Court File and Parties

COURT FILE NO.: FC-20-493-00 DATE: 20200724 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: STEPHEN MAGLARIS Applicant – and – KRISTINA KNOWLES Respondent

Appearing in person, with duty counsel, Amy Secord Appearing in person, with duty counsel, Robin Leighton HEARD BY ZOOM CONFERENCE: July 21, 2020

RULING ON TEMPORARY CUSTODY MOTION

C. BOSWELL J.

[1] Ethan Maglaris was born on August 24, 2013. He is the natural son of Stephen Maglaris and Kristina Knowles. Ethan’s parents separated about four and a half years ago. Since then, he has resided primarily with his mother and has had access three out of four weekends with his father.

[2] Mr. Maglaris wants Ethan to live with him on a full-time basis and he wants Ms. Knowles’ access to be limited to supervised visits. He is concerned that she has a substance abuse problem and that she has been neglecting Ethan’s care. He has commenced a motion to change the status quo. Ms. Knowles resists any suggestion of change. She urges the court to conclude that the status quo is working and should not be varied.

[3] This ruling provides the court’s direction on how Ethan is to be parented on a temporary basis as litigation between the parents proceeds.

The Guiding Legal Principles

[4] In Mr. Maglaris’ ideal world, the court would make a final order for custody of Ethan in his favour at this time. That is not realistic, however. The court lacks a sufficient evidentiary record to make a final determination about what is best for Ethan. Instead, the order I make today will be a temporary one.

[5] Temporary orders are, by their nature, intended to be impermanent. They are also, by their nature, imperfect. They are based on a limited record of untested evidence and typically brief submissions. They are intended only to provide a reasonable solution to a troubling problem pending a trial or, preferably, a negotiated solution.

[6] Because the only live issue on this motion concerns the parenting of Ethan, the governing legal principles are straightforward. The court must act in accordance with Ethan’s best interests.

[7] Section 24 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12 directs the court to consider a constellation of factors when assessing a child’s best interests. Those factors include:

(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 upbringing; (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.

[8] The court is also directed to consider whether any party seeking custody has committed any domestic abuse or violence against the other party, a spouse, a child, or any other member of the household.

The History of the Litigation

[9] The hearing of this motion proceeded by way of remote video-conference, so I have not had access to the entire continuing record of all prior proceedings involving these parties. That said, the history of the litigation between them is not particularly germane, save for the recognition of a final order dated February 16, 2018. That final order is the starting point for this iteration of the custody dispute between the parties.

[10] The final order was based on a consent signed by the parties. The consent was silent as to custody, but it was clear that Ethan would reside primarily with Ms. Knowles and have access visits with Mr. Maglaris three weekends out of four. Weekend access visits would run from Fridays after school until Sundays at 4:00 p.m. In addition, each party would have one uninterrupted week of summer holiday time with Ethan and they would share the Christmas holiday break as agreed from year to year.

[11] Mr. Maglaris has recently commenced both an application for custody of Ethan and a Motion to Change the final order of February 16, 2018.

[12] I have been able to piece together that the parties began to reside together in 2009 and separated in January 2016. The contours of the parties’ relationship are otherwise somewhat opaque. I am proceeding on the basis that Ethan resided primarily with his mother from the time of the separation in 2016 until June 17, 2020 when Mr. Maglaris made the decision to keep Ethan with him and to initiate these proceedings.

[13] Mr. Maglaris commenced the current round of litigation at the end of June 2020 by filing an urgent motion without notice to Ms. Knowles. These types of motions are often referred to by the acronym “URMO”. Mr. Maglaris’ URMO was supported by a brief affidavit in which he set out his concerns about Ms. Knowles’ purported substance abuse. He detailed Ethan’s recent troubled history of lateness and absenteeism from school. He expressed concerns about whether Ethan was being properly fed while in Ms. Knowles’ care. And he filed a letter he received from the Children’s Aid Society dated June 17, 2020 in which the Society advised that they had commenced a child protection investigation into issues of substance abuse and neglect by Ms. Knowles. The Society indicated that it fully supported Mr. Maglaris’ claim for custody and expressed that they would have significant concerns if Ms. Knowles had unsupervised access.

