Fleming v. Wright, 2020 ONSC 1411

Court File and Parties

Court File No.: FC-555-19 Date: 2020-03-04 Superior Court of Justice - Ontario

Re: Montana Fleming, Applicant And: Codey-Lee Wright, Respondent

Before: The Honourable Madam Justice D. Piccoli

Counsel: Alex Toolsie, for the Applicant Vanessa Frey, for the Respondent

Endorsement

The applicant “Mother” and respondent “Father” in this case are the parents of one child, Dallas-Lynn, born June 9, 2016, (“the child”).

1The motion brought by the Mother was heard by me on February 12, 2020.

2The notice of motion can be found at Volume 1, Tab 11, of the continuing record. The Mother sought various forms of relief in reference to parenting.

3At the commencement of the motion I was told that the parties had agreed to paragraph 4 as it pertained to contact, paragraph 5 as it pertained to notarized copies of the child’s health card, and paragraph 6 as it pertained to holidays, save and except the summer.

4During reply submissions the parties were also able to agree with respect to summer periods of care. Accordingly, all holiday periods of care were resolved by the parties on consent on a temporary basis.

5The Mother raised allegations in her Reply affidavit of February 5, 2020, to which the Father’s lawyer objected given that he has not been able to respond. Those allegations are not properly before me as they should have been in her affidavit that accompanied the notice of motion so that the Father had an opportunity to respond.

6The issues I was asked to decide are set out in paragraphs 1-3 of the Mother’s notice of motion and are as follows:

1. Whether the parties should share residency of the child.
2. Whether the child should reside equally with the parents on a week about basis with the exchange to take place on Sundays at 5:00 p.m.
3. Whether the exchange location for the child should be in Guelph at 8376 Wellington Road, 124 at XTR Brucedale gas station.

7At the end of the motion I set the matter to a settlement conference on Friday, March 13, 2020 at noon.

8This matter needs to be moved forward to trial if the parties cannot resolve the issues.

Brief Background

9The parties started living together in or around August 2015, and separated in or about June 8, 2018.

10The child was born June 9, 2016.

11The Mother has another child named Hailey, who will soon be seven (7) years of age.

12From June 2018, to October 2018, the parties attempted a week about schedule. The Father states that even during this period of time the Mother did not have the child in her care for one full week.

13The Father contends that sometime in October 2018, the Mother contacted him and the Father of Hailey to advise that she was giving up full-time care of the children as she was trying to better herself.

14The Mother states that in October 2018, she made a verbal agreement with the Father that the child would temporarily remain in his care until she secured a job, permanent residence and a vehicle to create a stable environment. She states that the intention of the parties was that once she accomplished these things the child was to be returned to her primary care.

15The Father disputes that the parties had a verbal agreement that the child would be returned to the Mother’s primary care. His position is that he would never have acceded primary residence to the Mother given his concerns about her parenting. He asserts that what the parties agreed to was that when the Mother became more stable with housing and a job, he would be open to more parenting time.

16Both parents allege that they were the primary caregivers of the child since she was born. I decline to make that finding at this stage given the lack of evidence before me with respect to the issue.

17The child has been in the Father’s primary care since at least October 2018.

18The child is in the care of her Mother generally speaking on alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. and some other times when the parties agree. It is clear the parties have often not been able to agree and accordingly a set schedule is required.

19There is no interim order in place even though the separation occurred over one and a half years ago.

20The parties both agree that the paternal grandmother and less often the paternal great-grandmother have cared for the child when they were both working.

21The Mother’s position is that shared residency is appropriate now because:

1. That is what the parties agreed to verbally.
2. She has attained stability.
3. It will allow the 2 sisters to spend more time together and build a stronger relationship as they once had.
4. The Father delegates his parenting responsibilities to the paternal grandmother and the Mother does not believe the paternal grandmother to be an appropriate caregiver.
5. Her plan will ensure that the child’s medical needs are met.
6. Her plan will allow the child to be in daycare and learn to socialize and have positive interactions with children in preparation for Kindergarten in the fall during the Mother’s weeks.

22The Father’s position is that the child should remain in his primary care because:

1. He and his Mother have been the child’s primary caregivers since birth.
2. A status quo and established routine have been in place since at least separation.
3. The Mother has been historically unstable and continues to be unstable.
4. The Mother’s plan would require drastic changes for the child now and again when she starts school.
5. The Mother has difficulty “handling” the child and has “meltdowns”.
6. The Mother has a history of mental health issues.
7. The Mother inappropriately medicates the child with melatonin to get her to sleep.
8. The distance between the parents’ homes – a distance created by the Mother – makes shared residency unworkable.
9. He has been active in fostering a relationship between the child and her sister Hailey and will continue to do so.

