Court File and Parties
COURT FILE NO.: FC-21-038 DATE: 2021/03/01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saxon Bruce Wyman Murray, Applicant AND: Jacqueline Beale, Respondent
BEFORE: Honourable Justice Mary A. Fraser
COUNSEL: Elisabeth Amy Sheppard, Counsel for the Applicant Bryan Delaney, Counsel for the Respondent (on a limited retainer)
HEARD: February 24, 2021
Endorsement
[1] The Applicant father (the “Applicant”) brings this urgent motion prior to case conference for, among other things, a temporary order providing for a shared parenting schedule of the child, Olive Grace Murray born August 16, 2018.
[2] The Respondent mother (the “Respondent”) opposes this motion. She asks, among other things, that the Applicant have parenting time with Olive every second weekend from Friday afternoon to Sunday afternoon. She asks that the access exchange be initially supervised by Family and Children’s Services and thereafter by a neutral third party. She also asks that the parties communicate through a communication app.
[3] The Respondent in responding to this motion has also asked for an order for child support. She did not bring a motion seeking this relief nor sought leave to do so on an urgent basis. As such I decline to consider this issue.
[4] Due to the COVID-19 pandemic and the suspension of the regular operation of the Superior Court of Justice, this matter was heard by zoom video conference.
Background
[5] The parties began cohabiting in 2016. They lived together at the Applicant’s home in Petawawa, ON.
[6] Olive was born in August 2018. She is the only child of the relationship.
[7] The Applicant also has a son from a previous relationship, William Saxon Murray born January 2011 (“William”). William resides primarily with his mother.
[8] The Applicant is a veteran of the Canadian Armed Forces. He was medically released from the Canadian Armed Forces as he was significantly injured in the line of duty in Afghanistan in 2008. He maintains he has recovered but for some physical ailments. Respecting his mental health, the Applicant has provided a report from his treating psychologist which would confirm there are no concerns respecting the Applicant’s stability or capacity as a father.
[9] The Respondent is a nurse. She works many hours and shifts.
[10] The Applicant asserts that while the parties were together, he was responsible for Olive’s day to day care and most of the responsibilities associated with her care. He has been a stay-at-home father since her birth working only for a few short-term contracts, once or twice a year for one to two weeks. The last time he worked was in 2019. He maintains that he has always been at least equal if not the primary parent for Olive.
[11] Both parties blame the other for conflict which arose during the relationship and ultimately brought it to a conclusion. Both suggest the other was verbally abusive to the other.
[12] The parties separated in March, 2019.
[13] From March until July, 2019, there were several unsuccessful attempts made by the parties to reconcile. During this period, Olive would spend Monday and Tuesday with the Applicant, Wednesday and Thursday with the Respondent, and they would alternate weekends. Initially the Applicant would additionally care for Olive when the Respondent was working. However, eventually the Respondent began using a babysitter if she was working on days Olive was with her.
[14] The Respondent maintains that she was the primary caregiver to Olive. She states that following the parties’ separation she would care for Olive in the evenings and overnights and every Thursday and every second weekend. The Applicant would care for Olive while she was at work during the day, and one or two nights during the week when she was on-call for work. She asserts this continued until Olive began daycare in June and that the parties transitioned to a 50/50 parenting schedule at that time.
[15] The shared parenting regime was unilaterally stopped by the Respondent in November 2020. This change coincided with a complaint the Respondent made against the Applicant which resulted in his being charged with harassing the Respondent and her present boyfriend.
[16] The Applicant has only seen Olive on one weekend since then, being the weekend of January 8 to 10, 2021.
[17] The Respondent has moved to Ottawa, ON. He asks that the parties return to the status quo and that the parties share the parenting of Olive based upon the previous shared schedule or on a week-about arrangement. He agrees that the parties use an independent third party for access exchanges. He disputes that such exchanges need to go through the FCS exchange centre.
[18] The Respondent raised the following concerns respecting the Applicant: A. She maintains the Applicant was emotionally abusive and would have angry outbursts during the relationship; B. He was charged with a DUI in or around 2019. She feels he has become increasingly depressed. C. She believes his desire to share parenting arose as a response to the Respondent’s request for child support. D. As a result of his deployment in Afghanistan, the Respondent was diagnosed with PTSD, depression and a traumatic brain injury. She states that this resulted in insomnia, nightmares, avoidance of reliving traumatic events in therapy, that he startles easily, has angry outbursts, irritability, depression, difficulty concentrating, negative thoughts and beliefs, short-term memory loss, difficulty eating, “flashbacks” and needs to avoid crowded areas. E. Following the parties’ separation, the Respondent met someone new and the Applicant became threatening in his messages to her. She brought an email message to the attention of the OPP and that resulted in the Applicant being charged with criminal harassment. F. She has described a number of events which would suggest that the Applicant had difficulty accepting the end of the relationship and her new relationship with another. G. She described concerns with respect to the Applicant’s conduct vis-à-vis his relationship with William with whom he had access every second weekend. She related what she considered to be inappropriate conversations he would have with William.
[19] Following the charges laid against the Applicant in November 2020, the Respondent states she has become concerned with the appropriateness of the shared arrangement.
[20] After the one access visit was arranged with the Applicant, there was a significant change in Olive’s behaviour. She asserts that Olive was distant and rude with the Respondent and that she was physically aggressive with her, hitting and kicking and stating she wanted to leave. The Respondent maintains this gave her reason to be further concerned respecting the Applicant’s ability to care for the child.
[21] The Respondent is not opposed to using the individual proposed by the Applicant to supervise access visits (Ms. Bondy). However, she does not feel that Ms. Bondy is adequately capable of assessing the Applicant’s mental state, unlike the FCS workers who she states could perform mental health assessments prior to the commencement of his parenting time.
