Superior Court of Justice - Ontario

CITATION: Gifford v. Gifford, 2016 ONSC 7254

COURT FILE NO.: 1634/16

DATE: 2016-11-22

RE: Tyler Grant Gifford, Applicant

AND:

Valeisha Gifford, Respondent

BEFORE: The Honourable Madam Justice Madsen

COUNSEL: Ms. D. Kosinka, Counsel for the Applicant Ms. P. Novomestsky, Counsel for the Respondent

HEARD: November 18, 2016

MOTION ENDORSEMENT

[1] The Applicant, Mr. Gifford, brings a motion before a Case Conference, seeking, inter alia, leave to bring a motion before a Case Conference, temporary custody of his son, Trevor Grant Gifford, born March 7, 2016 (“Trevor”), the return of Trevor to the matrimonial home, a police apprehension and enforcement Order, and costs. The Respondent, Ms. Gifford, brings a cross motion also seeking temporary custody of Trevor (or in the alternative, joint custody), that Mr. Gifford have supervised access, a police enforcement Order, temporary child support, and costs. The parties have been separated for only three weeks and already the file is an inch thick. Both parties have filed affidavit evidence replete with allegations against one another.

[2] Mr. Gifford alleges that Ms. Gifford “abducted” the child on or about October 26, 2016 when she left the matrimonial home with Trevor, providing no address. When he brought the motion, he indicates that he had no information as to the whereabouts of Ms. Gifford or his son. He states that Ms. Gifford was making allegations about him being an alcoholic, was behaving erratically, and that he had concerns about her mental health and stability. Further, he provided copies of text messages which he says show that Ms. Gifford is attempting to build a case against him, based either on alleged alcoholism or on alleged physical abuse. Mr. Gifford denies that he has ever been physically abusive to Ms. Gifford or that he is an alcoholic.

[3] Mr. Gifford states that he was an equal caregiver to Trevor, and that given that he works from home for RBC Insurance, he is available to care for Trevor He notes that Trevor is not breast-feeding, so this should not interfere with his return to the matrimonial home. It appears that he is also a musician, performing evening “gigs” on some week-ends, although it is unclear how often this takes place.

[4] Finally, Mr. Gifford expresses significant concern that when access was negotiated between counsel as a term of adjournment of this motion, Ms. Gifford took the position that she need not comply with those arrangements as they were not a Court Order, and denied access for several of the arranged visits with his son.

[5] Ms. Gifford states in her materials that Mr. Gifford was well aware through text messages that she was considering leaving the home with Trevor, and that this cannot be considered an “abduction”. She asserts that Mr. Gifford has a long-standing issue with alcohol, and that when she left the home with Trevor, it was to try to encourage Mr. Gifford to acknowledge and receive treatment for substance abuse. As evidence of such substance abuse she provides copies of Mr. Gifford’s RBC bank records which she says show purchases totaling $1,465.35 from the LCBO from March to October 2016 (Mr. Gifford says much of this is LCBO gift cards for clients although he provides no copies of reimbursements), and copies of photographs of bottles of alcohol apparently in the matrimonial home. She indicates that Mr. Gifford has a conviction for a “DUI” from 2010, which is not denied by Mr. Gifford.

[6] Ms. Gifford also alleges that Mr. Gifford is emotionally abusive, and, as she states in a text, “mildly” physically abusive. She alleges that he assaulted her on the back of the head with a banana. To support this allegation she produced a photo showing bruising behind her ear and texts from her to Mr. Gifford referring to the incident.

[7] Ms. Gifford’s materials indicate that she is an Account Manager, and it is apparent from the materials that Trevor has been in daycare although it is unclear for how long. I do not have information about which parent was home with Trevor after his birth. The parties agree that Mr. Gifford transported Trevor to and from daycare until Ms. Gifford left the home with Trevor.

[8] I find, based on the materials, that Mr. Gifford could have an issue with alcohol, although it is unclear to me whether he actually does and, if so, to what extent. I find it improbable that the list of alcohol purchases provided in the materials is largely comprised of gift cards, as he asserts, as there are numerous transactions only several days apart. I find it more likely that if giving LCBO gift cards were a regular business event, they would be purchased in bundles, not one at a time in dribs and drabs. Having said that, I am not convinced that Ms. Gifford actually believes that any issues he may have with alcohol render him unable to care for Trevor or that Trevor would be unsafe in his care. She does not deny that Trevor has been transported to and from daycare by his father, and as recently as four days before separation sent Mr. Gifford a text saying she was “off duty”, indicating that Mr. Gifford should care for the child that weekend. As a loving mother I do not believe she would do that if she had genuine concerns that the child would be unsafe in his father’s care.

[9] I also have difficulty with Mr. Gifford’s assertions that he believes Ms. Gifford has mental health issues. As recently as October 6, 2016, he sent Ms. Gifford a text message written as if from Trevor stating “Happy birthday to the best mommy a boy could ask for”. This is followed shortly thereafter with a further text in which he states “you are a great mother to our son and he loves you very much”.

