2011 ONCJ 744, 2011 ONCJ 744

Milton Registry Nos. F505/10 & F527/10 DATE: 2011·IX·26 CITATION: T.M.J. v. M.D.J. , [2011] ONCJ 744 ONTARIO COURT OF JUSTICE RE: T.M.J. – Applicant and M.D.J. – Respondent S.R. – Respondent BEFORE: JUSTICE ROSELYN ZISMAN COUNSEL: Ryan Gibson – for the Applicant Thomas Arnold – for the Respondent S.R. – self-represented HEARD ON: 22 September 2011 E N D O R S E M E N T INTRODUCTION [ 1 ] This is a motion for temporary custody of three children namely, D.J.R. born September […], 2003, A.J. born February […], 2006 and N.L.J. born April […], 2008. [ 2 ] Mr.

M.D.J. is the biological father of N.L.J. and has acted as a parent to both D.J.R. and A.J. He seeks an order that the children remain in his custody with access to Ms. T.M.J. and Mr. S.R. on a

schedule so that each parent would have access one weekend out of three. [ 3 ] Mr. S.R. is the biological father of D.J.R. and A.J. He supports Mr. M.D.J.’s position. [ 4 ] Ms. T.M.J. is the mother of all of the children and seeks a return of the children to her care or in the alternative access on alternate weekends.

[ 5 ] When she was self-represented, Ms. T.M.J. commenced two separate custody applications and named each father as the respondent. On October 29, 2010 Ms. T.M.J. attempted to obtain an emergency ex parte order for the return of the children who were at the time in the care of Mr. M.D.J. That motion was adjourned to be on notice to Mr. M.D.J. Mr. M.D.J. filed a cross-motion for temporary custody of the children.

Both motions and custody applications have been on adjournment, as in the interim, the Children’s Aid Society, Region of Halton commenced a protection application. [ 6 ] The society is taking the position that at this time they have no protection concerns with respect to any of the parties and will withdraw its protection application upon the court making a temporary order in the Children’s Law Reform Act proceeding. [ 7 ] Mr. M.D.J. has been represented by counsel throughout and filed pleadings in both the protection application and the domestic proceedings. [ 8 ] Mr.

S.R. has not been represented and has not filed any pleadings in either the domestic or the protection proceeding despite being given several extensions to do so. At the hearing of this motion, he advised that he had obtained a Legal Aid certificate and intended to obtain counsel. He was therefore given a further extension to file his pleadings. He was content that this motion proceed. [ 9 ] Ms. T.M.J. retained her counsel shortly after the protection proceedings were commenced. Mr. Gibson advised that he had obtained a Legal Aid certificate for the protection proceedings but that Ms.

T.M.J. has been refused a certificate for representation in these proceedings on the basis that duty counsel could represent her in these proceedings. It is unreasonable to consider that a duty counsel could represent a litigant on such an important motion with such a long and complicated history. It is unreasonable to expect that a self-represented litigant could draft the necessary affidavit material in support of this motion. It is also unclear to me why Mr. S.R. would be granted a Legal Aid certificate when he is only seeking access and Ms.

T.M.J. would not be granted a certificate when she is seeking custody and alleges that she was the children’s primary caregiver. Regardless of my decision on this temporary motion, the mother should be given an opportunity to fairly present her case. There will be disclosure motions for historic records from several children’s aid societies that will have to be obtained. Again it is unreasonable to expect an unrepresented litigant to rely on duty counsel to initiate such motions. [ 10 ] Mr. Gibson prepared the mother’s materials and represented her on this motion.

It was clear from his written materials and his oral submissions that he has spent a considerable amount of time in preparation for this motion. It is unconscionable for him not to be compensated for his time and effort by Legal Aid. I would strongly urge a re-consideration by Legal Aid of the granting of a certificate to the mother for the continuation of this proceeding and that Mr. Gibson be compensated for the time he has already spent.

HISTORY OF CHILD PROTECTION PROCEEDINGS [ 11 ] On October 28, 2010 the society received a referral from the Halton Regional Police that the mother had been charged with threatening death and assaulting Mr. M.D.J. as well as mischief under $5,000.00 for damaging Mr. M.D.J.’s laptop computer.

The society also received a referral from the children’s school. [ 12 ] Upon investigating the family, the society determined that there were historical openings with another society regarding the mother who as a child had been removed from her parents’ care due to allegations that her father assaulted her and that her mother failed to protect her. Between 2004 to 2007, the mother and her partner, Mr. S.R. had been involved with another society due to concerns about drug use, neglect and domestic violence between the parents.

