COURT FILE NO.: FC-21-00000262-0000
DATE: June 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SERGE BERNARD THERIAULT
Applicant
– and –
ANDREA LYNN FORD
Respondent
Gonen Snir, for the Applicant
Jeremy Dolgin, for the Respondent
ENDORsement
ABRAMS, J
Introduction
[1] In his motion, the Applicant requests a temporary, without prejudice order for equal parenting time over the course of the summer, to be implemented immediately.
[2] In her motion, the Respondent requests an order that the children reside primarily with her, subject to specified parenting time with the Applicant.
Brief Background
[3] The parties married in February 2013.
[4] There are two children of the marriage: Sam Theriault, born June 15, 2013, and Ava Theriault, born June 17, 2016 ("the children").
[5] The parties separated in October 2021, as a result of the Respondent making criminal allegations against the Applicant, which resulted in him being charged with assault and released on conditions not to communicate with her.
[6] The parties have divergent views about what precipitated the conflict and how it unfolded.
[7] The parties agree that the Respondent was injured during the conflict and that it led to the Applicant overdosing in a suicide attempt and being taken to hospital.
[8] Thereafter, the Applicant enrolled in a one-month rehabilitation program leaving the children alone with the mother.
[9] Following the Applicant's treatment program, the parties instituted an ad hoc parenting regime for approximately five months during which the Applicant enjoyed time with the children every second Friday evening to Sunday evening and Wednesday evening visits. Further, the parties agreed on extra time for the Applicant during holidays.
[10] The Respondent contends that the Applicant unilaterally extended his time with children by overholding them on Sundays until Monday morning and on Wednesdays until Thursday morning, which necessitated this motion.
[11] On June 6, 2022, the Crown withdrew the criminal charges in exchange for the Applicant entering into a section 810 CCC peace bond, which, again, prohibits contact between the parties.
[12] In the circumstances, the Applicant contends that the artificial status quo created by the unmerited criminal allegations against him ought to be replaced with an equal and shared parenting order, at least over the course of the summer, on a temporary, without prejudice basis.
Issues
What was the status quo when the family was together?
How does the "maximum contact" principle apply in the circumstances?
What order for parenting will best serve the children's interests on a temporary, without prejudice basis pending a full hearing on the merits?
Parties Positions:
[13] The Applicant asserts that the Respondent unilaterally created an artificial status quo because of the unsubstantiated criminal allegations she made against him. The Applicant argues that the primary or legal status quo that existed when the family was together was one in which he was primarily responsible for the care of the children due to the Respondent's addiction to alcohol.
[14] The Respondent contends that the children have always been in her primary care, both prior to and following the separation. Thus, the Respondent argues that the Court should avoiding creating a new status-quo at this interim stage, pending a full hearing on the merits.
Law
Status Quo
[15] The status-quo – and avoiding reckless creation of a new status-quo - are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.
[16] Status quo in a fresh separation entails a look at the status quo when the family was together: Howard v. Howard (1999) 1999 CanLII 35009 (ON SC), 1 RFL (5th) 375 (SCJ). In Kimpton v. Kimpton, 2002 CarswellOnt 5030, it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.
Parenting Time
[17] The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child's best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. This even applied when the children were reluctant to see a parent, which is not the case here.
[18] Then as now, the Court is tasked with viewing what is in the best interests of the child, not the parents. The maximum contact principle was mandatory, but not absolute. The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child's best interests; if other factors showed that it would not be in the child's best interests, the court could restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. and Casselman v. Noonan, 2017 ONSC 3415.
[19] Maximum contact or "maximum parenting time", although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[20] Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children: Knapp v. Knapp, 2021 ONCA, per Benotto J.A.
Analysis and Conclusions
[21] I begin from the standpoint that, at this juncture, the Court record is limited to competing and untested affidavit evidence alone.
[22] To reiterate, the parties have divergent views about what precipitated the conflict and how it unfolded, which resulted in the now withdrawn criminal charges against the Applicant.
