Court File and Parties

COURT FILE NO.: FC-20-037 DATE: 2020/06/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chantal Elie-Sernoskie, Applicant AND: Randolph Sernoskie, Respondent

BEFORE: Honourable Madam Justice M. Fraser

COUNSEL: Elisabeth Amy Sheppard, Counsel for the Applicant Gonen Snir, Counsel for the Respondent

HEARD: June 5, 2020

Endorsement

[1] The Respondent brings this urgent motion prior to a case conference. He asks that the Order of MacLeod J. dated February 20, 2020 be varied and that the parties’ children be placed in the shared custody of the parties. More specifically, he requests an order that the children reside with him weekly from Saturday at noon until Tuesday morning (save and except for one weekend a month).

Background

[2] The parties began a relationship in 2009. They were married on December 10, 2011. There are four children of the marriage namely: Tristan Sernoskie born October 15, 2010, Anakin Sernoskie born December 24, 2012, Harmony Sernoskie born October 13, 2015 and Wade Sernoskie born September 7, 2017. The parties separated in January 2018.

[3] The Applicant brought an urgent without notice motion before McLeod J. on February 10, 2020. An interim without prejudice order was made at that time placing the children in the Applicant’s custody. The Respondent was to have access to the children in the discretion of the Applicant and subject to the approval by FCS Renfrew County. The order requested that FCS Renfrew County write a report to the court setting out any protection concerns by March 3, 2020. The order additionally provided that the Respondent was to not threaten, harass or approach the Applicant pending the return of the motion.

[4] It is noted that the Applicant’s counsel did not forward this order to FCS Renfrew County and therefore they were not notified of MacLeod J.’s request for a report. As such, there is no report available to the court for the purposes of this motion.

[5] The Applicant’s motion was made returnable on March 3, 2020. However, due to the COVID-19 pandemic and the suspension of the regular operations of the Ontario Superior Court of Justice, the Applicant’s motion was adjourned.

[6] The Respondent has therefore initiated the within motion. Leave was granted to proceed with this motion by James J. on May 13, 2020. The Applicant, in response, asks that the order of MacLeod J. continue, and that the Respondent’s access be supervised.

[7] I have reviewed the following affidavits:

1. Filed by the Applicant: (i) Affidavit of Chantal Elie-Sernoskie dated June 1, 2020 (ii) Affidavit of Chantal Elie-Sernoskie dated February 3, 2020 (iii) Affidavit of Chantal Elie-Sernoskie dated February 10, 2020 (iv) Affidavit of Nancy Power dated February 2, 2020 (v) Affidavit of Laurie Remus dated February 3, 2020

2. Filed by the Respondent: (i) Affidavit of Randolph Sernoskie dated April 28, 2020 (ii) Affidavit of Randolph Sernoskie dated May 4, 2020 (iii) Affidavit of Randolph Sernoskie dated June 1, 2020 (iv) Affidavit of Randolph Sernoskie dated June 4, 2020

[8] The number of affidavits filed by the parties underscores the high level of discord and distrust between the parties at present.

[9] As stated, no case conference has yet occurred in this matter.

[10] Conflicting evidence pervades the materials which have been filed by the parties. The parties report two very different realities. It is too early in this proceeding to determine with any degree of certainty which party’s position is closest to the truth. It is not possible to assess the credibility of the parties or weigh the evidence to any degree at this juncture.

[11] The Applicant maintains that she was the primary caregiver of the children. The Respondent disputes this.

[12] The parties disagree with respect to what they claim the children’s living arrangement was in the year subsequent to their separation and prior to the commencement of this application. Both claim to have been the primary caregiver.

[13] Despite provision for Respondent’s access in MacLeod J’s order dated February 3, 2020, the Respondent last saw the children on January 18, 2020. The parties dispute which of them is the cause of this. The Applicant maintains that she has tried to facilitate access and that the Respondent has refused. The Respondent would suggest the opposite is true.

[14] The Applicant’s large volume of materials alleges a significant number of concerns respecting the Respondent. In particular, she alleges that the Respondent is controlling and that he has anger management problems and mental health issues which remain unaddressed. She maintains that the Respondent is not dealing with their separation in a healthy way, that he is attempting to alienate the children from her and that he is reacting angrily to stressors. She fears there have been recent instances wherein he has been physically and verbally abusive to the children.

