OSHWA COURT FILE NO.: FC-20-876

DATE: 20200929

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sally Joan Gray Applicant

– and –

Daniel Mariano Canonico Respondent

Gail K. Macrae, for the Applicant

Amy Jephson, for the Respondent

HEARD: September 24, 2020

REASONS FOR DECISION

CHARNEY J.:

[1] The applicant mother brings this motion for temporary custody of the child, K.C., born June 8, 2017 (the child), and an order for police to locate, apprehend and deliver the child to her. She alleges that the daughter was taken by the respondent father without the applicant’s consent, to live with the child’s paternal grandparents (the respondent’s parents) on August 5, 2020.

[2] The motion was originally commenced by the applicant as an urgent ex parte motion on August 19, 2020. On that date I issued an order that, while the motion was urgent, it should not proceed on an ex parte basis, and directed the applicant to obtain a new motion date and serve notice on the respondent. The motion was served on the respondent by email on August 31, 2020, and at the respondent’s parents’ residence by courier the next day.

[3] The respondent did not file any material or appear at the return of the motion on September 3, 2020.

[4] On September 9, 2020, I granted the applicant’s motion for temporary sole custody of the child and for police enforcement, although the order for police enforcement was suspended for seven days to give the respondent an opportunity to voluntarily comply with the court order (Gray v. Canonico, 2020 ONSC 5391).

[5] On September 9, 2020, the respondent filed an urgent 14B motion stating that he did not receive actual notice of the applicant’s motion until September 4, 2020, and that he was not aware that the motion was going ahead on September 3, 2020. He explained that he does not regularly check his emails and does not have access to wifi/data while he is working. Although he found an envelope on his front porch when he returned home on September 3, 2020, he believes that there are COVID-19 related public health protocols that have recommended leaving all mail for two days prior to touching/opening it. (No such public health protocols or recommendations were appended to his affidavit.) He is now represented by counsel, and requested an opportunity to file submissions and respond to the applicant’s claims.

[6] The respondent also filed his own motion requesting the dismissal of the applicant’s motion of August 19, 2020 and seeking an order that he have interim sole custody of the child, and that the applicant mother have supervised access with the child for two hours, once a week.

[7] The respondent filed his 14B Notices of Motion on September 9, 2020, unaware of my Order of the same date. His 14B motion did not come to my attention until September 15, 2020. Since my Order had already been issued, I treated his 14B Notice of Motion as a motion to to set aside the Court Order pursuant to Rule 25(19) (e) of the Family Law Rules (setting aside an order for lack of notice).

[8] Given these circumstances, I suspended my Order of September 9, 2020, including the provision for police enforcement, and scheduled the motions for September 24, 2020.

[9] When the parties returned before me on September 24, 2020, they took opposing positions as to whether the respondent was adequately served, whether he was evading service, and whether he provided the court with a satisfactory reason for not being present on September 3, 2020.

[10] I advised the parties that given the time available, and the importance of the issue, I would simply rehear the applicant’s motion on the merits since both parties were now present, had filed affidavits in support of their respective positions, and were represented by counsel. The motion proceeded on that basis.

Facts

[11] The applicant is 35 years of age and the respondent is 33 years of age. The parties began cohabiting in November, 2015, and separated on August 5, 2020.

[12] There is one child of the relationship, K.C., born June 8, 2017.

[13] On August 5, 2020, following an altercation between the parties, the respondent father took the daughter from the home, and has not permitted the applicant mother to see the daughter since that date, except under the supervision of the Durham Children’s Aid Society (DCAS).

Position of the Applicant

[14] The applicant alleges that the relationship was marred by conflict, and there have been several separations and reconciliations. She alleges that the respondent was verbally, emotionally and physically abusive to her, and their disputes were generally about money. She has, in the past, gone to the DCAS and a shelter to try to leave the respondent, but was persuaded by the respondent’s mother to reconcile with him.

[15] On August 5, 2020, the applicant alleges that the respondent demanded money from her and backed her into a corner. She pushed him away. She alleges that the respondent attacked her and bit her on the leg. She called the police for assistance, but the police blamed her for the argument and charged her with assault.

[16] Subsequently, her daughter was taken by the respondent to the home of the respondent’s parents (the daughter’s paternal grandparents). When the applicant spoke with the respondent’s mother, the respondent’s mother advised her that she would not return the child to her.

[17] The applicant told the Durham Regional Police that the respondent’s mother would not return the child to her, and the police advised that they would check on the child’s safety, but that she would have to seek assistance through the family court.

[18] The applicant alleges that she was the child’s primary caregiver since her birth. She is a stay-at-home mother.

