Liwak-Muir v. Muir 2020 ONSC 5669

COURT FILE NO.: FC-20-499

DATE: 2020-09-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Urszula Liwak-Muir, Applicant

AND

Scott Donald Muir, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Paul Fitzgerald, Counsel for the Applicant

Claudia Bordes, Counsel for the Respondent

HEARD: August 26, 2020 by video conferencing

Endorsement

M. Smith J

1The Applicant Mother brings a Motion seeking primary care of the children of the marriage, specific parenting time for the Respondent, exclusive possession of the matrimonial home and child support.

2The Respondent Father opposes the Motion and seeks that the children be parented on an equal basis and child support with the set-off amount for the parties’ income. In terms of the matrimonial home, he is seeking that it be disposed as follows: to buy out the Mother’s interest, to sell her his interest or that the house be sold.

3For reasons that follow, on an interim basis, it is ordered that:

a. The children be in the Mother’s primary care;

b. The parents shall have equal parenting authority but in the event of a disagreement, the Mother shall have the final decision-making authority with respect to the children;

c. Parenting time between the children and the Father, as set out below; and

d. The Mother shall purchase the Father’s interest in the matrimonial home.

BACKGROUND

4The parties were married on September 24, 2011 and separated on August 11, 2019. They have two children: Emma Muir, born on June 16, 2016 (“Emma”) and Abigail Muir, born on October 22, 2013 (“Abigail”).

5The Mother is employed with the Federal Government at the Patent Office, while the Father is employed as a traffic specialist with the City of Ottawa.

6Since the separation, the parties have resided together in the matrimonial home because they have been unable to agree on a parenting schedule. There has been significant conflict and tension between the parties.

7The Mother and Father have been mostly working from home since the COVID-19 pandemic was declared in mid-March 2020.

8The matrimonial home was purchased in February 2019. The parties are both owners of the matrimonial home. It has recently been appraised at $690,000.00.

THE POSITION OF THE PARTIES

The Mother

9The Mother claims that she has been the primary care provider for the children and that it is not a “she said, he said” type of situation but rather, the evidentiary record supports the Mother’s assertions.

10She says that during the marriage, she was responsible for most of the cooking, cleaning, night time and morning routines as well as the personal hygiene for the children. In her affidavit, she provides several examples of her responsibilities, which include making childcare and schooling arrangements, ensuring that her children’s healthcare needs have been met, organizing the extra-curricular activities, planning the children’s baptism, and setting up a post secondary RESP.

11The Mother has concerns regarding the Father’s conduct. She indicates that he lacks patience with the children, and he has exhibited some abusive and controlling conduct, which has escalated since the breakdown in the relationship. The Mother has filed a personal journal of events that transpired in the home between August 15, 2019 and August 13, 2020, citing numerous examples of the Father’s outbursts as well as his inappropriate conduct, some of which has been observed by the children.

12The Mother says that during the separation, the Father has attempted to impose his own parenting schedule, requiring them to parent these children separately, despite the fact that they were residing under the same roof. It is further claimed that the Father has demanded singular control of the parenting (his 50 percent share) and he has been aggressive while enforcing these demands.

13The Mother claims that the Father’s primary motivation of seeking an equal parenting schedule is financial. She points to an email that he wrote on March 17, 2020 which states that “I cannot accept anything less than 40% custody in all of this or I cannot afford to keep the house.”

14The Mother submits that given the parenting history and her role, the children will be more inclined to reach out to her as opposed to the Father. She seeks this temporary arrangement to allow the children to adjust and not be thrown in with the Father’s new partner and her three children.

The Father

15The Father denies the Mother’s characterization of his role as a parent and his conduct. He submits that he is a dedicated father and has always been very involved in the children’s lives and they have been sharing all responsibilities. In his affidavit material, he provided examples of his involvement including searching for daycare, pick ups and drop offs of the children at daycare, meal preparation, household chores, children’s activities and schooling. Further, he says that he was and continues to be involved in decisions regarding education, health and religion.

