Court File and Parties

COURT FILE NO.: D-21,615/16 DATE: 2017-01-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alain Lemieux, Applicant – and – Amanda Lemieux, Respondent

Counsel: Krista J. Fortier, for the Applicant Matti E. Mottonen, for the Respondent

HEARD: January 12, 2017

Decision on Motion

GAUTHIER, J.

The Motions for Interim Orders

[1] There are two motions before me, one from each of the applicant and the respondent, whom I will refer to as the Father and the Mother.

[2] The Mother seeks the following relief:

1. Interim custody of the two children of the marriage namely, Abigail Charlotte Lemieux, born on August 13, 2009, and Aiden Phillip Lemieux, born on July 8, 2011.
2. An interim order defining the applicant father Alan Lemieux’s access to the two children of the marriage.
3. An order requiring the applicant father Alan Lemieux to pay interim child support to the respondent mother Amanda Lemieux for the support of the two children of the marriage pursuant to the Child Support Guidelines, S.O.R./97-175.
4. An order requiring the applicant father to keep the two children of the marriage covered under any and all health insurance coverage available to the applicant father through the course of his present employment.
5. An order requiring the applicant father to designate the respondent mother as beneficiary in trust for the two children under any and all life insurance policies owned by the applicant father.
6. An order requiring the applicant father to pay the respondent mother her costs of this motion on a full indemnity basis.

[3] For his part, the Father seeks the following:

1. An order granting the applicant father Alain Lemieux and the respondent mother Amanda Lemieux interim joint custody of the two children of the marriage, namely Abigail Charlotte Lemieux, born August 13, 2009, and Aiden Phillip Lemieux, born July 8, 2011, with the children’s primary residence to be with the applicant father.
2. An order defining the respondent mother’s access to the two children on an interim basis.
3. In the alternative, an order that the applicant and the respondent have joint and shared custody of the children with the children to spend approximately half of the time with each parent.
4. An order requiring the respondent mother to pay interim child support to the applicant father for the support of the two children, namely Abigail Charlotte Lemieux, born August 13, 2009, and Aiden Phillip Lemieux, born July 8, 2011, in accordance with the Child Support Guidelines.
5. An order for the respondent to maintain in force for the benefit of the applicant and the children a plan of health insurance for extended health care benefits including dental coverage and other coverages as available through her employment.
6. An order requiring the respondent to designate the applicant and the children of the marriage, namely Abigail Charlotte Lemieux, born August 13, 2009, and Aiden Phillip Lemieux, born July 8, 2011, as irrevocable beneficiaries of her life insurance policy or policies.
7. An order requiring the respondent mother to pay the applicant father’s costs of the motion on a full indemnity basis.

Facts

[4] The parties commenced cohabitating together in October 2005.

[5] The parties were married to one another on June 16, 2007.

[6] The parties have been living separate and apart since November 20, 2015.

[7] The parties have two children of their marriage namely, Abigail Charlotte Lemieux, born August 13, 2009, and Aiden Phillip Lemieux, born July 8, 2011.

[8] Abigail Lemieux is enrolled in grade 2 at École St. Antoine.

[9] Aiden Lemieux is enrolled in senior kindergarten at École St. Antoine.

[10] The children’s school is located in Noelville, Ontario.

[11] The applicant father continues to occupy the matrimonial home that the parties jointly own at 15 John Street, St. Charles, Ontario.

[12] The respondent mother resides at 65 David Street, Apartment #4, Noelville, Ontario.

[13] The respondent mother is employed as a teacher at École secondaire de la Rivière-des-Français in Noelville, Ontario.

[14] The applicant father is employed with the City of Greater Sudbury and therefore travels to work from St. Charles to Sudbury each work day.

[15] After the separation the parenting arrangement for the children was a 2-2-3 schedule, which rotated weekly. That schedule was followed until the fall of 2016 when the parties attempted, directly, to negotiate a resolution of all of the issues. Negotiations broke down and the parties reverted to the 2-2-3 rotating schedule.

[16] Earlier in June 2016, Mother had brought a motion, on an urgent basis, for an order for custody of the children and an order specifying the Father’s access. The judge hearing the motion determined that there was no urgency and that the parenting arrangement that was in place should continue until the case conference.

