COURT FILE NO.: FC-19-538

DATE: 2019/10/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashley Prentice, Applicant

AND

Gregory Prentice, Respondent

BEFORE: Blishen J.

COUNSEL: Alexei Durgali, for the Applicant

David Howard, for the Respondent

HEARD: September 3, 2019

ENDORSEMENT

Introduction

[1] Ashley Prentice requests a temporary order of sole custody to the parties two children and an order that the children live primarily with her, with access to their father every other weekend and on Thursday evenings. In the alternative, she requests a parenting assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am.

[2] Ms. Prentice also requests temporary orders for: child support; section 7 expenses; spousal support; and sale of the matrimonial home if the terms of Minutes of Settlement regarding the matrimonial home are not carried out.

[3] Greg Prentice requests an order dismissing the applicant’s motion. He seeks temporary orders for: joint custody or in the alternative no order as to custody; an order referring the matter to the Office of the Children’s Lawyer and an order for interim spousal support payable to the applicant at the mid-range of the Spousal Support Advisory Guidelines.[^1]

[4] At the outset of the motion, I indicated, given the involvement of the Children’s Aid Society and police with the family and the nature of the evidence and issues before the court, some form of third party assessment would be helpful. The parties consented to a parenting plan assessment to be done by Janet Claridge or other agreed upon assessor, with the costs to be shared equally. In addition, they agreed on the approach to child support and section 7 expenses and to an order that Mr. Prentice pay mid-range temporary spousal support.

Background

[5] The parties started living together in August 2005 and married on June 25, 2011. They have two children, Rosie born August 2, 2012 (seven years old), and Hannah born April 30, 2015 (four years old). The parties separated on October 3, 2018 after a physical altercation between them on September 25, 2018. They continued living in the matrimonial home until Ms. Prentice moved out during the weekend of March 23, 2019, after being informed by the police she would likely be charged with assault arising out of the September 25, 2018 incident, which would result in a restraining order. No charge was ever laid against Ms. Prentice.

[6] After Ms. Prentice left the matrimonial home, it was agreed the children reside with both parents equally on a 2-2-3 schedule. That schedule began on or about March 26, 2019 and has continued ever since.

[7] Mr. Prentice has continued to live in the matrimonial home and plans to purchase Ms. Prentice’s interest at fair market value. Mr. Prentice has paid child support since the parties physically separated and they have agreed to a proportionate sharing of section 7 expenses. No spousal support has been paid by Mr. Prentice.

[8] Ms. Prentice is 34 years old and is employed as an Administrative Assistant with the RCMP. Her 2018 income was $59,015. Mr. Prentice is 37 years old and is employed as a Plate Finisher by Canada Banknote Company Limited. His 2018 income was $116,263.

[9] On June 12, 2019, at a case conference, the parties agreed to temporary orders including: disclosure of police and Children’s Aid Society records; child support of $771 per month payable by the respondent to the applicant for the two children on a set-off basis as per the Federal Child Support Guidelines, SOR/97-175, as am , based on the above incomes. They further agreed on an interim without prejudice basis to share section 7 expenses, 60 % payable by Mr. Prentice and 40% by Ms. Prentice and that Mr. Prentice pay the ongoing expenses of the matrimonial home pending an appraisal of the home at his cost. There was no order as to custody, access or spousal support.

[10] On August 14, 2019, the parties signed Minutes of Settlement agreeing to transfer the matrimonial home to Mr. Prentice which has not yet taken place.

[11] The major issue on this motion is whether there should be a temporary order for decision-making and a change in the existing parenting schedule, pending receipt of a parenting plan assessment.

Positions of the Parties

[12] Ms. Prentice’s position is she was the primary caregiver to the children until the date of separation and was and continues to be the decision-maker with respect to her daughters. She argues, although the parties have shared parenting and made decisions together since separation, there have been numerous difficulties and challenges with this regime which have negatively impacted on the children such that a change is necessary in their best interests.

[13] Mr. Prentice disagrees. It is his position that Rosie and Hannah have close, loving relationships with both of their parents and have two homes of equal importance. Although the children were exposed to tension and an unpleasant atmosphere while the parties lived separately under the same roof, they have not been exposed to negativity and conflict since March 24, 2019 and have been doing well under the current 2-2-3 parenting schedule. He argues, although at times he has not communicated respectfully and both parties could improve communications, they are capable of communicating about the children and their needs and should continue doing so pending receipt of the assessment. He argues there should be no order for custody pending the assessment or an order for joint custody with the existing parenting schedule.

Legislative Framework

[14] Section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am, governs the request for the parenting orders in this case. The relevant sections are as follows:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Analysis

[15] Both parties filed extensive affidavits with numerous attached exhibits. Not surprisingly, the evidence is conflicting.

