COURT FILE NO.: FS-16-239-00
DATE: 2018 06 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
N. L-C
Self-Represented
Applicant
- and -
J. C
Self-Represented
Respondent
HEARD: May 15, 2018
Emery J.
ENDORSEMENT ON MOTION FOR EXPANDED ACCESS
[1] The trial of this family case commenced on February 12, 2018. The trial continued for the next four days before it was adjourned to March 15, 2018 to allow the respondent father time to complete his evidence, and for the parties to make closing submissions.
[2] On March 15, 2018, the trial was further adjourned to September 17, 2018 when there was not enough time to complete the father’s cross-examination, and to make closing submissions.
[3] Both parties requested at trial that the court refer to them by their initials or in parental terms, and to refer to the child by his first initial to protect his identity. Accordingly, I have used those terms in this endorsement to respect that request.
[4] The father brings this motion for an interim order expanding his access to the child of the marriage, J., until the trial resumes in September. The father seeks joint custody of J., who will be five years old on December 28, 2013. At trial, the father conceded that J. shall reside primarily with the applicant mother, with generous access time to him.
[5] On October 28, 2016, Justice Barnes made an order that the father would have specified, regular access to J. on Monday night each week, and overnight on Saturday every other weekend. The parties subsequently amended that access schedule on November 28, 2016 to give the father access to J. every Wednesday from the time he picks him up from school in the afternoon to the time he drops him off at school on Thursday morning. The amended schedule also permits the father to pick up J. from school Friday afternoon every other weekend and to deliver him to his mother’s home at 6:00 pm on Sunday night.
The Motion
[6] The father brings this motion to expand that access from Wednesday afternoon until he drops him off at school on Friday morning each week, and every other weekend to keep J. overnight on Sunday until he delivers him to school on Monday morning.
[7] The mother and father were married on August 3, 2008. They separated when the mother moved out of the matrimonial home on October 11, 2016. The application was issued soon thereafter, followed by the order made by Justice Barnes.
[8] The fathers motion seeking expanded access is brought on the following grounds:
a) The trial was taking longer than expected for the father to obtain a final order with respect to the access that he is to have for the child;
b) The current access schedule is causing the child serious mental and emotional harm; and
c) The current access schedule is causing isolation of the child from the father.
Evidence of the Father
[9] The father swore an affidavit on March 27, 2018 in support of his motion for expanded access. In that affidavit, he states that the completion of the trial set for September 17, 2018 makes the current access arrangement unbearable, as it is having the effect of alienating the child from his father. He states that this could cause a serious break in the close bond between child and father. He states that the child consistently asks his dad why he cannot stay with him.
[10] According to the father’s affidavit, the current temporary access arrangement causes the child mental and emotional distress on a regular basis. In that affidavit, the father describes how the child cries almost every Sunday evening at the end of the access visit with him. The father requested leave of the court to introduce videos of the child reportedly crying on certain occasions when he was to be returned to his mother. I denied the father leave to show these videos as they were not attached as exhibits, or properly described in the affidavit to make them admissible as evidence on the motion.
[11] The father also states in his affidavit that the child consistently asks to spend more time with him. He submits that he is not always granted the time the child requests under the current access plan. The father further explains in this affidavit that the current temporary access plan does not allow the child time to have the full benefit of his day pursuing his education. The father states that the child does not receive the best of his father’s assistance to complete his school assignments under the current access schedule.
[12] The father argues that there are life skills that the child is not benefiting from as a result of the current access schedule. These life skills include sports and recreation. The father states that this is a disadvantage to the child.
[13] Reference is made in the father’s affidavit to a report from Harvard University that he relies upon as authority to submit that a child will benefit significantly from more access with his father. This would reportedly lead to better education for the child, better emotional and mental health, better social outcomes, and better holistic development. The study from Harvard was not appended as an exhibit. No affidavit from an expert was tendered through any affidavit from any affiant seeking to be qualified as an expert on child development. I did not consider the Harvard report as a result.
[14] The father concludes his affidavit at paragraph 16 and 17 with the following evidence on why access should be expanded to include Thursday each week, and to extend access to include Sunday night every other weekend:
A Wednesday and Thursday access with his dad will be stable for the child, it will not cause disruption for his school or any other of his activities. It will also allow his father to be more invested in his education as it will allow for greater follow up and better study monitoring.
Not ending his day at 6 PM means that the child will experience less distress and will be able to properly end his days with his Dad with crying and getting extremely emotional on parting as he will (sic) go direct to school after access.
[15] In his affidavit, the father also takes issue with the housing where the mother resides with the child. He states that this is a hazardous living arrangement, because it is an illegal rooming house that does not meet Brampton’s fire code.
Evidence of the Mother
[16] The mother has filed a responding affidavit containing evidence that contradicts the evidence given by the father in many respects.
[17] In her affidavit, the mother describes how the child has settled into a stable home environment with her in close proximity to his school and swimming lessons, as well as to the father’s home for over a year now.
[18] The mother describes how she cooperated with amending the access schedule set out in the order made by Justice Barnes in October, 2016 to move the weekly access for the father to the child from Monday overnight to Wednesday overnight, and to increase the father’s access every other weekend. The time the father returns the child to the mother’s home has remained at 6 pm on Sunday night since that change was made in November, 2016.
