McPhail v. McPhail, 2018 ONSC 735

Court File and Parties

COURT FILE NO.: 17-221

DATE: 20180130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brandon Christopher McPhail, Applicant

AND:

Courtney Marie McPhail, Respondent

BEFORE: The Honorable Madam Justice Laurie Lacelle

COUNSEL: A.Lawrence Filion, Counsel for the Applicant

Nigel Mcleod, Counsel for the Respondent

HEARD: January 17, 2018

ENDORSEMENT

Introduction

1The parties share a daughter, Kaylee, who is four years old. Following their separation in January of last year, the mother resides in Ohio, and the father in Newington, Ontario. Each seeks an interim order for sole custody of Kaylee.

2Kaylee has spent the majority of the time since her parents’ separation on a six week rotation between her mother and father’s residences. While each party advances additional or alternative requests, the central issue I must decide following this motion is what custody and access regime is in Kaylee’s best interests at this time.

The factual context

3The mother is an American citizen and the father is Canadian. The parties met and married in Ohio and resided there until Kaylee was three years old. In May of 2016, the couple moved to Newington, Ontario, where they resided until their separation on January 25, 2017.

4The separation was not discussed in advance. It occurred when the mother left the family’s home with Kaylee and returned to Ohio with her. The father learned about this via a text sent by the mother once she was in the United States.

5In the aftermath of the separation, the father travelled to Ohio to have access to Kaylee. This went on until March, at which point the parties settled into a routine where Kaylee travelled between their residences at roughly six week intervals. Save for one instance in October when the father did not return Kaylee to the mother as he had previously agreed to do, the parties have managed this schedule with general co-operation and civility.

6There is evidence before me that during this time the parties engaged in some discussion about a possible reconciliation or a return of the mother to Ontario. By December, however, the mother had communicated her position that there would be no reconciliation. By this time, both parties had hired counsel and commenced various legal proceedings in the U.S. and Canada. The father launched the proceedings in Ontario when he filed an application for custody and other relief on July 17, 2017. While jurisdiction was an issue early in the litigation, the parties have now agreed that this court has jurisdiction to determine the custody and access issues.

The positions of the parties

The mother’s position

7The mother argues that the court should make a temporary custody order in her favour. Alternatively, if the court is reluctant to make an interim order of this kind, she asks the court to confirm that the post-separation schedule adopted by the parties should govern until trial.

8In support of her claim for an interim custody order, she argues that there is evidence the father has been controlling, threatening and manipulative. Citing a series of text messages between the pair in December, she says that he is unable to prioritize Kaylee’s interests in his communications with her. Her counsel points to these texts and the father’s actions in withholding the child from her mother in October and says that “red flags of alienation” are developing in the case. Counsel argues that this is a compelling reason for the court to make an interim custody order in the mother’s favour. Counsel says that the mother will reliably facilitate the child’s contact with the father and everything expected of a good custodial parent, while the father is incapable of doing the same because of his inability to prioritize the child’s interests above his own.

9As for the suggestion that she engaged in self-help by leaving Ontario with Kaylee, the mother argues that in her view, given the father’s acquiescence to the arrangement, she had the father’s implicit consent to be in Ohio prior to the time he brought his application in this court many months later.

10The mother resists the father’s request for an order requesting the involvement of the Office of the Children’s Lawyer. In her view, a private assessment involving psychological assessments of the parties will be necessary in this case. She argues the type of assessment requested here should be considered in the context of a motion on that issue.

The father’s position

11The father argues that the court should make an interim custody order in his favour or order that the child temporarily reside with him. He also seeks an order requiring the mother to sign the child’s Canadian passport application, and an order requesting the involvement of the Office of the Children’s Lawyer.

12The father disagrees with the mother’s characterization of the circumstances on separation. He says that had the mother alerted him to her wish to leave with Kaylee he would not have agreed and that he did not consent to this arrangement. He points to the mother’s conduct in unilaterally leaving with the child and dictating the terms of access until March of 2017 as establishing a basis for concern about the mother’s ability to parent and place the child’s interests ahead of her own. As for his conduct in December in sending various text messages, he says this was an aberration and he now accepts the relationship is over. He asks the court to assess these texts in the context of the post-separation relationship, which up until late October included meaningful discussion of reconciliation between the parties, as is evident by texts where they contemplated buying a house in Newington and having another child together.