[14] On June 30, 2020 I reviewed Mr. Maglaris’ URMO. I made an order that he serve his motion materials on Ms. Knowles and that the matter would be addressed in court on July 7, 2020. In the meantime, Ethan was to remain with Mr. Maglaris.

[15] On July 7, 2020, both parties appeared in court but Ms. Knowles had not had an opportunity to file a responding affidavit. I adjourned the motion over to July 17, 2020 for a 10:00 a.m. Zoom conference. In the meantime, I made an order for two access visits between Ethan and his mother.

[16] Ms. Knowles subsequently filed a substantial affidavit, but then failed to attend the Zoom hearing on July 17. I will come back to this fact momentarily.

[17] I put the motion over to July 21, 2020, peremptory on Ms. Knowles. Late in the evening on July 20, 2020 Ms. Knowles filed substantial additional materials. Both she and Mr. Maglaris attended by Zoom on July 21, 2020 and, with the assistance of duty counsel, made their submissions to the court.

The Positions of the Parties

[18] Mr. Maglaris’ position is that he had to act swiftly to ensure Ethan’s well-being. He is alarmed by the number of times Ethan was either late for school or missed a school day entirely because his mother slept in. He says that Ms. Maglaris has had substance abuse issues in the past, principally with alcohol, and he is concerned that she is abusing alcohol again. He contends that Ethan is not fed properly at home and often does not get his first meal of the day until the afternoon, when his mother finally awakens.

[19] Mr. Maglaris is now in a new spousal relationship with a woman who is an elementary school teacher. She has two children, ages 10 and 12. Ethan, he says, has a warm and loving relationship with his step-mother and step-siblings. He is thriving in their home. Sarah Maglaris, Mr. Maglaris’ wife, is able to assist Ethan with his reading, writing and mathematics to help him catch up on lessons he missed over the past school year.

[20] In Mr. Maglaris’ view, Ethan’s best interests require an order that he reside full-time with Mr. Maglaris and that he have access with his mother, three weekends out of four, supervised until she is able to provide appropriate care for Ethan.

[21] Ms. Knowles contends that none of Mr. Maglaris’ assertions are supported by an evidentiary basis. She denies having a substance abuse problem of any sort. She acknowledges that she had a difficult time getting Ethan to school on time this past school year and pledges to do better. She points out, however, that Ethan’s report cards demonstrate that he was not struggling in school, but rather improved noticeably between the first and second terms. She adds that she was committing to reading with Ethan every night to ensure that his reading skills improved.

[22] Ms. Knowles believes that Mr. Maglaris’ Motion to Change is not motivated by a genuine concern for Ethan’s well-being, but rather is retaliation for an assault charge laid by the police against Mr. Maglaris in March 2020. She says he had not raised concerns with her or the CAS until after that assault charge was laid.

[23] Ms. Knowles urges the court to dismiss the motion and return the parties to the status quo that has worked well since it was implemented in 2018.

Discussion

[24] When litigants come before the courts of this province they want, and are entitled to, a fair hearing. A fair hearing includes the right to be heard by an impartial decision-maker on adequate notice.

[25] The right to be heard is a principle of natural justice. It is expressed in the Latin maxim, audi alteram partem.

[26] Despite the fact that fairness requires that a party have notice of a proceeding that may directly affect him or her and the right to be heard at that proceeding, courts will sometimes make orders directly in contravention of those requirements.

[27] Courts are generally loath to make orders where all interested parties have not been given notice and an opportunity to be heard. But it does happen. Orders made on that basis are generally limited to circumstances of urgency and they are invariably temporary in duration.

[28] Ex parte motions are filed in family court proceedings on an all-too-often basis. The vast majority of those motions get rejected because, as I noted, the principles of natural justice require adequate notice and a fair opportunity to be heard.

