Court File and Parties

COURT FILE NO.: FS-23-46373 DATE: 2023-09-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.M., Applicant AND: T.Q., Respondent

BEFORE: Coats J.

COUNSEL: John G. Cox and Alex Ogilvie, for the Applicant Brigitte Barsalou, for the Respondent

HEARD: August 30 & 31, 2023

Endorsement

[1] The Applicant’s motion was argued before me on August 31, 2023. It had come before me on August 30, 2023 as an urgent motion, with no case conference yet held. On August 30, 2023 Chang J. conducted a conference and when the matter was not settled on an interim basis, it came back before me on August 31, 2023.

[2] The applicant seeks 16 heads of relief in her motion, the significant claims being:

1. Exclusive possession of the matrimonial home;
2. That the two children, one aged 8, about to turn 9, and one aged 3 and ¾ years, primarily reside with her and that she have sole decision making; and
3. That the Respondent’s parenting time with the children be restricted to supervised parenting time, with supervision to be provided by a supervision service in the community.

Overview

[3] This motion is occurring at the very early stage of this proceeding and very soon after the parties’ separation. The Affidavit material is highly conflicting. None of the evidence has been tested by questioning.

Basic Facts

[4] The Applicant is 35 years of age and a family physician. The Respondent is 40 years of age and is a financial planner.

[5] The parties married on May 12, 2012. On July 5, 2023, the Respondent instructed his previous counsel to write to the Applicant to begin the separation process.

[6] The parties have two children, J.Q, about to turn nine years of age and A.Q. who will be four years of age in December, 2023.

Allegations

[7] Both parties make serious allegations about the other and in particular about the parenting of the other.

[8] The Applicant alleges that the Respondent injured the oldest child on May 25, 2023 and attaches a picture of the child’s mouth. The Applicant alleges that the Respondent has been reported to the CAS twice. The Applicant states that the Respondent stabbed a pillow with a knife near her head in 2013. She alleges that the Respondent is verbally and emotionally abusive and physically aggressive toward her; that he is controlling and jealous. She also claims that he is verbally abusive toward the children and physically abusive to the oldest child. She references that in 2015 the Respondent was charged with assaulting a third party. The Applicant alleges that the Respondent physically assaulted her when she was pregnant. The Respondent injured his hand in 2016, punching a wall. There are other details and I have just provided an overview.

[9] In the Respondent’s Affidavit, he denies almost all of the allegations. For example, he indicates that the assault charge was dropped and that there was a peace bond. He states that the CAS were involved once and that the case was closed when it was clear he had done nothing to endanger the child. He denies assaulting the Applicant or the children and being verbally abusive/emotionally abusive. He alleges that the Applicant is making up these allegations to create a false narrative in order to sever his relationship with the children. He denies hurting his hand by punching a wall. The Respondent alleges that the Applicant is verbally abusive.

[10] The parties’ Affidavits contain highly conflicting, untested, evidence, regarding the other’s role in the parenting of the children.

[11] There are no CAS records before the Court. There are no police records before the Court. The person who is alleged to have witnessed the Respondent injure the oldest child in May, 2023 did not file an affidavit for either party.

[12] The Applicant filed a supporting Affidavit from her mother, which the Respondent alleges is not impartial.

[13] The Respondent filed a supporting Affidavit from a friend, and the Applicant alleges that the friend did not know the children well enough to make the observations that he did about the Respondent’s parenting.

Approach

[14] The court should take a cautious approach to making credibility findings on a significant matter in dispute, where the record contains only the competing affidavits of the parties (Ierullo v. Ierullo, [2006] O.J. No. 3912, at para. 18 (Ont.C.A.)). This statement describes the circumstances of this motion. Each party alleges that the affidavit of the other party’s collateral witness should not be relied upon, either based on partiality or lack of time spent with the family. The result is that the Court has before it only highly conflicting, untested affidavits. The cautious approach mandated in Ierullo is also necessary because the Court lacks all the material it requires – no CAS file, no police records, and no affidavit from the person alleged to have witnessed the Respondent hurt the oldest child.

