Torok v. Ball, 2017 ONSC 922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMIE ELIZABETH TOROK Applicant
– and –
JASON ANDREW BALL Respondent
Christopher P. Fitzgerald, for the Applicant
Heather A. Mendes, for the Respondent
HEARD: February 9, 2017
RASAIAH J.
REASONS FOR RULING ON MOTION
BACKGROUND
Family History
1The applicant is 37 years of age. The respondent is 45 years of age.
2The parties began cohabitating on or about November 2003. They were married March 3, 2009. The parties separated June 23, 2015. They continued to reside together in the matrimonial home located at 12 Westgate Drive, Sault Ste. Marie, Ontario until the respondent voluntarily left the home on April 9, 2016.
3The parties have one child of their marriage, namely Brookston Torok Ball, age 2, born August 12, 2014 (“Brookston”). Brookston has resided with the applicant since the parties’ date of separation. The respondent has exercised supervised access.
4The applicant has a child from a previous relationship, Adrian, age 18, who resides with her. He was approximately 5 ½ when she and the respondent began to live together.
5The applicant is employed full-time by the Ministry of Northern Development and Mines.
6The respondent is employed full-time by Essar Steel Algoma as a fitter/welder.
Application History
7The applicant filed an application for divorce May 6, 2016. She claims various other relief, including a claim for sole custody of Brookston and for an order that the respondent’s access to Brookston be supervised.
8The respondent filed an answer August 3, 2016, in which he made he made a claim for joint custody and shared week-about access to Brookston.
9Although the respondent described his access as dictated, on written consent of the parties, both parties represented by counsel, on June 9, 2016, I made an order requesting the involvement of the Children’s Lawyer and an order providing the respondent with parenting time on alternate weekends on Saturday and Sunday from 10:00 a.m. to 7:00 p.m.; one day during the week following access; and two days during the week prior to weekend access, with all access to be in the presence of the Respondent’s mother.
10On July 15, 2016, the Children’s Lawyer notified the court that a report would be provided to the court. On July 21, 2016, the Children’s Lawyer notified the parties that clinical investigator Marion Mitchell was assigned.
11On written consent of the parties, both parties represented by counsel, on August 9, 2016, McMillan J. made an order varying my said order, amending the access, namely, to expand the respondent’s access time with Brookston to include: two days during the week following weekend access on the respondent’s day off by work schedule, on 24 hours’ notice to the applicant from 2:30 p.m. to 7:00 p.m.; and in the week prior to, one day on 24 hours’ notice to the applicant from 2:30 p.m. to 7:00 p.m.
12The Children’s Lawyer investigation was completed and on November 14, 2016, Marion Mitchell filed the Children’s Lawyer report with the court.
13On December 12, 2016, the applicant filed a dispute regarding the Children’s Lawyer’s report. She disputes many aspects of the investigation process and does not agree with the final recommendations.
14For reasons unknown to the court and counsel, following a letter from applicant’s counsel expressing concern that a paragraph had been removed from a report of Dr. Leahy in the possession of the clinical investigator, the Children’s Lawyer offered after “reviewing the matter closely”, to provide a new Section 112 investigation with a different clinical agent assigned.
Motions Overview
15The applicant, at tab 4, volume 1 of the continuing record, and the respondent, at tab 12, volume 1 of the continuing record, have each brought a motion for various interim relief.
16The issue on this hearing however was limited to and clarified to be strictly the issue of access for the respondent, namely if it should be changed from supervised to unsupervised access and further whether it should be expanded, including overnight parenting time.
17I have reviewed and considered every affidavit filed. I also reviewed each party’s respective factum and casebooks, and considered the submissions made at the hearing.
18I have not given any weight to the Children’s Lawyer Report given that the parties were not in a position to explain to me, and the Children’s Lawyer, subsequent to their initial letter standing by the investigation methods used, did not identify the reasons why they are now offering to do a whole new report by a new clinical investigator. For clarity, my decision on this point is not to be taken as communicating that I have made any findings whatsoever regarding the contents of the filed report and/or the points of dispute made by the applicant. Notwithstanding, on this temporary motion, given the remaining record, I am satisfied that for the purposes of this motion, there was sufficient admissible credible evidence to decide the issue of temporary access.
