COURT FILE NO.: FC-20-1018

DATE: 2020/11/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicholas John DeJong

AND:

Rebecca Lynn DeJong

BEFORE: D. Summers J.

COUNSEL: Susan Galarneau, for the Applicant Mimi Marrello, for the Respondent

HEARD: August 21, 2020, by Zoom Video-conference

ENDORSEMENT

Nature of the Proceeding

[1] The parties’ two boys, ages nine and six years, are the focus of this motion. On July 22, 2020, the respondent mother removed them from the matrimonial home without notice or the consent of applicant father. He now moves under the Divorce Act[^1] and the Family Law Act[^2] seeking orders for temporary sole custody, primary residence, a parenting schedule, non-removal of the boys from the City of Ottawa, police enforcement, and exclusive possession of the matrimonial home. Leave to bring this motion on an urgent basis was granted on August 10, 2020 by Shelston J.

[2] The mother opposes the motion. She says she took the children and left the home out of fear for their safety and her own. Although she does not have her own motion before the court, she asks for an order awarding her temporary sole custody, limited access to the father, and exclusive possession of the matrimonial home. Notice of the relief she sought was included in her affidavit sworn August 7, 2020. I am satisfied that the father had notice of her claims and addressed them in his reply affidavit.

[3] At the outset of the hearing, the mother sought an extension of time to September 18, 2020 to serve and file her Answer and Financial Statement. The order was made on consent.

[4] Also, on consent, I made an order validating service of the Application, the Affidavit in Support of Custody and Access, Financial Statement, Certificate of Financial Disclosure, Notice of Motion and Affidavit sworn July 31, 2020, as accepted by the respondent’s counsel.

[5] Immediately after the motion on August 21, 2020, I made an order providing the father with video access that night for 30 minutes at 7:00 p.m. and in-person access on each of Saturday, August 23 and Sunday, August 24, 2020, from 11:00 a.m. until 4:00 p.m., to be exercised in the community. Then, on September 3, 2020, I released a brief endorsement setting out my order, with reasons to follow. The order included temporary without prejudice joint custody, the return of the children to the home by September 4, 2020 at noon where they would be in their father’s care until Saturday, September 5^th^ at 1:00 p.m. At that time, the father was required to vacate the home for the mother to return. Thereafter, the order provided temporary without prejudice parenting time to the father, every Tuesday and Thursday from 3:00 p.m. until bedtime and every Saturday from noon until Sunday at 1:00 p.m.to be exercised in the home in the mother’s absence. I further ordered the matter returned to me the week of October 19, 2020 to review the residential schedule and other parenting issues. The issue of exclusive possession was adjourned to the review date which has now been rescheduled to November 13, 2020 at 2:00 p.m.

[6] These are my reasons.

Factual Context

[7] The parties married on July 28, 2006. Their eldest child, Jack Bane DeJong, was born March 1, 2011. His brother, Bennett Tate DeJong, was born June 17, 2014.

[8] The father is 35 years old and works as a paramedic. He has been on medical leave since January 2020 and in therapy since February for job related Post Traumatic Stress Disorder (PTSD).

His loss of earnings benefit from the Workplace Safety and Insurance Board (WSIB) is $65,000 annually.

[9] The respondent mother is also 35 years old. She has a four-year degree in biochemistry. Between September 2019 and March 18, 2020, she worked part-time as a pharmacy technician. This was her first job outside of the home after Jack was born. She left this position because of COVID-19 and has not returned.

[10] The parties attended mediation in March 2020. The pandemic and the declaration of emergency brought that process to an abrupt halt. The mother says she did not want the marriage to end. The father vacillated between wanting a trial separation and a final split. They continued to live under the same roof.

[11] The parties returned to mediation in June 2020. On July 20, 2020, the respondent father declared the marriage over and the separation final.

[12] On July 22, 2020, the mother, after insisting the father go to the grocery store, left the home with the children. When he returned, they were gone.

[13] Later the same day, he received a letter from the mother’s counsel saying she left for safety reasons. The letter warned him not to contact her, directly or indirectly. If he tried, she would call the police.

