Court File and Parties
COURT FILE NO.: FS 11794/20 DATE: 20200807
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Holly Morrison Applicant – and – Shawn Michael Morrison Respondent
Counsel: C. Potter, Counsel for the Applicant C. Vervaeke, Counsel for the Respondent
HEARD: July 30, 2020
McARTHUR, M.D. J.
Background
[1] The applicant and the respondent were in a relationship of approximately 11 years. They married in 2013. They are the parents of 4 children ages 4 (Justin), 8 (Kassandra), 10 (William) and 11 (Maryjane). The applicant also has custody and care of a 16 year old daughter, McKayla, from an earlier relationship who continues to also reside with her.
[2] The respondent is millwright employed with a company in Brantford since approximately August 2019. He is currently laid off due to work shortage. Prior to his current employment, he operated a business until it became insolvent and bankrupt in 2015. He then remained home and substantially cared for the children full-time until taking employment in 2019.
[3] The debt and financial circumstances of the family are undoubtedly difficult and remain precarious. Significant dispute has also arisen as to income, expenses and financial matters as a result of the separation.
[4] The applicant is 36 years. She returned to work on a full-time basis since approximately 2017 at the CAMI Assembly plant in Ingersoll, Ontario. She is currently laid off but on a rotating recall and is also on-leave at her request given the current family circumstances. When working, she works evenings from 11:00 pm to 7:00 am, Monday to Friday.
[5] The parties separated on March 21, 2020 and both continued to reside in the family home.
[6] On June 15, 2020, the applicant, to the surprise of the respondent, moved with the children to the residence of her sister. This residence is a 10 kilometer drive from the family home. In any event, each of the children will continue in the school each have attended, maintain their various activities and are involved with other extended family members who are nearby.
[7] Both parties have had their respective lawyers representing them since at least around the time of the June move.
[8] On July 22, 2020, Justice Campbell granted leave for the applicant to bring this motion before a case conference on the basis of urgency and emergency.
[9] As indicated by counsel during the hearing, the respondent also intended to file documentation to seek primary care and custody of the children. The parties have each filed affidavit and responding materials for this hearing.
[10] Urgency arose on the basis of the applicant’s allegation that the respondent withheld the children after an agreed upon period. The children were in fact returned to the respondent on July 25, 2020. The respondent maintains the applicant left the home surreptitiously with the children and that her domineering approach is a main source of the problems and conflict about the residence and parenting of the children.
[11] For the purposes of this motion, the urgency is confined solely to the issues of parenting and the residence of the children.
[12] As has become well-known, motions should generally not include the non-urgent issues raised in the application. There should be no returning to the former practice of wide-ranging motions nor affidavit-wars. The expectations and policy objectives of the Family Law Rules are designed to expect both parties to give serious consideration to the issues and to address matters beforehand. This has been commented upon in a number of decisions. See Kobow v. Kobow, 2007 ONCJ 514, [2007] O.J. 4317 and Rosen v. Rosen, [2005] O.J. 62.
The Issue
[13] The issue is to whom interim primary residence of the children should be with, access terms as well as ancillary orders related to custody on an interim basis. In this case, should the children remain primarily with the respondent, the applicant, or on an alternate parenting arrangement in the interim?
The Legal Principles
[14] The legal issue involves what is in the best interests of the child. The court is required to consider the provisions outlined in Section 24(2) of the Children’s Law Reform Act in relation to sole or interim custody. Additional considerations are contained in Section 24(3) and (4) CLRA. Those provisions are as follows:
24 (2) 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 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.
(3) 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.
(4) 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.
[15] The current legislation is permissive and not mandatory. The court may grant custody or access to the child to one or more persons. The best interests of the child in situations of breakdown are better served with considered parenting plans and communications that acknowledge and will work beyond the past difficulties to flexibly address the actual needs of the child.