19Both parties have confirmed that they will accept the Children’s Lawyer’s offer for a new report.
LAW
20Each case is to be decided on its facts and the admissible evidence, viewed objectively.
21Temporary orders are viewed as a short-term measure to deal with the immediate problem of where a child should live pending trial and the role each parent should take.
22Under the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) as am.), the test for determining an application for interim access is always: What is in the best interests of the child? The court is required to take into consideration only the best interests of the child as determined by reference to the “condition, means, needs and other circumstances of the child.”
23Section 24 of the Children’s Law Reform Act, R.S.O., 1990, c. C.12, as am. (“CLRA”), is helpful guidance regarding the factors.
24Subsection 24(2) of the CLRA provides that the court consider all the needs and circumstances of the child, 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 care and upbringing of the child;
(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 131 education, the necessaries of life and any special needs of the child;
(e) any plans proposed 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.
25Subsections 24 (3) and (4) of the CLRA provide:
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.
26Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child: see Gordon v. Gordon (1980), 1980 3616 (ON CA), 23 R.F.L. (2d) 266 (Ont. C.A.).
27As a general rule, it is in the best interests of a child to develop and maintain a relationship with both parents: see Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.). In most access disputes, the focus of the litigation is on why a court should not maximize contact between a child and a parent.
RESPONDENT’S SUBMISSIONS
28The respondent would like the following unsupervised parenting time:
(a) alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m.; and
(b) one overnight visit on 24 hours’ notice to the applicant during each week, on the days he is off from work, namely: either Tuesday overnight to Wednesday or Wednesday overnight to Thursday, (whichever is his day off by work schedule that week), from 2:30 p.m. overnight to the following day at 7:00 p.m.
29The respondent expresses that he tried to be actively involved with Brookston during marriage but states that the applicant greatly limited/minimized his role. He states he was not permitted to assist in parental tasks, and that no one was, outside of the applicant. He states the respondent declined his parent’s offers to babysit or help.
30The respondent describes the applicant as controlling and obsessive when it comes to Brookston. The respondent’s family made similar observations.
31After the parties decided to separate the respondent states he began to help with meals, change diapers, do Brookston’s laundry, and bath him when he was off during the nights. He also watched television with Brookston until the applicant allegedly insisted the respondent move to the basement.
32The respondent alleges the applicant has kept Brookston from him and made false allegations against him; that she continues to limit his contact with Brookston. Post-separation, he states, that she refused to receive a calendar outlining his days off, and to allow him to pick up the child from daycare earlier or provide any other reasonable access.
33The respondent states that the applicant unilaterally makes decisions for Brookston without consulting him; does not include him in doctor’s appointments and often schedules the appointments on dates he is working.
34The respondent submits there are no substantiated concerns regarding Brookston for abuse and aggression, and/or of alcohol and drug abuse by him.
35The respondent has acknowledged his anger issues. The respondent acknowledges that his relationship with Adrian was a struggle and that he was hurtful to him. While not stating this to excuse his behaviour, he described a dynamic of not being permitted to parent Adrian and/or not being respected by Adrian which amounted in frustration often. He appreciates and is taking ownership for the way he treated Adrian. The respondent is committed to continuing his counselling.
36The respondent voluntarily attended an anger management program which he states he completed while attending marriage counselling. The respondent states he has never been charged or convicted of a violent crime or domestic violence.
37The respondent states that none of Adrian’s or the parties’ communications with health care providers regarding his anger issues were reported to the Children’s Aid Society and he suggests that this is because the issues did not rise up to the level as characterized by the applicant.
38The respondent alleges that the applicant too has anger issues and set out some examples including kicking a stove door, throwing plates on the floor, punching walls, slamming doors and occasionally slapping the respondent, which is strongly denied by the applicant.
39The respondent submits that Brookston is always happy to see him when he and his mother pick him up and that Brookston has a close and loving relationship with his family. The respondent currently lives with his parents in the winter (and on their property in a small cottage otherwise) and has the support of his parents and the paternal family. This summer, he states that he enjoyed many activities with Brookston, such as swimming, boat rides, wagon rides, playing with toys, visiting family, catching frogs, swinging on the swing set, collecting rocks and pine cones, and holding a birthday party for Brookston. He listed many other things they do together including outings to Blind River, to Walmart and to Bellevue Park. He has also spent time visiting Brookston at daycare.
