Court File and Parties

ONTARIO Court File Number: FS-16-85354-00 Superior Court of Justice At: 7755 Hurontario St. Brampton, ON L6W 4T6

Date: July 25, 2018

Applicant(s): Christopher Sean Redmond Counsel for Applicant: Pritina Bhavsar, pbhavsar@fblawoffices.com

Respondent(s): Candace Camellia Redmond Counsel for Respondent: Jennifer Howard, jennifer.howard@devrylaw.ca

Counsel for the Children: Christine Torry, christine@willis-torry-camilylaw.ca

Heard: July 24, 2018

Endorsement

Order to go in accordance with minutes of settlement or consent filed.

The Motions

The Respondent/Mother brought a motion on July 9, 2018, returnable July 24 (tab 19, vol. 3, Cont’g Rec.) for spousal and child support, and section 7 expenses. In response, the Applicant/Father brought his motion on July 17, 2018, returnable the same day (tab 22, vol. 6 Cont’g Rec.) for an order altering access and custody ordered by Seppi, J., on August 15, 2017, and for significant other relief.

Both motions were brought on a regular motion’s list. It is obvious that neither of the motions, standing alone, could be argued in under an hour. The motion material for these motions is 9 inches thick. Father filed 4 Affidavits totalling 469 paragraphs, attaching 65 exhibits. Mother filed 3 Affidavits totalling 59 paragraphs, attaching 19 exhibits. The casebooks and facta are 5 inches thick.

Emery, J., in whose court the motions first appeared, told counsel to restrict their motion to one issue to be heard in less than one hour. The parties indicated that they wanted me to decide the parenting issue. Mother insisted that I could not decide the question of parenting without deciding the question of spousal support given that the matrimonial home’s sale was to close at the end of August and the Mother needed a support order to satisfy lenders to purchase a new house. I told parties I would address parenting. I allotted 25 minutes to each of the parents, and 10 minutes for Ms. Torry, the lawyer appointed to act for the children.

Existing Order

After a lengthy hearing on August 11, 2017, Seppi, J., released her decision on August 15, 2017, addressing the motions for exclusive possessions and other relief. She denied the motions and imposed the current access regime which, in effect, has the parents with week about time with children in the same home where everyone lives.

In Seppi, J.’s six-page handwritten endorsement, the issues and behaviour she addressed were similar to those before me, including Mother’s allegations that Father is controlling and abusive, has anger management problems, and waged a campaign to alienate the children from her. Father, says that the Mother is too strict, swears at the children, uses corporal punishment contrary to their best interests, and is not paying her share of expenses.

Seppi, J., criticized Father for manipulatively filing carefully selected text messages sent by the children to show a negative attitude against their Mother. She found that this put the children squarely into the conflict, contrary to their best interest. She criticized Mother for using corporal punishment and restricting access to food as discipline, which is also contrary to the children’s best interest. She took comfort in the fact that the parties had agreed to retain a private child advocate, Ms. Torry, who, with a social worker, presented evidence on behalf of the children. This evidence indicated to Seppi, J., an alignment between Father and the eldest child and efforts by the eldest child to align the younger two brothers with Father as well.

Seppi, J.’s found that this sort of conflict is an expected outcome when separated parents continue to live under the same roof (in this case, for 3 years), each insisting on his/her right to be in the matrimonial home while unsuccessfully trying to divide parenting obligations and time. In Seppi, J.’s view the fairest solution would have been to sell the matrimonial home, and for each parent to secure accommodation. Neither party, however, requested that. Instead there “…steadfast insistence of both parties to hold onto an unrealistic situation after separation only to serve to increase the conflict and stress on the family.” She found that the ongoing conflict “…appears to be exacerbated by each party’s conduct in relatively equal measure.” She denied both parties’ request for exclusive possession and Father’s request for sole custody and restricted access for Mother. She found that an order that Father was alienating the children or a sole custody order would be psychologically harmful and not in the children’s best interests.

Argument on this Motion

The argument before me appears identical to that advanced before Seppi, J. with two exceptions noted below. Those exceptions, however, represent more of the same behaviour, not a change or escalation in behaviour. Neither parent has changed his or her position from that advanced two years ago before Seppi, J.

