COURT FILE NO.: 16-121 DATE: 20170720 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Brophy Applicant – and – Suzie Nuqingaq Respondent
Counsel: Christopher M. Giggey, counsel for the Applicant Alexandre Lafrenière, counsel for the Respondent
HEARD: July 19, 2017
Ruling on motion (CUSTODY/ ACCESS)
Laliberté, J.
INTRODUCTION
1The Respondent mother has brought a motion seeking the temporary sole custody of the child Lana Amanda Nuqingaq who was born on November 25, 2010.
2The Applicant father opposes the relief sought and argues in favor of maintaining the present parental arrangement under which he is the child’s primary caregiver in Chesterville subject to access visits to the mother who resides in Ottawa.
3Therefore, the Court is asked to identify the appropriate temporary parental arrangement for this young child pending completion of this litigation.
FACTS
4While both parties have filed contradicting affidavit evidence in support of their respective positions, the following facts do not appear to be contentious:
- Their relationship commenced in January 2010 in Nunavut;
- The child Lana was born on November 25, 2010;
- The parties started to reside together in Nunavut soon after the child’s birth:
- In February 2011, the Respondent was charged with an assault against the Applicant and she ultimately plead guilty.
- They separated in March 2011;
- The child remained in the Respondent’s care following the separation;
- The Applicant commenced Court proceedings in Nunavut on March 31, 2011; he was seeking custody; the record reveals the following court orders:
- November 22, 2011: endorsement indicates that the matter is adjourned sine die … custody as set out in the order of September 29, 2011 shall continue. Access is to be generous and reasonable as agreed upon by the parties.
- July 20, 2015 and December 1, 2015: the Respondent is granted temporary custody
- December 8, 2015: the temporary custody orders are extended to February 8, 2016 to confirm that the Respondent will continue to have temporary custody in the event that the parties reconciliation is unsuccessful and they separate prior to the matter returning to Court
- February 8, 2016 and June 14, 2016: the matter is adjourned sine die, meaning without a specific return date
- In August 2015, the Respondent left Nunavut with the child to join the Applicant in Chesterville; cohabitation was resumed on August 28, 2015 in Chesterville;
- On March 29, 2016, the Respondent was arrested and charged with an assault against the Applicant; she has since plead guilty and sentenced to a conditional discharge;
- On March 29, 2016, she was released by way of an undertaking given to a peace officer with a number of conditions including not to communicate directly or indirectly with the Applicant nor attend the home in Chesterville unless accompanied by a police officer.
- The parties have been separated since March 30, 2016; the child has been under the Applicant’s primary care since; she has resided with her father in Chesterville where she attends the Public School since September 2015;
- There was very minimal contact between the Respondent and the child for several months following her arrest and release.
- On April 4, 2016, the Applicant commenced court proceedings in Cornwall seeking sole custody;
- A temporary without prejudice consent order was issued by the Court on October 24, 2016; it provides for primary residence with the Applicant and every other weekend access from Friday to Sunday for the Respondent;
- On September 4, 2016, the Respondent gave birth to Mary, the second child of this union; on July 7, 2017, the parties agreed to a final order whereby the Respondent maintains sole custody of the child Mary; there is no order in regards to access to this child by the Applicant.
5As already noted both parties have provided significantly contradicting affidavit evidence in support of their positions. Each portrays the other in very negative terms.
