SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-21-114

DATE: 20210317

RE: Victoria Penfold, Applicant

AND:

Michael Stevens & Megan Wiseman, Respondents

BEFORE: The Honourable Madam Justice M.E. Vallee

COUNSEL: Tessa M. Bair, Counsel for the Applicant Lynn Burgess, Counsel for the Respondent M. Stevens Clair McDowell, Counsel for the Respondent M. Wiseman

HEARD: March 5, 2021

ENDORSEMENT

Nature of the Motion

[1] The applicant brings this motion for an order directing that Charlotte, who is five years old, be returned from Newfoundland to Ontario, that the applicant have interim primary care of and decision making authority for Charlotte and that her address not be changed without the applicant’s consent.

Background

[2] Charlotte was born in Newfoundland to the respondents Mr. Stevens (RF) and Ms. Wiseman (RM). They separated and had a shared parenting arrangement. Subsequently, the RM asked the RF to assume care of Charlotte because she was having mental health difficulties arising from the passing of a relative.

[3] On April 10, 2018, when Charlotte was approximately one and a half years old, with the consent of the RM, the RF moved with Charlotte to Ontario to pursue better work prospects. They lived in rented accommodation. Subsequently, the RF met Ms. Penfold, the applicant step-mother (AsM). They began a relationship and moved in together in September 2018. The AsM has two children from a previous relationship, A and Hr. The AsM and the RF, who were never married, have one 17 month-old child together, Hh. On February 1, 2019, the RF obtained an order of this court that Charlotte reside primarily with him in Ontario.

[4] The relationship between the RF and the AsM lasted two years and three months. The parties agree that date of separation is December 27, 2020. There was no period in which the RF moved to new Ontario accommodation and shared parenting of Charlotte with the AsM.

[5] The RF stated that prior to separation, he had planned to take Charlotte to Newfoundland for a visit during the Christmas holidays. They left for Newfoundland on December 31, 2020 but did not return. The RF has extended family in Newfoundland. He and Charlotte are living at his mother’s house. He has found a job. The RM is caring for Charlotte for part of the time when he is at work. During the rest of the time, she goes to the daycare that his sister uses for her child.

[6] The RF wishes to stay in Newfoundland with Charlotte. The AsM states that Charlotte should return to Ontario and resume the status quo pending a decision on mobility. The parties agree that Charlotte is habitually resident in Ontario. This court has jurisdiction over the matter.

Legal Issues to be Determined

[7] What was the status quo?

[8] What temporary arrangements are in Charlotte’s best interests?

Applicable Legal Principles

[9] The test for determining an application for interim custody or access is always: what is in the best interests of the child? The court is required to take into consideration only the best interests of the child as determined by reference to the "condition, means, needs and other circumstances of the child."

[10] Under s. 24 (2) of the Children’s Law Reform Act R.S.O. 1990, c. C 12, in determining what is in the best interests of a child, the court, must consider all the needs and circumstances of the child, including eight factors which I will not reproduce here.

[11] The party seeking to disturb the status quo bears the burden of proof. That party must demonstrate serious or compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo. The best evidence of parenting is what existed prior to separation. (See Cole v. Barrett 2020 ONSC 2339 para. 12)

[12] “There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof.” (see Kimpton v. Kimpton 2002 CarswellOnt 5030 para 1)

[13] A parent does not necessarily have a better claim for custody than a non-biological parent. The court granted primary residence to the grandmother of a child that had been in her care for four years because the parents were unable to provide for her. (see Alfred v. Paredes 2017 ONSC 4622)

What was the status quo?

[14] Prior to the RF’s trip to Newfoundland, the parties were living together in Ontario and parenting all of their respective children. There was no time in which they were separated and had shared parenting of Charlotte. Aside from some sharing of parenting time with the RM before the RF came to Ontario, the one constant element in Charlotte’s life has been the care provided by the RF.

[15] The AsM states that Charlotte has special needs. They are set out in the report of paediatrician Dr. Tassone as being language impairment, sensory issues and self-regulatory issues. The AsM states that she was extensively involved in preparing a plan to address Charlotte’s needs. That plan remains part of the status quo. I will review this below.

[16] The AsM relies on Cole; however, the parties had a pre-existing shared parenting arrangement. The child was with his mother when the father’s partner and children returned from a trip to the US. The family went into quarantine. Then, the mother took the position that the father could not see the child until after Covid. The court determined that the status quo of equal parenting should prevail.

