Court File and Parties

COURT FILE NO.: F1461/15 DATE: 2016/07/08 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Darrin Miller, Applicant AND: Katrina Rebecca Young, Respondent

BEFORE: MITROW J.

COUNSEL: Robert Haas, for the Applicant Brenda D. Barr, for the Respondent

HEARD: April 27, 2016

Endorsement

Introduction

[1] The parties brought motions for various interim relief. The issues are interim custody, interim child support, and interim spousal support.

[2] For reasons that follow, interim custody is awarded to the respondent; the applicant is awarded interim access as set out in the order below; and the applicant is ordered to pay interim child support and interim spousal support and the respondent is permitted to reside with the children in Strathroy, Ontario.

Background

[3] The parties have two children, Marissa, age 8, and Bridget, age 4.

[4] The parties are not married to each other; they began to cohabit in 2007 and they separated on a final basis in October, 2015.

[5] The affidavit material filed on the motion was voluminous – and unnecessarily so. Many family members of both parties were drawn into the dispute which, in turn led to a proliferation of affidavits.

[6] There is much conflict in the affidavit material which cannot be resolved on the motions; there is no need, in making a decision on the motions, to canvass in any detail the conflicting evidence. These reasons will focus only on facts necessary to decide the motions.

[7] It is safe to conclude on the evidence, as I do, that both parties have engaged, at least, in frequent verbal altercations with each other laced with mutual vitriol and vituperation. Undoubtedly the children were exposed to this puerile behaviour; also, conflicting evidence abounded where each party accused the other of physically abusive behaviour, quickly denied by the other.

[8] A substantial issued raised by the respondent relates to the applicant’s alcohol consumption, much of which centred around the applicant’s alleged excessive beer drinking, which the applicant steadfastly denied. After review of all the affidavit material I find that the totality of the evidence, including corroboration from some of the applicant’s witnesses, establishes a persuasive case that the applicant engaged in a life style that included drinking and inebriation on a not infrequent basis.

[9] The records of the Children’s Aid Society of London and Middlesex (“Society”) were appended to the affidavits of both parties. Those records indicated that in an interview with a Society worker in November, 2015, that the applicant told the worker that he drinks “1-3 beers/day”. During the month or so that Christina Vaessen lived with the parties in the summer of 2014, it was her evidence, that she observed the applicant “always” having a beer in his hand and that he would start drinking as soon as he arrived home. The applicant spent over $600 at the beer store during December 2015 according to his bank statement for that month; after the initial order of Jarvis J. (discussed in more detail below) the applicant was observed drinking beer in a parking lot at a hockey tournament where he was coaching one of his daughter’s teams.

[10] Despite the applicant’s persistent denials to the contrary, the applicant’s alcohol-consumption lifestyle impacts negatively on his parenting ability and is a factor that I consider.

[11] While both parties admitted to recent use of cocaine on one occasion, there is no serious suggestion in the material that the respondent has any ongoing alcohol abuse issues; in fact the Society worker’s notes reflect that the applicant told the Society worker that there were no concerns with the respondent regarding drinking or drugs.

[12] The parties, on April 27, 2016, during the hearing of the motions did consent to an order made that day requiring both parties to undergo hair follicle testing for drug and alcohol use.

[13] This litigation was precipitated by the respondent’s unilateral removal of both children from the home during the second week of November 2015; the respondent and the children resided initially with others and then with the respondent’s parents. Although the respondent justifies her actions on the basis of the applicant’s alleged abusive conduct, this self-help remedy was not appropriate. It was the respondent’s evidence that she had been seeing counsellors from the London Abused Women’s Centre since October 2014.

[14] This led to emergency motions brought by both parties prior to a case conference, resulting in the order of Jarvis J. dated December 2, 2015 made “pending the adjournment and on a without prejudice basis”; that order implemented a “nesting” arrangement where the children remained in the jointly owned family home in Dorchester and each party spent time with the children in that home, without the other party being present, according to a two-week schedule; each party rotated in and out of the home every two to three days or so with the result that the children spent equal times with each parent.

