Court File and Parties

Court File No.: FC-20-699

Superior Court of Justice – Ontario

Re: Joy Baron, Applicant And: Cat Baron, Respondent

Before: Master Kaufman

Counsel: Blake R. Lyngseth, for the Applicant Erin Lepine, for the Respondent

Heard: In writing

Endorsement

[1] The applicant, Joy Baron (“Joy”), requests that the Court hear her motion on an urgent basis. It is for an Order that the parties resume the parenting schedule set-out in their separation agreement. Joy has not seen her children since May 8, 2020 and claims that the respondent, Cat Baron “Cat” is withholding the children and alienating them from her. There is another side to the story.

[2] The parties commenced a same sex relationship in July 2000. They were married in 2007 and they separated in October 2017. Joy is the birth mother of the parties’ two children: Katie, who is 11 and Nik, who is 9. In February 2018, the parties entered into a separation agreement pursuant to which the parties would share parenting of Katie and Nik on an equal basis (2-2-3 residential schedule).

Joy’s new relationship with Raphael

[3] In February of this year, Joy started a relationship with Raphael. She introduced him to the children in March 2020, and Raphael started spending most of his time at Joy’s home beginning in April 2020 to limit the “amount of back and forth”. He still maintains his own residence.

[4] The issues that have arisen in this case coincide with the introduction of Joy’s new partner into the children’s lives.

[5] According to Cat, Katie called her on February 23, 2020 to complain that Joy was arguing with a man on the phone all weekend and was not tending to her and Nik. Cat believes that Joy did not sufficiently prepare the children for this new relationship. Joy allegedly introduced Raphael to the children on March 2, 2020 when she came to Cat’s house with him to pick them up for her parenting time. To Cat’s knowledge, Joy had not discussed her new relationship with the children beforehand. Joy denies this and says the children knew she was dating and were told about him the previous day.

[6] Cat also says that Katie asked Joy not to include Raphael in her birthday celebration, but that Joy invited him nonetheless, and that he spent the night at Joy’s house. Joy denies this allegation as well and insists that Raphael was not present for Katie’s birthday celebration.

[7] The children also allegedly complained to Katie that they were forced to either come along to drive Raphael home some evenings, or were left home alone while Joy drove him home. They also allegedly complained that they are neglected while Joy and Raphael argued, or while they locked themselves in Joy’s room, that Raphael made fun of Nik for crying, that they have been sent to their rooms for extended time outs for such things as not eating dinner.

[8] On the morning of May 2, 2020, Cat received several text messages Katie had sent the night before at 11:30 p.m. The text messages read: “Mama”; “Mama”; “Nik is trying to talk to you”; “Mama”; “Mama’; “Mama”; “Nik is trying to talk to you”; “Mama”; “Mama”. The next morning Katie told Cat that Nik was crying and was mad at Joy and Raphael. Katie asked to return to Cat’s house, but Cat encouraged her to do her best and get through the day. Katie texted that she hated Joy’s house, that Joy was being mean, that she hated her and “treated her like a stupid piece of trash”. Cat encouraged Katie to speak to Joy about how she felt.

[9] Later in the evening of May 2, 2020, Katie texted Cat to say that Nik was having “bad anxiety”. She repeatedly texted around 9:40 p.m., asking “CAN YOU PLEASE CALL ME!!” and told Cat that Nik won’t calm down and he his crying. Katie said that Nik was having an anxiety attack and Joy was doing nothing about it. Cat spoke to Nik on the phone to calm him down. She then texted Joy and expressed concern about how the children were coping with all the changes. She told her about the text messages and the calls she received, and that while she encouraged the children to speak to her about their feelings, the children reported that Joy wasn’t listening. Cat asked Joy to help them. Joy responded: “Don’t worry about it. It’s taken care of”.

[10] On May 3, 2020, Cat offered to meet and discuss the situation. Joy agreed if Raphael was also present. According to Cat, Joy said that she was tired of the children’s poor attitude, rudeness and lack of discipline and that she and Raphael were now a team and the children would have to learn to accept the changes.

The May 7, 2020 incident and the CAS complaint

[11] On May 8, 2020, when Cat picked the children up for her parenting time, Nik allegedly told her that Raphael grabbed him by the leg and pinched him on the stairs and that while Nik was trying to get away, “Raphael nearly flipped him over the rail”. Katie added that Raphael was yelling and screaming in their faces and lecturing them. Nik and Katie told Cat they would not return to Joy’s home if Raphael was there.

[12] Joy denies that the incident happened the way it was described. According to Joy, Nik was being disrespectful, and she sent him to his room. Because Nik continued to be verbally aggressive and to scream profanities, she placed her hand on Nik’s forearm and prompted him to move towards his bedroom. Raphael assisted her by taking his other forearm. Nik eventually went to his bedroom and insulted Joy and Raphael. Joy denies that she physically disciplines her children.

[13] Cat was concerned about what the children told her and reported the incident to Valoris (the Child protection agency for Prescott-Russell). Michel Gauvin, a Child Protection worker, spoke to the children and with the parties. He concluded that there was no evidence of abuse at Joy’s house. In the letter dated May 14, 2020 advising of the file closure, Mr. Gauvin indicated that the children reported “a significant decrease in their well-being in the past few weeks or since the introduction of [Joy’s] new partner, M. Raphael Lopez-Noriega”. Mr. Chauvin offered to set up a mediation which could occur as early as the following week. Cat was willing to participate but Joy asked that the case be closed.

