COURT FILE NO.: FC-19/D-136
DATE: October 30, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Carmichael
– and –
Rodney James Carmichael
Caroline E. Kelly, counsel for the Applicant
John E. Summers, counsel for the Respondent
HEARD: October 30, 2019
RULING ON MOTION
Desormeau, j.
Background
[1] The Respondent Father, Rodney Carmichael, brings this motion for equal time sharing of the children. He also asks for the immediate sale of the matrimonial home.
[2] The Applicant Mother brings a cross motion for the appointment of Catherine Reid, a Registered Social Worker to be appointed to provide a s.30 CLRA assessment.
[3] The parties started to live together in January 2006. They were married on June 20, 2009 and separated on November 27, 2018.
[4] Together, the parties have two children: Lily Carmichael, born April 14, 2010 and Leah Carmichael, born June 1st, 2015.
[5] The application was issued June 10, 2019. Since that time, the parties have appeared in court on July 5, 2019 for an urgent motion, then on September 3, 2019 for a case conference. After this, an urgent motion was scheduled by the Mother, and adjourned from September 17, 2019 to September 27, 2019, then ultimately to October 30th, 2019. After the September 27th, 2019 court date, another urgent motion was brought by the Mother, without notice, on October 9, 2019 to permit the children to attend the funeral of their maternal grandfather. Costs from the urgent motion regarding the funeral were reserved to this motion.
[6] Given the three volumes of pleadings filed, the contentious nature of the proceedings and the importance of determining what is in the children’s best interest, I have reviewed every single document contained in the three volumes of the continuing record.
Access
[7] Pursuant to Section 16(8) of the Divorce Act (DA), and Section 24(1) of the Children's Law Reform Act (CLRA), an order for custody of or access to a child must be made in the "best interests of the child", as determined by reference to the conditions, means, needs and other circumstances of the child.
[8] This means that parental preferences and "rights" play no role: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at para. 210.
[9] Section 24(2) CLRA sets out the considerations which are relevant in assessing the best interests of a child. The court must also apply Section 16(10) from the Divorce Act in promoting maximum contact with each spouse.
[10] As stated in Young v. Young, the best interest of the child is the only test in making custody and access orders. While section 16(10) DA sets out a statutory requirement to consider maximum contact with both parents, this is only so far as it fits within the requirement to serve the best interests of the child, which entails an impartial and objective view of the evidence (see Young v. Young, (1993) 1993 CanLII 34 (SCC), 4 S.C.R. 3, at para’s 210, 212 and S.(E.) v. M.(D.), 1996 Carswell 278).
[11] In Rigilo v. Rigilo, the Ontario Court of Appeal cited the following from Young v. Young, with approval “the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child's best interests”: Rigilo v. Rigilo, 2019 ONCA 548 at para. 4.
[12] A temporary order is intended to stabilize the parties until a trial can be conducted to permit a full and complete consideration of the issues: Holland v. Fower, 2011 ONSC 4545, at para. 24.
[13] The Father is seeking equal time sharing of the children. He alleges that the Mother has restricted his access to every second weekend, and has failed to ensure the children are available for FaceTime calls when they are scheduled to occur, or that they are not in a quiet place without distraction at the time of the call.
[14] The Mother’s affidavit of September 23, 2019 asks for a defined scheduled such that the Father would see the children every Tuesday at 3:20 p.m. to 7:30 p.m. and every second Friday at 3:20 p.m. to Monday at school. The Mother also asks that any missed access does not permit make-up access. At the motion, the Mother also requested police enforcement of the access order.
[15] The Father indicates that the Applicant is an excellent Mother. He does not deny that the children want to spend equal time with her. He however maintains that they also want to spend equal time with him.
[16] The Mother has identified numerous concerns with greater access time between the children and their father, such as the level of conflict between them, and the impact the instability and the conflict have on the children. Lily is currently seeing a counsellor. She is drawing pictures that the Mother suggests demonstrates the impact this all has had on her. There is however no expert evidence on the pictures, and no evidence from the counsellor.
[17] The Father has the support of his new partner: Jessica McKay. I have given no weight to her professed experience or expertise about the Father’s parenting skills or her view of what is in the children’s best interest. I have however considered her evidence regarding the quality time the Father spends with the children, and the activities they enjoy together.