[17] The Mother then brought her motion on December 13, 2016, and the Father brought his motion on January 6, 2017. Both motions were heard on January 12, 2013.

The Applicable Legislation

[18] Section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), is engaged in this proceeding;

Order for custody

16 (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.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

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.

[19] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, governs the determination of the best interests of a child:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) 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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) 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

(4) 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.

The Applicable Law and Principles

[20] The maximum contact principle, set out at ss. 16(10) of the Divorce Act, is mandatory, but not absolute. It obliges a judge to respect it to the extent that such contact is consistent with the child’s best interests, however, if other factors establish that to do so would not be in a child’s best interests, then contact with a parent can and should be reduced: see Gordon v. Goertz.

[21] The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective. Parental rights and preferences are not engaged in the analysis except to the extent that they are necessary to ensure a child’s best interests: see Gordon, and Young v. Young.

[22] “Inevitably, all cases in which parents are seeking custody, sole or otherwise, especially with young children, are credible fact driven. A court must be on guard that a parent may consciously or unconsciously paint a negative picture of the other, as a result of hindsight and hurt feelings.”: see Boisvert v. Boisvert, 2007 ONSC 24073, at para. 10.

[23] At the heart of joint custody is shared decision making. Despite strained and volatile communication, where the parties have demonstrated that they are nonetheless able to put aside their personal differences and issues, and place the interests of their children first, and to work together to parent the children, then an award of joint custody is appropriate, and in the best interests of the children: see Cote v. Dixon, 2007 ONSC 10405.

[24] Papp v. Papp (1969), 8 D.LR. (3d) 389 (Ont. C.A.), sets out a “working rule” regarding evidence to warrant interim custody orders at p. 402:

…evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits.

[25] The above working rule was qualified in Batsinda v. Batsinda, 2013 ONSC 7869, [2013] O.J. No. 6120. Paragraphs 24 to 28 of that decision are instructive and I have reproduced them:

24 In a number of cases, this court has held that as a general rule, changes to existing custody, residence and access arrangements that have evolved either as a result of temporary orders or otherwise should not be made pending trial unless there are compelling circumstances which render a chance [ sic ] absolutely necessary in order to satisfy the child’s best interests. (Doell v. Cassar, 2009 ONSC 6390; Osama v. Sayegh; David v. McCain; Kimpton v. Kimpton)

25 However, I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp, [1970] 1 O.R. 331 (C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence that may be required to disrupt the status quo after trial.

26 As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson. It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.

27 The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.

28 In determining the issue of whether the status quo respecting decisions-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; Horton v. Marsh, 2008 NSSC 230) 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.

Mother’s Position

[26] The Mother was the primary care giver to the two children from their birth, until the time of separation. She was the one who attended to the children’s medical needs, school needs, recreational needs etc.

[27] The Father was not generally involved in the day-to-day care of the children before the separation; he chose to spend most of his time pursuing his interests, such as outdoor activities including hunting and fishing.

[28] The Father, since the separation, has consistently dictated the parenting schedules. He threatened the Mother and she had no choice but to go along with the Father’s unilateral decisions for fear that he would keep the children from her.

[29] The Father is not himself providing the care to the children when they are supposed to be with him. The majority of the child care is done by his parents, or his girlfriend. He works shift work and must travel 45 to 60 minutes (each way) from St. Charles to Sudbury for work.

[30] The current arrangement has the children travelling by bus from St. Charles to Noelville for school, when they are with the Father. That bus ride is 60 minutes each way; most of the students on the bus are high school aged children, not children close in age to Abigail and Aiden.

[31] The Father has been controlling and verbally abusive to the Mother.

[32] The children are reluctant to go to the Father’s. This reluctance has been witnessed by other individuals.

[33] The Mother is better able to care for the children and to do what is in their best interests. The Father, on the other hand, is seeking 50% of the time with the children because he feels he is entitled to that, and he wishes to hurt the Mother. He is unable to put the children’s needs ahead of his own wishes.

[34] The Father is not sufficiently attentive to the children’s hygiene.

Father’s Position

[35] The parties have, since the separation, exercised a shared custody arrangement, which works well, and which is in the best interests of the children. This status quo should not be displaced on the facts of this case.

