Court File and Parties
Newmarket Court File No.: FC-05-22917-01 Date: 2020-06-11 Superior Court of Justice - Ontario
Re: Mark Anthony Edwards, Applicant And: Camille Melissa Robinson, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: Chad Rawn, Counsel for the Applicant Denise Badley, Counsel for the Respondent
Heard: By Teleconference
Ruling on Motion
1On May 1, 2020 the respondent (“the mother”) brought an urgent motion for the return to her care of the two youngest of the parties’ three children (one of the children is twenty years old: the other two are nine and two and a half years old). She brought this motion without notice to the applicant (“the father”). I ruled on May 5, 2020 that notice needed to be given to the father. Directions were given. [1]
2After the father responded to the mother’s motion, I ruled on May 11, 2020 that the issues involved had less to do with consequences of the current pandemic than a parenting dispute but that the (then) absence of contact between the children and their mother warranted an urgent case conference. [2] An Order (on consent) was made at that time appointing the OCL to undertake an investigation. A case conference was then conducted by MacPherson J. on May 22, 2020 and recommendations were made. On May 24, 2020 MacPherson J. was advised by counsel that the parties were unable to resolve their parenting issues and he directed that a motion proceed. On May 27, 2020 I held a scheduling teleconference with counsel and directions for this motion were given.
3The motion proceeded by teleconference on June 9, 2020. The parties audited. The following evidence was before the court:
(a) The mother’s affidavits sworn on May 4, 11, 21, June 3 and 8, 2020 with exhibits; (b) An affidavit from the mother’s sister sworn on June 3, 2020; (c) The father’s affidavits sworn on May 8 and June 5, 2020 with exhibits; (d) An affidavit from the parties 20-year old son sworn on June 5, 2020.
4As directed, each party filed their proposed temporary parenting proposal.
Relevant Evidence
5The parties’ evidence about their relationship and their respective parenting roles was significantly contradictory. The mother alleged that the father was abusive, which he denied: the father alleged that the mother had substance abuse and mental health problems, which she denied. The mother said that the parties shared the children’s residency: the father said that the children had always resided primarily with him. Each accused the other of criminal behaviour. Each challenged the other’s credibility, the assessment of which is practically impossible on a temporary motion. Parsing through the evidence, the following is reasonably clear:
(a) The parties began a relationship in 1999. They never married. Their oldest child (“EE”) was born on December 30, 1999; (b) The mother said that the parties’ relationship was “on-and-off” after 1999: the father said that it ended in 2000; (c) There appear to have been family law proceedings between the parties in 2005. Neither party was able to provide the court with satisfactory evidence about the outcome of those proceedings. Suffice it that both are agreed that there is no outstanding Order of which they are aware (which would have dealt with EE anyway) or which has otherwise been brought to the court’s attention dealing with parenting then or now; (d) The parties resumed their relationship for a short while in 2011. Their second child, a daughter (AOA R-E or “A R-E”), was born on May 14, 2011. The father said that the parties’ relationship ended in 2012 but resumed again in 2016; (e) The mother says that the parties’ relationship was frequently abusive and that she was periodically assaulted by the father. Filed in evidence were notes from a medical clinic dated October 2, 2016 detailing domestic violence injuries and a family doctor’s notes recording physical abuse of, and injuries sustained by, the mother on November 9, 2016 by her “partner”, who was unnamed. The notes say that the mother had gone to court to get a restraining order but that the court was closed. There were been earlier domestic violence incidents in 2003 and September 2016 reported. Both notes referred the mother to assaulted-victims services. The father says that it was an estranged boyfriend of the mother who must have assaulted her in September 2016 and that the other incident was caused by the mother attacking him. Even so, he was charged with assault; (f) The mother later withdrew the assault charge. The father filed a note from the mother’s therapist that the mother was anxious, grieving and depressed and that she has made up the allegations against the father. While he denied abusive conduct, the father entered into a Peace Bond in late 2017; (g) School records confirmed that A R-E had been enrolled in a school nearby the father’s residence since September 2015. They indicated that the child was residing with her father. The parties disputed where the child primarily resided. The mother said that she would transport the child to school when she lived with her.; (h) The parties’ third child, another daughter (“MCE”) was born on January 4, 2018; (i) The mother said that she had been living with her sister in Markham between early 2018 until late 2019 when she obtained an