[14] The father called the police himself. They contacted the mother and, in turn, advised him that the children were safe. The police informed the Children’s Aid Society of Ottawa (CAS) of the situation and their involvement with the family.

[15] It took a week and the efforts of counsel to arrange telephone contact. But for the children volunteering that they were at their maternal aunt’s home, the father was not given any information.

[16] Over the next thirty-two days, the father had only three further telephone calls from the children. The last call consisted of silence and a hang up.

[17] When this motion was heard, the father had yet to hear from the CAS.

Parenting

[18] Under s.16 of the Divorce Act[^3], the court may make an interim or final order for custody of, or access to, any or all the children of the marriage, on application by either or both spouses. In doing so, the court shall consider only the best interests of the child as determined by reference to their condition, means, needs and other circumstances. If relevant to a person’s ability to act as a parent, past conduct is considered.

[19] As said in Young v. Young[^4] and Gordon v. Goertz[^5], best interests must be determined from the perspective of the child, not that of the parents. The rights and preferences of parents are not the focus. Their interests play a role only to the extent necessary to ensure the child’s best interests.

[20] The court must also give effect to the maximum contact principle that a child of the marriage should have as much contact with each spouse as is consistent with the child’s best interests. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.[^6] As stated in Gordon v. Goertz, supra, children should have maximum contact with both parents if it is consistent with their best interests.

[21] I also consider the following:

• Self-help by parents ought to be discouraged.[^7]

• If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent.[^8]

• The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.[^9]

• A parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply cannot be trusted with custodial authority they would likely abuse.[^10]

The Father’s Position

[22] The father submits the mother wrongly removed the children from their home with the hope of gaining an advantage in their parenting dispute and denies her allegation that his mental health renders him unable to parent. He says her decision to take matters into her own hands and withhold the children from him demonstrates her inability to prioritize their best interests over her own goals. He contends that after he announced the separate would be final, she orchestrated and planned her surreptitious departure with the boys. She also left with Jack’s passport, her passport,

$2000 in cash, some of the father’s financial documents, gift cards received on his birthday and roughly $44,000 from their joint bank accounts. The sum represented the entire balance in one account and half the balance in the other.

[23] The father submits it is in the best interests of the children to be in his sole custody and primary care. He argues that he has been a fully engaged and equal parent. As a paramedic, he worked twelve-hour shifts, fourteen out of twenty-eight days. He says his schedule allowed him to be equally involved and active in the boys’ day to day care, their routines and activities and to share in household chores such as meal preparation, grocery shopping, cleaning, laundry and home maintenance. He contends he has the ability to care for the children and put their best interests

first. His reply affidavit also includes a request for interim joint custody and equal time sharing, in the alternative.

The Mother’s Position

[24] The mother submits that she has been the children’s primary caregiver irrespective of the father’s work schedule or recent medical leave. She asserts that as the stay at home parent, she was responsible for the needs of the children including their morning and night time routines, pick up and drop off at school, organizing and getting them too and from their activities. She acknowledges that hockey was a shared activity and says they both promoted the boys’ involvement.

[25] The mother’s immediate concern regarding the father’s ability to parent centers on what she alleges is his volatile behaviour related to his PTSD. She says he has been increasingly withdrawn, angry, and unpredictable. She says he is easily triggered and can be verbally and emotionally abusive toward her and toward the children. She says the three of them walk on eggshells to avoid upsetting him.

[26] According to the mother, she left for safety reasons - physical and psychological - and to de-escalate the conflict. She submits it is in the children’s best interests to live with her and to be in her temporary sole custody with limited access to their father that should only consist of scheduled telephone and FaceTime contact. She says if there is in-person parenting time, it should be restricted to a few hours during the day and supervised until the CAS completes its’ investigation.