[36] The Father has always been very involved with the children and they have an extremely close and loving bond. The children cry when they have to return to the Mother. They are always extremely happy to be with the Father.

[37] There is no evidence to suggest that the children are not thriving under the existing parenting arrangement. The children’s report cards confirm that they are doing well.

[38] The Mother continually questions the children about the time they spend with the Father.

[39] The Father continues to occupy the matrimonial home which provides stability for the children as this is the home they have known all their lives. He is involved in a stable relationship and the children enjoy spending time with the Father’s girlfriend’s two children, ages five and three.

Evidence of Settlement Discussions

[40] In the course of submissions, an issue arose about the propriety of the Father having provided text messages evidencing the parties’ failed attempts to resolve all of the issues between them. The issue was temporarily suspended, pending receipt in writing of further submissions and jurisprudence by the parties. The motion was fully argued with the understanding that I would deal with this issue in my reasons.

[41] For reasons that follow, I conclude that these text messages should not have been put before the court. Further, the affidavits of both parties should not have included evidence about the contents of settlement discussions.

[42] Communications made in an attempt to effect a compromise or resolve issues are subject to litigation privilege. This is a long-standing principle and is reflected in the words of Cameron C.J. of the Ontario Court of Appeal in Pirie v. Wyld (1886), 11 O.R. 422 (C.A.), at p. 427:

… letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements.

[43] As the Divisional Court stated at para. 11 of Inter-Leasing, Inc. v. Ontario (Finance), 2009 ONSC 63595:

A party seeking to introduce in evidence material subject to settlement privilege must show that the communication is relevant and the disclosure is necessary, either to show the agreement of the parties or to address a compelling or overriding interest of justice. (Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, [2005] B.C.J. No. 5 (B.C.C.A.) at para 20).

[44] This statement was submitted to and accepted by Fragomeni J. at paras. 16 and 23 of Rodriguez v. Guignard, 2012 ONSC 2444, 20 R.F.L. (7th) 146.

[45] At para. 17, Fragomeni J. went on to quote Alan W. Bryant, Sidney N. Lederman, & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009), at p. 1030:

s. 14.313 It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

s. 14.315 In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.

[46] As the court said in William Allan Real Estate Co. v. Robichaud (1987), 17 C.P.C. (2d) 138 (Ont. H.C.), at p. 141, “What sensible man would attempt settlement if it could be used against him at trial?”

[47] The conflict between the protection of settlement communications by litigation privilege and the production of all evidence relevant to the best interest of a child was discussed in Hutton v. Hutton, [1990] O.J. No. 1081 (Dist. Ct.), where Taliano D.C.J. stated:

I am not unmindful of the fact that the court should not lightly displace a privilege that has been entrenched in the law for so long, but in this case, it is necessary to give pre-eminence to a policy objective that is superior to it. Although both policy objectives are important and deserve to be fostered, the policy interest that promotes and protects the best interests of the child is paramount and the privilege attached to settlement discussions must therefore yield to it…

[48] This can be considered alongside Georgareas v. Georgareas, 2006 ONSC 44274, where Herman J. made the following observation at para. 7:

However, while the substance of the proposals is privileged, evidence that attempts have been made to resolve access and those attempts have not been successful is, in my opinion, permitted evidence. The ability of the parents to come to agreements regarding their children, including agreements regarding access, is relevant to a determination of custody and access and what is in the children’s best interests.

The substance of the discussions should therefore be deleted from the affidavit and exhibits but evidence in support of the party’s allegation that there is a pattern of frustrating access I otherwise permitted.

[49] Balancing the competing principles, I find the fact that the Father and the Mother engaged in settlement discussions is relevant and admissible. The evidence regarding the parenting arrangements that were in place during those discussions are relevant and admissible. But the substance of those discussions is not.

[50] It is also not proper, in the circumstances of this case, to rely on those discussions as evidence of the Mother’s willingness to accept that the parties have joint custody. It would be equally improper to rely on those discussions to support the proposition that the Father was prepared to accept a parenting arrangement that did not provide him with equal time with the children.

