Court File and Parties

COURT FILE NO.: F385/17 DATE: June 2, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Mathew Thomas Darby, applicant AND: Katie Wilhelm, respondent

BEFORE: MITROW J.

COUNSEL: Carol Murphy for the applicant Elizabeth Goldenberg for the respondent

HEARD: May 10, 2017

Endorsement

1## Endorsement

Each party brings a motion seeking interim custody of their child.

2For reasons that follow, the parties each shall have interim care and control of the child in accordance with the schedule set out in the order below.

Facts and Discussion

3## Facts and Discussion

The parties cohabited from November 2014 until February 2017, when they separated.

4They have one child together, Warren, born in October 2015.

5There is no dispute that currently the applicant does not work outside the home. He is in receipt of Ontario Works. The respondent deposes that the applicant has experience as a roofer. The applicant minimizes his experience working as a roofer. There is no evidence explaining why the applicant is not working or, at least, actively engaged in a search for employment. The applicant does not challenge the respondent’s evidence that income was imputed to him in the amount of $23,400 in an order made in September 2016 involving a proceeding between the applicant and the mother of his two oldest children.

6Following the child’s birth, the respondent went on maternity leave and returned to work mid-September 2016. At that time, the applicant remained at home to care for the child and continues to do so.

7The respondent mother lives with her adoptive parents, her adult brother and her adult adoptive brother. The respondent’s adoptive parents are her former foster parents. (For the balance of these reasons, reference to the respondent’s “parents” or “mother” or “father” means the respondent’s adoptive father, adoptive mother or adoptive parents.)

8The respondent deposes that she has supports at her parents’ residence, who can assist with child care; she submits that the applicant should have some access, but otherwise she raises concerns about the applicant’s ability to care for the child.

9The applicant disputes the respondent’s characterization of him and submits that it makes little sense to have the child looked after by the respondent’s family during the day, as he is a stay-at-home parent. The applicant characterizes himself as the child’s primary caregiver and submits that that is the status quo.

10This court case was initiated by the applicant, after the respondent removed the child and assumed care and control of the child. The applicant characterized this as a self-help remedy and quickly commenced the application and brought an emergency motion. This resulted in the interim without prejudice order of Korpan J. dated March 22, 2017 that provided for a schedule where the children were with the respondent on weekends from 4:45 p.m. Friday to 7:45 a.m. Monday and on Wednesday from 4:45 p.m. until Thursday at 7:45 a.m., and with the applicant for the balance of the time.

11The respondent deposes that the applicant is a frequent user of marijuana. While the applicant concedes that he uses marijuana, he minimizes the extent of his use. The respondent’s evidence is that the applicant is “open and proud” of his marijuana use and smokes “several joints per day.” The respondent’s friend, Megan Armstrong, deposed that during the majority of the times when she was at their residence, which was two times per month and weekly while the respondent was on maternity leave, that the applicant had been under the “influence of cannabis.” She has personally observed him “smoking weed on the back deck.” Ms. Armstrong is a social worker and an addictions mental health counsellor, and she referred to observing the applicant’s “glazed facial expression” and “slow response time.”

12The respondent’s mother adds that the applicant has arrived at her home “weekly,” smelling of marijuana, admitting “proudly” that he smokes “a lot of weed.”

13I find that there is sufficient evidence to identify the applicant’s marijuana use as a concern that cannot be ignored. In the face of the evidence, the applicant’s minimization of his marijuana use is less than persuasive. The respondent raises a credible concern regarding the likelihood of the applicant being under the influence of that drug while caring for the child. The childcare schedule needs to be structured to take into account the young age of the child, the child’s potential vulnerability and the desirability of the child’s regular exposure to other caregiving adults. The applicant lives alone with his eldest child, age 13, and he has access to that child’s sibling, who is age 8.

14Although the respondent’s mother deposed that she worked at the Children's Aid Society of London and Middlesex, and was “trained” regarding drugs, I place no weight on her evidence as to her belief that the “cat urine” smell in the applicant’s residence was likely from methamphetamine because “methamphetamine smells like cat urine.” It is common ground that the applicant does not have a cat.

15The applicant denies, strongly, ever using methamphetamine, or allowing the use of methamphetamine in his home. The respondent corroborates the applicant’s evidence somewhat as she deposes that the applicant did not condone the use of “hard” drugs.

16The evidence of the respondent’s mother on the methamphetamine issue constitutes inadmissible lay opinion evidence. There was no credible evidence that the applicant used illegal drugs other than marijuana.

17I attach minimal weight to the respondent’s complaint as to the cleanliness of the applicant’s residence. The observations of the applicant’s residence were confined largely to one occurrence and this evidence was disputed by the applicant. The respondent and her mother deposed as to some occasions when the child had diaper rash after returning from the applicant’s care. However, there was no evidence of the child being seen by a doctor on those occasions and it is difficult to conclude, on the evidence, that the applicant was negligent in his care of the child. The occurrence alleged by the respondent that the child was not properly supervised on one occasion in early March 2017 when the respondent attended at the applicant’s residence, is disputed, and is not an “incident” that should affect the disposition of the motions.

18I reject the respondent’s theory that the applicant is allegedly employing some type of tactic in the case at bar, similar to some alleged tactic in the applicant’s custody/access litigation involving the mother of his two older children, designed to gain some advantage over the respondent. This is a theory best described as fanciful and not grounded in the evidence.

