NAPANEE COURT FILE NO.: 57/20
DATE: 2020-09-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thomas Joseph VanCoughnett, Applicant
AND
Rachel Elizabeth Asselstine, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Lucienne MacLauchlan, for the Applicant
Whitney Donnelly, for the Respondent
HEARD: September 4, 2020
ENDORSEMENT
[1] This is the respondent mother’s Amended Notice of Motion seeking an equally shared parenting schedule for the three children Zoe (11), Peyton (8) and Brielle (5). Although there is no cross-motion, the applicant father in his confirmation seeks an order that the mother have care of the children on alternate weekends and every Wednesday evening. Both parties also seek a number of other parenting terms that are on consent, and they have agreed that the temporary order that I make stay silent as to custody. The only issue, therefore, is the parenting schedule.
Background Facts
[2] The parties began living together in 2007, married in 2013, and separated on February 15, 2019, about a year and a half ago.
[3] The mother asserts that she was the children’s primary caregiver prior to separation and says that the father was a full-time plumber and also a musician who performed during his spare time. She further asserts that she took the maternity leaves for the two youngest children, being home with Peyton two years and with the youngest Brielle for three years, noting that that Brielle was only four when the parties separated. Although the father does not challenge those facts, he claims that notwithstanding he did the majority of the caregiving prior to separation, and that his sister was also heavily involved. The father in his Application claims that he made all the doctor and dentist appointments, however in his affidavit he says that the mother made them but he took the children. He also says he cooked most meals, did the children’s homework, and did the bedtime routine. Suffice it to say that the claim as to who was the children’s primary caregiver prior to separation is disputed.
[4] On separation, the mother left the home with the children and lived with her mother for about four months and then with her own father. The father remained in the matrimonial home and had the children with him most weekends.
[5] The mother changed the children’s school from the previous one in Battersea (just North of Kingston) to one in Sharbot Lake (further North of Kingston), which the father says was without his consent or knowledge. However, there is no evidence of any disagreement at the time. The children were there for one term.
[6] On July 1, 2019, the mother moved back into the matrimonial home with her new partner Ian Jackson and his son Colby (5), who he has with him every weekend. The father moved into a new home in Bath, Ontario, west of Kingston, with his new partner Crystal Bulpit and her children Serenity (14) and Braydon (16). The father indicates that at that time they agreed to a shared parenting schedule, but the mother indicated that she did not have the time or money. The mother somewhat consistently indicates that this was for financial reasons, suggesting that both parties struggle with money issues. The father had let the mortgage and hydro payments on the matrimonial home go and foreclosure proceedings had started. She indicates that she needed to sort out the financial problems and was having difficulty financially finding alternative accommodations. The children began residing with the father during the week and were with the mother on weekends, although the father disputes that it was most weekends.
[7] The parties agreed to register the children in school in Bath, near the father’s home. There is no dispute that following September 2019 the children were with the father during the school week and with the mother most weekends. Adjustments were made to this schedule; sometimes she had them for one overnight sometimes two.
[8] In March of 2020, the parties changed the parenting schedule to equal time, with the mother having the children from Saturday to Wednesday, and the father from Wednesday to Saturday.
[9] There is no dispute that the above residence schedules were all made between the parties by agreement.
[10] The mother indicates that around the beginning of June 2020 there were difficulties with communication, as the father was deferring to his new partner Ms. Bulpit and the two women were having conflict. She also says the father and his partner began unilaterally altering the parenting schedule.
[11] The mother was at times allowing the child Zoe to babysit the other children for what she says were short durations particularly while Mr. Jackson drove her to work, and one time when they went for a social gathering down the street. The mother says that the child was okay with it, which seems to be reflected in the child’s saved digital chat messages that the father put into evidence. The mother indicates that she thought that this was acceptable to the father as Ms. Bulpit’s daughter Serenity babysat the children when she was only a bit older. The mother adds that Zoe is a mature and responsible child and she referred to literature suggesting that children can begin to babysit at age 11. When the father made what the mother called a “major argument” over Zoe’s babysitting in early June 2020 the mother says that while she disagreed with him, she respected his wishes and Zoe did not provide any further short-term care for the children after that.
[12] I should note here, in reference to the chat messages, that the father indicates that he controls Zoe’s digital communications devices and accounts, and that he does not permit certain things like Facebook. He claims that currently Zoe herself blocked the mother through her iPad, but she still is able to communicate with the mother “through my cell phone.” He indicates “… I have permitted Zoe to have a TikTok account on the condition that I have her passwords to allow me to monitor her postings … [t]here have been some posting (sic) that I do not consider appropriate and have had Zoe delete them”. He has filed Exhibits from Zoe’s communications leading the mother to assert that he has taken control of her devices.