The children were apprehended in February 2006 but were returned to the mother on the basis that Mr. M.D.J. was a support to the mother. [ 13 ] In the protection application, the society alleged that it had significant protection concerns regarding the mother’s ability to care for the children including, the use of marijuana while caring for young children, lack of supervision, domestic violence with previous partner and perpetrator of violence with current partner and untreated mental health issues. The society sought an order placing the children in the care of Mr.

M.D.J. [ 14 ] On November 15, 2010 on a temporary without prejudice basis the children were placed with Mr. M.D.J. subject to supervision. The mother’s access was to take place in the family home and supervised by the society. As Mr. S.R. had little, if any, contact with his children, the society wished to assess his plan and meet with him before agreeing to any access. The proceeding was adjourned to December 9, 2010. [ 15 ] On December 9, 2010, the society was prepared to arrange a supervised access visit for Mr. S.R. in the home of Mr. M.D.J.

The mother’s access was expanded and on agreement was to take place under the supervision of the maternal grandmother in her home in Port Dover where the mother was now residing. [ 16 ] After a contested temporary care and custody hearing, the children continued to be placed in the care of Mr. M.D.J. subject to the supervision of the society with access to the mother every weekend from Saturday to Sunday. [ 17 ] On subsequent attendances, there was a consent finding that the children were in need of protection pursuant to sections 37 (2) (b) (ii) and 37 (2) (

g) of the Child and Family Services Act . The mother’s access was expanded but Mr. M.D.J. who had previously agreed to do half of the transportation was no longer willing or able to assist in the driving. The maternal grandmother agreed to be responsible for transporting the children. Mr. S.R.’s access was in the discretion of the society but was to be expanded to unsupervised access and to be followed by overnight access. [ 18 ] At the settlement conference on August 25, 2011, an order was made that each parent has access on one of three weekends until a further court order.

The motion for temporary custody was scheduled for September 23, 2011 as the society had indicated that it was prepared to withdraw its protection application based on the progress made by each parent and the compliance with the temporary supervision conditions.

SUMMARY OF THE RELEVANT FACTS Ms. T.M.J. and Mr. M.D.J. began a relationship in July 2006. At the time the mother was involved with the Children’s Aid Society of the County of Dufferin. The children were returned to her care in January 2007. The mother attached to her affidavit a handwritten endorsement of Justice Pugsley which indicates that one of the considerations in his decision to return the children to the care of the mother was that she had moved on and was in a relationship with Mr. M.D.J. [ 19 ] Both Ms. T.M.J. and Mr. M.D.J. allege that they were the children’s primary caregivers.

They both agree that there were marital difficulties in the relationship leading up to the incident that culminated in Ms. T.M.J. being criminally charged. However, the mother alleges that Mr. M.D.J. conspired to “manufacture” a criminal case against her and that he threatened to leave the jurisdiction with the children and take steps to ensure that she was sent to jail. Mr. M.D.J. denies these allegations and alleges that the mother is emotionally unstable and verbally and physically abusive to him.

He alleges that many of their disagreements involved her lack of involvement in the lives of the children. [ 20 ] Ms. T.M.J. also alleges that Mr. M.D.J. treats N.L.J. who is his natural daughter differently than he treats D.J.R. and A.J. An allegation that is again denied by Mr. M.D.J. who submits that he is the only father figure these boys have ever known and he has always cared for them as if they were his own sons. There is no evidence that would suggest Mr. M.D.J. has ever treated the boys any differently than N.L.J. [ 21 ] Ms.

T.M.J. has taken numerous steps to address the initial concerns of the society: 1. She has attended and completed the Haldimand-Norfolk REACH Anger Management program; 2. She has attended and completed the Haldimand-Norfolk “Beyond the Basics” parenting class; 3. On her own initiative, she enrolled and completed the COPE Parenting Program organized by Haldimand-Norfolk REACH; 4. On her own initiative, she enrolled in drug counseling with the Community Addiction and Mental Health Services of Haldimand- Norfolk with respect to her former marijuana use; and 5.

She has co-operated with the Children’s Aid Society of Halton including agreeing to submit to drug tests that have been negative. [ 22 ] Ms. T.M.J. has exercised access consistently on her weekends and exercised telephone access three times a week. There is no dispute that the children are happy to see her and enjoy their time with her. [ 23 ] Ms. T.M.J. raises several concerns about the care the children are receiving from Mr. M.D.J.

