Court File and Parties
COURT FILE NO.: FC-19-69 DATE: 2019/02/27 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S. A., Applicant -and- M. L., Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Adrienne Curran for the Applicant David Sinclair for the Respondent Judith Hupé for the Society
HEARD: February 26, 2019
Endorsement
[1] This is an urgent motion brought by the Applicant, Mr. A., seeking access to the parties’ three children.
[2] This Application was commenced on January 15, 2019. The parties have not yet had a case conference. Leave to bring this motion on an urgent basis was granted by Justice Parfett on February 19, 2019. A case conference is scheduled for March 1, 2019.
[3] The only issue on this motion is Mr. A.’s request for interim access on an urgent basis.
Background
[4] The parties married on March 1, 2008. They cohabitated prior to marriage for approximately one year. They separated on December 7, 2018. They have three children, L.E., born […], 2010, L.S., born […], 2011, and A.L., born […], 2013.
[5] The Children’s Aid Society of Ottawa-Carleton (“CAS”) is involved in investigating allegations of abuse made against Mr. A. This investigation commenced at around the date of separation. Ms. L.’s position is the children’s disclosures of abuse precipitated the separation. Mr. A.’s position is that Ms. L. has orchestrated the allegations against him to gain a tactical advantage on separation.
Position of the Children’s Aid Society
[6] Counsel for the CAS attended at the outset of the motion to advise of the Society’s position. The children have reported to the CAS being subject to physical discipline by Mr. A. and a wish to have “helpers” present during visits with him. The Society’s investigation is continuing. The Ottawa Sexual Assault and Child Abuse Unit of the Ottawa police is also investigating the allegations. It is not yet known when these investigations will be complete, although interviews are in progress.
[7] The CAS’s position is that Mr. A.’s access should be supervised pending the completion of the Society and police investigations. The CAS has approved Mr. A.’s parents as supervisors for this access. The CAS takes no position on the frequency or duration of Mr. A.’s access as long as it is supervised.
Father’s Position
[8] Mr. A. seeks interim interim access on an equal time sharing basis, on a 2-2-5-5 schedule. He denies the allegations of abuse. He argues that an equal timesharing schedule most closely reflects the status quo prior to separation, which was that of equal parenting.
[9] Mr. A. also seeks exchanges to take place at the children’s school to limit contact between the parties. Given the interruption in the father’s contact with the children, the father is proposing that he have “step-up” access beginning with Wednesday evenings, and alternate weekend access from Friday after school to Monday morning.
[10] Mr. A. works full-time. He has not provided a plan of care that sets out how he would pick the children up from school, which ends at 3 p.m., or whether his parents are able to supervise an equal timesharing schedule.
Mother’s Position
[11] Ms. L. seeks interim interim access for Mr. A. on alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m.
[12] Ms. L. has been working outside the home on a part-time basis as a neo-natal nurse since approximately 2015. Prior to that, she was home on maternity leaves after the birth of the children, each for one year. Ms. L. now works every second weekend and one mid-week shift. Ms. L. states that the day of the week for the mid-week shift varies.
Analysis and Disposition
[13] Both parties have claimed a divorce in this proceeding. Section 16(2) of the Divorce Act provides that a court may make an interim order respecting access to any children of the marriage. Section 16(8) of the Divorce Act requires that a court take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.
[14] Due to the limited information and evidence available on an interim motion, interim orders are meant to be “band-aids” or “stop-gaps” to decide issues only in the short term so that the parties can move expeditiously to a final resolution. They are not meant to be long term solutions.
[15] This is even more so on this motion, which is based on affidavits prepared and filed on an urgent basis, without cross examination, and pending receipt of further important information relevant to the best interests of the children, being the completion of the CAS and police investigations.
[16] Mr. A. has agreed to supervised access pending further recommendations from the CAS. The issue in dispute is what the frequency and duration of the supervised access should be, pending the completion of the CAS and police investigations. Once those investigations are complete, a more fulsome adjudication can take place to determine what access/timesharing should be in place pending trial.
Status Quo
[17] Mr. A. argues that an equal timesharing arrangement should be put in place in order to preserve the status quo that he states existed prior to separation. Ms. L. argues that the status quo supports the children continuing to primarily reside in her care.