[15] The Applicant alleges the Respondent has been physically and verbally aggressive toward her in the past. She states that the Respondent has “thrown things and punched the doors and slammed the walls.” She states that he has “smashed” her laptop, cell phone, fan and key fob and that he has physically assaulted her numerous times, including when she was pregnant. During a discussion about religion, she maintains that things “escalated” and that the Respondent pinned her to the wall and pushed the sign of the cross into her forehead hard with his other hand on her neck declaring prayers exorcising the “demon” out of her.

[16] When the parties got a puppy for the children for Christmas in 2009, she alleges that he would abuse the puppy by leaving it in the basement locked up, kicking it, hitting it hard on the nose, yelling at it and throwing it. She states that when she argued with the Respondent over the treatment of the puppy, the Respondent pushed her into the porch and she fell into the recycle bins.

[17] The Applicant alleges that the Respondent has spoken of being in a “dark place” and that he would speak out loud about fighting devils in his head.

[18] The Applicant describes the Respondent as having difficultly handling stress and coping with the children. She stated that he became increasingly impatient, aggressive and non functional over the years. She believed she was increasingly the source of his anger and his rage.

[19] The Respondent, in turn, has responded with allegations against the Applicant. However, he does not suggest that the Applicant should not be sharing the parenting of the children. Rather, he claims that the Applicant is falsely making accusations against him to obtain a strategic advantage in this proceeding. The Respondent points to the fact that the Applicant had, prior to recent events, never made a complaint to the police. He states that he has never been charged with a criminal offence.

[20] The Respondent states that “all allegations of violence made in Chantal’s Affidavits are false. She twisted and misled the court in order to secure a parenting regime that only benefits her.”

[21] To reconcile the differences for the purpose of this motion, I consider certain evidence to be particularly relevant.

December 2017 incident

[22] The Applicant attested to an incident involving the Respondent and one of his children from his previous marriage, Noah. She stated that the police were called to the home at that time by the Respondent’s father because of a physical altercation between the Respondent and Noah. She alleges that Noah left to reside with his mother at that time and that he has remained there since. The Respondent, she alleges, was removed from the house by the police and spent three days in hospital and that he then went to his parents for a cooling off period.

[23] The Respondent denies that any violence or abuse occurred on that occasion and that her allegations are false and misleading. He denies that the police were called to his house because of an incident with Noah. Instead he stated that in December 2017, because of the marital issues he had with the Applicant, he “fell into a deep depressive state.” He claims he “laid in bed virtually all day,” and at a point, his father became concerned as he was “unresponsive.” He attests that his father called the police and they asked whether or not he wished to go to the hospital and that he agreed to go and that he wasn’t “removed” from the home as alleged. Once he saw a doctor, he advises that he decided to spend some time at his father’s residence before returning home. He denies this was the reason that Noah left his home to reside with his mother and that this only happened several months later.

[24] Unfortunately, the Respondent’s evidence, if accepted, raises its own concerns with respect to the Respondent’s capacity to care for the children. It is not possible at this point to assess how serious the issues were or whether the Respondent’s difficulties were transient.

February 5, 2020 incident

[25] The Applicant gave evidence of an encounter between the parties on February 5, 2020. She stated that she was returning to her car in Pembroke after a meeting and that he saw her and that he drove up and slammed the brakes on his car “so fast and aggressively” that she thought he was going to hurt someone. She quickly got into her vehicle and locked her doors. He then “kept” her there communicating through a crack in the window. She claims that his “aggressive posture, language and behavior was intense.”

[26] The Respondent in turn claims that he “gently” asked her to let him in to the passenger’s seat so that they could talk. When she refused, he stood outside so that they could converse through the driver’s window. He maintains that he was not “aggressive or hostile towards her.” When he noticed a man filming their conversation, he asked him to stop recording as there was “clearly no confrontation or hostility” in his conversation with the Applicant.