[18] The Father’s evidence is that he has arranged his work schedule to work from 10:00 a.m. to 3:00 p.m. during the week. He also confirms that he will not be deployed, and any deployment requires his consent. While this is disputed, there is no evidence to the contrary.
[19] The Mother has several supports as set out in her materials, including friends, neighbours and family.
[20] I have considered the evidence provided by the collaterals, including that of Melissa Watt, Alaina Irwin, Jesse Irwin, Brian Hurley, Jennifer Hurley, Lana Abbott, Carmen Lavoie, Danielle Beal’s, Laura Turcotte. I have considered the disputes filed by the parties to the other’s collateral affiants’ evidence. I have not considered any hearsay evidence contained in the affidavits filed by either party or their collaterals.
[21] The collaterals speak to both parents love for the children. They all express views regarding what they believe is truly going on behind the scenes.
[22] Having reviewed the evidence, on a balance of probabilities, I make the following findings:
a. The Mother took a full year of leave as a teacher following each child’s birth. After this, she returned to work part-time. After Lily turned 8, the Mother returned to work full time.
b. The Father is a member of the Canadian Special Operations Regiment (CSOR). Through his career he has been deployed, on course, and has frequently attended training exercises.
c. The parents worked as a team to raise the children, with the Mother being the primary parent when the Father was deployed, on course or during training exercises. This arrangement was acceptable to them both during their marriage.
d. The Father has refused postings and made a career change to permit him to remain in Petawawa.
e. The conflict between the parties ramped up on or about April 7th, 2019.
f. Both parties have tried to control the situation, which includes creating a schedule that accommodates their own purposes and interests.
g. Both parties have taken the children unilaterally without the consent of the other, despite the other’s express intention to spend time with the children.
h. There have been repeated requests by the Father to change the access schedule, sometimes at the last minute.
i. The Mother has been the primary person involved in the children’s activities.
[23] Despite denials, on a balance, I am persuaded that both parents have involved the children in the conflict by discussing adult issue with them and / or in their presence.
[24] There is significant contradictory evidence in the file. I am unable to resolve the credibility issues based on conflicting and untested affidavit evidence. These issues will need to be determined at trial.
[25] I find that both the Mother and Father love their children greatly and want to spend as much time with them as possible. The question however is not what the parents want, but what is in the children’s best interest.
[26] Given the contradictory evidence, I am not prepared to conclude either parent was the primary caregiver to the girls prior to separation.
[27] Further, I am unable to determine if both, or either parents are aggressive and verbally abusive. I am equally unable to determine whether the Father uses steroids or cocaine, as alleged by the Mother and vehemently denied by the Father.
[28] The court is troubled with the Father’s behaviour, which includes but is not limited to:
a. A lack of cooperation with the Mother to change access times when it would clearly be appropriate to do so, such as for the children’s grandfather’s funeral, which necessitated an urgent motion being brought by the Mother.
b. His decision to shave half of Lily’s head without discussing this with the Mother.
c. His refusal to take the children to their extra-curricular activities.
d. He inappropriately sent Lily to the door of the matrimonial home to pick up her clothing.
[29] The court is also troubled by the Mother’s behaviour regarding the following:
a. Her request to suspend all access until terms can be agreed upon, as set out in her affidavit of September 16, 2019.
b. Her demand that access cannot be agreed to unless there is a schedule confirmed in writing between counsel, particularly when counsel is not always available to immediately respond to scheduling changes, in particular prior to the September 27th endorsement of Justice McNamara.
[30] The Mother advances that the Father has been “overholding” the girls, contrary to an access schedule, and he has picked up the children from the home, school or daycare without the Mother’s consent.
[31] The Father meanwhile argues that the Mother dictates what the access schedule will be, thus leading to the “overholding” allegations.
[32] I have considered that stability is a primary need for children, particularly when their worlds are flipped upside down following the dissolution of their parent’s relationship. Failing compelling reasons regarding the children’s best interest, the court favours a maintenance of the legal status quo. (See Kimpton v. Kimpton, 2002 CanLII 2793, para. 1)
[33] The difficulty in this situation however is that both parties are trying to control the narrative regarding the evidence on status quo. Based on the conflicting evidence, I am unable to determine what is the status quo.
