Sayeau v Buttle , 2022 ONSC 7246

COURT FILE NO.: 19-0136

DATE: December 21, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ADAM JAMES SAYEAU

Applicant

– and –

SARAH MELISSA BUTTLE

Respondent

Gregory Best, for the Applicant

Gordon Campbell, for the Respondent

Ruling on motion

ABRAMS, J

Introduction

1The Applicant brings a motion requesting, inter alia, a finding of primary residence and confirming the status-quo of primary parenting since March 2020.

2The Respondent requests in her cross-motion, inter alia, that primary residence be returned to her, or in the alternative that her parenting time be expanded.

Facts

3The parties commenced a relationship in 2012, which produced two children: Callen Jo Tierney Sayeau-Buttle, born September 1, 2012, and Seamus William Dean Buttle, born January 29, 2019 (“the children”).

4The parties separated on August 16, 2018.

5The children remained in the care of the Respondent post separation.

6The parties commenced litigation in 2019 resulting in the consent, Temporary Order of Johnston J., which provided for specified parenting time to the Applicant. Notably, there was no finding of primary residence at that time.

7Following an investigation undertaken by Family and Children’s Services for Lanark, Leeds Grenville (“the Society”), the children were placed in the care of the Applicant on a voluntary basis in March 2020.

8The children have remained in the care of the Applicant ever since.

9In December 2020, the Respondent relocated to Edmonton, Alberta.

10In the spring of 2021, the Respondent relocated to Point Claire, Quebec, where she continues to reside.

11The matter was Case Conferenced on May 12, 2021, when the parties consented to the involvement of the Office of the Children’s Lawyer (“the OCL”). Again, there was no finding of primary residence at that time.

12On February 24, 2022, Ms. Sandra Kapasky, Clinician for the OCL, submitted her report in which she recommended that primary care be granted to the Applicant with alternating weekend parenting time to the Respondent. Further, Ms. Kapasky recommended equal sharing of holiday time.

Issues

13The Court must address the following issues on this motion and cross-motion:

1. Did the involvement of the Society in March of 2020 trigger a new status-quo, such that the Temporary Order of Johnston J. was effectively changed as it related to parenting time?

2. In the current circumstances, what parenting order serves the best interests of the children pending a full hearing on the merits?

Legal Principles

14The status-quo, and avoiding reckless creation of a new status-quo, are important considerations at the interim stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras. 16 and 17.

15It is a long-standing legal principle that absent evidence of material change and that an immediate change is required, the status-quo is ordinarily to be maintained until trial: Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.).

16In making an interim order, a court should generally maintain the status-quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994) 1994 CanLII 7379 (ON SC), 5 RFL (4th) 115.

17To disturb the status-quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status-quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para. 26.

18The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial: Copeland v. Perreault 2007 ONCJ 217, [2007] O.J. No.1889 (O.C.J.) at para. 49.

19It is generally not in the best interests of a child to disturb a status-quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the Office of the Children’s Lawyer recommending an immediate change in residence; an indication that the children are doing poorly under a particular regime; serious mental health issues in connection with one of the parents; and drug or alcohol addiction on the part of one of the parents. As well, it must be demonstrable that one or more children are doing very poorly as a result of the parenting regime: Shotton v. Switzer, 2014 ONSC 843.

20Children should not be needlessly disrupted by a parent unilaterally creating a new status-quo through manipulation or deliberate acts: Izyuk v. Bilousov 2011 ONSC 6451 (SCJ); Nyari v. Velasco 2008 ONCJ 272 (OCJ).

Parties Positions

21The Applicant contends that the involvement of the Society in March of 2020 created a new status-quo that effectively changed the order of Johnston J., such that the children have been in his primary care for more than two years. Further, the current parenting arrangement has been endorsed by the OCL. Thus, it should not be disturbed pending a full hearing on the merits.

22The Respondent asserts that there was no legal basis for the Society to “voluntarily” remove the children from her care and place them with the Applicant in March 2020. She was the children’s primary care giver throughout the relationship, following the separation and up until the time of their removal. The Applicant should not be allowed to benefit from the creation of a “false” status-quo. Accordingly, the children should be returned to her care pursuant to the Temporary Order of Johnston J.

