Court File and Parties
Court File No.: FC-21-247 Date: November 15, 2021 Superior Court of Justice - Ontario
Re: Sharidan Clare Gauthier, Applicant And: James Lewis, Respondent
Before: Justice Mary A. Fraser
Counsel: Karen Kunopaski-Tsinonis, Counsel for the Applicant James Lewis, self-represented
Heard: October 12, 2021
Endorsement
[1] The Applicant mother, Sharidan Claire Gauthier (the "Applicant") brings a motion for, among other things, the return of the child, Jesse James Anna Lewis, born October 19, 2017 ("Jesse"), to the Applicant's primary care.
[2] She additionally asks for: police enforcement of this order; an order prohibiting the removal of Jesse from or the relocation of Jesse's residence outside the City of Pembroke without the prior written consent of the other; an order permitting the Applicant to make day-to-day decisions concerning Jesse's care; an order that the Respondent father, James Lewis (the "Respondent") not attend within 25 metres of the Applicant or the parties' former residence; that the parties communicate through the "Talking Parents" app; that the Respondent's parenting time occur via telephone or FaceTime and supervised by the Applicant twice weekly; that any in-person parenting time exercised by the Respondent take place at the Family Visitation & Exchange Service; that the Respondent not consume alcohol, cannabis or any other non-prescribed drugs during his parenting time or six hours prior.
[3] The necessity for this motion arose when the Respondent refused to return Jesse to the Applicant's care on August 15, 2021. He has not allowed contact between the Applicant and Jesse.
[4] The Applicant maintains that she has been Jesse's primary caregiver since birth and that the Respondent has never participated in Jesse's care.
[5] The Applicant asserts that the Respondent is a heavy cannabis user.
[6] The parties shared a residence until July 21, 2021 when an incident is alleged to have occurred between the Respondent and a son of the Applicant from a prior relationship ("Chance"). This resulted in the Applicant telling the Respondent to leave the home they had been residing in together until that time.
[7] The Applicant claims that the Respondent has since insisted in engaging in conflict with her, posting inappropriately on Facebook and attending at the residence without her consent. She asserts that he ransacked it. The Applicant maintains that the Respondent has had since July 21, 2021 to remove his belongings and that instead he attended at the residence and destroying her belongings and he has made them feel unsafe in their home.
[8] The Applicant states that the police have not responded to her complaint to the police regarding this incident because they have told her she is unable to prove that it was the Respondent who entered the premises.
[9] On a chance encounter with the Respondent on September 13, 2021 in Value Village the Respondent, according to the Applicant, made a scene and claimed he was afraid of the Applicant.
[10] The Applicant has related several further encounters with the Respondent. On one of these occasions when the police were called, it appears the police did not agree with the Applicant's version of events and the Applicant maintains that the end result was that she was assaulted by the police.
[11] The Respondent presents a radically different history. He maintains that the parties separated as a result of his discovering the Applicant's profile on various dating sites.
[12] The Respondent claims that the Applicant then began to make his life "miserable" and began to make false allegations about him to both the police and to Family and Children's Services of Renfrew County ("FCSRC").
[13] The Respondent maintains that he was asked to stay away from the residence where the parties had resided together while the FCSRC investigated the Applicant's allegations. He maintains that the FCSRC completed its investigation and that he then tried to exercise access with Jesse. He claims the Applicant yelled and screamed at him and he became concerned that he would never see Jesse or the Applicant's older children (to whom he claims he also acted as a parent).
[14] The Respondent asserts that he has kept Jesse in his care "out of fear" the Applicant will take her away or "coach Jesse into making more false allegations against me."
[15] The Respondent asks for certain temporary relief as well but it is noted that he does not have a motion before the Court.
[16] The Respondent has not suggested in his evidence that the Applicant consented to the creation of a new "status quo" in August 2021 when he refused to return Jesse to the Applicant's care.
Analysis:
[17] 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.
[18] 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.
[19] Section 24 applies with respect to interim parenting orders.
[20] Parenting determinations at temporary motions, however, 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.
[21] A status quo was established following the parties' separation. At that time, Jesse remained principally in the Applicant's care.
[22] The Applicant's affidavit materials makes certain allegations against the Respondent that would suggest he has behaved inappropriately and that, among other things, he attended the residence where the Applicant still resides and that he ransacked the residence.
[23] Neither of the parties have produced reports or correspondence from either the police or from FCSRC when it is clear that both have been called upon to investigate the conflict between the parties on a number of occasions. There is a lack of concrete substantiation for many of the Applicant's allegations. She states in her materials that the police were unwilling to act upon her allegations as a result of there being a lack of evidence. Asserting it to have happened by way of her affidavit does not make her evidence more probative. The Applicant's allegations as contained in her affidavit continue to lack substantive evidence to show the basis for her conclusions that the Respondent has act inappropriately or wrongfully.
[24] While the Applicant has made certain allegations to the FCSRC, their investigation has not resulted in the FCSRC becoming involved. If it were otherwise I would expect the Applicant to have produced some verification of FCSRC taking such a position.
