churchill in picking up or dropping off the children for access exchanges is dismissed.

[19] The applicant’s remaining request, namely that the respondent in effect prohibit Nelly Brum from discussing adult issues with the children, is also dismissed. The evidence in support of this relief is not persuasive. I place minimal weight on the applicant quoting Kyle as to statements allegedly made to him by Nelly Brum.

[20] However, as noted earlier, this is a high conflict case and an interim order shall issue as follows:

1. Each party shall refrain from making derogatory comments about the other party in the presence of the children, and each party shall refrain from discussing this court case with the children or in their presence; further, each party shall ensure that all adult persons who are permitted by that party to have contact with the children, while the children are in that party’s care, shall refrain from making any derogatory comments about the other party to the children or in their presence.

[21] At the time that the interim order was made, there is no dispute that both parties were living in Strathroy and in close proximity to each other. Subsequent to that order, specifically in February of 2016, there is also no dispute that the applicant and children moved from Strathroy to Wyoming, Ontario. The affidavit material indicates that the distance between Strathroy and Wyoming is in the range of 38 kilometres.

[22] It is the respondent’s position that, as a result of this move, it makes it impractical for him to exercise mid-week access. Accordingly, the respondent seeks to change the existing regular weekend access schedule such that he sees the children two out of three weekends rather than alternate weekends. This would make up for the lost Wednesday access.

[23] The respondent bases his request for increased weekend access on the recommendations contained in the report from the Office of the Children’s Lawyer. That report discussed the potential of the applicant moving and one of the recommendations was that the weekend access should increase to two weekends out of three if the applicant should move with the children.

[24] While the report itself, and the recommendations contained therein, are for use at trial, I do mention the recommendation at least to explain how the respondent came up with the request for increased access.

[25] Various jurisprudence cited above in Miranda includes variation of an order where evidence “clearly and unequivocally” establishes that a present arrangement is not in a child’s best interests.

[26] It is trite to say that preservation of a relationship between a child and his or her parent is fundamental and clearly in a child’s best interests. The move by the applicant significantly changes the status quo and the access order on which the status quo was based. I am satisfied that a change needs to be made in the existing interim order to increase the respondent’s weekend access.

[27] The applicant deposes that she also needs to have weekend time with the children and disagrees with the respondent having two weekends out of three.

[28] I find that the alternate weekend access arrangement currently ordered should continue, but the order below adds an extra portion of a weekend on one of the weekends between the alternating weekends. Further, the order below extends the return time on the alternating weekends from 4:00 p.m. to 7:30 p.m.

[29] The applicant does depose that she did assist with driving arrangements voluntarily in the past. In my view, the evidence supports an order requiring the applicant to share modestly in the pickup and drop-off of the children, with the bulk of that responsibility falling on the respondent. The order below also deals with the ability of either parent to have other responsible adult persons do the pickup and drop-off of the children to facilitate access.

[30] Accordingly, the following replaces paragraphs 2(a), (b), (c) and (d) of the interim order of Miller J. (as he then was) dated March 18, 2015:

(a) The respondent’s weekend access shall occur in accordance with the following four week cycle: i) on the first and third weekends, the respondent shall have access from Friday at 4:00 p.m. to Sunday at 7:30 p.m.; ii) on the second weekend, the respondent shall have access from Friday at 4:00 p.m. to Saturday at 8:00 p.m.; iii) the children shall be with the applicant on the fourth weekend. (b) In the event that the respondent’s access on the first and third weekend falls on a holiday Monday weekend, then the access shall be extended to Monday at 7:30 p.m.; (c) In the event that Friday of the respondent’s access on the first and third weekend is a professional development (“P.D.”) day, then the children shall be with the respondent from Thursday at 4:00 p.m. to Sunday at 7:30 p.m.; if the Friday of the second weekend is a P.D. day, then the children shall be with the respondent from Thursday at 4:00 p.m. to Saturday at 8:00 p.m.; (d) The pickup and drop-off of the children for access visits shall occur as follows: i) the applicant shall be responsible for dropping off the children and picking up the children to facilitate the respondent’s access on the second weekend (being the weekend where access is from Friday at 4:00 p.m. (or Thursday at 4:00 p.m. if Friday is a P.D. day) to Saturday at 8:00 p.m.); ii) the respondent shall be responsible for arranging for pickup and drop-off for all other access visits; iii) each party is at liberty, in discharging his or her responsibility to pickup and drop-off the children for access visits, to delegate a responsible adult person, who is known to the children, to do the pickup and drop-off provided that that party has informed the other, in writing, as to the names of all persons that the party intends to use to pickup and drop-off the children; and, without limiting the generality of the foregoing, for the respondent this includes Meghan Churchill and Nelly Brum. Each party forthwith shall provide a list to the other party of all adult persons to be used to facilitate pickup and drop-off of the children for access visits.

[31] The respondent also requested a change to the provisions for summer access contained in the current interim order. In my view, the increase in weekend access time, in the short term until a trial, reasonably makes up for lost weekday access. There is, in my view, no basis to disrupt the interim order that relates to summer access.

Order

[32] An interim order shall issue consistent with these reasons. The order shall state that it is made pursuant to the Divorce Act.

[33] If the parties are unable to agree on costs, then written submissions on costs may be forwarded to the trial coordinator within 21 days, with the submissions to be limited to 3 typed pages plus copies of any offers, time dockets and authorities.

“Justice Victor Mitrow” Justice Victor Mitrow Date: June 20, 2016