[34] However, I find that an interim determination based on the children’s best interest is necessary pending a trial on the issues.
[35] I am persuaded, on a balance of probabilities, that both the Mother and Father are good and capable parents. I am persuaded that they are both able to meet the needs of their children. It is the court’s hope that a specified access schedule will lessen the conflict. However, both parents must recognize that an access schedule cannot necessarily consider whatever curveballs life throws at them. The parents need to find an effective and conflict free way to communicate with each other, without involving the children, and without necessarily going through counsel or the courts. The parents are directed to seek out the services of a parenting coordinator to assist them in this regard.
[36] I have considered the maximum contact principle, s. 24 CLRA, and the volumes of evidence filed in support of this motion. I note that I have no independent evidence of the child’s views and preferences. Despite the conflict between the parties, I am not persuaded at this juncture that it is necessary to reduce access to protect the children from same. I have created an access schedule that lessens the need for direct parental contact.
[37] For the forgoing reasons, I find that it would be in the children’s best interest that both parents have week about access to the children, as set out in the disposition section below.
[38] I am not persuaded that a police enforcement clause is necessary at this juncture.
Sale of Matrimonial Home
[39] On July 5, 2019, Justice James granted the Mother temporary without prejudice exclusive possession of the matrimonial home under s.24 Family Law Act. In the same endorsement, Justice James indicated that the parties should be making efforts to list the house for sale. It is important to note that no order was made on this issue.
[40] The evidence before the court shows that initially, both parties agreed to list the house for sale. The Father’s evidence is that this was delayed on his behalf as the listing agent would have to disclose to potential buyers that the house could take longer to sell as it is part of the custody dispute.
[41] The Mother alleges that the Father declined to sign the listing agreement. Due to his delay, her plan to sell the matrimonial home and move over the summer could no longer work.
[42] Meanwhile, the Father alleges that the Mother is not cooperating with listing the house for sale. In support of same, he relies on text messages between the parties from on or about July 5, 2019 which indicate there was a potential buyer for the home. To this text, the Mother responds that the home was not in a condition to show, and she no longer thought a summer move was in the children’s best interest.
[43] Despite the initial agreement to list the home, the Mother now wishes to buy out the Father from his equity in the home, with no discount. Correspondence with this suggestion was sent on July 15, 2019 to the Father’s counsel. The Father has not accepted the Mother’s offer.
[44] The Mother believes the Father’s request for an immediate sale is malicious, oppressive and vexatious, and yet another example of insisting on his rights at the expense of the children.
[45] The Mother also indicates in her affidavit of October 23, 2019, that if the house is ordered sold, there in nothing currently on the market that she wishes to buy – so she would seek out rental accommodations and try to find a suitable house later. This would mean two moves for the girls.
[46] The court in McInnis v. McInnis, 2017 ONSC 3921 at paragraph 42 adopts the following statement by J. Mackinnon J. in Chaudry, [ [2012] ONSC 2149] at para. 21 in relation to judicial orders for sale prior to trial:
A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990), 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters, 1992 CanLII 8599 (ON SCDC), [1992] O.J. No. 1564, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, 2004 CanLII 34595, Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
[47] There is no question that both parents, as joint owners, have a prima facie right to sale. However, the test does not end there. This court is asked to make an order for the sale at an interim motion, prior to trial.
[48] I have considered Punit v. Punit, 2014 ONCA 252, where the Ontario Court of Appeal considered the issue regarding sale of the matrimonial home. While discussing the merits, the court makes specific reference to a child in those proceedings: “Only one teenage child would be disrupted by the sale”.
[49] In Fernandes v Darrigo, 2018 ONSC 1039, the Ontario Divisional Court considered what was in the child’s best interest in their determination regarding the sale of the matrimonial home. The court also goes on to state that orders directing the sale of the matrimonial home before the resolution of the Family Law Act claims should not be made as a matter of course: Fernandes v Darrigo, supra, at para. 21.
[50] I have considered the evidence before me. I note that trial dates are available on January 20, 2020 and May 2020. The Mother currently has an order for interim exclusive possession. The children continue to reside in the home during the Mother’s time with them. The children have been through enough flux in the last year that they should maintain the stability offered by the home until this issue can be determined at trial.