Discussion

A. Interim Custody and Interim Access

[15] The parties had moved to Dorchester in 2012; this is where the applicant was from and where his parents and grandparents reside; before then the parties lived in London.

[16] The applicant submitted that there be an interim joint custody order and that the current nesting arrangement should continue; the applicant argued strongly that the status quo of the children residing in Dorchester should not be changed; that the children participated in various sports including hockey and soccer in Dorchester; that the children had frequent contact with the applicant’s parents and grandparents, and that the children had attended school only in Dorchester.

[17] The applicant is an electrician; he leaves for work by 6:30 a.m. and is home by approximately 5 p.m. at the latest except on Fridays when he finishes work in the early afternoon.

[18] The respondent works in her parents’ landscaping business in Delaware. This business is seasonal. The respondent works 30 to 35 hours per week from April through to November; her hours generally are from Tuesday to Friday from 10 a.m. to 5 p.m. and she may work occasional Saturdays.

[19] The respondent seeks an order of interim custody of the children and further that she be permitted to reside in Strathroy as the respondent’s parents own a residence in Strathroy that is available for the respondent to rent. The respondent describes Dorchester as a “toxic environment” for her. I place no weight on the “toxic environment” argument as it is based on flimsy evidence at best. The respondent seeks to have the applicant’s access restricted to day visits only given her concerns about the applicant’s alcohol use and alleged substance abuse. The respondent denies also any substance abuse.

[20] I am not persuaded that the evidence justifies an order restricting the applicant’s time with the children to day visits.

[21] Much argument centred around “status quo” and I address this issue first.

[22] Firstly, the status quo is not the order of Jarvis J.; that was a without prejudice order, designed to stabilize the parenting arrangement pending full argument on the motions.

[23] The preponderance of evidence supports a conclusion that the respondent was the de facto primary care giving parent for both children prior to separation; the respondent took maternity leave; she was employed on a seasonal basis; she was at home to care for the children when not working outside the home, and in particular the respondent became a full-time caregiver to the children during the off season when not working at her parents’ landscape business.

[24] While the applicant clearly was a caring and engaged parent, and was involved in the children’s sports activities, it is evident that as between the parties, the respondent was the primary caregiving parent.

[25] The continuation of the “nesting order” in my view, is not in the children’s best interests. These parties have a high-conflict relationship, and the constant rotating in and out of the family residence creates more opportunity for conflict.

[26] I am satisfied on the evidence that the status quo, which is the children being primarily cared for by the respondent, should continue and that that is in the children’s best interests; I take into account in coming to this conclusion the concerning evidence relating to the applicant’s alcohol consumption.

[27] Further, given the applicant’s work schedule, and the fact that he leaves home by 6:30 a.m., it is not possible for the applicant to care for the children in the mornings and to see them off to school; in contrast the respondent is available for the children in the mornings to see them off to school. However the applicant’s time with the children should include some days when the children are with him on an overnight basis when the following day is a school day.

[28] This is not, at least at this interim stage, a case where interim joint custody or shared parenting is in the children’s best interests given the high level of acrimony between the parents. The order of Jarvis J., in fact imposed restrictions on communications between the parties. I find that it is in the best interests of the children, at this interim stage, that the respondent have interim sole custody.

[29] The order below does not continue the communication restriction. It is important for the parties to start a process where they can communicate with each other in person in an adult and child-focussed manner.

[30] The applicant shall have generous interim access as detailed below. The applicant is at liberty to share his time with his family including his parents and grandparents which is something that was done in the past. The applicant also will have the children most Fridays on an overnight basis as the applicant finishes work early Friday afternoon and can get the children from school.

[31] The more difficult issue relates to the respondent’s request that she be allowed to move to Strathroy.

[32] Both parties addressed this request as a “mobility” issue. The applicant also strenuously argued that Dorchester was the status quo and the children’s residence should not be changed on an interim basis to Strathroy.

