COURT FILE NO.: FD633/16 DATE: February 24, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Meighen Leigh Taylor, applicant AND: Corwin Stuart Clarke, respondent
BEFORE: MITROW J.
COUNSEL: Ms. Tamra Mann for the applicant Mr. Michael Nyhof for the respondent
HEARD: February 1, 3, 2017
Endorsement
[1] There are two motions before the court: the applicant’s motion to implement the recommendations of equal parenting time contained in the investigation and report of the Office of the Children’s Lawyer, prepared pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and filed with the court pursuant to the affidavit of the clinical investigator, Marsha McHardy, sworn December 5, 2016 (“the OCL report”); and the second motion is the respondent’s motion for interim child support initially returnable February 1, 2017.
[2] The parties agreed to adjourn the respondent’s motion to await the decision on the applicant’s motion; also the applicant had not had an opportunity to respond to that motion.
[3] During argument, the parties agreed that this case would be placed on the trial list for September 2017 and that order is made below.
[4] For reasons that follow, the current parenting time for the applicant is increased somewhat and, for the summer months, a week-about is ordered.
Relevant Background
[5] This motion can be decided largely on facts that are not in dispute.
[6] No useful purpose is served by reviewing, in any detail, each party’s evidence, many portions of which amount at times to an overbearing pontification designed to denigrate the other.
[7] All affidavit material was reviewed, starting with the applicant’s first motion, brought ex parte, initially returnable May 25, 2016. I find that proceeding, ex parte, on the facts of this case, borders on a flagrant disregard of r. 14(12) of the Family Law Rules, O. Reg. 114/99.
[8] The parties commenced cohabitation in 2003; they were married in 2010 and separated in November 2015. At that time, the applicant left the matrimonial home, leaving their three children, Cori Leigh, Riley and Quinn (now, respectively, ages 12, 10 and 5) with the respondent.
[9] The applicant’s decision to leave the children with the respondent, I find, was motivated by her desire to give primacy to the children’s best interests – to leave the children in the matrimonial home, in familiar surroundings, and within walking distance from the school.
[10] The turmoil of the separation led the applicant to stay at Women’s Community House for approximately one-and-a-half months; then she resided with a female friend for about two months and then, according to her evidence, she began residing with her current partner, Mr. Kirby, near the end of March 2016.
[11] After separation, the parties were able to cooperate, to some extent, in implementing a schedule of parenting time. Initially, the respondent vacated the matrimonial home to permit the applicant to spend time with the children.
[12] The current operative order is the interim interim order of Heeney J. made on June 22, 2016 that included primary care of the children remaining with the respondent, with the applicant having the children in her care every weekend from Friday at 5:30 p.m. until Monday at 8:30 a.m., and mid-week access as agreed between the parties “… with the objective of facilitating one-on-one contact between the applicant and each child.”
[13] The evidence suggests that the applicant has exercised the weekday access at various times during the week, including taking the children to various activities. For example, the respondent explains that this includes Monday, Tuesday and Wednesday evenings, for one or two children each night (see para. 12, affidavit sworn January 26, 2017).
[14] The existing order must be placed in context – it was made on the basis that the court refused to make a finding that there was an emergency and, consequently, the motion in relation to interim custody/access was adjourned to the case conference to be spoken to. Clearly, Heeney J.’s order was designed to “tide the matter over” pending the hearing of the motion.
[15] Two significant events have shaped the course of the interlocutory proceedings. The first is the applicant’s decision, soon after separation, to move in with Mr. Kirby, thereby introducing him into the children’s lives at a time when they were “still reeling from the separation of their parents,” as was noted specifically by Henderson J. when the matter first came before him on June 1, 2016. The second issue related to the respondent’s conduct in exposing the children to his vituperation regarding the applicant and her new partner, Mr. Kirby.
[16] The order of Heeney J. provided that the children shall have no contact with Mr. Kirby “pending further order of the court.”
[17] The evidence is clear that the respondent refused to agree to delete this condition, well after it became apparent, except to the respondent, that this condition was no longer necessary. The applicant continued to reside with Mr. Kirby, who posed no threat whatsoever to the children. This condition forced the applicant to exercise her parenting time by driving to Sarnia to stay with her parents. If there were events for the children in London on the weekends, the applicant would drive to London and then back to Sarnia. At times, her old vehicle was not roadworthy and she had to borrow a car; on some occasions she would stay in hotels with the children, having to incur that expense despite her modest income.
