Court File and Parties

COURT FILE NO.: 2020-124

DATE: November 12, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher James Viveash, Applicant

AND:

Amanda Eileen Viveash, Respondent

BEFORE: Justice Mary A. Fraser

COUNSEL: Dylan Crosby, Counsel for the Applicant

Terese Ferri, Counsel for the Respondent

HEARD: October 12, 2021

ENDORSEMENT

[1] The Respondent mother, Amanda Eileen Viveash (the “Respondent”) brings a motion for the return of the child, Landon James Taylor Viveash, born August 18, 2014 (“Landon”), to the Respondent’s primary care, subject to the Applicant having parenting time with Landon on alternate weekends and alternate Thursdays overnight. She additionally asks that an Order be made that the child return to Our Lady of Sorrows School in Petawawa and that exchanges for parenting time take place at the Tim Hortons Town Centre Boulevard, Petawawa. She also requests that he consents to an order that the parties maintain civil and appropriate communication in Landon’s presence, that the parties refrain from speaking negatively about the other to Landon or in his presence, and that a request be made that the Office of the Children’s Lawyer become involved.

[2] The Applicant father, Christopher James Viveash (the “Applicant”) opposes the relief requested to the extent the Respondent asks for a change in the parties’ respective parenting time with Landon and a transfer of Landon’s care back to the Respondent and the change of school. The Respondent consents to an order that the parties maintain civil and appropriate communication in Landon’s presence, that the parties refrain from speaking negatively about the other to Landon or in his presence, and that a request be made that the Office of the Children’s Lawyer become involved.

Background:

[3] The parties were married September 1, 2012. They separated on April 14, 2020. At that time the Applicant left the matrimonial home and moved to a PMQ on base Petawawa. At that time Landon remained in the Respondent’s physical primary care.

[4] Between May 2020 and July 2021 Landon remained primarily resident with the Respondent. The Applicant had parenting time with Landon on alternate weekends from Friday to Monday and every alternate intervening Thursday overnight.

[5] Landon is presently 7 years old.

[6] The Respondent asserts that on July 13, 2021, the Applicant refused to return Landon to the Respondent’s care and that since that time he has refused to allow any face-to-face contact and is insisting that her parenting time be supervised.

[7] Further, the Respondent asserts that the applicant unilaterally changed Landon’s school from Our Lady of Sorrow’s School in Petawawa where Landon has attended for the past two years and registered him to attend Cobden District Public School.

[8] The Respondent advises that on or about July 10, 2021, she was on holidays in New Brunswick with Landon and that she became ill due to an adverse reaction to a medication that she had been prescribed. She was admitted to hospital and released two days later. According to the Respondent, while in hospital, the Applicant arranged to pick Landon up and he has refused to return him to the Respondent since or allow her to see him except by video chat twice a week for short periods.

[9] The Respondent asserts that the adverse reaction was to a medication prescribed to her (Nortriptyline) to assist with anxiety she was experiencing arising from the parties’ separation. It prompted a reaction akin to a manic/psychotic episode which she maintains was isolated.

[10] The Respondent alleges that the Applicant told the medical staff that the Respondent was an abuser of illegal drugs and alcohol. While the Respondent admits to having experimented with drugs at an earlier time, she states that this hasn’t been an issue for her since 2010.

[11] The Applicant returned to Ontario with Landon and reported the matter to Family and Children’s Services of Renfrew County (“FCSRC”). It has investigated and among other things obtained a report from a psychiatrist, Dr. Morel.

[12] FCSRC completed its investigation. Its closing letter, dated August 11, 2021, states the following:

“…I became involved with your family due to allegations of possible substance abuse (Amanda) and neglect (Chris) that has impacted your child. Both of these allegations have been reviewed and neither of these allegations have been verified….

Moving forward my recommendations would be the following:

Amanda to continue following her safety plan that I approved in the event of another adverse reaction to her medication. (To call the doctor-911 and Brett immediately if she is having a reaction. Brett will take on the caregiving role and will contact the OPP to inform Chris if Landon needs to be picked up. Brett will ask OPP to facilitate the exchange with Chris….)

It would be recommended that Chris not withhold access from the mother. It would be encouraged for Landon to have access with both his parents.

At this time, your current child protection investigation filed with Renfrew family and children’s services will be submitted to close….”

[13] The Respondent alleges that the Applicant was abusive toward her during their marriage, including having assaulted her on several occasions.

[14] She maintains that the separation between them has been conflictual and that, for instance, the Applicant refuses to disclose where he is staying when he has Landon in his care.

[15] The Respondent maintains that she had always overseen Landon’s day-to-day care from birth onward. Landon had remained in her primary care after the date of separation.

[16] Until July 2021, the Applicant does not dispute that Landon has remained in the Respondent’s de facto primary care. However, he maintains that until their separation, the parties jointly parented Landon.

[17] The Applicant maintains that the Respondent abused drugs and alcohol on a regular basis throughout the time they were together.

[18] Following the parties’ separation, the Applicant commenced this Application. In his pleadings he asks for a shared parenting arrangement. A case conference was held on December 10, 2020.

[19] The Applicant has not suggested in his evidence that the Respondent consented to the creation of a new status quo in July 2021 when he took Landon into his care.

