Court File and Parties
COURT FILE NO.: FC713/19
DATE: December 11, 2023
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Laura Beth Wallace, now deceased, and Bradley Dean Martin, Applicant
AND:
David John Wallace, Respondent
BEFORE: HENDERSON J.
COUNSEL: Karen King, for the Applicant
Trent Zimmerman, for the Respondent
HEARD: November 24, 2023
ENDORSEMENT
[1] There are four children who are the subject of these proceedings, twins aged 9, 7 and 5. On August 8, 2023, their mother died of breast cancer. That event triggered motions by the children’s stepfather and their biological father to have the children placed in their respective care.
[2] The proceedings have been lengthy, but the material events may be summarized as follows:
The parties were married July 7, 2012 and separated May 4, 2019. They were divorced April 20, 2022.
At the time of separation, the parties were living in Niagara Falls, Ontario. Without apparent prior notice, the applicant/mother moved to Mount Brydges, Ontario to live with her parents.
On June 21, 2019, she commenced this application in London, Ontario. The respondent/father commenced similar proceedings in Welland, Ontario on September 12, 2019.
By order dated October 31, 2019, Mitrow, J. ordered the applicant’s proceedings to continue in London and dismissed the proceedings in Welland.
By order dated July 31, 2020, Tobin, J. ordered parenting time for the respondent on alternate weekends and twice a week Skype visits.
By order dated September 24, 2021, Korpan, J. ordered the respondent to pay child support in the amount of $2,168.00 per month.
In March 2021, the applicant met Bradley Martin and they married on July 6, 2022. Mr. Martin moved into the home shortly before the wedding.
In March 2023, the applicant with Mr. Martin and the children move to Stratford from Mount Brydges to be closer to his work. The children are enrolled in school there.
Shortly after the move, the applicant’s health began to decline. She seems to have been battling cancer for some time. In the OCL report dated February 25, 2022, the clinical investigator noted that the applicant’s doctor had confirmed the cancer diagnosis but that at that time she was responding favourably to treatment.
On August 8, 2023, the applicant died.
On August 18, 2023, the respondent picked the children up for his weekend parenting time. On August 20, 2023, the respondent sent an email telling Mr. Martin and the maternal grandparents not to come to get the children as they were going to stay with him in Niagara Falls.
On August 23, 2023, Hassan, J. heard an urgent motion brought by Mr. Martin. She added Mr. Martin as a party and ordered the children returned to his care pending the return of the motion for argument on full material.
Discussion
[3] It is conceded that my decision is to be made in the children’s best interests. As the parties are divorced, s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), applies. Before I consider s. 16, I must address the relevance of the parenting status quo.
[4] The relief sought by the respondent seeks to vary the order of Tobin, J. Both parties acknowledge that the jurisprudence strongly supports maintaining the parenting status quo pending trial. Indeed, the threshold to vary a temporary order is very high and best summarized by Mitrow, J. in Miranda v. Miranda, 2013 ONSC 4704, at para. 26:
[26] A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
[5] Counsel for Mr. Martin submits that the order of Tobin, J. and the facts on the ground establish a status quo with the children in the primary care of the applicant has been established at least since June 2019 when the parties separated. She pressed me to accept that the respondent has not met the threshold described by Mitrow, J. to vary the status quo.
[6] In response, the respondent argued that there was no status quo because of the “deception, the systematic failure to disclose and continued refusal to comply with orders” by the applicant and Mr. Martin (respondent’s factum, para. 31). In the alternative, if there was a status quo, then the applicant’s death constitutes a material change requiring a review of the parenting order.
[7] In my view, to the extent there was a parenting arrangement that the parties complied with (more or less) since at least the order of Tobin, J. up to the applicant’s death, there was a status quo. Over the past four years, from the children’s perspective, which I believe to be the primary consideration, they have lived with their mother and following the order of Tobin, J. saw their father on alternate weekends and during Skype time.
[8] That said, I can only conclude that the death of the children’s mother, who as a fact was their primary caregiver at least since separation, would constitute a material change in circumstance requiring a reconsideration of the parenting arrangement.