40The respondent emphasizes that one of the daycare educators wrote that the respondent was kind and considerate, and that Brookston was happy to spend time with him. No concerns were noted.
41The respondent expressed that he has had opportunities to take care of Brookston when Brookston was not feeling well and that he managed his care without difficulty during these instances.
42The respondent submits that he has demonstrated an ability to engage in co-operative parenting with the applicant and attempting to engage the applicant in communication. He points to text messages that the applicant filed in the record.
APPLICANT’S SUBMISSIONS
43The applicant claims that the respondent never took an active role in raising Brookston; she has been the sole caregiver. She said that this came about because the respondent preferred his lifestyle of fishing, hunting, playing hockey, drinking, using drugs, and doing whatever he wished on his days off from work.
44The applicant expresses concern that the respondent uses alcohol excessively, abuses substances, has violent behaviour, has anger issues, and is controlling. Her position is based on her stated direct personal experiences and observations. She also points to the respondent’s relationship with Adrian as a marker for concern; the allegations include that the respondent verbally and emotionally abused, belittled and criticized Adrian, and blamed Adrian for the problems in their marriage. Adrian became depressed, and sought medical attention and counselling as a result. Adrian expressed worry/fear for Brookston.
45The applicant states that the respondent’s interest in Brookston was kindled only in March of 2016 and she perceived it as only to hurt her and to avoid paying child support.
46The applicant opposes unsupervised access for the respondent and asks that there be no change to the access. She states:
(a) the respondent has not demonstrated ability to contain his anger which she states she has observed personally for more than a decade. The applicant states their marriage was troubled by the respondent’s anger and controlling behaviour towards her and Adrian;
(b) the respondent has no record of quality care for Brookston and no history of co-operative parenting or appropriate communication between the parties before or after separation;
(c) the respondent drinks and has drank to the point of being unable to stand up on family social events. She states that when he drinks he becomes verbally abusive;
(d) the respondent uses marijuana;
(e) Brookston has dietary restrictions due to food sensitivities, and she doubts that the respondent has the capacity to take care of Brookston when he is sleeping or trying to sleep; and
(f) her primary, main concern is for Brookston’s safety.
47I am uncertain if the applicant is still breastfeeding Brookston. That concern was not addressed as a concern by her counsel.
48The applicant in her materials states that she takes no issue with the respondent having full rights of access to caregivers, counsellors and all professional persons providing services to Brookston and being obliged to keep him informed of appointments and scheduled services for the child.
49The applicant states that if the court is inclined to make an order addressing alcohol and drug use that she is content that it be made mutual as submitted by the respondent.
50The applicant indicated that if the court was inclined to provide overnight access, she asks that it be order to occur in the paternal grandparent’s home.
ANALYSIS
51I find that it is in the best interests of the child to change the respondent’s access to unsupervised access and further that the access be expanded on a temporary basis.
52I am satisfied that the record, including the parties’ own accounts, their respective family’s accounts, and the daycare report, establishes that both parents love Brookston; that they both have and show affection for Brookston and have emotional ties to Brookston.
53In the applicant’s home, Brookston has the applicant and his brother. There are no issues there that I was made aware of.
54In the respondent’s winter residence, Brookston has the respondent and his paternal grandparents. The respondent’s spring/summer residence is a cottage located on the property of the paternal grandparents’ residence. The applicant has been supportive of the respondent’s mother’s involvement with Brookston.
55I am satisfied based on the affidavits of the applicant and the respondent that prior to the separation, that the applicant was Brookston’s primary care giver and that she and Brookston are very close. I am satisfied that she is very attentive to Brookston’s needs when he is with her.
56I accept that the applicant wants the respondent to have a meaningful relationship with Brookston. I accept that she is fearful and highly concentrated on the best interests of Brookston.
57I am satisfied however that over the last eight months, based on the record, that the respondent has stepped into providing care for Brookston on his own without issue. The sworn affidavits of the respondent’s family members depose that the respondent provides for all of Brookston’s needs and care when he is with the respondent. The daycare report does not reflect the need for any of the educators to step in and assist the respondent with any of Brookston’s care when the respondent visited Brookston at the daycare.