She alleges that he is neglecting their hygiene, that the children are not properly clothed, that he is not meeting their educational needs, that he frequently leaves the children alone while he is on the computer, that he uses inappropriate physical discipline and that he continues to use marijuana and test positive for high levels of use. [ 24 ] Ms. T.M.J. is currently not employed and able to be a full-time mother to the children. She proposes that the children move to Port Dover where she is currently residing with her parents. [ 25 ] Mr.

M.D.J. denies the allegations that he is neglectful or abusive or is otherwise not meeting the needs of the children. He submits that all of these allegations have been investigated by the society and that the society has not raised any concerns about his ability to care for the children. He has completed and actively participated in a “Parenting Basics” program through the Halton Children’s Aid Society. The children’s report cards that were filed as an exhibit to his affidavit do not raise any concerns.

He has fully co-operated with the society in providing drug tests and although he has not received any recent test results, the results from last spring indicate a substantial decrease in the levels of marijuana use. [ 26 ] Mr. M.D.J. acknowledges that the mother has taken positive steps in completing various courses. However, he submits that the mother has in the past taken similar courses when the children were in the society’s care and that once the children were in her care, she quickly reverted to neglecting them and herself. [ 27 ] Mr.

M.D.J. submits that the children have done well in his care and that the status quo should not be disturbed. He agrees with the mother that A.J. has struggled with anger issues but he has seen a dramatic improvement in his ability to manage his anger since the separation. [ 28 ] Mr. M.D.J. moved his residence this July to Acton. The children are enrolled in a school that is one block from his residence. There are several other families with young children in the area and parks located close by. He submits that the children have adjusted extremely well to the move. [ 29 ] Mr. M.D.J. submits that Mr.

S.R. commenced overnight access with A.J. and D.J.R. and that the access has gone well and he believes that it is in the boys’ best interests to continue to have that relationship grow. THE APPLICABLE LAW AND ANALYSIS As in any issue governing children, the test to be applied on a temporary motion is what parenting arrangement is in the best interests of a child. Section 24 (2) of the Children's Law Reform Act provides the factors a court must consider as follows: 2)(

a) the love, affection and emotional ties between the child and,

(

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (

b) the child’s views and preferences, if they can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessaries of life and any special needs of the child; (

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1,s. 3 (1); 2009, c. 11, s. 10. In considering these factors at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principleof maintaining the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny ofcross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial.

After a fullinvestigation of the facts, a trial judge may very well come to a different conclusion. [30] As stated by Justice V. Jennifer Mackinnon in Grant v. Turgeon, , 5 R.F.L. (5th) 326, [2000] O.J. No.970, 2000 Cars​well​Ont 1128 (Ont. Fam. Ct.), at paragraph [15]: …generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasonsindicative of the necessity of a change to meet the children's best interests. This is so, whether the existing arrangement is de facto or dejure: See McEachern v. MaEachern (1994), (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.); Papp v.

Papp, (ON CA), [1970] 1 O.R. 331 (C.A.). [31] The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the bestinterests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility ofyet another change because of a pending trial. (See Copeland v. Perreault, 2007 ONCJ 217, 172 A.C.W.S. (3d) 975, [2007] O.J. No.1889, 2007 Cars​well​Ont 3043 (Ont. C.J.), at paragraph [49].) [32] In this case, although there is a factual dispute as to whether the mother or Mr.

M.D.J. was the primary caregiver prior tothe recent involvement of the society in October 2010, there is no dispute that the children have been in the primary care of Mr. M.D.J.since that time. [33] Although the mother has appeared to make great gains since that time, such changes do not in and of themselves provide acompelling reason to change the status quo. It may very well have been if the mother had been in the position she is today that thechildren would have been placed in her care and not the care of Mr. M.D.J. However that is not the reality of the circumstances.

Themother is be commended for all of the steps she has taken to deal with her personal issues and regardless of the outcome of theseproceedings she will be a better parent as a result. [34] All of the evidence before the court confirms that the children are doing well in the care of Mr. M.D.J. and he is meetingall of their needs. They are settled in living with him in their new home and have started in a new school this September.