[27] It is hard to reconcile the two very different impressions given by the parties. However, I cannot summarily dismiss the concerns expressed by the Applicant. I question why a passerby would begin to monitor their interactions if the Respondent’s approach was as gentle as he would suggest. Indeed, that witness has provided the Applicant with a written, albeit unsworn, statement and he described the interactions as follows:

“I decided to monitor the situation to make sure that no violence was occurring…I took a picture of the aggressor, who I later found out was the ex of the female, to ensure that I could identify him if the need arose. I continued to monitor the situation from my car, and gathered that they were arguing, but couldn’t decipher about what. The male was out of his vehicle screaming at a woman who had the window of her Black Dodge Grand Caravan slightly open. He was pacing back and forth between her car and his car…. Throughout the altercation, the male was verbally aggressive to the female on multiple occasions and spoke in a manner that was above the level needed for a conversation between two adults. It appeared as though the woman was threatened by the nature of the male’s demeanour and actions throughout the confrontation.”

FCS Renfrew County involvement

[28] Both parties provided correspondence which was prepared by FCS Renfrew County. The Respondent maintains that the FCS Renfrew County investigated the concerns alleged by the Applicant that he was using physical discipline on the children and that he was alienating them from their mother. I do not have the particulars of what was disclosed to the FCS Renfrew County.

[29] The Respondent states in his Affidavit sworn April 28, 2020 that FCS Renfrew County concluded that the children were safe and that there are no concerns for the children’s well being while living with him.

[30] I have reviewed this correspondence. I don’t see that it says this.

[31] This correspondence advised that the allegations of physical discipline on the children by the Respondent were verified and that additionally the allegations of emotional harm to the children as a result of post separation conflict by the Respondent were verified.

[32] The correspondence does state that the children are safe but I bear in mind that this comment could be made on the understanding that the children are presently in the Applicant’s care. FCS Renfrew County does not, in this correspondence, take a position on whether it would consider the children “safe” to return the Respondent’s care and this needs to be clarified.

[33] The correspondence from FCS Renfrew County does indicate that the Respondent’s present lack of any contact with the children could be harmful to their well being. In this respect, FCS Renfrew County does not purport to take a position, however, on what form this contact should take.

Outstanding criminal charges

[34] While the Respondent has alleged that the Applicant is making “false allegations”, it is clear that this remains an outstanding issue. Several charges have been laid against the Respondent at this time.

[35] The Respondent has not updated his Form 35.1 affidavit to provide disclosure of these charges. He attests to the charges being historical, from an incident which occurred approximately ten years ago. However, no further specifics are available for the purposes of this motion.

[36] The Applicant has alleged that some charges have arisen from the treatment of the family dog earlier this year. She claims that an audio recording came to her attention in May, 2020. It was taken by the Respondent’s oldest son (from his first marriage) when the Respondent was apparently in a rage, screaming and cursing at the dog. The Respondent could apparently be heard slamming the dog’s cage with a baseball bat, commanding the dog to die, and screaming at the dog. According to the Applicant, the OSPCA have become involved. The Respondent has not provided any substantive response to this allegation in his materials.

The Law

[37] The issue of custody and access is to be determined by what is in the best interests of the children. This is a positive test and ultimately will encompass a wide variety of factors.

[38] The Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s. 24 sets out eight factors which may be considered when the court is determining a child’s “best interests”:

24(2) Best interests of child

The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person including a parent or grandparent entitled to or claiming custody of or access to the child, (ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and up-bringing; (b) the child's views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[39] Subsections (3) and (4) specify that domestic violence and abuse is relevant past conduct that should be considered:

24(3) Past conduct

A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

24(4) Violence and abuse

In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person's household; or (d) any child.

[40] A judge tasked with determining what is in the best interests of the children must also have regard to the desirability of maximizing contact between the children and each parent.

[41] With very few exceptions, all children benefit from having a loving relationship with both parents.

[42] That said, decisions on access must always reflect what is in the best interests of the children.

[43] Where parents separate and the children must live with only one parent, either the parents or the court will usually attempt to provide for "typical" or "normal" access to the noncustodial parent. When a parent seeks to reduce normal access, it is expected that they provide evidence that such a position is justified. The greater the restriction sought, the more important it becomes to justify that restriction. In this respect, the most restrictive form of access is supervised access. See: Pastway v. Pastway (1999), 49 R.F.L. (4th) 375, 1999 CarswellOnt 2055, [1999] O.J. No. 2525 (Ont. Gen. Div.).