Children refuse to return to Joy’s home

[14] May 10, 2020 was the next day Joy was to have her parenting time. It was also Mother’s Day. Cat says that she encouraged the children to go to Joy’s home but they were refusing. Cat thought a little break could be helpful for the kids to calm down, so she texted Joy to say that the kids were refusing to go and that she was concerned with Raphael’s aggressive attitude towards them.

[15] On May 14, 2020, Joy threatened litigation if the children were not returned to her. Cat proposed instead that the parties attempt mediation with Marianne Cuhaci, a well-respected social worker and family counsellor. Joy refused to participate.

[16] Cat has tried to engage with Joy on a number of occasions. On May 13, 2020 she informed Joy that Katie and Nik had told Mr. Gauvin that they would like to meet her at the Valoris office. She told Joy that her goal was the same as hers: to get back to the residential schedule and for the kids to feel safe and happy. Later in the afternoon, she wrote again after learning from Mr. Gauvin that Joy would not agree to meet with him and the children at Valoris. Cat told Joy that her door was open and that she could come over at the house, and perhaps the children could tell her what they were going to say with Mr. Gauvin’s help. Cat suggested that the kids get their electronic devices back so that Joy could communicate with them “to provide them with the reassurances they seem to need from you”. The following day, after receiving no response from Joy, Cat wrote that “Katie and Nik want to know from you. Send something as a response. Please. So we can move forward”. When Joy responded, she said that all communications are to go through her lawyer unless Cat is communicating to confirm the time when she would be returning the children to her.

[17] The children have written emails to Joy. They say they are choosing to stay with Cat. Nik says that he would like it if Joy came at Cat’s house without Raphael so he could show her the trampoline, but he doesn’t want to talk about the situation. Both kids end their messages with “I love you”.

Determination on urgency

[18] Normally, the Court views any sudden unilateral interruption of a generous, long-standing timesharing arrangement as potentially urgent: Brazeau v. Lejambe, 2020 ONSC 2843, at para 10. However, I decline to find the matter urgent for the following reasons.

[19] It is undeniable that the children have not adapted well to the introduction of Raphael into their lives. This is not an uncommon phenomenon, especially for children of this age, and it does not say anything about Raphael. But the children feel anxiety about this new change. None of the evidence presented to me demonstrates that Cat is alienating the children. To the contrary, in all her communications with the children she encourages them to speak to Joy about their feelings, and to respect Joy’s rules. Cat has accepted Valoris’ offer to mediate, and she has proposed mediation with Marianne Cuhaci.

[20] I am not persuaded that Joy’s reason for refusing mediation is valid, namely that Cat is requesting mediation to avoid the separation agreement that is already in place. Joy also objects to Cat interfering with the rules and discipline at her home and with whom she can date. But Cat is also the children’s mother and the children call on her for help. She has every right to be concerned about their welfare and to be involved in finding a solution to what the Children’s Aid Agency described as a significant decrease in their well-being. Moreover, Cat has repeatedly told Joy that she wanted to work towards the resumption of the parenting schedule. I see no evidence that she is trying to avoid the separation agreement.

[21] The children have asked for Joy to come to Cat’s home without Raphael to talk. I find Joy’s reason for refusing to visit the children at Cat’s house unpersuasive. She says that she does not want to put herself in a vulnerable position by attending her home and that she was concerned that this was a trick and that Cat would call the police. There is a written record of Cat’s invitation and many offers to work together towards a solution. The theory that Cat was tricking Joy into coming to the house only to call the police is far fetched.

[22] I agree with Joy that the children are not old enough to dictate their own living arrangements, and that she is entitled to date. But the children perceive, rightly or wrongly, that they are not being tended to, and they have an acrimonious relationship with Raphael. Why not meet with them without Raphael to discuss these things and make them feel loved? Why not take a short break from Raphael, who just recently entered into her life and has his own home, and invite the children to spend time alone with her on her next parenting time?

[23] In his Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings dated May 13, 2020, the Chief Justice called upon the cooperation of counsel and parties during the pandemic to engage in every effort to resolve matters. As Justice Pazaratz explained in Ribeiro v. Wright 2020 ONSC 1929, with limited judicial resources and a rapidly changing landscape, the Court “needs parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings”.[^1] The Court expects parents “to have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals”.[^2] I find that Joy should have exhausted the reasonable avenues proposed to her (meeting with the children, meeting with Mr. Gauvin and the children, mediation with Ms. Cuhaci) before bringing an urgent motion.

[24] I agree with Cat that the longer this situation lasts, the harder it will be for the children to reintegrate into a regular routine. The matter is important. It can and should be resolved between the parties before resorting to the Court. Katie and Nik don’t need a motion. Cat has attempted to engage Joy into addressing the children’s issues, but Joy has preferred to judicialize a conflict that could have been resolved with a little bit of openness to dialogue. Joy cannot create her own emergency by refusing to engage in a conversation.

[25] Joy’s request to have the motion heard on an urgent basis is denied, without prejudice to her right to bring the matter back to the Court if it is not resolved after engaging with Cat and the children in good faith efforts to resolve the conflict.

[26] If the parties cannot agree on costs, they may send brief (3 pages double spaced maximum) submissions along with a bill of costs to my attention within the next 14 days.

Master Kaufman

Date: June 1, 2020

[^1]: Ribeiro v. Wright 2020 ONSC 1929, at para 22. [^2]: Ibid at para 23.