Findings of Fact and the Evidence in Support

[51] As a preliminary comment let me say that, as is frequently the case, the evidence before me is incomplete and contradictory. Both sides delivered supportive affidavits from family members and friends. To a large extent the contents of those affidavits are improper and in contravention of the rules that govern pleadings. There is hearsay without disclosure of the source, and there is opinion and conjecture. There is vitriol and name calling. None of that is relevant, instructive, helpful, or valuable in the very difficult task of parsing untested evidence to arrive at a temporary order that will serve the best interests of two very young children.

[52] Nonetheless, there is sufficient admissible evidence before me to enable me to make findings of fact that support an interim order which will accord primary parenting to the Mother.

[53] I turn now to the specific facts and evidence which enable me to make that order, which is in the best interests of Abigail and Aiden.

[54] From the date of the children’s birth until the separation they were cared for primarily by the Mother. She took care of their physical needs, and ensured that they attended necessary medical appointments, etc. It was the Mother who would stay home from work in order to care for the children if one or both of them were ill.

[55] The evidence of the Mother as well as her family members establishes this fact. Certain portions of the Father’s evidence also support this finding.

[56] Nowhere in the Father’s motion material is the fact that the Mother was the primary care giver disputed.

[57] The Father worked two jobs for a significant period of time before the separation. He indicates that he ceased working two jobs in order to spend more time with the children. No dates are provided. Norm Lemieux, the paternal grandfather, indicates that “Alain always worked two jobs.” That would have significantly restricted the time the Father had available to him to engage in activities or otherwise provide day-to-day care for the children.

[58] Certain statements made by the Father’s family suggest to me that there is no dispute that the Mother was the children’s primary care giver until the separation. At para. 8 of Norm Lemieux’s affidavit he says “My Wife Denise was always available when Amanda needed a babysitter…” This suggests that the Mother was the one seeing to the children’s day-to-day needs.

[59] The paternal grandmother said this at para. 17 of her January 6, 2017, affidavit:

Since the separation my son has stepped up his parenting skills.

[60] And the Father’s sister said this at para. 10 of her affidavit:

The applicant has improved 150% as a father especially since the separation.

[61] These statements imply that, at the time of separation, the Father’s parenting skills required improvement. They do not suggest that he was a primary or even equal contributor to the children’s care.

[62] The Mother’s home is located 0.2 km from the children’s school. Her work hours coincide with the children’s school hours. The father’s home, on the other hand, is located 26.8 km/16.7 miles away from the children’s school. When the children are in his care they spend a significant period of time per day on a school bus. Prior to the separation, although the children did take the bus from St. Charles to their school, that bus ride, according to the Father’s evidence, took fifteen minutes.

[63] The Mother is always available to care for the children. The Father, on the other hand, works regular night shifts and occasional afternoon shifts for several months over the winter period of the year. According to the Mother’s evidence, which is not disputed or contradicted, the Father works from 12:00 p.m. to 8:00 p.m. or 12:00 a.m. (afternoon shift), or from 12:00 a.m. to 8:00 a.m. or 12:00 p.m. (night shift) from October to the end of April. During that time, he is not always available to care for the children. According to the Father’s evidence, the children slept at the home of the paternal grandparents during the periods of time that he had the children during the winter months: see July 5, 2016, affidavit. The Father indicated further, in that same affidavit, that he was attempting to secure employment that would reduce or eliminate shift work. To date, he has not been successful in this regard.

[64] In his most recent affidavit, the Father indicated that when he is working afternoon shifts the children spend the afternoon with the paternal grandparents, but they go back to the matrimonial home to sleep. The Father is not there when the children go to bed. He indicates that when he is working night shift he puts the children to bed. It is not clear whether that is at his home or the paternal grandparents’ home. If it is in his home, then someone else must be in the home and responsible for the children’s care.

[65] It is not clear who is getting them ready for bed on those occasions when the Father is working the afternoon shift. The paternal grandmother’s affidavit, says the following at para. 3:

I babysit or take care of the children when Alain is at work or coming home from work. Alain picks the children up when he gets home and brings them to his home…

[66] Clearly this cannot occur if the Father is working a night shift or afternoon shift, which is what is occurring at this time, and for a significant period of the calendar year.

[67] For his part, the paternal grandfather says the following in his affidavit, at paras. 13, 14, and 15:

We sometimes take care and pick up the kids at the bus stop but most of the time Alain is there.

