Superior Court of Justice - Ontario

Court File No.: 16-252 Date: August 18, 2021

Re: Carle and Commanda

Between: Ryan Carle, Applicant and Marybeth Commanda, Respondent

Before: Honourable Mr Justice Martin James

Counsel: Natasha Pappin for the Applicant Francis Aheto-Tsegah for the Respondent

Date Heard: August 16, 2021

Endorsement

James J

[1] This endorsement relates to a request by Ryan Carle (the "moving party") for the hearing of a motion on an urgent basis prior to a case conference being held.

[2] The moving party's request is focused on the well-being of the parties' child, Rylan, born February 23, 2015. The parties currently have a week-about parenting time arrangement with joint decision-making that has been in place since March, 2017.

[3] Usually motions are not permitted until after a case conference has been held. In emergency situations the court may grant permission for a motion to be heard on an expedited basis. In this case Justice Fraser granted permission on July 16, 2021. In her endorsement granting leave, Justice Fraser requested that the two local child protection agencies, Family and Children's Service of Renfrew County (FCSRC) and Ashinabek Gamik Pikwakanagan Child and Family Services ("AGPCFS") provide the court with correspondence outlining any involvement and any concerns they have with respect to the safety of the mother's home. A letter was sent by FCSRC indicating that this agency did not have an open file pertaining to the respondent and did not have any child protection concerns at this time. No correspondence was forwarded by AGPCFS although the applicant confirmed that this organization was served with Justice Fraser's request.

[4] Although the moving party referred to discussions he had with Veronica Miller, a worker with SGPCFS, the absence of a response from AGPCFS is a significant factor that suggests that they do not have a safety concern. In the absence of some corroborating evidence from an independent third party that supports the moving party's position, and in the face of contradictory and conflicting affidavit evidence, I am not prepared at this time to find that there is an emergency situation that needs to be addressed immediately.

[5] The moving party's concerns are centered around the fact that the respondent's parents have moved in with her temporarily. He said they are well-known in the community for frequent, alcohol-fueled arguments and public disturbances and their disruptive presence in the household means that it is in Rylan's best interests to live elsewhere temporarily.

[6] The respondent points to the temporary nature of the arrangement, disputes much of what the applicant alleges and says she is insulating Rylan from her parents.

[7] The situation has been exacerbated by a police investigation of a homicide that involved the death of a friend of the respondent's parents at their property, not long after a fire destroyed their home. This multi-faceted tragedy has clearly added to the stress of the situation.

[8] The moving party says he should have sole decision-making power and primary parenting responsibility. He says that any access permitted to the respondent should be supervised. The additional requests for sole decision-making power and supervised access are unwarranted on the available evidence. There is no evidence to support the request that the respondent's access ought to be supervised. There is no evidence, other than his own, to support his suggestion that he should have sole decision-making power in relation to Rylan and that the respondent is unable to make decisions that are in Rylan's best interests.

[9] The onus is on the moving party to establish on a balance of probabilities that Rylan's best interests would be served by making the orders he has requested. Material facts are in dispute. It is difficult to determine where the truth lies when the evidence consists primarily of uncorroborated, conflicting allegations in the parties' affidavits. More persuasive evidence is required to satisfy this onus. The motion is dismissed.

[10] On the issue of costs, subject to the right of the parties to make submissions, it is my preliminary view that there should be no costs awarded to or against either party. If either party disagrees, costs submissions shall be submitted within 20 days, on a scheduled agreed to between counsel.

Electronically signed by James, J.

Date: August 18, 2021