COURT FILE NO.: FC-21-2186
DATE: 2022/07/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Whitney Elizabeth Young, Applicant
-and-
Gregory John Peters, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Altynay Teshebaeva, for the Applicant
Gonen Snir, for the Respondent
HEARD: April 7, 2022, by Video Conference
ENDORSEMENT on motion
[1] In this motion, the Respondent father seeks additional interim parenting time. This motion was directed by Somji J.’s Endorsement of March 22, 2022. A Case Conference was held on February 15, 2022.
[2] The father seeks interim parenting time based on a graduated schedule, commencing with a few hours and then expanding, after four weeks, to overnight parenting time and continuing to expand until becoming an equal parenting schedule after seven weeks.
[3] The mother opposes the father’s motion. She proposes a more slowly expanding graduated schedule that begins with a few hours a week and expands to include one overnight parenting time after approximately ten weeks.
[4] The parties are the parents of a child, now age three. The parties lived together for a few years before they married in April of 2021. They separated in August 2021 or October 2021. The mother’s position is that they separated in August of 2021 when the father was posted overseas. The father’s affidavit material is not explicit on the date of separation. Still, it suggests that his position is that they separated in the fall of 2021, after he returned from his posting and before he entered treatment for trauma and addiction. The father was in treatment from November 21, 2021, to mid-January 2022.
[5] The father is in the military and has spent significant periods since the child’s birth away on postings.
[6] For the reasons that follow, I find that it is in the child’s best interests for the child to continue to primarily reside with the mother on an interim basis, with the father having in-person parenting time, increasing on a graduated basis, on the schedule set out below.
Preliminary Matters - Reference to Offers to Settle in Affidavits
[7] Both parties included references to their respective offers to settle parenting issues in their affidavits. The father sought to strike the mother’s affidavit sworn March 31, 2022, because it included references to her settlement offers. The mother argues that she only responded to the father’s reference to settlement discussions in his affidavits.
[8] Parties should not be placing settlement discussions or offers to settle before the court determining the substantive issue in dispute. It is improper for both parties to reference these settlement discussions, and I urge counsel to take greater care in preparing their material for court in the future. I have disregarded all references to settlement offers in the parties’ respective material.
Best Interests of the Child
[9] This Application is brought under the Divorce Act. The sole consideration for the court in making a parenting order under the Divorce Act is the child’s best interest, considering all of the factors listed in s.16(3) and placing primary consideration on the child’s physical, emotional, and psychological safety, security and well-being.
[10] I have considered the s.16(3) factors. I find that it is in the child’s best interests to remain in the primary care of the mother on an interim basis, with the father’s parenting time as set out below, for the following reasons:
The child has primarily resided with the mother since August 8, 2021, when the father was deployed.
I discount the father’s allegations regarding the mother’s ability to care for the child and meet the child’s needs because of his history of leaving the child in the mother’s care during his long absences. This includes as recently as August to October of 2021, when he was overseas on a posting, and again from November 21, 2021, to mid-January 2022, when he was in treatment for trauma and addiction.
However, I have concerns about each parent’s mental health. Both have diagnosed mental health challenges that continue to require care. But I have more concerns about the father than the mother. Although the mother has PTSD, which she says is exacerbated by the father’s abuse, she has been the child’s primary caregiver, and the child is generally doing well in her care
I decline to draw an adverse inference against the mother concerning her mental health, as the father’s counsel requested, because she had not yet provided a letter from her counsellor as ordered on February 15, 2022. The Order did not impose a timeline for the letter. I accept the mother is in the process of providing the letter. I do not find that the passage of time to the hearing of this motion demonstrates willful non-compliance.
The father’s conduct is more concerning because of the pattern of aggression and anger towards the mother. I am very concerned with the evidence that supports the mother’s allegations against the father of stalking, coercive control, and financial abuse. I disagree with the father’s counsel that these allegations are unrelated to the child’s interest. The Divorce Act now includes an expansive definition of family violence that the court must consider as part of the s.16(3) factors. The Respondent has been charged criminally with criminal harassment. Still, regardless of whether he is convicted or not, the definition of family violence related to the child’s best interests is more expansive than the criminal code. Concerning conduct of the father, includes, for example,
a. In October of 2021, the father sent the mother a text message with a screenshot of her airplane ticket, calling her a liar. The mother alleges that the father hacked into her accounts to track her whereabouts, which is how he had her ticket. The father does not deny sending the text or explain how he had a copy of her ticket.
b. Also, in the fall of 2021, the father sent the mother a text with a photo of her car in the driveway of a person she was visiting in another city (Kitchener), again suggesting she was a liar concerning her whereabouts. I do not find the father’s explanation, that he just happened to be driving by to visit a friend of his own, to be credible. Nor do I accept that he was justified in sending the text because he needed to confront the mother, in his view, in another lie. By sending the text, the father was communicating to the mother that he knew her whereabouts, even when she was in another city.
c. There is ample evidence before me, including the father’s affidavit material, that the father has been very focused and energized around trying to know the whereabouts of the mother and the child at any given time.
d. The father does not explain notations in his calendar from December of 2021 that state “Bitch at BF with [child].” I find that these notes indicate that the father is, again, somehow aware of the mother’s location and is angry with her for dating another person.
e. The father describes himself as having a mental breakdown in the fall of 2021, triggered by the separation and learning, as he believed that the mother was dating another person. He does not deny calling the mother’s mother in the fall of 2021 and telling her he was contemplating suicide.