6The Applicant’s pleadings and affidavit evidence suggest the following:
- The Respondent has been extremely abusive to him both physically and verbally
- She picks fights for no apparent reason; she appears temperamental and irrational
- She would harass him
- She hit him while Lana was hiding underneath him
- She makes up allegations against him in order to diminish his credibility
- She would make it such that he could not speak to Lana following the first separation
- She threatened to commit suicide and produced six knives on that occasion; she was placed on suicide watch
- She would waste money by purchasing more cigarettes, junk food and lottery tickets
7For her part, the Respondent makes the following allegations in her materials;
- He has been mentally and sexually abusive and violent
- He is manipulative
- He made it such that she was isolated from others
- He frustrated the child’s access to her following the second assault charge
- He was having an affair and would ask her to participate in a threesome
- He engaged in bizarre behaviour including getting angry and hitting himself in the face and head
- He was involved in what seemed to be cult things
- He would have very little involvement in the child’s care; he would play video games before and after work
POSITION OF THE PARTIES
Applicant
8The essence of the Applicant father’s position is as follows:
- The Nunavut Court of Justice interim order granting the Respondent custody is no longer in force as it was extended only to February 8, 2016
- In the alternative, if the said order is found to be in force, section 42 of the Children’s Law Reform Act allows for a review of this extra-provincial order in light of a material change in circumstances and the child is now habitually residing in Ontario; the child has been primarily residing with him in Chesterville for the past 14 months
- It is not in the child’s best interests to be removed from her current status quo arrangement, being primarily resident with the Applicant in Chesterville, to live primarily with the Respondent in Ottawa; it cannot be in her best interests to be further “uprooted” after going through at least 2 major moves in the past (within Nunavut and then, from Nunavut to Ontario)
- He agrees with the notion that the child’s time with her mother should be increased
Respondent
9The Respondent’s position can be summarized as follows:
- The Nunavut Court of Justice order granting the Respondent custody is still in effect
- There is no material change in circumstances warranting a change in the parental arrangement which has historically been in place
- But for the Respondent’s removal from the home as a result of the Applicant’s questionable allegation of assault to the police, the child would still be in her care
- This case must be considered in light of long standing difficulties in police response in cases of violence against women as well as longstanding difficulties in criminal justice treatment of Indigenous people
- The Winchester O.P.P. did not apply the Dominant Aggressor framework developed by the Ontario Government in deciding to charge the Respondent in this matter
- Consideration should also be given to Canada’s Truth and Reconciliation report and how Canada’s Aboriginal policy during the last century can be described as “cultural genocide”
- In the end, keeping the child separated from her mother is causing her harm through loss of her language and culture
THE LAW
10This motion raises a number of distinct legal issues. In deciding these issues, the Court will be guided by the following principles:
1. Whether the Nunavut Court of Justice interim order remains in force
11Justice Pierce in Michalchuk v. Michalchuk, [2013] O.J. No 4810, provides a useful summary of the law dealing with reconciliations and its effect on previous court orders.
12The Court notes the following passages:
“6. The law has been guilty of inconsistency on the question of whether reconciliation terminates a court order and the legislature has not clarified the issue…”
“8. In Wilson v. Wilson, 1983 ONCJ 1165, the Court held that a custody order was not terminated by the parties reconciliation; however, it held that a lengthy reconciliation may lead to a re-examination of the child’s best interests, based on any material change in circumstances.”
“9. …Cases on both sides of the debate however hold that the ongoing validity of the order is affected by the intention of the parties…”
“10. The question of whether reconciliation terminates a court order is arguable, with merit on both sides of the argument…
“13. In many cases, probably in most cases, the circumstances in the family change following a failed reconciliation, such that it is appropriate for a court to reassess the needs of the family. Family relationships are not static…It would be an unusual case where the made before reconciliation would “fit” the family after separation. If nothing else, the Court should re-examine the best interests of the children before assuming that its previous order was appropriate…”
2. Superseding extra-provincial orders in respect of custody or access
13The superseding in Ontario of extra-provincial orders in respect of custody and/or access is governed by section 42 of the Children’s Law Reform Act. The relevant provisions are:
42(1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the Court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order.”
3. Material change in circumstances
14The concept of material change in circumstances in matters of custody and access was articulated as follows by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27:
“12. What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way… The question is whether the previous order might have been different had the circumstances now existing prevailed earlier… Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order “what the Court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place.”
4. Best interests of child
15As provided for under section 24(1) of the Children’s Law Reform Act, the merits of a claim in respect of custody and/or access is to be determined on the basis of the best interests of the child in accordance with the factors set out in sections 24(2), (3) and (4).
5. Motions for temporary custody
16The principles and considerations in dealing with motions for interim custody and/or access are as follows:
- The merit is to be determined on the basis of the best interests of the child
- The law is well settled that on such a motion, the status quo of the child should not be disturbed in the absence of compelling reasons where a change is needed to meet the child’s best interests and this would include a situation where there is evidence that maintaining status quo will be harmful to the child
- Stability is a primary need for children caught in the throes of matrimonial dispute and de facto custody of children ought not to be disturbed pendent lite, unless there is some compelling reason why such change would be in the child’s best interests
- Such a significant decision should not be made on the basis of competing, contradictory and untested affidavit evidence; trial judges are in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what is in a child’s best interests; issues and concerns should be fully canvassed by a trial Judge on the basis of evidence and cross-examination of witnesses
DISCUSSION
17Having considered all of the circumstances and relevant principles, the Court is of the view that this young child should, at this interim stage of the legal proceedings, remain in her father’s primary care, as set out in the October 24, 2016 temporary order. There will however be some increase in the time the child is cared for by her mother.