[16] Ms. Prentice states she was the primary caregiver for the girls while the parties resided together. She was mainly responsible for their daily routines; took them to almost all medical, dental and eye doctor appointments; arranged and attended their extracurricular activities and assumed a primary role with the daycare and school for Rosie. This role continues. She further deposes that communications have been strained and frustrating. Mr. Prentice often does not answer her queries in a timely manner causing delays in reaching a decision about issues with respect to the children. In addition, Ms. Prentice is concerned about statements made by the children regarding the routine in their father’s home and also about some of their behaviours at school and daycare. Given these concerns, she wishes to change the existing parenting schedule pending receipt of the assessment report.

[17] Mr. Prentice deposes that while the parties resided together, he was almost exclusively responsible for the bath and bedtime routine. This is acknowledged by Ms. Prentice. He further states he was involved with the daycare and school, although he agrees Ms. Prentice was the more involved parent in that respect. He attended some doctor visits and discussed with Ms. Prentice the extracurricular activities and attended some. Since separation, Mr. Prentice indicates he has equally shared pick up and drop off responsibilities for school and daycare and has scheduled and attended some medical/eye appointments. In addition, he has communicated with the school and attended some of the children’s recreational extracurricular activities. Although he acknowledges at times not communicating respectfully, he indicates the parties are capable of communicating about the children and making decisions affecting their welfare. The children have adjusted to the 2-2-3 parenting schedule and are doing well.

[18] It is particularly difficult to make a determination with respect to parenting on a motion without the resources and evidence available in a trial to find facts and assess the credibility and reliability of the parties.

[19] In Basley v. Basley, 2016 ONSC 5877, Justice Vogelsang refers to Easton v. McAvoy, 2005 ONCJ 319 (Ont. Ct.). In that case, Justice Renaud declined to make a temporary custody order: “to avoid the risk that the children involved would have their future care and relationships with their parents affected by potentially unreliable and contradictory information.”

[20] Justice Vogelsang notes Justice Renaud’s approval of the words of caution expressed by Justice Pierce in Croker v. Hooke, 2003 CanLII 2298 (ON SC), [2003] O.J. No. 1742 (Sup.Ct.) on a motion for temporary custody where she said,

29 This court does not have the same vantage point as the trial judge, who will hear evidence tested by cross-examination, hear testimony from third parties, including professionals involved with the child and his parents. That court will assess credibility and weigh evidence; it may ask questions.

30 Interim custody, in the face of conflicting affidavits and a climate of recrimination, is not a time for experimentation with the child's life. Such decisions are difficult enough for the court when it has the benefit of hearing evidence presented by the parties…

31 Rather than awarding interim joint custody in such a climate, the child may be better served by an expedited trial, where all issues surrounding his care can be explored.

32 I am not persuaded there are compelling reasons to change the status quo on an interim basis. The father's proposal is a fundamental shift from the status quo. Making no order as to custody will leave the parties on an equal footing to argue the matter at trial…

[21] In Coe v. Tope, 2014 ONSC 4002, Justice Pazaratz indicated parenting determinations at temporary motions are particularly challenging for a number of reasons. He notes temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent stages in the process. The status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interests demand an immediate change. He further notes frequency of contact is particularly important for young children (See Basley v. Basley, para 22).

[22] The comments and findings in Basley v. Basley, Easton v. McAvoy and Coe v. Tope, regarding temporary custody motions are particularly relevant when an assessment is pending. In this case the evidence is conflicting. There has been no cross-examination on the affidavits; the parties have made decisions together for the past six months, albeit with some difficulties, and the parents share the parenting time with their children on a schedule agreed upon since the end of March, 2019.

[23] Although there are significant differences and conflicts in the affidavit evidence, I am able to make certain findings of fact as follows:

1. Ashley and Greg Prentice are both loving, capable parents.

2. Prior to the physical separation, the children were directly and indirectly involved in adult conflict which caused them distress.

The CAS was involved with the family and investigated the physical altercation on September 25, 2018 and its impact on the children. The Society was further contacted by Ms. Prentice regarding concerns as to how Mr. Prentice was handling the children and his involvement. Ultimately, just after the parties physically separated, the CAS closed its file with the warning,

“The Society strongly urges both parents to protect the children from any adult conflict and any post separation issues as they arise.” (See Exhibit EE to Ms. Prentice’s affidavit Vol. 2 of the CR).

The police were involved with the family in investigating the September 2018 incident and allegations made by both parties against the other regarding their care of the children and the conflict between them.

Neither the police nor the CAS have been involved with the family for the past five months. The tension and conflict that escalated to the extent that the authorities became involved with the family, has largely abated.

3. The children made statements to the CAS social worker regarding yelling, their parents hitting them and the routine of the household prior to separation. These statements are hearsay and not admissible as to their truth but do demonstrate the children were upset and anxious during this timeframe.

