Court File and Parties
COURT FILE NO.: FC-20-1148 DATE: 2020/09/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Niels Overdulve, Applicant AND Angela Overdulve, Respondent
BEFORE: Justice Engelking
COUNSEL: Frederic P. Huard, for the Applicant Edith M. Holly, for the Respondent
HEARD: September 18, 2020
ENDORSEMENT
[1] The Applicant, Mr. Overdulve, has brought an urgent motion seeking an order for joint shared custody and equal parenting time on a week on/week off basis of the parties twin children of the marriage, Scarlett and Isabella, aged nine.
[2] The Respondent, Ms. Overdulve, opposes Mr. Overdulve’s motion and seeks an order that he have supervised access to the children that does not include any overnights.
[3] The parties began to cohabitate in 2004, married on July 27, 2008 and separated on June 27, 2020. The girls were born on May 26, 2011.
[4] Mr. Overdulve attests that during the relationship both parties were very involved with parenting the children since their births. While they may have had different responsibilities in relation thereto, each were equally involved making decisions for the children and in ensuring that their needs were met. His evidence is that prior to July of 2020 there has never been any concern raised with respect to his care of his daughters.
[5] Although both state the date of separation to be June 27, 2020, it is unclear to me from either party’s evidence on what date Mr. Overdulve physically left the matrimonial home or whether they lived separate and apart under the same roof for a period of time. In paragraph 9 of her affidavit sworn on September 9, 2020, Ms. Overdulve suggests that a week on/week off schedule with the girls was attempted “around June 7th or 9th”. In response to that paragraph, Mr. Overdulve states in his reply affidavit that the parties were “recently separated and we were still living together”. At another point in her materials (paragraph 7 of her affidavit), Ms. Overdulve refers to an incident “after separation before my daughters 9th birthday”, which would be before May 26, 2020. One of the first issues the parties will have to attend to, which is not particularly relevant for today’s purposes but will be for these proceedings overall, is their actual date of separation.
[6] As I am uncertain when Mr. Overdulve left the family home, I am equally uncertain whether he was independently exercising parenting time with the children prior to July 14, 2020. Regardless, both parties agree that it is as of that date that Ms. Overdulve started offering him only supervised access to the children.
[7] Ms. Overdulve alleges in her affidavit that she has “for years been a victim of domestic, including emotional and physical abuse.” Mr. Overdulve states that only after Ms. Overdulve received a letter from his previous counsel informing her that he was seeking joint custody and shared time with the children, did she make allegations of domestic violence against him.
[8] On July 15 and/or 17, 2020, Ms. Overdulve filed a complaint or complaints with the Ottawa Police Services (“OPS”) regarding incidents which she alleges occurred on May 30, 2020 and June 22, 2020, which resulted in Mr. Overdulve being charged on August 25, 2020 with one account of assault, one account of assault with a weapon and one count of forcible confinement.
[9] As a result of her complaint to the OPS, a referral was made to the Children’s Aid Society of Ottawa (“CAS”) regarding the June 22 incident. An investigation ensued and on August 7, 2020, Julie Conquest, a Child Protection Worker with the CAS wrote a letter to both parents advising them that their file was closed. In her letter, Ms. Conquest stated:
After speaking with the parents and the children, the Society did determine that the children were at risk of emotional harm and physical harm due to exposure to the incident of domestic violence on June 22, 2020. Mr. Overdulve denies that an incident took place however, the children provided detailed accounts of what occurred. The children also disclosed hearing arguing between the parents in the family home prior to this incident. The parents have been cautioned on discussing adult issues around or with the children. The Society takes no position in regards to Mr. Overdulve’s access to his children.
The Society’s decision to close your family’s file is based on several factors including:
The parents are residing separately from each other and not communicating directly with one another at this time.
The parents are involved in Family Court proceedings regarding custody and access/have independent legal advice with respect to these issues.
The children receive support from a therapist and it is recommended that they attend regularly through their parents separation.
The parents have agreed not to discuss adult issues with the children.
[10] Mr. Overdulve did not agree that his parenting time with his children required supervision. He wished to bring an urgent motion for access, but once the CAS became involved, he determined that it was best to await the outcome of their investigation. Once that was completed, his request was heard in writing by Master Kaufman, who deemed the matter urgent and set it down for this motion. In so doing, Master Kaufman stated at paragraph 9:
…An order for supervised access requires evidence of exceptional circumstances as it is just one small step away from a complete termination of the parent-child relationship: V.S.J. v. L.J.G., 2004 CanLII 17126 ONSC, at para. 1. The twins are 9 years old and, until recently, both parents were involved in their upbringing. As Pazaratz J. remarked in Brazeau v. Lejambe, 2020 ONSC 2843 at para 10: any sudden, unilateral interruption of a generous, long-standing timesharing arrangement is potentially urgent.