The kids are always happy to come and spend time with us. Alain always comes to see them at 4:00 p.m. Aiden and Abby run to see him and give him hugs and kisses.

Alain spends three to four hours with them and tucks them in for the night before going to work.

[68] This evidence suggests that the children may be sleeping at the home of the paternal grandparents when the Father is working night shift, which is regularly.

[69] It appears from the Father’s own evidence that the paternal grandparents are also occasionally responsible for helping the children with their homework and making their lunches:

My parents took care of the kids [ sic ] homework & lunches last week so I didn’t get a chance to look at packages.

See Exhibit C to the Father’s January 6, 2017, affidavit, being the email or text message from the Father to Abigail’s teacher.

[70] According to the Mother’s evidence, the Father has refused to provide her with his work schedule. This does not appear to be contradicted by the Father.

[71] The Father has made unilateral decisions concerning the children and has imposed the parenting regime that is currently in place. The Mother’s evidence establishes that she went along with the 2-2-3 arrangement after the separation, but she did so out of necessity.

[72] First, the Mother was unable to provide appropriate accommodation for the children from November 2015 until September 2016. From the time of the separation, the Mother resided with her parents in Noelville, as she did not have the financial resources to secure accommodation for herself and the children. This evidence is not disputed.

[73] Second, her evidence is that she feared that the Father would keep the children from her, if she did not go along. He did so. In a text message sent on November 22, 2016, the Father said this: “Il b keeping the kids longer it’s a promise not a threat.”

[74] The evidence suggests that both parties, at certain points in time, did withhold the children from the other parent.

[75] It is a fact that the Father’s existing circumstances and, by extension, the circumstances in which the children are cared for, are not the circumstances that existed shortly after the parties’ separation, or when the Father started the proceeding, or when the matter was before the motions judge on July 7, 2016, or at the time of the case conference on August 17, 2016.

[76] The Father did not have any other person living in the matrimonial home. Currently, and for the past four and a half months, the Father is residing with Derica Thompson and her two children in the matrimonial home.

[77] In July 2016, when the presiding judge refused to hear the Mother’s motion, the Father was working steady days Monday to Friday; he was able to be home by 4:00 p.m. That is not the case for the winter months.

[78] Abigail and Aiden are doing well in school. This is evidenced by the report cards entered in evidence. There is no evidence to the contrary.

[79] The Mother’s evidence suggests that the children are reluctant to leave her and go to their Father’s. This evidence is corroborated by the evidence of the maternal grandmother.

[80] The Father’s evidence suggests that the children are always happy to be with him and that they are reluctant to leave him.

[81] Both of those facts may well be completely accurate. It is perfectly natural for Abigail and Aiden to enjoy the time they spend with each parent. It is also not unusual for children of such a young age to not always be happy with transition from one parent to the other. There is no reason to believe that the children do not benefit from the time they spend with both parents.

[82] There is no independent evidence to establish that the existing arrangement is detrimental to the children’s well-being. That, however, is not determinative.

[83] I will turn now to the analysis of the evidence in the context of the task before me, in particular the application of the facts as I have found them to the merits of the motion brought by each of the parties.

Analysis

Best interests of the children

[84] By virtue of the provisions of s. 24 of the Children’s Law Reform Act, the paramount consideration is the best interests of the children. The parental wishes and preference have no place in the analysis of what is best for these two children.

[85] Both the Mother and the Father have strong love, affection for, and an emotional tie to the children. The fact that the Mother was always the primary care giver, however, favours a finding that her bond to the children is long-standing and deep.

[86] There is no doubt as well that Abigail and Aiden have a deep bond with the paternal grandparents who have been involved to a large extent in their care.

[87] There is little or no evidence about any bond between the children and Derica Thompson who is, and has been for the past few months, living with the Father.

[88] The home environment currently being provided by the Father is relatively new. The cohabitational relationship between the Father and Derica Thompson is in the early stages. It may well develop into a stable home environment, but at this point in time, it is not unreasonable to say that it is too early to tell.

[89] I note that the Father himself did not disclose this new relationship in his pleadings. No mention of having someone else with two young children living with him in the home was made in his affidavit, which stated simply “I am now happily in a stable relationship.”: see para. 3 of the January 9, 2017, affidavit.