58The record reflects a very strong attachment to the applicant and anxiety when he leaves her. The record reflects that the applicant has been breastfeeding and co-sleeping with Brookston for some time. The record also reflects however that when the applicant is not around, Brookston transitions to the respondent without issue, and Brookston is able to nap at daycare and the respondent’s parent’s home without difficulty.
59While Brookston, clearly at his age is not able to verbalize views and preferences, the daycare report states that Brookston is happy to see, and be with both parents. He is not noted as demonstrating any fear of the respondent. The respondent’s family members express the same and have noted positive changes in the respondent.
60The respondent over the past eight months has consistently exercised almost all of the parenting time that has been ordered, and further, has spent additional time with Brookston as set out by the daycare report.
61During these eight months, there have been some pick-up and drop-off issues, and communication issues between the parents concerning Brookston’s naps and eating. I do not see these issues as factors on this motion that would impede progression to unsupervised access.
62As to the allegation that on one occasion the respondent was under the influence of alcohol at a pick-up for access, which the respondent strongly denies, I was not provided with any police records or reports to verify or substantiate same. Further, in addition to any reports the applicant may have made regarding this, the respondent states he physically went to the police himself; the respondent was not charged and/or no report was made to the Children’s Aid Society by police that I was made aware of.
63I am not satisfied that the text messages and other evidence filed by the applicant establish that there is an ongoing concern related to alcohol and/or drug use. That being said, I am mindful that a new Section 112 report will be completed and the applicant’s concerns will be reviewed again; there are some admissions as to alcohol use by both; there is sworn evidence of family members that both parties have over-consumed in the past; and both parties expressed that for now, they are willing to consent to limitations in respect to such consumption. I am prepared to place such limitations but I do so on a without prejudice basis to both parties given the foregoing.
64The respondent’s requested parenting time falls on his days off from work. As such, he plans to and is available to devote himself to Brookston and his care during his parenting time. His plan is to continue to reside with his parents and/or on their property. For the winter months, he will continue to live in his parents’ home and accordingly, Brookston will as well. I am satisfied that there is evidence the respondent has provided quality care, having regard to the daycare report, the activities and care the respondent has been providing as set out in his affidavit material, confirmed by his mother and other family members in their sworn affidavits.
65I am satisfied both parties are able to and will meet the needs of Brookston, including his health needs. The daycare report supports that the respondent is able. The record reflects the respondent is involved in attending to and monitoring the child’s health. The respondent has taken care of Brookston when he has been sick. The respondent has the support of his family.
66I do not agree that the respondent’s affidavit material blames everyone but himself for his anger issues and his past inappropriate hurtful behaviour towards the applicant and/or Adrian, which this court does not in any way condone. I find that he has acknowledged his issues and is taking steps to continue to become a better parent, including attending counselling and enrolling in programs.
67I disagree with the submission that the lack of report to the Children’s Aid Society by any of the health care providers over the years is not a “sign post” or a consideration. These providers have strict duties as set out by the Child and Family Services Act, R.S.O., 1990, c. C.11, as am. That being said, I agree that the past treatment of Adrian and the applicant as acknowledged by the respondent, in my view, was unacceptable. However, based on the record, including the respondent’s acknowledgement of his issues; his steps to change which he is continuing; the fact that the respondent is now in and has been in a different family dynamic with familial support for the last eight months (which will continue); and he feels he has and is enjoying a meaningful (and no longer limited) role with Brookston, I am satisfied that the respondent has established that he has and will continue to demonstrate appropriate ability to parent Brookston.
68The applicant’s allegation of an incident of a public angry outburst at the station mall post-separation may or may not have occurred. The evidence of Ms. Mills on this issue is unsworn. The respondent denies it. The applicant also has submitted unsworn evidence of Ms. Allard regarding yelling and anger. If any of these events occurred, while in no way excusing such behaviour, I note that no significant recent incidents have occurred since, and notably, once regular access was put in place. Additionally, when the respondent is with the child outside of direct contact with the applicant, the child is comfortable and happy and there are no reports of angry outbursts. There are no recent reports of the child demonstrating any fear of the respondent.
69In respect of communicating with each other, I am of the view, while not deciding the truth of the contents, the counselling notes filed, indicate that the parties have difficulties communicating with each other and it is not one-sided. While there is still communication skills work to be undertaken, the text messages I find overall can be interpreted as the parties making steps in that direction. The parties are encouraged to communicate with each other in the best interests of Brookston.