[51] The Father’s motion is dismissed. If for any reason the trial cannot proceed in the January 2020 or May 2020 sittings, then the Father has leave to revive his motion for sale of the matrimonial home.
Parenting Assessment
[52] On September 3, 2019, Justice James made an order requesting OCL appointment. OCL has declined the referral.
[53] The Mother proposes that Ms. Catherine Reid, a Registered Social Worker, be retained to provide an assessment for the court, pursuant to s.30 CLRA. Ms. Reid has agreed to be the assessor if ordered by the court.
[54] The Mother requests that the costs of the assessment that are not covered by the parties’ extended health care benefits be shared by the parties equally, subject to any reapportionment as may be ordered by the trial judge. The projected cost is, by my math, is approximately $10,000.00.
[55] While the Father has not filed any evidence responding to this request, the concern raised by his counsel is the cost and possible delay on a final resolution.
[56] The evidence shows that the assessment usually takes 40 to 50 hours to be completed, and a report can be completed within 90 days if there are no disclosure issues. Ms. Reid is available to start an investigation in short order.
[57] I find that in these circumstances, given the high level of conflict between the parties, the need for the court to make an ultimate determination that would be in the children’s best interest, the means of both parties, and the number of collaterals involved in this file, that a s.30 CLRA assessment is warranted and is so ordered. The costs shall be borne equally by the parties, subject to any available extended health benefits through their employment.
[58] The parties shall convey to Ms. Reid the December 20, 2019 Settlement Conference date. It is the court’s hope that the assessment can be completed by that time.
Disposition
[59] The children: Lily Carmichael, born April 14, 2010 and Leah Carmichael, born June 1st, 2015, shall be in the care of their parents as follows:
a. On a two-week rotation:
i. Commencing November 1, 2019, and every second week thereafter, the children shall be with their Mother from Friday after school, or 4:00 p.m. if there is no school, until the following Friday before school;
ii. Commencing November 8, 2019 and every second week thereafter, the children shall be with their Father from Friday after school, or 4:00 p.m. if there is no school, until the following Friday before school;
iii. Should the child(ren) be sick on Friday, the parent who has the child(ren) in their care that morning shall make arrangements for child care until the 4:00 p.m. exchange time;
b. Both parents shall ensure that the children attend their extracurricular activities;
c. Both parents are permitted FaceTime access to the children whenever the children are not in their care, once per day, at 5:00 p.m., or a time agreed by them in writing.
[60] The parents are directed to seek out the services of a parenting coordinator to assist them with their communication issues.
[61] The motion for sale of the matrimonial home is dismissed, without prejudice to the Father to revive the motion should the trial not proceed in the January 2020 or May 2020 sittings.
[62] Ms. Catherine Reid is appointed to assess and report to the court on the ability and willingness of the parties to satisfy the needs of the children of marriage, pursuant to s.30 of the CLRA. The cost of the assessment that are not covered by the parties’ extended health care benefits shall be shared equally by the parties, subject to reapportionment as may be ordered by the trial judge.
[63] The parties are to jointly complete the s.30 Assessment Endorsement Sheet as available in DivorceMate within 7 days. They shall then submit it electronically to trial coordination for my consideration. Should there be any issues in dispute in the Endorsement Sheet, no more than two pages of written submissions are to be sent to my attention. I will complete the Endorsement Sheet and deliberate on any contentious issues.
[64] This matter is adjourned to a Settlement Conference to be heard December 20, 2019 at 11:00 a.m. Trial Scheduling Endorsement Forms completed by both parties are required.
[65] This matter is hereby listed for trial to be heard during the January 20, 2020 running trial list.
[66] If the parties cannot otherwise agree on the issue of costs, they shall each provide, in electronic format, brief written submissions of no more than 3 pages, plus bill of costs, offers to settle and case law. Ms. Carmichael has 20 days from the release of this Judgment. Mr. Carmichael shall have 10 days thereafter to respond, and Ms. Carmichael has a further 5 days after the response is served to reply, if so required.
Justice Hélène C. Desormeau
Released: October 30, 2019
Carmichael v. Carmichael, 2019 ONSC 6313
COURT FILE NO.: FC-19/D-136
DATE: October 30, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
Jennifer Carmichael
– and –
Rodney James Carmichael
Ruling on motion
Justice Hélène C. Desormeau
Released: October 30, 2019