[13] Unbeknownst to the mother, on June 17, 2020 the father contacted the Children’s Aid Society with concerns of the mother’s partner Mr. Jackson allegedly smoking in the home, the children having been left alone at times during the day, and with an allegation that Mr. Jackson drinks alcohol to intoxication when the children are present. The father indicated to the Society that the children were in his “primary care” and that the mother “wished for more access”. I note that was not true at the time. As the father advised the worker that he would not be sending the children to their mother’s home “for access”, the Society decided not to open a file.
[14] The very next day on June 18, 2020 the father called the CAS again with new allegations, this time that one of the children had to sit on the floor of the mother’s truck without a seatbelt, that Mr. Jackson threatened physical harm to him “that the children heard over the telephone” (one wonders why the father had the children listening to an adult telephone conversation), and that the mother made an inappropriate comment to one child about a white substance on her pants. He also told the worker that he had already contacted the Family Court about “moving forward with a Court Order for custody” and would be withholding “access” to the mother. Given those statements the Society felt it had no role and indicated that the file would remain closed.
[15] On June 20, 2020 the father unilaterally suspended all in-person contact between the mother and the children.
[16] The mother thought that the father was acting in response to conflict between her and the father’s partner. Her requests for her parenting time and to contact the children were deflected by the father for about 6 days until on June 26, 2020 he indicated in a text that he was “very concerned about the health and safety of the children while in your care”, and that “I do not agree for the children to be in your care at this time”. He said that had spoken to a lawyer and would be starting a court proceeding. There is no evidence that any specific concerns had been raised with the mother other than the issue of Zoe’s babysitting, which the mother considered resolved.
[17] On June 26, 2020, the father issued an Application. However, he filed a Notice of Withdrawal on July 3, 2020. Neither the Application nor the Notice of Withdrawal were served on the mother.
[18] The mother eventually vacated the matrimonial home and on July 1, 2020, obtained new accommodations in west Kingston (much closer to Bath than the matrimonial home in Battersea) which is of sufficient size to house the three children.
[19] The father retained counsel and issued a second Application on July 17, 2020, seeking among other things that the mother’s access start as supervised. I cannot see from the digital file when it was served but the mother had already retained her own counsel who accepted service. The mother indicates that she had been trying to serve the father with an urgent motion prior to herself being served.
[20] The two Applications the father issued were substantially similar. He repeated only two of the concerns he raised with the CAS previously, namely the babysitting concern and the allegation that the mother made an inappropriate comment to Zoe about the white-stuff (semen) on her pants. He did not repeat the other allegations made to the CAS (namely Mr. Jackson smoking, drinking, and threatening him, and that a child was driven without a seatbelt). However, he raised new issues. He claimed that the mother’s home lacked structure and supervision for the children, that Mr. Jackson told the children he had been to jail, that the mother had body shamed Zoe by telling her she was overweight, and that the mother had a history of mental health difficulties as well as drug and alcohol use.
[21] The mother’s urgent motion was served on July 27, 2020, seeking an equally shared parenting schedule. On July 29, 2020, Justice Swartz found that the parenting schedule was an important issue for the children and needed to be addressed promptly. She set a quick Case Conference for August 7, 2020. On that date the parties were before Justice Swartz again, but unable to reach as resolution. Justice Swartz requested the Office of the Children’s Lawyer’s involvement and made arrangements for this motion to be heard.
[22] The father in his responding affidavit highlighted his own good parenting decisions (providing structure and routine and putting the children in martial arts). Notwithstanding the admitted history of agreed parenting schedules and his own decision to end the mother’s face-to-face contact, he stated that the mother did not support important relationships for the children. His attack on the mother’s parenting continued. He repeated all the above allegations, including those made to the Society and not mentioned in his Application. He then went on to raise a number of new allegations, admitting that his only alleged source of information was the children themselves. He made allegations of very explicit sex play between Brielle and Colby (the two five-year-olds) in the mother’s home. He alleged physical abuse by the mother on Brielle. He alleged that the mother and her partner have loud sex that is overheard by the children. He alleged that Zoe told him the mother and her partner drink all the time and that Mr. Jackson sits on Zoe’s lap when drunk making her uncomfortable. He alleged that the mother confided in Zoe that she sells drugs (to her partner) and that the only reason Mr. Jackson is in the home is because he owes the mother drug money. He alleged that the mother also explained to Zoe that she in turn owes drug the money to Mr. Jackson’s brother Jay, and that the children have visited Jay’s home. Along with these allegations, the father referred to an undisputed unfortunate incident when the parties were still together and the father’s 12-year-old nephew baby-sat the children. Zoe subsequently disclosed inappropriate touching and a threat of harm. Although he claims that he was the primary parent pre-separation, the father appears to blame the mother for engaging his nephew and for how she handled the incident.