13The father emphasizes that he has prepared a detailed parenting plan for Kaylee, including a plan to continue her education at the school the parties had chosen for her. He argues that on balance, his plan is superior to that which the mother has presented on this motion. He says that the stability his plan provides is in the child’s best interests emphasizing that she has had little stability since January of 2017. He also raises concerns about Kaylee living in a residence with her maternal grand-father because his gun collection is not properly stored.

14The father’s counsel highlights the directions given in the case law about permitting or condoning a move when mobility will be an issue at trial and that parents should not be rewarded for creating a status quo by engaging in self-help to gain a tactical advantage in the litigation. He says the mother could have chosen to stay in Ontario to resolve the parenting issue appropriately but did not do so.

Interim orders for custody and access: The governing principles

15As a general rule, 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 interests: Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont S.C.J.) and Papp v. Papp, [1970] O.R. 331 (C.A.). However, as stated by Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869 at paras. 25-26, there is no presumption on an interim motion that the status quo should continue:

In [Papp v. Papp], the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.

… the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasised in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements. [see also Holt v. Anderson, 2005 CarswellOnt5158 (Ont. Div.Ct.)] [emphasis added]

16As for how the bests of interest of the child are to be assessed, I am governed by the considerations regarding the child’s needs and circumstances set out in s. 24(2) of the Children’s Law Reform Act.

17With respect to what is meant by “the status quo”, there is general recognition that “[i]t does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation”: see Batsinda v. Batsinda at para. 28, citing Irwin v. Irwin (1986), 1986 CanLII 6303 (ON SC), 3 R.F.L. (3d) 403 (Ont. H.C.); Kimpton v. Kimpton; Horton v. Marsh, 2008 CarswellNS 371 (N.S.S.C.). Further, “a parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse”: Rifai v. Green, 2014 ONSC 1377 at para. 22. In these circumstances, courts may find that the relevant status quo is that which existed prior to the separation of the parties: see Batsinda v. Batsinda at para. 28, citing Howard v. Howard (1999) 1999 CanLII 35009 (ON SC), 1 R.F.L. (5^th) 375 (Ont. S.C.J.). Indeed, Chappel J. suggests in Batsinda v. Batsinda at para. 28 that

for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.

18However, in applying the best interests test, a court must also be mindful of additional considerations including the passage of time since a post-separation regime has been in place and its significance given the age of the child. Where “only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate”: Rifai v. Green at para. 23. Conversely, “the longer the child has been in a new situation (or city) – however it may have been created – the more closely the court will have to focus on the child’s best interests, as opposed to any violation of parental rights”: Rifai v. Green at para. 24, citing Sodhi v. Sodhi (2002), 2002 CanLII 41503 (ON CA), 25 R.F.L. (5^th) 420 (Ont. C.A.).

19As to the desirability of an interim order, a court must be mindful that it may have a significant impact on the litigation. As noted in Rifai v. Green at para. 17, a temporary order “will frequently influence or form the basis for a final order. Once a child settles into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child’s best interests to disrupt or significantly change the temporary arrangement”.

20This may be particularly true in cases where, as here, mobility is an issue and the distance between the parties’ residences is substantial. This type of circumstance was also considered in Rifai v. Green at para. 29:

… the greater the distance, the more challenging the overall “best interests” analysis. When travel time between homes is measured in minutes rather than hours, courts can work toward a “best of both worlds” approach to parental involvement. But where significant distance precludes frequent access exchanges, all too often courts are forced to make an “either/or” choice. Distance greatly reduces options, and courts should be cautious about permitting – or condoning – temporary relocations where custody or mobility are going to be in issue at trial. Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (Ont. S.C.J.); Mantyka v. Dueck, 2012 SKCA 109 (Sask. C.A.).

