Tinsley v Doherty, 2018 ONSC 1814

COURT FILE NO.: FC-18-489

MOTION HEARD: March 15 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Mark Tinsley v Ellen Corrine Doherty

BEFORE: MASTER NATHALIE CHAMPAGNE

COUNSEL: Philip Augustine, for the Applicant

Ellen Corrine Doherty, self-represented respondent

AMENDED REASONS FOR DECISION

The text of the original Reasons for Decision was amended on May 9,2018 and the description of the amendment is appended

1The applicant brings a motion seeking an order that this matter be deemed urgent or in need of being argued before a case conference on the basis that it is in the interests of justice. The applicant was served personally yesterday at 1:10 p.m. and is not present.

2The parties began residing together May 29, 2015. At that time they signed a cohabitation agreement which sets out that they would share joint custody and access of yet unborn children. The parties are the parents of one child Marc Edward Tinsley born June 2, 2015.

3The applicant states that on February 22, 2018 the respondent left the home with the child and he does not know her whereabouts and he has not seen his son. He states that he is worried about the respondent’s mental state and ability to care for the child and makes undated general allegations about the respondent’s parenting including allegations of heavy marijuana use.

4His counsel argues that the respondent’s self-help actions are such that the court should allow a motion to proceed before a case conference. She argues that the case of Cataldo v. Cataldo 2014 ONSC 6344 stands for the proposition that where one party takes unilateral action to change the status quo established by a separation agreement the court may allow a motion on the issue to proceed before a case conference. In Cataldo, Justice Broad does in fact reason that the courts need to discourage parties from exercising self-help to unilaterally impose a new status quo, particularly where parties negotiate a separation agreement utilizing a collaborative process. In that case, a status quo of over 6 months was in place pursuant to a separation agreement when the applicant withheld the child from the respondent. In my view, Cataldo can be distinguished from the present case. In the matter before me, there is no disruption to a status quo other than the disruption that occurs in almost every case where parties separate and one party assumes responsibility for children. In addition, the cohabitation agreement was negotiated prior to the birth of any children and while the parties were together. Neither party had any idea as to the other’s parenting abilities. The agreement was made without knowing what would be in the best interests of any potential children in the event of a separation in the future. The best interests of a child cannot be predicted into the future without evidence. The needs of a particular child and the parents’ parenting capabilities need to be assessed to make such a determination. Those kinds of issues are canvassed by the courts or when parties separate and separation agreements are negotiated. They are not the kinds of issues that can be predicted by crystal-ball gazing.

5The applicant’s counsel argues that if a motion is only held after a case conference, a status quo will be established and the motion should be heard prior to a case conference to prevent this “in the interests of justice”. I disagree. Technically, a status quo would be established in any case where parties separate and one party leaves with children. I am confident that the rules do not contemplate motions before case conferences in every case where there is a dispute as to custody and access. Motions under Rule 14 (4.2) are meant to be an exception. This is set out in the case of Rooney v. Rooney, 2004 ONCJ 26, at para. 15.

6Addressing the applicant’s general allegations regarding the respondent’s mental health and parenting ability, there is insufficient evidence for me to find the matter urgent. The applicant’s affidavit contains bald unsupported assertions devoid of detail, context or timing. The evidence does not meet the test set out in Rooney which states that evidence should be compelling.

7The issue of the alleged denial of access may in fact be urgent as set out in Hurd v. Hurd (2006), 2006 15312 (ON SC), 32 R.F.L. (6th) 114 (Ont. S.C.), but without detail in this regard, I cannot make a determination. While the applicant says he has no idea where the respondent is, he managed to serve her personally. He also states that he had communications the respondent’s sister to try to set up access. He states that those efforts were not successful but he provides absolutely no detail in this regard. Again, his assertions are not evidence. Should the applicant have evidence that he is actually being denied any access to the child, he may return to a procedural motion on proper notice to the respondent under the rules, to seek an order deeming the matter urgent.

8The evidence before me is neither compelling nor does it meet test as set out in Rule 14(4.2). The facts simply do not bear that out.

9In the circumstances, the applicant’s motion is dismissed.

Master Nathalie Champagne

DATE: May 9th, 2018

APPENDIX

1. May 9, 2018: On page 2 paragraph 4, the word that has been added in line 2 following the word argues;

2. May 9, 2018: On page 2 paragraph 4, the word of on line 2 should not have been italicized;

3. May 9, 2018: On page 2 paragraph 4, the word stands has been added after the citation in the 3^rd line;

4. May 9, 2018: On page 2 paragraph 4, the word case following the word Cataldo in line 10, has been removed;

5. May 9, 2018: On page 2 paragraph 4, the word crystal-ball in the last phrase has been hyphenated;

6. May 9, 2018: On page 2 paragraph 5, the font in the Rooney citation in the last phrase has been changed to font 12;

7. May 9, 2018: On page 3 paragraph 7, the word of has been added in the first phrase following the word issue;

8. May 9, 2018: On page 3 paragraph 7, the Hurd citation has been changed to font 12.