[29] In this instance, Mr. Maglaris proceeded by way of an URMO in large part because of the letter he received from the CAS. I made what I would characterize as a temporary care order also based largely on the position of the CAS.

[30] Ms. Knowles has expressed some frustration about the fact that Ethan has now resided with his father for a month – contrary to the parties’ negotiated final order – without her having had a say in it.

[31] I acknowledge her frustration but note that I scheduled Mr. Maglaris’ URMO to return to court, in-person, within a week of making the temporary care order. At any rate, she has now had an opportunity to file the materials she wished to file and to make any submissions to the court that she wished to make.

[32] I intend to proceed in this analysis section by making a number of observations about the evidentiary record. I will then make what findings of fact I can comfortably make on that evidentiary record. I will then consider Ethan’s best interests in light of those findings.

The Evidentiary Record

[33] The parties filed a significant amount of material.

[34] Mr. Maglaris submitted an affidavit dated June 25, 2020 with his URMO. He filed a further affidavit dated July 15, 2020 in reply to the responding affidavit submitted by Ms. Knowles. His second affidavit merely attached a series of exhibits, which included some of Ethan’s school records. He also filed a history of text messages between his wife and Ms. Knowles in relation to the failure of Ms. Knowles to return Ethan on time from one of the access visits I ordered on June 30, 2020.

[35] Ms. Knowles submitted a responding affidavit dated July 10, 2020. It is handwritten and quite lengthy. On July 20, 2020, late in the evening, she filed two documents that I suppose are in the nature of affidavits. One is relatively brief and entitled “14A Monday”. The other is lengthier and entitled “14A: Respondant- Applicant =July 20, 2020”. In addition, she filed a number of loose exhibits, including a text exchange with Sarah Maglaris concerning buying Ethan a cell phone, a copy of a letter from the CAS dated July 8, 2020 and a number of other items.

[36] Despite all of this material, there are many gaps in the evidence. For instance:

(a) Although there are allegations of substance abuse, I do not have sufficient particulars to make a finding of fact about those allegations. Mr. Maglaris says that Ms. Knowles has historically had problems with alcohol abuse, but he does not provide any details. He suggests she was charged with impaired driving in 2016, but she deposes that she was charged with dangerous driving, which was later reduced to careless driving. Ms. Knowles admits in her affidavit that she, as well as Mr. Maglaris, had problems with substance abuse. But I do not know what substances and how significant the abuse was; (b) I do not know what either party does by way of employment or what hours they work. Ms. Knowles said she was working four jobs at one point recently, but she did not elaborate on what those jobs were, or what sort of hours they involved; (c) There is an allegation that Mr. Maglaris assaulted Ms. Knowles and he admits that he is facing an assault charge and is now subject to a condition that he not have any contact with Ms. Knowles. I am told that Ethan witnessed the assault, but I have not been given any particulars about what purportedly happened. I am unable to draw an inference that Mr. Maglaris is guilty of committing an act of violence against Ms. Knowles without any particulars and based solely on the fact that he has been charged; (d) On June 17, 2020 the CAS provided a letter to Mr. Maglaris that said as follows: This letter is to confirm that on June 6, 2020, York Region Children's Aid Society commenced a child protection investigation into allegations of neglect and substance use by Ms. Kristina Knowles, causing risk of harm to Ethan. The Society is in the initial stages of the investigation into the above concerns and at this time is in full support of Mr. Maglaris' application for an interim custody order granting Ms. Knowles supervised access to their son. The Society would have significant protection concerns for Ethan Maglaris should his mother's access be unsupervised at this time. I do not know who made the allegations to the CAS or why. I do not know what steps the CAS took to investigate the allegations of neglect and substance use, nor do I know what “significant protection concerns” they had for Ethan that they thought justified limiting Ms. Knowles’ contact with Ethan to supervised access; (e) On July 8, 2020, the CAS wrote the following to Ms. Knowles: This letter is to confirm that on June 6, 2020, York Region Children's Aid Society commenced a child protection investigation into allegations of neglect and substance use by Ms. Kristina Knowles, causing risk of harm to Ethan. As you (Ms. Knowles) are currently cooperatively working with The Society to address the concerns, the Society will not be taking a position with respect to the custody and access schedule for Ethan Maglaris. Again, I know nothing about what investigatory steps the CAS took, what cooperative work Ms. Knowles is doing with the CAS, or why they changed their position with respect to Mr. Maglaris’ motion.