16The Father says that, since the separation, they have been parenting the children equally. He admits that living under the same roof has been difficult and challenging. There has been some hostility and the communication with the Mother has been strained. Despite the disagreements, they have been cooperating, and he points to some agreed upon matters such as health matters, activities for the children and establishing a COVID bubble during the pandemic.

17In terms of imposing a schedule upon the Mother, the Father argues that this was done at the request of the Mother. He points to email exchanges with the Mother in April 2020 which demonstrates a need to establish a schedule during the pandemic, while living together in the matrimonial home.

18The Father says that the Mother’s accusations that he has been absent from the home and caregiving duties has been created for the sole purpose of justifying her request for unequal parenting time.

19The Father urges me to maintain the status quo of equal parenting, which he claims existed before and after the separation.

THE LAW

20Section 16 of the Divorce Act, R.C.S., 1985, c. 3 (2nd Supp) and Section 24 of the Children Law Reform Act, 1990, R.S.O. c. C.12 (“CLRA”), set out the legislative framework and factors to consider on matters dealing with custody, access and parenting.

21In determining these issues, the Court must focus on the children’s best interest, and not on the interests and rights of the parents (see Gordon v. Goertz, [1996] 2. S.C.R. 27 (S.C.C.)).

22Section 24(2) of the CLRA sets out categories to be considered when determining the best interest of the children: love, affection and emotional ties between the child and the parents; the child’s views and preferences; the length of time the child has lived in a stable home environment; 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; the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; the permanence and stability of the family unit with which it is proposed that the child will live; the ability of each person applying for custody of or access to the child to act as a parent; and any familial relationship with between the child and each person who is a party to the application.

23Justice Pazaratz provides a useful summary of the issues that a Court may face in determining parenting matters on a temporary motion (see Coe v. Tope, 2014 ONSC 4002 (par 25)):

25 Parenting determinations at temporary motions are particularly challenging:

a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.

b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.

c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing "status quo" even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.

d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process - quite often at a trial. Brown v. Brown (1999), 1999 CanLII 15074 (ON SC), 45 O.R. (3d) 308 (SCJ); Neilipovitz v. Neilipovitz 2014 ONSC 3889 (SCJ).

e. The status quo should ordinarily be maintained until trial unless there is material evidence that the children's best interest demands an immediate change. Button v. Konienczny, 2012 ONSC 5613, 2012 CarswellOnt 12353; Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (SCJ); Rifai v. Green 2014 ONSC 1377 (SCJ); Kimpton v. Kimpton 2002 CarswellOnt 5030 (SCJ).

f. Courts must be mindful of - and actively discourage - efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ).

g. Physical separation between parents usually entails some continuing geographic proximity -- usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705 (Ont. C.A.).

h. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Rifai v. Green (supra).

24Section 19(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) provides that both spouses have an equal right to the possession of the matrimonial home. Section 24(3) of the FLA sets out the criteria for ordering exclusive possession, which includes, amongst other things, the best interest of the children.

THE ANALYSIS

Primary Care and parenting

25The parties have filed comprehensive affidavit materials outlining their respective evidence as to what transpired pre and post-separation. I have carefully reviewed and considered these materials as well as counsel’s able arguments. Weighing all the evidence presented by both parties, I prefer and accept the Mother’s evidence over the Father’s regarding the events that occurred before and after the separation. The Father submits that the evidence before the Court is of the “she said, he said” type. I disagree. There is documentary evidence to support the Mother’s statements. Further, I find that the Mother’s journal, written contemporaneously with the events described, was consistent with the totality of the evidence tendered in terms of the Father’s conduct.

26It is abundantly clear from the materials filed on these Motions that living under the same roof, while separated, has been less than ideal for this family. This living arrangement has existed for over one year and it has been very difficult for the entire family. Not only has the conflict increased over time but it has had a negative impact on the children, especially Abigail. The pandemic has been an added stressor for this family, as it has been for so many around the world. For the sake of the children, and as difficult as it may be given the circumstances of this case, a sense of normalcy needs to be restored as quickly as possible.