[17] The AsM states that the RF has not put forward any serious reasons or compelling evidence to show that Charlotte’s physical, mental and moral welfare of would be in danger by her remaining in Ontario. Nobody has advanced any evidence of harm.

[18] The AsM seeks a return to the status quo, to shared parenting; however, the AsM and the RF never shared parenting of Charlotte. The status quo was the AsM and the RF prior to the RF’s trip to Newfoundland living together and both parenting Charlotte. Charlotte cannot be returned to the status quo. If Charlotte were to return to Ontario, the AsM and the RF would have to share parenting because they are separated. This would mean that sometimes Charlotte would be with the AsM and not the RF.

[19] Because Charlotte cannot be returned to the status quo, no evidence of harm in returning to it is required. I must focus on Charlotte’s best interests.

What temporary arrangements are in Charlotte’s best interests?

The AsM’s Position

[20] The AsM states that both she and the RF jointly parented Charlotte; however, she did more because the RF worked full time.

[21] Charlotte has special needs. Her paediatrician, Dr. Tassone, provided a letter dated July 17, 2020 which states that Charlotte required a comprehensive speech and language assessment and an occupational therapy assessment. She underwent these prescribed assessments. The AsM is a public health nurse with the local health unit and an ICU nurse at the hospital in Newmarket. She states,

I have created a health and education care team for Charlotte, composed of her pediatrician, her speech and language pathologist, her occupational therapist, her resource consultant… and her special education resource teacher. The care team and I have implemented varied and nuanced supports and strategies for Charlotte. To a limited extent, the Respondent [RF] has participated in the implementation of these strategies.

[22] The AsM states that Charlotte requires a high level of structure and routine. She needs advanced preparations for transitions. The AsM states,

If Charlotte’s structure is disrupted, she is highly stressed and exhibits erratic behavior, meltdowns, experiences difficulty redirecting and displays impulsive unsafe behavior…without her aids (such as her weighted blanket, sensory calming lights, chewy necklaces) her sleep patterns will deteriorate and further destabilize her…

[23] The AsM states that Charlotte’s kindergarten teacher has a superficial understanding of Charlotte’s needs. Her daycare providers did not pick up on her challenges. Charlotte masks or mimics the behavior of others around her to help her adapt to societal expectations.

[24] The AsM states that the most comprehensive evidence of Charlotte’s needs is in Ontario. Her care plan involves health care providers in Ontario. The AsM states that she has managed Charlotte’s various appointments and activities.

[25] The AsM states that she has been able to resume contact with Charlotte using Facetime. She states that Charlotte is happy and excited to see her.

[26] The AsM states that she is not opposed to the RM’s parenting Charlotte; however, because of geography and mental health issues, she was not significantly involved during the period of the AsM’s relationship with the RF. Charlotte’s care plan does not involve the RM. Furthermore, the court must consider Charlotte’s attachments. The AsM states that Charlotte is attached to her because she has provided the day to day care. She states, “For all intents and purposes, I am Charlotte’s mother.” This type of attachment cannot be picked up by the RM after several years of little involvement with a young child.

[27] The AsM further states that the RF had serious concerns about the RM’s health challenges and her ability to parent. He brought an application in 2018 in which he set out many issues about the RM. The AsM states that the RM suffers from anxiety and depression. She never had stable employment or financial security. She struggles with wellness and stability. Overall, the RM has not served as a parental figure to Charlotte. “She has taken on more of the role of a loving aunt.”

[28] The AsM states that frequency of contact with a young child is important to maintain a critical relationship with a child. If the distance between the AsM and the RF were to continue, she would lose the critical relationship with Charlotte and the RF would lose his critical relationship with their child together, Hh.

[29] The AsM states that her extended family has welcomed Charlotte as a family member and has supported her. The court ought to consider the parents’ willingness to support Charlotte’s connections with everyone.

Analysis

Claims of Non-Biological Parents

[30] The AsM relies on Alfred, in support of her assertion that a non-biological parent can successfully advance a custody claim. The facts in Alfred are significantly different from this matter. Both parents were arrested for weapons and drug related offences. The CAS placed the child in the temporary care of her grandmother. The mother was granted bail and was required to live with her mother, the applicant grandmother. When the father was released, he was required to live with his parents. He was permitted parenting time. The mother died before the father’s criminal proceedings were resolved. The father refused to return the child to the grandmother after his parenting time. The court found that the child’s best interests were served by remaining in the grandmother’s de facto custody pending the results of the father’s criminal trial.