Findings of Fact

[37] There are relatively few facts I am comfortable finding on the evidentiary record before me.

[38] I find that both parties have a close relationship with Ethan and both care for him very much. Both sincerely want what is best for him.

[39] I find that Ms. Knowles has been his primary caregiver since the parties separated four and a half years ago. The status quo, until a month ago, was that Ethan spent the overwhelming majority of his time in the care of his mother. He has attended elementary school for three years, all at the same school, in the catchment area where his mother’s home is located.

[40] I find that Ms. Knowles has actively engaged Ethan in a variety of extra-curricular activities, including swimming, piano, T-Ball and baseball, karate, drama and Kidz Club at the church they attend. She has been principally responsible for arranging a family doctor and attending to Ethan’s medical needs. She has been principally responsible for attending parent/teacher conferences at his school.

[41] I find that Mr. Maglaris and Ms. Knowles have a difficult relationship marked by a good deal of conflict. Ms. Knowles alleges that there was domestic violence in their relationship, but provided too little in the way of detail to enable me to make any conclusions about it.

[42] I have concerns about the current state of Ms. Knowles’ mental health. She deposed that she has a severe anxiety problem, but says she refuses to take medication for it. She instead takes a “mind over matter” approach. I am not able to say what the root of Ms. Knowles’ current problems is, but those problems are manifesting themselves in a number of ways. In particular:

(a) On March 9, 2020 Ms. Knowles received a letter from the principal of Ethan’s school. The principal raised concerns with her about the fact that, to that point, Ethan had been late to school 36 times. His June 2020 report card reflects that he was late 38 times and missed more than 20 days of school. Schools were closed by provincial order as of March 14, 2020. That means that between the beginning of September and the week before March break, Ethan was late or missed class altogether 58 times. The reason: Ms. Knowles slept in and was unable to get him to school on time. This is an obvious red flag. This is a mother who has not been coping well with whatever stresses she has in her life. Not getting up in time to get Ethan to school means, as Mr. Maglaris suggested, that Ethan, age seven, has undoubtedly been left to his own devices many mornings and, more than likely, has not been getting fed until sometime likely around mid-day; (b) On July 7, 2020 I ordered that Ms. Knowles have two access visits with Ethan prior to the return of the motion on July 17, 2020. One of those visits was from Saturday July 11 at 10:00 a.m. to Monday July 13 at 10:00 a.m. Ethan was returned from that visit 8 ½ hours late. Ms. Knowles says he had abdominal pains and she wanted to contact her family doctor for advice; (c) Ms. Knowles missed a scheduled Zoom hearing about the custody of Ethan on July 17, 2020. The reason: she slept in. She explained that she had been up quite late at night preparing materials. Her lengthy affidavit had, however, already been filed. I do not know what materials she was still preparing. I do know that she would have appreciated the importance of the custody motion in her life. Yet she did not manage to make it for a 10:00 a.m. start time. This failure is consistent with the failure to get Ethan to school on time; (d) At just after 7 a.m. on July 17, Ms. Knowles sent the following largely incoherent email to the court: Your Honor. I'm sending this - because I don't want you to think Im Not doing a single thing- Not one second of any day has all this not beeN on my mind -Good Lord. I have not served/ 6b ' or what have you stephen. how can I - Its not complete - Disorganized. Im aware. Your Honor- less than a day-- a day if that - Im trying to get it completed. with time given- not having this complete - doesnt make me an unfit mother- .. Im going get an hours rest before - time to go. I pray upon Today, sorry to send - however if i dont - ill regret that also -. hope you can appreciate - - really - hands tied - all I have thus far. talk soon. (e) On July 20 at about 11:15 p.m., Ms. Knowles emailed a package of material to the court, presumably in support of the motion scheduled for the next day. These materials were also largely incoherent. I will not reproduce them in full, but the following paragraph from her “14A: Respondant- Applicant =July 20, 2020” gives the flavor: I would like to outline that the Intake and assessment service worker Mrs. Natasha Heckley and I have discussed in full: ( Being for the first time after the June 17 th ‘s letter was written and upon the beginning of investigating-) Mrs Heckley and I were able to discuss in and with full and great detail My NON use of any drugs including prescription, given my diagnosis of being severely anxious - as well my very little intake of alcohol, Most importantly my clear denial In Full to of and or have ever had ever showing any concerns of drinking or alcohol abuse. Appreciating by Mrs Heckley and I both that Having a Casual drink with dinner and and or over the weekend : while with Ex partner and the nature and or use of drinking. In addition It was found to be important that Mrs. Heckley and I discuss this in full .. and the going back to 2016 and the careless driving charge. To establish the possibility and or reason for the applicant to provide such allegations.

