Court File and Parties
Court File No.: FS-20-15517 Date: 2020-04-27 Superior Court of Justice - Ontario
Re: L. B-M., Applicant And: M.M., Respondent
Before: Kiteley J.
Counsel: Ella L.J. Bernhard, for the Applicant Roslyn Tsao, for the Respondent
Heard: April 8, 2020
Endorsement on Parenting Issues
[1] On April 8, 2020 I heard submissions on a motion and cross-motion with respect to support and parenting. In an endorsement dated April 15, 2020 [2020 ONSC 2238], I dealt with the support issues. This endorsement is with respect to the parenting issues.
Background
[2] The parties married in June 2008. Their daughter B. was born in July 2009 (now almost 11 years) and their son R. was born in March 2011 (now 9 years). The parties separated on Sunday, January 12, 2020 when the Applicant left the matrimonial home. On Monday January 13, the Applicant returned to the matrimonial home while the Respondent was at work and she retrieved belongings and clothes for her and for the children. She picked up the children at the end of the school day.
[3] The children lived with the Applicant in temporary accommodation. The parents made visiting arrangements which the Respondent insisted were unsatisfactory. On February 6th, R. spent the overnight with his father and has remained with his father in the matrimonial home since then. As indicated below, one of the significant differences between the parents is how that came to be.
Legal Proceedings
A. Positions Taken by Applicant
[4] The Application was issued February 13, 2020, within a week of R. taking up residence with his father. In paragraph 50, the Applicant sought the following relief with respect to the children:
An order for interim and permanent sole custody of the children R. and B.
[5] In her urgent notice of motion, the Applicant asked for an order initializing the names of the parties and children to protect the children but did not ask for parenting orders.
[6] In her factum for the hearing on April 8, the Applicant took the position that the Respondent’s parenting motion was not “urgent” and ought to be dismissed. As an alternative, the Applicant would consent to a temporary order that can be enforced by the police, if necessary, which provides for an exchange of each child to the other parent for one dinner during the week and one over-night on weekends, on alternating Saturday nights for both children in the Applicant’s residence pending the s. 30 assessment or a further review by the Court.
[7] As directed, the Applicant had served a draft order prior to the hearing of the motion and cross-motion. As a result of submissions made, the Applicant forwarded a revised draft order in which she seeks the following:
The Respondent’s cross-motion for parenting terms is dismissed, without prejudice to the Respondent to renew his motion if circumstances change with respect to either child and/or the ability and willingness of the parties to satisfy the needs of the children.
B. Positions Taken by Respondent
[8] In paragraph 50 of his Answer dated April 2, 2020, the Respondent sought the following relief with respect to the children:
(a) Temporary and final joint decision-making for the children of the marriage . . with a mechanism for dispute resolution; (b) In the alternative, temporary and final sole decision-making for the children; (c) An order that the children reside primarily with the Respondent or, in the alternative, in an equal shared parenting arrangement with both parties.
[9] In his cross-motion and in his draft order, the Respondent sought the following temporary orders with respect to the children:
- The child R. shall reside primarily with the Respondent, subject to paragraphs 3 and 4 below.
- The child of the marriage, B. shall reside primarily with the Applicant, subject to paragraphs 3 and 4 below.
- Both children of the marriage shall reside with the Respondent from Friday at 4:00 p.m. until Saturday at 4:00 p.m., and with the Applicant from Saturday at 4:00 p.m. until Sunday at 4:00 p.m.
- R. shall reside with the Applicant on Tuesdays from 4:00 p.m. to 7:00 p.m. and B. shall reside with the Respondent during this same period.
- The Applicant shall hold identification documents for B. and the Respondent shall hold them for R.
[10] The anomaly is that: (a) the Applicant does not ask for an order with respect to B. and she opposes any order with respect to R. and (b) the Respondent asks for an order with respect to R. and is content that a similar order be made in favour of the Applicant with respect to B.
S. 30 Assessment
[11] Prior to the hearing of the motions, the parties had agreed to request a s. 30 assessment and they had agreed on the assessor, namely Dr. Shely Polak. In advance of the hearing of the motion, counsel forwarded the draft consent order that has been signed and returned to them. Counsel advised that Dr. Polak expected to begin in early April and, assuming all of the specified time commitments were met by the parents, the assessment report will be completed and delivered to the parties within 180 days.
