Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT MEDEIROS, Applicant
AND:
MARIAH BUTTERWORTH, Respondent
BEFORE: Justice I.F. Leach
COUNSEL: Kristine Jackson, for the Applicant
Kelli McPhail, for the Respondent
HEARD: October 9, 2020
ENDORSEMENT
Introduction
1Before me, in this family law proceeding, are a motion brought by the Applicant father and a cross-motion brought by the Respondent mother in relation to the parties’ two young children, both of whom are less than three years old.
2In his motion, the Applicant seeks relief that includes the following:
a. an interim order that the children reside primarily with him, with the Applicant having access to the children only on a supervised basis, with such supervision to be provided through the Merrymount Supervised Access Program or the services of an agreed upon third party;
b. in the alternative, an interim order that parenting time between the parties be shared equally on a “week about” basis; and
c. in the further alternative, an interim order that the Applicant be granted a minimum of child access each Tuesday and Thursday evening, in addition to alternate week-ends, and mid-day access on Sundays when he does not have the children for the entire week-end.
3In her cross-motion, the Respondent seeks relief that includes the following:
a. an interim order granting the Respondent sole custody of the children;
b. an interim order directing that the Applicant shall only have access with the children by video or teleconference, or in a supervised setting;
c. an interim order providing the police with authority to assist in the enforcement of the court’s order, including direction and authority to search for and locate the children, and return them to the Respondent’s care; and
d. an interim order requiring the Applicant to obtain and disclose a current criminal record check within 60 days.1
4As reflected in the endorsements released by Justice Henderson on September 15 and 24, 2020, both motions were found, (in accordance with the triage procedures adopted to implement the Consolidated Notice to the Public and Profession issued by the Chief Justice on May 19, 2020), to be presumptively urgent, warranting their hearing on an exceptional basis during the current suspension of regular court operations.
5In my view, both motions raise issues requiring urgent resolution, given the circumstances outlined below.
6To the extent necessary, I therefore agree with the preliminary determinations regarding urgency made by Justice Henderson.
Further background
7I have spent a good deal of time reviewing and considering the motion material filed by the parties, and the submissions made by counsel during the video-conference hearing that took place “before” me on October 9, 2020.
8Providing even a broad accepted general background to this dispute is challenging, as the parties currently seem to agree on very little.
9However, there seems to be little or no dispute about the following general matters:
a. The parties began dating in June of 2017 and began living together shortly thereafter.
b. There apparently is no dispute that the relationship between the parties was challenging, problematic, and marked by a number of separations. However, the parties had two children together: a daughter named “Kylina”, born in September of 2018, and another daughter named “Briella”, born in December of 2019.
c. During periods of separation, the Applicant would move out of the apartment that served as the family home, (e.g., relocating to the nearby residence of the Applicant’s mother), while the Respondent and the children continued to live in the same apartment residence.
d. However, the Applicant continued to see the children, and the Respondent continued to entrust the children to the Applicant’s care. Sometimes, the children would leave the apartment with the Applicant and go elsewhere, including overnight visits. On other occasions, the Applicant would visit the Respondent and the children in the apartment, and sometimes be left alone there to care for the children, (at the request of the Respondent or otherwise with her consent), while the Respondent went elsewhere.
e. The parties separated for the final time on or about June 3, 2020, at which time the Applicant once again left the apartment to reside with his mother, while the Respondent remained in the apartment, where the children also continued to have their primary residence.
f. The Applicant apparently commenced these proceedings shortly after the parties’ final separation in June of 2020, filing an application seeking relief that included custody, access and child support. In the meantime, the parties apparently reverted to the general type of informal parenting arrangements described above, through which the Applicant continued to see and have visits with the children; e.g., at the Respondent’s apartment, and at the nearby residence the Applicant shared and shares with his mother and her partner.
g. Such arrangements apparently continued into late August and early September of 2020, at which point there was a marked and rapid deterioration in the ability of the parties to get along, and a dramatic escalation in disagreement about parenting arrangements and where the children should have their primary residence. The reasons for that are very much in dispute, but it seems reasonably clear that:
i. in relation to an agreed access visit on August 29, 2020, during which the Applicant picked the girls up from the Respondent’s apartment and took them to his mother’s residence for an overnight visit, there was a dispute about whether the girls should stay with the Applicant or be returned to the Respondent;
ii. following a particular access visit on September 9, 2020, during which the Applicant was invited to stay with the girls in the Respondent’s apartment while the Respondent went elsewhere, the Respondent brought the girls to reside with him at the home of their