Court File and Parties
COURT FILE NO.: F441/17 DATE: April 27, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Emily McQueen, applicant AND: Neal Toby Pasternak, respondent
BEFORE: MITROW J.
COUNSEL: Alla Kikinova for the applicant Zachary Wilson for the respondent
HEARD: April 5, 2017
Endorsement
[1] Both parties bring a motion prior to a case conference for various relief, including interim custody and interim access.
[2] I find that urgency exists from the perspective of both parties and that it is appropriate to hear the motions before a case conference. From the applicant’s perspective, she complains about very recent harassing behaviour by the respondent that resulted in her calling the police and a charge being laid against the respondent for criminal harassment. From the respondent’s perspective, there was an urgency because the child was not returned to the respondent after a weekend with the applicant and, further, the child was withheld from school by the applicant.
[3] Accordingly, it is necessary for the court to intervene and make an appropriate interim order to stabilize the situation in the child’s best interests.
[4] At the conclusion of argument on the motions, an interim without prejudice order was made setting out the parenting time pending the release of this endorsement.
[5] For reasons that follow, an interim order is made that each week the child is with the applicant mother for three days and with the respondent father for four days and, further, awarding interim custody to the applicant.
Background Facts
[6] The parties, who are not married to each other, had cohabited for a number of years and separated in the latter part of August 2016.
[7] The applicant mother deposed that cohabitation started in September 2006, whereas the respondent father deposed that cohabitation started in September 2007. Nothing turns on the conflicting evidence as to the length of cohabitation.
[8] The parties have one child together, Alexander, who is eight years of age. The applicant has a daughter, age 17, from a previous relationship and who is not a subject of this proceeding or the motions before the court.
[9] There is no dispute that on separation the parties agreed that the child would be in the applicant’s care on weekends from Friday to Sunday, and during the week the child would be in the care of the respondent.
[10] Also, there is no dispute that at the time of separation, the respondent was not working, while the applicant was working during the day.
[11] Although it is the respondent’s evidence that soon after separation he began working fulltime, it is unclear on the evidence whether he made the applicant aware that he was employed, including the hours of his employment.
[12] There is, however, a dispute as to the circumstances surrounding the alternate weekend access schedule in favour of the applicant from Friday at 7:30 p.m. to Sunday at 7:30 p.m. This schedule started during January 2017.
[13] While the respondent deposes that the parties “implemented” this new schedule, it is the applicant’s evidence that the respondent “reduced” her access to alternate weekends.
[14] The respondent’s position as to parenting time is straightforward. He submits that on an interim basis the status quo should be preserved. The respondent relies on the following statement made by Mackinnon J. in Grant v. Turgeon, 2000 CarswellOnt 1128 (S.C.J.) at para. 15, which I adopt:
15 There are two principles of law at play in this case. The first is that, generally, 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. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern (1994), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp, [1970] 1 O.R. 331 (C.A.).
[15] The respondent submits that the status quo is clear: the child has lived with him primarily and there is no basis on the facts to disturb the status quo. The respondent proposes that primary residence of the child should remain with him on an interim basis and that the applicant should have access two out of three weekends from 7:30 p.m. Friday to 7:30 p.m. Sunday.
[16] The applicant submits that the parenting schedule should be on a week-about basis, and that the applicant should be given the right to make decisions about the child.
[17] The applicant raises some allegations of physical abuse against her by the respondent, alleged to have occurred in 2013 and/or 2014. The respondent addresses these allegations of physical abuse, specifically, and denies same. He deposes that any physical contact that he had with the applicant was in self-defence.
[18] These dated and conflicted accounts of alleged physical abuse cannot be relied on to inform the proper disposition of the motions. However, the applicant goes further. She explains that soon after separation she commenced a relationship with a female partner. Both the applicant and her female partner, in their affidavits, recount verbal abuse that included comments made by the respondent disparaging both the applicant and her partner because of their same-gender relationship. The applicant further deposes that the respondent has involved the child in his disapproval of the applicant’s new relationship.
