Court File and Parties
Court File No.: FC153/20-00 Date: 2021-04-12 Superior Court of Justice – Ontario Family Court
Re: Crystal Phillips, applicant And: Konstantina M. Beauchamp Voutselas and Dennis Phillips-Cada, respondents
Before: Mitrow J.
Counsel: Crystal Phillips in person Stephanie Ouellette for Konstantina M. Beauchamp Voutselas Toenie Hersch for Dennis Phillips-Cada
Heard: March 31, 2021
Endorsement
[1] This is a motion brought by the respondent, Konstantina M. Beauchamp Voutselas ("the mother"), seeking an order that the five-year-old child, Alora Lily Voutselas-Phillips, born February 11, 2016 ("the child"), shall reside primarily with the mother.
[2] The applicant ("sometimes referred to as the paternal grandmother"), Crystal Phillips, is the child's paternal grandmother. The respondent, Dennis Phillips-Cada, is the child's father ("the father").
[3] While the applicant and the mother did file affidavits on the motion, the father filed no material; however, he did file previously a form 35.1 affidavit.
[4] Historically, the current status quo is that the child is in the temporary custody and primary care of the applicant pursuant to an ex parte order made February 13, 2020. That order, in subsequent court attendances, to date, has not been changed but rather the focus has been on increasing the mother's parenting time.
[5] It is noted that the mother does complain about the ex parte order, alleging that the applicant's evidence included allegations that were not true; the mother also complains that she was not served properly when the matter was in court on February 26, 2020, which was two weeks after the ex parte order.
[6] The evidence of the mother and the applicant conflicts as to the extent of any issues that the mother had regarding her ability to parent the child.
[7] However, on the mother's own evidence (see her affidavit sworn March 12, 2020), the mother does agree that, at the time of the child's birth in Toronto, that she was transitioning out of the society's care. According to the mother's date of birth shown in her form 35.1 affidavit, she would have been age 18 when the child was born.
[8] The mother further deposes that, at the society's suggestion, that both she and the father, together with the child, went to reside with the paternal grandmother "to have familial support" in caring for the child.
[9] The mother alleges a breakdown in her relationship with the paternal family, as a result of which the mother returned to Toronto.
[10] The mother deposes that she has been the child's primary caregiver for one and a half years (paragraph 5, mother's affidavit sworn March 12, 2020). Later, the mother deposes that the child has lived with her for two years (paragraph 7, mother's affidavit sworn March 18, 2021).
[11] It does appear from the evidence that any period of time during which the mother alleged that she was the child's primary caregiver would have occurred when she was residing at the residence of the paternal grandmother.
[12] In reviewing the evidentiary record to determine better the child's caregiving history, it is noted that the mother's two form 35.1 affidavits, and the father's form 35.1 affidavit, are blank, in paragraph 9, as to the details regarding where and with whom the child has resided. While the paternal grandmother provided a few details in paragraph 9, those details, at best, are unclear.
[13] I have also reviewed the earlier endorsement in this case of Tobin J. in Phillips v. Beauchamp-Voutselas, 2020 ONSC 2087 (Ont. S.C.J.). In that case, Tobin J. was dealing with urgent motions by the applicant for interim custody and an urgent motion made by the mother for interim custody and other alternative relief. Tobin J.'s reasons are dated April 3, 2020 and he set out the prior history that included the ex parte order made on February 13, 2020.
[14] At para. 21, Tobin J. found that the child has lived in the applicant's home for all but the first month of her life. At para. 27, Tobin J. found that the mother participated in caring for the child until she moved out of the applicant's home; and the mother had to leave this home because of domestic violence she suffered at the hands of the father and that the mother has not lived with the child since sometime in 2018.
[15] Tobin J. stated the following, at para. 26:
[26] At the return of this motion, Ms. Ouellette did not ask that the child's residence change. The mother, to her credit, recognized that this was not the time to change the child's residence.
[16] The mother levies various allegations against the applicant, including that the applicant has an extensive involvement with child protection authorities in relation to the care of her own children. While the applicant does acknowledge an involvement with child protection authorities, the applicant fails to provide the necessary details regarding same in her form 35.1 affidavit.
[17] The order below requires all parties to serve and file the current form 35.1 and 35.1A affidavits.
[18] Prior to the current motion, and also subsequent to the current motion on the various adjournments, the mother's parenting time has increased progressively.
[19] The most recent order regarding the mother's parenting time is the order of Korpan J. dated February 3, 2021, which provided that the mother would have parenting time every third weekend from Friday between 4 p.m. and 6 p.m. until Monday between 4 p.m. and 6 p.m., with the mother to pick up the child on Friday and the applicant to pick up the child on Monday.
[20] The applicant and father reside in the London area, while the mother resides in Scarborough.
[21] An OCL order has been made and this case has been accepted by the OCL. There is currently an ongoing clinical investigation by a clinician appointed by the OCL.