[12] For purposes of hearing the Respondent’s parenting motion, it was assumed that the report would be available by the end of October. That meant that the status quo would persist until the end of 2020 and would include the resumption of school in September.
Is the Respondent’s parenting motion urgent?
[13] In paragraph 4 of the endorsement dated March 30, 2020 [2020 ONSC 1958], based on the material filed by the Applicant and the anticipated cross-motion by the Respondent, I concluded that the parenting issues were urgent. In her factum for the hearing of the support and parenting issues, the Applicant took the position that the Respondent’s cross-motion was not “urgent” within the meaning of the Notice to the Profession dated March 15, 2020. Having had the opportunity to review the Respondent’s Answer, affidavit sworn April 2, 2020 and the Applicant’s responding and reply affidavit sworn April 6, 2020, I remain of the view that the Respondent’s parenting motion is urgent because the children are not routinely seeing each other and not routinely seeing the other parent and the s. 30 assessment will not be available for 6 months.
Evidence
[14] In support of her emergency motion for child and spousal support, the Applicant filed an affidavit sworn March 26. She provided some information with respect to the children and what had occurred since January 12 but her focus was on the financial issues. Her counsel took the position that the Applicant had been cautious in what she had included in the material because of the sensitivity of the issues and she asked for an order initializing the style of cause to protect the children. I made that order on consent.
[15] In his responding affidavit sworn April 2, 2020, the Respondent attached 19 exhibits reflecting on both the financial and parenting issues. They included emails between the parties, emails between counsel, progress reports from the school and emails involving the school that both children attend.
[16] In her responding and reply affidavit sworn April 6, the Applicant provided Psychological Assessment Reports on each of the children prepared in October 2019, text messages between the parties, emails involving the school and letters between counsel.
[17] To say that the parties disagree is an understatement. These are a few examples of differences before the separation on January 12, 2020:
(a) The Applicant describes the Respondent, amongst other things, as abusive, controlling through financial and emotional restraints, belittling in the presence of the children, systematically demeaning her and making her feel worthless and encouraging the children to act in a like fashion, and he was a bully. (b) In paragraph 19 his April 2nd affidavit, the Respondent disputes that he controlled the Applicant financially or emotionally but does concede that he put some “financial arrangements in place” because the Applicant “spent excessively” and he is “more of a saver and wanted to preserve wealth”. In paragraph 20 he disputes the Applicant’s allegations about being insulted or verbally abused in the presence of the children. He stated: “To be clear, LBM and I have both been rude to each other but have consciously avoided doing so in front of the children”. At paragraph 25 he said that one of the biggest issues in the latter half of the marriage was the Applicant’s “constant yelling and screaming at the children”. (c) The Applicant takes the position that the Respondent insisted that she quit her job and stay home with the children. She says that he was jealous and possessive and concerned she would be unfaithful. The Respondent denies that and asserts that she remained at home after both children were born notwithstanding his insistence that she return to work particularly because they consistently had at least one nanny.
[18] Each of the parties has provided text or email exchanges between them before the separation (such as in December 2018) and in 2020. The text messages in Exhibit E to the Applicant’s April 6 affidavit do contain some support for the evidence of the Applicant, at least insofar as the Respondent’s ostensible acceptance of the Applicant’s description of his conduct toward her and his parenting. However, the extensive contradictory evidence means that I am not in a position to make findings on the many subjects on which they digress.
[19] That requires that I focus on less controversial evidence.
[20] First, for purposes of this motion, the roles each parent played in relation to parenting of the children before and after separation is important. Before separation, the Applicant describes herself as the primary parent attending to all of the children’s needs while the Respondent was often disinterested in assisting with the children, would chastise her in front of the children making it difficult to adhere to routines or healthy social activity, and would rudely refuse to assist with care of the children. She deposed that, at her insistence, the Respondent has been involved in counselling for almost a year to help him understand that the world is not “out to get him” and to assist him in appropriate parenting and to help him learn that people deserve respectful treatment. She said that the counselling had helped but not enough to enable the Respondent to be a full time capable caregiver.
[21] The Respondent provided little evidence of his involvement with the children prior to the separation. At paragraph 10 of his Answer, the Respondent acknowledged that the Applicant was the primary parent while he worked outside the home but he asserted that the Applicant’s “negative parenting style and ability may not be in the best interest of the children”.
[22] While they differ as to why she stayed at home, the fact is that she did. I am satisfied that, before separation, the Applicant was the primary parent.