21Ultimately, many judges conclude that it is neither necessary nor desirable to make a sole or joint custody order at the interim stage: see Batsinda at para. 22. The case law has also sounded a note of caution about making determinations about custody and access on an interim basis when the evidentiary record consists of competing, contradictory and untested affidavit evidence. There is a general recognition that in these circumstances trial judges will be in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what regime is in a child’s best interests: see for instance Davies v. Davies, 2017 ONSC 3667 at para. 14; Rifai v. Green at para. 16; Cosentino v. Cosentino, 2016 ONSC 5621 at para. 15; Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); and Collins v. Collins, [2011] O.J. No. 2085 (Ont S.C.J.).

Analysis, findings and conclusions

The custody and access issue

22Giving consideration to the above principles and the evidence before me, I find on a balance of probabilities that it is in Kaylee’s best interests that I decline to make the sole custody order or residential placement order sought by each parent. I have arrived at this conclusion for a number of reasons, including the following:

a. Given the distance between the parties’ residences, choosing a residence or custodial parent for Kaylee now will necessarily designate the other parent as an access parent with very limited parenting time. This is not in her best interests at this time;

b. The evidentiary record does not permit me to have the confidence that choosing Kaylee’s residence, and therefore her primary caregiver, is appropriate at this stage. This is because there is a reasonable likelihood that the trial judge’s views as to the parenting plan that will best address her best interests will be better informed by more comprehensive and tested evidence;

c. Kaylee is not yet five years old and she is benefitting from an educational program when residing with each of her parents. I do not find that it is critical to her needs and development at this time that she attend one school given her age and the educational opportunities she has when with each parent;

d. The Applicant father did not commence this litigation for almost six months after the Respondent mother left Ontario with Kaylee. In that time frame, a post-separation parenting arrangement was established for Kaylee. It has now been in place for the better part of a year. This is about one fifth of Kaylee’s young life. It appears Kaylee has been very adaptable to this new regime. No party has suggested that she is being harmed by it, save for the recognition that it is in her ultimate interests to have stability.

23In developing these reasons, I have considered a number of factors which I discuss below.

24The evidence before me demonstrates that both parents are committed to Kaylee and love her very much. Each parent has been a significant part of Kaylee’s life and she has benefitted from her relationship with each of them. It is in Kaylee’s best interests that she continue to have a strong bond and attachment to each of her parents and their extended families.

25On this point, there is a fair argument that for Kaylee, the status quo both pre- and post-separation involved substantial care from both of her parents. A child-centred approach to the status quo should give considerable weight to each parent’s role in parenting the child, not just the place she lived. When she resided in Ontario, it would appear that her mother was necessarily her primary caregiver as she was not working. In Ohio, the father’s pleadings indicate that the reverse was true. In any case, it is clear that prior to and after separation she has benefitted from the meaningful involvement of both of her parents.

26As sometimes occurs in cases like this, there is evidence before me that each party has engaged in “self-help” in their conduct with respect to the other parent. The mother left the family home with Kaylee without any discussion of what custody and access regime would be in Kaylee’s best interests. Later, the father withheld Kaylee from her mother contrary to an agreement to return her on a certain schedule. It is not surprising that each side points the finger at the other and says that the other parent has put their interests ahead of Kaylee’s. There is merit to each of their arguments on this point. As to whether these actions genuinely reflect on each party’s ability to parent, this is a conclusion that is best left to the trial judge who may assess this issue based on a tested evidentiary record.

27I am aware that my decision may appear to have the effect of condoning the mother’s conduct in moving with the child without the consent of the father. This is the regrettable outcome of a decision that focuses on what is now in Kaylee’s best interests rather than on whether the mother violated the father’s parental rights. Since the mother’s reasons for leaving with Kaylee have not been fleshed out in this motion record, and this may be an issue that is further developed at trial, I will limit my comments on the issue. I would simply note that the evidentiary record indicates that at the time she left with Kaylee, the mother did not yet have permanent residency status in Canada. Her options to remain in this country while the question of Kaylee’s custody was determined were more limited than those of a Canadian citizen. To the extent that her conduct is relevant to her ability to put her child’s interests above her own, and my determination of Kaylee’s best interests at this time, I consider that this was the context in which her decision was made. I do not view it as a factor that compels placing Kaylee with her father on an interim basis.