27The status quo is an important consideration on these types of interim motions and the Court is reluctant to make changes, especially if the children appear to be doing well.

28On the evidentiary record before me, I find that prior to the separation, the Mother played a lead role in the children’s lives. The Mother’s evidence of her involvement, which I accept, includes, amongst other things, the following:

a. The Mother is the parent that took the initiative to find suitable daycare for the children;

b. The Mother was involved with the children’s school, such as scheduling the parent-teacher interviews, paying all student fees, lunches and activities;

c. The Mother was responsible for the children’s healthcare needs. She booked the medical appointments with the healthcare professionals, including the dentist and optometrist;

d. The Mother had the responsibility for locating and enrolling the children in most of the extra-curricular activities and summer camps that they have enjoyed thus far;

e. The Mother was very involved with the organization and scheduling of the children’s birthday parties and play dates;

f. The Mother took the lead regarding the children’s religious involvement; and

g. The Mother reached out to a consultant and opened the RESP accounts for the children.

29This is not to say that the Father played no role with the children. The evidence submitted by the Father does confirm that he participated in parenting, such as pick ups and drop offs at daycare, coaching the baseball team, and registration for skating. The Father says that the Mother has created a false narrative in order to justify the unequal parenting time. I disagree. The Mother’s evidence regarding the family situation during the marriage is convincing and I find that she took care of the majority of the children’s needs before the separation.

30Turning now to post-separation, the Mother identified that Abigail was struggling with the separation and the family situation. Abigail had been demonstrating signs of anxiety and distress. The Mother took the initiative to seek out assistance from a children’s psychologist. The Father claims that he was not resistant to the idea that Abigail gets some assistance. Both the Mother and Father are now involved in their daughter’s treatment, but this is another example where the Mother has taken charge of the well-being of her children.

31I am unable to agree with the Father, on the evidence before me, that the parents were sharing equal parenting time post-separation. Rather, I find the evidence shows that they were in a constant state of disagreement, there was no real structure per say and the Father was imposing his parenting schedule.

32The Father deposes that starting in August 2019, parenting was based upon their schedules, social activities and events. In November 2019, as the tensions and hostilities increased, he started to leave the matrimonial home during his parenting time and take the children to his new partners’ home. In January 2020, he proposed a more structured parenting schedule, which was refused by the Mother.

33Then, the pandemic struck and according to the Father, an adapted parenting plan was adopted. I am not convinced that a plan existed, let alone that it was adopted voluntarily by the Mother. Not surprisingly, with the arrival of COVID-19, the parties’ conflict increased, ranging from disagreements about visits with the Father’s new partner outside the matrimonial home, to difficulties with working at home, to the children’s desires of seeing one parent while it was the other parent’s time with the children, and to establishing social circles as defined by the provincial government. Suffice it to say, tension was high, and conflict was on the rise.

34The Mother submits that during the separation, the Father has been controlling and imposing his own schedule. By the Father’s own admission, he has imposed it upon the Mother because he was “really upset”. In email exchanges between the parents, the Father says: “…out of frustration from the lack of progress in the separation, I took things into my own hands and created the parenting schedule that we have been following.”

35I am unable to preserve a status quo that existed post-separation as it lacked any type of structure and it has changed several times during this past year, often times imposed by the Father. I would qualify it as a short-lived status quo and not representative of the status quo that existed during the marriage (pre-separation). I find that the Mother has been primarily the parent responsible to meet the children’s needs, and the evidence supports that it has continued during their chaotic and hostile post-separation situation. I find that the children turn to the Mother when they need comfort and the eldest child confides in her with respect to the difficulties that she is experiencing with the separation.