[43] It is evident to me that Ms. Knowles is in some distress. Again, I am not able to discern the reasons for her distress or to put a label on them. But her difficulties in managing day-to-day living and her inability to put together a coherent affidavit make it clear to me that her mental health is suffering.

Application of the Facts to Ethan’s Best Interests

[44] There is an existing order that Ethan reside primarily with Ms. Knowles. That order was made on consent. In other words, having turned their minds to this important issue, the parties agreed that it was in Ethan’s best interests that he reside on a primary basis with his mother.

[45] At present, I do not have sufficient evidence of a change in circumstances to justify making a wholesale change to that consent arrangement.

[46] Mr. Maglaris’ materials do not satisfy me that Ms. Knowles has a substance abuse problem. I am unable to say whether she does. They also do not satisfy me that she is unable to care for Ethan, or that she is in any way a danger to him.

[47] As I have said, however, I think Ms. Knowles has some health issues that are overwhelming her right now. I am concerned for her and for Ethan.

[48] At present, I think it is Ethan’s best interests that I amend the parenting schedule to lighten the load on Ms. Knowles. The schedule I am going to institute is temporary. It is intended to give Ms. Knowles the opportunity to catch her breath and to get healthy. It is only feasible so long as elementary school students continue to either be on holiday or to attend school remotely.

[49] In particular, Ethan shall continue to have his primary residence with his mother. But his access with his father shall be expanded as follows:

(a) Ethan will spend the balance of July with Ms. Knowles. Mr. Maglaris shall return him to Ms. Knowles’ care by 5:00 p.m. on July 25, 2020; (b) The parties will share the month of August on a week-about rotation. Mr. Maglaris will have Ethan in his care beginning Saturday, August 1, 2020 at 10:00 a.m. Exchanges will occur thereafter each Saturday morning at 10:00 a.m. The party having the care of Ethan will deliver him to the residence of the other party, provided of course, that Mr. Maglaris abides by the terms of any outstanding non-communication condition; (c) Commencing September 5, 2020 the parties will change to a schedule where Mr. Maglaris parents Ethan every other weekend from Thursday at 7:00 p.m. to Tuesday at 7:00 p.m. The first of these extended weekends will commence Thursday, September 10, 2020.

[50] This parenting schedule will have to be reviewed if and when Ethan returns to in-person education in the classroom.

[51] In the meantime, Mr. Maglaris, as the applicant, is to arrange a case conference through the trial coordinators’ office at the earliest available date.

[52] There will be no costs of the motion.

[53] I want to thank duty counsel for their able and helpful assistance to the parties and to the court. They are an invaluable resource.

Boswell J. Released: July 24, 2020