COURT FILE NO.: FS-16-0159 DATE: 2017-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kyla Balke, Applicant
W. Donnelly, for the Applicant
- and -
Jonathan O’Connor, Respondent
M. Currie, for the Respondent
HEARD: April 13, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision on Motion
Overview
[1] This motion is to determine, primarily, the temporary parenting arrangements to be made for the parties’ almost 3-year-old daughter. Subject to what order is made, child support is sought.
The Facts
[2] Ms. Balke and Mr. O’Connor have been together since January 2011. They have one child, a daughter, River Jane–Sherry O’Connor, who was born on July 19, 2014. They married on April 21, 2015 and separated, according to Ms. Balke’s affidavit, in mid-May, 2016.
[3] This application was issued on July 27, 2016 and Ms. Balke brought a motion on notice the next day for temporary sole custody of River, a restraining order and temporary exclusive possession of the matrimonial home. That motion was adjourned on without prejudice terms. Mr. O’Connor brought his own motion for interim joint custody and shared parenting returnable August 25, 2016. Further without prejudice orders were made on August 4 and 25, 2016 on terms continuing the temporary exclusive possession of the home and setting out a schedule for the care and control of River by the parties. The schedule provided that Mr. O’Connor would have care and control of River on alternate weekends from Friday at 4 p.m. until Sunday at 6 p.m. and alternate Wednesdays and alternate Tuesdays from 4 p.m. to 7 p.m. Thereafter, there were three other adjournments on consent until a case conference was held on March 20, 2017. At that time, Warkentin J. set a timeline for the delivery of motion material and the hearing of this motion. The issue of exclusive possession of the matrimonial home has resolved. Mr. O’Connor is back in the home and Ms. Balke has moved elsewhere.
[4] Ms. Balke is a social worker. She deposed in her three affidavits that she and Mr. O’Connor separated on a final basis in mid-May 2016. She testified as to Mr. O’Connor’s abuse towards her and his difficulties with the alcohol. She described the “status quo” following separation to the time of the without prejudice temporary consent orders. She describes herself as the primary caregiver.
[5] The evidence in support of Mr. O’Connor consisted of his own two affidavits and affidavits from nine other friends and colleagues including Ms. Balke’s older sister and River’s daycare provider. Mr. O’Connor joined the Army at 17 and is currently a Sergeant. Since 2007, he is posted as the Northwestern Ontario provincial recruiting officer. The friends and colleagues described him as an excellent father and all deposed that there is no issue with abuse or alcohol. Mr. O’Connor admits his conviction for care and control of the motor vehicle while impaired. He was arrested while asleep in his truck after a night of drinking. He has been sentenced and now drives with conditions. He denies the allegations of the abuse and deposed that Ms. Balke has rage issues which lead to her damaging property.
[6] Ms. Balke’s older sister is an early childhood educator. She deposed that Mr. O’Connor is a “very loving and hands on father.” She deposed that there is a definite bond between father and daughter that is very strong. She has no doubt in her mind that he should be involved in all aspects of River’s life.
[7] River’s former daycare provider has cared for River since she was eight months old. She saw Mr. O’Connor 4–5 times per week depending upon who has River. She has not witnessed any issues with alcohol or abuse or conflict between the parties. She deposed that River “idolizes her daddy” and she described Mr. O’Connor as “an amazing dad.”
Positions of the Parties
[8] Ms. Balke seeks that the parenting “status quo” continue and monthly guideline child support of $524 based on Mr. O’Connor’s income of $57,700. She also seeks retroactive child support from May 2016. Mr. O’Connor’s seeks either an order for joint custody or, alternatively, he argues that a determination of custody is not necessary at this time. He seeks shared parenting either on a split week or week on/week off basis. Because their incomes are roughly equivalent, he argues that there should not be any child support payable. With respect to past child support he argues that he has already contributed and that, given the complexities involved in sorting out who has paid what, this is best left for trial should the parties not be able to agree.
The Law
[9] The legal principles applicable to custody and access are succinctly and simply set out in the Divorce Act and the Children’s Law Reform Act.
[10] The Divorce Act, R.S.C., 1985, c. 3, provides:
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[11] The application of the “best interests” test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3. McLachlin J. (as she was then) stated that the “best interests” test is the only test and the test is, necessarily, broad. The only specific factor that the judge must consider is the “maximum contact” principle set out s.16 (10) (para. 201-204).
[12] Section 24(2) of the Children's Law Reform Act, RSO 1990, c. C.12, also provides helpful guidance:
Best interests of child
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Past conduct
A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[13] I also accept the following excerpts from Madill v. Madill, 2014 ONSC 7227 as accurate statements of the law:
[31] In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030; and Easton v. McAvoy, 2005 ONCJ 319.
[32] The Court must consider the best interests of the children, including their needs and circumstances – with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.
[14] And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 as accurate statements of the law:
[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]
Analysis and Disposition
[15] In these circumstances, I do not consider the “status quo” as asserted by Ms. Balke to be determinative. There is not clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. Indeed, Mr. O’Connor argues that it was his request for more time with River that led to the conflict that resulted in Ms. Balke’s motion on July 28, 2016. Mr. O’Connor, at the earliest opportunity, brought his own motion for interim joint custody and shared parenting. For the purposes of this motion I conclude that the “status quo” is that which existed prior to separation.
[16] The governing criterion is the best interests of the child subject to the maximum contact principle. I find that there is not any past conduct relevant to parenting.
[17] The section 24(2) CLRA factors do not weigh in favour of one parent rather than the other. I am satisfied on the evidence of the emotional tie between father and daughter. No real issue with Mr. O’Connor’s parenting ability is raised on the evidence.
[18] I conclude that it is in River’s best interests that her parenting be shared equally by her parents. There is no need, at this point, for a custody order.
[19] Subject to the agreement of the parties to vary parenting to a week on/week off basis, I order, on a temporary basis, that shared parenting will alternate as follows:
(a) the respondent will have the child from Monday after daycare until Wednesday morning to daycare;
(b) the applicant would have the child from Wednesday after daycare until Friday morning to daycare;
(c) the respondent would have the child from Friday after daycare until Monday morning to daycare;
(d) thereafter, the same pattern would continue but with the other parent with a rotation each week;
(e) all exchanges are to be at daycare.
[20] This schedule to take effect the Monday following the release of my decision.
[21] Having made this determination with respect to parenting no child support is ordered. The parties shall share equally the cost of daycare.
[22] The issue of past child support is dependent upon the attribution of certain payments made by Mr. O’Connor to Ms. Balke. There is insufficient evidence on the material before me to make those determinations so, failing agreement between the parties, that issue is left for trial.
[23] I consider it beneficial for the parties that communication regarding River be formalized and order that the parties use My Family Wizard or such similar program as agreed to by the parties.
[24] Should the parties be unable to agree to costs then counsel for Mr. O’Connor is to file submissions limited to three pages plus costs outline within 21 days from the release of these reasons. Thereafter, counsel for Ms. Balke shall file submissions limited to three pages plus costs outline within seven days. If no cost submissions are received within 30 days then costs will be deemed settled.
“Original signed by”____ The Hon. Mr. Justice W.D. Newton
Released: April 24, 2017
COURT FILE NO.: FS-16-0159 DATE: 2017-04-24
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Kyla Balke, Applicant - and - Jonathan O’Connor, Respondent DECISION ON MOTION Newton J.
Released: April 24, 2017
/sab