Verbal Agreement

23Given the dispute between the parties I make no finding in terms of a verbal agreement. It will be left to the trial judge to decide the issue and the relevance of the issue.

The Sibling Relationship

24The child has a sister, Hailey.

25The Mother currently has primary residence of Hailey.

26For the period of time from October 2018, to August 2019, Hailey lived with her biological father, Chris. The Father deposes that although Chris wanted Hailey to continue to reside primarily with him, he was subject to an order that predated October 2018 and had to return Hailey to the Mother’s care in September 2019.

27Chris resides approximately 10 minutes from the Father’s home.

28The Father and Chris get along and have arranged for Hailey and the child to spend time together. The Father states that “while Hailey was living with Chris, Hailey and Dallas often spent time together.” He and Chris have open communication.

29The Father stated that the Mother often drops Hailey off at his house when she drops off the child.

30The Mother in her affidavit of February 5, 2020, states, “I have left both children with the Respondent to allow the girls maximum time together. Unfortunately, I no longer feel comfortable leaving Hailey with the Respondent because he uses it against me.” This statement is concerning to me as it is not child focused. I encourage the Mother to reconsider this statement and her position on this issue.

31It is clear that the Father makes an effort for the child to spend time with her sister and believes the sibling relationship to be important.

Stability and Plan

32The Father has resided in the same home since November 2014 and the child has resided in that home since birth with the Father, the paternal grandmother and until the separation the Mother also resided there.

33The longest time the child has spent out of the Father’s care since the separation is 7 days in a row when the Mother had extended periods of summer care.

34The Father works from Monday to Thursday 7:30 a.m. to 4:00 p.m. and on Friday from 7:30 a.m. to 3:30 p.m.

35The Mother has, since September 4, 2019, held a full-time job with Tim Hortons. I was advised during oral submissions that she works Monday to Friday from 8:00 a.m. to 2:00 p.m.

36Since the parties’ separation in 2018, the Father states that the Mother has lived in seven (7) different locations:

(a) from June 8, 2018, to the first week of July 2018, she lived with Amy in Cambridge; (b) for a few weeks thereafter she resided with Dani Marie Meyers (“Dani”) and Matt Schroth (“Matt”) in New Hamburg; (c) thereafter she started dating a man named Tim and lived with him in Stratford for a week or so; (d) shortly thereafter or in around the same time she started dating a man named Joel from Hamilton and within a few weeks of dating she started living between his residence and Dani and Matt’s residence in New Hamburg; (e) in October 2018 she moved to Simcoe, Ontario to live with her boyfriend Josh; (f) in around January 2019 she moved back to New Hamburg to live with Dani and Matt; (g) in January 2019 she started dating Richard from Woodstock and moved into his home – she only lived there for one week and then moved back in with Dani and Matt; (h) in around January 2019 she met Darryl and moved in with him, first in Barrie and now in Keswick.

37The Mother’s response to the Father’s assertion of multiple boyfriends is that it is irrelevant and that it has no merit to the proceedings. I disagree. The number of times that the Mother has moved and the reasons for the move relate to stability. The Mother should have responded directly to the statements by the Father made at paragraphs 11 to 20 of his affidavit dated January 31, 2020. As she did not, I accept the Father’s evidence.

38The Mother’s plan is such that during her week of care the child would attend subsidized daycare. She believes this will allow the child to learn better socialization skills.

39In oral submissions, the Mother’s counsel indicated that it is the Mother’s intention to seek week about parenting now and, when the child starts school in September 2020, for the child to reside with her and go to school in Keswick.

40The Father’s plan is for the child to remain primarily with him and his mother and that commencing September 2020, she will attend Grandview Public School which is three blocks from his residence. The child has a significant connection to Cambridge, Ontario. She has resided in Cambridge her whole life in the same residence. All of her extended family live in Cambridge, the Father’s family within 10 minutes of his home, and the Mother’s family live less than fifteen minutes from the Father’s home.

41The only connection to Keswick, Ontario, is the Mother’s residence in Keswick since approximately January 2019.

42I agree with the Father that changing the child’s routine at this time to a week-about schedule and then potentially changing it again in September 2020 is not in the child’s best interests. This matter should be tried before the school year if not resolved so that residency on a final basis can be resolved.

Father’s Allegations of the Mother’s Mental Health Issues and Suicide Attempt

43The Father describes a history of mental health issues and a suicide attempt by the Mother, the Mother denies this.

44The Mother admits to monthly mental breakdowns when she was with the Father and blames their abusive relationship. She states that since she ended the relationship the meltdowns have ceased.

45I am unable, on the conflicting affidavit evidence before the court, to make findings regarding the Mother’s mental health at this time, nor is that necessary for this interim determination.