[18] At the latest, when the OCL report was released, which included an interview with Mr. Kirby (who had filed a clear police records check and who has regular contact with his own children), it should have been clear to the respondent that the temporary condition prohibiting contact between Mr. Kirby and the children served no further purpose in promoting the children’s best interests.
[19] However, rather than being reasonable, rather than appreciating the inconvenience to the children in staying in hotels and travelling to Sarnia, the respondent in effect “double-downed” on this condition, refusing to relent until he felt compelled to do so when facing the court on the first return of the applicant’s current motion on February 1, 2017. He had mused in his January 2017 affidavit (see paragraph 25) that he wants to wait until the end of the school year to permit Mr. Kirby to have involvement with the children.
[20] The affidavit evidence creates a very tangible impression that the respondent revelled in the applicant’s inability to exercise access where she lived – the respondent derived a type of perverse satisfaction in knowing the extent to which the applicant was inconvenienced (remaining at the same time oblivious to the inconvenience to his children). The respondent’s thinking was fuelled in large measure by his almost hysterical disdain for Mr. Kirby.
[21] The respondent was so incensed at Mr. Kirby that he became, at times, emotionally unglued. He referred to Mr. Kirby as a “maggot” and exposed the children to that language. The respondent shared with the children his disdain for Mr. Kirby and his disdain for the applicant because she was in a relationship with Mr. Kirby.
[22] The clinical investigator observed the respondent being “… highly agitated and verbally explosive” when speaking about the applicant and how she “cheated on him” with Mr. Kirby. The clinical investigator stated at page 13 that the respondent “… did an abysmal job of shielding [the children] from his feelings of anger and rage for the betrayal he felt he suffered when [the applicant] left him for another man.” That observation is amply supported by the evidence. Henderson J. described the respondent’s conduct “… as an appalling exercise in judgment.” Respectfully, I agree.
[23] The respondent’s level of rage directed towards the applicant was at such a level that it was observed by the clinical investigator. She stated at page 9:
When speaking about the children and how poorly Ms. Taylor had acted as a parent, his speech was rapid, pressured, passionate and his statements regarding Ms. Taylor were hostile and volatile.
[24] The children have been adversely affected by their parents’ dispute. It is apparent from the children’s interviews with the clinical investigator that their father’s denigration of Mr. Kirby and their mother has affected them substantially. All three children reported that their father “hates” Mr. Kirby; some of the children reported hearing their father say “mean things” about their mother. Cori Leigh’s statement that she has a house, not a home, and home is where she would feel safe, should give both parents a sober second thought about their respective childish behaviour.
[25] Comments by the children as to yelling by their parents is troubling. The children have been exposed to parental conflicts. Based on the evidentiary record, I concur with the clinical investigator’s observation that “both parents have to a degree, done an abysmal job of protecting the children during the separation process” (page 13).
[26] Both parents admit to past substance abuse; however, the respondent’s evidence is that the applicant continues to be a regular user of marijuana. To some extent, the applicant corroborates the allegation regarding her marijuana use. In her affidavit sworn June 17, 2016 (paragraph 74), she does not deny that she is a “recreational user,” and she admits “occasionally” to “using it more frequently.” I find that the applicant is being less than honest about the extent of her marijuana use. The careful wording in her affidavit is in stark contrast to the evidence of the clinical investigator that the applicant reported “daily” use of marijuana, usually at night to help her relax and sleep (page 5). This accords more with the respondent’s evidence as to frequency of use.
[27] The order below includes conditions to ensure that neither parent is under the influence of substances prior to and during parenting time.
Discussion
[28] The starting point is to examine the status quo. Generally, in relation to custody and access matters, the status quo on an interim basis should be preserved until trial, absent a compelling reason to change the status quo in order to meet the best interests of children.
[29] In the present case, the respondent provides some helpful evidence regarding the status quo in his affidavit sworn June 13, 2016. I refer in particular to the respondent’s evidence because he takes the position that the order requested by the applicant would mark a significant change from the status quo, which the respondent submits should be preserved.
[30] The respondent tells the court that during the relationship, both he and the applicant worked and shared care of the children. He adds there were times when he was not working and primarily looked after the children, and there were times when the applicant was not working and she was primarily responsible for the children.
