NEWMARKET COURT FILE NO.: FC-20-127-00
DATE: 20200826
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Derek Young
Applicant
– AND –
Kyla Young
Respondent
Debra McNairn, Counsel for the Applicant
Lauri Daitchman, Counsel for the Respondent
HEARD: August 24, 2020
RULING ON MOTION
JARVIS J.
Introduction
[1] The applicant father (“the father”) has brought a motion for temporary parenting relief dealing with the parties’ three children, JLY (almost six years old) and twins PKY and KAY (three years old). The respondent mother (“the mother”) opposes the relief sought.
[2] The father seeks the following relief:
Neither party shall move to any new residence and school district with the children beyond the matrimonial home in Holland Landing, Ontario or either the home of the Applicant’s Mother or the Respondent’s parents in Newmarket, Ontario (Holland Landing and Newmarket school jurisdiction) without Court Order or written Agreement of the parties, as provided herein.
The parties shall make all major decisions affecting the children jointly, including without limiting the generality of the foregoing, where their oldest son starts school whether in September of 2020 or whenever the 2020-21 school year begins. Day-to-day decisions shall be made by the parent with whom the children are residing at the time.
Pending closing of the matrimonial home sale, the children shall forthwith return to and resident in the matrimonial home (with the Respondent should she so desire, in which case the Applicant shall vacate the home prior to the move-in);
The children shall reside with the parties on an equally shared basis, to include overnights with the Applicant whether in the matrimonial home or with him at the home of his Mother in Newmarket, Ontario (depending on whether the Respondent chooses to move back to the matrimonial home and, if she does not, then her one-half time shall continue to be with her at the home of her parents in Newmarket, Ontario), schedule to be as agreed in writing or as ordered, but failing written agreement, on a weekabout basis, with the changeover to occur on Friday evenings.
In the alternative to paragraphs (3) and/or (4) of this paragraph:
The Applicant shall continue having the children with him for the same number of days as he has been for at least the past four months (approximately 18-20 days/month), as scheduled/arranged by the Respondent and also as follows:
a) The Respondent shall provide a schedule to the Applicant on Sunday of each week (email will suffice) detailing those days that the children will spend with him for the next ensuing week (as well as the overnights); and
b) The applicant shall have three overnights with the children weekly (on week nights or weekends, at the Respondent’s option), which overnights shall be included in the weekly schedule referred to in this subparagraph (d). For clarity, the two overnights shall be in addition to the approximately 18-20 full days monthly that the children already spend with the Applicant.
[3] Each party filed extensive affidavit evidence with accompanying exhibits.
[4] The father relied on the following evidence:
(a) His affidavits sworn August 12 and 20, 2020;
(b) An affidavit from his mother, Helen Anne Young, sworn on August 19, 2020:
(c) An affidavit from his sister, Kylie-Anne Doerner, sworn on August 19, 2020;
(d) An affidavit from his brother-in-law, Christopher Adam Doerner, sworn on August 19, 2020; and
(e) An affidavit from Suzanne Culbert, a clerk for the father’s lawyer, sworn on August 20, 2020.
[5] The mother relied on the following evidence:
(a) Her affidavit sworn on August 18, 2020;
(b) An affidavit from her Mother, Pamela Atkins, sworn on August 18, 2020;
(c) An affidavit from her father, Everard De Souza, sworn on August 18, 2020; and
(d) An affidavit from a friend, Shaylene Anne Todd, sworn on August 18, 2020.
[6] Pursuant to an Order made by Douglas J. on April 20, 2020 an urgent case conference was scheduled to proceed on April 27 on which date the conference was held on the limited issues of parenting, sale of the matrimonial home and child support. Leave was granted for a motion to be heard. On July 31, 2020 Himel J. restricted the father’s motion to one hour to comply with the court’s Covid-19 procedural guidelines.
[7] The motion was heard by ZOOM: the parties attended.
Background/Evidence
[8] The parties were married on April 1, 2013 and, according to the mother, they separated on June 8, 2019. The father left the matrimonial home on that date but returned twice during June and July to reside there (the length of those stays not disclosed), leaving more permanently on August 6, 2019. The children continued to reside with their mother in the home. The mother says that when the father left in August the parties had agreed to sell the property: it was listed for sale but the father later delisted it without the mother’s knowledge.
