Court File and Parties

COURT FILE NO.: D337/19 DATE: 2020-05-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Caroline Roy, Applicant AND: Jesse Leroy Roy, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Patricia Lucas for the Applicant; Paul Bauerle for the Respondent

HEARD: In Writing

Endorsement

[1] In this divorce proceeding, the Applicant moves in writing for a temporary order for the Respondent to return the children (two boys aged 8 and 3) to her and to re-establish their primary residence with her. Maddalena J. gave leave for the motion to be heard before the case conference. The Respondent submits that the boys should reside with him, with access to the Applicant supervised by him in his residence.

[2] The parties separated in June 2019. In November 2019 they executed a separation agreement in which they agreed on joint custody of their two children with equal residence time. The agreement did not set out a timetable, but the routine was for the Respondent to have the children on alternate weekends from Friday evening to Wednesday morning, and visits on Monday and Wednesday evenings in the off week. The Applicant wants to resume that arrangement. The Respondent wants custody of the children, with access to the Applicant restricted to three times a week in his home under his supervision.

[3] The children are with the Respondent now. He wrote the Applicant on March 9, 2020 to tell her that he would be keeping the children until the Applicant deals with her alcohol and boyfriend problems. FACS reported by letter dated April 30, 2020 that they had "verified protection concerns regarding domestic violence with Ms Roy and her current partner, as well as post-separation conflict. The matter has been transferred to ongoing services. The Society does not take a position regarding custody and access to Ms Roy's children." The parties have requested the CAS records. Those records will not be available for several weeks.

[4] Since then the Applicant has seen the children three times in March and again on Mother’s Day either in the Respondent's home or his mother's home. She has had video visits as well.

[5] The older boy does not seem to want to visit or speak to his mother.

[6] Apart from that the facts are contested.

[7] In addition to his own affidavit, the Respondent has filed the affidavits of his mother, his employer, an employee of his father and some friends. The Applicant has filed her own affidavit and the affidavits of several friends.

[8] The Respondent's concerns about the Applicant's alleged alcohol and mental health problems pre-date the separation agreement. If they were not enough to keep him from signing the separation agreement, I am not going to worry about them. He says, however, that the Applicant's partner, Mark Korolenchuk, was the author of domestic violence against the Applicant. In support he offers utterances allegedly made by the Applicant to friends, and sightings of Korolenchuk at the Applicant's residence after March 8, when the Applicant says she terminated the relationship. The Applicant says that she terminated the relationship because it was causing conflict with the Respondent and she did not want to risk losing her boys. Korolenchuk never assaulted her. Her brother contradicts one of the Respondent's affiants about the circumstances of Korolenchuk leaving the residence. He also contradicts the Respondent's affiants by saying that the mirror that the Applicant was pushed into, and allegedly broke, is still intact and present in the Applicant's home.

[9] In sum, the Respondent says that the Applicant has acted irresponsibly in choosing a partner to whom the boys are exposed, while the Applicant says that the Respondent is jealous and controlling, to the point of stalking. Both are arguable at this point.

[10] The Applicant would agree to an order that she have no contact with Mark Korolenchuk. That seems like a sensible solution in the short term.

Orders

[11] I order:

a. The children will reside with the parties more or less equally.

b. The Respondent will return the children to the Applicant forthwith.

c. The children will reside with the Respondent on alternate weekends from Friday to Wednesday, commencing June 5, 2020, at 5:30 p.m., until June 10, 2020 at 8:30 a.m. and alternate Mondays and Wednesdays from 5:30 p.m. to 8:30 p.m. commencing June 15, and June 17, 2020, respectively.

d. The Applicant will not permit any contact between the children and Mark Korolenchuk.

e. The Office of the Children's Lawyer is invited to participate.

f. This order may be reviewed on motion after the case conference.

g. Costs of this motion are reserved to the trial judge.