[16] Unilateral actions and adversarial approaches exacerbate the winner/loser effects and play into dangers of “custody” and “access” terminology. This case is an example how unilateral actions and approaches by both parties that have created conflict and crisis. Conflict, particularly where the children become involved, must be discouraged and can be avoided in circumstances like this.
[17] The approach encouraged by the current family rules, existing legislation and counsels’ practice must, as difficult and frustrating as can be to the parties mired in their subjective perspectives, be respected and at least considered by both parties. Otherwise the parties unwittingly subject the children and the court to the undesirable effects of affidavit wars, increased conflict, deepened division, increase in children’s anxiety and generally obscure any objective consideration of what is in the best interests of the children.
Position of Applicant
[18] The applicant submits that she has been the primary caregiver of the children throughout and the principal caregiver since September of 2019 when the respondent took on employment which takes him away home for substantial times during each day. She submits the status quo of the children in her care should be recognized and interim custody of the children be granted to her with access to the respondent.
Position of the Respondent
[19] The respondent submits he has long been in a substantial caregiver role for the children and, since he is now not employed, he has been and can continue to be a primary caregiver of the children. He is also prepared to consider alternate shared custody arrangements with the respondent.
Analysis and Discussion
[20] There is conflicting affidavit evidence between the parties on a number of matters that makes some of the evidence as to the respective plans of care and circumstances difficult to assess. This extends to the wishes of the children.
[21] Differences and conflicts between that parties initially have their beginning mainly around their finances and eventually included the respondent’s time associated with his employment including the driving time to work and among various work sites. The respondent might frequently be off to work early as 4:00 am and home in the late afternoon or early evening. The applicant would work the night shift and was home through the day and can be home with those children who did not attend school. The Covid circumstances since March 2002 have, not surprisingly, substantially exacerbated the family challenges that already existed.
[22] The plan of care of each party generally adequately addresses the needs of the children. The applicant and respondent both rely on other family members to assist. The applicant proposes that her 16 year old daughter could also assist substantially. In either event, both parents have demonstrated their ability and at least a past willingness to parent in a manner that meets the children’s needs.
[23] Each party alleges conduct and some negative influences upon the children since mid June 2020. On the evidence before me, both of the parties have had the ability and have been in substantial caretaking roles with all of the children throughout the years. This background provides some context to understand the relationship breakdown and the conflict that has arisen since mid June in particular.
[24] Whether it involves the domineering approach of the applicant as maintained by the respondent or the absence of the respondent from the family when working as maintained by the applicant, the conflict has by and large avoided personal and physical violence. This court acknowledges the security camera incident involving the applicant that gave rise to a mischief charge against the applicant. Notwithstanding this incident, the respondent is not pressing the prosecution of that matter.
[25] The applicant has portrayed her actions as facilitating parenting time with the respondent but that the respondent has not. The applicant also raised the past drug use of the respondent and a gun cabinet, among other complaints and concerns and engaged the police to conduct a welfare check on the home as known by the children.
[26] The respondent has shown the security camera footage to some of the children and spoke to them of the applicant being charged criminally, among other unfortunate comments.
[27] I put little weight on the respective allegations each has made of the other in this regard. Firstly, the issue of some past drug use was made by the applicant well into the dispute. There is no other evidence of a history or any ongoing drug use or abuse. The reference to a gun cabinet was clearly made with an implication of improper gun possession or use. No supporting evidence exists despite the subsequent police involvement.
[28] These matters all arose during the tug-of-war contest that has taken place between the parties despite their lawyers’ involvement. Each party took an all-or-nothing approach to custody of the children. These features have been used by each of the parties to gain some advantage concerning the children in these circumstances. Assigning blame beyond this will do little in this case, suffice to say that exposing the children to any adult conflict or disparaging the other, demonstrates each have varying degrees of a lack of insight and failed understandings of the negative effects on the children of their exposure to adult conflict.
[29] The best interests of the children require stability, care and consistency and the involvement of both parents. The law recognizes that parents should have maximum contact with children provided this is consistent with the best interests of the children. Each of the parties are capable and have demonstrated their ability to share parenting duties before the separation. There was some sharing of the duties after separation and after the applicant moved her residence. There was no acquiescence by either party to the actions of the other.