18There is no question that the Respondent was the primary, if not the sole caregiver, for the child from March 2011 (when the parties first separated) and August 2015 (when the parties resumed cohabitation in Chesterville). This parental arrangement was reflected in the Nunavut interim order dated September 29, 2011. The Court notes that this order was never finalized. These proceedings were last adjourned with no return date on June 14, 2016.
19The Respondent’s move with Lana from Nunavut to Chesterville in August 2015 with a view of reconciliation with the Applicant has resulted in important and meaningful changes in the young child’s life. Her reality was significantly changed as of August 2015. She was in a new home and new cultural setting. As importantly, she was re-introduced to her father as a caregiver.
20Lana’s new reality was further re-enforced in March 2016 when the Respondent was removed from the home through bail conditions. From the child’s perspective, she was now in her father’s exclusive care with very little, if any contact with her mother.
21Whether terminated by reason of the parties’ attempt at reconciliation or a material change in circumstances as contemplated under section 42 of the Children’s Law Reform Act, in the end, there are compelling reasons to re-examine what is in Lana’s best interests at this point in time as a temporary measure.
22How these changes came to be is the subject of much factual controversy. Both parents present a very different perspective.
23The essence of the mother’s position is that this was orchestrated by the father:
- He incited her to leave Nunavut and join him Chesterville to avoid child support
- She was framed with false allegations of assault so as to have her removed from the home and ultimately gain custody
- He frustrated contacts with Lana
24The father’s position is:
- The Respondent is the one who wished to move to Chesterville
- He was assaulted by her while Lana was hiding underneath him
- He contacted the police by reason of this assault
- He did what he could to facilitate contacts with Lana
25The circumstances leading to the creation of a new parental arrangement for a child is relevant to the issue of the proper custodial arrangement. As explained by Justice Wright in Kimpton v. Kimpton, [2002] O.J. no 5367:
“1… By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.”
26The evidentiary record, namely the untested and contradictory affidavit evidence, does not allow for a finding that the present status was created by the Applicant to gain, tactical advantage. The Court notes that while she initially denied the assault in her pleadings, she ultimately plead guilty. The Court is told that this was her second assault against the father.
27As provided of in section 24(4) of the Children’s Law Reform Act, violence against a spouse is a factor in assessing a person’s ability to act as a parent.
28The Ontario Court of Appeal in R. v. W.B.C., [2000] O.J. no 397 explained that:
“51… A plea of guilt carries an admission that the accused so pleading committed the crime charged and a consent to a conviction being entered without any trial.”
29In raising this, the Court is very mindful of the Respondent’s allegations that she has historically been subjected to mental, physical and sexual abuse at the hands of the Applicant, all of which is denied by him. The Court is also sensitive to counsel’s argument based on the Respondent being Indigenous and the findings of the Truth and the Reconciliation Commission which attests to the harmful legacy of abuse inflicted on Indigenous people.
30Again, the evidentiary record does not allow for a finding that the Respondent was subjected to the alleged abuse. It should be clearly understood that the Court is not saying that this violence did not occur. The finding in this motion is that the evidence does not make it more probable than not.
31The same reasoning applies to the Applicant’s historical involvement in Lana’s care and the quality of the care given by him to the child. While significant considerations in assessing the child’s best interests, the Court is unable to make findings of facts on the basis of the evidentiary record.
32The Respondent’s evidence is that the father has not been present in Lana’s life as a parent. He would spend most of his time playing video games or working.
33As for the quality of care, she alleges that the Applicant had put Lana in a bath in water that was too hot a few weeks of her birth. She also notes that the child had lost weight, was dirty and smelled bad on her first access visit. She states that she continues to appear this way on access visits.
34All of this is denied by the Applicant. To the contrary, he states having been actively involved in Lana’s care. In fact, her care was split jointly between the parents.
35He denies having placed Lana in a bath with water that was too hot. While it is possible that Lana has some dirt on her when she is picked up for access, this is explained by the fact that she is picked up from school by her mother. He states bathing her at least once every two days.
36These are important and relevant facts and a trial judge will be in a better position to fully investigate the conflicting positions and make findings of credibility and facts; these issues and concerns should be fully canvassed by a trial judge on the basis of evidence and cross-examination of witnesses.