[31] The respondent deposes that in the early part of 2015, he was employed and that the applicant lost her employment and then found alternate employment in February.
[32] The respondent further tells the court that, in the late winter and early spring of 2015, that the children had various sick days and were unable to attend school and that one of the parents needed to stay home with the children when they were sick. Given that the applicant had started a new job, the respondent deposed that it was agreed that he would be the one who stayed home when a child was ill; he adds that in April of 2015 he was terminated as a result of missing too many days – he states he missed work because of a child that was home sick.
[33] The applicant does not dispute that at the time of separation the status quo was that the respondent was home with the children and that the applicant was working. The respondent then adds that his only source of income is Ontario Works and that he recently began to receive the Ontario Child Benefit.
[34] The applicant [1] currently works two jobs. The parties had agreed, during argument, that the applicant could advise the court as to her work hours. She works Monday to Friday 9:00 a.m. to 5:00 p.m. at a fulltime job and she also has a part-time job from Monday to Friday with work hours starting at 4:00 a.m., ending as late as 7:30 a.m., and sometimes the work ends before 7:30 a.m.
[35] It will soon be two years since the parties made a decision that the respondent would stay at home and care for the children. However, there is no explanation in the affidavit material as to why the respondent still needs to be home with the children. There is no indication that the children continue to be sick on a basis frequent enough to require him to stay home. The respondent clearly does have a work history and there is no affidavit evidence from him suggesting an inability to work.
[36] For the purpose of dealing with the applicant’s motion, I do agree with the respondent’s submission that the status quo is a relevant consideration. Currently, the status quo is that the children live with the respondent during the week. The respondent’s residence is close to the school and the respondent is able to walk the children to school and then walk them back from school at the end of the day.
[37] However, the time schedule set out in the order of Heeney J. needs to be carefully scrutinized. Using the simplistic approach of “overnights,” the order provides that the applicant has three overnights each week and the respondent has four overnights each week. In addition to that, the applicant does enjoy regular evening access to the children, usually Mondays, Tuesdays and Wednesdays.
[38] While there was some evidence to suggest that in the past, after Heeney J.’s order, that the applicant on some weekends wanted to shorten her parenting time, the reality is that that was because of the restriction that she could not exercise access in the home where she was residing with Mr. Kirby. For example, if the applicant was to have the children to school on Monday morning, then she would have had to drive likely from Sarnia or in some cases she may have elected to stay in a hotel. The unworkability of that arrangement has been dealt with earlier in these reasons.
[39] Effective February 1, 2017, however, the parties consented to an order that included the removal of the restriction and therefore the applicant is now free to exercise access in a normal fashion by having the children stay in her home in London where she resides.
[40] The reality is that the current order on its face already provides substantial parenting time to the applicant.
[41] The respondent’s denigration of the applicant and Mr. Kirby, and the effects that this conduct has had on the children, looms as a significant issue on this motion.
[42] The respondent did acknowledge the inappropriateness of his conduct. While that is a step in the right direction, the reality is that the respondent’s conduct, as demonstrated by the evidentiary record, was not limited to some infrequent and/or isolated occurrences. It was ongoing and it was brutal.
[43] What has been done cannot be undone. The respondent’s conduct poisoned the children’s views of their mother. The respondent wanted his children to think that their mother was a bad person. The respondent involved the children so much that all three children told the clinical investigator that their father hates Mr. Kirby; the children’s statements also reflect their awareness of the respondent’s criticisms of their mother.
[44] I find that it is in the best interests of the children to create a parenting schedule where there will be no perception by the children that their mother “lost” or that their father “won.” The parenting schedule, to meet the children’s best interests, must continue to provide regular and extensive parenting time to the applicant.
[45] Accordingly, the order below is structured to meet that goal. The order does take into account the respondent’s work schedule and that the children live close to the school and that the respondent for now is available to walk the children to school or to pick them up after school. Accordingly, the applicant’s parenting time does give her the flexibility to drop the children off at the respondent’s residence prior to school so that she can get to work on time and also gives her the flexibility of having the respondent pick up the children right after school during her parenting days so that as soon as the applicant is finished work she can then pick up the children.
[46] During periods of time when the children are in school, it is in the children’s best interests to work with the current schedule and to make some additions. The additions to the regular schedule are modest – on the Monday, the applicant’s time is extended to the evening, and there is one extra overnight on alternate weeks.