[23] That said, in my view, had the Applicant not been charged criminally, he would not have voluntarily stepped away from his parenting role and duties. I say that because, to his credit, the maternal grandmother, among others, acknowledges the role he played in parenting the children. Further, it was a substantial role, both during the family's time living in Hong Kong and following their return to Canada.
[24] This relatively fresh separation of approximately seven months requires the Court to consider what the status quo was when the family was together. The parties have competing, untested views on this. Both contend that they were primarily responsible for parenting the children.
[25] The Applicant asserts that he had to step in as the primary parent due to the Respondent's addiction to alcohol. The Respondent contends that she was the primary parent due to the Applicant's work schedule and his addiction to cocaine. The Court is unable to resolve the contradictory evidence on this issue, on this motion.
[26] What is clear, based on the record before the Court, is that there is enough recrimination to go around in respect of both parties. The Applicant acknowledged his addiction by attending an intensive treatment program. The Respondent acknowledges her "drinking problems", which she says she has overcome by leaving the relationship. Notably, there is uncontradicted, third party evidence in the record that tends to support the contention that the Respondent can act out aggressively when she is drinking.
[27] Notwithstanding each of their weaknesses and human frailties, particularly in relation to each other, there is nothing in the record to suggest that both parties are anything other than loving, capable and caring parents.
[28] In considering the factors set out in s. 24 of the Children's Law Reform Act, I am of the view that:
Both parents are capable of providing stability for the children.
Both parents have a strong bond with the children, as do the extends families on both sides.
Both parents are capable of supporting the other parent's relationship with the children.
The history of care of the children is largely competing and untested.
The children's views and preferences have not been canvassed for purposes of this motion. An earlier request was made for the Office of the Children's Lawyer to engage, which was denied.
Both parents have the ability and are willing to care for the children. The Respondent argues that the Applicant's work schedule will not allow him to care for the children on an equal basis. The Applicant asserts that he has made arrangements, at least over the course of the summer, to adjust his work schedule in order to equally parent the children. I cannot assume that he is unable to do so; he should at least be given the opportunity.
With the appropriate boundaries set out in an order from this Court, I am of the view that the parties should be able to communicate civilly for purposes of parenting the children.
In terms of family violence, again, there is sufficient recrimination to go around, for the reasons set out above. That said, these parties are, in my view, intelligent, capable and loving parents who, with the benefit of a court order, should be able to conduct themselves civilly for purposes of parenting their children.
[29] As our Court of Appeal confirmed in Rigillio v. Rigillio, 2019 ONCA 548, courts determining custody and access issues must advert to the maximum contact principle set out in s. 16(10) of the Divorce Act. Moreover, any judge who departs from the maximum contact principle must provide reasons for doing so.
[30] Again, maximum contact or "maximum parenting time", although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[31] On the record before me, there are no apparent reasons why the children's best interests cannot be served by having maximum parenting with each parent, which, in my view, equates to equal parenting time, on a temporary, without prejudice basis from now until the end of the summer.
[32] In the result, the Applicant's motion on the discrete issue of parenting time is granted, and the Respondent's motion is dismissed. The Order shall include the necessary wording to allow the parties to communicate for the purpose of parenting the children and to circumvent the conditions included in the s. 810 CCC Peace Bond.
[33] If the parties are unable to agree on costs of the motion, written submissions may be filed for my attention consisting of no more than four pages, double spaced, 12-point font or larger, one side of the page, together with a Bill of Costs and any Offers to Settle.
Justice Abrams (signed electronically)
The Honourable Mr. Justice B. W. Abrams
Released: June 16, 2022
COURT FILE NO.: FC-21-00000262-0000
DATE: June 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SERGE BERNARD THERIAULT
Applicant
– and –
ANDREA LYNN FORD
Respondent
ENDORsement
Abrams, J.
Released: June 16, 2022