[30] I am satisfied that the applicant’s move to her sister’s residence in June came as a surprise to the respondent, however, this was, on this evidence before me, not done by the applicant to undermine the respondent’s relationship with the children. However, the applicant’s efforts to engage the police on the pretext of a welfare check is more a desperate reaction within the conflict. In any event, the conflict and it’s nature must be placed into a proper context to be understood.
[31] There is no clear and cogent evidence that the parties cannot share parenting and residence of the children nor would this in any way be harmful to the children. The only caveat is that if conflict persisted and is engaged in this by either party, such would be to his or her own peril as well as contrary to the interests of the children.
[32] As mentioned, the fact the applicant has been charged criminally is of little weight as far as the residence and care of the children are concerned. In the overall context, both applicant and respondent have, prior to separation, adequately parented the children in significant ways during their relationship with few, if any, other negative incidents. The children also appear to enjoy a good relationship with both parents.
[33] Although there has been recent conflict, this is certainly not the pattern of their relationship over 11 years but rather the failure of mutual all-or-nothing approaches and responses. Such conflict can certainly be reduced and remedied with some boundaries and effort and with a wider, less-subjective consideration as to the best interests of the children. Also, both parties are currently in similar positions and each is able to care for the children.
[34] From the materials available, the children’s needs of love and nurturing have been over the years suitably addressed by both parties. The children have residences now with both parents which are in close proximity to the other.
[35] I am not prepared to make any finding on what probable decision might be at trial. The circumstances of the parties, the current pandemic effects on each of their respective and overall situations are unknown, however, it appears likely that both parties will be resuming their full-time employment in the near future.
Decision
[36] The parties shall share the custody and parenting of the children on an interim basis as follows:
a. The children shall reside with each parent on an alternate week basis from Sundays at 5:00 pm through to the following Sunday at 5:00 pm with the children residing with the applicant commencing Sunday, August 9, 2020;
b. During the week that the parent, with whom the children are not residing, shall have telephone phone/Facetime or similar video access to the children, individually or collectively, to include and not be limited to Tuesdays and Thursdays, for a period of one hour on each day in total at times established by that parent and communicated in advance to the other parent at the commencement of the residence period.
c. The parent who has had the residence of the children for the past week shall arrange for and transport the children to the other parent’s residence and this may include adult third parties but shall exclude any new or prospective partners of either parent. In view of the current release terms of the charge against the applicant, the applicant may travel and drive to but not enter upon the property or in the residence of the respondent;
d. Each parent shall communicate with each other electronically throughout the duration of the months of August, September and October until the October 8, 2020 case conference and shall consult on educational, medical and related matters concerning the children. Any decisions must be jointly made by the parties. The parties shall otherwise have contact and communications limited to indirect contact through their lawyer and adult third parties with communications and contact further limited to matters involving the children and related issues concerning the separation.
e. Each parent shall encourage the parenting of the other with all of the children and neither parent shall make any comments, remarks nor conduct themselves in any manner to disparage, undermine or alienate the other parent with any of the children or the other parent’s relationship with any of the children. Neither parent shall at any time directly or indirectly communicate any aspect of the ongoing litigation, proceedings or discuss matters arising in this proceeding with any of the children.
f. The parents may otherwise be in the presence of the other with their lawyers or in the event of participating at any joint mediation or counselling or when transferring the residence of the children. In the event of the transfer of the children, the other parent shall not enter upon the property or in the residence of the other parent.
g. The Office of The Children’s Lawyer shall be appointed to investigate matters that bear upon the best interests of the children in view of the disputes raised by the parents. There is a significant need in this case for an objective perspective that is experienced and understands the various effects of the circumstances upon these 4 children.
[37] Each party shall bear their own costs in the circumstances.
“Justice M.D. McArthur” Justice M.D. McArthur