[47] During the summer months when the children are not in school, it is in my view in the children’s best interests to provide for a week-about schedule during the months of July and August. In that respect, the parents will need to communicate with each other and, if either parent is planning to enroll the children in any summer day camp or other program, then the parents should ensure that that is coordinated between them in a manner that meets the children’s best interests.
[48] The week-about will give the respondent an opportunity, prior to trial, to better explore the possibility of employment prospects.
[49] I need to address the issues raised by the respondent as to the extent that the court can rely on the OCL report when making an interim order.
[50] It was the respondent’s submission that the clinical investigator was not an expert witness and, further, that for the purpose of the motion, little, if any, weight should be accorded to the OCL report.
[51] The respondent further submitted that a dispute, in letter form, was forwarded to the Office of the Children’s Lawyer as provided for in R. 21. It was the respondent’s position that the filing of the dispute was another reason to limit the weight to be placed on the OCL report. It appears to be the respondent’s suggestion that the clinical investigator, at trial, may be challenged vigorously during cross-examination.
[52] Jurisprudence dealing with the use of assessments on a motion is to some extent evolving. The applicant relies on Wang v. Grenier, [2016] O.J. No. 4450 (S.C.J.), a decision of R. Beaudoin J., who stated as follows in paras 42 and 43:
42 As noted by Master MacLeod, not all courts have accepted the test of "exceptional circumstances." In Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442, Mitrow J. set out general principles and specific criteria to be applied when determining whether to consider an assessment report on an interim motion. He said this at paras. 23 and 24:
23 I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte, [2004] O.J. No. 1738 and Kerr 2010 ONSC 1995, [2010] O.J. No. 1506. In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances" as set out in Genovesi. In fact, "exceptional circumstances" findings were not made in either Forte or Kerr.
24 The court has a duty to make orders in a child's best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.
43 He went on to set out the general principles to be followed at paras. 26 and 27:
26 In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that "exceptional circumstances" exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case. Without in any way being exhaustive, these factors may include:
a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?
b) What other evidence is before the court to support the change requested?
c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?
d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?
27 It must be cautioned that the existence of an assessment report should not make it "open season" for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court's discretion.
[53] In considering the factors listed in Bos [2] in the context of the present case, there is a nuance to take into account. The OCL report is not an expert report nor an assessment [3]. An OCL report, largely, is a fact-gathering exercise. The statute [4] expressly provides for an investigation to be made and for a report that includes recommendations. I adopt the following discussion by Aston J. in Van Bilsen v. Van Bilsen, 2003 CarswellOnt 4831 (S.C.J.):
16 Mr. Hersch, on behalf of the mother, properly points out that the report from the Office of the Children's Lawyer is not an expert report such as might be had under section 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The author of an O.C.L. report is a fact finder. Section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (as amended by S.O. 1991, c. 46), does give the author of the report, on behalf of the Office of the Children's Lawyer, the power to make recommendations on the resolution of the issues but I agree with Mr. Hersch that those recommendations are only a starting point and not the last word. …
[54] In the present case, the most pertinent aspects of the OCL report relevant to the motion are the observations of the respondent’s demeanor, some of the statements (as discussed earlier) made by the children to the clinical investigator and statements made by the parties to the clinical investigator.
[55] The clinical investigator has filed an affidavit. She was not cross-examined. It is difficult to attach weight to the respondent’s submissions that it is best not to consider the OCL report now but, rather, wait until the clinical investigator can be cross-examined at trial. First, the respondent could have cross-examined the clinical investigator prior to the motion. He chose not to do so and fails to explain why. Secondly, a trial is expensive and it consumes judicial resources; the purpose of the case management system in family law is to avoid trials when reasonably possible – “saving time and expense” is part of the objective of the rules that require cases to be dealt with “justly.”
[56] Simply put: it is not necessary to drag out a case to trial so the clinical investigator can be cross-examined, when other less expensive options are available to question the clinical investigator.
[57] Further, the parties are of modest means; the respondent is on social assistance presently. The question may well be asked – who is going to pay for this trial?
[58] In cases where an OCL report has been prepared, the public resources dedicated to facilitate that report must be respected by the litigants. Each party should consider such a report carefully, with a view to using the report to achieve a settlement. Pressing on to trial, with full-blown cross-examination of the clinical investigator, should be reserved for those cases when there are genuine justiciable issues.