[9] The parties attended mediation beginning in September 2019 and continuing until some (undisclosed) time in November 2019. On October 16, 2019 the father returned to live at the matrimonial home without notice to the mother. She moved to the basement to sleep. The atmosphere in the home was tense. On October 23, 2019 the mother called the police for advice about her safety and was referred to Victim Services to develop a Safety Plan.
[10] The father says that by the time mediation ended in November the parties had negotiated a parenting plan that was sent to the parties but not signed afterwards. On November 14, 2019 there was a disagreement between the parties that led to the mother calling the police because she was concerned about her safety and the impact of the atmosphere in the home on the children. There was no physical violence. The police attended. No criminal charges were laid but the mother says that the police suggested that she take the children with her to her mother’s residence, which she did and where she and the children have continued to reside. The father is living in the home.
[11] As required, the police reported the matter to the local child protection agency (the York Children’s Aid Society or “the Society”). A concern expressed by the mother, and repeated throughout her evidence, was the father’s history of substance abuse. A protection file was opened but closed afterwards. The Society verified that conflict was taking place in front of the children but that the allegations about the father using drugs while in a caregiving role were unverified.
[12] The children have not resided overnight with their father since they went to live at their maternal grandmother’s home. Accompanying the father’s affidavit, and not rebutted by the mother’s evidence, were monthly calendars for March to August 12, 2020 showing the children being in their father’s care for an average of about sixteen days a month (excepting August) from times varying between early morning (9:00 to 10:00 a.m.) to 7:00 p.m. nightly. According to the mother, there have been no overnights because the children have rarely spent that time in their father’s exclusive care and she remains concerned about his parenting skills and substance abuse history.
[13] The mother, supported by her third-party evidence but disputed by the father and his third- party evidence, catalogued a litany of allegations about the father’s suitability as a custodial parent. These included his unreliability in terms of making time for the children, his reliance on his mother for caregiving assistance, his angry behaviour towards her in the presence of the children both before and after she left the matrimonial home and that in the last (almost) six years he had only cared overnight for a child four times, two of those assisted by his mother.
[14] Much was made by the mother about the father’s substance abuse which he disclosed to her in November 2018 and for which he sought and obtained therapeutic assistance (with her help, according to the mother). The father attended Narcotics Anonymous meetings regularly. While the mother alleged that she wanted to believe that the father was no longer struggling with substance abuse but that he refused to undergo random drug testing, he provided evidence that since November 2019 he had voluntarily provided to the mother and the Society on a weekly basis almost fifty urine tests which were reported as “clean”, or negative, for cocaine and other narcotics except for cannabis for which he had a medical prescription for sleeping issues, but not always taken. The father also provided a recent hair follicle sample, also negative but for cannabis.
[15] The mother pointed to two incidents suggestive that the father continued to have substance abuse issues, one dealing with a message discovered by the children on his IPad from someone whom the mother identified as a friend of the father (but provided no name) warning him about “using” and the other involving the discovery by the mother of a Ziploc bag in July 2019 containing a white substance, the contents of which the father disclaimed any knowledge. The father challenged the IPad evidence on the basis that the device would not have been in the children’s possession and the narrative about the Ziploc bag was untrue and unreliable.
[16] The mother proposed that there be no change to the status quo pending completion of the assessment or, alternatively, if a parenting Order should be made that the children spend time with their father on Tuesdays and Wednesdays from 3:30 p.m. to 7:00 p.m., on Sundays from 9:00 a.m. to 7:00 p.m. and that any overnight access be restricted to every other weekend from 3:30 p.m. on Saturday to 7:00 p.m. on Sunday with such other times as the parties could agree.
[17] The father proposed that the children spend time with him on a ‘week-about” basis or, alternatively, that they spend three overnights weekly with him without reducing the amount of time already being spent with him, roughly four days a week from 9:00 a.m. to 7:00 p.m.
