Court File and Parties
COURT FILE NO.: FC606/20
DATE: December 15, 2020
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Amy Elizabeth Rathan, applicant
AND:
Nile Douglas Harding, respondent
BEFORE: TOBIN J.
COUNSEL: Eric M. Vallillee for the applicant Robert A. Haas for the respondent
HEARD: December 9, 2020 by Zoom conference
ENDORSEMENT
[1] There are two motions before the court. The applicant (mother) seeks[^1] the return of the parties' six-year-old child to her from the respondent (father) who resides in Nova Scotia. The father asks[^2] for an interim order allowing him to keep the child in his care.
[2] Both motions were before the court on August 28, 2020. On September 1, 2020, Templeton J. ordered[^3], in part, on an interim, interim basis:
(1) the parties will continue to share joint custody of their child;
(2) the child is to remain in the care of the father pending further order of the court;
(3) the child's permanent residence is to remain with the mother;
(4) the child was to be registered for school in Nova Scotia and the mother was to be named as an emergency contact;
(5) the child is to have daily video contact with the mother and his older sibling; and
(6) the mother was to produce certain documents pertaining to Corey Watling before the next return of this matter.
Background
(a) Prior to September 1, 2020
[3] The parties’ child was born December 7, 2014 while they lived in Alberta. In December 2015, they moved to Nova Scotia. Approximately two months later, the parties separated. The mother moved with the child to Ontario and the father remained in Nova Scotia. They agreed to joint custody of their child and that he, who was then two years of age, would be in the father's care for the months of June, July and August each year.
[4] This arrangement continued until the COVID-19 pandemic began in 2020. The parties agreed that the child would go to Nova Scotia in March 2020. Paras. 14 and 16 of Templeton J.’s endorsement dated September 1, 2020 describes how this came about:
[14] A month later, the COVID-19 pandemic hit. Life as they and everyone else knew it changed drastically. With Hunter’s school closed, and restrictions such that Hunter was facing the prospect of having to stay indoors for lengthy periods of time, Ms. Rathan offered to have Hunter start his summer access with Mr. Harding early. Mr. Hunter drove to Ontario and picked Hunter up on March 27, 2020 as agreed. According to Ms. Rathan, the plan was to reassess the situation at the end of three months in June to determine whether Hunter should remain there for the balance of the summer as he had in years past or return to Ontario. In Nova Scotia, Hunter continued his schooling remotely although apparently this was a difficult achievement.
[16] In June, Ms. Rathan agreed to let Hunter stay with his father in Nova Scotia until the end of August 2020 at which time he would be returned home to London to start grade 1 at school in September.
[5] In July 2020, the father made clear to the mother that he did not want the child to return to her care. The reason the father gave for wanting this change in their agreement was the character and history of the mother's then current partner, Corey Watling. Justice Templeton provided details of the concerns about Mr. Watling at paras 22 and 23 as follows:
[22] The difficulty in this case is the evidence of Mr. Watling’s lifestyle and criminal behaviour. According to Ms. Rathan, Mr. Watling has been a friend and fixture in her life for many years. But Mr. Watling has not served or filed an Affidavit in response to or support of the Motions before me. The evidence concerning Mr. Watling is gleaned from his 35.1 Affidavit referred to above and the Affidavits that were filed before me from the parties and persons other than Mr. Watling.
[23] Based on the evidence before me, it appears that Mr. Watling has four property-related convictions (between 2009 and 2015), two convictions for possession of a controlled substance (2016 and 2017) and is currently charged with trafficking a controlled substance in 2018. He admits to having been incarcerated and placed on probation in the past but does not disclose any details with respect to any of the offences for which he was convicted. There is no evidence before me with respect to the underlying allegations regarding the current charge, or the nature and terms of his release. According to Ms. Rathan, since the re-commencement of their relationship, he has completed a 19-day recovery program at Westover Treatment Center but there is no evidence from either Mr. Watling or the Centre in corroboration of this allegation.
[6] Justice Templeton concluded at para. 35:
[35] There has been a material change in this child’s life with respect to the male adult figure in his permanent home environment, the nature of the man who now lives in this home and the dynamics of the family relationships within. The risk, if any, posed by this change must be assessed on the basis of detailed, objective evidence.
[7] Justice Templeton directed the mother produce extensive documents about Mr. Watling's criminal involvement, past and present. This objective information would assist the court in assessing what, if any, risk he posed to the child.
(b) Subsequent to September 1, 2020
[8] The parties marshaled further evidence to address the risk issues identified by Templeton J.
[9] Mr. Watling acknowledged his long history of drug and substance abuse. It began when he was in high school. He is now 32 years of age.