[33] In Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), the law in relation to mobility was summarized as follows:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[34] In Plumley v. Plumley, 1999 CarswellOnt. 3503 (S.C.J.) the following factors for interim mobility are discussed at para. 7:

7 It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[35] The applicant relies on paras. 15, 16 and 17 in Currie v. Maudsley, 2011 ONSC 4214 (S.C.J.) on the issue of the issue of status quo:

[15] The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change in custody is necessary to meet the children’s best interests and this would include a situation where there is evidence that maintaining an existing status quo will be harmful to the children.

[16] In Grant v. Turgeon, [2000] O.J. No. 970, V. Mackinnon J. stated 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 children’s best interests. That is so whether the existing arrangement is de facto or de jure (see para. 15).

[17] Some of the reasons why the interim status quo should be preserved were succinctly stated by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 as follows in paras. 1 and 2:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631 (Ont. Master), (aff'd by Laskin J.A. at p. 748) [[, [1969] 2 O.R. 748 (Ont. C.A.)]](https://www.canlii.org/en/on/onca/doc/1969/1969canlii438/1969canlii438.html), by Laskin J.A. again in Papp v. Papp (1969), [1970] 1 O.R. 331 (Ont. C.A.), at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster, (1992), 38 R.F.L. (3d) 373 (N.S. C.A.). By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin, (1986), 3 R.F.L. (3d) 403 (Ont. H.C.) and the annotation of J.G. McLeod to Moggey v. Moggey, (1990), 28 R.F.L. (3d) 416 (Sask. Q.B.).

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

[36] The issue arises whether this case can be described as a “mobility” case. For example, in a larger city, if the parents separate, and one of the parents moves to live with a child across town thirty minutes or so away from the other parent who remains in the matrimonial home, is that a mobility (or interim mobility) case?

[37] In the present case, the applicant works in London. The children’s physician is in London. I reject the applicant’s suggestion as to how long it takes to get from Dorchester to Strathroy. The respondent’s more sensible evidence is that it takes a little over 35 minutes or so to travel from Dorchester to Strathroy given the series 400 highways that comprise most of the route.

[38] Although the applicant had proposed a continuation of the nesting order, he also sought an order that if the respondent would not transfer her interest in the family residence to the applicant, that the residence should be listed for sale. The applicant, during argument, and in his material, was quick to point out that no exclusive possession order can be made as the parties are not married to each other.

[39] The respondent’s plan to rent a home owned by her parents in Strathroy is a significant financial advantage to the respondent given her modest income at this time; the ability of the respondent to have suitable, affordable accommodation for herself and her children is in the children’s best interests; it is not particularly viable for the respondent and children to attempt living in the jointly-owned family residence on an interim basis given the applicant’s aggressive stance that this property should be listed and sold unless transferred to the applicant. The Strathroy residence provides security of tenure from a friendly landlord.

[40] In relation to the children’s school, Marissa, will have to change schools in any event in September of 2016, even if she continues to go to school in Dorchester given that her current school apparently only goes to grade 3.

[41] I place little weight on the applicant’s argument that the children should be registered for sports, including hockey, in Dorchester. The respondent deposes that the Strathroy hockey team is part of the same league as the children’s hockey team in Dorchester. On the facts, I find little substance to the applicant’s position that he would not be able to coach the children’s hockey team if the children were registered for hockey in Strathroy.

[42] The respondent, in contrast, deposed that when she was working in Delaware (which is quite close to Strathroy), that she routinely finished work and was able to get to Dorchester in time to go to the children’s hockey games or practices.

[43] The children will continue to see the applicant’s extended family including his parents and grandparents when they are with the applicant; the children will have contact with the respondent’s parents and family members when they are in Strathroy.

[44] As this is a motion, and not a trial, it is not possible to complete the necessary inquiry and analysis as discussed in Gordon v. Goertz. That is something that can be done at trial.

