SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 16-0452

DATE: 20190726

ONTARIO

BETWEEN:

LAWRENCE ELLIOTT

Applicant

– and –

IIA BOGOMIROVA FILIPOVA

Respondent

Jonathan S. Solomon, for the Applicant

James N. Eastwood, for the Respondent

REASONS FOR DECISION

ABRAMS, J

Brief Background

1The parties met and began residing together in Ottawa in 2008.

2They separated originally in 2010, and for a final time on August 19, 2016.

3The parties never married.

4There are two children of the relationship, specifically: Erik Lawrence Elliott, born August 5, 2009 (“Erik”) and Una Laura Elliott, born May 12, 2011 (“Una”).

5The applicant commenced a family law application in Ottawa in 2010 resulting in the Final Order of Annis, J. dated August 19, 2010, made prior to Una’s birth.

6The order granted the applicant joint custody of Erik, with primary residence to the respondent, which has never varied or set aside.

7There is no question that the respondent has been the children’s primary caregiver post separation. Further, there is no quarrel that the status quo for Una has always been the same as for Erik, in terms of time sharing between the parties.

8The applicant brought this proceeding in the Superior Court of Justice, Family Court in Brockville seeking, inter alia, joint and shared custody of the children with a specified access schedule, as defined in his application, dated July 25, 2016.

9Thereafter, the applicant has [successfully] initiated a number of interlocutory proceedings to enforce his access rights with the children, resulting in Temporary Orders, dated, October 11, 2016; December 1, 2016; December 6, 2016; December 12, 2016; February 7, 2017; July 18, 2017 and July 10, 2018.

10In accordance with the applicant’s motion, dated November 20, 2018, he now seeks to change the children’s primary residence pending the trial of the matter.

Issue

11Should the court disturb the status quo primary residence of the children pending a trial on the merits?

Legal Framework

Material Change in Circumstances

12It is a longstanding legal principle that absent evidence of a material change in circumstances requiring an immediate change in residence, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 28 R.F.L. (Ont. C.A.), Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.) and Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.).

13While the respondent asserted in her factum that there has been no material change in circumstances following the Final Order of Annis J., her counsel conceded in oral submissions that this court has jurisdiction to consider the merits of the matter based on the best interests of the children, particularly Erik, in new circumstances: Erik’s apparent unwillingness to have access time with the applicant.

Maximum Contact

14Children should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27. This even applies when the child is reluctant to see a parent. (emphasis added) Moreover, the maximum contact principle also applies under provincial cases, even though not set out in CLRA. Cavannah v. Johne [2008] O.J. No. 5027 (SCJ).

15The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

Best Interests – Basic Principles

16The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641

17The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.

18No one factor in the statutory definition of a child’s best interests is given statutory preeminence: Wilson v. Wilson, 2015 ONSC 479.

19A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them: Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

20In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children: Barnes v. Parks, 2001 241146 (Ont. C.A.)

21The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability: Wilson v. Wilson, 2015 ONSC 479.

Best Interests – Exposure to Parental Conflict

22Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260; Mattina v. Mattina, 2018 ONCA 641.

Status Quo – Temporary Custody

23The status quo – and avoiding reckless creation of a new status quo – are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

24In making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994) 1994 7379 (ON SC), 5 RFL (4th) 115.

25To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para 26.

26It is generally not in the best interests of the children to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the Office of the Children’s Lawyer recommending an immediate change in residence; an indication that the children are doing poorly under a particular regime; or serious mental health issues in connection with one of the parents. As well, it must be demonstrable that one or more children of the marriage are doing very poorly as a result of the parenting regime: Shotton v. Switzer, 2014 ONSC 843.

Positions of the Parties

Applicant

27The applicant contends that the respondent has routinely failed to follow court orders, which I agree with. But for the applicant’s persistence in pursuing his rights of access with the children, in my view the respondent would have unilaterally ceased access long ago. Further, I find as a fact that the respondent has also failed to address the makeup access owing to the applicant and makes access difficult, often impossible, despite orders being in place.

28The applicant argues that the respondent has chosen to keep Erik home from school, on an undetermined basis. Specifically, Erik has not been in school since October, 2018. To that end, the applicant asserts that the respondent is placing her own beliefs over the education needs of the child. Moreover, Erik’s lack of a formal autistic assessment [not in evidence on this motion] is a by-product of the respondent not taking action for the child a long time ago, as the applicant contends.