Father says that Mother’s conduct is not good for, or the best interests of the children. She is violent with them. She swears at them. She is emotionally abusive. In addition she has not paid her share of the bills. She is wilfully and intentionally under-employed, and has not provided details of her alleged disability from full time work.

Mother says that Father continues to alienate the children, to be controlling and psychologically abusive to her, and to interfere with her access. The CAS continues to be involved with this family. The CAS notes and information provided through Ms. Torry indicate that the same issues persist now as before 2017. Ms. Torry’s and Ms. Majewski’s opinion is that the children should live and have primary residence with Father and that the children should not be split up in different residences at different times. This is because they derive support from one another. In their view the children are not responding well to Mother. They do less with her than with Father. They wish to be treated fairly and equally. The practical effect of the children’s evidence is that the eldest child, whom Seppi, J. suspects may be overly influenced by Father, controls access of all the children.

The 2 new events since Seppi, J.’s order, which Father says represent a change in circumstances justifying a change to Seppi, J.’s order are:

1. January 24, 2018 - Mother had an argument with Ethan, who had challenged Mother’s authority. He threw cards in her face. Ethan says Mother then hit him with an open hand on the back of his head and called him a coward as he walked away. Mother says that she hit him by accident. CAS became involved, confirming much of what the children said, preferring their statements over hers.
2. February 18, 2018 – as a question of discipline, Mother took the children’s electronic devices from them and locked them in her car. The eldest child called police, reporting that Mother slammed Ethan against the wall and Mother put her forearm against his neck and choked him. Some of this was validated to the CAS. The police records do not support this. The CAS records indicate that the children openly confront the Mother. The CAS verified Mother’s inappropriate use of physical force on this occasion and, based on the reports of the children, verified the concern of Mother using inappropriate language.

Father also relies on Ms. Majewski’s affidavit. Father says that these events are of sufficient magnitude to necessitate a change in the interim order made. He, therefore, seeks a change in the interim order, notwithstanding that the trial of this matter is set to commence in the five-week sittings beginning January 7, 2019.

The Law

Interim orders are temporary orders. They are imperfect solutions to complex problems put in place on imperfect evidence (limited in its nature, submitted in affidavit form, which often conflict, without cross-examination), designed to provide an acceptable solution until the matters can be resolved at trial on a full evidentiary record. See: Bolotnov v. Moldavski, 2015 ONCJ 530 at para. 21; Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.); and Boissy v. Boissy.

Because of this reality, the following legal principles apply to altering an interim order, especially one that has arisen from an adjudication, as opposed to a consent:

1. A change to an interim order is usually allowed only in extenuating circumstances. The cases refer to the necessary circumstances as being “material” or “substantially important” (see: McIsaac v. Pye, 2011 ONCJ 840), or more commonly as “compelling reasons” (see: Bolotnov, supra, at para 22 and 24; Shofton v. Switzer, 2014 ONSC 843; Grave v. Brighton, 2011 ONSC 4996 at para. 24).
2. “Compelling reasons” include a) that the OCL or assessor requires an immediate change in residence for the health and best interest of the children, b) there is evidence that children are doing poorly under the current regime, or c) there are serious mental health or addiction issues with one parent. This list is not exhaustive (see: Bolotnov, supra, at para 24; Shofton, supra; Grave, supra, at para. 24).
3. The burden is on the moving party to show the “compelling reasons” to alter the existing interim order. It is a heavy burden. The moving party must show “cogently” that a change is necessary. See: Bolotnov, supra, para 21; Boissy, supra; Winton v. LoFranco, 2004 CarswellOnt 3346 (S.C.J.), para 32; Papp v. Papp, [1970] 1 O.R. 311 (C.A.), para 34.
4. The policy reasons behind the court’s desire to maintain status quo is that children need predictability and stability, and the issues that pertain to custody and access should be determined at trial on the full record. This is even more important where the interim order has been in place for some period of time. See: Bolotnov, supra, para. 21 and 25; Grgurick v. Del Ben, para. 8; Winton, supra, para. 30 to 31.
5. An interim stage, while independent evidence of a professional such as the OCL or the Children’s Aid Society is important, it still must be considered with all other evidence given in open court and subject cross-examination so that the Judge can assess the credibility of the witness and reliability of the opinion. See: Winton, supra, para. 32; Ly v. Wade, 2016 ONSC 1155, para. 30.