Analysis

23Importantly, the parties have consented to an updated report from the OCL.

24To recall, the Respondent argues that the Applicant should not be allowed to benefit from a “false” status-quo created by the involvement of the Society in March 2020, whereby the children were removed from her care and “voluntarily” placed with the Applicant. I do not see it that way, for the following reasons.

25While I share the Respondent’s concern that the Society, never having commenced an apprehension proceeding, nonetheless altered the parenting regime under Johnston J’s Temporary Order, the change is an immutable fact that the Court cannot ignore.

26Further, once the parenting regime was altered by the Society – rightly or wrongly – the Respondent absented herself from the children’s lives, first by moving to Alberta, and then to Quebec, where she continues to reside.

27In the circumstances, I cannot find that the Applicant unilaterally created a new or “false” status-quo through manipulation or deliberate acts. Rather, the involvement of the Society triggered a material change in circumstances that altered the parenting regime the parties consented to under the Temporary Order of Johnston J. Thereafter, the Respondent unliterally decided to relocate to Alberta and then to Quebec, leaving the children in the full-time care of the Applicant for more than two years, which effectively established a new status-quo.

28At the Case Conference on May 12, 2021, the parties consented to the involvement of the OCL.

29At the conclusion of the Case Conference, the Court deliberately refused to comment on the issue of primary residence while awaiting the OCL’s decision to take up the case, or not.

30On February 24, 2022, Ms. Kapasky delivered her report in which she recommended that primary care should be granted to the Applicant, with alternating weekend parenting time to the Respondent. Ms. Kapasky further recommended equal sharing of holiday time.

31Thus, at this juncture, the Court must consider whether there is compelling evidence to show the welfare of the children would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status-quo is not in the children’s best interests pending a full hearing on the merits: Miranda, supra, para. 26.

32On the record before me, I cannot find that the evidence clearly and unequivocally establishes the status-quo is not in the children’s best interests. To the contrary, apart from the competing and untested affidavit evidence of the parties, the only objective evidence, that of Ms. Kapasky, recommends primary care be granted to the Applicant with alternating weekend parenting time to the Respondent. While the Respondent may not be happy with Ms. Kapasky’s recommendations, there is no juridical basis for the Court to reject her report.

33The respondent asserts that even if the Court finds a new status-quo took hold following the [unauthorized] intervention of the Society, the Court must go on to engage in a best interests analysis in the current circumstances. To that end, in my view, Ms. Kapasky’s report and recommendations provide a fulsome answer: the best interests of the children are served by being placed in the primary care of the Applicant while awaiting a full hearing on the merits. Again, Ms. Kapasky’s report is unopposed, at least at this interim stage of the proceedings.

34Having said that, and based on the Applicant’s concessions that the Respondent has done a great deal to address her substance abuse issues and stability, as well as significantly upgrading her employability, it is my view that the children would benefit from having additional parenting time with their mother.

Conclusions

35A Temporary Order shall issue for the following:

1. The Temporary Order of Johnston J. is hereby varied.

2. The children shall be in the primary care of the Applicant.

3. The Respondent shall have parenting time with the children three weekends out of every four, each month.

4. The parties shall equally share all holiday and vacation time with the children.

5. The parties shall be equally entitled to all information from third parties, including, but not necessarily limited to: education and healthcare.

6. There is a request for the OCL to provide an updated report, with a new clinician to be assigned.

7. The parties shall serve and file updated, sworn financial statement within 30 days.

8. If the parties cannot agree on the specifics of parenting time, they may have the matter returned before me.

9. If the parties cannot agree on the issue of costs, written submissions of no more than five pages, double spaced, 12 point font or larger, one side of the page, shall be filed within 30 days, complete with any Offers to Settle and Bills of Costs.

10. Finally, notwithstanding the expansion of the Respondent’s parenting time, the Ontario Superior Court of Justice (Family Branch) in and for Leeds Grenville is the only Court having jurisdiction to determine

The Honourable Mr. Justice B. W. Abrams