[22] The Respondent also submits that the Applicant is now living in Ottawa and that a 50/50 access schedule would be inappropriate given Olive has always lived in Petawawa and she will be starting school in September 2022.
Analysis
[23] Section 20(1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) states that except as otherwise provided in the Act, parents are equally entitled to custody of their child which is subject only to alteration by an order of the court or by separation agreement.
[24] The issue of custody and access is to be determined by what is in the best interests of the children. This is a positive test and ultimately will encompass a wide variety of factors. It is an all-embracing concept that involves consideration of the physical, emotional, intellectual and moral well-being of the child. See: section 24 of the CLRA.
[25] A judge tasked with determining what is in the best interests of the children must also have regard to the desirability of maximizing contact between the children and each parent. This means that a child should have as much contact with each parent as is consistent with the child’s best interests. See: Young v. Young, [1993] 4 S.C.R. 3.
[26] With very few exceptions, all children benefit from having a loving relationship with both parents. It is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical, emotional or mental well-being. If one parent does not facilitate a child's relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child's needs. See: Jackson v. Jackson, 2017 ONSC 1566 at para. 59.
[27] On interim motions, the court must make a determination of what temporary arrangement is in the best interest of a child when there is often limited information and evidence available. Temporary orders therefore often act as “Band-Aid” solutions. They are meant to decide the issues of custody and access in the short term, so that the parties can move expeditiously towards a final resolution.
[28] While the best interests of the child is determinative on both interim and permanent custody orders, the focus of the two hearings is different. On a motion for a temporary order, a child’s short-term interests are often best served by maintaining stability and minimizing disruption pending the final resolution of parenting issues. The person seeking the interim order which alters the status quo has the burden of proving that compelling reasons exist.
[29] Based upon my review of the affidavit evidence, I conclude that there has been difficulty on the part of the Applicant accepting and moving on from the end of his relationship with the Respondent. That is not unusual even if it has resulted in some conduct which was unfortunate and quite possibly inappropriate. The criminal charge remains to be determined.
[30] It is noteworthy, in my view, that the police did not consider it necessary to notify or involve Family and Children’s Services, which commonly occurs where there is reason to be concerned about the welfare or safety of a child. In this instance, it is the Applicant who has been in contact with Family and Children’s Services of Renfrew County who have advised him that it does not intend to open a file and therefore it does not have any protection concerns with respect to the Applicant.
[31] Based upon my review of the Respondent’s affidavit evidence, I conclude her evidence falls short of establishing misconduct or a failure on the part of the Applicant to provide appropriate care for Olive. I do not consider the evidence led with respect to the Respondent’s concerns to support the conclusion that there are sufficiently compelling reasons to alter what was the status quo.
[32] I do not agree that the Respondent’s evidence of Olive’s behaviour following the one access visit which was permitted in January 2021 suggests that there is a concern with respect to what occurred during that access visit with the Applicant. That evidence is just as consistent with the possibility that Olive was having difficulty processing her feelings after having seen her father. She had, after all, seen him for the first time since she had suddenly and abruptly been prevented from seeing him in November. Prior to that time he was clearly an equal caregiver. This was the only evidence led which would in any way call into question whether Olive not prospered in the Applicant’s care.
[33] I conclude that Olive has a close and loving relationship with both of the parties. The evidence would suggest that both of the parties having demonstrated an ability to meet Olive’s needs.
[34] Both parties have played a significant role in parenting Olive to date. Both of the parties participated to a significant degree toward Olive’s care prior to their separation. In the period of time following the parties’ separation and prior to the Respondent’s unilateral actions in November, the parties shared the parenting of Olive on an equal basis.
[35] Any temporary order must preserve Olive’s relationship with both parties, to the extent this appears to be in the child’s best interest, pending a more fulsome determination of the issues at trial. I conclude this is best done by returning the parties to a shared parenting arrangement, which represents the status quo, and given my conclusion that there is no compelling reason that this should not happen.
[36] With respect to access exchanges, it is clear that the exchange needs to take place with the assistance of an independent third party. The Applicant is subject to the terms of his undertaking given in the criminal proceeding to not have contact with the Respondent and/or her boyfriend. I consider this sufficient to ensure that the parties conduct themselves appropriately. I do not conclude that the exchange needs to occur with the involvement of the Family and Children’s Services. Both parties are in agreement that Ms. Bondy would be an appropriate third party to oversee the access exchange because Olive is familiar and comfortable with her.
[37] As a result, the following temporary order shall issue:
Parenting
Effective immediately, the parties shall resume the following parenting schedule for Olive Grace Murray, born Aug. 16, 2018: a) Mondays and Tuesdays with the father. Exchanges on Wednesday morning at 10 a.m. b) Wednesdays and Thursdays with the mother. Exchanges on Friday mornings at 10 a.m. c) Alternating weekends. Exchanges on Monday mornings at 10 a.m. d) In the Alternative, and preferred, 5 or 7 days rotating with exchanges at 10 a.m.
All exchanges shall be through with exchanges through third parties (Ms. Bondy, the maternal grandmother, the daycare/babysitter, William’s mother, or as agreed upon in writing). The parties shall ensure that Olive is ready for the exchange and there shall be no physical interaction between the parties during the exchange.
Communication
The parties shall communicate with each other directly and only about the child, in writing via OFW (Our Family wizard).
Neither party shall speak ill of the other in the presence of the child or include the child in adult conversation or conversation about litigation or parenting schedules. Neither party shall post on social media about the other parent or litigation.
Costs
- Should the parties be unable to agree upon the issue of costs, then the Applicant may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within fifteen days of the release of this endorsement. The Respondent shall have fifteen days from receipt of the Applicant’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves; and
M. Fraser J. Date: March 1, 2021