36What has been clearly demonstrated in the evidence is that in the post-separation period, the parents have been unable to communicate with one another, which I attribute, in large part, to the Father’s behaviour, as described in the paragraphs that follow.

37The Mother has filed a journal and she has attested that it contains contemporaneous notes outlining the Father’s behaviour from August 15, 2019 to August 13, 2020. I have read her journal carefully and recognize that this evidence has not been tested by cross-examination. I have exercised caution in receiving this evidence. Some of the forty-one entries are concerning, especially those that describe the Father’s outbursts and aggressive conduct in front of the children or his refusal to allow the children to see their Mother. The Father does not respond in detail to these allegations, but I do acknowledge that he has filed letters of support from friends and an affidavit from his current partner who deposes that she has not observed this alleged behaviour.

38In reviewing the journal, I find that the Father has exhibited the following conduct and behaviour during this past year:

a. Screaming at the Mother in the presence of the children;

b. Discussing the separation in the presence of the children;

c. Using profane language in ear shot of the children;

d. Threatened to call the police in the presence of the children;

e. Slamming doors in the presence of the children;

f. Punching a hole in the door (evidenced by a picture); and

g. Refusing that the children see their Mother to comfort them or refusing that the children speak to their Mother during his parenting time.

39When this type of behaviour occurs, especially in the presence of the children, it leads me to question the Father’s judgment, as his behaviour is contrary to his children’s best interest.

40These young children have experienced significant stressors during this past year, to the point where the eldest child has sought counselling. What I have found troublesome in the evidence is, during his parenting time, the Father’s refusal to allow the children to be comforted by their Mother in a time of need. It suggests that his parental rights trump those of the children’s interest.

41I now turn to the best interest considerations as set out in section 24(2) of the CLRA.

(a) Love, affection and emotional ties

42I have no doubt that both parents love their children, and conversely the children love their parents. However, as I have found, the Mother has been the person most responsible for the children’s needs and this, in my view, has created a special bond as between the Mother and the children that exists to this day. In difficult times, such as has been the case since separation, the children seek out their Mother for comfort. If they are sad or hurt, they turn to their Mother.

43The Father has displayed hostility and aggression towards the Mother, in the presence of the children. In my view, the Father’s anger and outbursts would affect the relationship with his children and explains the fact that the children turn to their Mother when they experience certain emotions.

44I find that this factor favours the Mother.

(b) Views and preferences of the children

45Given the children’s ages, this is not a factor.

(c) Time in a stable home

46The children are quite young and have lived in the matrimonial home with the Father and Mother since February 2019. Although the children have not resided very long in this home, they require a stable environment and to displace them elsewhere would not be in their best interest. Both parents have expressed a desire to remain in the matrimonial home.

47This factor does not militate in favour of either parent.

(d) The provision of guidance, education and the necessaries of life

48Both parties are fortunate to have stable employment, despite the pandemic. They are able to provide financially for their children and there is no evidence to the contrary.

49Historically, the Mother has played a lead role in providing the necessities of life and as I have found, this has continued during this past year. She is the person that takes the initiative to deal with daycare, the education and the health concerns. Once it is initiated, the Father will take part, but I find that it is in a secondary manner.

50Abigail’s struggles with the separation and her health issues were first identified by the Mother and she took immediate steps to find her some assistance (child psychologist). The Mother was very concerned about Abigail’s well-being, after having received three calls from the school. The Father subsequently supported the process that had been undertaken by the Mother. I find that the evidence supports and demonstrates that the Mother is best equipped to quickly identify and meet the children’s needs.

51I find that this factor weighs in favour of the Mother.

(e) The plan proposed by the parents

52The Mother has set out her plan. She will be remaining in the matrimonial home where the children will remain in a familiar environment. She will encourage regular contact with the Father while the children are in her care, by video conferencing. She recognizes the problems that the children have experienced as a result of the separation and will provide them with the care that is required.

53Conversely, the Father has said that he wishes to stay in the matrimonial home, but he is willing to consent that the Mother remains. With this alternative position, he does not provide the Court with his future plans.

