COURT FILE NO.: FD 15-19
DATE: 20190304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ashley Tera Young
Applicant
– and –
Manbir Khaira
Respondent
B. Barr, Counsel for the Applicant
S. Benmor, Counsel for the Respondent
HEARD: February 27. 2019
McARTHUR, M.D. J.
Background
[1] The applicant and the respondent were in a relationship of three years. Both parties and their families were from Calgary. In February 2016, the parties started living together in London, Ontario and had a son born June 28, 2017.
[2] The applicant returned to part-time work in June 2018. The parties separated on August 1, 2018. The respondent was charged on August 4, 2018 with a criminal offence of threatening the applicant-mother and son from a July 8, 2018 incident. The respondent was then subject to bail terms that he not have any contact or communication with the applicant or son.
[3] The applicant and son moved to Sarnia with a friend and then into her own apartment. Her employment ended by approximately mid-August. Her mother and a brother travelled from Calgary to assist her around this time. In mid-August, 2018 the applicant and son went to her parent’s home in Calgary and have been there ever since.
[4] The application was signed November 10, 2018 and issued in London on January 4, 2019. The applicant seeks custody, allowing her to move with the child to Calgary and other ancillary relief. The respondent filed an answer dated February 1, 2019 and brought this motion seeking the return of the child to London, custody and primary care of the child.
[5] On February 13, 2019, I granted leave for the respondent to bring this motion before a case conference on the basis of urgency.
[6] The applicant has brought a cross-motion seeking custody, permitting her to move the residence of the child to Calgary as well as other relief. The parties have since filed materials including factums.
[7] As to the scope of this motion, urgency arose on the basis of the respondent’s allegation that the applicant left with the child to Calgary without notice and unannounced to the respondent. For the purposes of this motion, the urgency is confined solely to the issues of parenting and the residence of the child.
[8] Motions should generally not include the non-urgent issues raised in the application. These other issues should be addressed in accordance with the Family Law Rules except in rare situations. Urgency should not open the door to additional issues. To do so would otherwise return to the former practice of wide-ranging motions and affidavit-wars. The expectations and policy objectives of the Family Law Rules are designed to encourage parties to address matters beforehand and in the manner as a number of decisions have commented. See Kobow v. Kobow 2007 ONCJ 514, [2007] O.J. 4317 and Rosen v. Rosen 2005 CanLII 480 (ON SC), [2005] O.J. 62.
The Issue
[9] The issue is whether the child remains with the applicant in Calgary or return to live with the applicant or respondent in London.
The Legal Principles
[10] The legal issue involves what is in the best interests of the child. The court is required to consider the provisions outlined in Section 24(2) of the Children’s Law Reform Act in relation to sole or interim custody. Additional considerations are contained in Section 24(3) and (4) CLRA. Those provisions are as follows:
24 (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
[11] As to mobility, Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. 3234 indicates the courts are more reluctant to upset the status quo on an interim basis. That case also considered other compelling circumstances as well as some assessment of a likely outcome at trial. To be clear, status quo involves a constellation factors involving the relationships and circumstances affecting the child.
[12] The current legislation is permissive and not mandatory. The court may grant custody or access to the child to one or more persons. The best interests of the child in situations of breakdown are better served with considered parenting plans and communications that acknowledge and will work beyond the past difficulties to flexibly address the actual needs of the child. Unilateral action and adversarial approaches exacerbate the winner/loser dangers of “custody” and “access” terminology. This ought to be discouraged and avoided and is in line with proposed legislative efforts.
Position of Applicant
[13] The applicant submits that she has been the primary caregiver of the child since birth, the sole caregiver since August 2018 and the respondent had chosen, or resigned himself, not to have contact with the child. She submits the status quo of the child in her care should be recognized and interim custody of the child be granted to her.
Position of the Respondent
[14] The respondent submits the status quo is London and that the child should be returned to London to either live with the respondent or, if she so chooses to return to Ontario, with the applicant to live in one of the properties owned by the parties.
Analysis and Discussion
[15] There is conflicting affidavit evidence between the parties on many matters that makes the evidence difficult to assess. Differences and conflicts have been significant features of the party’s relationship. Each allege some violent conduct and risks of harm to the child in the care of the other party. I have considered this evidence. I put some weight on the applicant’s overall allegations of the respondent’s conduct and the respondent’s allegation of the applicant’s negative conduct. Other factors as mentioned take on significance given the child’s age and stage of development in these circumstances.
