Court File and Parties

COURT FILE NO.: File Number not assigned yet DATE: 2020/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Devon Miles, Applicant, Represented by Tanya C. Davies -and- Kelsey Bradley, Represented by Allison Lendor

BEFORE: Justice P. MacEachern HEARD: Urgent Motion heard November 18, 2020 by Zoom

E N D O R S E M E N T

[1] Justice Audet granted leave for this motion to be heard on an urgent basis before a proceeding being commenced.

[2] Both parties have filed notices of motion, although the Applicant father initiated this urgent motion. Both parties seek temporary primary care of their two children, ages 3 and 1.

[3] The Applicant father's position is that the children are unsafe in the Respondent mother's care because of incidents during the period from October 27 to November 4, 2020. His position is that the mother has serious mental health issues that must be investigated.

[4] The Respondent mother's position is that although she acknowledges specific incidents from October 27 to November 4, 2020, she provides a different explanation for the events. The mother's position is that the children are not at risk in her care and that she was the primary caregiver to the children before separation.

[5] The parties resided in a common-law relationship. They separated on or about October 28, 2020. The applicable legislation is the Children's Law Reform Act. The issue is what temporary parenting arrangement is in the best interests of the children.

[6] I find that it is in the children's best interests to primarily reside in the Respondent mother's temporary care, with reasonable access to the Applicant. This finding is based on the following.

[7] The evidence before me supports that the mother was the primary caregiver for the children before separation. She was home on maternity leave, whereas the father was working outside of the home. The father did not dispute the mother’s assertions that she was the primary caregiver.

[8] The mother has now left the family home with the children (on October 31, 2020). Although there is a dispute about:

a. whether the mother should have removed the children from home on October 31, 2020;

b. the father's conduct on November 3, 2020, when he kept the children in the house after the mother returned for a visit; and

c. the mother's behaviour when she took the children on November 4, 2020;

at this point, I find that it is in the children's best interests that the parties reside in separate residences. The communications between the parties, and the incidents described, confirm that there is significant discord between the parties to which the children should not be exposed. Both parties also stipulate that the conflict between them has caused themselves difficulties, although each blames the other. At this point, the parties should live apart.

[9] Given the parties live separately, the issue is what caregiving arrangements should be made for the children. Given that the mother was the primary caregiver for the children prior to separation, I find the children should primarily reside with her.

[10] I do not find that the allegations made by the father concerning incidents that took place between October 27 and November 4, 2020, warrant a finding that the children are in danger in the mother's care or that it is in the children's best interests to primarily reside with the father. This is mainly because:

a. The police reports record that the police did not have concerns that the children were at risk on the mother's care during their interactions with her on October 31, 2020, November 3, 2020, and November 4, 2020;

b. The police reports record that the matter was referred to the CAS in or about the end of October or early November 2020. The CAS has been involved with the family for several years. Although I do not have any records from the CAS before me, the evidence is that the CAS is aware of the incidents raised by the father yet has not determined that the children need protection while in the mother's care.

c. On November 4, 2020, the father told the police that the children were not in danger in the mother's care.

d. During the period from November 3 to 7, 2020, the father sought the mother's agreement to an equal timesharing arrangement for the children, which supports his view, at least outside of this litigation, that the mother was an appropriate caregiver for the children at least half of the time.

e. Although the father reports longstanding concerns with the mother's mental health, she provided primary care for the children while he was out of the home for work before their separation.

[11] There is evidence that supports the mother's allegation that the father was pressuring her to agree to an equal timesharing arrangement and only commenced this urgent motion when she refused to agree. I do not need to decide this issue, but this view of events is consistent with the evidence.

[12] There is also evidence before me that raises concerns regarding the conduct of both parties. The mother acknowledges that she was depressed and acted in a manner that she described as "seeking attention." The mother has sought medical assistance to address these issues. It is expected that she will continue to seek medical help from qualified professionals and follow their treatment recommendations. She states she is.

[13] There is also evidence before me, particularly some of the father's communications to the mother, that he has also engaged in problematic, destructive behaviours towards the Applicant. It is expected that this conduct will also be addressed, forthwith.

[14] The mother proposes reasonable temporary access to the father on alternate weekends, from Friday to Sunday, and one overnight per week. The children go to bed at 7:30 pm. The father appears to work significant hours and intends to rely on his mother to assist with caregiving for the children if he has them in his care while working. The father has not provided his work schedule. Given this, I find that it is in the children's best interests to have temporary access with their father as proposed by the mother.

[15] The mother seeks production of the CAS and police records. The father consents. The motion for police records will need to be brought on notice to the police but may be filed as a Form 14B motion.

[16] The mother seeks that this matter is referred to the OCL. The father does not object to such a referral and believes the involvement of the OCL would be helpful. The father does not want the referral to the OCL to delay the determination of interim caregiving. I have determined interim caregiving and therefore make the order referring this matter to the OCL.

[17] This motion was allowed to proceed before an Application was commenced. The father must start his Application forthwith, and I have directed him to do so in the orders below. The matter must then proceed to an initial case conference. I am ordering the parties to take immediate steps to obtain the next available date for a case conference to avoid further delay. I understand that the Ottawa court is currently scheduling case conferences for February of 2021.

[18] I make the following orders:

a. There shall be a temporary order that the children, E.J.M., born February 2017, and E.G.M., born November, 2019, shall reside in the primary care of the Respondent, Kelsey Bradley;

b. There shall be a temporary order that the Applicant, Devon Miles, shall have access to the children as follows:

i. Alternate weekends from Friday at 4 pm to Sunday at 4 pm (unless the parties agree to different times);

ii. Every Wednesday from 4 pm to Thursday at 8 am (unless the parties agree to different times or a different evening of the week for such mid-week access).

c. On consent of the parties, and subject to the approval of the Ottawa Children's Aid Society (CAS), the CAS shall provide copies of their records concerning the parents and the children to both parties;

d. The parties consent to the production of police records from Ottawa Police Services. The Respondent may file a Form 14B motion seeking these records, on notice to Ottawa Police Services and to the Applicant (although the Applicant's consent to such an order is noted);

e. An Order is granted referring this matter to the Office of the Children's Lawyer.

f. The Applicant shall file all required documents to have his Application issued in this proceeding within seven days. The Respondent shall serve and file her Answer following the Rules.

g. The parties shall take immediate steps to schedule a case conference date for the next available date on the regular Ottawa court list (expected to be in February of 2020). This order allows them to schedule the case conference before the Application is issued, and the Answer is filed.

h. The parties shall take immediate steps to exchange disclosure that is relevant to the issues in dispute, reasonable, necessary and proportional. If there are disclosure issues that are disputed, either party may seek disclosure by a Form 14B motion, supported by an affidavit of no more than 5 pages in length, double spaced, 12-point font. The other side shall have 10 days to serve and file their response. Disclosure shall be exchanged, and any issues addressed by motion, prior to the case conference.

i. If the parties cannot agree on this motion's costs, the Respondent may serve and file submissions on costs before November 26, 2020, at 4 pm. The Applicant may file submissions on the cost before December 3, 2020, at 4 pm. Submissions to not exceed three pages, double spaced, 12-point font, plus any attachments such as offers to settle and bills of costs.

Dated: November 18, 2020 __________________

Justice P. MacEachern