Analysis

Father’s motion to alter Seppi, J.’s August 15, 2017 parenting order is dismissed. Father has failed to meet his onus to show “compelling reasons” why it is in the best interests of the children that Seppi, J.’s parenting order should be changed. I say this for the following reasons:

1. The CAS’s notes, on which Father relies, have some value. They are, however, third-party recording of what children reported.
2. The Father’s evidence is mere recitation of what is reported by the children.
3. The CAS records may not be reliable. The events and evidence of the children as recorded in the CAS notes are contradicted by Mother. Some specific aspects of those notes are contradicted by other records (for instance the police report of the February 2018). The reliability of the CAS notes can only be tested at trial.
4. I am hesitant to rely on what is reported of the children’s evidence. I do not accept, based on a written record, the children’s evidence, views and preferences as proffered by Father. The ferocity of the fight between the parents raises questions about the objectivity of such evidence.
5. I do not accept, based on a written record, the children’s evidence, views and preferences as proffered by the CAS notes or by Ms. Majewski. I have concern based on the evidence before me, as did Seppi J., that the children, especially the eldest, are being influenced inappropriately by Father. I have concerns based on the evidence before me, as did Seppi J, that the eldest child, influenced by Father, is influencing the younger two. In saying this, I make no comment on Ms. Torry’s or Ms. Majewski’s representation of the children. They were retained to act on behalf of the children and put the children’s views and preferences before the court. They were not retained or charged with performing a section 112 or section 30 report. Neither has expressed an opinion as to alienation or the reasonableness of the children’s’ views and preferences.
6. Based on the evidence before me, I concur with Seppi, J. that much of the difficulty this family faces arises from the parents’ refusal to sell the matrimonial home and their insistence on having week about access with the children while the other does not vacate the home. In light of the level of conflict between these two parties, this “nesting arrangement” was bound to be unworkable as the influence of one parent is never absent during the other parent’s time with the children.
7. This matter was not reached in the May 2018 trial sittings. The Pre-trial Judge placed it into the five-week sitting beginning January 7, 2019, and asked that it be given priority. The trial is imminent. Any change in access would last only 6 months. The urgency in this case arose from the fact that the trial was not reached in the May, 2018 five-week trial sitting in Brampton. This is due to a shortage of judges in Central West Region. Currently, this Region, a busy region coping with increased case loads, is also coping with three judicial vacancies, the first of which arose in November, 2017. Another two of our regular complement of judges go supernumerary by September, 2018.

What is to happen after August 31, 2018?

The sale of the matrimonial home is due to close on August 31, 2018. Father has secured rental accommodation suitable for the children and him, which is in the same neighbourhood so the children will not suffer disruption in their school or social lives. Mother has not yet obtained alternate accommodation. She says that she will rent or buy a home in the area so the children will not suffer disruption in their school and social lives. She cannot buy a home because lenders will not qualify her for a mortgage until she has a support order. She cannot find a rental home because she cannot afford first and last months’ rent because she has no income at the moment.

Mother intends to bring a motion for child and spousal support before August 31, 2018, to be effective that date, so that she can secure accommodation suitable for access with the children under Seppi, J.,’s order. Therefore, after August 31, 2018, if Mother has not secured accommodation suitable for access purposes, and until such time as she obtains such accommodation, the Mother shall have access with the children, Christopher Aidan Redman born August 30, 2002, Cailum Ethan Redman born June 18, 2016, and Connor Liam Redman born October 11, 2008, as follows:

1. Every other weekend beginning September 7, 2019, from Friday at 4 PM to Sunday at 5 PM;
2. Every Wednesday from 4 PM to 9 PM;
3. Other access as agreed upon;
4. The receiving parent is to pick up the children at the other parent’s residence;
5. Neither parent shall use corporal punishment or withhold food from the children as a form of discipline;
6. Neither parent shall curse or swear in front of the children.

Given the divided success, and both parties’ trying to avoid Brampton’s motion procedure about long and regular motions, there will be no costs.

Jamie Trimble, J. Released: July 25, 2018