[90] I have already reviewed the facts that establish that the Mother is better able, physically and geographically to provide the children with guidance, education, and the necessaries of life.

[91] Notwithstanding that the children were being bused to school before the separation, and notwithstanding the fact the they do not appear to be evidencing any problems with the current arrangement, that does not change the fact that it is far preferable for the children to be living close to their school and not have to spend significant time on a bus on a regular basis. It is also preferable for the children to be cared for by their own parents rather than by third parties.

[92] As well, the Mother’s work schedule allows her to be available to care for the children at all times. Not so for the Father.

[93] When one parent is available and willing to offer full-time care, then such care should not be provided by third parties, even grandparents, on a regular ongoing basis.

[94] The Mother proposes that she continue to be the primary care giver to the children and that they reside with her, close to the school, and that she continue to provide them with guidance and education which she is more than capable of doing. She proposes that the Father have regular and meaningful access.

[95] The Father stresses how he involves the children in outdoor activities and how important it is that the children engage in such activities. One cannot take issue with that, however that is only one aspect of childhood and of parenting. I must comment as well on the Father’s evidence to the effect that the Mother “does very little with the children outside of our home and does not participate in any outdoor activities with them.”: see July 5, 2016, affidavit, at para. 7. This is directly contradicted by the evidence of Shelley Duquette-Lafortune and Jessica Coulombe about the Mother’s involvement with the children in swimming, as well as other sporting and outdoor activities.

[96] The Father’s plan is that the current arrangement continue whereby the children are cared for by the paternal grandparents and to some extent, one has to assume, by a woman who has two young children of her own, and about whom he provided virtually no information.

[97] The Mother’s plan will provide continuity and stability to the children. It is more favourable to the best interests of the children than the Father’s plan.

[98] I turn now to the ability of each of the parties to act as a parent. The ability to act as a parent must include the ability to always put the children’s best interests first.

[99] On the evidence before me, I have serious concerns about the Father’s ability to do that.

[100] First, the Father was not forthcoming about the change in his home environment. The change in the household would have a significant impact on Abigail and Aiden. And yet, the Father declined to disclose the fact that Derica Thompson and her two children were now living with him, and had been living there for some time, until delivery of Derica Thompson’s affidavit in early January. According to Derica Thompson’s affidavit, she has been living with the Father in the matrimonial home since on or about September 2016.

[101] Second, the evidence establishes that the Father feels that he is entitled to make decisions about the children without consulting the Mother. The change in the busing arrangements is one example of that.

[102] In a text message sent by the Father to the Mother on November 22, 2016, he said this:

We’re back to this. U don’t have the right to keep my kids from me. I’m am [ sic ] going to do the same to you. Bring them to St. Charles now or start this fucking bullshit again and I will do it to you. I’m not asking you. I’m telling you.

[103] In addition, the evidence establishes that the Father not only believes he does not need to consult the Mother, he does not value her opinion or input. Certain text messages (about which I will have more to say later in these reasons) make this crystal clear.

[104] A text message sent by the Father to the Mother on November 20, 2016, reads as follows:

That’s your opinion not fact & to be honest I don’t give a fuck what your opinion is.

[105] In another earlier text message, sent on October 2, 2016, the Father said this:

It s my house. U haven’t lived her [ sic ] in almost a year. And if someone is living here or not it’s none of your business.

[106] Being a good parent requires the ability to communicate with the other parent with at least a modicum of civility, if not respect.

[107] On November 22, 2016, the Father sent to the Mother numerous text messages, the contents of which are so disrespectful, demeaning, and vulgar, that I will not reproduce them here. Suffice it to say that in those text messages the Father is clearly conveying his hatred and disdain for the Mother. This is not a parent who can work with at least a minimal degree of co-operation with the other parent.

[108] The Father explained his “vulgar outburst” as a reaction to having “been provoked for a year with the Respondent refusing to be flexible and doing everything in her power to attempt to limit my time with the children.”: see January 6, 2017, affidavit, at para. 5. The evidence does not support his explanation.