[11] Master Kaufman stated further at paragraph 10 of his endorsement that:
The CAS became involved because the children were at risk of emotional and physical harm due to exposure to the incident of domestic violence. Now that the parties are residing in separate places and are not communicating with each other, that risk appears to have been eliminated. There is no information before the Court that the Applicant has ever been violent towards the twins. Of course, the Respondent may have evidence that it is in the children’s best interest that access be supervised, at least on an interim basis, and that issue will have to be decided by the motions judge.
[12] Ms. Overdulve relies on the alleged incidents for which Mr. Overdulve now faces criminal charges in support of her request for supervised access only to the children. Her evidence is that on May 30, 2020, Mr. Overdulve threw a cellphone at her head, barely missing her. It is for this incident which he stands charged with assault with a weapon. Her further evidence is that on June 22, 2020 he forcibly confined her. She does not provide particulars as to what actually occurred. Although she alleges that Mr. Overdulve was angry on other occasions, she does not provide any other information or evidence of altercations or incidents at which she was placed at risk. Although she commences her affidavit with the statement: “I, Angela Overdulve for years has [sic] been a victim of domestic violence, including emotional and physical abuse”, she does not provide any evidence or examples of same. The only incidents described, and not in great detail, from this 16 year relationship are from May 30 and June 22, 2020. No abuse or inappropriate physical discipline towards the children is mentioned. While it is clear that there was some volatility in the relationship at the breakdown of the marriage, I concur with Master Kaufman, that it appears to have dissipated after the parties ceased being in each other’s presence.
[13] With respect to his criminal charges, Mr. Overdulve has entered into an Undertaking not to have direct or indirect contact with or be within 200 metres of Ms. Overdulve, her place of residence, place of employment, school or any place she may be. His Undertaking does not include limitations in having contact with the children.
[14] With respect to the care of the children, Ms. Overdulve gives only two examples of faulty parenting by Mr. Overdulve on his own. One is when she alleges that he failed to give Isabella, who suffers from Chronic Recurrent Multifocal Osteomyelitis, a “body break” as required, and another where he neglected to take Scarlett to CHEO after she fell off a trampoline and may have broken a bone. Mr. Overdulve adamantly denies that he “forgot” to give Isabella a body break and asserts that he is very well aware of her needs based on her medical condition. With respect to Scarlett, Mr. Overdulve explained in his materials that after calling Ms. Overdulve to advise her of the fall, he iced Scarlett’s ankle and monitored it such that a visit to CHEO was not ultimately required. Indeed, Ms. Overdulve does not dispute in her affidavit evidence the claims by Mr. Overdulve that both parents were very involved in the care of the children over the course of the relationship.
[15] Ms. Overdulve has not convinced the court that an order for supervised access to the children by Mr. Overdulve is required. Nor is it necessary to make any order as to custody at this interim and urgent stage.
[16] Mr. Overdulve has proposed a week on/week off regime for the children, with the exchange taking place on Mondays at 6:00 p.m. While that may ultimately be found to be appropriate, I do not have enough evidence before me to conclude that such an order would be in the best interests of the children at this time. I do not know where the children go to school, how far apart the parties live, what Mr. Overdulve’s living circumstances are or what the details of the girls, and in particular, Isabella’s medical needs and care are.
[17] What I can conclude is that Mr. Overdulve should be having parenting time with his children and that it does not require supervision. I am prepared to order that Mr. Overdulve shall have care of the children every second weekend from Friday after school to Monday morning and every Wednesday evening from after school to 8:00 p.m. The drop off location shall be agreed upon by the parties, and Mr. Overdulve shall arrange for a third party to attend to the exchange of the children. This order is without prejudice to Mr. Overdulve’s claim to shared parenting time.
[18] There shall thus be an order as follows:
The Respondent shall have primary care of the children, Scarlett Carolina Overdulve and Isabella Samantha Overdulve, born May 26, 2011;
Commencing Wednesday, September 23, 2020, the Respondent shall have parenting time with the children every Wednesday from the end of school to 8:00 p.m. Pick up of the children will be at school. The exchange location at the end of the visit shall be agreed upon by the parties and the Applicant will identify an appropriate individual to do the exchange on his behalf;
Commencing Friday, September 25, 2020, the Applicant shall have parenting time with the children every second Friday from after school to Monday at the commencement of school. Pick up and drop off location shall be agreed upon by the parties and the Applicant will identify an appropriate individual to do the exchange on his behalf;
This order is without prejudice to the Applicant’s claim for shared parenting time with the children; and,
The parties shall proceed to a case conference to discuss all remaining issues in this Application/Answer.
[19] If the parties are unable to agree on liability for the costs of this motion, and the motion in writing before Master Kaufman, by October 15, 2020, counsel may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.
Justice Engelking
Date: September 21, 2020
COURT FILE NO.: FC-20-1148 DATE: 2020/09/21
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Niels Overdulve, Applicant AND Angela Overdulve, Respondent
BEFORE: Justice Engelking
COUNSEL: Frederic P. Huard, for the Applicant Edith M. Holly, for the Respondent
ENDORSEMENT
Engelking J.
Released: September 21, 2020