28I have considered the mother’s submissions about the text messages sent to her by the father over a number of days in December. Apart from pointing to these texts she has offered no other compelling evidence that suggests that the father has demonstrated an inability to parent Kaylee. However immature and misguided the texts may have been, I am not inclined to find that these communications over a limited period of time are a compelling reason to find that the father is unable to prioritize Kaylee’s interests above his own. They do not justify an interim custody order in the mother’s favour.

29I recognize that in saying the father is controlling, manipulative and threatening, the mother has also alleged additional violence and threatening conduct by him against her. The father denies these accusations. These are serious allegations. They may impact on the assessment of what order is in Kaylee’s best interests. The credibility of those allegations and, if they are proved, any conclusions to be drawn about the father’s ability to parent, are significant triable issues which are best assessed following the testing of the evidence at trial. Careful consideration of this evidence is required before the court determines what custody and access order is appropriate. I am unable to assess the merit of those allegations on this record. This is a significant reason to decline to designate a custodial parent or place of residence for Kaylee.

30I have also considered Kaylee’s circumstances as they relate to schooling. She has been enrolled by each of her parents in an educational facility that is appropriate to her age. She is not of an age where her time in school must be stable so as to permit her to complete a grade level. Each educational facility appears to be allowing her to attend on the six week rotation established by her parents. I am not persuaded that it is critical to Kaylee’s well-being or development that she be enrolled in one location or in a school as opposed to a daycare facility.

Conclusion

31While I have given serious consideration to the benefit to the child of ensuring she has a more stable environment at this time, I have also considered that neither party had adduced any evidence suggesting that she is suffering any harm as a result of their post-separation agreement to parent her on a six week rotation. I have given significant weight to the fact that the parties themselves settled on this six week rotation as being in their child’s best interests given her age and development.

32Nothing about this situation is ideal. It is clearly not in the child’s best interests in the long-term. If the parties each continue to reside where they do and do not amicably resolve the question of where Kaylee will live and what custody and access regime is in her best interests, the court will be required to do so.

33Notwithstanding the months that have elapsed since the separation, this litigation is still in its early days. The evidentiary record on this motion is not as complete as the record that will be available at trial. For instance, there may be an independent assessment for the court’s consideration at trial. The trial will also permit credibility findings which may impact on the assessment of what place of residence and custody and access regime are in the child’s best interests.

34Trial dates are available in the June sittings. If the parties act diligently in moving the matter forward in conjunction with a case management judge the matter may be resolved by a trial before the child will be required to start school.

35Any interim order made regarding custody and access will significantly reduce one parent’s involvement in the child’s life prior to the trial being heard. This will significantly impact on the status quo and the issues to be determined at trial. In the circumstances, I decline to make an interim order for custody or access. The parties should continue to govern themselves in accordance with the status quo they established post-separation.

The request for the involvement of the Office of the Children’s Lawyer

36This case presents a custody and access issue and the court would benefit from an investigation and report from the Office of the Children’s Lawyer (“OCL”) under s. 112 of the Courts of Justice Act. No compelling reason has been advanced for not making the order at this time. Making this order does not preclude the mother from bringing a motion for an assessment under s. 30 of the Children’s Law Reform Act. However, orders under the latter provision are less frequently granted and time is of the essence in this file. In the circumstances, I am satisfied on a balance of probabilities that the order requested by the father requesting the involvement of the Office of the Children’s Lawyer should issue. The parties shall complete their intake forms and forward them to the OCL within the next 10 days.

The Canadian passport

37It was the father’s onus to establish why Kaylee should have a Canadian passport at this time. Nothing in the father’s evidence has done so. In the circumstances, I decline to make that order.

The Honorable Madam Justice Laurie Lacelle