[10] Many of the texts from Ms. Gifford to Mr. Gifford read as a mother of a young child feeling ignored by the father, parenting while he played “gigs”, hoping that threats to take Trevor would serve as a wake-up call for the father to spend more time at home. They read as cries for attention in the last days of the relationship before the separation.

[11] Other texts cause me greater concern, in particular texts sent by Ms. Gifford to the effect that she was planning how best to secure custody of Trevor. These texts suggest manipulation and potential exaggeration in order to obtain custody. For example, in one text she excerpts information which appears to be from a website providing information on obtaining custody, and she states “All I have to say is that I am afraid of you. And I am.” In a subsequent text, also sent with a screenshot of information about obtaining custody, she states: “Deciding which route (abuse or alcohol) to ensure I get full custody of my child and you get none. Doing my own research…” I am also very concerned by Ms. Gifford’s failure to honour the access arrangements negotiated as terms of the adjournment of this motion and her comments by email that “The Agreement is not binding, nor has it been ordered by a Court of law…I am no longer comfortable further disrupting his schedule…” While an agreement – especially one negotiated in the shadow of the courtroom – may not be an Order that must be "obeyed", it is certainly meant to be honoured.

[12] In this case, while I do not find that Trevor was “abducted”, I find that it was appropriate for Mr. Gifford to bring an urgent motion before a Case Conference. In Hurd v. Hurd, [2006] O.J. No. 1840 (Ont. S.C.J.), the Court found that where a parent is denying any contact whatsoever in what could quickly escalate to a high conflict case, an interim Order for custody could precede the holding of a Case Conference. The combination of leaving the residence with the child, providing no address, and then not complying with access terms negotiated between counsel, in my view makes this matter urgent within the meaning of Rule 14(4.2). Ms. Gifford's conduct could easily have increased the already "hot" temperature of this matter. Both parties are encouraged to take a step back and to think long and hard about what this separation could become if they do not change the present course. Now is the time for sober reflection, not after they have each spent a small fortune on litigation.

[13] Both parents have full time jobs and in addition Mr. Gifford has music commitments some evenings. The child is, as noted, in day care during the week. The day-time parenting hours available are in the morning, after work, and on the weekends. Trevor is very young and needs to see both of his parents frequently.

[14] In all of the circumstances I make the following temporary temporary Order: Leave is granted for the hearing of this Motion prior to a Case Conference;

1. Leave is granted for the hearing of this Motion prior to a Case Conference;

2. The parties shall request and attend the earliest Case Conference Date available;

3. On a without prejudice basis, the child, Trevor Grant Gifford born March 7, 2016, shall remain in the care of the Respondent Mother pending further Agreement between the parties or a further Court Order;

4. On a without prejudice, the Applicant Father shall have the following temporary unsupervised access, at the matrimonial home pending further Agreement between the parties or a Court Order (during which time, for clarity, the Respondent shall not be present):

a. Monday through Thursday each week from 4:30 p.m. until 6:00 p.m.;

b. Saturday each week from 10:00 a.m. until 3:00 p.m.;

5. If new access terms have not been resolved through the Case Conference or otherwise between counsel by December 31, 2016, the Applicant may renew his motion for custody and access;

6. On consent, the Applicant shall not consume any alcohol or non-prescription drug 12 hours before or during his time with the child;

7. Neither party may remove the child from Ontario without the prior written consent of the other party or a Court Order;

8. The parties shall be civil and respectful of one another at the pick-up and drop-off of the child;

9. The parties shall communicate only about matters relating to the child or about urgent financial matters, and shall do so primarily by email, which shall be limited to a maximum of two brief emails per day;

10. If the Respondent changes her residence with the child she shall provide the Applicant with her new address promptly;

11. The Respondent shall not change the day-care enrollment of the child without notice to the Applicant.

[15] At this time I make no Order as to temporary custody which is not urgent and can be addressed in the ordinary course in these proceedings. I also make no Order with respect to child support, which I have been assured will be resolved directly between counsel. I make no Order with respect to the appointment of the Office of the Children’s Lawyer at this time, without prejudice to either party’s ability to renew that request at a later time. Finally, I make no specific Order with respect to sharing of time at Christmas as counsel have advised me that this will not be necessary.

[16] It is evident that I am not requiring “supervision” of the Applicant’s time. Having said that, in light of the nature of the allegations and the difficult communication between the parties, it may be helpful for the Applicant to select a “support person” to be present, when possible, during his time with the child. This may provide both parties with comfort, and lower the temperature of this matter. At this time, this is not an Order. It is a suggestion.

[17] This case has clearly gotten off to a difficult start. I encourage the parties, in the best interests of their young son, to consider consent-based options for resolving parenting issues in this case. There are communication issues to be resolved, which mediation can assist with and litigation will surely not. I also encourage (but do not order) both parties to obtain personal support through counselling to come to terms with the change in their circumstances, so that they are guided by the needs and interests of their son, and not by pain, disappointment, and anger, which will not lead to positive parenting outcomes.

[18] If counsel cannot agree upon costs, I will receive brief written submissions, not to exceed two pages, and bills of costs within 14 days of the release of this Endorsement.

Madsen, J.

Date: November 22, 2016