Bennett v McKenzie, 2022 ONSC 4448

COURT FILE NO.: FS-22-0086

DATE: 2022 07 28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Norda Bennett v Anthony McKenzie

BEFORE: Fowler Byrne J.

COUNSEL: Ryan Manilla, for the Applicant

Amber Herman, for the Respondent

HEARD: July 25, 2022

ENDORSEMENT

1This Motion was commenced when the Applicant Mother sought an ex parte order for the immediate return of the six year old child of the marriage, and that the child’s primary residence be with her.

Litigation Background

2The requested ex parte order was granted on June 29, 2022. At the same time, I ordered that the order and the motion materials be served on the Respondent Father, with a return date of July 8, 2022. Unfortunately, on that return date, the court was impacted with the nation wide Rogers internet outage, and the matter did not proceed. The parties were notified that the motion was rescheduled for July 14, 2022.

3On July 14, 2022, the Father attended with counsel, who sought a brief adjournment to file responding materials. I granted that adjournment to July 25, 2022 and ordered that the Father have supervised parenting time in the interim.

4On the return date, the Father had still not served or filed his materials. On consent, his materials were served and filed at that time. The matter was stood down for a period while the Mother reviewed the evidence. Both parties were prepared to proceed, and the Father agreed that the Mother could make submissions in reply to this late served affidavit, without evidentiary support, subject to his right to make an objection during the course of the reply submissions. Argument on the motion then proceeded. The Father made no objection with respect to the substance of the Mother’s reply submissions.

Family Background

5The parties were married on June 11, 2011. They had one child, who is now 6 years old. They separated on February 14, 2022, when the Father was charged with three counts of assault and was removed from the matrimonial home. As a condition of his release, he was not permitted to have any contact with the Mother. The Father maintains that the parties actually separated on August 20, 2019, but remained separate and apart from that time, in the matrimonial home.

6Prior to separation, the parties’ evidence differs on their parenting role. The Father claims he was very involved in parenting. Due to the Mother’s job as a registered practical nurse, he would bring the child to and from school. He does acknowledge that the maternal grandmother also helped with childcare.

7The Mother claims that for the last 1-2 years, the Father was mostly absent. She also claims that the Father would have emotional outbursts, that would scare the child.

8It is not contested that following separation, the child remained with the Mother in the home. The Mother alleges that the Father violated the terms of his release on a number of occasions by texting the Mother and by coming to the home when the child called him. Nonetheless, the Mother continued to facilitate parenting time between the child and the Father when she was at work. She has facilitated two, one-night overnight visits and one two-night overnight visit in May 2022. The Father would also see the child from time to time for a few hours.

9The matter took a turn for the worse when the Father picked up the child on June 10, 2022, with the expectation that she would be returned on June 13, 2022, for school. Unfortunately, the child was not returned. The school called the Mother wondering where the child was. The next day, having heard nothing from the Father, the Mother called 911. While she was unaware of where the Father lived, the police had knowledge, given his outstanding charges, and were able to carry out a wellness check. Given that there were no family law orders in place, the police could do nothing further. The Mother subsequently learned that the Father told the child’s school that she would be on vacation for the rest of the school year, although the Father claims he told the principal that the child would only be away for a few days. It appears uncontested that the child did not return to school while with the Father, and that she missed approximately two to three weeks of school.

10As indicated herein, I granted an order without notice that the child be immediately apprehended and returned to the Mother. When the parties were back before me on July 14, 2022, I was advised that the child had been located and returned to the Mother.

Was the Ex Parte Order Appropriate?

11The Father made no submissions that the Mother’s motion materials lacked the necessarily detail and disclosure that is required for an Order to be made without notice, nor that it should have been served prior to the order being granted. In his submissions, the Father was remorseful for the decision to keep the child and assured the court it would not happen again.

Interim Parenting

12A case conference in this matter will not take place until March 22, 2023. Accordingly, the parties require an interim parenting order so that there is some predictability until they can resolve or litigate the matter.

13The Mother wants the child to maintain regular contact with the Father but asks that there be no overnight parenting time until which time the Father has more suitable living arrangements. She also seeks that it be supervised, as she is fearful the Father will withhold the child again. The Father is currently not working.

14The Father seeks regular parenting time, including overnight access. He argues that the Mother was content with overnight access prior to the withholding and that supervision is unnecessary.

15Any parenting decision must be in the children’s best interests, taking into consideration their physical, emotional, and psychological safety, security, and well-being: s.16, Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). The Divorce Act lists a number of factors to consider when determining the circumstances of the child.