[23] The evidence is that sometime after January 12, in addition to the nanny, the Respondent installed his mother, his sister (a retired ECE teacher and home day care assessor), 2 nephews and the girlfriend of one and a dog in the former matrimonial home. He refers to them as his “new family”. Other than that they provide support to him, he has provided no information as to how R. is cared for, and whether, in comparison to the Applicant home-schooling B., the Respondent is providing the kind of structured and disciplined home and educational environment that the Psychological Assessment Report indicates he requires. The inference I draw is that the Respondent has delegated to others the responsibility to care for R.
[24] Second there is uncontroverted evidence in the form of the Psychological Assessment Reports prepared on each child in the fall of 2019.
[25] Dr. Sharon Marcovitch provided a Psychological Assessment Report for B. dated October 2019. Dr. Marcovitch noted that a reason for the referral was that the “parents were particularly concerned about B.’s significant anxiety symptoms”. Dr. Marcovitch reported as follows:
B is an extremely bright, outgoing, and funny 10 year-old girl who presented with a General Ability Index within the Very Superior range (98th percentile). B.’s profile would likely meet criteria for a Gifted designation within the Toronto Board of Education. In addition, her profile also continues to suggest weaknesses with self-regulation, lack of focus, as well as impulse control issues, meeting diagnostic criteria of an Attention Deficit Hyperactivity Disorder – Combined Type. B’s challenges with impulsivity and self-control may be closely associated with some of her difficulty sustaining effort and exercising self-control that undermine her social interactions and lead to some behaviour challenges in general. In addition, at this time, her presentation is also consistent with a Generalized Anxiety Disorder (GAD), which is also causing some depressive symptoms as well.
[26] One of Dr. Marcovitch’s recommendations was that, given her anxiety symptoms and depressive symptomology, B would benefit from continued counselling.
[27] Dr. Marcovitch also prepared a Psychological Assessment Report for R. dated October 2019. She noted that the parents requested a full psychological assessment and that the parents had “specific concerns with R.’s anxiety”. Dr. Marcovitch reported as follows:
R. presented as a very bright, good-natured 8 year old boy who is just beginning Grade 3. The results of the present evaluation indicate that R. exhibits remarkable cognitive abilities, with a GAI in the Very Superior range that is consistent with an intellectually Gifted designation. He will benefit from an advanced curriculum in order to best develop his abilities. R.’s verbal and nonverbal reasoning abilities are very strong, pointing to success and aptitudes in all areas of the curriculum. His auditory working memory is weaker than his visual abilities, likely reflecting his weak central auditory processing. Similarly, his auditory attention and self-regulation are weaker than his visual abilities and he meets diagnostic criteria for a mild ADHD-Combined Type, which impacts his academic functioning, as well as his behaviour. . . .
His executive functioning abilities are relatively weak for initiation, task completion, organization, planning and cognitive flexibility. . . . from a socio-emotional perspective, R. is a good-natured, well-motivated boy with high self-esteem. He has difficulty interacting with peers, which may reflect a lack of shared interests with them, given his Giftedness, combined with his difficulty discerning speech from background noise. As well, R. has a number of other emotional concerns, such as sadness and defiance, that should be addressed. Overall, R. will benefit from an enriched yet supportive learning environment in order to best promote his overall development.
[28] In her recommendations, Dr. Marcovitch paid particular attention to those that would address R.’s attention difficulties.
[29] The essence of these reports in October 2019 is that both children showed remarkable skills although both require considerable attention and parental oversight to strategies by which their weaknesses can be improved.
[30] Third, is the school reports. For R. there is a Progress Report dated October 15, 2019 that indicated that he was “making progress as expected” or “making exceptional progress”. In his Report Card dated November 25, 2019, he showed a “high degree of success” or a “considerable degree of success”. In his Report Card dated February 27, 2020, he shows “a high degree of success” or “a considerable degree of success”. In an email to the parents dated March 2, 2020, R.’s behaviour was described in glowing and positive terms. The school records reflect consistent positive performance.
[31] In her October 15, 2019 Progress Report, B. it was reported that B. was “making exceptional progress”. In the Report Card dated November 25, 2019 it was reported that B. demonstrated a “high degree of success”. The same was reflected in her February 27 Report Card. However, each of the parents attached copies of emails between and among the educators and the parents including: emails dated February 4, February 19, February 28, March 2 and March 3. Without identifying the specific content, suffice it to say that B. has demonstrated worrisome behaviours that affected her and other students. The latter emails include reference to instruction in “out of school” context suggesting that it was possible that B. would be withdrawn from the classroom. The evidence of the Applicant is that she is home-schooling B. It is not known whether that started when schools were closed or the move away from the classroom had been initiated before that happened. Suffice it to say that while B.’s Report Cards indicate success in her academics, she was demonstrated negative behaviours.