Analysis

Decision-Making

[27] I am not persuaded that the parties are unable to make child related decisions together. Although the mother asserts that she was the one to reach out and arrange certain services for the children, there is no indication of disagreement between the parties in relation to the steps taken. It appears they agree that Jack may have some special needs. The mother says Jack struggles with emotional self-regulation, and at times, his behaviour can be explosive. The father does not challenge that description and speaks of Jack’s recent assessment for Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. The results of the assessment, if available, were not before the court. The mother alleges that the father has been uninterested in the learning new parenting strategies taught by the third-party service providers engaged to help them. He denies this. I also consider that the parties were able to agree that the boys would attend school virtually in September.

[28] Although the mother says she left the home on July 22, 2020 for safety reasons, she does not say what, if anything, happened that day. Nor does she explain why, after she left, she did not move quickly to bring her concerns before the court. Instead, she continued to take matters into her own hands. She withheld access, took a week to facilitate even a telephone call between the boys and their father and thereafter appeared to limit telephone access to a call a week. On that front, initiating access was squarely in her court as she threatened police involvement if the father tried to make contact. Considering the evidence before the court including correspondence between counsel, I find the mother’s allegation that the father did not seek more access to be somewhat incredulous. Nor do I accept her statement that the children, at 9 and 6 years of age, were happy and content across town at their aunt’s house believing they were there on holiday, without any face to face or physical contact with their father.

[29] I am not persuaded that it is in the best interests of the children to order sole custody to either parent based on the conflicting and untested affidavit evidence before the court. I also find that the mother’s actions cast doubt over her ability to prioritize the children’s overall best interests when it comes to their relationship with their father. Removing the children from their home in the way she did and withholding them from their father was a serious and prolonged error in judgement. Therefore, I order temporary joint custody and decision-making. I find it in the best interests of the children at this stage of the litigation to ensure the father has an equal voice in the important decisions affecting them.

Time Sharing

[30] Each party asserts the other has mental health issues and each accuses the other of making false allegations as a means to manipulate the situation and gain advantage in the litigation. The mother alleges that the father is angry, volatile, emotionally abusive and that he threatened to harm her physically. The father says she has a history of self-harm and that threatening to harm herself is her way or controlling him to do as she wishes. The example he gives is of her alleged threat in June 2020 to jump in front of his car if he left with the children to visit his parents for the afternoon.

[31] The mother denies the allegations that she is prone to self-harm. She provides two letters from her psychologist, Dr. Laure-Marie Carignan. The first one is dated August 7, 2020. There, the doctor says she has not seen any evidence of self-harm from the mother or a tendency toward it. According to Dr. Carignan, she began working with the mother in May 2019 to help her deal with the children’s behaviour and that of the father.

[32] The second letter from Dr. Carignan is dated August 17, 2020. It lists the concerns that she says the mother shared with her regarding the father’s behaviour. The letter includes several excerpts from her clinical file notes between February 27, 2020 and July 23, 2020 – the day following her departure from the home.

[33] The mother also provided a copy of the letter she sent to the father’s treating psychologist, Dr. Caroline Page, on March 26, 2020. In it, she told Dr. Page about their home life. She wrote about how the father lashed out verbally. She described his behaviour as unpredictable, worrisome, sometimes confusing and how she and the boys never knew what to expect. She also said that the father once threatened to push her down the stairs if she got pregnant again. She described him as rigid, self-isolating, and easily triggered. She said he often snaps at the boys, says he wants to be alone, and secludes himself in the basement. She added that conflict with the boys – especially the eldest - can escalate quickly.

[34] The father also provides a letter from his psychologist, Dr. Caroline Page. It is dated July 24, 2020. Dr. Page states that the father’s progress has been significant, that he is open to therapy, and motivated for treatment. She says, “at no time did he demonstrate any evidence and/or behaviours that he would be a [sic] risk of harming himself or others including his children.” The father’s counsel stressed that Dr. Page’s letter post-dates the letter she received from the mother by several months Dr. Page’s resume was available to the court. It shows significant experience treating first responders and trauma. I note, however, that Dr. Page referred to physical risk but not to the risk of psychological harm also alleged by the mother. I am concerned by this omission.