29Separate and apart from the issues surrounding Erik, counsel for the respondent admitted during oral submissions that the respondent has failed to follow the existing court orders in respect of Una’s access with the applicant, for no good reason.

30Finally, the applicant, who has strong family support in Ottawa, along with family members who have regular interactions and connections with the children, is better suited to be able to meet the children’s best interests on an interim basis, pending resolution of the matter on the merits at trial.

Respondent

31The respondent contends that after his [Erik’s] outburst at school in late October, he has refused to go to school, and he refuses to go on access visits. On those occasions when the applicant has shown up in the respondent’s driveway for an access visit, Erik typically barricades himself in his room. On two occasions, the respondent contacted the police to see whether they could assist Erik to transition to the access visit, but they were unsuccessful. On one of these occasions, the police officer invited the applicant into the respondent’s home and the applicant observed first-hand Erik’s volatile refusal to leave the house.

32The respondent asserts that Erik requires an incredible amount of routine, care, and attachment. The respondent has been his full-time caregiver since birth. Until late October, Erik was making good progress at school, and was meeting goals within his Independent Education Plan (IEP). Even with the routines that have been established for Erik by the Respondent, and the successes of his IEP – and notwithstanding his strong attachment to the respondent – Erik has rapidly de-escalated in the past number of months.

33Accordingly, the respondent argues that Erik has an urgent need for a wide range of medical care. Community health care agencies have organized to make this care available for him, in Brockville. Thus, there is no evidence to suggest that Erik’s best interests would be met by re-locating him to Ottawa on an interim basis. To the contrary, all of the available evidence suggests the contrary.

Analysis and Conclusions

34I remind myself that the court should not automatically change custody if the custodial parent refuses access or otherwise interferes with the development of a normal parent and child relationship between the non-custodial parent and the child. However, where the parent refuses access, serious questions are raised about the fitness of that person as a parent: Pettenuzzo-Deschene v. Deschene, 2007 31787 (ON SC), [2007] O.J. No. 3062 (Ont. S.C.J.), at para 34. In my view, the same principle applies in situations of joint custody with a primary parent who refuses access or otherwise interferes with the development of the relationship between the child and the non-primary parent.

35In almost 9 years on the bench I have not often encountered a party who engages in conduct as objectionable as the respondent. Firstly, the respondent has little regard for court orders, at times bordering on contempt. Secondly, the level of hostility that she exhibits vis-a-vis the applicant is palpable. Thirdly, and most notably, the respondent thinks nothing of exposing the children to conflict between the parties that is of her making.

36In the circumstances, the visceral response would be to order a change in custody based solely on the conduct of the respondent. But that is not the test.

37There must be compelling evidence to show that the welfare of the child, specifically Erik, would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda, supra, at para 25.

38Based on the competing, untested affidavit evidence before me, I cannot say that the evidence clearly and unequivocally establishes that the status quo is not in the child’s best interest, absent an assessment from the OCL or a private assessor recommending an immediate change in residence based on an indication that the child [Erik] or children are doing poorly under the current regime. I am very close [to reaching that position], but I am not there yet, based on the evidence before me.

39For that reason, and in all of the circumstances, I am not prepared to dismiss the applicant’s motion at this juncture. Rather, the motion is adjourned, returnable on 7 days’ notice, before me, on the following terms and conditions:

1. The respondent shall ensure that Erik is in full-time attendance at school, once the school year resumes in September, 2019. No exceptions.

2. The respondent shall ensure that both children go together for access with the applicant in accordance with the current access schedule. No exceptions. If the parties require further direction with respect to the access schedule going forward, I will be available to assist.

3. The respondent will ensure that the applicant is kept fully informed regarding all medical assessments, appointments, treatments, consultations etc. in respect of Erik’s medical care, education and general well-being, which applies equally to Una.

4. A failure by the respondent to abide by any one or more of these conditions may be inferred to be an inability on her part to parent the children, which shall be deemed not to be in the child’s or children’s best interests, for purposes of disturbing the status quo on a temporary basis pending trial.

40If counsel cannot agree on the issue of costs, written submissions of no more than 3 pages, double spaced, one side of the page, 12 point font, shall be served and filed within 30 days.

The Honourable Mr. Justice B. W. Abrams