COURT FILE NO.: FC-20-184
DATE: 20210823
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mellissa Charity Staal, Applicant
AND
Darren Staal, Respondent
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Ralph Lee, for the Applicant
John E. Summers, for the Respondent
HEARD: August 20, 2021
ENDORSEMENT
[1] The mother has brought an urgent motion for an order placing the parties’ daughter, age eight, in the mother’s full-time care, with access to the father every other weekend and one evening every other week.
[2] The daughter has been living with the father since June 11th of this year.
[3] The mother says the motion is urgent because the new school year starts in two weeks and where the daughter lives will determine where she goes to school.
[4] The father says this matter is not urgent. He says to the extent that it is urgent because of the school issue, it is because the mother decided only last week that she wanted the daughter to return to live with her.
[5] The father says that in May, the mother’s counsel had contacted his counsel and said the mother was proposing that the daughter “on an interim without Prejudice basis, be placed in the full time care of your client.” The father says there was no suggestion the daughter’s placement with him was to be short-term. The parties have two children. The father says when the parties were before Abrams J. earlier this month to discuss child support, it was based on one child living with each parent and that when the interim child support issue was subsequently settled, it was on the same one child per parent basis.
[6] The father says the mother has difficulty handling the daughter but that he does not. He says the daughter is doing well in his care. He says the daughter fell behind in school last year and that he has been helping her to catch up. He says that since the daughter moved in with him, he arranged for her to attend a school near his home and signed her up for soccer. The father says he is exploring other activities for the daughter for the fall and has also inquired about counselling services for her.
[7] This family has a history of domestic violence, involving an assault in October 2020 by the father against the mother. The father was convicted of criminal charges and was given a suspended sentence and 12 months’ probation. The mother emphasized the assault in her affidavit in support of this motion. The assault has obviously left deep scars. However, I consider the assault to have minimal relevance to the issue before me. It was the mother who had proposed that the daughter move in with the father. I infer that the mother did not believe that living with the father was contrary to the daughter’s best interests, at least, on the mother’s evidence, for the months of June, July and August.
[8] The mother says it is in the daughter’s best interests for the daughter to return to the mother’s care because the mother has been the daughter’s primary caregiver since birth and for most of the time since the parties separated. The mother says it is best for the daughter to return to her old school and to be reunited with her older brother, who is 11.
[9] The mother says in her affidavit “it was always understood” that the daughter would return to live with the mother to start school in September. I take note of the mother’s use of the passive voice: The mother does not say who had this understanding nor does she identify the origin of the understanding.
[10] The mother says the Office of the Children’s Lawyer was aware of the temporary nature of the daughter’s summer placement with the father. The mother attached an affidavit sworn June 30, 2021 by an OCL clinician and pointed to the clinician’s use of the word “interim” when describing the daughter’s move to the father’s home. However, at the hearing of the motion before me, the OCL’s lawyer, Teresa Dubois said the OCL had been operating on the understanding that the parents considered the daughter’s placement with the father to be long-term. Ms. Dubois said she had only just learned that the mother was prepared to have the daughter return to her home.
[11] Ms. Dubois said the OCL had not taken any position on behalf of the children in respect of parenting arrangements. Ms. Dubois said the OCL had not known until recently that the parties had decided to sell the matrimonial home. Ms. Dubois said the sale of the home and the mother’s willingness to have the daughter return to live with her are factors that will change the landscape from the OCL’s perspective. Ms. Dubois also said the relationship between the two siblings is an important factor in any position the OCL would take. Because the mother’s motion was brought on an “urgent” basis, the OCL had not had time to meet with the children or to reassess its position.
[12] The mother is about to list the matrimonial home for sale. This means that if the daughter returns to live with the mother, the daughter will be required to change homes again soon. Although the mother’s argument that the daughter should return to her previous school initially seemed compelling, there was no evidence before me about whether the mother intends to remain in the same school district once the matrimonial home is sold. On the evidence before me, if the daughter returns to live with the mother, the daughter may be changing schools, as well as homes, in the near future or next year.
[13] It may be that reuniting the daughter and her brother would be in the daughter’s best interests, but the OCL clinician’s affidavit referred to some problems between the siblings, some of which the daughter may not be aware of.
Disposition
[14] Although the mother presented her motion as being urgent and necessary because of the father’s refusal to return the daughter to her care in time for the new school year, the mother has not satisfied me that the daughter’s placement with the father was to have been temporary. The mother also has not satisfied me that, if the daughter returns to live with the mother, the daughter will necessarily continue to attend the same school after the matrimonial home is sold.
[15] I am not prepared to change the daughter’s residence on an urgent basis or on the record before me.
[16] Before a decision is made about the daughter’s residence, the OCL should have an opportunity to meet with the two children and to determine if a position will be taken on their behalf.
[17] That the mother’s decisions both to ask the father to assume care of the daughter and to ask the father to give up care of the daughter were described by the father as coming “out of the blue” is concerning to me.
[18] Based on the evidence before me, the father has been providing the daughter with a stable home environment since the second week of June and she is doing well in his care. I am satisfied that it is in the best interests of the daughter for the daughter’s current living arrangement to be maintained, on the same interim without prejudice basis as it began, for the daughter to continue to live with the father and for the daughter to attend the school near the father’s residence.
[19] The mother’s urgent motion is dismissed.
[20] If the parties cannot agree on costs, they may make brief written submissions within 10 days.
Date: August 23, 2021
COURT FILE NO.: FC-20-184
DATE: 20210823
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Melissa Charity Stall, Applicant
AND
Darren Stall, Respondent
COUNSEL: Ralph Lee, for the Applicant
John E. Summers, for the Respondent
ENDORSEMENT
Madam Justice Heather J. Williams
Released: August 23, 2021