[19] The applicant alleges that the respondent and his mother have a history of taking and withholding the child from her based on their belief that she has a substance abuse problem. To prove that this was not true, the applicant underwent drug testing every other day for six weeks, and the testing confirmed that there was no substance abuse.

[20] The applicant is concerned for the safety of her daughter while she resides with the paternal grandparents. She alleges that the paternal grandfather is elderly and unable to care for a three year old child, the maternal grandmother frequently travels to the United States for work, and the respondent, who is a construction worker, has never taken care of the child. The applicant is concerned that the child is really in the care of the paternal grandmother since the father is rarely home due to his employment.

[21] The applicant has been in contact with the DCAS, who have had no concerns with respect to her parenting.

[22] The DCAS did attend with the applicant to visit the child on August 26, 2020. The DCAS Family Service Worker has provided the Court with a letter setting out his opinion that the child’s separation from the mother has had a significant impact on the child. A copy of this letter was also sent to the respondent. The letter, dated August 28, 2020 states:

I am writing this letter to make sure that everyone is aware of what the Society’s position is with respect to access between K.C. and Ms. Gray at the present time…

My investigation so far has included a thorough review of the child’s historical child welfare involvement, interviews with both Sally Gray and Daniel Canonico, as well as observations of K.C. both at Daniel’s home and during a visit she had with Ms. Gray on August 26, 2020…

Mr. Canonico has indicated that the only way he will allow Ms. Gray to have even short visits with K.C. is if those visits are supervised. Based on the information that has been obtained at this point during the investigation, the Society does not take a position regarding Ms. Gray’s visiting time with K.C. and/or the need for it to be supervised. There has been insufficient evidence brought forward that supports the notion that it is unsafe for Ms. Gray to take care of K.C. independently.

Based on my observations, K.C. being separated from her mother for nearly a month appears to have had a significant emotional impact on her. Witnessing K.C.’s intense emotional reaction (screaming for her mother and crying) which continued for nearly 20 minutes following her visit with Ms. Gray was one of the more difficult situations I have witnessed in my 16 year career in child welfare. The Society is hopeful that this situation can be addressed as quickly as possible so that K.C.’s emotional wellbeing is not further impacted by her not being in the care of Ms. Gray on a consistent basis.

[23] This is compelling evidence in support of the applicant’s position on this motion. The evidence indicates that the respondent may be causing emotional trauma to the child by denying parenting time with the mother.

[24] On September 11, 2020, the same DCAS Family Service Worker sent the following email to counsel for the applicant:

The Society has had the opportunity to review Justice R.E. Charney’s order dated September 9, 2020. With respect to paragraph 19 of the order, the Society has completed its review of the information provided by Ms. Gray related to the alleged domestic violence between herself and Mr. Canonico. Based on this and the information obtained through the investigation it is the Society’s position that at this time it would be in K.C.’s best interest to have a third party facilitate exchanges between Ms. Gray and Mr. Canonico. This would help ensure that K.C. is not exposed to any further conflict between Ms. Gray and Mr. Canonico... In order to assist with avoiding police intervention, the Society is agreeable to facilitating a onetime exchange at the Society’s office in order to ensure a safe transition for K.C. to Ms. Gray’s.

[25] The DCAS sent counsel for each of the parties a final letter on September 23, 2020. Both counsel consented to this letter being provided to the court. The letter concluded that the DCAS found that the child would be safe in the care of either the applicant or the respondent individually. It stated:

I can confirm that I have now completed my investigation related to Ms. Sally Gray and Mr. Daniel Canonico. I have detailed a summary of the steps taken during the investigation as per your request:

• I reviewed the DRPS report from the incident that occurred on August 5, 2020 which led to DRPS and the DCAS involvement multiple times.

• I completed s thorough review of the family’s child welfare history.

• I attended Ms. Gray’s place of residence on two occasions and did not observe any safety concerns or concerns with the condition of the home.

• I interviewed Ms. Gray in person and interviewed Mr. Canonico via phone as per his request as he advised that he was working long hours outside of Durham Region.

• I attended Mr. Canonico’s parents’ home where he was residing to observe K.C., I also spoke briefly with Mr. Canonico and his mother Marisa there and did not have any concerns.

• I had the opportunity to observe Ms. Gray’s interactions with K.C. during a visit that I facilitated. Their interactions with each other were positive throughout the visit and K.C. struggled significantly being separated from her mother at the conclusion of the visit.

• I have reviewed all documentation provided to me by Ms. Gray (video recordings, and documentation of communication between and/or related to herself and Mr. Canonico).

