COURT FILE NO.: FC-21-0086
DATE: April 15, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sylvain Chaput, Applicant
AND:
Cusinda Chaput, Respondent
BEFORE: Justice Mary A. Fraser
COUNSEL: Jessica Fuller, Counsel for the Applicant
Tanya Davies, Counsel for the Respondent
HEARD: April 6, 2021
ENDORSEMENT
[1] The Applicant has brought this motion on an urgent basis and prior to the commencement of a proceeding and the holding of a case conference. He asks for an order, among other things, requiring the Respondent to return the children to Pembroke, ON. forthwith. He asked that should the Respondent insist on remaining a resident in Ottawa, that the children be transferred to his primary care. He also asks that the children be enrolled to attend school in person at Our Lady of Lourdes in Pembroke, On.
Background facts:
[2] The parties married on July 2, 2011 and separated on November 9, 2015. The parties had three children together, namely Alexandria Nessa Chaput born 26 June 2010, Elyanna Jilles Chaput born 23 November 2011 and Mason Jacques Chaput born 18 June 2013 (the “children”). They have remained living separate and apart for the past five years. They have not divorced.
[3] Following their separation, the parties have shared the parenting of the children on a week-about basis. The parties attempted to negotiate terms for a separation agreement. However, an agreement was never finalized. Notwithstanding, the parties continued with the shared parenting arrangement.
[4] Until January 2021, both parties resided in Pembroke, ON. The Applicant resides with his mother and sister. The Respondent lives with a new partner (“Raff”) and a child from that relationship (“Zoey”) who is 4 years old.
[5] Around January 7, 2021, the Applicant learned from the children that the Respondent intended to move to Ottawa, ON. He communicated with Raff and learned that he and the Respondent were thinking of moving either to Deep River, ON. or Kanata, ON.
[6] Ultimately, the Respondent moved to Ottawa ON. on or around January 27, 2021. The Applicant maintains that he did not consent to and is not agreeable to this move given its impact on the parties’ ability to maintain their parenting arrangement. He therefore brought this motion.
[7] By the return of this motion, the Respondent had moved back to Renfrew County. She is presently residing in Renfrew ON. with the intention of moving back to Pembroke ON. In this respect, she has conceded this aspect of the motion.
[8] Notwithstanding, the Applicant asks that the primary parenting time of the children be placed with him on an urgent, interim basis. He asks for this order for several principal reasons:
A) He states that the Respondent has not properly supported the children with their online schooling. They have had a large number of absences which he maintains occurred while in the Applicant’s care. He points to the children having fallen behind in their studies and he asserts that they had not completed their assignments. He attributes this to the Respondent’s failure to ensure they were properly engaging in their studies when in her care;
B) He states that the Respondent has a history of substance abuse and he expressed concerns that these addiction issues are returning stating “I do not know the current status of Cusinda’s addiction, but am concerned she is struggling again”; and
C) He states the Respondent has been “cat-fishing” men online telling them false information in order to solicit funds from them. He believes the Respondent has been potentially exposing the eldest daughter to inappropriate online content/communications. He expressed worry about the possible lengths the Respondent was prepared to go to in order to obtain money and is concerned how her choices might be impacting the children.
[9] The Respondent has, in response to the motion, agreed that the children shall resume attendance at Our Lady of Lourdes School in person.
[10] The Respondent has denied any drug addiction issues. She has likewise denied that the children have been exposed to inappropriate online content or information.
[11] The Respondent, in turn, makes allegations of misconduct on the part of the Applicant. She states that the Respondent would frequently return the children in a dirty unkempt state and that he had inappropriately exposed the children to his casual relationships and that he was making and taking the gateway drug DMT while the children were in his care.
Analysis:
[12] The Applicant intends to bring his claim for a parenting order pursuant to the Divorce Act R.S., 1985, c. 3 (the “Divorce Act”) The Divorce Act provides that the best interests of the children is the paramount and exclusive consideration when making a parenting order. This is a positive test and ultimately will encompass a wide variety of factors.
[13] In particular, section 16 of the Divorce Act provides as follows:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[14] Interim proceedings are summary in their nature and unfortunately provide a rough justice at best. A court does not have the benefit of a full evidentiary record at this stage and such interim orders are meant to be “Band-Aids” for the parties, not long-term solutions.
[15] As a result, it is a well-established principle that the status quo will be maintained on an interim motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. See: Recoskie v. Paton, 2014 ONSC 4352.
[16] In this instance, the Respondent concedes returning to the status quo and has committed to returning to reside in Pembroke ON. She agrees to having the children attend Our Lady of Lourdes School in person.
[17] Now it is the Applicant who seeks to change the status quo which has consisted of the week-about shared parenting arrangement and which has been in place for at least five years.
[18] I conclude the Applicant’s reasons to support changing the status quo are based upon his expressed “concerns” but I also conclude that he was not able to support his concerns with much tangible or concrete evidence. His allegations are disputed by the Respondent. I do not conclude the Applicant has demonstrated evidence of a potential danger to the children or other compelling reason which would support concluding that a change in the status quo is necessary at this time.
[19] These issues will need to be determined once there is the opportunity to do so with a full evidentiary record so that the credibility and weight to be given to the evidence can be properly assessed.
[20] Therefore, I am not persuaded there are sufficiently compelling reasons to alter the status quo at this time. To do so would entail a fundamental shift from the status quo. It will be disruptive to the children’s longstanding routine. The evidence is simply not strong enough to suggest that such a change is in the best interests of the children at this time. There needs first to be a proper investigation of the relative merits of each parent’s position. That is not possible at this juncture given the limited scope of the evidence available.
[21] An interim order shall issue as follows:
A. The parties shall continue to share the parenting time of the children on a week-about basis;
B. The Respondent shall return and maintain the children’s residence during her parenting time to Pembroke, Ontario and she shall take all reasonable steps to ensure that accommodations are secured at the earliest opportunity;
C. The parties shall enroll the children at Our Lady of Lourdes in Pembroke ON. for in person learning (subject of course to restrictions imposed upon “in person” learning as a result of the applicable health directives due to the COVID-19 pandemic);
D. The Applicant shall file his Application materials in this proceeding within 30 days;
E. If the parties are unable to agree on costs, the Applicant may make written submissions as to costs within 15 days of the release of this endorsement. The Respondent shall have 15 days after receipt of the Applicant’s submissions to respond. All such written submissions are to be no more than three pages, double-spaced, in addition to any pertinent offers and draft bills of costs. Any such written submissions are to be forwarded electronically to Pembroke.SCJ.Courts@ontario.ca. If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves.
M. Fraser J.
Date: April 14, 2021