apartment for herself and the children. Many times she, the children and the parties lived together in the father’s residence; (j) The parenting situation between the parties appears to have deteriorated in late March 2020. After the father picked up the children from the mother on March 25, 2020, he refused to return them to her. There is no evidence of a precipitating event. On or shortly after that date he made a complaint to the police that the mother had threatened him three months earlier in December 2019; (k) The mother was charged on or shortly after March 30, 2020 with uttering a death threat against the father and released on terms. A court appearance has been scheduled in the Ontario Court of Justice for July 28, 2020; (l) The father refused to permit the children to spend time with their mother after March 25, 2020. Only after this court pointed out the importance of child/parent contact and the possible consequences of failing to support a child’s relationship with the other parent was the mother allowed to see the children on three occasions for several hours on May 23, 30 and another date in June shortly before this motion was argued; (m) The father alleged that he was concerned about the mother’s substance abuse issues but acknowledged through counsel that there was no evidence that the mother had displayed substance abuse problems impacting, for example, her driving before March 25, 2020. The father accepted the results of a hair follicle test produced by the mother on June 9, 2020 reporting negative drug and alcohol results for the 90 days preceding May 26, 2020; (n) The father filed an affidavit from the parties’ 20-year old son supporting his father’s claim for sole custody of his younger siblings, alleging neglect by his mother, their poor relationship and his having read the mother’s evidence; (o) The sleeping arrangements for the children in each party’s household appear similar. The father has two other children (half-siblings of the parties’ biological children) residing with him; (p) The mother never alleged that the father was an abusive or bad parent: the father alleged that the mother was a poor parent. This was supported by EE.
Discussion and Analysis
6In Matus v Gruszezynska, [3] a case upon which the mother relies, McGee J. observed that “[p]arenting is an essential service”. [4] That was said in the context of an urgent motion during the current COVID-19 pandemic crisis and the caution, expressed in that decision and elsewhere, that the pandemic must not be used as an excuse to interfere with children’s time with their parents. That caution applies equally to cases where COVID-19 concerns are not the precipitating reasons but where timely access to court is impeded by a parent’s behaviour. This, regrettably, is one of those cases where a party appears to be taking advantage of the current situation and has not transparently acted in the children’s best interests. That party is the father.
7This is said for the following reasons:
(a) The children were residing with both parents before March 25, 2020 although the evidence is unclear about the actual time spent resident in each parent’s household; (b) While A R-E was attending school nearby the father’s residence, both parties appear to have been involved in her schooling and transportation, where needed; (c) There was no precipitating event that lead to the father arbitrarily preventing the children from returning to their mother’s care after March 25, 2020. The father acknowledged that around that time he was preparing court documents for sole custody of the children. Without commenting on the substance of the father’s complaint to the police about the alleged death threat by the mother, the timing of that complaint in the circumstances of likely, imminent parenting litigation is, prima facie, suspicious and suggestive of a tactical purpose; (d) There is little question, as the parties acknowledged, that their relationship was “tumultuous”. It is difficult to precisely determine what that meant except that both parties alleged periodic domestic violence over a span of almost two decades of intermittent cohabitation. I don’t believe the father that it was not him to whom the mother was referring in the medical notes as being the “partner” who hurt her, especially since the notes also referred to the parties’ children and a domestic violence incident in 2003. While the father pointed out that the mother’s therapist noted that the mother had made a false assault allegation against the father, he still entered into a Peace Bond in late 2017, the precise details of which he chose not to share with the court; (e) The father should never have shared with EE his mother’s evidence. It is the duty of every parent to shield children from intra-parental conflict, even if they are young adults. EE’s affidavit was little more than an ill-conceived and transparent parroting of what the father wanted - custody of the children; (f) It is telling that while the mother did not criticize the father’s parenting, his material had nothing, if anything, good to say about hers. The testing of the mother reported on June 9, 2020 underscores the generally bald nature of the father’s allegations about the mother’s alleged substance abuse issue.
