Court File and Parties
BARRIE COURT FILE NO.: FC-17-271-01 DATE: 20181221 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Thomas Bradley Smith, Applicant -and- Madina Mamitova, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Matthew Hopkins, for the Applicant Madina Mamitova, Self-Represented
HEARD: December 20, 2018
Endorsement
[1] This motion, dated December 3, 2018, was brought by the Applicant father. Along with some terms regarding exchanges and enforcement, the Applicant is seeking a temporary order for week-about parenting time for the parties’ children pending the outcome of his Motion to Change the Final Order of Graham J., dated October 24, 2017. The parties’ children are: Alexa Smith, born December 20, 2010; Michael Smith, born January 17, 2012; and Patrick Smith, born July 20, 2013.
[2] The Final Order of Graham J., dated October 24, 2017, was based upon minutes of settlement signed by both parties. The Order contemplated the joint custody of the children with primary residence being with the Respondent. It further sets out specific parenting time for the Applicant and sharing of holidays etc. The Applicant issued a Motion to Change on September 14, 2018 seeking custody of all three children. The Respondent has filed a Response to Motion to Change, dated November 13, 2018, also seeking custody of all three children.
[3] On September 20, 2018, the Applicant brought a Contempt Motion against the Respondent alleging she was in contempt of numerous terms of the final order because she was denying the Applicant his parenting time on numerous occasions. He alleged that, during or about October 2017, the parties reconciled following the final order and that they were not following the order because they were parenting the children together. He further asserts that after he broke up with the Applicant on a final basis in July 2018, the Applicant immediately commenced withholding the children and denying him parenting time. The parties’ negotiated temporary minutes of settlement that were made into an order on September 20, 2018 and the motion was dismissed. The temporary agreement contemplated the Applicant having parenting time with the children on a week-about basis from September 21, 2018 until November 16, 2018 when the parties would return to the schedule as set out in the Final Order of October 24, 2017. An order requesting the involvement of the Office of the Children’s Lawyer was also made that day.
[4] On October 5, 2018, the Respondent brought a motion “without notice” to the Applicant seeking a suspension of the Applicant’s parenting time as set out in the September 20, 2018. The parties returned to court on October 12, 2018 before Graham J., and negotiated temporary minutes of settlement where the Applicant resumed his parenting time as set out in both the September 20, 2018 Order and the October 24, 2017 Order. It further added some terms regarding police enforcement and prohibiting both parties from coming within 300-metres of each other and their residences, workplace etc. It also prohibited both parties from bringing any urgent motions without any concrete documentary evidence verifying the concerns being alleged.
[5] On November 16, 2018, both parties attended a case conference before Vallee J. No agreement was made that day.
[6] The Respondent opposes the Applicant’s motion.
[7] For the reasons set out below, the Applicant father’s motion is dismissed in part. The parties shall continue to follow the final consent Order of Graham J., dated October 24, 2017, and the temporary consent Order of Graham J., dated October 12, 2018, until further order of this court or agreement of the parties (or final determination of the Applicant’s Motion to Change dated September 14, 2018).
[8] The parties are in a dispute about what is in the best interests of the children, what the actual status quo is and whether or not they reconciled after the 2017 final order. In any review of custody and access to children, one must consider the best interests of the children as provided for in s. 24 of the CLRA[^1]. The mother’s evidence is that the parties never reconciled and were not together until July 2018. She asserts that the parties have constantly been in conflict and never shared custody of the children 50/50. She further alleges that the parties did not follow the October 24, 2017 Order and that, according to her, access between the children and their father was actually sporadic.
[9] The positions of the parties bring up important questions of fact and credibility, both of which will need to be determined at a trial. These issues are difficult (sometimes impossible) to determine on a motion based on the conflicting affidavit evidence of the parties. In addition, some of their evidence is from before the final Order of October 24, 2017 (for example, the Applicant relied upon a supporting letter from Simcoe Muskoka Family Connexions, dated April 17, 2017). Further, the Applicant relied upon a police Occurrence Report and Emergency Report from Royal Victoria Regional Health Centre, dated July 28, 2018 (which were before the September 20, 2018 and the October 12, 2018 consent orders). Finally, like McDermot J. in his Endorsement, dated October 5, 2018, I am also concerned about the Respondent relying upon on historical and unproven allegations from before the September 20, 2018 consent Order.
