Court File and Parties

Court File No.: FS-18-0330-000 Date: 2019-07-11 Superior Court of Justice – Ontario

Re: G.H., Applicant And: J.M., Respondent

Before: Mr. Justice W. D. Newton

Counsel: K. Hagman, for the Applicant S. Filipovic, for the Respondent J.M. M. Petryshyn, for R.M.

Heard: June 27, 2019, at Thunder Bay, Ontario

Decision On Motion

Overview

[1] The primary issue on these motions, one brought by the father [^1] and the other brought by the mother, is the temporary parenting arrangements for the two children. Both parents consent to a temporary order for joint custody. Both parents agree that there is no issue with the parenting ability of the other.

[2] The father also seeks an order for an assessment, pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, with respect to the needs of the children and the ability and willingness of the parents to satisfy those needs and an order that one of the children be enrolled in counselling.

The Facts

[3] Most of the facts are not in dispute. The parents began cohabiting in late 2007. They are not married. They have a son who was born in September 2008 and a daughter who was born in August 2011. The parents separated in October 2017 and both have since “repartnered.” Both live in the same general area, close to the children’s school.

[4] Both parents work full-time. The father works in a gravel business owned by the grandfather. This work is seasonal. From December to March his work is “nominal.” Otherwise, he works about 60 hours a week. Both the father and the grandfather deposed that the father’s work hours can be flexible, based on parenting needs. The mother works 35 hours per week with a local child welfare agency.

[5] The grandfather was named as a party by the mother who claims that certain transfers of real property from the father to the grandfather constituted fraudulent conveyances.

[6] This application was commenced in December 2018. A case conference was held before Pierce J., and a request was made for the Office of the Children’s Lawyer to become involved “to consider custodial arrangements for the children, with a social work assist.” The Office of the Children’s Lawyer declined to become involved.

[7] Although there is conflict in the evidence, I accept that the father has been seeking to increase access. According to the mother’s affidavit, she created an access schedule because the children needed a “stable schedule.” The mother describes it as a 10 - 4 schedule, meaning that the children are with her for 10 days and with the father for 4 days every two weeks, i.e. every second weekend. Considering school, it is more accurate to describe the schedule as a three night, two day schedule.

[8] Correspondence from the father’s lawyer, which was filed as an exhibit, demonstrates that, as early as March 2018, the father was proposing nearly equal shared parenting (the mother four days, the father three days each week).

[9] The mother deposes that the 10 – 4 schedule “has become the status quo” and that the children are doing well with this schedule. She deposes that she “does not believe that increased access is in the best interests of the children” and expresses doubt that the father and grandfather will ensure that the father has a more flexible work schedule.

[10] The mother also expresses concerns that the father’s girlfriend may not be a suitable caregiver based on an allegation that the father disputes.

[11] The mother also deposes that she does not believe that a s. 30 assessment is in the best interests of the children and that “it would cause more harm than good.” She deposes that such an assessment would “only be more disruptive and intrusive in the children’s lives.” One of the reasons that she lists is the fact that her son already has “many professionals” involved in his life, including a play therapist.

[12] The mother resists counselling for their son because play therapy with a qualified professional is ongoing.

Positions of the Parties

[13] As indicated, during argument of this motion, counsel for the mother conceded that an order for temporary joint custody was appropriate.

[14] The mother argues that the “status quo” should continue until a judge can assess “best interests” at trial. She argues that an assessment is unnecessary and will be harmful. She argues that there is no good reason at this stage to substitute counselling for play therapy.

[15] The father argues that the current parenting schedule is not the true “status quo” in that the parenting schedule was imposed by the mother. He argues that there is no reason why he should not have equal parenting time and that it is in the children’s best interest to be parented by both parents. The father questions why the mother consented to an assessment earlier but disputes such an assessment now. Counsel for the father has indicated that steps can be taken to retain a non-local assessor if that is an issue for the mother. The father argues that certain problems that the son is experiencing point to the need for counselling.

The Law

[16] Section 24(2) of the Children's Law Reform Act, provides guidance in respect to custody and parenting. The paramount consideration is the best interests of the child:

Best interests of child The court shall consider all the child’s needs and circumstances, including, (2) (a) the love, affection and emotional ties between the child and, (i) each person 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct 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.

Violence and abuse 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.

Same (5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[17] The following excerpts from Madill v. Madill, 2014 ONSC 7227, 247 A.C.W.S.C. (3d) 861, are helpful:

[31] In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030; and Easton v. McAvoy, 2005 ONCJ 319.

[32] The Court must consider the best interests of the children, including their needs and circumstances – with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[18] And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869, 236 A.C.W.S. (3d) 947, as accurate statements of the law:

[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, 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. [Emphasis added.]

Analysis

[19] There are no conduct issues relevant to either party’s ability to parent.

[20] As the parties acknowledge, no serious issue is raised with respect to the ability and willingness of each parent to provide for the children.

[21] I accept the evidence of the father and his employer, the grandfather, that accommodation will be made to allow the father to meet his parenting needs.

[22] On a temporary motion such as this, it is difficult to fully appreciate all the children’s needs and circumstances. However, there is no evidence presented on this motion that would indicate that either parent is unable to meet those needs.

[23] With respect to the stability of the home environment, following the cases cited above, I am not satisfied that the 10 – 4 arrangement reflects the “status quo” as it existed immediately prior to separation, and in any event, I find that this schedule was imposed unilaterally.

[24] I am not satisfied, on the evidence on this motion, that the mother has established that the father’s partner is an unsuitable caregiver.

[25] In short, I can discern no reason why the children should not be equally parented by each parent. There will be a temporary order for equal parenting as outlined below.

[26] With respect to the s. 30 assessment, such an assessment may be of assistance to the trial judge. I am surprised by the mother’s assertion that the assessment will do “more harm than good” given her prior agreement to a social work assist from the Office of the Children’s Lawyer (especially so since the assessors are typically the same qualified individuals) and given her experience in the child welfare field. There will be an order for an assessment.

[27] With respect to counselling or play therapy, there is insufficient evidence before me to establish that one would be preferable to the other in the circumstances, and I decline to make an order for counselling based on the material before me.

Order

[28] For the foregoing reasons, I order that:

(a) there be a temporary order for joint custody of the two children;

(b) the children be parented equally by both parents on a “week on/week off” schedule with the transitions occurring on Sunday evenings after dinner commencing the next Sunday following the father’s parenting on the 10 – 4 current schedule; and

(c) an assessment will be conducted by a person who has the technical or professional skills to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy those needs pursuant to s. 30 of the Children’s Law Reform Act. The parties shall consent to who the assessor will be in advance, failing which the court will determine who should conduct the assessment subject to the consent of the assessor. The cost of this assessment is to be borne by the respondent, subject to the order of the trial judge as to costs.

[29] Should clarification be required to give effect to this order and my reasons, the parties may arrange an attendance before me through the trial coordinator.

[30] If the parties are unable to agree to costs within 20 days, then the party seeking costs shall submit brief written submissions on costs within 30 days from the release of these reasons. The opposite party may deliver submissions in response within five days thereafter. Costs submissions are to be limited to three pages, plus costs outline, plus authorities. If no cost submissions are received within 30 days, then costs will be deemed settled.

“Original signed by” The Hon. Mr. Justice W.D. Newton

Released: July 11, 2019

[^1]: In this decision, I will use generic descriptors to the extent possible so that the privacy of the parties, their children, and their extended families is respected.