[45] If change in “status quo” refers to the children living in Strathroy, the effect on the “status quo” is minimal as there is no impact on the applicant’s access schedule. Had the children stayed in Dorchester, the applicant’s access schedule would have been the same. The change in location of the sports activities is a minor change that the parents can accommodate easily.

[46] In relation to the discussion of status quo in Currie v. Maudsley, supra., if “status quo” refers to “interim custody” or “primary care”, then the interim order being made maintains the status quo that existed at separation.

[47] Finally, in context, it is difficult, I find, to regard this case as a true “mobility” case given the modest time required to travel between the parents’ homes, and the fact that there is no impact on the applicant’s access. Any relationship that the children have with friends, or the applicant’s family in Dorchester, will be preserved by the access provisions.

[48] The order below continues some of the conditions set out in the order of Jarvis J. In relation to non-consumption of alcohol and drugs, given the agreement of the parties to submit to joint hair follicle testing, I have made those conditions apply to both parties. I also note that the consent order made on April 27, 2016 provided for counselling for Bridget and for Marissa to attend a program at Merrymount.

[49] Accordingly I make the following interim order in relation to custody and access pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12:

1. The respondent shall have interim custody of both children and may live with the children in Strathroy;

2. The children shall be registered in school in Strathroy;

3. Except on written consent of both parties, or further order of the court, the children’s primary residence shall not be changed from Strathroy, Ontario;

4. The applicant shall have interim access to both children as follows in accordance with a four-week cycle:

a) On each of the four weeks, every Tuesday from after school (or at 3:30 p.m. if there is no school) until 7:00 p.m.;

b) On weeks one and three from Thursday after school (or at 3:30 p.m. if there is no school) until Sunday at 7:00 p.m., to be extended to Monday at 7:00 p.m. if Monday is a statutory holiday.

c) On week number two from Friday after school (or at 2 p.m. if there is no school) overnight to Saturday at 11 a.m.;

d) On week number four from Friday after school (or at 2 p.m. if there is no school) until 7:00 p.m.;

e) Such further and other times as may be agreed to by the parties; and

f) The applicant is responsible to pick up the children at the beginning of his access visit, and the respondent is responsible to pick up the children at the end of the access visits; the access exchanges at the beginning of an access visit shall be in Strathroy and at the end of an access visit shall be in Dorchester, unless otherwise agreed.

5. When the children are scheduled to be in the applicant’s care, the applicant is at liberty to request family members, including his parents or grandparents to assist in access exchanges and looking after the children;

6. When the children are scheduled to be in the respondent’s care then she is at liberty to request her parents or family members to assist in access exchanges and looking after the children;

7. The parties shall agree on parenting arrangements for the children during the 2016 Christmas holidays failing which either party may bring a motion;

8. Both parties shall ensure that the children attend their extracurricular events and activities including hockey games and practices during their time with the children, and both parties are at liberty to attend the children’s hockey games, practices and other extracurricular activities which occur during times that the children are with the other party.

9. The children’s registration for hockey and other extra-curricular activities shall be in Strathroy, Ontario, unless the parties agree otherwise;

10. The parties shall not involve the children in custody and access issues or speak of those issues to others in the presence of the children;

11. The parties shall not criticize or disparage the other in the presence of the children;

12. During any period of time that the children are scheduled to be with a party, and for 12 hours prior to that time, that party shall not consume alcohol or non-prescription drugs;

13. On a presentation of a copy of this order, each party is entitled to receive information about the children, and any documents relating to the children, from the children’s teacher, school principal, doctor, dentist or any other health care provider including any counsellor or therapist;

14. Unless the parties agree otherwise, week one of the applicant’s access schedule shall start the week commencing Monday, July 11, 2016;

15. While in the other party’s care, each party shall be entitled to reasonable communications with the children, by telephone or any other electronic device;

16. The parties shall communicate in a respectful manner as often as necessary in addressing the children’s ongoing educational or medical and other important needs, including arrangements for all extra-curricular activities.

Child Support and Spousal Support

[50] In relation to child support, the applicant in his financial statement has disclosed his annual income at $81,480; child support should start effective July 1, 2016.