• I have communicated with multiple collateral service providers supporting Ms. Gray which included the Trauma Stress Clinic at Ontario Shores, Ms. Gray’s Support Worker Kelly Albin from Luke’s Place and her family doctor, Dr. Kevin Lee, none of which reported any child protection concerns related to Ms. Gray or her ability to care for K.C.

• Dr. Lee also provided me with a drug screen completed by Ms. Gray which was negative for all illegal drugs.

Based on this information obtained during my investigation the Society has assessed K.C. as safe in the care of both Ms. Gray and Mr. Canonico individually. Given the level of conflict between parents and the risk of further emotional harm it may present for K.C. at this time, it would be helpful to have any exchanges of the child be facilitated by a third party.

Position of the Respondent

[26] The respondent takes the position that, as the child’s father, he has the right to unilaterally take and withhold the child from the applicant if he considers this to be in the child’s best interest. He argues that once he did this, his unilateral actions established a new “status quo”, and the onus is on the applicant to provide compelling evidence for changing the status quo he has established. He takes the position that the applicant should have only two hours per week supervised access with the child, and the applicant has the onus to prove that her access should not be supervised. He argues that any court order that removes the child from his primary care would be “a significant departure from the status quo”.

[27] The respondent denies that he was ever verbally, emotionally or physically abusive to the applicant, although he acknowledges that he has had to physically restrain the applicant to prevent her from assaulting him.

[28] He denies attacking the applicant on August 5, 2020 and takes the position that she attacked him and began kicking and hitting him in the face. He tried to restrain her in self-defence.

[29] The respondent denies that the applicant was the child’s primary caregiver prior to their separation, and alleges that prior to their separation “due to my flexible work schedule, I look[ed] after K.C. equally to the Applicant”.

[30] He alleges that since August 5, 2020 he has been primarily responsible for caring for the child, including cooking for her, feeding her and bathing her.

[31] The respondent alleges that the applicant has a long history of substance abuse of various drugs and alcohol, and that she leaves drug paraphernalia around the home where it can be accessed by the child. He has attached undated copies of text messages between the applicant and friends that he alleges deal with the purchase and consumption of drugs.

[32] The respondent’s affidavit relies, in part, on information from anonymous sources, such as an unnamed “friend” and “mutual friends”. Evidence from anonymous sources is not admissible (Family Law Rule 14(19)), and I have disregarded all reference to evidence from unnamed sources.

[33] The respondent has also expressed concern about where and with whom the applicant lives. He is concerned that such a person may be connected to the applicant’s alleged drug use.

[34] The respondent states that while his mother does travel to the United States for work, she stays less than two days each time and “barely leaves her vehicle”. His mother recently tested negative for COVID-19.

[35] The respondent denies that he currently lives with his parents, but does acknowledge that he will soon be moving into his parents’ home, where the child will have the benefit of increased contact with her extended paternal family, and time with her grandparents.

[36] The respondent takes the position that the court should disregard entirely the “flippant recommendations” from the DCAS Family Service Worker. He also takes the position that the drug testing results should be disregarded because the testing was only for a period of six weeks.

[37] Finally, he argues that any emotional upset caused to the child are exclusively caused by the actions of the applicant mother and “is certainly through no fault of my own”.

Analysis

[38] The issue before the court is which parent should have temporary custody of the child, and whether either parent’s access with the child should be subject to supervision.

[39] There is no dispute that the court must make this determination based on the best interests of the child. Often in such cases, “best interest” is determined by maintaining the status quo. The status quo is particularly important in an interim motion because the court is often not able to make factual findings if there are, as in this case, conflicting affidavits: Pancel v. Henri, 2012 ONSC 546, at paras 25 and 26.:

Frequently, on a motion for an interim order regarding the care and custody of a child, the concept of status quo is front and centre. On an interim basis, the status quo will generally be maintained, in the absence of compelling reasons indicating that a change in the status quo is required in order to meet the child’s needs: see Grant v. Turgeon, 2000 ONSC 22565.

An interim or temporary Order is intended to stabilize the parties’ circumstances until trial, when a full and complete consideration of the facts can be conducted in person: see Sellick v. Bollert, 2004 ONSC 18894, [2004] O.J. No. 2022 (S.C.).

[40] See also: McPhail v. McPhail, 2018 ONSC 735, at para. 15:

As a general rule, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests: Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont S.C.J.) and Papp v. Papp, [1970] O.R. 331 (C.A.).

[41] As for how the bests of interest of the child are to be assessed, the Court is governed by the considerations regarding the child’s needs and circumstances set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990 c. C12, (CLRA).