[19] In deciding the motions, an important factor is that the respondent does not deny the disparaging statements attributed to him by the applicant and her partner. Further, during argument, the respondent’s counsel, Mr. Wilson, submitted that the respondent does not deny making those statements. Accordingly, I place little weight on the respondent’s broad statement, in paragraph 15 of his affidavit, that “unless otherwise admitted” he denies allegations contained in the affidavits of the applicant and her partner. The respondent in his affidavit fails to respond to the specific allegations made by the applicant and the applicant’s partner.
[20] What is the evidence that the respondent does not deny? It includes the following:
It includes the applicant’s evidence as follows: (a) the respondent made recordings involving the child that included adult issues; some recordings were sent to the applicant via audio files on Facebook; (b) in the recordings, the respondent uttered profanities, apparently directed at the applicant, during questioning of the child; (c) the recordings included the respondent providing the child with “a graphic description of adult relationships and asked ‘was not that disgusting?’”; (d) during the last weekend in March 2017, the respondent encountered the applicant’s partner at a local bar and had an altercation with her (as detailed below); (e) after this altercation, the respondent starting texting the applicant making “veiled threats”, stating that the applicant should just wait to see how scary he can become; (f) in response to the respondent’s threats, the applicant took the child and went to a women’s shelter; and
The evidence not denied by the respondent includes the evidence of the applicant’s partner as follows: (a) the respondent has harassed the applicant’s partner via Facebook, posting information about the applicant’s partner and the applicant, including calling the applicant’s partner a “dyke, bulldyke, butch and cunt”; (b) on October 30, 2016, the applicant’s partner received a comment on social media from the respondent that said “You are not allowed around my son. Keep your dyke thing to weekdays or Emily [the applicant] will never see him again do you fucking understand, you fucking ugly butch?”; (c) on March 26, 2017 at 2:55 a.m., the applicant’s partner received a message on the respondent’s alias account on Facebook, where he identified as Neal Wheat, and the message was “Nice freak out dyke … lol”; (d) on March 26, 2017 at 12:35 a.m., the respondent sent a message about the applicant’s partner “lol dyke had a meltdown tonight at bar”; (e) the applicant’s partner deposes that she received messages from numerous accounts such as “Wanna know some info on Emily?” and “you’ve made her lose her son forever”; (f) on March 26, 2017, after the applicant’s partner ran into the respondent at a local bar, the respondent accused the applicant’s partner of ruining his family and he called her a “cunt” and “dyke”.
[21] There is no dispute that the applicant called police after the weekend incident and that the respondent was arrested and charged with criminal harassment. The respondent is currently subject to a Criminal Code, R.S.C., 1985, c. C-46 order requiring him to abstain from communicating directly or indirectly with the applicant.
Discussion
[22] The respondent’s conduct, not denied by him, is egregious. The applicant and her partner cohabit. The respondent’s intolerance of that relationship and his mindless anger depict him as a homophobic individual, who is unable to control his vitriol.
[23] The respondent deposes that he would “never allow” his feelings regarding the applicant’s relationship to affect his ability to properly parent the child. The respondent further deposes that nothing has happened that relates to his ability to properly parent the child.
[24] This evidence from the respondent suggests, unfortunately, that the respondent fails to appreciate or understand that his anger and intolerance toward the applicant and her relationship with her partner, and the respondent’s decision to involve the child in these adult matters, are factors that cast a negative light on his judgment and his ability to parent.
[25] In relation to status quo, I find that the initial status quo was weekdays with the respondent and weekends with the applicant, and that this status quo started on separation and at a time when the respondent was not working. Although the applicant’s access was reduced to alternate weekends starting in January 2017, I am not satisfied on the evidence that this reduction in access was consented to by the applicant.