[35] I find there is considerable consistency between the concerns the mother expressed to Dr. Page in March 2020 and her own psychologist and her evidence now. That is not to say that the mother’s allegations are true. Rather, it is to say that she raised concerns with two health care professionals months ago and is not advancing them now for the first time in the context of litigation.

[36] Based on the record before me, I find it is in the children’s best interests to exercise caution in relation to the father’s parenting time. In my view, an order providing access in the home, three times a week, on Tuesdays and Thursdays from 3:00 p.m. until bedtime and Saturdays from noon until Sunday at 1:00 p.m. is appropriate. I make this order on a temporary basis subject to early review late in October. In the interim, I am satisfied that this schedule provides for the children and their father to spend time together frequently. It allows him to spend time with the boys after school, to help with homework, engage in activities, prepare dinner and put them to bed. His parenting time allows for leisure time, activities, and the chance to have the children visit with paternal relatives should the father wish.

[37] Custody and access matters require the court to consider the children’s views and preferences, where they can be reasonably ascertained. Understandably, this evidence was not available to the court at such an early stage in the litigation. However, the eldest child, Jack, is 9 years of age and capable of sharing his views and preferences with a clinician. It would be of considerable assistance to the court to receive a Voice of the Child Report for Jack from the Office of the Children’s Lawyer. On the court’s own motion, I make an order with that request. The

youngest child, Bennett, is just six years old. It is the court’s information that Voice of the Child Reports are not available for children under seven years.

Exclusive Possession

[38] Both parties sought an order for exclusive possession. Both said the boys needed the stability of their home, especially with school scheduled to resume within a few weeks of the hearing date. As I will explain, I decline to make an order for exclusive possession, at this time.

[39] As required, I considered the factors under s. 24(3) and (4) of the Family Law Act,[^11] to determine each party’s request for exclusive possession. They are:

(a) the best interests of the children including the possible disruptive effects on the child of a move to other accommodations, and the child’s views and preferences, if they can reasonably be ascertained;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

The Father’s Position

[40] According to the father, the respondent mother already had other accommodations with her sister and if she is unable to remain with her sister, she has the ability to return to work and earn income to secure alternate housing. In addition, he pointed to the funds in her possession - $44,000 from their joint accounts; $67,000 in a TFSA; and other savings of $21,000. He also said he hoped to buy her interest in the house.

The Mother’s Position

[41] The mother said she could not remain at her sister’s. She said that was temporary arrangement, the boys needed stability before returning to school, and her belief that it was not safe to have the family under one roof. According to the mother, she could not afford alternate accommodation. She did not have employment and although she received CERB for a few months, it ended. She did not say why.

[42] On the record before me, I was unable to determine the issue of exclusive possession on the record before me. The respondent mother had not yet filed a financial statement and the father’s income from WSIB was less than his usual. The available evidence did not satisfy me of either party’s financial ability to obtain alternate accommodation in the face of the fixed costs to run the matrimonial home. Thus, pending receipt of more fulsome information, it will fall to the parties to stay with family or friends when they are not scheduled to be in the home caring for the children. My immediate focus on this motion was to provide the children with stability of their home where they could spend time with both parents. The issue of exclusive possession is adjourned to the next return date when the parenting terms will also be reviewed. The parties shall file additional evidence to update the court at that appearance.

Police Enforcement

[43] I decline to order police enforcement as sought by the father.

[44] I agree with Justice Sherr, in A.T. v. M.H,[^12] where he said, “Police enforcement should be one of the last enforcement tools used by a court.” Sherr J. went on to quote from Justice Pazaratz in Mackie v. Crowther,[^13] where he said the following about police enforcement orders:

a) If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?

b) Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between warring parents than to have police officers descend on an already inflamed situation.

c) Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with "bad guys." No child wants to think of their parent as being a "bad guy." And no parent should place a child in such an emotionally conflicted position.

d) If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.