[44] As such, where a parent argues for supervised or limited contact with a child, the onus is on that parent to satisfy the court that the contact should be limited, including that it should be supervised. Supervision is a great intrusion into the relationship between children and a parent, and its continued imposition must be justified. See: A. (M.) v. D. (J.), [2003] O.J. No. 2946 (Ont. C.J.); Folahan v. Folahan, 2013 ONSC 2966 (Ont. S.C.J.); Baldwin v. Baldwin, 2015 ONSC 1743 (Ont. S.C.J.); A.-Z. v. A.H., 2018 ONSC 680 (Ont. S.C.J.) at para.103, citing Bates v. Bates, 2011 CarswellOnt 3876 (Ont. S.C.J.).

Analysis

[45] I am faced with the dilemma frequently faced on motions brought at the outset of a proceeding. I am presented with two very different realities by the parties. The Applicant suggests that that there is reason to be concerned about the father’s disposition and his emotional well being. The mother is fearful that if left in the father’s care, the children could be subjected to physical or verbal abuse or at a minimum exposed to volatile irrational behavior. The Respondent adamantly denies this is the case.

[46] Given the relatively small scope of information available to me, as might be expected on an urgent motion brought before a case conference, any order I make will be a temporary fix. My decision acts as a “Band-Aid” for the parties, until the court has available to it the means by which to assess the credibility of both parties and hopefully the input of neutral third parties.

[47] I consider it in the best interests of the children to have as meaningful a relationship with the Respondent as the facts and circumstances permit. This is not happening at the moment. Therefore, as a starting point, there must be a provision for contact between the Respondent and the children.

[48] That stated, in my view, there is an air of reality to some of the allegations raised by the Applicant for the reasons outlined above. I am not prepared to dismiss, at this time, the Applicant’s concerns. Those concerns, if true, would support the Respondent’s access being restricted, at least for the time being.

[49] In my view, the Applicant has met the onus of justifying on a balance of probabilities that any access between the children and the Respondent at this time should be supervised. I am therefore not prepared to vary the order of MacLeod J. as made on February 20, 2020. The children should remain in the Applicant’s care and the Respondent’s access should, for the time being, be supervised.

[50] I wish to make it clear that this order for supervised access is intended to be a temporary and time-limited measure designed to ensure that the children are able to have contact with their father while the allegations are properly investigated.

[51] As this proceeding moves forward, the court will have the benefit of a better evidentiary record, expert assistance, and possibly the participation of the children in some manner. A determination can then be made addressing what is in the children’s best interests over the long term. In this instance, the investigation conducted by FCS Renfrew County should be made available, as well as the results and nature of the police investigation and charges. Ideally some clinical input will be made available and/or the Office of the Children’s Lawyer will agree to become involved.

[52] While community-based supervised access programs are normally available to ensure that ongoing access between the non-custodial parent and the children can occur in a safe and neutral environment, due to the COVID-19 pandemic, the operation of these centres has been curtailed.

[53] As such, an order shall issue that the father shall exercise access each Saturday from 9:30 a.m. to 12:30 p.m. in the presence of a family member or acquaintance agreed upon by the parties. It is hoped that the parties will agree upon an appropriate individual. However, in the event the parties are unable to agree upon an individual, counsel may arrange a telephone conference call with me so that that issue can be determined. The parties are at liberty to agree through counsel to an alternate time for this weekly access visit. However, absent agreement, this shall be the time for the access to occur.

[54] Once the supervised access centres are open, there should be, in addition, a further weekly access visit arranged for the Respondent and the children at the supervised access centre for a period up to three hours, subject to the access centre’s preparedness to accommodate same.

[55] The Respondent shall have, in addition to this “in person” access with the children, telephone access every Tuesday and Thursday evening commencing at 7:00 p.m. The Respondent is to initiate this call to a telephone number to be provided by the Applicant (through counsel). The Applicant is to make the children available to speak with the Respondent at that time.

[56] No party shall use physical discipline on the children.

[57] Neither party shall speak negatively about the other party to the children, or within earshot of the children.

[58] Neither party shall discuss the issues in this proceeding or in the criminal proceedings with the children or in their presence.

[59] FCS Renfrew County is requested to provide a report within 30 days outlining its involvement with this family and any protection concerns it may have at present. Counsel for the parties are directed to provide of copy of this order to FCS Renfrew County.

[60] If the parties are unable to agree on costs, they may file written submissions of no more than three pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 30 days. Such written submissions are to be forwarded electronically to PembrokeSCJTrialScheduling@ontario.ca. If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves.

M. Fraser J. Date: June 26, 2020