Assessment

[15] On August 31, 2023, given this highly conflicting evidence and the seriousness of the allegations, I suggested that they begin a section 30 assessment forthwith, to be done by a psychiatrist or psychologist. The parties agreed and I so order.

Nesting

[16] The parties have agreed that the time that each parent spends with the children will take place in the matrimonial home and that the other parent will be absent and stay elsewhere. It is in the children’s best interests that the children have the stability of remaining in the matrimonial home at this time and I therefore order same on a temporary-temporary basis. Each parent can stay with family when not exercising parenting time. Given the conflicting evidence, this order and the other parenting orders are temporary-temporary only and without prejudice.

Terms Governing Parenting

[17] The parties agree to the following terms, and I so order these terms on a temporary-temporary basis as the terms are in the children’s best interests:

1. The parties shall use a parenting app for all communications regarding the children and shall not communicate using any other method, save and except that they may text or telephone each other only in the event of a medical emergency involving the party or the children.
2. Neither parent shall physically discipline the children.
3. Neither parent shall speak to the children negatively about the other party or the other party’s family.

Parenting time

[18] The Applicant is proposing that the Respondent spend the following time with the children, in the matrimonial home, with the children’s nanny present:

1. Each Wednesday evening for three hours.
2. One weekend from Friday afternoon to Sunday at 4:00 p.m.
3. The other weekend on Saturday from 8:30 a.m. to 1:30 p.m.

[19] The Respondent is proposing that the parties have equal parenting time on a 2/2/5/5 schedule, with the party parenting the children to be in the matrimonial home, with no requirement for the nanny to be present, such schedule to be:

1. With the Applicant Monday and Tuesday.
2. With the Respondent Wednesday and Thursday.
3. Alternating weekends from Friday to Monday morning with each parent.

[20] To be clear, the plan that I am ordering is on a temporary, temporary without prejudice basis, for the reasons set out above.

[21] The sole test for my parenting determination is the best interests of the children. There is conflicting evidence of the prior parenting schedule before separation and as to the involvement of each party in pre-separation parenting. There is conflicting evidence as to the bond between the children and each parent.

[22] The allegations of abuse are serious yet denied. The issue of family violence will be considered by the assessor, together with all other factors related to the children’s best interests. The assessor for example may have the child’s perspective on what occurred in May of 2023. The assessor may speak to the alleged witness. The assessor will have CAS and police records.

[23] There are two particular allegations that are concerning and for which there is independent evidence. The Applicant alleges that the Respondent injured his hand in 2016 when he punched a wall. The Respondent says something fell on his hand in the garage. The medical records the Applicant provided support her evidence that the Respondent punched the wall. That is the narrative that he provided to the attending physician. The Applicant alleges that the Respondent speaks in derogatory terms to her regarding the youngest child. The email dated June 30, 2023 from the Respondent to the Applicant supports this. I have taken this into consideration in ordering the parenting plan.

[24] In regard to the injury to the oldest child in May of 2023, the Applicant was not present. From the picture she provided it is hard to see the injury that the Applicant describes. I cannot see a cut lip or swelling. This may be the quality of the picture. I make no conclusions, as more information is needed, as outlined above.

[25] I have considered s.16 of the Divorce Act and the children’s best interests. The highly conflicting, untested, evidence prevents me from making credibility findings, save and except in regard to the two areas set out above. The parenting plan I have ordered has both parents sharing time with the children while the assessment is in progress, provides a predictable schedule for the children, and permits both parents to be involved in all aspects of the children’s lives.

[26] I am in no way minimizing the issue of family violence in this family and the allegations that each has made. The highly conflicting evidence, untested by questioning, makes it difficult for the Court to make findings of fact beyond the allegations that are supported by objective and independent evidence.

[27] Regarding the Respondent punching the wall in 2016, while the evidence is somewhat dated, it does reflect concern with the Respondent’s anger management. Significantly, it raises a significant concern with the Respondent’s candor as his version of events differs from the medical record based on his contemporaneous statement.

[28] Regarding the text that the Respondent sent the Applicant about their three-year old daughter, it is inappropriate and unacceptable in referencing the child in a lewd and sexualized manner.

