ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jeffrey Ronald Balina
R. Angell, for the Applicant
Applicant
- and -
Kathryn Diane Thompson
K. Costa, for the Respondent
Respondent
HEARD: September 29, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
Overview
1On September 28, 2017 Mr. Balina brought an urgent without notice application to have the police assist in returning his seven-year-old son, Alexander. After hearing brief submissions from counsel for Mr. Balina, I made the following endorsement:
Applicant brings urgent without notice application to have police assist in returning his seven-year-old son. Respondent has left family home with son on September 19, 2017 and has not provided information about whereabouts. Son has not been at his school since September 19, 2017. Respondent has had one brief FaceTime chat with his son and does not know why son is not in school. Counsel acknowledges that courts are reluctant to make such an order without hearing the other parties concerns. In the circumstances I adjourn this motion to September 29, 2017 at 1:30 PM to be heard by me. The motion record and this endorsement shall be served substitutionally on the respondent by serving her mother personally and upon her by email.
2On September 29, 2017 Ms. Thompson appeared with her counsel and filed her own motion for interim custody of Alexander among other things. Family law duty counsel was present and spent approximately one and one half hours with the parties and their counsel to attempt to mediate a resolution. The parties were unable to come to any agreement.
The Facts
3Some facts are undisputed.
4It is agreed that Ms. Thompson took Alexander away from the family home on September 19, 2017 without notice to Mr. Balina. Ms. Thompson acknowledges that Alexander has not been in school since September 19, 2017.
5Mr. Balina deposed that he received a text from Ms. Thompson saying that she was running errands with Alexander and that she took him to a McDonald’s restaurant. Later, Ms. Thompson arrived at the family home with two police officers to retrieve personal belongings. She refused to tell Mr. Balina where Alexander was.
6Mr. Balina made inquiries with the police on September 20 and 22 and deposed that the police did not provide him with any information about Alexander’s whereabouts but that they did inform him that they spoke to Ms. Thompson who advised them that she and Alexander were safe.
7Ms. Thompson deposed that she and Alexander are staying at a women’s shelter. Her affidavit states that there is a “history of verbal and emotional abuse” and that he harasses her through “numerous, excessive text messages throughout the day.” It was confirmed by her counsel that there has not been any physical violence. The text messages between the parties attached as exhibits to Ms. Thompson’s affidavit disclose, not surprisingly, animosity between the parties but they are largely questions and statements by a father trying to understand what has happened and where his son is.
8Mr. Balina deposed that he is disabled due to a back injury and receives permanent disability benefits from workers’ compensation. He deposed that Ms. Thompson works three days a week (Tuesday, Thursday and Saturday) as a hairdresser at a salon and also works privately in their home and at the home of other clients. He deposes that he has cared for Alexander from birth particularly when Ms. Thompson was working.
9The affidavit filed by Ms. Thompson does not dispute those facts but in argument her counsel stated that Ms. Thompson has always been the primary caregiver for Alexander. Much of Ms. Thompson’s affidavit is concerned with harassment and her belief that Mr. Balina has or will engage in inappropriate conversations with Alexander suggesting that “mom is lying to you” etc. Ms. Thompson has not returned Alexander to school because she believes that either Mr. Balina or his mother will pick up Alexander without her knowledge and then keep Alexander from her. There is no evidence from Ms. Thompson to indicate that Mr. Balina is incapable of appropriately caring for Alexander.
The Positions of the Parties
10Ms. Thompson seeks an order for temporary custody or an order that Alexander primarily reside with her. She is prepared to grant afternoon access on Tuesdays and Thursdays from after school until 7 PM and all day access on Saturday and on Saturday and Sunday on alternate weekends.
11Mr. Balina wants to see his son and wants his son returned to school and the home. A shared arrangement was not contested.
The Law
12The paramount consideration is always the best interests of Alexander.
13I accept the following excerpts from Madill v. Madill, 2014 ONSC 7227 as accurate statements of the law:
31In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 2000 ON SC 22565, 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030; and Easton v. McAvoy, 2005 ONCJ 319.
32The Court must consider the best interests of the children, including their needs and circumstances—with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.
14Section 24(2) of the Children's Law Reform Act, RSO 1990, c. C-12, enumerates those factors as:
Best interests of child
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Past conduct
A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse
Analysis and Disposition
15This is, unfortunately, at present, a high conflict separation. We are early in the proceedings. Caution must be exercised before basing a decision upon affidavit material alone in the circumstances.
16Despite the allegations of harassment by Ms. Thompson, there is no evidence to suggest that either Mr. Balina or Ms. Thompson do not love Alexander and there is no evidence to suggest that Alexander does not have strong and equal ties to both of his parents. It appears that Alexander has lived since birth at the family home with both parents caring for him. There is no serious suggestion in the evidence that either parent is lacking in the ability to act as a parent. I note that there is a suggestion of inappropriate communication by Mr. Balina with Alexander and I cautioned Mr. Balina that he should desist from such communication.
17Therefore, after consideration of the s. 24(2) factors I conclude that, on a temporary basis, both parents should share custody and care of Alexander and therefore order the following:
Alexander shall be immediately returned to his school, St. Jude’s, on regular school days upon receipt of these reasons.
Neither parent shall pick up Alexander at school unless as specified in this order.
Alexander shall continue to reside with Ms. Thompson until Thursday, October 5, 2017 and Mr. Balina will pick up Alexander after school on Thursday, October 5, 2017 and Alexander will reside with him until Tuesday, October 10, 2017. Ms. Thompson will pick up Alexander after school on Tuesday, October 10, 2017 and Alexander will reside with her until noon on Sunday, October 15, 2017 at which time Alexander will be returned to Mr. Balina’s care. This pattern of each parent having care of Alexander for five nights will continue until further order or the consent of the parties.
Communication between the parties regarding Alexander shall be by text message or email, and both parties are to refrain from abusive or harassing language or behaviour and specifically, are to avoid speaking to Alexander about the conduct of the other party.
I direct that the parties are to finalize their applications and answers forthwith and that a case conference should be scheduled within 30 days.
If costs are sought, I direct that the costs of this motion are in the discretion of the judge finally disposing of this matter.
18I recognize that this is a very stressful and difficult time for the parents and Alexander. I recommend, in the strongest terms, that each parent should seek counseling immediately directed at learning how to properly parent in a shared parenting situation. As I told the parties when they were before me, while their relationship may be over, they will continue to be Alexander’s parents as long as they live and it is in Alexander’s best interests that each of them learn appropriate parenting skills for the new circumstances.
“Original signed by”____
NEWTON J.
Released: October 2, 2017
CITATION: Balina. v. Thompson, 2017 ONSC 5870
COURT FILE NO.: FS-17-0233-00
DATE: 2017-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jeffrey Ronald Balina
Applicant
- and -
Kathryn Diane Thompson
Respondent
DECISION ON MOTION
NEWTON J.
Released: October 2, 2017
/lvp