[26] It is not possible to rely on the text message excerpts, appended as exhibits to the respondent’s affidavit, to conclude that the applicant was in agreement with alternate weekend access.
[27] While I agree with the respondent’s concerns about the applicant’s conduct, after criminal charges were laid, not to send the child to school and to withhold the child from the respondent, I also take into account the context that prompted that behaviour, including the conduct of the respondent and also including what the police told the applicant to do.
[28] I deal first with the parenting schedule. The respondent works days; he starts work early in the morning and is home by 1:30 p.m. at the latest. The respondent lives with his father, who is retired and available to take the child to school in the morning. It is in the child’s best interests to maintain a schedule where he is with the applicant from Friday to Monday and with the respondent from after school Monday to after school on Friday. Further, that schedule will ensure that during the school year all exchanges are at the school, and will assist in avoiding contact between the applicant and the respondent. Finally, the above schedule does reflect closely the status quo that was agreed to on separation.
[29] Although the child is to be with the respondent for four out of seven days, I find that given the facts, it is in the child’s best interests for the applicant to make all necessary decisions regarding the child. Accordingly, I find it is in the child’s best interests that the applicant have interim custody of the child. I find that the Criminal Code requirement prohibiting the respondent from communicating with the applicant, and the respondent’s conduct, including his attempts to inculcate the child into his world of homophobia, are “compelling reasons” to alter any custodial right that had accrued to the respondent as part of the status quo.
[30] Although there is no motion to this effect, the parties had requested on consent an OCL order. I am not convinced that such an order is necessary at this time. Instead, the respondent is encouraged to engage in appropriate counselling to assist him in accepting the applicant’s new relationship, and assisting the respondent how to manage his anger and how to approach the applicant’s new relationship in a child-focussed manner in relation to the child. If the respondent can demonstrate measurable progress through counselling, then that may be a factor to be considered when dealing with custody issues on a final basis.
Order
[31] I make the following interim order:
The applicant shall have interim custody of the child.
The respondent shall have interim access to the child as follows: (a) each week starting when school ends on Monday and ending when school ends on Friday; (b) if Monday is a statutory holiday, then the respondent’s access instead shall start on Tuesday when school ends; (c) during the summer vacation from school, the respondent’s access shall start at 6:00 p.m. Monday and shall end at 6:00 p.m. Friday; (d) during the school year, all access exchanges shall take place at the school; otherwise all access exchanges shall take place at a neutral location agreed to between counsel, and the respondent shall designate an adult person known to the child to attend at the access exchange location, and the respondent shall not be present at those exchanges; and (e) notwithstanding the above schedule, the child shall be with the respondent on Father’s Day from 10 a.m. to 7:30 p.m. and the access exchange shall occur at a neutral location as set out in subparagraph (d).
The child shall not be removed from Ontario except on written consent of both parties or order of the court.
The child’s name shall not be changed.
The child’s principal residence shall not be changed from London, Ontario and the child’s school shall not be changed.
During July and August 2017, each party is entitled to take the child on a one-week vacation. Unless the parties agree otherwise, the applicant shall have her choice of one week during July and the respondent shall have his choice of one week during August. The parties may agree through counsel to additional vacation time for each party during the summer of 2017.
Neither party shall discuss this case with the child, and neither party shall make any derogatory comments about the other party, or his or her partner, to, or in front of, the child.
Each party shall have reasonable telephone access to the child when the child is in the care of the other party.
My order dated April 5, 2017 is vacated save and except the setting of the case conference date.
If the parties are unable to agree on the costs of the motions, then the parties shall forward their written costs submissions to the trial coordinator; the applicant shall forward her submissions within 14 days, the respondent shall forward his submissions within 14 days thereafter and the applicant shall forward her reply, if any, within 7 days thereafter; all cost submissions shall be limited to two-typed pages, double spaced, plus copies of any offers, bills of costs, time dockets and authorities.
“Justice Victor Mitrow” Justice Victor Mitrow