[10] He described the circumstances giving rise to the December 2018 criminal charges he faces at para. 10 of his September 30, 2020 affidavit as follows:
- On December 13, 2018 the Woodstock Police came to Mark McKinney’s home while Cheyanne and I were there, and while I was there engaging in drug use, and they searched the property. They located drugs and money on the premises and also searched all of us personally. The police did not find any drugs on me, but they found $40 in my pocket and decided to charge me with possession of proceeds of crime based on the assumption that it was drug money, and they also charged me with two counts of possession of a controlled substance for the purposes of trafficking based on what they found on the property, but again, I deny that I was involved in trafficking.
[11] Mr. Watling attached as an exhibit to his affidavit; the Crown Brief Synopsis, Recognizance of Bail, and Application for a Consent Variation of Bail dated May 25, 2020 in which it is noted that the Crown fully supported his efforts to rehabilitate himself.
[12] On August 27, 2020, Mr. Watling's co-accused, Cheyenne Helmuth, pleaded guilty to the charges against her and took full responsibility for the trafficking and presence of drugs. Ms. Helmuth provided an affidavit[^4] in which she stated:
(1) she was the "ex-girlfriend" of Mr. Watling;
(2) all of the drugs found by the police belonged to her;
(3) Mr. Watling was not responsible for anything found by the police; and
(4) she did not know of any drug trafficking in which Mr. Watling was involved.
[13] On October 16, 2020, a pre-trial conference was held in Mr. Watling's criminal matter. The theory of the case appears to be that Mr. Watling was "unfortunately swept up into this as a result of [his] addiction at the time."[^5]
[14] Since December 2018, there have been no other criminal charges laid against Mr. Watling.
[15] Also, since December 2018, Mr. Watling has complied with all terms of his release without incident. He remains "clean and sober."[^6] He has no social connections or contact with anyone known to use drugs nor does he want to.
[16] Mr. Watling's police record check dated September 4, 2020 discloses his criminal history which began in 2008.
[17] In May 2020, Mr. Watling was able to begin living with the mother as a result of the variation in his bail terms. He began acting as a volunteer at the organization where the mother works. He acts as a “kind of peer counselor."[^7] The mother is employed by a valuable community organization known as Impact London that provides social services to the homeless.[^8]
[18] Mr. Watling voluntarily attended Westover Treatment Center from June 15, 2020 to July 3, 2020. The discharge summary, consideration of which was not objected to, describes him as having a "solid recovery plan" and that he is "motivated and determined with a noticeable positive attitude."[^9] He was commended for the good effort he put into his recovery. The summary also noted barriers to recovery, which included unhealthy associations, places and situations.
[19] Mr. Watling has registered to return to Westover for their Stage 2 program. He did so to demonstrate his commitment to "maintaining [his] clean and healthy lifestyle."[^10]
[20] The mother and Mr. Watling reside with the mother's teenage child. Mr. Watling and that child have an excellent relationship. There has been no contact with the Children's Aid Society.
[21] The father's evidence is that, while the child misses his mother, he has adjusted well in his care.
[22] There is evidence that the mother has challenges in exercising her daily video conferences with the child. This evidence is contradictory. The mother's evidence is that the father and his partner are interfering. The father denies this is the case and states that he supports the contact. Any problems are due to the age of the child and the difficulty in keeping him engaged during video calls.
Discussion
[23] The endorsement of Templeton J. makes clear that, on the evidence then before the court, the reason the child was not ordered to return to the mother's care was the risk to the child that may be posed by Mr. Watling. He was new to the scene, he was living with the mother, had addiction problems, had an extensive criminal record and was facing several serious criminal charges. The court found it "worrisome"[^11] that the mother failed to appreciate the risk associated with Mr. Watling's past and present offenses. His "silence in the proceeding before [the court was] deafening …"[^12]
[24] At para. 33 of the endorsement, Templeton J. stated:
[33] … In these circumstances, I am satisfied that it would not be in Hunter’s best interests to return to live in the same home as Mr. Watling until such time as the Court has further and better evidence regarding Mr. Watling’s personal and criminal history as well as his current emotional, physical and health status.
[25] I also take into account that Templeton J. found the child's permanent residence was with the mother.
[26] The evidence requested by Templeton J., that was not before her, is now before the court.
[27] The father argues that it is in the best interests of the child to remain with him. The new status quo should continue. The child is doing well in Nova Scotia and, absent compelling circumstances, he should not be moved.
[28] The father also claims that the mother has acted rashly, irrationally and egocentrically. His plan keeps the child from potential risk while the mother's does not. He argues that Mr. Watling's apparent progress is too recent to be reliable. Also, he argues that the mother is not available to care for the child because of her work commitments. In any event, he argues a change in the child's residence should not be considered until the school year is over in June 2021.
[29] I find that the only concerns Templeton J. expressed in the endorsement of September 1, 2020 were about the risk Mr. Watling posed and the mother's assessment of that risk. But for his presence, the child would have been returned home in accordance with the parenting agreement the parties put in place shortly after their separation. Templeton J. found that the mother provided “a wonderful home for him… and has insured that Hunter is attending school. By all accounts based on his school report card, Hunter is a wonderful little boy.”[^13] Evidence to the contrary was not provided after the release of Templeton J.’s endorsement.