[29] To address the latter concern, I order that the Respondent refrain from sending any communication about or speaking about their daughter in a manner that refers to or deals with her appearance, or the way she is dressed or that describes her in any sexualized manner.

[30] To further address these concerns, I am ordering that the children’s nanny be present when the Respondent shares time with the children, pending further order of the court. This is not a requirement for supervision. It is a requirement that the nanny’s hours be adjusted so that she is present in the matrimonial home during the Respondent’s parenting time. I accept the Applicant’s proposal in this regard.

[31] I do not find that either party’s proposed schedule meets the best interests of the children on an temporary-temporary basis.

[32] I order instead that the Respondent share time with the children as follows:

1. Every Wednesday from after school to Thursday morning before school.
2. In week one, from Friday after school until Monday before school.
3. In week two, on Saturday from 8:30 a.m. to 1:30 p.m.

[33] This schedule is predictable and does not have the children going a long period of time without seeing either parent. The pick-ups and drop-offs can be at the children’s school to reduce conflict. The other party can vacate the matrimonial home well in advance of the other party’s parenting time with the children.

[34] Lastly, I order that this temporary-temporary order can be reviewed by either party upon receipt of the assessment report (interim or final). To this end, counsel may arrange a virtual attendance before me to timetable any such review.

Decision-Making

[35] Each party shall make the day-to-day decisions regarding the children, when the children are in his or her care. I decline to make any other decision-making determination because I am unable to determine same given the highly conflicting evidence. Further, neither party has suggested that there are any imminent decisions to be made in regard to the children.

Activities

[36] It shall be the responsibility of the parent charged with caring for the children at the time to take them to their scheduled activities. The other parent may attend as a spectator and shall respect that the primary parenting role is with the parent the children are scheduled to be with at the time.

Conclusion

[37] In conclusion I order as following on an temporary-temporary basis:

1. An assessment under Section 30 of the Children’s Law Reform Act, shall be conducted by a psychologist or psychiatrist. The assessment shall be paid for equally by the parties, subject to reappointment by the Court. If the parties are unable to agree on an assessor, they shall book a half hour virtual attendance before me, wherein I will select the assessor. I will require from each party the C.V. of their proposed assessor, the assessor’s availability and the assessor’s fee estimate.
2. Neither party shall have exclusive possession of the matrimonial home. Each parent shall be entitled to spend her/his parenting time with the children in the home, in the absence of the other parent.
3. The parties shall use a parenting app for all communications regarding the children and shall not communicate using any other method, save and except that they may text or telephone each other only in the event of a medical emergency involving the party or the children.
4. Neither parent shall physically discipline the children.
5. Neither parent shall speak to the children negatively about the other party or the other party’s family.
6. Neither parent shall speak to the children about this court proceeding or the conflict between the parties.
7. The Respondent shall refrain from sending any communications about or speaking about their daughter in a manner which refers to or deals with her appearance or the way she is dressed or describes her in a sexualized manner.
8. The children shall spend the following parenting time with the Respondent and the remainder of the time with the Applicant: a. Every Wednesday from after school to Thursday morning before school. b. In week one, from Friday after school until Monday before school. c. In week two, on Saturday from 8:30 a.m. to 1:30 p.m.
9. The children’s nanny shall be present during the Respondent’s parenting time, until further order of this court.
10. This order may be reviewed, without proof of material change in circumstances, after the receipt of the assessment report (interim or final). Counsel may arrange a virtual attendance before me, through the trial office, to timetable any such review.
11. Once counsel know when the assessment report will be completed, they can arrange a settlement conference before me, through the trial office.

Costs

[38] I encourage the parties to resolve the issue of costs. If they are unable to do so, each party claiming costs shall serve and file brief written submissions as to costs, limited to two pages (double-spaced with regular font and margins), with a bill of costs attached, to be served and filed within 30 days of today.

[39] The responding party shall serve and file brief written responding submissions as to costs, limited to two pages (double-spaced with regular font and margins), to be served and filed within 60 days of today.

[40] If both parties claim costs, each party shall be entitled to the two pages as set out in para. 38 above for their claim and two pages set out in para. 39 to respond to the other party’s claim, within the same timelines above. There shall be no right of reply.

Coats J. Date: September 15, 2023