70Given Brookston’s anticipated sleep transition, and given his food sensitivities, I do believe that the parties should communicate with each other on these issues at this time and that this communication is important. I encourage the parties to communicate on these issues.
71As to not following the access order, I accept that the respondent misunderstood the previous terms of the access order, and that he felt that picking up the child early (although not significantly early) should not cause the applicant concern. The three daycare filings (all written after early pick-ups started) do not express concern in my view, but that being said, I find at this time, it is in Brookston’s best interests that his routine, should be adhered to, except as otherwise agreed given the change in parenting time I am going to order. He will or has faced other changes in respect of breastfeeding and co-sleeping.
72Neither party made any submissions to me regarding temporary holiday parenting time. Between today’s date and the time by which the parties will likely be before the court again, there are holidays, such as Easter, Mother’s day and potentially Father’s day. I am concerned given the volume of materials filed and the acrimony between the parties (and the holiday parenting dispute Christmas of 2016) that this issue ought to have been addressed. Given that I have just heard and read all of the materials of the parties pertaining to access, I am of the view that it is in the best interests of the child to address that issue.
ORDER
73I hereby make the following temporary order:
Paragraphs 1 and 3 of the order pertaining to the respondent’s parenting time of Rasaiah J. dated June 9, 2016, and paragraph 1 of the order of McMillan J. dated August 9, 2016 are hereby terminated effective February 16, 2017.
The respondent shall have the following regular parenting time with Brookston Torok Ball, born August 12, 2014 (“the child”) effective February 17, 2017, until further court order:
(a) commencing the weekend commencing February 17, 2017, every second weekend, commencing the Friday at 7:00 p.m. and ending the Sunday at 7:00 p.m.
(b) commencing the week of February 20th, 2017, on 24 hours’ notice to the applicant, one overnight visit each week, to occur on the days he is off from work, namely: either Tuesday overnight to Wednesday or Wednesday overnight to Thursday, (whichever days are his days off by work schedule that week), from 2:30 p.m. overnight to the following day at 7:00 p.m.
For the commencement of the respondent’s parenting time, the respondent or his mother shall pick-up the child at daycare (when he is at daycare), and if he is not at daycare, at the applicant’s residence or such other location as may be agreed to in writing, at the specific times specified above unless otherwise agreed to in writing.
At the conclusion of the respondent’s parenting time, the respondent or his mother shall return the child to the applicant’s residence, or such other location as may be agreed to in writing, at the specific times specified above unless otherwise agreed to in writing.
On a without prejudice basis, on consent, neither party shall consume any alcohol and/or any drugs not prescribed for his or her use, twelve hours prior to and during the time the child is in his or her respective care.
The parties shall within 10 days from today’s date exchange in writing proposals for temporary holiday parenting time to June of 2017. If the parties cannot agree, brief written submissions shall be exchanged between counsel by February 27, 2017 and shall be directed to my attention no later than March 3, 2017.
Both the applicant and respondent shall have full access to caregivers, counsellors and all professional persons providing services to the child. The applicant shall keep the respondent informed of appointments and scheduled services for the child.
The parties forthwith shall notify the Office of the Children’s lawyer via their counsel that they accept the Children’s Lawyer’s offer for a new Section 112 report as set out in Exhibit 1 on this motion.
The application, answer and claim, and balance of the motions at Tab 4 and 12 of the volume 1 of the continuing record are adjourned to the settlement conference to be set, subject to leave being granted to bring them back on earlier before the court as the court may direct.
The parties via their counsel shall contact the trial co-ordinator within 7 days and set a settlement conference to occur within approximately three to four months from this date on account of the time that may be required to complete the new Section 112 report to be prepared.
If the parties are not able to resolve the issue of costs of the access motion, brief submissions as to costs may be made, to my attention, via the trial co-ordinator, in writing, no later than March 3, 2017.
Rasaiah J.
Released: February 13, 2017
CITATION: Torok v. Ball, 2017 ONSC 922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMIE ELIZABETH TOROK
- and –
JASON ANDREW BALL
REASONS FOR RULING ON MOTION
Rasaiah J.
Released: February 13, 2017