[45] For the reasons given, I make the following temporary order: On Consent,

1. The mother shall have an extension of time until September 18, 2020 to serve and file her Answer and Financial Statement;

2. Service of the Application, the Affidavit in Support of Custody and Access, Financial Statement, Certificate of Financial Disclosure, Notice of Motion and Affidavit sworn July 31, 2020, as accepted by the respondent’s counsel is hereby validated;

Not on Consent,

3. On a temporary without prejudice basis, the parties shall have joint custody and make all major decisions together;

4. The mother shall return the children to the matrimonial home at 22 Tedwyn Drive, Ottawa, by Friday, September 4, 2020 at 12:00 p.m. She shall leave the home and the children shall remain in the sole care of the father until Saturday, September 5, 2020 at 1:00 p.m. The mother shall then return to the home and the father shall leave;

5. Thereafter, the father shall have parenting time in the home every Tuesday, Thursday and Saturday in the absence of the mother. On Tuesdays and Thursday, the father shall care for the children from 3:00 p.m. until bedtime and be responsible

for putting them to bed. He shall then leave the home and the mother shall return. The father’s parenting time on Saturday shall start at noon when the mother shall leave and continue until 1:00 p.m. on Sunday. To be clear, each party shall leave the home when the other party’s parenting time begins;

6. There shall be a review of the parenting issues and the residential schedule during the week of October 19, 2020, now adjourned to November 13, 2020 at 2 p.m. The parties shall provide evidence to update the court. I will also hear further evidence on each party’s claim for exclusive possession. In this regard, the parties shall obtain and provide the court with a copy of the father’s WSIB medical file, the CAS records and any report or recommendation arising out of the events of July 22, 2020 or subsequently, evidence on the issue of the father’s impulse control, and additional evidence regarding the availability of alternate accommodations for each party.

7. The father shall continue to pay the operating costs for the home;

8. The mother shall immediately return any personal documents or other property belonging to the father that she may have removed on July 22, 2020, or earlier;

9. Neither party shall remove anything further from the matrimonial home save and except personal items for safekeeping or as required to meet their needs while living outside the home for purposes of the other party’s parenting time;

10. The parties shall, at all times, be respectful and courteous to one another in the presence of the children or when within earshot of them;

11. The court requests the assistance of the Office of the Children’s Lawyer and a Voice of the Child Report for Jack, nine years of age. The parties have 24 hours to provide the OCL with their intake forms;

12. The parties shall schedule a case conference for the first available date to move forward on the support, property and disclosure issues. The case conference shall be heard by another judge or Master.

13. Costs are adjourned to the return of this matter during the week of October 19, 2020, now November 13, 2020 at 2:00 p.m.

Justice D. Summers

Date: November 2, 2020

COURT FILE NO.: FC-20-1018

DATE: 2020/11/02

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Nicholas John DeJong

AND:

Rebecca Lynn DeJong

BEFORE: D. Summers J.

COUNSEL: Susan Galarneau, for the Applicant Mimi Marrello, for the Respondent

ENDORSEMENT

Justice D. Summers

Released: November 2, 2020

[^1]: R.S.C. 1985, c. 3 (2nd Supp.) [^2]: R.S.O 1990, c. F.3 [^3]: Supra, note 1 [^4]: 1993 CanLII 34 (SCC), 1993 CarswellBC 264, [1993] 4 S.C.R. 3 at paras. 74 -89 [^5]: 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, para. 46. [^6]: s. 16 (10) of the Divorce Act, supra, note 1 [^7]: Howard v. Howard, 1999 CanLII 35009 (ON SC), [1999] O.J. No. 3164 (Ont. S.C.J.) at para.4; Nyari v. Velasco, 2008 ONCJ 272 (Ont. C.J.) at para 16. [^8]: Leggatt v. Leggatt, 2015 ONSC 4502 (Ont. S.C.J.) at para 92 [^9]: A. (M.) v. D. (J.), 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (Ont. C.J.) at para.24. [^10]: Pazartz J.in Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.J.), at paragraphs 21 and 22 quoting from Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113. [^11]: Supra, note 2 [^12]: 2020 ONCJ 277, at para. 91 [^13]: 2019 ONSC 6431 (Ont. S.C.J.), at para.14