[18] As a general rule, the status quo will be maintained on an interim motion in the absence of compelling reasons indicating the need for a change to meet the children’s best interest. Ultimately, however, the applicable test remains only the best interests of the child [Papp v. Papp, [1970] O.R. 33 (O.N.C.A.); Batsinda v. Batsinda, 2013 ONSC 7869 (Ont. S.C.J.), affirmed in Balke v. O’Connor, 2017 ONSC 2491 (Ont.S.C.J.)].
[19] I find on a balance of probabilities based on the evidence before me, that Ms. L. was the primary parent prior to separation. The status quo favours the children remaining in Ms. L.’s primary care on an interim interim basis. This finding is based on the following:
- Ms. L.’s evidence is that she was the primary caregiver for the children prior to separation. This is supported by the fact that at the time of separation she was primarily in the home, working outside of the home on a part-time basis, and was also home for three years of maternity leave after the birth of each child.
- Ms. L. also provided detailed evidence, which I found credible, that she was the primary nurturing parent to the children, was primarily bonded to the children, that she is the parent from whom the children seek comfort when they are upset, that she primarily made appointments for the children and took them to those appointments, and she is the primary parent to assist the children with their schoolwork.
- Mr. A. did not deny Ms. L.’s role with the children. He simply stated that he had acted in an equal role, without the same level of detail or explanation in support of this assertion. Mr. A.’s evidence with respect to the quality of his parenting, and specifically how this related to the nurturing and needs of the children, is lacking.
- I prefer Ms. L.’s evidence to Mr. A.’s evidence with respect to parenting roles prior to separation.
Risk of Harm
[20] The risk of harm and the allegations of abuse also favour the children remaining in Ms. L.’s primary care, with supervised access to Mr. A., on an interim interim basis.
[21] Ms. L.’s evidence sets out a number of specific incidents of physical abuse against the children, as well as specific incidents of abuse against herself. This evidence raises a strong probability of a significant risk of harm to the children if in the father’s care unsupervised. This evidence, as well as the interviews that the CAS has had with the parties and children to date, underlies, at least in part, the CAS position that Mr. A.’s access should be supervised pending further investigation.
[22] With respect to the allegations of abuse, I find, at this point, based on the evidence before me, Ms. L.’s evidence more credible than Mr. A.’s. Mr. A.’s evidence on these allegations is largely made up of general denials or, where incidents are acknowledged but abuse is denied, he has not provided an alternate explanation or detail with respect to how the incident transpired. Mr. A.’s evidence, on the whole, lacks credibility. I prefer Ms. L.’s evidence.
Disposition
[23] For the above reasons, pending the completion of the CAS and police investigations, and further order of this court, I find that, on an interim interim basis, the best interests of the children are best served by remaining in the primary care of Ms. L., with supervised access to Mr. A. on alternate weekends.
[24] Accordingly, I make the following orders on an interim interim basis:
- The children of the marriage, namely L.E., born […], 2010, L.S, born […], 2011, and A.L, born […], 2013, shall maintain their primary residence with the Respondent Ms. L.
- The Applicant Mr. A. shall have access with the children at the following times: a. on Saturday, March 2, 2019 from 9 a.m. to 5 p.m.; and b. commencing on March 15, 2019 and continuing every second weekend thereafter from 5 p.m. on the Friday until 5 p.m. on the Sunday.
- Mr. A.’s access set out in paragraph 2. above shall be supervised by his parents, Mr. and Mrs. A. (“the grandparents”). The grandparents shall ensure that one of them will always be present with Mr. A. while the children are in his care.
- The children shall be picked up and dropped off by Mr. A., who shall be accompanied by one of the grandparents, at Ms. L.’s home at XXXXX.
- Each party will have telephone access with the children while the children are in the care of the other parent for 10 minutes each day.
- Each party shall refrain from making disparaging or negative remarks to the children about the other parent, and discourage others from doing so in the presence of the children.
- Each party shall refrain from discussing with the children, or with a third party in the presence of the children, these legal proceedings, issues between the parties in these legal proceedings or any conflicts between the parties.
Costs
[25] If the parties are unable to agree on costs of this motion, Ms. L. may file submissions with respect to costs on or before March 8, 2019. Mr. A. may file submissions with respect to costs on or before March 19, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall be spaced one point five spaces apart, with no less than 12 point font.
Date: February 27, 2019 Justice P. MacEachern