[22] In Phillips v. Beauchamp-Voutselas, supra, I adopt the discussion by Tobin J. in relation to status quo, at paras. 18-20:
[18] The motions before the court are cast as requests for interim custody. The legal principles to be applied on this type of motion are well settled.
[19] In Perchaluk v. Perchaluk, 2012 ONCJ 525, the court held, at para. 28:
In considering [the best interest factors under s. 24 of the Children's Law Reform Act] at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintaining the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion.
[20] In Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.), the court held, at para.15, that:
... generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children's best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v. Papp (1969), 1969 219 (ON CA), [1970] 1 O.R. 331 (Ont. C.A.).
[23] When the case was decided by Tobin J., the evidence before the court was that the mother had had little contact with the child since leaving the applicant's home (see para. 29).
[24] On the current motion, the evidence is that the mother has had ongoing increases in parenting time, which now occurs, as indicated earlier, every third weekend on an overnight basis at her residence.
[25] Given the conflicting evidence, taking into account that there is a pending OCL investigation, and considering the length of time that the child has been living in the residence of the applicant, I am not prepared on an interim basis to make any changes to the current status quo as it relates to the child's primary care.
[26] However, I am satisfied on the evidence that it is in the child's best interests to increase the mother's parenting time to alternate weekends. Neither the applicant, nor the father, objected to this increase. Further, the applicant's position was that the child has been enjoying her visits with the mother.
[27] I also find it is in the child's best interests for the mother to have parenting time on a week-about schedule during the summer months when the child is not in school.
[28] The child was attending school in-person when the motion was argued. It was suggested by the mother that, if primary care remained with the applicant and if the child should cease attending school in-person, then the mother should have parenting time during the school year on a week-about basis.
[29] I do not find that it is in the child's best interests to change the parenting time schedule during the school year. Any change from in-person to virtual school attendance may be time limited. It is best for the child to maintain the parenting time schedule as ordered below during the school year. It is noted that the child does miss school on Mondays when the child is in the mother's care. The child currently is in junior kindergarten.
[30] Based on the submissions made during the hearing of the motion, I do have significant concerns that the mother's circumstances are such that most likely she will have difficulty making the necessary transportation arrangements to pick up the child if her parenting time is increased.
[31] Accordingly, the order below delegates most of the driving responsibility to the applicant. The father advised the court that he is working fulltime (although he does have two other children). The applicant advised the court that one of her adult daughters does have a new vehicle.
[32] At the hearing of the motion, it was ordered that the mother shall have the child during the Easter weekend, with all the driving for that weekend to be the responsibility of the applicant.
[33] Given the pandemic, and the current trial backlog, the order below is without prejudice to the mother's right to seek an order to increase her parenting time once the OCL report is available.
[34] This case primarily is between the mother and the applicant. In his answer, the father agrees with the applicant's claim for custody; the father seeks only access (the answer having been filed prior to the amendments to the Children's Law Reform Act, R.S.O. 1990, c. C.12 which took effect March 1, 2021).
[35] Accordingly, it becomes important for the parties to continue to have further discussions regarding increases in the mother's parenting time, and this should not exclude the potential of primary care, in circumstances where the mother's parenting time with the child continues to be positive and if recommendations in the mother's favour are made in the OCL report.
ORDER
[36] I make the following interim order:
The mother shall have parenting time with the child alternate weekends from between 4 and 6 p.m. on Friday until between 4 and 6 p.m. on Monday, commencing Friday, April 16, 2021.
During the child's summer vacation from school, the mother shall have parenting time on alternate weeks from between 4 and 6 p.m. on Friday until between 4 and 6 p.m. the following Friday. Unless the mother and the applicant agree otherwise, the mother's week-about summer parenting time shall start on the first Friday after the child finishes school.
The father shall have parenting time with the child, as arranged between the father and the applicant, to occur during periods of time when the child is in the applicant's care.
Subject to paragraph 5, the applicant shall be responsible for transporting the child to the mother's residence at the beginning of the mother's parenting time and for picking up the child from the mother's residence at the conclusion of the mother's parenting time.
On the first Friday of each month that is the start of the mother's parenting time, the mother is responsible for attending at the applicant's residence to pick up the child.
The mother shall have telephone or other electronic parenting time with the child at least two times per week, as arranged between the applicant and the mother, failing which this parenting time shall take place on Tuesdays and Thursdays at 5 p.m.
This order is without prejudice to the mother's right to seek an increase in her parenting time, on an interim basis, on completion of the OCL report.
Within 30 days, all parties shall serve and file a fresh, sworn form 35.1 affidavit and a 35.1A affidavit, using the new amended forms.
If the parties are unable to agree on costs of the motion, then within 21 days, the parties may file written costs submissions, limited to two typed pages, with any reference to authorities being hyperlinked, together with copies of any bill of costs, time dockets and offers to settle. Each party shall file his or her written costs submissions electronically with the court and shall also forward a copy to the trial coordinator. If written costs submissions are not filed by the deadline specified above, then each party shall bear his or her own costs of the motion.
"Justice Victor Mitrow"
Justice Victor Mitrow
Date: April 12, 2021