8The father should have done more than he did to facilitate meaningful time between the children and their mother after March 25, 2020. In my view he did not act in the children’s best interests. What those are will be determined later and with a more robust evidentiary record. In the meantime, there is no reason why either party should be preferred as a custodial or primary parent and no reason why the children should not be allowed to enjoy meaningful time with their mother.
Disposition
9The following is ordered on a temporary, without prejudice basis:
(a) The parties shall share parenting of their daughters. No Order for temporary custody shall be made at this time; (b) The children shall reside with their parents as per paragraphs 1 a), b) and c) of the mother’s parenting proposal; (c) The children shall spend two non-consecutive weeks with their mother: one in July and the other in August. The mother shall have the right to choose which week in July and August she wants, those choices to be communicated to the father through counsel by no later than June 23, 2020. The week period shall begin on a Friday at 5:00 p.m. and end at that time on the following Friday. These weeks are not to follow a weekend that the children are residing with their mother; (d) If the parties cannot agree through counsel about how the exchanges of the children will be facilitated, counsel may contact my judicial assistant (Meghan.Billings@ontario.ca) to arrange a brief teleconference with me. It is expected that exchange responsibilities will be shared equally and, if possible, using someone other than EE; (e) As per paragraphs 6 (e), (h), 8, 9 and 10 of the father’s proposed parenting plan (Exhibit H from his June 5, 2020 affidavit); (f) The parties shall be entitled to reasonable telephone/video chat access with the children when the children are with the other parent, such contact to be between the hours of 7:00 p.m. to 8:00 p.m. excluding those days when the children are exchanged. The mother shall be entitled to this contact notwithstanding any existing bail conditions; (g) The parties shall forthwith register with Our Family Wizard (“OFW”), the cost of which shall initially be born by the father subject to the mother contributing to one-half of that cost or as otherwise may be agreed by the parties when the parenting issues between the parties are finally determined; (h) Communications between the parties shall be restricted to OFW and shall be limited to matters involving the children. This contact by the mother will not be deemed to violate her bail conditions; (i) In the event that the parties are unable to agree on any important decision affecting the healthcare or schooling of the children, counsel may jointly contact the judicial assistant to arrange a teleconference with me for directions; (j) The parties shall be guided by the parenting guidelines attached to this Ruling as Schedule A; (k) Unless an urgent or pressing issue should arise as defined by the Chief’s Notice, as may from time to time be revised, either party may move to vary the terms of this Order after August 28, 2020.
10In the event that the parties are unable to resolve the issue of costs of the mother’s motion by June 17, 2020, they shall each file with the court and forward to my judicial assistant, their costs submissions by June 24, 2020 limited to three double-spaced pages. These shall be filed in the Continuing Record. Offers to Settle, Bills of Costs and any authority upon which a party may wish to rely shall be filed by June 24 as well but not form part of the Continuing Record. The only costs to be considered will be those relating to the mother’s urgent motion: the conference costs are reserved to final disposition.
11In the circumstances of the COVID-19 emergency, this endorsement is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing and entry once the court re-opens.
Justice David A. Jarvis Date: June 11, 2020
Schedule A - Parenting Guidelines
The parties will be guided by the following (“the children” are AOA R-E born on May 14, 2011 and MCE born on January 2, 2018):
(a) Both parents are responsible for and will contribute to the care and upbringing of the children. (b) The children have the right to love and be loved by both parents, without feeling guilt or disapproval. (c) The parents will make decisions that are in the best interests of the children and will put their interests ahead of their own. (d) The parents will keep the children out of their conflict. The parents will not ask them to pick sides, carry messages, or hear their possible complaints about the other parent. (e) The parents agree that they will communicate in a civil manner through Our Family Wizard. The parents will each encourage the children to respect the other parent. (f) The parents will promote their children's relationship with the other parent. The parents will not speak negatively about the other parent in the presence of the children, and the parents will encourage the children to spend time with their siblings, the other parent, and their extended family. The parents will discourage family members and friends from speaking negatively about the other parent in the presence of the children. (g) The parents will exchange educational, medical, and extra-curricular information about the children. Nothing relieves either parent from their own responsibility to obtain information from third-party care and other professional providers.
[1] 2020 ONSC 2826. [2] 2020 ONSC 2956. [3] 2020 ONSC 2353. [4] Ibid, para. 15.