[18] The father works in a managerial role in the food service industry. His employer has allowed him to work from home during the pandemic. The mother works for an international beverage company and earns less than the father. No child support is being paid because the father says that he cannot contribute to the expenses for the home and pay support. Both parties want the home sold but the father is not prepared to sell it until a parenting Order is made because he is concerned that the mother will relocate to Oro-Medonte about 85km to be closer to her boyfriend. The mother says that she cannot continue to reside with her mother indefinitely: the father is prepared to vacate the matrimonial home pending its sale. During argument, Ms. McNairn advised the court that the father would consent to an Order for exclusive possession of the matrimonial home in favour of the mother. The mother views that as limiting her future residency options and is concerned that relocating the children to the matrimonial home in circumstances where it could be sold would represent a destabilizing impact on them. It is noteworthy that while the mother was prepared after the parties separated in August 2019 to move to a residence only a ten minute drive from the matrimonial home after, she was not prepared to reaffirm that intention when the motion was argued, alleging that she could not afford to remain living in the same neighbourhood as the matrimonial home and that rentals in the Innisfil and Bradford areas were less expensive. She also pointed out that the father had installed cameras in the matrimonial home: he acknowledged that security cameras had been installed at the front door and in the parties’ bedroom.
[19] The parties advised the court that the children were enrolled in the same school that JLY had attended before the parties separated (and would be entering the first grade) and that the twins had already attended two days of daycare at that school when the motion was argued.
[20] The parties agreed in July 2020 to the appointment of an assessor pursuant to s. 30 of the Children’s Law Reform Act but for reasons not detailed but inferentially suggested by the current pandemic that process has not started.
Discussion
[21] Caution should be exercised when making a temporary Order dealing with custody where the untested evidence about children’s best interests is conflicting. In McPhail v. McPhail,[^1] Lacelle J. observed,
The case law has also sounded a note of caution about making determinations about custody and access on an interim basis when the evidentiary record consists of competing, contradictory and untested affidavit evidence. There is a general recognition that in these circumstances trial judges will be in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what regime is in a child's best interests: see for instance Davies v. Davies, 2017 ONSC 3667 (Ont. S.C.J.) at para. 14; Rifai v. Green at para. 16; Cosentino v. Cosentino, 2016 ONSC 5621 (Ont. S.C.J.) at para. 15; Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); and Collins v. Collins, [2011] O.J. No. 2085 (Ont. S.C.J.).
[22] The caution is warranted because a temporary Order may not infrequently form the basis of a final Order, especially after a significant passage of time: Rifai v. Green.[^2] In Batsinda v. Batsinda,[^3] Chappel J. commented that:
…[o]ften, the courts will conclude that a temporary custody order dealing with all of the incidents of custody is not necessary at the interim stage, and will simply address primary residence, timesharing and some of the most critical incidents of custody such as school issues and routine and emergency medical care.
[23] I am not persuaded by the parties’ evidence that an Order for temporary custody should be made at this time. Even so, there is no compelling reason why an Order should not be made that the children primarily reside with their mother pending completion of the assessment. While the parties dispute the degree of their, and the other parent’s, caregiving ability and history before they separated, the facts are that the father left the children in their mother’s care in June/July 2019 and for two months after he left the matrimonial home on August 6, 2019. There is no evidence that the mother did not properly care for the children afterwards, that they are unhappy or that their needs have been unmet. Whether a “week-about” arrangement as proposed by the father would be in the children’s best interests is purely speculative at this juncture.
[24] There is no evidence that a major decision involving schooling, healthcare or religion needs to be made. This was confirmed by the parties during argument of the motion.
[25] The mother should return to the matrimonial home with the children. Her evidence is that her current living circumstances are untenable. This is a residence with which the children are familiar. The father can return to live with his mother. The parties’ financial circumstances cannot afford another housing cost as proposed by the mother in circumstances where the parties are financially stressed already with carrying the costs of the home, no child support is being paid and it is uncertain when the home, even if swiftly listed for sale, will sell in the near future. The impact of the current health pandemic on realty sales is another unknown factor. But the father must remove the security camera from the master bedroom in the home and any other cameras or other recording devices that may have been installed except for the front door. There was no evidence about the security system for the residence. Only the mother shall have access to, and authority over, the front door security.
[26] The mother’s concerns about the father’s history of substance abuse cannot be ignored. Nor can the father’s considerable efforts to assuage those concerns. The issue is the continuing need for scope and frequency of testing. The father has proposed to continue weekly drug screening for a limited, but unspecified, time on a (apparently) voluntary basis: the mother has proposed that an Order be made requiring the father to provide a urine sample on 48 hours notice on a bi-weekly basis and that he submit to hair follicle testing on a quarterly basis ensuring no gap in the periods covered by the testing. Neither of the draft Orders proposed by the father contained any provision for testing.
