Court File and Parties
Court File No.: 336/17 Date: 2020-08-20 Superior Court of Justice – Ontario
Re: Elizabeth Anne VanVeen, Applicant And: Michael Muizelaar, Respondent
Before: Mr Justice Ramsay
Counsel: Jonathan Margolin for the Applicant Carly White for the Respondent
Heard: August 20, 2020
Endorsement
[1] The Applicant moves for an order that the Respondent return their child to her custody. The Respondent moves for a temporary order giving him custody. The underlying proceeding is the Respondent’s motion to change the final order of E.S. Martin J. dated April 4, 2019.
[2] The parties never lived together. They had a daughter, Naomi Muizelaar, who was born on March 15, 2015. The Applicant has a son, Noah, from a previous relationship. Noah is eight years old. The Applicant and Noah’s father have joint custody of him.
[3] In September of 2017 the Applicant applied for custody of Naomi. Initially the Respondent wanted joint custody, but in April 2019 he settled for access. The co-parenting proceeded without incident until the Applicant moved in with her present partner, Benjamin, in late 2019.
[4] The Respondent deposes that the child began not wanting to go home after access visits. She told him:
a. Benjamin yells a lot at the Applicant and at Naomi;
b. Naomi was grounded for two days, stuck in her room, for throwing a rock into the pool;
c. Benjamin locks Naomi in her room and only lets her out for meals;
d. When the Applicant gets yelled at by Benjamin, Naomi goes into her room and hides and cries (this happens a lot);
e. Naomi and Noah would hide outside sometimes when Benjamin would yell at the Applicant;
f. Benjamin and the Applicant would plan ‘family events' with Benjamin's children on days when Naomi and Noah could not attend, and then go into great detail about the events, knowing full well how upset this made Naomi; and
g. Naomi heard the Applicant tell Benjamin that she will finish crying so he can continue to yell at her.
[5] The child also reports that a man named Sam shares the bedroom in the basement that she shares with her brother.
[6] The Applicant deposes that these allegations are not true. Sam is a family friend and father of a seven-year-old who rents an apartment in the basement that has a separate entrance and no common elements with the family residence. Although not on the record, the Applicant says that the children have separate rooms in the basement. Benjamin’s children have separate rooms upstairs.
[7] The Applicant makes her own set of allegations. She says that in 2018 and again in 2019 the child complained of a scratch on her vagina. After both incidents the child displayed what could be interpreted as sexualized behaviour. The Applicant suspects that the Respondent is sexually abusing the child. She reported the allegations, but nothing was substantiated. She says that the child does not like to go for access visits and is always happy to be home. The Respondent contradicts this. He remembers the scratches but had nothing to do with them.
[8] On or about July 1, 2020 the Applicant sent her two children on access visits with their respective fathers. Both fathers overheld the children. The Respondent’s decision was triggered by the child telling him that Benjamin made her drink wine. The Applicant explains that Benjamin gave Noah some juice and Noah bragged jokingly to the other children that it was wine. The Respondent commenced the present motion to change and brought the motion for temporary custody. The Applicant brought her motion for the return of the child. Negotiations are underway between the Applicant and Noah’s father.
[9] The Applicant’s sexual allegations are dated and unsubstantiated. They are also circumstantial. The child has never complained. The sexualized behaviour, if it happened, does not point to any particular person. In this case, if any sexual abuse happened, there is a more likely suspect than the child’s biological father.
[10] The Respondent’s allegations are more recent, but I have to remember that they are largely based on utterances of a five-year-old. FACS investigated but has closed its file without expressing concern. Some of the child’s utterances could be the result of misperception or misunderstanding by the child or between the child and her father.
[11] Two objective facts are worthy of note. First, both fathers are complaining at the same time. Second, Benjamin’s children, who live with him half the time, have bedrooms upstairs while the Applicant’s children, who live there most of the time, have bedrooms in the basement.
[12] Taking all the evidence in the light of these two facts, I accept that Naomi does not like to go home and that she is not happy with Benjamin. I cannot be sure about everything she says, but I accept that she is treated like a stepchild, so to speak, in her own home, that Benjamin’s discipline is excessive, that she does not like it and that it is not good for her. I think she needs to have her own home with her father and to spend less time with Benjamin. I do not think it necessary for the mother’s access to be supervised. I think it in the child’s best interest to make the following temporary order varying the order of Martin J. as follows:
The Applicant and the Respondent shall have joint custody of the child.
The child’s principal residence shall be with the Respondent.
The Respondent shall be responsible for decisions involving enrolment in school.
The child will reside with the Applicant on Wednesdays from 4:00 pm to 7:00 pm and on alternate weekends from Friday at 5:00 pm to Sunday at 7:00 pm.
The Applicant will not permit Benjamin to discipline the child.
Child support payable by the Respondent is terminated as of June 30, 2020.
[13] The parties may submit brief submissions to costs electronically within 5 days.
J.A. Ramsay J.
Date: 2020-08-20