ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Alilovic v. Alilovic, 2017 ONSC 6100
COURT FILE NO.: 960/16
DATE: 2017 10 12
B E T W E E N:
MARIA ALILOVIC
Paul Rausch, for the Applicant
Applicant
- and -
LUKA ALILOVIC
Thomas Arnold, for the Respondent
Respondent
HEARD: October 2, 2017
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
[1] The Applicant mother has before me, a motion for interim custody of the parties’ three children, Julia, born October 25, 2006, Sofia, born November 28, 2007 and Sabrina, born February 3, 2017.
[2] The parties separated on or about September 16, 2016. For the most part, since that time the two eldest children have resided with the Respondent and the youngest with the Applicant.
[3] The two eldest children live with their father in Erin, a community where they have lived all of their life, with the exception of the time they resided with their parents at the maternal grandparents’ home in Mississauga while their home in Erin was being built. They attend the school they have always attended.
[4] The Applicant and Sabrina continue to reside with the maternal grandparents in Mississauga. The Applicant is employed at a hair dressing salon in the Yorkville area of Toronto.
[5] The events that lead to the split residency of the children are contested by the parties. The Applicant advises that the Respondent left her and the children in Mississauga and returned to Erin advising her he no longer wished to live together. The children were left in the care of the Applicant who alleges that she has always been the children’s primary care giver.
[6] On a Monday following the exercise of weekend access the Respondent offered to take the two older children to and from school. Thereafter the children were not returned to the Applicant but rather, the Respondent advised her the children wished to live with him and would not be returning to her care.
[7] The Respondent alleges he was told by the Applicant that when their house was finished in Erin, she and Sabrina would not be returning to live in Erin but would remain living at her parents.
[8] Either way it was clear the marriage was over but the correctness or the “legality” of the creation of a status quo remains in issue.
[9] Counsel for the Applicant submits that the Respondent wrongfully and self-servingly created the status quo upon which he now relies. It is submitted he should not benefit from doing so. It is submitted that the Respondent is alienating the eldest two children from their mother, the Applicant.
[10] An order was made requesting the assistance of the Office of the Children’s’ Lawyer (OCL), who agreed to conduct a clinical investigation. The report, dated September 11, 2017, recommends that the children should all reside with the Applicant. Counsel for the Applicant submits that the report’s recommendations and the facts upon which they are based give rise to exceptional circumstances which allows the court to rely on the report as grounds, on an interim basis, to vary the status quo.
[11] Counsel for the Respondent argues that the status quo ought not to change pending trial. He submits his client has formally disputed the report and that the conclusions remain untested. He submits his client did not orchestrate the status quo for a tactical advantage. He denies the existence of exceptional circumstances as referenced in the case law set out below.
[12] The Respondent argues the two eldest children are doing well in school and should remain in the community where they have lived all of their lives.
[13] In considering the grounds for the motion, I am unable to determine, on the basis of affidavit evidence, whose evidence as to how the status came about it more credible. That decision is to be determined by the trial judge.
[14] Regardless of how the status was created, the fact is it has been in existence for over a year.
[15] Grant v. Turgeon [2000] 22565, is a decision of Mackinnon J. of the Ontario Superior Court of Justice. From paragraph 15 -17, I quote,
“There are two principles of law at play in this case. The first is that, generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interest…”
[16] The second principle is set out in Genovesi v. Genovesi (1992) 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Gen Div.), where Granger J. states at p. 32:
“An assessment report is usually ordered for use at trial as opposed to being used at an interim proceeding. In rare cases the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement.”
[17] Granger J. goes on to say at p. 33 that the general rule that the assessor’s recommendation ought not to be acted upon without a full trial should be followed except in exceptional circumstances where immediate action is mandated by the assessor’s report.
[18] Batsinda v. Batsinda 2013 ONSC 7869, is a decision of Madam Justice D. Chappel, who at page 22 states,
“As a general rule, courts would be very cautious about relying on conclusions and recommendations set out in the untested assessment reports at a motion pending trial, and about implementing even some of the Assessor’s recommendations at the temporary motion stage. The rationale for this approach is that there is no opportunity at the motion stage to undertake a thorough analysis and evaluation of all aspects of the assessor’s report, including the assessor’s credentials, methods, observations, findings, theories, and recommendations.”