[42] In Wilson v. Wilson, 2015 ONSC 479, at para. 62, Price J. stated (citations omitted):

No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence in the court’s determination of custody and access. But the court pays particular attention to:

(i) the level of hostility between the parties, the extent to which that hostility could undermine the child’s stability, and what measures, if employed, would likely strip the hostility from the environment;

(ii) the extent to which a person seeking access has used contact with the child for a purpose collateral to the child’s best interests; for example, to try to control or denigrate the other parent;

(iii) the extent to which the person displaying objectionable conduct is capable of altering the behavior and motivated to do so; and

(iv) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in determining what is in the child’s best interests.

[43] In addition, a young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them: Wilson at para. 63.

[44] There is a presumption that regular access by a non-custodial parent is in the best interests of children: V.S.J. v. L.J.G., 2004 ONSC 17126, at para. 128; C.A.S. v. C.F., 2020 ONSC 3755, at para. 32.

[45] To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein.

[46] Section 24(4) requires the court, in assessing a person’s ability to parent, to consider whether the person has at any time committed violence or abuse against the spouse. In the present case, each parent alleges that the other parent was physically abusive. These allegations remain unproven.

[47] Section 20 of the CLRA provides that, except where otherwise provided in Part III of the CLRA, a child’s parents are equally entitled to custody of the child. When parents separate, custody may be changed through “consent, implied consent or acquiescence” of the parents (s. 20(4)), or by court order (s. 21).

[48] Thus, the status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order.

[49] The cases are abundantly clear, however, that, contrary to the assertion of the respondent, the status quo cannot be established or altered by the unilateral “self-help” conduct of one parent. A parent cannot be permitted to gain a litigation advantage by unilateral action: See Rifai v. Green, 2014 ONSC 1377, at para. 25:

The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

[50] Even if there is an alleged safety issue, a parent taking steps to ostensibly protect the child must still come to the court at the earliest opportunity on an urgent basis: Skitch v. Hiscock, 2018 ONSC 5581, at para. 15.

[51] See also: Bloom v. Bloom, 2017 ONSC 1568, at paras. 36-38.

[52] In McPhail, Lacelle J. stated, at para. 17:

With respect to what is meant by “the status quo”, there is general recognition that “[i]t does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation” [citations omitted]. Further, “a parent who engages in self-help tactics despite the best interests 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 can't be entrusted with custodial authority they would likely abuse”: Rifai v. Green, 2014 ONSC 1377 at para. 22. … Indeed, Chappel J. suggests in Batsinda v. Batsinda at para. 28 that

for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.

[53] See also: N.D. v. R.K., 2020 ONCJ 266, at paras. 80, 82

[54] In the present case, the respondent had no right to unilaterally decide to remove the child from the mother. Even if he thought the matter was urgent, he was obliged to apply for a court order to continue any such denial of access. He did not apply for any such order until more than a month after removing the child from the applicant and denying her all but limited supervised access to the child. Even then, his motion was only made as a response to the mother’s earlier motion. This is unacceptable. His conduct calls into serious question his ability to parent and satisfy the needs of his child. Clearly one of this child’s primary needs is parenting time with her mother. The respondent’s conduct appears to disregard this need.

[55] The respondent’s evidence in support of his position consists primarily of bald allegations and inadmissible hearsay. In contrast, the applicant’s evidence, consisting primarily of the correspondence and reports from the DCAS, is compelling. I recognize that the DCAS reports have not been tested by cross-examination, but they are at least the observations of a neutral, objective observer, with some expertise in child welfare matters. At this stage of the proceedings, that is the best evidence available.

[56] While the DCAS found that the child would be safe in the care of either the applicant or the respondent individually, the evidence also confirms the DCAS concern that the continued high level of conflict between the parents may be causing significant emotional harm to their daughter. Each parent accuses the other of physical abuse. Regardless of which parent is primarily responsible, their relationship has become toxic, and joint custody is not an option at the present time.

[57] The court must therefore choose between the two parents for temporary sole custody.

[58] In these circumstances, I conclude that it is in the best interest of the child that temporary sole custody should be awarded to the applicant mother. There are two primary reasons for this.

[59] First, the evidence before me does not support the respondent father’s unilateral termination of all but limited and supervised contact with the applicant mother. As stated above, “[a] parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment.” The respondent father’s unilateral conduct in this case does raise those serious concerns about his own parenting skills and judgment and about his ability to act in the child’s best interests.

[60] A second consideration is the evidence that the respondent father has delegated his custodial role to his mother, the child’s paternal grandmother. The respondent’s own evidence is that he is absent from home for prolonged periods and does not have access to email while he is working. That was his explanation for why he did not receive actual notice of the applicant’s motion until September 4, 2020, and why he was unable to meet personally with the DCAS Family Service Worker when the DCAS conducted its investigation in September 2020.