In view of themother’s gains, it is possible that she would also be able to meet the children’s needs but to move the children’s residence at this time isnot in their best interests. [35] Further, given the mother’s prior history of concerns regarding her ability to meet the needs of the children, she will haveto prove that she can sustain her current stability in the long term. There are no such concerns about Mr. M.D.J.

Since October 2010 hehas been able to provide the children with the stability and consistency they require and has demonstrated that he can meet all of theirneeds and there is no reason to question his ability to continue to meet the children’s needs pending trial. [36] The next issue to be determined is what time the children should spend with each parent bearing in mind that the governingconsideration is what is in the children’s best interests. [37] The further complication in this case is the residence of the parties. Mr. M.D.J. resides in Acton, Mr. S.R. resides inOrangeville and Ms.

T.M.J. resides in Port Dover. Ms. T.M.J. does not drive and her mother has been extremely helpful in transportingthe children for their visits. [38] The outstanding order in the child protection proceedings provides each parent with one weekend every three weeks. Inother words, the current arrangements grants the mother and Mr. S.R. equal time with the children. [39] It is troubling that Mr. S.R. has never filed any materials in these proceedings. Other than the society being satisfied thathe does not pose any protection concern to his sons, in the child protection proceeding, and the brief comment in Mr.

M.D.J.’s affidavitthat the boys enjoy their visits with Mr. S.R., I have no knowledge of his circumstances. I have no information as to why he has had very

little involvement in his sons’ lives until these proceedings. I have no information as to whether or not he took any legal steps to try to obtain access to his sons. I have no insight or information at all as to his relationship with his sons. [ 40 ] At this stage of the proceedings and based on the evidence before me, I accept Mr. Gibson’s submission that it would not be in the children’s best interests and it would be unfair and prejudicial to the mother to be granted the same amount of access as Mr. S.R.

Based on the evidence before me, I can draw the common sense conclusion that the mother had a closer bond and spent more time with the children than Mr. S.R. who apparently had little if any contact at all with the children. [ 41 ] Mr. M.D.J. and Mr. S.R. have a good relationship and should be able to negotiate some access arrangements. If not, Mr. S.R. can bring a motion for specified access. Counsel agreed that Mr. S.R.’s residence in Orangeville is only about a half hour away from Mr. M.D.J.’s residence and therefore some weekday access could be organized.

As there is already an agreement for access over the next three weeks that

schedule will be maintained and thereafter the mother will have alternate weekend access. [ 42 ] As the temporary custodial parent, it is incumbent upon Mr. M.D.J. to ensure that the mother and Mr. S.R. be made aware of all relevant information regarding the children’s medical and educational issues. [ 43 ] Temporary order as follows: 1. Mr. M.D.J. shall have custody of the children, D.J.R. born September […], 2003, A.J. born February […], 2006 and N.L.J. born April […], 2008. Mr. S.R. shall have access to D.J.R. and A.J. from after school on Friday September 30 th to Sunday evening on October 2 nd , 2011.

Thereafter, access shall be as arranged between Mr. M.D.J. and Mr. S.R. to include at least one midweek visit, not overnight, each week. This is without prejudice to Mr. S.R.’s right to bring a motion for specified access on proper notice to all parties. 2. Ms. T.M.J. shall have access to all of the children for the Thanksgiving weekend from after school on Thursday, October 6 th to Monday, October 10 th , 2011 in the evening. Thereafter, commencing on Friday, October 21 st , 2011, Ms. T.M.J. shall have access on alternate weekends from Friday after school to Sunday evenings.

Access to be extended if there is a professional development day or statutory holiday. 3. Ms. T.M.J. to have reasonable telephone access to the children on Mondays, Wednesday and Fridays at a mutually agreeable time. 4. Each party shall be able to obtain information directly from the children’s schools, doctors, dentists or any other professional involved in the care of the children. Mr. M.D.J. shall provide Mr. S.R. and Ms. T.M.J. with the contact information for these professionals and sign any necessary consents to ensure that Mr. S.R. and Ms.

T.M.J. can obtain information and reports directly from these third parties. Both Mr. S.R. and Ms. T.M.J. are to be listed as emergency contacts with the children’s school and are to be invited to attend any school meetings or functions. 5. This matter is adjourned to November 23, 2011 at 10:00 a.m. for a settlement conference. 6. A copy of this endorsement is being provided to counsel for the Children’s Aid Society, Region of Halton on consent of all parties. ___________________________ Justice Roselyn Zisman DATE: 26 September 2011