Mother’s Allegations of Aggression

46In paragraph 9 of her January 20, 2020, affidavit, the Mother states: “I removed myself from the negative environment created by the respondent’s and my turbulent relationship and relocated to Keswick, Ontario.” In her reply affidavit she states that the Respondent was becoming increasingly aggressive and outlines further detail in paragraphs 5-9. These details should have been in her original affidavit so that the Father could properly respond.

47Accordingly, I cannot make any findings with respect to the alleged aggression, physical or emotional abuse. That matter will have to be fully explored at the trial.

Paternal Grandmother

48The Mother, in her affidavit of January 20, 2020, makes allegations about the Respondent and his mother smoking cigarettes and marijuana, that the home is unhygienic, and that when the child attends her residence the child has a strong lingering odour. Although this is denied by the father, I have no difficulty making an order that neither parent smoke cigarettes or marijuana in the home while the child is in his or her care. Miles v. LeClair, 2002 CarswellOnt 3362, [2002] O.J. No. 3976, 117 A.C.W.S. (3d) 436, 219 D.L.R. (4th) 361

49The Mother, in her February 5, 2020 affidavit, admits that she wants the paternal grandmother and child to continue to have a relationship but asserts she should be the primary caregiver.

50The Mother takes issue with the paternal grandmother, and in her Reply Affidavit, paragraphs 7, 8, 9, and 10, raises new issues which are not properly part of reply, nor is there any evidence to substantiate her claims. The Father sought to respond in oral submission but that was not appropriate. Accordingly, I have not taken these allegations into account in my decision.

51I find it disingenuous for the Mother to take a position to disparage the paternal grandmother at this time as she freely, and willingly, left the child in the paternal grandmother’s care since birth for extended periods of time both during the relationship and following separation.

52The paternal grandmother has played a significant role in the child’s life and when both parents were working, she had primary care of the child.

Dental Concerns

53The Mother raised concerns regarding the child’s cavities. She blames the Father.

54The Father describes the child’s dental health hygiene when in his care in detail. He describes the child’s past dental history in detail. He, to some extent, blames the Mother.

55I asked if there was anything prohibiting the Mother from taking the child to the dentist and I was advised that there was not.

56I agree that the child needs dental attention: see picture found at Exhibit A, attached to the Mother’s affidavit of January 20, 2020. I am not prepared at this interim stage to lay blame on either parent. It is important for the child to attend to have the checkup and cleaning that both parents have referred to, and that must be done forthwith. I understand that that will be done by Smile Town in Waterloo, Ontario.

Other

57The parents each complain about the child being tired and groggy. It is clear that the child needs a regular routine in both parents’ homes. I expect the parents to immediately exchange information about her routine in each of their homes and to come to a consensus about the appropriate routine for the child, which would include bed times.

Exchange of the Child

58The Mother chose to relocate to Keswick, Ontario in or about January 2019.

59The drive time between the parents’ residences is approximately 1.5 hours to 2 hours depending on the weather.

60The Father provided information to the court by way of Google Maps that the pick-up location in Guelph is approximately the same distance as driving to his home in Cambridge. The Mother did not dispute this. She also did not seek an exchange location that is the midway point.

61Accordingly, I dismiss paragraph 3 of the Mother’s notice of motion.

The Law

62Both parties relied upon the decision of the Honourable Justice Chappel in Batsinda v. Batsinda, 2013 ONSC 7869.

63Justice Chappel states the following, at page 18:

In a number of cases, this court has held that as a general rule, changes to existing custody, residence and access arrangements that have evolved either as a result of temporary orders or otherwise should not be made pending trial unless there are compelling circumstances which render a change absolutely necessary in order to satisfy the child’s best interests.

64Justice Chappel also relied upon the Ontario Court of Appeal decision in Papp v. Papp (1969), [1970] 1 O.R. 331 (C.A.), respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. Justice Chappel noted how, as a working rule, the Court of Appeal held that “a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial”: at p. 18. Justice Chappel went on to state that, at p. 19:

[T]he applicable test remains the best interests of the child. In applying the test there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude and strength of the evidence produced in support of the change in status quo arrangements and to ensure that the evidence is sufficiently compelling before acting upon the evidence to vary existing arrangements.

65She further states, at p. 19:

In determining the issue of whether the status quo respecting decision-making and time sharing 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 time sharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation.

66This is not a situation where the Father unreasonably created a situation to create a tactical advantage. The Mother willingly left the child in the Father’s care in order to stabilize her life. It appears that she is moving in the right direction in terms of stabilizing her life.

67At this interim stage in the proceedings I do not believe it is this child’s best interests to significantly alter the status quo. I do believe though, having regard to the maximum contact principle and the fact that there is another sibling, that the child should be in the Mother’s care for more time than she currently is, and that a set schedule is required.

Conclusion

68Currently, I cannot find that it is in the child’s best interests to divide her time between two households on a week-about basis.

69It is not appropriate for the child to potentially be moved twice.