[9] Circling back to then to the beginning of my analysis, any new parenting order must be based only on the best interests of the children (s. 16(1)). As I observed during the motions, the children’s interests are to be distinguished from the interests of the respondent, the paternal grandparents or the maternal grandparents.
[10] Section 16(2) of the Divorce Act mandates the court to give primary consideration to the children’s “physical, emotional and psychological safety, security and well-being.” Section 16(3) provides a list of 11 factors the court is to consider which is followed by s. 16(4) which includes specific factors relating to family violence as defined in the Divorce Act. Finally, s. 16(6) sets out the principles of maximum parenting time with both parents where it is consistent with the best interests of the children.
[11] The respondent argues he is best suited to parent the children for the following reasons:
He is their biological father.
He has been with the children since their birth, a bond that has never been broken.
The applicant wrongfully removed the children from Niagara Falls.
He has moved in with his parents and the children are familiar with the home and the community.
He has submitted a detailed parenting plan that include schooling, medical care, extracurricular activities and supports from extended family.
The applicant and Mr. Martin were unwilling to support the development and maintenance of the children’s relationship with their father. They denied increased parenting time, denied Skype time, failed to disclose particulars of the applicant’s declining health and her ability to parent the children and generally failed to cooperatively co-parent.
He voluntarily took two parenting courses.
He is an elementary school teacher and has lots of experience teaching children with different levels of ability.
Mr. Martin has no children of his own and has little experience caring for the children.
[12] For the following reasons, I am ordering that the children remain in the care of Mr. Martin who shall have decision-making responsibility.
[13] Since at least March these children have watched their mother’s health decline and die. They are grieving that loss. To assist them in their grief they are receiving counselling. They also have the support of Mr. Martin and of their maternal grandparents who have played an integral role in their lives since they left Niagara Falls.
[14] The children lived with their maternal grandparents for a year following the move to Mount Brydges. Their support continued when they moved into their own home in Mount Brydges. As recently as this summer, the children spent time with their grandparents at the cottage. In September 2023, the maternal grandparents moved to Stratford to support Mr. Martin. The maternal grandmother provides before and after school care. Mr. Martin tends to their needs after work in the evenings and on the weekends. He says in his affidavit sworn September 26, 2023 that “I am quite close to Laura’s parents and it is not uncommon for them to drop by to see the children on weekends and evenings.”
[15] I find that it is the children’s best interests that at this time they remain in the familiar supportive environment provided by Mr. Martin and their maternal grandparents while they work through their grief and sense of loss.
[16] My order also reflects the concerns I have regarding the lack of child focussed care by the respondent. The most appalling example of the respondent’s lack of sensitivity occurred when he withheld the children during his first parenting time with them following the applicant’s death. He unilaterally, without consultation or discussion and in contravention of a court order, resorted to self help and advised Mr. Martin not to bother picking the children up at the end of the weekend. The respondent’s focus was solely on his interests, his perceived entitlement.
[17] When Hassan, J. on August 23, 2023 ordered the return of the children to Mr. Martin’s care she put it best when she observed:
These children have suffered an unimaginable loss. They are surrounded by family who are grieving with them and supporting them. To so abruptly remove them from their home and their entire support system is contrary to their interests and a form of further trauma.
[18] When reading the respondent’s affidavits filed in these motions (one 86 pages and one 46 pages, well exceeding the mandated page limits), two themes dominate: first, that the applicant wrongfully removed the children from Niagara Falls (despite the order of Mitrow, J. holding otherwise); and second, that he is their biological father and is therefore entitled to their care.
[19] His affidavits are peppered with his sense of grievance:
“I admit to being emotionally distraught and overwhelmed by the wrongful and uncivil conduct of Laura Wallace (deceased) from the beginning of the litigation June 21, 2019 to her recent death August 8, 2023 or 1,509 days” (respondent’s affidavit dated September 29, 2023, para. 12).