19The applicant raises a concern about the extent of the respondent’s alcohol use, including staying out late and being inebriated. The respondent, I find, has unduly trivialized her alcohol use. However, the evidence, on the whole, does not suggest that the respondent’s alcohol use is as concerning as the applicant’s marijuana use.

20The issue of status quo was prominent in both parties’ submissions.

21In Currie v. Maudsley, 2011 CarswellOnt 6705 (S.C.J.), I summarized the jurisprudence regarding status quo as follows:

15. The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change in custody is necessary to meet the children’s best interests and this would include a situation where there is evidence that maintaining an existing status quo will be harmful to the children.

16. In Grant v. Turgeon, [2000] O.J. No. 970, V. Mackinnon J. stated that 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. That is so whether the existing arrangement is de facto or de jure (see para. 15).

17. Some of the reasons why the interim status quo should be preserved were succinctly stated by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 as follows in paras. 1 and 2:

    There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631 (Ont. Master), (aff'd by Laskin J.A. at p. 748) [, [1969] 2 O.R. 748 (Ont. C.A.)], by Laskin J.A. again in Papp v. Papp (1969), [1970] 1 O.R. 331 (Ont. C.A.), at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 38 R.F.L. (3d) 373 (N.S. C.A.). By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (Ont. H.C.) and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 28 R.F.L. (3d) 416 (Sask. Q.B.).

    Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

22In the case at bar, the evidence supports a finding that the respondent resorted to self-help. As some justification for this, the respondent submits that she has been a victim of verbal and physical abuse by the applicant. That evidence is denied to some extent by the applicant (see, for example, paragraph 9 of his reply affidavit).

23It is noted that the interim order of Korpan J. was “without prejudice,” and prior to any material being filed by the respondent.

24The determination of “status quo” is a fact-specific exercise.

25At the time of separation, the child was approximately age 16 months. For the first 11 months of the child’s life, the respondent was on maternity leave. During this time, both parties cared for the child. At separation, the respondent had been working for approximately five months. Some context needs to be applied. As at the date of separation, for most of the child’s life the respondent was home with the child. The fact that during the five months preceding the separation the respondent worked during the week is a factor to consider in determining status quo, but it is not determinative.

26The applicant deposes that until the respondent went back to work in September 2016, that they were “joint caregivers”; the respondent deposes that during this period she was the “primary caregiver” and adds that she breastfed the child for the first six months. Although that conflict in the evidence cannot be resolved on the motions, the applicant does not dispute the respondent’s evidence that she breastfed the child for six months.

27The evidence establishes that, as at the date of separation, the child had been cared for by both parents together for most of his life and that, during the last five months, the father looked after the child during the weekdays while the mother worked.

28The status quo is that both parents were substantially involved in the child’s care up to the time of separation. The applicant’s analysis of status quo places undue weight on the care of the child after the respondent’s maternity leave ended.

29I find that the child’s best interests are met by an order that maintains significant involvement of each parent in the care of the child, that takes into account the applicant’s availability, currently, during the day on weekdays while the respondent is at work, and that takes into account the concerns previously discussed regarding the applicant’s marijuana use.

30During argument, both parties agreed to abide by an order of no substance use. The order below applies equally to both parties as to non-use of substances.

Order

31## Order

I make the following interim order:

1. Paragraphs 2 to 6 inclusive of the interim without prejudice order of Korpan J. dated March 22, 2017 are vacated.

2. Each party shall have interim care and control of the child according to the schedule set out in this order.

3. The child shall be in the interim care and control of the respondent, except for the following times when the child shall be in the interim care and control of the applicant, and unless the parties agree otherwise, “WEEK 1” starts Monday, June 5, 2017:

   WEEK 1 (a) Monday 7:45 a.m. to 5:00 p.m. (except that if Monday is a statutory holiday, the child shall remain with the respondent on Monday); (b) Tuesday 7:45 a.m. to 5:00 p.m. Wednesday; (c) Thursday 7:45 a.m. to 5:00 p.m.; (d) Friday 7:45 a.m. to 5:00 p.m. Saturday;

   WEEK 2 (e) Monday 7:45 a.m. to 5:00 p.m. (except that if Monday is a statutory holiday, the child shall remain with the respondent on Monday); (f) Tuesday 7:45 a.m. to 5:00 p.m. Wednesday; (g) Thursday and Friday 7:45 a.m. to 5:00 p.m.

4. Neither party shall consume or use alcohol, marijuana or any non-prescription substance 12 hours prior to and during the time that each party has care and control of the child.

5. The applicant is responsible for pickup of the child from the respondent’s residence at the beginning of his time with the child; and the respondent is responsible for pickup of the child from the applicant’s residence at the beginning of her time with the child. Each party may designate a responsible adult to pick up the child if that party is not available at the pickup time.

6. The parties shall communicate electronically in relation to all matters pertaining to the child. All communication shall be polite, respectful and shall focus only on the child.

7. The child’s principal place of residence shall not be changed from London, Ontario.

8. The parties shall make arrangements directly, or through counsel, to adjust the regular schedule to accommodate any special occasions, including Christmas and summer vacation. Each party shall sign all documents reasonably required to facilitate travel with the child for vacation.

9. This order is made pursuant to the Children's Law Reform Act.

10. If the parties cannot agree on costs, the parties may make written costs submissions, forwarded to the trial coordinator, within 30 days, limited to 2 typed pages, double-spaced, plus copies of any offers, time dockets, bills of costs or authorities.