[19] The mother disagrees with the father’s accusations that she is alienating the child from him. She states there is no evidence to justify this accusation. To the contrary, she states that she has consistently offered time to the father outside of his access schedule to spend time with the child. The father is consistently contacted as the first choice of care for the child when and where required by the mother. Often, the father does not accept the additional time he is offered to spend with the child.
[20] The mother also states that she often cooperates to allow the father to schedule visits to the barber and summer swim lessons for on her days with him, without incident.
[21] In response to the fathers statement that J. goes up to seven days without seeing his father from time to time, the mother states that the father often schedules other activities for himself on his weekend or the day he is to have parenting time with the child. This requires alternate care givers to look after J. The mother has even reached out to the father from time to time with an offer to trade him days or weekends when she has noticed that he has not seen J. for a length of time. She states in her affidavit that these offers have never been accepted.
[22] The mother states in her affidavit that the father has online access to the child’s math curriculum, and has never logged on to assist the child with the work assigned. Instead, all activities have been completed when J. is in the mothers care. The mother has even sent worksheets and books with J. for the father to become involved. In any event, the child’s report cards show that he is doing well at school.
[23] The mother states that the father is aware of her close bond with the child. She states that J. initially had a difficult time adjusting to spending every Wednesday with his father. The child would often cry when he was told that he would be away from his mother. The mother worked diligently to assist him with adjusting to this schedule.
[24] The mother further states that the father would attend the family church with herself and the child on Saturdays during those weekends he is to have access. When it came time to leave with the father, J. would have tantrums and the mother would console the child. This often meant that the father had to wait outside the church until the child was consoled and the mother brought him back to the father to continue the access visit.
[25] In her affidavit, the mother describes how the father has often told her that the child is having a tantrum. Yet, she states that when she has seen the child on those occasions, he is happy and excited and happy to see his “mommy”- without signs of crying. The mother even showed up unannounced on one occasion at the father’s home minutes after he had made such claims and found that J. was not having a tantrum at all.
[26] The mother challenges the reliability of the father’s statement that the tantrums and distress he claims the child experiences at 6 pm on Sundays at the end of a weekend visit.
Analysis
[27] The father brings this motion to vary the temporary order made by Justice Barnes in October, 2016, as amended by the parties a month later. The father bears the evidentiary burden as the moving party to show that the relief he seeks should be granted. He must also discharge the onus as the moving party to prove that an intervening event has occurred that would, and should result in a different order: Biddle v. Biddle, 2004 52809 (SCJ).
[28] I informed the mother and the father at the hearing of the motion that I would not consider any evidence given during the trial for the purpose of deciding this motion, except for narrative only. I further informed the parties that I would not and could not decide issues of credibility where contradictory evidence is given on a fact or circumstance in the competing affidavits.
[29] The father has not given any evidence that has not been contradicted by the mother that it would be in the child’s best interest to order the expanded access the father seeks.
[30] I have considered the arguments made by the parties, the evidence filed on the motion, and section 24 of the Children’s Law Reform Act, being the only statutory authority either party relies upon. The father did not make any reference to the maximum contact principle under section 16(10) of the Divorce Act. Neither party brought any case law to my attention as authority for their respective positions.
[31] I have taken into account the principal that, in the absence of material evidence that the best interests of the child require an immediate change to an interim custody (or access) regime, the status quo should ordinarily be maintained until trial. The authorities for this approach are nicely summarized by Justice Minnema in Button v. Konieszny, 2012 ONSC 5613 (SCJ).
[32] On the motion before me, I am not making findings on evidence that the child would benefit from expanding the fathers access. I am actually stating the opposite: there is no material evidence before me that the best interests of the child require a change to the status quo. The status quo should be maintained under the principles set out in Button v. Konieszny, and in D.M.M. v. T.B.M., 2016 YCSC 9. If the current arrangement for the father’s access is the status quo, the child shall continue residing with his mother with visits to his father according to that schedule.
[33] There remains section 24 of the Children’s Law Reform Act to consider on a motion for custody or access. I do not find that the father’s evidence provides any reason that I should take into account under section 24 to expand the access to the child he already exercises. The child, J., was two years old when the current access schedule was designed. He is now age four and sees both parents regularly. There is no evidence before me of an intervening event that would justify a change to the current access schedule before the trial resumes.
[34] I do not place any weight on the evidence given by the affidavits of either the father or the mother as it relates to the child’s school work and any benefit associated with keeping the child on a school night over the summer months. The father’s affidavit contains no facts about what school or program the child will be attending during the summer that would support his request for overnight access on Thursday nights and every other Sunday. The mother’s affidavit does not reflect how the summer schedule will be different from the access schedule during the school year. Both parents acknowledge that the current kindergarten year comes to an end on June 22, and that the child is not yet enrolled in a summer program. I therefore conclude that J. will have no homework from school over the summer, and the father will be delivering J. to his mother’s home after every access visit.
[35] There is no question that an animus exists between the parties. It is abundantly clear that they cannot communicate with respect to the child as his parents. The parties’ time would be better served improving their communication, and on cooperating with each other to develop similar activities that the child would benefit from during the parenting time each of them currently exercise.
[36] The father’s motion is dismissed. If the mother seeks costs of this motion, she can ask for those costs if and when appropriate at the end of the trial.
Justice Emery
Date: June 11, 2018
COURT FILE NO.: FS-16-239-00
DATE: 2018 06 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N. L-C
Applicant
- and -
J.C
Respondent
ENDORSEMENT ON MOTION FOR EXPANDED ACCESS
EMERY J
Released: June 11, 2018