[27] A father’s willingness to attend for random drug testing is an important factor when dealing with allegations about drug use potentially affecting children’s safety and well-being.[^4] Given the evidence in this case, it would not be appropriate to ignore the issue of drug testing and leave it to the parties to determine its parameters. That will only lead to further conflict and expense. The current practice should be modestly relaxed and structured towards more meaningful time for the children and their father while addressing the mother’s concerns about overnight time with him.
Disposition
[28] Accordingly, the following is ordered:
(a) The children shall primarily reside with their mother at this time;
(b) Pending sale of the matrimonial home, the children shall continue to reside in their current school district;
(c) The mother shall have exclusive possession of the matrimonial home effective August 28, 2020 (3:00 p.m.);
(d) The father shall forthwith remove all camera and other recording devices from the matrimonial home except for the front door security camera. He shall forthwith take all such steps as may be needed to transfer full control of, and access to, the front door security camera to the sole control of the mother;
(e) On a bi-weekly basis the father shall attend for urine testing on 48 hours notice from the mother and supply to her the results of those tests within 3 days of his receipt of them;
(f) Starting August 30, 2020, the children shall spend time with their father on Sundays from 9:00 a.m. to 7:00 p.m.; on Tuesdays, Wednesdays and Fridays from 3:30 p.m. to 7:00 p.m. If, due to Covod-19 restrictions, the children’s school or daycare are closed, the weekday time shall start at 9:00 a.m;
(g) As a pre-condition to the children spending overnights with their father, he shall provide to the mother on or before September 14, 2020 a hair follicle drug test. Provided that the test is negative, with the possible exception of cannabis, the children shall spend overnights with their father on a bi-weekly basis starting on Friday, September 18, 2020 when the children would otherwise be in his care until Saturday at 7:00 p.m. For those overnight weekends, there shall be no Sunday time with the children. Consideration will be given to expanding the children’s weekend time with their father to include Saturday nights after four Friday night weekends have taken place. If the parties are unable to agree that expanding overnight time is in the children’s best interests, they may contact the judicial assistant to arrange a motion-scheduling teleconference with me on that issue;
(h) The father may select the drug testing facility;
(i) In the event of any dispute about the results of the drug testing that the parties are unable to resolve, their lawyers may contact the judicial assistant to arrange a teleconference with me to deal with that issue;
(j) The mother shall deliver the children to their father and he shall return them to her care;
(k) Neither party will consume alcohol or any non-prescribed controlled or illicit substances nor will they be under the influence of alcohol or any non-prescribed controlled or illicit substances during the children’s time with them;
(l) Neither party will disparage the other in the presence of the children and shall ensure that no third party known to them does so either;
(m) The parties shall forthwith engage, and equally share the cost of, Our Family Wizard (“OFW”). Except for exchanges of the children, the parties shall limit their interactions to matters involving the children and then only through OFW of their lawyers; and
(n) The parties shall take all such steps as are reasonable and required by the assessor to expedite the assessment process.
[29] A copy of this Ruling shall be provided to the assessor by the parties. Due consideration should be given to the court’s reluctance to more expansively deal with the parenting issues in the absence of a more robust evidentiary record.
[30] If the parties are unable to agree upon the costs of this motion, the following directions shall apply:
(a) The father shall deliver his submissions by September 8, 2020
(b) The mother shall deliver her submissions by September 15, 2020;
(c) Reply (if any) by the father by September 18, 2020;
(d) All submissions shall be single page, double-spaced. In the case of (a) and (b) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;
(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;
(f) Counsel are to advise the judicial assistant (Meghan.Billings@ontario.ca) when they have filed their material.
Justice David A. Jarvis
Date: August 26, 2020
[^1]: 2018 ONSC 735, 2018 CarswellOnt 1013, at para. 21.
[^2]: 2014 ONSC 1377 (Ont. S.C.), at para. 17.
[^3]: 2013 ONSC 7869 at para. 22.
[^4]: Mattalo v. Perri, 2011 ONCJ 899, 2011 CarswellOnt 18579.