“I experience feelings of frustration and loss of control now also witnessing Merv Riddell LLB and Thelma Riddell (the maternal grandparents), after they actively supported a judicially found self help and wrongful move by Laura Wallace (deceased) at our separation. I now witness them continue to actively participate in what they allegedly state is “only supporting” the care of the 4 young children while doing so moving their longstanding primary residence to Stratford near Brad Martin” (respondent’s affidavit dated September 29, 2023, para. 13).
“I am appalled, offended and emotionally overwhelmed by the hurtful conduct of the now deceased Laura Wallace (aka Martin) towards our children since May 2019 to her death. She first acted wrongly by secretly and in a deceitful manner towards me and our children to inappropriately re-locate them to Mt. Brydges to reside with her parents doing so without legal justification with the active participation of her father, Merv Riddell, a lawyer, and Thelma Riddell. Ms. Wallace (now deceased) has denigrated, maligned, and made unfounded untruthful highly prejudicial statements of me in her repeated unsuccessful attempts to cut-off our children from their rights to a father-child relationship” (respondent’s affidavit dated September 1, 2023, para. 13).
[20] The respondent measures his grievances with an array of statistics:
1665 days since the children were “wrongfully” removed from Niagara Falls, as I was informed by the respondent’s counsel in his opening submission.
310 days as of September 12, 2023 since the applicant and Mr. Martin married and since, according to Mr. Martin, they primarily shared parenting the children, “to which the respondent did not consent”.
31 of 306 Skype calls or 10.1% of the time during which all four children participated during the court ordered Skype time with the respondent. In addition, the children did not stay on the phone for the ordered time (although none was specified by Tobin, J.) In this respect, the respondent complains that the applicant was non-compliant. The respondent has attached to his affidavit sworn October 6, 2023 a chart showing calls from August 1, 2020 until September 2023 and the number of children present for each call.
17,103 minutes Skype time and 6,403.25 hours in person, the amount of contact the respondent has had with the children from May 18, 2019 to October 5, 2023.
37, the charted requests the respondent made to the applicant for more parenting time and the nature of the applicant’s response, if any.
[21] Some might argue that keeping such detailed records is a prudent litigation strategy. Better to have hard evidence than not. Unfortunately, in the present case, the exercise has focussed the respondent’s attention to his perceived loss and distracted him from pursuing the children’s best interests. It’s all about him. The focus is entirely on his own sense of loss and deprivation. At no time since his urgent motion did he bring a motion for more parenting time or to address his other grievances.
[22] The other theme of the respondent’s material is that he is their biological father and has been with these children since their birth. As such, he us entitled to their care.
[23] In a determination of a child’s best interests, the jurisprudence has consistently viewed the biological connection as but one factor. In a recent case, M.R. v K.M, 2023 ONSC 1729, Fitzpatrick, J. cited the summary of the legal principles by Woodley, J. in R.A. v. D.P, 2017 ONSC 4622, at. para. 15:
[15] In R.A. v. D.P. 2017 ONSC 4622, Woodley J., summarized the legal principles for determining custody between biological and non-biological parties at paras. 33 and 34:
Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman, 2001 24015 (ONCA); Parkins v. Parkins, 2006 24450 (ONSC); Giansante v. Di Chiara, 2005 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020; Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).
Although a child's relationship by blood is a relevant consideration - there is no "parental right" to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61, [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).
[24] In weighing the competing claims of the respondent and Mr. Martin, I have considered the following points:
The respondent has been consistent with his parenting time as ordered to the extent it was permitted.
In the OCL report filed, the clinical investigator observed a positive interaction between the respondent and the children with some indication that the children wanted more time with him. I refer to the report acknowledging the caution by the respondent’s counsel that I should not consider the report without cross-examination of the clinical investigator. I also am cognizant of the respondent’s Dispute filed in respect of the factual underpinnings of the report. I did not see the Dispute as it has not been filed but the OCL did file its response, standing by the report. The writer added:
It is unfortunate that a majority of Mr. Wallace’s dispute focuses on attacking Ms. Bobyk-Krumins (the clinical investigator) personally and professionally, making numerous salacious and unfounded claims against her overall conduct and integrity.
Despite Counsel’s caution and the respondent’s own view of the report, I feel nevertheless obliged to point out neutral third-party observations that favour the respondent when considering the children's best interests.