70This matter needs to move forward to trial and my comments on this issue are not to be taken as any pre-judgment of the issues. It will be up to the trial judge to decide the residency arrangement for the child.

71In reaching this decision, I have relied on both the maximum contact principle and the best interests test as set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

72In this case I find:

1. That neither parent questions the bonds each has with the child. They both have love, affection and emotional ties between the child and themselves. The paternal grandmother additionally has a strong bond and love, affection and emotional ties between her and the child. The child should be allowed to continue to bond with her sister Hailey.
2. I find that the Father has provided more stability in terms of residency. I find that the Father’s plan to continue to reside in Cambridge and attend school where the child has resided her entire life is the preferable plan at this point in time. The Mother’s move to Keswick has made shared parenting extremely difficult, particularly when a child is about to start school. I am not prepared to have a child move potentially twice in a very short period of time. The Father has shown permanency and stability. However, it does appear that the Mother’s life has become more stable since on or about April 2019 as she has been in a stable relationship since that time and since September 2019 has been employed full-time in the same job.
3. There is no information before the court with respect to the child’s views and preferences.
4. I believe each person has the ability to act as a parent and they each are able to provide the child with guidance and education and the necessities of life.
5. There was no evidence that establishes that the child’s needs are not being met and that she is not doing well in her Father’s care.

73I make the following temporary order:

(a) The child’s primary residence shall remain with the respondent, Codey-Lee Wright. (b) Commencing immediately, the child shall be in the care of the Mother one overnight during the week to start at approximately 4:00 p.m. The child shall be returned to the Father the following day at approximately 5:00 p.m. If the parties cannot agree on the day then they may return before me. (c) Commencing immediately, the Mother shall also have the child in her care on alternate weekends from Friday at 4:00 p.m. until Monday at 6:00 p.m. The weekend period of care shall coincide with the weekends that the Mother has Hailey in her care. (d) The Mother shall be responsible to pick up and deliver the child from the Father’s residence. (e) On consent, the Mother and the Father may contact the child by telephone on a once daily basis. The child may contact the Mother or the Father by telephone when she wishes. (f) On consent, the Father will provide the Mother with a notarized copy of the child’s health card within two weeks of the date of this order. (g) On consent, the Mother and the Father shall equally share all vacations and holidays pursuant to the holiday schedule set out below, which will override the regular residence schedule in the event of conflict: (i) Family Day Weekend: The child will reside with the Mother on Family Day weekend in even-numbered years and with the Father in odd-numbered years from Friday evening until Monday evening. (ii) March Break: The child will reside with the Father during March Break in odd-numbered years and with the Mother in even-numbered years from Friday until the second Sunday. (iii) Easter Weekend: The child will reside with the Mother on Easter weekend in odd-numbered years and with the Father in even-numbered years, from Thursday until Monday evening. (iv) Mother’s Day: If the child is not otherwise with the Mother on this weekend, the child will reside the Mother on Mother’s Day weekend from Saturday evening until Sunday evening. (v) Father’s Day: If the child is not otherwise with the Father on this weekend, the child will reside with the Father on Father’s Day weekend from Saturday evening until Sunday evening. (vi) Thanksgiving Weekend: The child will reside with the Mother on Thanksgiving weekend in odd-numbered years and with the Father in even-numbered years, from Friday evening until Monday evening. (vii) Christmas Break: The parties will follow the regular residence schedule during the Christmas Break. (viii) Christmas Eve/Morning and Christmas Day: The child will reside with the Mother from 12:00 p.m. December 24th until 4:00 p.m. December 25th and with the Father from 4:00 p.m. December 25th until 6:00 p.m. December 26th in odd-numbered years and with the Father from 12:00 p.m. December 24th until 4:00 p.m. December 25th and with the Mother from 4:00 p.m. December 25th until 6:00 p.m. December 26th in even-numbered years. (ix) Child’s Birthday: The child shall spend her birthday in accordance with the regular schedule. (x) Summer: The child shall reside with each of her Mother and Father on a week about basis during the summer months. The week about schedule shall commence the last Sunday in June at 4:00 p.m. to the following Sunday at 4:00 p.m. The alternate week about arrangement will end the last Sunday in August at which point the regular schedule will resume. (h) The child must have regular check-ups and cleanings with the dentist. (i) Both parties are prohibited from smoking cigarettes and marihuana in their respective homes when the child is in his or her care and must ensure that third parties are also prohibited from smoking cigarettes and marihuana in their respective homes when the child is in their care.

74If the parties cannot agree on costs, the applicant shall provide written submissions on costs within 14 days. The respondent has 14 days to respond. The submissions shall not exceed four pages in length, not including offers to settle or bill of costs. There shall be no extension to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines there shall be no costs payable to that party.

D. Piccoli J.