[19] The same considerations, to a point, can be found in Bos v. Bos 2012 ONSC 3425. However, at paragraph 23, the court states,
“I respectfully agree and adopt the principles in relation to my considering an assessment report on a motion as set out in Forte and Kerr. In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from the existing order or status quo.”
[20] In the matter before me the change requested is a substantive departure from the status quo.
[21] Another authority is Wang v. Grenier 2016 CarswellOnt 13513, a decision of Beaudoin J. of the Superior Court of Justice. At paragraph 45 the court refers to Marcy v. Belmore 2012 ONSC 4696 as authority for the following principles:
The status quo will generally be maintained on an interim custody motion, particularly if it has been in place for a significant period of time.
In rare cases, an assessment may either reveal or confirm the existence of an urgent problem requiring immediate attention or correction.
There is no presumption that an assessor’s recommendations will inevitably prevail.
[22] To some extent a different approach can be found in Calabrese v. Calabrese 2016 ONSC 3077, a decision of Henderson J. Commencing at paragraph 20 he considers the above referenced principles but, at paragraph 22, states,
“However in my view, OCL reports and assessment reports often contain pertinent information about the parties, the child, and the extended family that can be extremely useful in an interlocutory proceeding…Whether the OCL’s recommendations are implemented or not is usually a matter for trial, but in my view the facts that have been gathered by the OCL clinician are useful at any stage. It is inconceivable that a motion’s judge should be required to turn a blind eye to the facts contained in the OCL report simply because the proceeding has not yet reached a trial.”
[23] After considering the arguments of counsel and the aforementioned principles of law, I am not prepared to make an interim custody order or change the current living arrangements. My guiding principle is the best interests of the children. Access by both parents continues and the children are, at least, together every weekend.
[24] The two eldest children seem to be doing well under the current arrangements and there exists no exceptional circumstance or urgency at this stage to warrant the adoption of the untested recommendations contained in the OCL report.
[25] Some of the facts set out in the OCL’s report are disputed and in my opinion, accepting them at face value, they do not compel me to change, on an interim basis, the children’s current living arrangements.
[26] The Applicant’s motion will be dismissed and access should continue on a weekend about basis.
[27] I do make the following comments. During the summer the children spent equal time with each parent. It would appear the children were quite happy with the arrangement. They did not have to make a choice as to which parent they would live with. Given the logistics that exist when the two eldest children are in school, an equal time arrangement is likely unworkable during the school year.
[28] If the parties lived closer together shared custody may very well be the solution. It is not in the children’s best interest to be split up. They should be residing together.
[29] It would also seem that since the separation the Respondent has had two girlfriends which have stayed overnight with him in the home where the two eldest children reside. The Respondent admits this but states it only occurred when the children were not home.
[30] It would appear however the children seem aware of these “sleep overs” as they disclosed this fact to the OCL clinical investigator. I only say that for the immediate future if the children are present no girlfriend should be sleeping over when the children are present.
[31] Finally, I recommend the trial of this matter be expedited. If the parties have not yet arranged or held a settlement conference they should do so immediately at which time a trial date can be set.
[32] The Applicant’s motion for interim custody is dismissed.
[33] If costs cannot be agreed upon, submissions as to costs are to be in writing, no more than 3 pages in length, double spaced, together with a bill of costs. Counsel for the Respondent shall deliver his submissions within 20 days and the Applicant, 10 days thereafter.
Bielby J.
Released: October 12, 2017
CITATION: Alilovic v. Alilovic, 2017 ONSC 6100
COURT FILE NO.: 960/16
DATE: 2017 10 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARIA ALILOVIC
Applicant
– and –
LUKA ALILOVIC
Respondent
REASONS FOR JUDGMENT
Bielby J.
Released: October 12, 2017