I also recognize that the relationship between the children and Mr. Martin is of relatively short duration. I do accept that he became more involved in the children’s care with the applicant’s declining health. I have already noted the significant support the maternal grandparents have provided to the children since at least the separation. The prevailing consideration at this time is stability for the children.
I have concerns that the respondent would not support the development and maintenance of the children’s relationship with Mr. Martin and the maternal grandparents. While his position has changed by the return of the motion, the respondent was offering a few minutes parenting time each week at the return of the urgent motion. He took great exception to the children spending a week at a cottage with their grandparents in July. In his affidavit sworn September 12, 2023 he complains that neither Mr. Martin nor the maternal grandparents informed him that they were taking the children away from Stratford. It is unclear what the nature of his complaint is because he does say he became aware of the event from the children 17 days before. It did not impinge on his time with the children. This type of complaint only underscores the respondent’s acute sense of personal grievance. A more child focused parent would have applauded the opportunity of the children to be removed from the gloom of their mother’s pending death. In the respondent’s eyes, it is but another slight by Mr. Martin and the grandparents which leads me to wonder how the respondent would encourage a relationship between them and the children.
[25] For these reasons, I find that it is in the children’s best interest that the children remain in the primary care of Mr. Martin and that he shall have sole decision-making responsibility. The respondent shall be consulted with respect to major decisions relating to the children’s health, education and general well-being. In the event of a dispute between the respondent and Mr. Martin, the views of Mr. Martin shall prevail. The respondent shall be entitled to make inquiries and be given information about the children’s well-being, including health and education.
[26] With respect to parenting time, I agree with the respondent that he should have more time with the children. In my view, that is in their best interests and is consistent with their views as expressed to the OCL. In my view, the only reason they have not spent more time with their father is because of his own inaction. He allowed his frustration with the applicant’s apparent refusal to expand parenting time to fester to the point he was paralyzed from taking constructive steps to address the issue. I do not accept the respondent’s argument that he could not afford to pursue the matter. He has had an excellent income from teaching and was living alone in an apartment. The parenting time he had was obtained on an urgent motion basis. The order made was to deal with the urgent issue. There is nothing in the order of Tobin, J. that would have prevented a request for more parenting time and in my mind the respondent would have obtained more if he had pressed, especially with the easing of the pandemic crisis.
[27] The respondent shall have parenting time as follows:
According to paragraphs 1(c), 2(a) and (b) and 3 (changing the reference to “mother” to Bradley Martin) of the order of Tobin, J. dated July 31, 2020.
For Christmas 2023, the children shall be in the care of the respondent from December 26, 2023 at 10:00 a.m. until December 30, 2023 at 5:00 p.m.
In even numbered years, the children shall be in the care of the respondent during March Break. In odd numbered years, the children shall be in the care of Mr. Martin.
The children shall be in the care of the respondent during their summer vacation period for one week in July and one week in August, not to include the week before school recommences in September, as may be arranged between the parties.
In addition to these terms, I add the following:
a. Neither party shall, nor permit anyone else to, discuss with the children any issue pertaining to these proceedings and in particular, where the children may ultimately reside. Breach of these terms may provide grounds to have this order reviewed.
b. The OCL shall be requested to provide an update to their report of February 25, 2022, ideally with the same clinical investigator. An adverse inference may be taken in the event that a party does not cooperate with the investigation.
c. The child support order of Korpan, J. dated September 29, 2021, shall continue retroactive to August 8, 2023 but amended such that the child support shall be payable to Bradley Martin, as support recipient.
d. The parties shall communicate with each other using a parenting app such as Talking Parents. All communications shall be child focused and respectful.
e. Bradley Martin shall not smoke in the house or his vehicle or otherwise in the presence of the children.
I am not inclined at this time to make an order for police assistance. I expect the parties to abide by the terms of the order, with the children being the foremost consideration.
Within 15 days, Mr. Martin may make written submissions regarding costs. The respondent shall have 15 days to respond. Submissions shall not exceed three pages not including offers to settle and Bills of Costs.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: December 11, 2023