[109] The Father goes on to say: “It has been extremely stressful with the Respondent constantly questioning our children about everything that occurs when the children are in my home…”

[110] At no time does the Father offer an apology, or even acknowledge how inappropriate and offensive his messages to the Mother were.

[111] I have serious concerns about the Father’s ability to set aside his personal feelings, and deal with the Mother in an acceptable manner. I also have serious concerns about his judgment and his ability to put the best interests of his children ahead of what he perceived as his need to lash out in the manner that he did.

[112] Throughout the Father’s material there is reference to his right to have the children in his care 50% of the time:

Alain loves his children and like Amanda he deserves to have his children half of the time: see Derica Thompson’s affidavit, at para. 11.

Alain is a very attentive, loving, caring father to Abigail and Aiden and will do everything in his power to get 50/50 custody: see paternal grandmother’s affidavit, at para. 26.

My brother deserves his children as much as their mother does: see Joanne Lemieux’s January 6, 2017 affidavit, at para. 16.

[113] Parental rights are subordinate to the best interests of the children: see Gordon, and Young.

Disrupting the pre-existing parenting arrangements

[114] I turn now to the Father’s “status quo” argument. As Batsinda makes clear, there is no presumptive rule in favour of the status quo that must be rebutted by the Mother.

[115] Further, I find that the status quo is not the current 2-2-3 arrangement. I have found that the Father created the current arrangement unilaterally; the Mother did not consent or agree to such arrangement, either immediately after the separation, or at the end of November 2016.

[116] Shortly after the Mother secured accommodations appropriate for her and the children, she took steps to change the 2-2-3 arrangement to provide for the children to be in her care a greater percentage of time. The Father then had the children in his care every alternate weekend and every Wednesday, and on the Mondays when the children had not been with him for the weekend.

[117] The altered arrangement lasted approximately six weeks until the end of November when the Father unilaterally re-instated the 2-2-3 schedule.

[118] In the circumstances, the status quo that is relevant is that which existed just prior to the parties’ separation, when the Mother was the children’s primary care giver. Given my earlier findings that there was a unilateral imposition of the 2-2-3 schedule by the Father, there is no “clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation”: see Batsinda, at para 28.

[119] In all of the circumstances, the children’s best interests will be served by an arrangement that provides consistency, continuity, and care by a parent as opposed to a non-parent. It is not enough to say that there is no evidence of the children suffering any detrimental effects of the current arrangement. What is required is an arrangement that maximizes the children’s best interests as those are defined in s. 24 of the Children’s Law Reform Act.

[120] An arrangement that has the children spending considerable periods of time on the highway and in the care of someone other than their parent, in a home where there is a new adult with two young children, is not in Abigail and Aiden’s best interests.

[121] Insofar as custody is concerned, I cannot conclude that a joint custody arrangement is appropriate in the circumstances, given the Father’s attitude toward the Mother, as evidenced in his dealings with her.

Conclusion

[122] The Mother will have sole custody of the children, as well as the responsibility for their primary care. The Father will have regular access.

Order

1. The Mother shall have sole custody of the two children of the marriage, Abigail, born August 13, 2009, and Aiden, born July 8, 2011.
2. The Father shall have access to the children every alternate weekend, from Friday after school until Sunday evening at 6 p.m., or such other time the parties may agree to.
3. In addition to the weekend access, the Father shall be entitled to one overnight visit during the week every week, provided that that visit occur only on a day where the Father is not working afternoon or night shifts.
4. The Father shall provide the Mother with a written schedule of his shifts for every month, in advance, commencing January 23, 2017.
5. The Father shall pay to the Mother child support for the two children, in the amount of $954.00 per month, based on an income of $64,195 (income for the 2015 calendar year), effective February 1, 2017, and payable on the first day of every month until further order of the court.
6. The Father shall keep the two children of the marriage covered under any and all health insurance coverage available to him through his employment.
7. The Father shall designate the Mother as beneficiary in trust for the two children under any and all life insurance policies owned by the father.

[123] The above order is a temporary order.

Costs

[124] In the event that the parties are unable to agree on the costs of the motion, they shall, within 20 days of the date of these reasons, communicate with the trial co-ordinator to set a date and time to argue costs, failing which they will be taken to have agreed on costs.

The Honourable Madam Justice Louise L. Gauthier

Released: January 19, 2017