[23] Referring to all the above, the father went on in his affidavit to state:
These new disclosures prompted me to contact the Society once again. The Society has now opened a file. The Family Worker, Amanda Kaiser, met with the children at my home on August 18, 2020. During her meeting with the children, the children disclosed the concerns I have set out above. Ms. Kaiser advised that she would be meeting with the Respondent on August 19th. As of today, I have no information about the outcome of the Society’s meeting with the Respondent.
[24] The mother in her reply affidavit denied all the father’s allegations, noted that Mr. Jackson does not have a criminal record, and stated that his brother Jay is an upstanding citizen with four children. She indicated that she cannot imagine the children saying the things being ascribed to them by the father, and suggested that if the children did, they were either being coached by him or Ms. Bulpit or have overheard the father and his partner speaking ill of her and her partner.
[25] It is no surprise that upon the father going to the CAS for the third time with these new either extremely concerning or reckless allegations, the Society decided to open a file and do an investigation. The mother confirms that Ms. Kaiser did indeed contact her on August 19, met with her, and raised each of the father’s concerns. The mother has provided a subsequent email sent to her from Ms. Kaiser and copied to her counsel dated August 25, 2020, which reads as follows:
Hi Rachel,
I have cc’d Whitney [the mother’s lawyer] because she has called me as well.
From our investigation there are just a couple more steps I need to complete before we can close and send a letter. I apologize for the confusion. At this time, I have privately interviewed the children, met yourself, Ian, Tom and Crystal and seen both of your homes. My next steps are to follow up with the collaterals provided which are your family doctor and Maltby Centre.
Based on my interviews with the children and all of the adults I have no reason to believe the children are not safe in your care at this time.
Once I have spoken to the collaterals I will call you to discuss the case closing. Our investigation is 45-60 days long which takes us to September 23-October 8.
I will be on holidays from August 26th until September 14th. If you need to contact anyone while I am away, you can call in to 613-545-3227 and speak to referral centre (sic) and they will be able to assist.
Thank you,
Amanda Kaiser
[26] The above communication was in the mother’s reply affidavit served on the father on August 27, 2020. By that time Ms. Kaiser would have been on holidays. The father decided to file a reply affidavit to the mother’s reply affidavit indicating that the mother had raised new issues that he needed to respond to. While his affidavit addresses several things, it does not take issue with Ms. Kaiser’s message.
[27] The father’s affidavit dated September 1, 2020 first responds to a new affidavit from the maternal grandmother. It then goes on to explain that at some point the father received a call from the school in Bath seeking to confirm a transfer of all three children to a different school. The father says that he can only presume this transfer request was made by the mother as the proposed school is near her new residence. He obtained a copy of the email between the schools dated August 25, 2020, which confirms a transfer request, although it does not say who made it and, somewhat oddly, only deals with a transfer for Zoe and not the other children. It was not clear why this was being raised. The mother in her reply affidavit indicated that she supports the children being enrolled in the Bath school.
[28] The last major element of the father’s affidavit is that he attaches as an Exhibit what he holds out to be a chat message to the mother purportedly from the child Zoe. It requires some analysis. On an unknown date the father claims that that “Zoe messaged her mother setting out her complaints about the mother’s behaviour” and attaches the message. There is no question that the mother received the message. The first thing that jumps out is that it is not like usual chat messages expected from an 11-year-old child. They are most often short with acronyms and short forms. Indeed, the previous ones from Zoe in evidence were short and replete with such usages such as “lol” “yuppers” and “gn love u”. The message in question, in contrast, is four full pages of the child allegedly listing all her complaints about the mother since she was a young child and suspiciously echoing all allegations made by the father and more. The long message exhibits proper grammar that would be exceptional for an 11-year-old child.