[10] The goal of the court is to return to (or remain in) the previously explored and agreed upon parenting arrangements in order to support the living arrangements that are the least disruptive for the children. The only uncontroverted evidence the court has to inform itself of what the parties agreed to be the best interests of the children is the final consent order that has been in place since October 24, 2017. Additionally, there is the fact that the parties agreed to temporary consent orders on both September 20, 2018 and October 12, 2018 where the parties were to, “revert to the schedule set out in the Order of Justice Graham dated October 24th, 2017.” Both of these orders were made on a “without prejudice” basis, and were made on consent. Both parties had the benefit of counsel. These orders did not change the status quo, nor did they create a status quo.
[11] There has been an unfortunate amount of conflict between the parties leading up to this motion along with involvement of the police and Simcoe Muskoka Family Connexions. The parties cannot communicate. They are in conflict and distrust ensues at every interaction. Numerous affidavits have been filed by each party. It is my view it will be very difficult for the court to determine the best interests of the children for the Motion to Change without some third party evidence to assist. This warrants another attempt to request the involvement of the Office of the Children’s Lawyer. Accordingly, I have signed another order requesting same. In addition, given the level of conflict between the parties and the fact that the Orders of October 24, 2017 and October 12, 2018 do not have specific exchange times for sharing the Christmas, March Break and Summer holidays, I am making an order with specific exchange times, having regard for both orders’ requirements that the holidays be, “shared as close to equally as possible.”[^2]
[12] Accordingly, I order the following:
(a) The Office of the Children’s Lawyer is requested to become involved in this custody/access matter and provide such services as they deem appropriate. The Applicant shall serve the Office of the Children’s Lawyer with a copy of this Order within 14 days of this date. Both parties shall complete and forward separate Intake Forms of the Office of the Children’s Lawyer to that office within 14 days of this date.
(b) The parties shall continue to follow the parenting schedule and share parenting time with the children on holidays in accordance with the Orders of Graham J., dated October 24, 2017 and October 12, 2018, with the following variations:
(i) Access exchanges taking place when school is not in session, including access exchanges taking place during holidays, shall continue to occur in the Barrie Police Services station located at 29 Sperling Drive in Barrie, Ontario. There shall be no communication between the parties during these exchanges. If the exchange time during holidays is not set out in the Orders of October 24, 2017 and October 12, 2018 the parties shall agree on the exchange time in advance;
(ii) For Christmas 2018, the Applicant shall have the children in his care for special Christmas access from Christmas Day, December 25, 2018 at noon, until New Years’ Day, January 1, 2019 at noon;
(iii) For March Break 2019, the Applicant shall have the children in his care for the first half of the March Break from after school on March 8, 2019 until Wednesday March 13, 2019 at 4:00 p.m.;
(iv) For the children’s school summer holidays in 2019, the Applicant and Respondent shall have equal (week-about) parenting time with the exchanges taking place on Fridays at 4:00 p.m.;
(v) Except for the purposes of the above access exchanges at the police station, the parties will continue to be restrained from coming within 300 metres of the other in accordance with paragraph 13 of the Order of Graham J., dated October 12, 2018; and,
(vi) This Order shall be enforced by the Barrie Police Services, Ontario Provincial Police, the Royal Canadian Mounted Police, or any other Police Agency in Canada pursuant to s. 36(2) of the Children’s Law Reform Act.
[13] The parties shall to return to court for a Settlement Conference on March 4, 2018 at 9:30 a.m.
R.S. Jain J.
Released: December 21, 2018
[^1]: Children's Law Reform Act, R.S.O. 1990, c. C.12. [^2]: Order of Graham J., October 24, 2017, para. 32