[59] In the present case, I focus not on the recommendations, but on factual aspects of the OCL report as discussed earlier. Applying the factors discussed in Bos: the change being made to the regular parenting schedule is not significant; there is affidavit evidence supporting the change; only some factual aspects of the OCL report are being considered, not the recommendations; and those portions of the OCL report that are being considered are largely non-contentious and no request was made to cross-examine the clinical investigator.
[60] In Wang, supra, there is the following quote from a decision of Chappel J. that I adopt:
48 In Matsinda v. Batsinda, 2013 ONSC 7869, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:
32 ... The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (Ont. S.C.J.)).
[61] Although these reasons have contained criticism of both parties, it is also fair to note that both parties are dedicated and loving parents to their children, despite their personal differences. The parties are encouraged, strongly, to use the upcoming settlement conference, the OCL report and these reasons to achieve a settlement. The best gift that these parents can give their children is to tell their children, together at the same time, that the conflict is over, and that “mom and dad” have agreed how to share parenting time. The children have been in a “war zone.” It is time for conciliation.
Order
[62] I order as follows:
Pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], each party shall have interim care and control of the children (“the regular parenting schedule”) when the children are with him or her according to the following schedule: a) the children shall be with the applicant every week from 5:30 p.m. Friday to 7:30 p.m. Monday, except that on alternate weeks the parenting time is extended to school time on Tuesday or, if no school, then 9:00 a.m. Tuesday; b) the applicant shall have mid-week parenting time, as agreed between the parties, to facilitate one-on-one-contact between the applicant and each child; and c) the children shall be with the respondent at all other times.
The regular parenting schedule is suspended during the period starting 5:30 p.m. Friday, July 7, 2017 and ending 5:30 p.m. Friday, September 1, 2017 and, during this period, each party shall have care and control of the children as follows: a) the children will be with each party on an alternating week-about basis, with the change-over to be on Fridays at 5:30 p.m.; b) the children shall be with the applicant for the week commencing 5:30 p.m. Friday, July 7, 2017 and with the respondent for the week commencing 5:30 p.m. Friday, July 14, 2017, and with the weeks alternating thereafter; and c) the parties shall cooperate in making any arrangements for day camps or summer camps for the children.
An interim order is granted, as asked in paragraphs 11, 13 and 14 of the applicant’s motion at tab 23 of the continuing record (dealing with communication).
The applicant and respondent shall not consume any non-prescribed substances, including without limiting the generality of the foregoing, alcohol and marijuana, 24 hours prior to, and during, any period of time when the children are in his or her care and control.
Pending trial, there shall be no change in the school that each child attends.
Pending trial, there shall be no change to the physicians and dentists that the children attend.
During the regular parenting schedule, when the children are in school, the applicant, rather than using before-school or after-school programs, shall instead drop the children off at the respondent’s residence by 8:45 a.m. and arrange for the respondent to pick up the children from school and the applicant shall then pick up the children from the respondent’s residence as soon as she is finished work.
Both parties shall act reasonably to request the other party to care for the children when she or he has the children and is unavailable to be with them. This shall not prevent a party from placing the children in camp activities during the summer or arranging an occasional visit with extended family members including, but not limited to, grandparents.
The children shall not be removed from Ontario absent a court order or written agreement of the parties.
This case is adjourned to the trial sittings commencing September 11, 2017 and the trial readiness court is at 9:30 a.m. September 5, 2017.
The trial management conference date is Monday, August 14, 2017 at 11:30 a.m. but this date may be changed by the trial coordinator on joint agreement of the parties, or at the settlement conference.
Paragraphs 2 – 8 inclusive of the order of Heeney J. dated June 22, 2016 are vacated:
Written costs submissions may be made to the trial coordinator as follows: by the applicant within 14 days, by the respondent within 14 days thereafter, and reply, if any, by the applicant within 7 days thereafter; all submissions are limited to 2 double-spaced typed pages plus any offers, bill of costs or time dockets and authorities.
“Justice Victor Mitrow” Justice Victor Mitrow Date: February 24, 2017
[1] On March 3, 2017 a typographical error was corrected by inserting the word “applicant” in the first and second line to replace the word “respondent”.
[2] Bos v. Bos, 2012 ONSC 3425
[3] For example, as contemplated by s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12.