[31] In M.J.D., a non-biological parent was not successful in a custody claim. The child’s mother died. The child then resided with her aunt, the mother’s sister. Although the aunt provided reasonable care, she did not advise the father of the mother’s death. Rather, she was secretive, deceptive and self-interested. The child had been in the aunt’s care for approximately a year. The father’s motion for transfer of the child to him was successful because the custodial aunt lacked insight into the importance of the child’s relationship with the father.

Special Needs

[32] While Charlotte does have some special needs, the evidence shows that prior to the end of December, she was doing very well in school. Charlotte’s Ontario junior kindergarten teacher made some interesting observations. In an email dated February 1, 2021, she stated,

Charlotte has been a delightful addition to our classroom, she has shown us so much leadership and growth in 4 short months.

I can honestly say she will have a bright school career ahead of her in the years to come. I know there had been some initial worries with Charlotte at the start of Kindergarten, but she has been a model student in our classroom. We are sorry to see her move on but completely understand. She always spoke about family in Newfoundland and that she was excited to go back when the ‘virus’ was over, so I’m happy to hear that she’s going to be staying there with surrounded by family.

[33] In a further email dated February 10, 2021, she stated,

Charlotte did not show any special/extra needs within our classroom these past four months. We observed a very bright independent student.

Within the classroom we do have several strategies in place to help all students manage self-regulation and well-being. For instance, we use a daily visual schedule, there are always clearly laid out boundaries, the use of transitional terminology, students are all provided with gross and find motors opportunities, we do daily movement breaks each learning block. (These were suggestions on some of the reports we received but our program already had them in place.)

We noticed that Charlotte wore ‘chewelery’ but she was never observed chewing on it.

Fidget toys are available to student use, but Charlotte didn’t seem interested in those.

All students receive controlled choice and positive reinforcement in the classroom from all teachers daily.

Charlotte did not need extra support in any of these areas. She did not receive EA support and there was no need for sensory room visits during this time.

[34] I do not accept the AsM’s statement that the teacher’s understanding of Charlotte’s needs is superficial. I accept the teacher’s comments based on her daily interactions with Charlotte that she did not need any extra supports at school. There is undisputed evidence that prior to the end of December, Charlotte was receiving only speech therapy. I accept the RF’s evidence that he has arranged this for her in Newfoundland. There is no evidence that Charlotte must remain in Ontario to have any special needs met.

Relationship with Biological Mother

[35] I do not agree with the AsM’s position that the RM cannot “pick up” the relationship from two years ago and be Charlotte’s mother. The RM has maintained a significant connection with Charlotte despite the geographical distance. The RF states that the RM has had Facetime with Charlotte every night for most of the time that she has been in Ontario. This is remarkable. The RM has shown a commitment to maintaining contact with Charlotte and to participating in her life as best as she can. The evidence shows that the relationship has been ongoing. I accept the RF’s evidence that Charlotte was happy to see the RM and is enjoying the time when she is in the RM’s care.

Best Interests Factors

[36] With respect to the s. 24 (2) factors, the parties each state that Charlotte loves and has emotional ties to them. Her preferences cannot be determined. She is only five years old. Charlotte lived with the AsM and the RF for two years. She has lived with the RF for practically her whole life. The AsM and the RF have equal ability and willingness to provide Charlotte with guidance and education, the necessaries of life and any special needs. Both parties suggest that Charlotte have access to the other by Facetime. Both parents offer permanence, stability and can act as a parent. Both parents have familial relationships with Charlotte.

Conclusion

[37] I find that Charlotte’s best interests are served by remaining in Newfoundland with the RF and his extended family, including her grandmother, aunt, cousins and the RM.

Costs

[38] If the parties are unable to agree on costs, they may file brief written submissions, no more than 3 pages of text (14 pt. font size, regular 1” margins, 1.5 spacing) exclusive of the costs outline required by r. 57.01(6) and any offers to settle. The RF’s and the RM’s submissions are due within 2 weeks of the release date of this decision. AsM’s submissions are due within a further week. The costs outline shall identify all lawyers on the file, their respective years of call and rates actually charged to the client. It shall also provide calculations on a partial indemnity rate including the rate applied, and if sought, the same on a substantial indemnity basis. A breakdown of the hours spent on specific aspects of the work shall be provided. (In other words, stating “50 hours for pleadings, affidavits, cross-examinations preparation, hearing etc. is not adequate.) A breakdown of disbursements shall be provided with copies of receipts if applicable. If the parties intend to rely on caselaw, copies shall be provided.

Vallee J.

Date: March 17, 2021