[20] Further, the Applicant does not dispute that he registered Landon in Cobden District Public School without her knowledge or consent.

Analysis:

[21] Pursuant to section 24(1) of the Children’s Law Reform Act R.S.O. 1990, c.C12, in making a parenting order I am to only take into account the best interests of the child in accordance with that section.

[22] Section 24(2) provides that in determining the best interests of a child, I shall consider all factors related to the circumstances of the child, including those factors set out in section 24(3) and, in doing so, I am to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[23] Section 24 applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

[24] That stated, parenting determinations at temporary motions are challenging as decisions are being made without the benefit of a full evidentiary record. Temporary orders are intended to provide a “band-aid” solution pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the child requires a change.

[25] A status quo was established following the parties’ separation in April 2020. While the Applicant complains that the “status quo” as it existed post separation did not come about as a result of a court decision or “fair negotiations”, I note that it arose as a result of the Applicant leaving the matrimonial home voluntarily and he had every right or option to bring a motion following the holding of a case conference in December 2020. He did not do so.

[26] The Applicant’s affidavit materials assert that the Respondent is unfit to be parenting Landon on the basis that she has a longstanding issue with substance abuse. I acknowledge that the affidavits filed on behalf of the Applicant speak to various times when the Respondent abused substances historically. However, I am not satisfied that the conclusion needs to be drawn from that evidence that the Respondent presently has a substance abuse problem or that any use of substances impacts her ability to parent.

[27] I note that in the Application, the Applicant asked for a shared “week-about” parenting arrangement as being in Landon’s best interests. No mention of substance abuse by the Respondent was raised in the pleading. This seems in contradiction to the historical narrative he is now presenting.

[28] The Applicant has refused to allow the Respondent in person parenting time since July 2021.

[29] This is notwithstanding the fact that the FCSRC found that concerns alleged by the Applicant to be unverified.

[30] The status quo, and avoiding a reckless creation of a new status quo, is an important consideration at the interim custody stage: (See: Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17).

[31] In Southorn v. Ree, 2019 ONSC 1298 J.P.L. McDermot, J. stated the following at paras 12 and 13:

“Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns, 2004 CanLII 9301 (Ont. S.C.J.) and Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, 2000 CanLii 22565 (Ont. S.C.J.), MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”

[32] Self-help is to be discouraged. Indeed, a parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment.

[33] While I am in no position at this point, based on the affidavit evidence alone, to judge the level of good faith exercised by the Applicant when he made the decision to withhold Landon from the Respondent in July 2021 and to alter the status quo which had been in effect since April 2020. I am of the opinion that he ought to have reconsidered his position once FCSRC investigated his concerns and concluded that the expressed risk was not verified.

[34] Therefore, I conclude that at a minimum the parenting schedule should return to the status quo which has been in place until the Applicant unilaterally sought to radically change it.

[35] Further, I do not conclude that a compelling reason has been shown to alter that status quo at this point to implement a shared parenting arrangement at this interim stage. To impose a more shared parenting arrangement upon the parties necessarily would require a high level of communication and coordination between the parties. The parents would have to coordinate schooling, medical appointments and extra-curricular activities for the child. Given the present dynamics between the parties, I am not satisfied that this is possible between the parties and therefore such an order would not presently be in Landon’s best interests.

[36] It would be more appropriate to consider whether such a shared parenting arrangement is viable and in Landon’s best interest once the court has 1) the benefit of evidence which can be tested through cross-examination and possibly 2) the benefit of a s.112 assessment report from the Office of the Children’s Lawyer.

Disposition:

[37] The following temporary order shall issue:

1. Landon James Taylor Viveash, born August 18, 2014, is to be returned forthwith to the primary care of the Respondent mother, Amanda Viveash, subject to the following parenting with the applicant father Christopher Viveash:

(a) alternate weekends from Fridays at 4:00 p.m. to Mondays at 6:20 a.m. commencing Friday November 12, 2021;

(b) alternate Thursdays at 4:00 p.m. to Fridays at 4:00 p.m. commencing November 18, 2021; and

(c) such further and other parenting times as the parties may mutually agree upon.

2. The Respondent may return Landon to Our Lady of Sorrows School in Petawawa, if, after consultation with Cobden District Public School she concludes that this change of school can be accomplished without causing Landon undue disruption to his studies. She should consult with both schools to determine the most appropriate timing of any change of school.

3. Exchanges for parenting time to take place at the Tim Hortons Town Centre Boulevard, Petawawa or such other location as may be agreed upon with the expectation that both parties shall share the transportation to and from exchanges.

4. The parties are to maintain civil and appropriate communication in Landon’s presence.

5. The parties shall refrain from speaking negatively about the other parent to Landon or in his presence and shall prevent others from doing so.

6. An order shall be made requesting the involvement of the Office of the Children’s Lawyer, preferably by way of a s.112 assessment and report.

7. If the parties are unable to agree on the issue of costs for this motion, the Respondent may file submissions concerning costs on or before November 17, 2021. The Applicant may file submissions concerning costs on or before November 24, 2021. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by November 24, 2021, then there shall be no order as to costs.

M. Fraser J.

Date: November 12, 2021