16The status quo will generally be maintained on interim parenting orders pending trial in the absence of compelling reasons indicating a change is necessary to meet the child’s best interests: Papp v Papp, 1969 CanLII 219 (Ont.CA.); Grant v Turgeon (2000), 2000 CanLII 22565 (ONSC). This principle has been referred to as the “golden rule”: Kimpton v Kimpton, 2002 CarswellOnt 5030 at para. 1.

17The status quo is established by reference to the parents’ practice or the child’s routine prior to separation: Batsinda v Batsinda, 2013 ONSC 7869 at page 19; Gray v Canonico, 2020 ONSC 5885 at para. 48. It can also be established by evidence of a consensual arrangement made after separation, or by court order: Gray at para. 48; Wu v Yu 2022 ONSC 3661 at para. 117.

18In this case, the status quo was that the child was accustomed to regular contact with both parents while they lived together in the matrimonial home. In this case though, I find there are compelling reasons to deviate from this status quo, and order that the child reside primarily with the Mother.

19Firstly, the Father has been charged criminally, and may not come in contact with the Mother. This makes the former practice of co-parenting, if it indeed existed, impossible to continue.

20Secondly, the Father also exercised extremely poor judgment in keeping the child away from the Mother for an extended period of time and removing her from school. His actions required the police to become involved, which could not have been a pleasant experience for the child.

21In addition, the Father does not have suitable living arrangements. He lives with a number of other adult men and has only a bedroom as his private space. He has only one bed, although I do acknowledge that he said he would get a separate bed or mattress for the child when she stayed overnight. The court has been provided with no evidence, by way of a Form 35.1 Affidavit which would identify these other men, and which would also require the Father to identify if any of these other men have a criminal record or are facing criminal charges.

22Accordingly, given that the status quo cannot continue, I must consider what is in the child’s best interests at this time.

23The child clearly needs some stability in this period of change. The Mother continues to live it the same home where the child has resided for some time. The Father’s home is temporary, and he has indicated that he is going to find more suitable premises.

24I do find that both parents are important to this child and that parenting time with both parents is important. I also find that both parents are supportive of the child’s relationship with the other. Until the withholding, they appeared to be working through this tenuous period.

25While the history of care of the child is debated, it is safe to conclude that both were involved in some respect with the child’s day to day care.

26At this time, the Father is not able to fully meet the needs of his daughter. As indicated, he does not have suitable living arrangements. He is currently unemployed and thus has no steady support for himself, let alone his daughter. Also, he has exercised poor judgment in keeping the daughter, removing her from school and not letting the mother know her whereabouts. I do acknowledge though, that the Father has scheduled anger management counseling.

27I am satisfied with the plan of care the Mother has proposed. She has the assistance of the maternal grandmother and a babysitter, who is 16 years old. That is not an unusually young age for a babysitter, especially considering the child is 6 years old. Also, the Peel Children’s Aid Society has been involved with this family, due to the Father’s criminal charges, and has indicated no protection concerns with respect to the Mother, despite the Father’s allegations that the child is left unattended.

28With respect to the Mother’s request that parenting time be supervised, I do not believe that is necessary, as long as certain protections are put in place. Except for this one instance, the Mother has been comfortable with the Father having overnight access, unsupervised, even when she did not know exactly where the Father was staying. I do agree though, that there should be no overnight access visits until which time the Father has more suitable arrangements in place.

29There is also a possibility that the child has been exposed to family violence as between her parents. I acknowledge that the Mother’s allegations have not been tested, and the Father’s criminal matter is far from resolved, but it is clear that at this time, the Mother and Father should not be exposing the child to their conflict.

Conclusion

30For the foregoing reasons, I make the following orders:

a) The Father is granted leave to file his responding affidavit, sworn July 24, 2022, and affidavit of service of same;

b) The child shall reside primarily with the Mother;

c) The Father shall have parenting time with the child as follows:

1. Every Saturday from 10:00 a.m. to 4:00 p.m.;

2. Every Tuesday and Thursday from after camp, school or after school care, as the case may be, until 7:00 p.m.; and

3. As otherwise agreed in writing between the parties or their counsel;

d) If the Father’s terms of release permit it, the parties are permitted to communicate with each other in writing with respect to the facilitation of parenting time only; all communication shall be brief, child focused, and without commentary;

e) The Father may not exercise his parenting time outside the Region of Peel;

f) The Father shall ensure that the child attends school or summer camp, if his parenting time coincides with same;

g) There shall be a police enforcement clause;

h) The parties are encouraged to resolve the issue of costs themselves. If they are unable, both parties shall serve and file their written costs submissions, limited to two pages, single-sided and double spaced, and their Costs Outline, no later than August 19, 2022; each party may file responding submissions, with the same size restrictions, which must be served and filed no later than September 9, 2022.

Fowler Byrne J.