[16] The respondent moved to London in May 2015. He was initially a restoration technician and later worked part-time for a company that was a subcontractor for Rogers. The applicant moved in and the parties started living together in February 2016 in a rental property. They purchased a property together in early 2017. The applicant was a full-time dental hygienist and earned considerably more than the respondent.
[17] The child, Jai Rambo Khaira was born June 28, 2017 and is now 20 months of age. The applicant took a one year maternity leave. Despite their differences, each of them cared for the child. I find the applicant assumed a larger share a larger share of the responsibilities of the child’s care during this time.
[18] In August of 2017, they parties purchased another property and rented this to tenants.
[19] In January 2018, the parties travelled with their son to Calgary to visit their families. The applicant’s father later visited them in London in early July 2018.
[20] In February 2018, the applicant and child went to a friend’s place and the applicant made a report with the local Children’s Aid Society. The applicant was concerned about the respondent’s anger and frequent use of marijuana. The applicant made arrangements for counselling for the respondent. The applicant then returned to the home. The respondent subsequently refused counselling. The respondent maintains that he scheduled couple’s counselling for them and the applicant refused to attend.
[21] On June 2018, the applicant returned back to work as a dental hygienist for two days a week. There appears to be ongoing disputes between the parties as to finances, property payments and contributions. These disputes continue through to the present time.
[22] On July 8, 2018 the parties argued about jointly owned properties and payment of expenses. The applicant alleges the respondent threatened harm to her and the child and shook the applicant. This allegation forms the basis of the criminal charge against the respondent and remains outstanding.
[23] On July 22, 2018, the applicant secured full-time employment. She says she was then prepared to leave the relationship.
[24] On August 2, 2018, the applicant left to stay with a friend in Sarnia and soon after filed a police report. The respondent was then charged with the criminal offence August 4, 2018 and released on bail terms.
[25] The applicant moved to a nearby apartment where she stayed and continued to work while her mother and brother came to the area to assist with looking after the child. After a dispute with her brother, the applicant went with her mother to a hotel and eventually flew with the child and her mother to Calgary.
[26] The applicant says her initial intent was not to return to Calgary. Practically, she then had no job, no place to live, no money and no child care. With her parents, she had a place to live and the support of family. She knew that she needed to resolve issues involving the child with the respondent. She had no contact with the respondent since the conditions of release did not allow the respondent to have contact with her or the child. She enrolled in counselling and focussed on getting emotionally healthy. As time went on she started to look for employment and settled into the situation at her parent’s home.
[27] The applicant returned briefly to the London area to retain a lawyer to address the various issues between them including the child. The applicant had not worked since mid-August 2018 and the child has not been back to Ontario since. The applicant is agreeable to return to London if required to do so.
[28] The release terms on the charge prohibited the respondent from having any contact with the applicant or the child. On February 20, 2019, the Crown Attorney indicated consent to vary the bail terms to allow contact with the child with a further family court order.
[29] The applicant’s family lawyer sent a letter to the respondent on October 9, 2018 to the Baird Street residence where the respondent had been living. No response to the letter from the respondent was received.
[30] The respondent submits he can provide a more stable environment. He baldy submits the child will not be appropriately supervised by the applicant’s parents who he alleges are heavy drinkers and marijuana users. He also indicates that the applicant suffers from addictions and this has put the child at risk of harm. The respondent’s plan is to care for the child himself since he is working part-time and his mother will move from Calgary to London and care of the child when he is not able to.
[31] The applicant resides in the home of her parents in Calgary. She has a supportive family network. She admits she is a recovering alcoholic over the past four years and has had four relapses. A very recent relapse has resulted in driving under the influence charges in Calgary that also involved the child. It certainly was sensible for the applicant to move back to her parents who know and have supported her and the child. This provides a stable foundation for both her and the child in these unusual circumstances. The current living arrangement largely addresses matters for the child emotionally, physically and economically but is not without concerns as to the applicant’s addiction.
[32] On Wednesday November 14, 2018 there were two lengthy phone calls between the parties as evidenced by the applicant’s Telus account record. The applicant indicates the respondent knew she was in Calgary for various reasons: her phone number was a Calgary number; the applicant indicates he said he would give her full custody if she signed over the rental properties and he would come to Calgary to see her and she replied that was not possible based on the conditions of his release; the applicant says he asked her to write a letter to the Crown saying that she lied; on a second call made by the respondent, he asked the applicant again about writing a letter to the Crown to get the charges dropped. The respondent makes no mention of any such calls or conversations.