[32] The Respondent takes the position that because R.’s academic performance and behaviour have been constant and positive but B.’s behaviour has deteriorated, that that reflects positively on his parenting and negatively on the Applicant’s parenting. I do not agree. The Psychological Assessment Reports show that B.’s anxiety and depressive tendencies were more pronounced than R.’s. The more logical inference is that she has been significantly impacted by the conflict between her parents and the enormous change in her family circumstances.
Analysis
[33] Both counsel made submissions on the assumption that the amendments to the Divorce Act that take effect July 1, 2020 ought to be applied.
[34] The motion by the Respondent raises these issues on a temporary basis pending the s. 30 assessment report:
(a) should the court make a temporary order that R. reside primarily with his father? (b) should the court make a temporary order that B. reside primarily with her mother? (c) what opportunities should R. have to be with his mother and B. have to be with her father? (d) what opportunities should R. and B. have to be together?
[35] As indicated above, the circumstances under which R. came to live with his father have had an impact. The Applicant insists that on February 6, the Respondent “took” R. away from her while the Respondent asserts that R. asked his mother if he could stay overnight and she acquiesced. On the contradictory evidence on an important issue, on this motion for a temporary order, I am not prepared to make a finding one way or the other. However, even on the Respondent’s evidence, the Applicant acquiesced in that overnight, not in a change of residence.
[36] After January 13, the parents directly negotiated visiting which the Respondent considered unsatisfactory. Since February 6, the lawyers have taken the lead in negotiating visiting. The parties agreed to have a s. 30 assessment due to start in April and agreed in March that they would engage in triage mediation while awaiting the assessment but that did not happen. The unfortunate consequence of the February 6 event was that the Applicant’s version informs her lack of trust in the Respondent, her concern that if B. visits with her father that her father will not return her, her report of B.’s anxiety about seeing her father and her brother that her father will not let her go back to her mother. Based on the two interactions between the Applicant and R. after February 6 the Applicant is also firmly of the view that the Respondent has alienated R. against his mother and provoked R. to demonstrate bad behaviour towards his mother. The communications include suggestions that each parent have a visit with one child so as to leverage the return of that child at the end of the visit. The Applicant has been clear that she sees no prospect of facilitating B. seeing her father without a court order, enforceable by the police, that B. will be returned to her. The communications in March reflect a stand-off and, as a result, the children have not seen each other since March 6.
[37] The Applicant’s lack of trust may be justified if her version of what happened on February 6 is accurate, if the Applicant’s evidence about R.’s behaviour towards her is accurate, (which the Respondent does not seriously challenge), and if the Applicant’s evidence about the Respondent’s behaviour towards her in their relationship is accurate, (which may be supported by the text communications referred to in paragraph 18 above).
[38] While I consider this to be an urgent matter that demands the court’s attention, I am compelled to the conclusion that none of the orders listed in paragraph 34 should be made for these reasons.
[39] First, I have no sense of what is going on in the Respondent’s household and whether, as the Applicant suggests, the Respondent and his family are encouraging R. in his negative behaviour towards his mother. I have no evidence as to what would happen if B. did go to the former matrimonial home to see her father, and how his family members, some of whom (particularly his mother and sister) are in conflict with the Applicant, would treat B. Based on the uncontradicted evidence as to B.’s anxiety, I accept and rely on the Applicant’s evidence that to order B. to visit with her father in the former matrimonial home will not be in her best interests.
[40] Second, the most recent interaction between R. and B. at the school as described in the February 19 email suggests considerable conflict between the siblings. As described by R. to the educator who authored the email, it was provoked by B. Whether B. provoked or attacked R. or R. provoked or attacked B. does not really matter. The fact is that the event indicates significant conflict between an almost 11 year old and a 9 year old. I do not have evidence on which I could fashion a schedule for inter-sibling visits that would respond to their needs.