37The length of the existing arrangement is found to weigh in favor of the Applicant’s position.
38As already noted, Lana moved to Chesterville in August 2015, which is nearing 2 years ago. She has been under her father’s primary care since the end of March 2016.
39The end result is that Chesterville has been her reality for the last 2 years. This translates to close to one-third of her young life. This is coupled with the fact that she has been under her father’s primary care for the last 15 months.
40The Court finds that her best interests, at this stage, lies in the maintenance of the present status subject to some increase in the time with the mother;
- She is a young child caught in the throes of matrimonial dispute who’s primary need is stability
- There are no compelling reasons warranting a move to Ottawa in a different home, a different school and change in primary care
- There is no evidence of harm in the present setting
- She is doing well in school
- She is being cared for by her mother every second weekend
- She has contact with her younger sister while cared for by her mother
- She is exposed to her cultural background while under her mother’s care
41The Court is also concerned with the fact that Lana has already been exposed to prior significant changes in her young life:
- Moves within Nunavut
- Minimal contact, if any with her father while in her mother’s care in Nunavut
- Move from Nunavut to Chesterville
- Minimal contact, if any with her mother for a short period of 4 months, in Chesterville
42The relief sought by the Respondent mother would again expose Lana to a further significant change with no degree of certainty that this new setting would be the Court’s decision following a trial. This would serve to introduce uncertainty for Lana on a prospective basis. This is seen as contrary to the notion that there should be minimal disruption of a child’s life pending a final resolution. As explained by Justice McDermot in Fraser v. Fraser, [2015] O.J. no 3845 at paragraph 16:
“16… Moreover, if I were to order a change in the status quo, there is a real potential that these care arrangements may be changed again at trial; better to avoid a risk of two changes in the children’s lives by avoiding a change in the status quo at the interim motion stage.”
43As already alluded to, the Court is of the view that there should be some increase in the time spent by Lana in her mother’s care. This is seen as being in her best interests:
- Allows for more contact with each parent
- Allows for more contact with her sister
- More exposure to her cultural background
- It does not significantly disturb the existing arrangement
44This increase in parenting time for the mother will translate into one additional weekend on a four (4) weeks rotation.
CONCLUSION
45For the reasons stated in this ruling, the Court makes the following temporary order:
- The child, Lana Amanda Nuqingaq, born November 25, 2010, shall remain in the Applicant father’s primary care.
- Starting August 4, 2017, the Respondent mother shall have the care of the said child during weekends on a four (4) weeks rotation as follows: i) the first two (2) weekends with the Respondent ii) the third weekend with the Applicant iii) the fourth weekend with the Respondent
- The child shall be cared for by the Respondent at her residence in Ottawa from Friday, between 3:30 p.m. and 6:00 p.m. to Sunday at 11:00 a.m. The Respondent must arrange to pick-up Lana at her daycare on the Friday between 3:30 p.m. and 6:00 p.m. Pick-ups after 6:00 p.m. on the Friday must not occur, as the daycare will start charging extra, commencing one (1) minute after 6:00 p.m.
- The pick-ups at the end of access by the Applicant father will occur on the Sunday at the Supervised Access Centre of Family Services in Ottawa. The pick-up time shall not be later than 3:45 p.m.
- The Respondent mother shall have telephone access to the child every Wednesday. The Applicant father shall place the call to the Respondent mother by dialing 613-413-5927 between the hours of 5:00 p.m. and 5:30 p.m. on Wednesdays, and shall immediately hand over the phone to Lana to answer. The length of each telephone call shall be dependent on the child’s wishes.
- Paragraphs 1, 2, 3 and 4 of this temporary order shall be enforced by the police having jurisdiction over the area in which the child may be present at any point in time.
- The provisions of the October 24, 2016 and May 15, 2017 in regards to the Respondent’s access to Lana remain in effect and are to be followed up to August 4, 2017.
46The parties are asked to discuss and resolve the question of costs for this motion. If unable to do so, brief written submissions (maximum 3 pages) are to be served and filed with the Court on or before August 18, 2017.
Justice Ronald M. Laliberté Released: July 20, 2017
COURT FILE NO.: 16-121 DATE: 20170720 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Andrew Brophy Applicant – and – Suzie Nuqingaq Respondent REASONS FOR JUDGMENT Justice Ronald M. Laliberté
Released: July 20, 2017