[33] There is also reference to the respondent associating with an individual with known criminal history in Calgary as well as other negative actions. I put no weight on these for the purposes of this decision.
[34] Since August of 2018, the child has his own room with a large yard in an established neighbourhood with other children nearby. He also regularly attends a day care and enjoys other recreational facilities. The child has formed close relationships with the family including cousins and children his age. The applicant has also established a morning routine with the child.
[35] I find the status quo with the applicant has continued for at least six months. The best interests of the child requires stability, care and consistency. These needs have largely been addressed by the applicant. Prior to August, 2018, it appears that each of the parties were capable of parenting the child and had concern for the child’s care and well-being. Even if there was shared parenting before the separation, that situation changed for other intervening reasons and has now continued for a significant time.
[36] As is well-recognized, the status quo should not be changed on an interim basis in the absence of clear and cogent evidence that the existing arrangement is harmful to the child. Here, the applicant being charged with driving under the influence while with the child raises concerns. This, however, must be seen in the overall context of the applicant otherwise adequately parenting the child for a significant duration without any other negative incidents and with steps being put in place with her mother to monitor and supervise her conduct as required by the Children’s Aid Society in Calgary.
[37] I find this is not the case of a child abduction. The decision made by the applicant after being assisted by her mother and returning to the residence of the parents appears entirely reasonable and understandable. She clearly sought and retained counsel in Ontario and proceeded with this application in Ontario. There is no other evidence suggesting any prior threats or plans that would characterize the applicant’s actions as an abduction or an effort to undermine the rights of the respondent-father.
[38] There is support for the applicant’s contention that the respondent had not made any efforts to make arrangements to see the child for many months. There may be good reason for this in view of the bail terms and criminal charge that remains outstanding. The two outgoing and incoming phone calls on November 14, 2018 are strong indications that the applicant had changed her phone number to a Calgary number and that the respondent would reasonably have at least some knowledge or suspicion of the applicant’s general whereabouts.
[39] The respondent does not reference any calls in his materials. Rather, the respondent indicates that he did not become aware of the applicant’s whereabouts until approximately the end of December. I find on the evidence that the respondent would have had knowledge or a healthy suspicion of the applicant’s move earlier than December as he has stated.
[40] In any event, there is no indication the respondent made any efforts in relation to seeing the child despite the letter from the applicant’s lawyer in October and the phone calls in November.
[41] From the materials available, it appears the child’s needs of love and nurturing are being suitably addressed daily by the applicant. In relation to the child, a status quo has been established with the applicant in Calgary. Returning the child to London at this point will otherwise amount to a fundamental shift in the basis of the status quo.
[42] I am not prepared to make any finding on what the probable decision may be at trial. There materials here simply are not sufficient to do so and there are circumstances that have been raised of each of the parents that require further reply and consideration.
Decision
[43] The child shall remain on an interim basis in the care and custody of the applicant who resides in Calgary.
[44] The parties shall consult with each other on parenting access terms with the respondent. There is simply not enough information currently to properly make an order as to parenting features in this respect nor was this the focus of the materials and submissions of the parties. On what has been provided, it appears each party is able to travel and has familiarity and connections in both Calgary and London.
[45] Careful and considered efforts must be undertaken to reintroduce and maintain a relationship between the respondent and child after these many months. I do not find that respondent abandoned his interest in his son. It is important to properly address matters to re-establish and promote the parent/child relationship in a meaningful way to advance the best interests of the child.
[46] If the parties cannot agree within 14 days on a parenting access plan, both parties shall each file their written plans and submissions with the court on or before March 15, 2019.
[47] The balance of the relief in the motion and cross-motion shall be adjourned to the case conference and scheduled thereafter if required.
[48] I shall reserve any decision as to costs until the issue of parenting access has been determined. If the parties cannot agree on parenting access terms and/or costs, each party shall also each file written submissions of no more than two pages along with attached bill of costs and cases.
“Justice M.D. McArthur”
Justice M.D. McArthur
Released: March 4, 2019
COURT FILE NO.: FD 15-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ashley Tera Young
Applicant
– and –
Manbir Khaira
Respondent
REASONS FOR JUDGMENT
McArthur J.
Released: March 4, 2019