Ms. Prentice indicates in her affidavit evidence the children have more recently made a number of comments to her regarding what happens when they are with their father, which causes her concern. Again, these statements are hearsay and require further consideration by the assessor.

4. Ms. Prentice has been and continues to be the parent more involved in all aspects of the children’s lives including: daycare, school, medical/dental/eye doctor appointments and extracurricular activities. Mr. Prentice was also involved in caring for the girls, particularly their nighttime routine but left the organizing and attending of appointments and events to Ms. Prentice. This continued post separation. Recently Mr. Prentice has played a more active role in doing pick ups and drop offs from daycare and school, contacting the school on one occasion and attending some medical appointments.

5. Mr. Prentice has not consistently taken the girls to pre-arranged activities and has not always contributed to their cost.

6. The position taken by Mr. Prentice and his behaviour surrounding Rosie’s counselling which was deemed necessary by the CAS, caused significant delays and was not in her best interests.

7. The communication between the parties has been strained and at times frustrating, particularly for Ms. Prentice. The communication regarding necessary counselling for Rosie is an example. There has however been some reasonable, courteous communication regarding the children’s needs. More recently, the parents have been using the My Family Wizard program.

8. There is no evidence to support Mr. Prentice’s contention that Ms. Prentice is marginalizing or alienating him from the children. To the contrary, she supports his relationship with them. Mr. Prentice supports Ms. Prentice’s close relationship with the children indicating she is an “amazing mother.”

Conclusion

[24] As previously noted, this is a motion for a temporary order of custody pending receipt of an assessment report. There is conflicting evidence; there has been no cross-examination and there are inherent difficulties in making final determinations as to credibility and reliability based on such evidence. The parties agreed at the end of March that the children reside with both equally on a 2-2-3 schedule which continues. There are no pending major decisions affecting the children.

[25] Based on the evidence before me and considering:

1. the parenting arrangement agreed upon by the parties and followed for the last six months,

2. the children’s best interests,

3. the maximum contact principle, and

4. the fact this is a motion for temporary order and an assessment report is pending to be available within approximately three months,

on a without prejudice basis, pending the assessment, I make no order for custody and order the existing 2-2-3 parenting schedule continue.

[26] Other temporary orders are as follows:

1. On consent, the applicant and respondent shall jointly retain Janet Claridge, or another mutually agreed upon assessor to conduct a parenting plan assessment for Rosie and Hannah and to produce a report with respect to:

a. the needs of the children,

b. the ability and willingness of the parties to satisfy the needs of the children and

c. the parenting arrangements recommended to meet the best interests of the children.

The parties shall:

a. each pay 50 % of the assessment.

b. comply with any requirement Ms. Claridge has to secure the earliest start date of the assessment.

c. during the assessment process, comply with any request by, and appointment scheduling with, Ms. Claridge.

d. consent to the release of all records and information from all collaterals, including but not limited to the CAS, daycare provider, school teachers, family physician, counsellors, and any other collateral source that Ms. Claridge considers relevant. The parties shall provide any written consents in that regard.

e. in the event Janet Claridge is unable to complete the assessment, the parties will choose another assessor to complete a parenting assessment on the same terms.

2. The respondent shall continue to pay the applicant $771 per month child support for the two children based on his annual income of $116,263 and the applicant’s annual income of $59,015, calculated as per the Federal Child Support Guidelines using the set-off method, agreed upon by the parties.

3. The respondent will be responsible for 62% of the children’s special and extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines and the applicant shall be responsible for 38 % of those expenses. Those expenses shall include but not be limited to: the after tax portion of the children’s daycare, EDP, summer camps, counselling and medical/dental expenses.

4. The respondent shall pay the applicant spousal support in the amount of $600 per month at the mid-range of the Spousal Support Advisory Guidelines, as agreed upon by the parties.

[27] Given that I have reviewed all the evidence in this case to date and have ordered the assessment, I am prepared to see the parties and counsel for a settlement conference on a date to be set by trial coordination once the assessment report has been prepared.

Costs

[28] If the parties cannot agree on costs, they may set a date through trial coordination to appear before me for brief oral submissions of no more than ½ hour total. This could take place after receipt of the assessment report and a settlement conference.

Blishen J.

Date: October 1, 2019

COURT FILE NO.: FC-19-538

DATE: 2019/10/01

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Ashley Prentice, Applicant

AND

Gregory Prentice, Respondent

BEFORE: Blishen J.

COUNSEL: Alexei Durgali, for the Applicant

David Howard, for the Respondent

ENDORSEMENT

Blishen J.

Released: October 1, 2019

[^1]: Spousal Support Advisory Guidelines, prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html