I accept the mother’s evidence that the father has been away for many chunks of the child’s life. The mother’s evidence on this point was detailed and specific. The father did not provide detailed evidence in response but only a general statement to the effect that he was not away as much as the mother claims. The absences detailed by the mother’s evidence are significant, including the father being away for eight months in 2019, at least two months in 2020, and 130 days during the first ten months of 2021. Even if the father was not away on all of the dates claimed by the mother, I still find he has been away for significant periods throughout the child’s life, and the child has been in the mother’s primary care since birth.
I do not accept the father’s evidence that the mother did not allow him to see the child from November 18, 2021, to January 6, 2022. The father was in treatment from November 21, 2021, to mid-January 2022 after having, as he describes it, a mental breakdown. While I have evidence that the father asked to see the child at Christmas time in 2021 (and that the mother agreed to some time, but none took place), there is no evidence before me that the father requested parenting time before Christmas 2021.
I am concerned that the mother has not provided the father with in-person contact with the child since January of 2022. In this motion, the mother does not oppose the father having unsupervised in-person parenting time that gradually increases. It seems reasonable that the parties should have been able to agree to some expansion of the father’s parenting time before this motion. But I have also reviewed correspondence between the parties’ counsel, which illustrates the difficulty the parties had in agreeing on any issues, and their mutual responsibility for this failure. Using the unfortunate and overused term, this situation is a high conflict file. Coupled with the parties’ mental health challenges and family violence concerns, it is, unfortunately, not surprising that they have made such little progress.
The mother is in breach of the January 6, 2022, interim without prejudice Order, made on consent, that she is not to remove the child from the National Capital Region (NCC) without the father’s consent. I do not accept the mother’s explanation that she is not in breach because she has not “relocated” the child but is just visiting or on a temporary stay outside of the NCC area. The wording of the Order prohibits the child from being removed from the NCC area and is not limited to relocation. This Order will continue until the mother’s motion to be permitted to relocate the child is determined. The mother must immediately bring herself into compliance with this Order. Any further issues of non-compliance may be returned to me on an urgent basis.
The child is just three years of age. The father proposes a parenting plan that increases to equal time within seven weeks. This is not a realistic plan, nor do I find that it is in the child’s best interests for the reasons above. The mother’s proposed parenting plan is more reasonable. However, it goes beyond the level of parenting time that I can find is in the child’s best interest on an interim basis, on the evidence before me. I am not prepared to order overnight parenting time at this time, given the evidence before me.
I have made the Order below concerning the transfer location because the mother’s proposed transfers occur at the police station, and the father agreed. Police stations should, however, generally be avoided as transfer locations because this can make transfers worse for the child. I encourage the parties to find a better neutral location that will insulate the child from conflict. Optimally, the transfers would take place through a neutral third party so that the child could go from the third party to the other parent, rather than directly between parents. The parties need to do better to insulate the child from their conflict.
I have considered making a referral to the OCL to request that they become involved in this matter. Neither parent asked that I make such an order at this time. I know the OCL has very limited resources to do s.112 assessments, which would be the only realistic option for their involvement. Because of the father’s outstanding criminal charges and the mother’s motion to be permitted to move the child on an interim basis, I will not make an order for the OCL involvement at this time. This is an issue, however, that should be explored going forward.
Disposition
[11] I make the following orders:
[12] Under the Divorce Act, on an interim basis, subject to appropriate adjustment in the child’s best interests on the determination of the mother’s motion to relocate the child to Southwestern Ontario:
The interim Order of Associate Justice Kaufman dated January 6, 2022, made on consent, ordering that the mother shall not remove the child from the National Capital Region without the father’s written consent post-dating the motion heard on January 6, 2022, or further court order, shall continue. If the child is not currently in the National Capital Region, the mother shall return the child to the National Capital Region within 72 hours of the release of this endorsement. Any compliance issues with this Order shall be returned before me on an urgent basis.
The child shall remain in the primary care of the mother.
The father shall have unsupervised parenting time as follows:
a. Commencing Saturday, July 9, 2022, every Saturday for 2 hours, from 9 am to 11 am or such other time as the parties agree. On July 23, 2022, this time shall be increased to 4 hours. On August 27, 2022, this time shall be increased to 6 hours.
b. In addition, commencing Wednesday, July 13, 2022, every Wednesday from 5 pm to 7 pm or such other time as the parties agree. These visits shall replace the video calls provided in the interim consent order dated January 6, 2022.
c. The parties shall agree on a neutral transfer location. If they cannot agree on another location, the parties shall reattend before me to determine the transfer location, pending which, the transfers shall take place at the police station at 211 Huntmar Dr., Stittsville.
Costs
[13] If the parties cannot agree on the costs of this motion, the Applicant may file cost submissions on or before July 15, 2022. The Respondent may file cost submissions on or before July 22, 2022. The Applicant may file a reply, if needed (proper reply only), on or before July 29, 2022. Cost submissions of both parties shall be no more than three pages in length (except for reply submissions, limited to 2 pages), plus any offers to settle and bills of costs which shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern
Date: July 4, 2022
COURT FILE NO.: FC-21-2186
DATE: 2022/07/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Whitney Elizabeth Young, Applicant
-and-
Gregory John Peters, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Altynay Teshebaeva, for the Applicant
Gonen Snir, for the Respondent
ENDORSEMENT on motion
Justice P. MacEachern
Released: July 4, 2022