54Although the Father has not explicitly stated it in his affidavit material, there is a strong indicator that he intends to purchase a new home (perhaps the matrimonial home) and move in with his new partner and her children. In an email from CIBC to the Father and his new partner, it says, in part: “…based on your joint annual income…you and Chelsea may be eligible for a mortgage…”. Also, the Father communicated to the Mother by email that “as a blended family, the kids are going to be exposed to one another on a regular basis”.

55I am left to speculate as to the specific plan proposed by the Father. If he is planning on moving in permanently with his new partner and her family, I do not find that, at the present time, this course of action to be in the children’s best interest. The children have been exposed to significant conflict and tension during this past year. They now require stability. Bringing the children into this new blended family environment, without any evidence of permanency and stability, would not in my view, be in their best interest.

56Unlike the Mother’s plan of encouraging regular access with the other parent, I am not convinced that the Father would do so as liberally as the Mother. Two examples lead me to this conclusion:

a. While the children were with the Father, Abigail tried to contact her Mother via the iPad. When the Father discovered that the child was speaking to the Mother, he terminated the call. He explained it as follows: “The girls see both of us every day and under these circumstances I think we should let them enjoy focused time with the parent they are spending with.”

b. Again, while the children were away with the Father, he refused the Mother’s request to speak with their youngest child, Emma. The Father claimed that she was sleeping. Yet, in further text messages, he told the Mother that “he was putting her asleep” which was a contradiction to what he had told earlier told the Mother.

57This evidence strongly suggests that the Father is exercising some form of control over the Mother, to the detriment of the children. This type of behaviour is precisely the opposite of what should be occurring during the difficult moments of transition. The parents need to encourage and maximize contact with both parents, even during their own parenting time. I find that, based upon the evidence before me, the Mother has and will continue to ensure and encourage that the Father has maximum contact with the children, even while the children are with her.

58I therefore find that this factor weighs in the Mother’s favour.

(f) Permanence and stability of the family unit

59Again, it is unknown if the Father will be moving in with his new partner and her three children as his plan has not been specifically outlined in his affidavit. In his factum, when referencing the relationship that he has had with his new partner, the Father states that the “family unit that he proposes has permanence and stability”. I am unable to make that determination based upon the evidentiary record before me.

60I find that the Mother is best suited to offer the permanency and stability that is required for the children at this time.

(g) Ability to act as a parent

61I have already expressed my concerns regarding the Father’s conduct during this past year. The Father claims that there is no evidence to support the Mother’s allegations but as I have commented earlier, I accept the Mother’s evidence.

62While the parents were living under the same roof, the children have been exposed to hostility, unpleasantness and aggressive behaviour, which is not in their best interest.

63The evidence of the Father’s behaviour this past year demonstrates some of his shortcomings and his inability to set aside his anger and frustration with the Mother, which directly impacts the children. At present, the evidence has not demonstrated that the Father is able to work with the Mother.

64The Father needs to show, which I believe that he can, an ability to cooperate and communicate effectively with the Mother, without going into a rage, especially in the presence of the children. Punching a hole in the door is not a proper example for the children. There is no doubt that living together for over a year combined with COVID-19, fueled the fire as one would say. It is not, however, an excuse for some of the behaviors that have been exhibited by the Father. He should have exercised restraint on numerous occasions and refrained from yelling or using profanities to express his anger. The Father needs to improve in this regard.

65I am certain that the Mother is not without fault, but the evidence supports that the Mother has had a better understanding of the children’s needs and that they must be able to grow up with parents that can effectively communicate with the least possible acrimony and hostility.

66This is a factor that favours the Mother’s position.

(h) Relationship by blood or adoption order

67This is not a relevant factor.

68For all of these reasons, I find that, on an interim basis, it is in the best interest of the children that the Mother have interim primary care. Both parents should be involved in the upbringing of the children and have equal parenting authority. They shall consult each other regarding major decisions relating to the children. However, given the significant hostilities as between the parents and the difficulties to find consensus, if there is a disagreement as between them, the Mother shall have the ultimate decision-making authority.