[41] Third, the Applicant is not asking for a parenting order with respect to B. and is opposed to a parenting order with respect to R. I have considered making a parenting order in favour of the Applicant with respect to B. and a parenting order in favour of the Respondent with respect to R. so that the “playing field” would be level in the sense that each parent would have the leverage of a parenting order to ensure the return of the child at the end of a visit. That is not an appropriate reason for making a parenting order. Furthermore, I would not make a parenting order in favour of a parent who does not seek it. And I would not make a parenting order only in favour of the other parent because that would suggest a legitimacy to that parenting regime that is not available on this record.
[42] Fourth, but for COVID-19, this is a situation in which it would be reasonable to start incremental sibling visiting in the community, not in the home of either parent. But that is not possible. Under current circumstances, there is no flexibility to establish visiting arrangements other than in the Respondent’s home where there are now at least 5 adults other than the Respondent.
[43] Fifth, as much as this is an urgent situation that requires an urgent response, this is a case where it is not possible for the court to conclude that a specific order is in the best interests of the child or children.
[44] That means that the parents have to accept the responsibility to find an alternative that works best for their children. In the endorsement dated April 15, 2020, I addressed the temporary financial issues so the conflict around those issues is at least temporarily resolved. In this endorsement I address the temporary parenting issues without making an order. The parents ought not to await the conclusion of the s. 30 assessment. They earlier considered triage mediation that would give rise to an interim parent/child and child/child visiting arrangement. I urge them to reconsider that avenue. The children are not in school. At this point, it is not possible to reliably predict whether the children will return to school before the end of the year. This is an important interval when the parents should be planning on how the children can benefit from the interruption of classes, not fall behind. Furthermore, decisions as to what school the children will attend in the fall may need to be made before the end of June. Neither parent has the authority to register the children in a school. The parents have to communicate to make those decisions and they cannot wait until the s.30 assessment is finished which will be well into the next academic year.
Conclusion
[45] As the Psychological Assessment Reports show, B. and R. are gifted and have exceptional talents. The parents need to find a way to preserve and develop their gifts and talents. The status quo is not in the best interests of either child. Neither has a relationship with the other parent or with their sibling. That is a tragedy.
[46] But this is a case where the court cannot be expected to have solutions.
Next Steps
[47] As indicated in paragraph 33 of the support endorsement dated April 15, 2020, the parties must attend a case conference. In her urgent notice of motion, the Applicant had asked for disclosure of documents and information and in his responding material, the Respondent also asked for disclosure. I did not consider those disclosure issues urgent and I did not hear submissions nor make an order. The issues reflected in the Application and in the Answer and in their respective form 13.1 financial statements inform the extensive disclosure that is required on the financial issues and on the parenting issues. I expect that each party will promptly and comprehensively respond to requests for information so as to make the case conference productive. While the Respondent reflects considerable property, on my brief review of it, it does not give rise to the need for expert valuation reports. If the parties comply with disclosure obligations, there is a possibility that considerable progress could be made on the equalization of net family property at a case conference. Furthermore, as indicated in paragraph 33 of the endorsement dated April 15, the issue of s. 7 expenses will be considered at the case conference.
[48] Since the parties have agreed to a s. 30 assessment, there is no point in requiring a case conference on parenting issues at this time.
[49] I urge the parties to resolve the issue of costs of the Applicant’s motion for child and spousal support and the Respondent’s motion for a parenting order. On the face of it, the Applicant was successful on both and therefore is presumed entitled to costs. However, there may have been offers to settle that bear on the issue. If the parties are unable to agree, they will make submissions on the schedule below.
Order
[50] The motion by the Respondent for a parenting order is dismissed.
[51] As contemplated by paragraph 33 of the endorsement dated April 15, the parties shall attend a case conference on financial issues, including s. 7 expenses, for two hours, before me if I am available. Counsel shall collaborate to contact the Trial Co-ordinator to arrange the date. Depending on when the date is arranged, it will be held remotely or in person.
[52] The parties shall attend a case conference, or if possible a settlement conference on parenting issues, as soon as the s. 30 assessment report is available.
[53] Before the conclusion of the case conference on financial issues, neither party may bring any motion on financial issues. Before the conclusion of the case/settlement conference on parenting issues, without leave of the court, neither party may bring any motion on parenting issues.
[54] If by May 4, 2020 the parties have not resolved costs of the motion and cross-motion, then they shall make written submissions not exceeding 5 pages plus costs outline and offer(s) to settle on this schedule:
(a) Applicant by May 11, 2020; (b) Respondent by May 19, 2020; (c) Applicant Reply by May 26, 2020.