[29] Zoe’s previous chat exchange in evidence was dated May 24, 2020. Her identifier for it was a picture of a woman who looks like the mother, the word “Momma”, and a picture of a heart beside it:
[30] In stark contrast, the heading of the exchange in the father’s last Exhibit is the same picture of a woman, but with the word “mom” beside it, and a picture of a face with a gun to its head:
[31] Not only is the content of the message extremely long and well written, but it is in contrast with the previous affectionate exchanges between mother and daughter. The new one expresses hate and very bizarre passages such as Zoe allegedly stating that the father’s partner is “the only person I’m proud to call my mother” and that “this whole court thing is the only way I could get me and my siblings away from this situation”. That is only just a very small sampling. As an additional concern, the chat message on its face indicates that adjacent chats were deleted and therefore not in evidence. The mother is concerned that with admitted control over Zoe’s social media and passwords the father has himself authored the long chat message, or influenced it, or altered its contents.
[32] Suffice it to say that the chat statement is hearsay. It was admitted into evidence on consent for the fact that it had been made. However, applying the principled approach, its content is completely unreliable, and I am unable to accept it for its truth. Indeed, it is so suspicious that it taints all the other hearsay evidence where the father purportedly conveys what he says the children have said to him.
Law
[33] As the parties were married, interim custody and access is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, and in particular section 16(2). Subsection 16(8) indicates that in making an order I am to only take into account the best interests of the children as determined by reference to the conditions, means, needs and other circumstances of each child. Per subsection 16(10), I am to give effect to the principle that the children should have as much contact with each spouse as is consistent with their best interests. Factors for me to consider regarding best interests include those referred to in the Children’s Law Reform Act, R.S.O. 1990, c.C.12 at subsection 24(2): see MacIntosh v. MacIntosh, [2007] O.J. No. 5695 (S.C.J.) at paragraphs 64 to 67.
Analysis
[34] I would note that the CAS interviewed the children in light of the father’s allegations and found no reason to believe that they would not be safe in their mother’s care. Those were private interviews by a protection worker, which provides some element of reliability. Although starting from the position that the mother’s contact with the children needed to be supervised given the wild accusations, by the time of the hearing the father himself was agreeing to overnight weekend access, somewhat muting the seriousness of his professed concerns.
[35] There is no reliable evidence to support the allegations by the father that the mother is an unfit parent, and specifically no evidence establishing that the mother currently has mental health issues, that she and her partner currently abuse drugs and alcohol, or that Mr. Jackson has been to jail, all of which are specifically denied.
[36] While the children’s views and preferences cannot be reasonably obtained at this point, both parties agree that they love the other parent. In the father’s case, this is notwithstanding the suspicious chat message that he wanted to rely on.
[37] The parties have agreed to the children remaining in the same school which, along with a set parenting schedule, will provide some element of stability and predictability.
[38] The children have been in both parents’ primary care for periods on consent. The father argues that the children’s status quo is that they have been in his primary care since June of 2019. However, he ignores that the parties agreed to a shared parenting schedule in July 2019, that the mother was unable to put it into effect. More importantly, he ignores the implementation of a shared parenting arrangement, still on consent, in March of 2020, which only ended when he unliterally denied the mother all face-to-face contact several months later. In light of the maximum contact principle, that kind of gatekeeping makes a clear parenting schedule, one that protects the children’s important relationship with their mother, particularly important.
Decision
[39] In all the circumstances, in my view the temporary order that is in the children’s best interests at this point in time would include equally shared parenting between the parties. Order to go to that effect as requested in paragraph 1 of the mother’s Amended Notice of Motion, subject to the below. On consent, orders to also go as set out in paragraphs 2 to 4 of the mother’s Amended Notice of Motion, and as set out in paragraphs 5 to 11 and paragraph 13 of the father’s draft order.
[40] At the end of argument, I ordered on consent that until I was able to complete my decision the mother would have face-to-face time with the children this past Sunday and Wednesday. To allow the children an opportunity to adjust to the new school routine and COVID-19 measures, I order that they remain in the father’s care until after school on September 16, 2020 at which time the alternate weekly parenting schedule ordered above shall commence with the children returning to the mother’s care. In addition, the mother shall have parenting time this Friday, September 11, 2020 after school until Sunday at noon.
[41] If the parties wish to address me on costs, I will accept written submissions as follows:
a. From the mother served and filed within fifteen days from the release date of this decision of no more than two pages, double spaced, in addition to any relevant offers and draft bills of costs.
b. From the father served and filed within fifteen days after he is served with the mother’s submissions of no more than three pages, double spaced, in addition to any relevant offers and draft bills of costs.
c. If required, a reply from the mother of no more than one page double spaced served and filed within five days after she is served with the father’s submissions.
d. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.
Mr. Justice Timothy Minnema
Date: September 10, 2020