[51] The respondent disclosed her income in her financial statement to be $17,237. From 2012 to 2015 inclusive the respondent’s income has ranged from $14,401 to $19,288.

[52] The respondent has worked on a seasonal basis in her parents’ business for a number of years. That was the situation while the parties were cohabiting.

[53] The applicant seeks to impute income up to $35,000 to the respondent.

[54] At this time, and on an interim basis, I decline to impute any income to the respondent. That is an issue that is best reserved to the trial judge.

[55] I am satisfied that the respondent’s income for spousal support purposes is $17,245 as set out in her financial statement and which is consistent with her 2015 income.

[56] In relation to spousal support, although the parties’ relationship was of short duration, with the parties cohabiting approximately 8 years, there is a compensatory element to the respondent’s claim for child support given her role in child care during the marriage.

[57] There is also at this time a clear need for spousal support.

[58] To a large measure the applicant’s ability to pay spousal support is minimized by his child support obligation. I find that spousal support in the amount of $350 per month to start July 1, 2016 is reasonable.

[59] This falls just below the mid-range of the Spousal Support Advisory Guidelines in the calculation filed by the respondent.

[60] The order of Jarvis J. included a provision that the applicant be solely responsible for expenses of the family home and that he had no obligation to pay to the respondent either child support or spousal support pending further order of the court.

[61] The interim orders for child support and interim spousal support are being made on the basis that the respondent will permit the applicant to continue to reside in the family residence located at 186 Oakwood Drive, Dorchester, Ontario until the eventual sale or transfer of this property. Accordingly, the applicant will be responsible for all carrying costs including mortgage, utilities and taxes until the sale or other disposition of that property.

[62] If the respondent should take the position that for any reason the applicant cannot reside in the family residence until it is sold, or otherwise disposed of, then the applicant is at liberty to seek a review of this order in relation to interim spousal support and the applicant’s obligation to pay expenses in relation to the family residence.

[63] There is insufficient evidence to make an order for s. 7 expenses in relation to the children’s extracurricular activities. If the parties cannot resolve that issue, then a further motion can be brought. It would be expected that the cost of extraordinary extracurricular activities will be shared by the parties in proportion to their respective incomes.

[64] The following interim order is made in relation to support issues:

1. The applicant shall pay interim child support to the respondent for the children Marissa and Bridget in the amount of $1,176 per month commencing July 1, 2016 pursuant to s. 3(1)(a) of the Child Support Guidelines, O. Reg. 391/97 [as amended] and the Family Law Act, R.S.O. 1990, c.F.3, based on an income of 81,480 less union dues of $1158.

2. The applicant shall pay to the respondent interim spousal support in the amount of $350 per month commencing July 1, 2016 pursuant to the Family Law Act;

3. The applicant shall be solely responsible to pay all expenses in relation to the jointly-owned family residence located at 186 Oakwood Drive in Dorchester including mortgage, utilities, and taxes pending sale or other disposition of the family residence;

4. If the respondent refuses to permit the applicant to reside in the family residence, pending sale or other disposition, then this order is without prejudice to the applicant’s right to bring a motion to vary paras. 2 and 3 above.

5. Paragraph 12 of the interim order of Jarvis J. dated December 2, 2015 is vacated.

Additional Orders

[65] I make the following additional orders:

1. If the parties have not already done so they shall contact the trial coordinator and arrange a date for a settlement conference;

2. If the parties are unable to agree on costs, then the parties shall file written cost submissions with the trial coordinator; the respondent’s cost submissions shall be forwarded to the trial coordinator within 14 days of the date of this order, the applicant’s cost submissions shall be forwarded within 14 days thereafter, and reply, if any, within 7 days thereafter; all cost submission shall not exceed 3 typed pages (2 pages for reply) plus copies of any offers, time dockets, statements of account and authorities.

“Justice Victor Mitrow” Justice Victor Mitrow Date: July 8, 2016