[25] 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.""
[26] 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.
[27] While much of the evidence before me for this motion is conflicting, it was nonetheless improper, in my view, for the Respondent to refuse to return Jesse when it is clear that Jesse had remained in the Applicant's care following the parties' separation until August 15, 2021.
[28] Therefore, I conclude that a temporary order should issue requiring the Respondent to return Jesse to the Applicant's care, pending further order of this court. A temporary order shall issue that Jesse shall remain in the Applicant's care on a without prejudice basis at this time. The Respondent is to arrange a time for the exchange through Applicant's counsel and in any event the child is to be returned on or before November 18, 2021.
[29] That stated, the Respondent's parenting time needs to also be addressed on a without prejudice basis. I am ordering that unless another arrangement is agreed upon in writing by the parties, that the Respondent shall have parenting time with Jesse every second weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m. commencing Friday November 26, 2021. I do not conclude it necessary to require that the Respondent's parenting time be supervised. It is clear from the evidence before me that the FCSRC have been notified and involved with the parties and if it concluded there were any protection issues, Jesse would have been brought to a place of safety given she has been in the Respondent's de facto care.
[30] All exchanges for parenting time are to occur at the Family and Children's Services of Renfrew County Visitation and Exchange Centre.
[31] The police having jurisdiction in the area where the child is located, including the Ontario Provincial Police are directed to locate and apprehend the child if necessary, in order to enforce the parenting time for both parties as ordered above. This clause shall remain in effect for a period of four months from the date of this Order.
[32] I next consider the Applicant's request that a restraining order be made as against the Respondent, pursuant to s.35 of the Children's Law Reform Act which provides that an interim restraining order may be made against a person if the Applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in her lawful custody.
[33] In considering whether to grant such an Order the court must ensure that an appropriate balance is maintained between ensuring that victims of violence are protected while also ensuring that such orders, which can have criminal consequences and which are registered in CPIC, are only granted with good reason and where a clear case has been made out.
[34] It is not sufficient to grant such an order on the basis that there would be no harm in granting the order. (See: Edwards v. Tronick-Wehring 2004 ONCJ 309)
[35] A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
[36] The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required.
[37] The person's fear may be entirely subjective so long as it is legitimate. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed.
[38] That stated, a restraining order is not a remedy for bad manners, poor communication and suspicion (See: Lazier v. Mackey, 2012 ONSC 3812, [2012] O.J. No. 3308 (Ont. S.C.J.).
[39] In my view, the Applicant's evidence is not sufficient to warrant a restraining order. Her evidence is conclusory. No actual evidence has been led, for instance, to establish that the Respondent wrongfully attended at the Applicant's residence. The police investigation did not verify what she alleged. Even if the Respondent did attend at the home, the evidence is wholly unclear as to whether the Respondent was a co-tenant at this residence when the parties separated.
[40] The Applicant has not demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing the Applicant.
[41] The request for a restraining order is denied.
[42] A no-contact or communication order made pursuant to section 28 of the Children's Law Reform Act. It is not as wide-ranging as a restraining order. However, it can limit contact and communication between the parties. Given the conflict between the parties, I consider such an Order pursuant to section 28 to be appropriate in this instance.
Disposition:
[43] The following temporary order shall issue:
The child, Jesse James Anna Lewis, born October 19, 2017 ("Jesse") is to be returned to the Applicant's primary care on a without prejudice basis. Jesse shall reside primarily with the Applicant pending further order of the court. The Respondent is to arrange a time for the exchange of Jesse into the Applicant's care through Applicant's counsel and Jesse is to be returned on or before November 18, 2021.
The Respondent shall have parenting time with Jesse on a temporary without prejudice basis every second weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m. commencing Friday November 26, 2021.
All exchanges for parenting time are to occur at the Family and Children's Services of Renfrew County Visitation and Exchange Centre.
The police having jurisdiction in the area where the child is located, including the Ontario Provincial Police are directed to locate and apprehend the child if necessary in order to enforce the parenting time for both parties as ordered above.
Neither party shall relocate Jesse's residence outside the City of Pembroke, Ontario or physically remove Jesse from Renfrew County without the prior written consent of the other or a court order.
The Applicant's request for a restraining order is denied.
A no-contact order shall issue pursuant to section 28 of the Children's Law Reform Act. All communication between the parties shall be restricted to and through the "Talking Parents" app and shall be child-centred and limited to the exchange of information regarding Jesse's day-to-day care, health, education and welfare.
The parties shall refrain from speaking negatively about the other parent to Jesse or in her presence and shall prevent others from doing so.
The party having parenting time with Jesse shall make the day-to-day decisions concerning her care.
Neither party shall be under the influence of drugs or alcohol when Jesse is in their care.
If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before November 25, 2021. The Respondent may file submissions concerning costs on or before December 2, 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 December 2, 2021, then there shall be no order as to costs.
M. Fraser J.
Date: November 15, 2021