69In terms of the parenting time between the children and the Father, it shall be on the following schedule:

a. Each week, from Tuesday at 9:00 a.m. until Wednesday at 9:00 a.m.;

b. Every second weekend from Friday at 4:00 p.m. until Monday at 9:00 a.m.; and

c. For an equal sharing of holidays and long weekends on a rotating basis.

70The parties are strongly encouraged to work out the details regarding the pick ups and drop offs as well as the specified time, as the time should coincide with the commencement and end of daycare and/or school. In the event that the parties are unable to agree, further written submissions may be made, upon the timelines agreed as amongst counsel.

71During this period of transition, the children need to know and feel that they can get the support of either parent, at any time, regardless of the parenting time. As such, during his/her parenting time, that parent shall facilitate daily access by way of telephone and/or FaceTime and provide the children with privacy to speak with the parent.

Sale of the Matrimonial Home

72The Mother says she has secured conditional financing to purchase the matrimonial home. She submits that the Father is prepared to consent to an Order that she purchase his interest, based upon the mutually obtained appraisal by Joel Beauregard of Affiliated Property Group dated January 27, 2020 in the amount of $690,000.00.

73The Father indicates that he would prefer to stay in the matrimonial home, but he is also quite willing to consent to the Mother buying his share. The Father is, however, concerned that if it was sold to the Mother, there would be some delay in this process. He is therefore seeking that the Court impose a time limit for the transfer of the property.

74The children need stability and continuity in their lives. Although the family has not lived in the matrimonial home for too long (February 2019), I find that it is important, in the best interest of the children, that there remains some familiarity with at least, one of their homes. Selling the house to a third party should be the parties’ last option. Minimizing the disruption for the children and creating a stable environment, as much as it is possible under the circumstances, should be a goal to achieve.

75Given the Father’s position, I see no reason why the matrimonial home should not be purchased by the Mother. I agree with the Father that there should be a timeline imposed for the transfer to occur. Therefore, the Mother shall purchase the Father’s interest in the matrimonial home at the agreed upon appraisal amount of $690,000.00, by no later than ninety (90) days of the date of this Endorsement.

CONCLUSION

76I therefore make the following interim Orders:

a. The children to be in the primary care of the Mother;

b. The parties shall have equal parenting authority. The parties shall consult with one another with respect to decisions respecting the children. In the event of a disagreement, the Mother shall have the final decision-making authority;

c. The parenting time as between the children and the Father shall be:

i. Each week, from Tuesday at 9:00 a.m. until Wednesday at 9:00 a.m.;

ii. Every second weekend from Friday at 4:00 p.m. until Monday at 9:00 a.m.; and

iii. For an equal sharing of holidays and long weekends on a rotating basis. parenting of the children;

d. During his/her parenting time, that parent shall facilitate daily access by way of telephone and/or FaceTime and provide the children with privacy to speak with the parent; and

e. The Mother shall purchase the Father’s interest in the matrimonial home at the agreed upon appraisal amount of $690,000.00, by no later than ninety (90) days of the date of this Endorsement.

77The issue of child support was raised by the Mother in the Notice of Motion, but it was not argued at the Motion. If the parties are unable to agree on this matter, they may schedule a hearing date through the trial coordinator.

78Finally, on the issue of costs, if the parties cannot agree, the Mother shall, within thirty (30) days of this Endorsement, submit written submissions (no more than 3 pages), not including a Bill of Costs and/or Offers to Settle. The Father shall, within thirty (10) days of the receipt of the Mother’s materials, submit written submissions (no more than 3 pages), not including a Bill of Costs and/or Offers to Settle. The Mother shall serve a reply (no more than 1 page), if required, by no later than five (5) days of the receipt of the Father’s submissions.

M. Smith J