[30] In argument, the father again called into question the mother's ability to care for the child because of her past. This was not accepted by Templeton J.[^14] and there is no new evidence that justifies this court finding otherwise.
[31] Mr. Watling and the mother have been most forthcoming in evidence about his past and present circumstances and their plans as a family.
[32] I find that Mr. Watling has been acting in a prosocial manner since he was last charged in December 2018.
[33] He has;
a) maintained his sobriety;
b) complied with his release terms;
c) put forward his entire criminal history and explained his current charges;
d) found and kept gainful employment;
e) participated in an addiction treatment program;
f) registered for the Stage 2 of the addiction treatment program;
g) married the mother and settled into her home;
h) had positive interactions with the child during video calls and texts;
i) a positive relationship with the mother's teenage son;
j) provided evidence that he was not a principal in trafficking drugs, although he was present; and
k) has avoided social connections with persons known to use drugs.
[34] Counsel for the mother confirmed that the evidence is that the mother's hours of work are flexible and that she is available to care for the child.
[35] The evidence supports a finding that the mother, who has been the child’s primary caregiver since the parties separated, and the child remain bonded by love, affection and emotional ties.
[36] The mother appears to understand her responsibility to be protective of the child and is willing and able to so.
[37] A return to the mother’s home would see the child live with his older sibling.
[38] The mother’s plan for the care of the child which plan includes Mr. Watling is an appropriate one. After two years of prosocial behavior on Mr. Watling's part, the minimal risk of his relapse is greatly outweighed by the benefit to the child of returning to his primary caregiver, home, school and community. In the event Mr. Watling relapses, it is incumbent upon the mother to ensure that he be removed from her home and that the father be kept informed.
[39] The father provided proper care for the child wall he resided with him and his family. The father’s concerns about the introduction of Mr. Watling to the mother’s home were reasonable based on the information he had at the time. These concerns have now been addressed and assessed by the court.
[40] For these reasons, I am satisfied that it is in the child's best interests that he be returned to his permanent residence with the mother and reside in care.
[41] The child is to be returned to the mother's care in enough time for him to settle in her home before the start of school in January 2021.
[42] The mother asked that the child be returned before December 25, 2020. I find that, as the child has been with the father since March 2020, the child should spend Christmas Day with the father and his family this year. The mother will have her time to celebrate with the child on his return. The father is to return to the child to the mother's care by December 28, 2020. Considering possible weather conditions, this will allow enough time for the child’s safe return after Christmas Day.
[43] The mother may now register the child for school in London.
[44] The issue of the father's access was not addressed in argument. If the parties are unable to agree, they may schedule the return of this motion with their respective access plans through the trial coordinator.
[45] Accordingly, a temporary order shall issue as follows:
The parties shall share joint custody (decision making) of the child;
The child shall reside in the care of the mother;
The child's permanent residence is to remain with the mother;
The child shall be registered for school in London, Ontario by the mother;
The father shall return the child to the care of the mother in London, Ontario by no later than December 28, 2020. The parties, through counsel, shall make all necessary arrangements for the child's return.
If the father does not return the child to the mother's care by December 28, 2020, the mother is granted leave to bring a motion for a police enforcement order on an urgent and expedited basis.
If the parties are unable to agree on the father's parenting time, they may schedule the return of this motion through the trial coordinator and provide details of their respective access plans.
Costs
[46] If the parties are unable to agree on the costs of these motions, they shall file brief written submissions (no more than 3 pages), together with a bill of costs and copies of any offers to settle that were exchanged. The applicant shall do so within 15 days of the release of these reasons and the respondent within 15 days thereafter.
“Justice B. Tobin”
Justice B. Tobin
Date: December 15, 2020
[^1]: Notice of Motion of the applicant, dated August 12, 2020 [^2]: Notice of Motion of the respondent, dated August 21, 2020 [^3]: Order of Templeton J., dated September 1, 2020 [^4]: Affidavit of Cheyenne Helmuth sworn September 9, 2020 [^5]: Affidavit of Amy Elizabeth Rathan sworn November 16, 2020, at paragraph 8 and Ex. “B” [^6]: Affidavit of Corey Robert Watling sworn September 30, 2020, at paragraph 30 [^7]: Supra, para. 32 [^8]: Endorsement of Templeton J., dated September 1, 2020, para. 12 [^9]: Affidavit of Corey Robert Watling, at paragraph 32 and Ex. “G” [^10]: Supra, paragraph 33 [^11]: Endorsement of Templeton J., dated September 1, 2020, para. 28 [^12]: Endorsement of Templeton J., supra, para. 30 [^13]: Endorsement, supra, para. 12 [^14]: Endorsement, supra, para. 27