[61] There is nothing wrong with the respondent delegating some of his parenting responsibilities to his mother. Working parents frequently rely on grandparents to assume some responsibility for parenting, and a child’s relationship with their grandparent is often an important and valuable relationship. Parenting assistance from a grandparent is simply a reality for many working parents, separated or not. I would not, for example, limit the father’s parenting time with the child simply because the child spends some, or even most, of that time with the paternal grandmother.

[62] The choice for temporary sole custody is not, however, a choice between the mother and the paternal grandmother. It is between the mother and the father. If I have to choose one parent to have temporary sole custody, it will be the parent who is actually available to perform that role, all other things being equal.

[63] The applicant’s notice of motion also requests police enforcement. Numerous cases have confirmed that police enforcement orders should be granted sparingly and should be limited to exceptional circumstances and as a last resort when other judicial enforcement tools have been unsuccessful. Police enforcement should be ordered only when it is shown to be in the best interests of the child, after considering the risk of trauma that police enforcement might cause to the child: Patterson v. Powell, 2014 ONSC 1419, at paras. 13-35; Multani v. Rana, 2020 ONSC 2433 at paras. 131-132; Medu v. Medu, 2020 ONSC 2582, at para. 22; Tessier v. Rick, 2020 ONSC 1886, at para. 17.

[64] The respondent father has now participated in this court proceeding and has provided an explanation for his failure to appear on September 3, 2020. I have no reason to believe that he will not be fully compliant with any court order made. It is, therefore, premature to consider the need for police enforcement.

[65] If the respondent does not voluntarily comply with this order and police enforcement proves necessary, the applicant may bring an urgent 14B motion to my attention.

[66] The applicant has also requested a two-week period with her daughter before the father’s parenting time commences. The applicant has been permitted by the respondent to see her daughter for only two hours since August 5, 2020. Given the daughter’s young age, I agree that she requires some uninterrupted time with her mother to mitigate the effects of this prolonged separation, re-establish their relationship and provide some security and stability.

[67] I note that there is a dispute between the parties regarding the status quo that existed prior to their separation. The applicant mother alleges that she was the child’s primary caregiver since the respondent father was frequently absent due to his work. The respondent father alleges that, prior to separation, he had a “flexible work schedule” and he looked after the child equally to the applicant. This is not a dispute that I can, or need, resolve on this motion.

[68] In keeping with the maximum contact principle, the respondent father should be given weekly parenting time with the child after the initial two-week reunion of the mother and daughter.

[69] Both parties have consented to an order requesting the appointment of the OCL to assess the needs of the child. Given the allegations of physical abuse and the high level of conflict in this case, I agree that such an assessment would be of assistance.

Conclusion

[70] This Court Orders:

(a) On a temporary basis, until further order of the court, the applicant, Sally Joan Gray, shall have sole custody of the child K.C., born June 8, 2017.

(b) On a temporary basis, the applicant mother shall have final decision making authority with respect to education and health related matters for the child, after consultation with the respondent. Consultation shall be by email or other form of electronic communication agreed to by the parties.

(c) The respondent, Daniel Mariano Canonico, shall, within 24 hours of the release of this Order, deliver the child to the Durham Children’s Aid Society who will deliver the child to the applicant.

(d) On a temporary basis, the respondent shall have parenting time with the child commencing the weekend following two full weeks after the child has been returned to the applicant. Such parenting time will follow the following schedule:

i. Alternate weekends commencing Friday at 4:00 p.m. and ending Monday at 9:00 a.m. If the father’s weekend falls on a long weekend, weekend access will end Tuesday at 9:00 a.m.

ii. Alternate weeks when the father does not have the child on the preceding weekend, commencing Monday at 4:00 p.m. and ending Wednesday at 9:00 a.m.

(e) If the parties are unable to agree on an access schedule for the Christmas holiday, either party may file a 14B motion on notice and to my attention.

(f) All access exchanges shall take place at a supervised access centre agreed to by the parties.

(g) An Order requesting the appointment of the OCL shall issue.

[71] The applicant is presumptively entitled to costs for this motion: Family Law Rule 24(1). If the parties are unable to agree on costs, the applicant may serve and file costs submissions of no more than 3 pages plus costs outline within 20 days of the date of this endorsement, and the respondent may file responding submissions on the same terms within a further 10 days.

Justice R.E. Charney

Released: September 29, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sally Joan Gray Applicant

– and –

Daniel Mariano Canonico Respondent

REASONS FOR DECISION

Justice R.E. Charney

Released: September 29, 2020