Court File and Parties
Court File No.: 18-574 Date: June 12, 2019 Superior Court of Justice - Ontario
Re: Ryan Taylor, Applicant And: Danielle Sergovitch, Respondent
Before: Honourable Justice Mary A. Fraser
Counsel: Duncan Crosby, for the Applicant Kathleen Kealey for the Respondent
Heard: June 11, 2019
Endorsement
[1] This motion is brought by the Respondent for a temporary order granting her sole custody of the children, Nash Jagger and Grey Charles Baxter Taylor. Alternatively she seeks a temporary order for access.
[2] On October 26, 2018 Justice Selkirk made an ex parte order granting sole custody of the children to the Applicant on a without prejudice basis. On November 8, 2018 it was ordered that the Respondent’s access would be as agreed upon by the parties.
[3] The Applicant maintains that the Respondent’s access to the children needs to be supervised and the Respondent has been exercising supervised access to the children at the supervised access centre in Pembroke. The Respondent maintains she agreed to this arrangement because it ensured that she was able to see her children, no matter what the restriction.
[4] This interim access arrangement does not resemble the status quo as it existed immediately prior to the parties’ separation. It is not disputed that the Respondent was an equal if not primary caregiver to the children prior to the parties’ separation.
[5] The ex parte order granting the Applicant sole custody of the children on a without prejudice basis is predicated upon concerns raised by the Applicant with regard to the Respondent’s mental health and the fear that at the time of the parties’ separation this posed a risk to the children. The Applicant also raised the concern in his materials that the Respondent was intending to move to the Chatham area with the children without his consent. It was his belief that the Respondent intended to move with the children to reside with her father who, the Applicant alleges, also suffered from mental health issues.
[6] There is an ongoing need for the Respondent to produce her medical records concerning her present health status. In her affidavit sworn November 4, 2018, the Respondent admits that she has suffered from medical issues which caused her to sleep for up to 18 hours a day. She admits to having struggled in the past with depression and that she continues to be treated for this medical condition. The full nature of extent of these medical issues may impact any decision this Court is asked to ultimately make concerning what custody arrangement is in the best interests of the children.
[7] In the meantime, the order in place was very obviously intended to serve as a risk prevention measure pending all parties having had the opportunity to put their position before the court. The order was made expressly on a without prejudice basis.
[8] The Respondent has produced a psychological assessment from a Dr. Chavez which suggests that “she is reporting recurrent threats of self-harm. Her risk of self-harm is enhanced by her experiences of hopelessness, confusion, agitation and stress.” The Respondent is presently receiving ongoing treatment and counselling.
[9] The Family and Children’s Service of Lanark, Leeds and Grenville (FCSLLG) reviewed the concerns of domestic conflict and allegations of the Respondent’s drug use and/or mental health. Its report dated January 23, 2019 to the Respondent advises that the concerns were not verified.
[10] At present, the Applicant is not prepared to allow the Respondent any further access than as may occur at the supervised access centre. At present the centre is apparently only able to accommodate one and one half hours per week for the Respondent’s access. This arrangement is a significant departure from the status quo which existed prior the parties’ separation. The present arrangement appears, as time passes, unduly disruptive to the Respondent’s relationship with the children.
[11] On interim custody and access motions, the best interest of the children govern. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change.
[12] In this instance, given the continued lack of medical documentation from the Respondent which needs to be reviewed in order to address the concerns raised with respect to the Respondent’s mental health, I conclude that the children should remain in the Applicant’s temporary custody, as ordered by Justice Selkirk.
[13] That stated, having reviewed the report of Dr. Chavez and the correspondence from FCSLLG and having reviewed the available observation notes from the supervised access centre for the period December 2018 to March 2019, I am not persuaded by the evidence that the Respondent’s access needs to be supervised. I am particularly disinclined to order that the access continue to be supervised in light of the limited availability for such access to happen and the impact this has on the relationship between the Respondent and the children. To continue such restricted access would not be in their best interests.
[14] I therefore order as follows:
Effective immediately, the Respondent shall have temporary unsupervised access to the children for three two-hour periods each week. Absent agreement between the parties, these visits shall take place every Monday, Wednesday and Friday for two hour periods between 6:00 p.m. and 8:00 p.m.. After four weeks of such access has occurred, the access time shall be expanded to three three-hour periods of access per week. Then, after four weeks of such expanded access has occurred, the access shall be expanded again to three four-hour periods of unsupervised access. If the parties cannot agree upon a schedule for the expanded access time to occur, then it shall take place every Monday, Wednesday and Friday between 5:00 p.m. and 8:00 p.m. (in the case of the three hour visits) and between 4:00 p.m. and 8:00 p.m. (in the case of the four hour visits);
This Order shall not be construed as preventing the parties from agreeing upon further or other access between the children and the Respondent, in which event such further access should be agreed upon in writing;
Pick up and drop off for access shall be done by the Applicant at the front door of the Respondent’s residence unless alternative arrangements are agreed upon by the parties in writing. The parties shall restrict their communications at the pickup and drop off and shall only address any issues and/or the exchange of information in writing, email or text;
The Respondent shall not remove the children from Renfrew County;
The success of this motion has been divided such that it appears in all of the circumstances that the parties should each bear their own costs in this matter. If either of the parties wish to argue for a different result by making submissions on costs, they may do so by advising the other party on or before June 14, 2019 of their intention to make such submissions. In that event, the parties’ written submissions shall be no longer than two pages in length together with any offers to settle and bills of costs. The Respondent/Moving Party shall serve and file her submissions on or before June 18, 2019 and the Applicant/Responding Party shall submit his submissions on or before June 21, 2019. If no submissions are received by those dates, there will be no order as to costs.
Honourable Justice Mary A. Fraser Date: June 12, 2019