Court File and Parties

COURT FILE NO.: FC-12-2103-1 DATE: 2019/07/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Melanie Caresse McAuley (nee Kieffer), Applicant -and- Joseph Patrick McAuley, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Ross Stewart for the Applicant Michael Wonham for the Respondent

HEARD: April 23, 2019

Endorsement

[1] This parenting issue arose when the children’s mother, Ms. McAuley, was hospitalized from March 14 to 26, 2019. During that period, the children were in the care of their father, Mr. McAuley. Mr. McAuley agrees to Ms. McAuley having the children in her care. The main issue is what timesharing arrangement for the children should be in place, as the parties dispute what the status quo was before March 14, 2019. The children are ages 7, 9, and 10 years of age.

[2] This dispute is taking place within Ms. McAuley’s Motion to Change, that she started in 2016 to adjust the children’s schedule due to her shift work. This Motion to Change has largely been dormant until recent events.

[3] Ms. McAuley takes the position that the interim timesharing arrangement should return to the one set out in the Final Order dated January 13, 2016, which provides for the children to primarily reside with her, with access to Mr. McAuley on alternate weekends and two evenings in the alternate week.

[4] Mr. McAuley seeks an interim interim equal timesharing arrangement and that the Office of the Children’s Lawyer be requested to investigate this matter.

[5] The issue to be decided on this motion is, given Ms. McAuley’s hospitalization in March of 2019, and the timesharing arrangement that existed before March 2019, what interim timesharing arrangement is in the children’s best interests?

[6] I find that it is in the children’s best interests, on an interim interim basis, to be in the care of Ms. McAuley from Monday to Thursday each week, and in the care of Mr. McAuley from Thursday to Monday. This schedule most closely reflects the timesharing schedule in place before Ms. McAuley’s March 2019 hospitalization.

[7] The presumption on an interim motion is that the status quo prevails. However, two significant disruptions in the status quo have taken place since the 2016 Order. The first is that after the 2016 Order, the parties adopted a more flexible schedule for the children that resulted in the children spending significantly more time in Mr. McAuley’s care. This flexible schedule accommodated Ms. McAuley’s shift work, which included work on weekends.

[8] I accept Mr. McAuley’s evidence that during the period from April of 2018 to January of 2019, the children were in his care approximately 50% of the time. This timesharing changed somewhat in January of 2019 because Ms. McAuley was then on sick leave and not working.

[9] The pattern of the children spending extensive time in Mr. McAuley’s care is reflected in the fact that the children were placed in his care when Ms. McAuley was hospitalized in March of 2019. There are no concerns regarding Mr. McAuley’s care during this period or suggestions that it was a significant departure from the type of time that the children had spent with him in the past.

[10] The second significant disruption was Ms. McAuley’s hospitalization for the period from March 14 to 26, 2019, due to mental health issues that resulted in her not being able to care for the children. This change extended past March 26, 2019, due to Mr. McAuley’s concerns about the children returning to Ms. McAuley’s care in the absence of her providing information regarding her mental health.

[11] I do not find that Mr. McAuley acted inappropriately in refusing to agree to the children being in Ms. McAuley’s care after she was released from hospital. Mr. McAuley sought further information regarding her mental health. Ms. McAuley was not forthcoming regarding the reasons for her hospitalization or the status of her mental health. I find that Mr. McAuley had a reasonably held belief that Ms. McAuley was hospitalized due to mental health issues that included risks of self-harm. Mr. McAuley requested confirmation of Ms. McAuley’s medical status, but Ms. McAuley refused to provide this until she provided a doctor’s note on April 4, 2019.

[12] There were two unfortunate incidents on March 29, 2019, and April 2, 2019, when Ms. McAuley attended at Mr. McAuley’s home and, on April 2, 2019, appeared to attempt to forcibly remove the children from his care. Her conduct in doing so, when she had not provided information on her medical status and in the absence of Mr. McAuley’s agreement, was not reasonable.

[13] Those incidents precipitated the current dispute, with Ms. McAuley now taking the position that the children should return to the schedule set out under the 2016 Order, even though this does not represent the status quo before March 14, 2019. Mr. McAuley views this position as a retaliatory one.

[14] Mr. McAuley has now received information regarding Ms. McAuley’s medical status and, although the information provided is certainly not robust, he does not take issue with the children returning to her care. His concern is what schedule should be in place, and he wishes to avoid confusion, and the risk of further incidents, if the schedule is not defined.

[15] I find that it is the children's best interests to return to a timesharing schedule that is close to the timesharing arrangement that was in place before March 14, 2019. Due to the conflict that has now arisen between the parties, however, more structure is required than the flexible schedule that was previously in place that reflected each parent’s work schedule, which includes Ms. McAuley’s shift work when she is working.

[16] Given the above, I order that, in the absence of the parties agreeing to a different timesharing arrangement, on an interim interim basis pending further agreement or court order, the children shall be in the care each parent as follows:

a) The children shall be in Ms. McAuley’s care from Monday after school (or Monday at 9 am if not in school) to Thursday before school (or Thursday at 9 am if not in school); and

b) The children shall be in Mr. McAuley’s care from Thursday after school (or Thursday at 9 am if not in school) to Monday morning before school (or Monday at 9 am if not in school).

[17] If the children are not in school on Friday, the transfer shall take place at an agreed upon neutral location. If the parties are unable to agree to the transfer location that is approximately midway between their respective residences, they may return before me to do so.

[18] I do not find that the distance between Mr. McAuley’s home and the children’s school is a significant concern at this point – there is insufficient evidence before me to suggest that this distance, or travel time, was ever considered an obstacle to such timesharing in the past.

[19] The dispute regarding the children's time-sharing arrangement gave rise for the need for Justice Kane’s Temporary Order dated April 4, 2019. Given the terms of this order resolve the timesharing issue, the Temporary Order of Justice Kane dated April 4, 2019 is vacated and shall no longer have any force or effect.

[20] The involvement of the Office of the Children’s Lawyer would be of significant assistance in this matter to assist the court in providing the views of the children, particularly the older children, as well as to investigate the possible mental health issues, the conflict between the parties, and needs of the children. I therefore order that this matter be referred to the Office of the Children’s Lawyer and request their involvement.

[21] Although a case conference was previously held in this Motion to Change, on March 24, 2017, the issues have evolved since that time. The parties should, therefore, schedule, as a next step, a case conference to review how this matter should proceed towards a resolution, taking into consideration the primary objective of the Family Law Rules (rule 2), and a process for doing so (including whether parties need to amend their pleadings, disclosure, etc.)

[22] If the parties are unable to agree on costs of this motion, Mr. McAuley may file submissions concerning costs on or before July 30, 2019. Ms. McAuley may file submissions concerning costs on or before August 13, 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.

Justice P. MacEachern Date: July 12, 2019