2013 ONSC 1704, 2013 ONSC 1704

CITATION : Ruffudeen-Coutts v Coutts, 2013 ONSC 1704 COURT FILE NO.: 44872-10 DATE: 2013-03-21 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Anessa Nadia Zamaludeen Ruffudeen-Coutts - Applicant (Responding Party) AND: Conrad Michel Coutts - Respondent (Moving Party) BEFORE: The Honourable Mr. Justice J. W. Sloan COUNSEL: Jodi L. Feldman - Counsel for the Respondent (Moving Party) Paul D.

Amey - Counsel for the Appellant (Responding Party) HEARD: March 19, 2013 ENDORSEMENT [ 1 ] This case has had a torturous and likely very expensive journey through the courts so far. [ 2 ] There have been at least four court orders made including a hearing at the Court of Appeal involving the “custody/access” of Ethan Michael Coutts who was born on May 15, 2009 and is now almost 4 years old. [ 3 ] The parties married on April 26, 2006 and separated on November 23, 2010.

On December 22, 2010 an order was made by Justice Lococo on an urgent basis giving interim without prejudice custody to the mother with supervised access to father. [ 4 ] The father alleges he was short served with the application and although he consented to the order he says he did not understand its implications. [ 5 ] On May 31, 2011, Justice Hambly made an order on consent for essentially “joint custody” on a week about basis. [ 6 ] The mother appealed Justice Hambly’s order to the Court of Appeal on the basis that she was under duress when she signed the consent because of comments made by Justice Hambly after he refused to endorse the parties’ first consent. [ 7 ] The Court of Appeal refused leave to appeal, but remitted the matter back to the Superior Court for a determination of whether the mother’s consent which was filed with Justice Hambly was valid. [ 8 ] Justice Leitch heard the validity of the consent issue on September 25, 2012 and rendered her judgement on December 6, 2012.

Without ascribing any blame, Justice Leitch found the consent invalid and set aside paragraphs 1-4 of Justice Hambly’s order. [ 9 ] She went on to say that on a temporary basis an order would go in terms of the parties original consent put before Justice Hambly and stated that an emergency case conference should be scheduled. [ 10 ] The original consent filed before Justice Hambly continued the order of Justice Lococo’s December 22, 2010 with respect “custody and access” so the week about joint custody came to an end. [ 11 ] It does not appear that Justice Leitch made any determination of what the best interests of Ethan were on December 6, 2012. [ 12 ] The parties have recently jointly retained Lourdes Geraldo to complete a

Section 30 assessment, but since the

Section 30 assessment has not commenced yet, the final report is likely at least three months away (almost 3 years since separation). [ 13 ] This means the earliest this matter could go to trial would be September 2013, however bearing in mind that Mr.

Amey has a fixed date for a two week trial commencing September 23, 2013, the September date is in jeopardy. [ 14 ] The next scheduled event in this matter will be a Settlement Conference on May 13, 2013 before Justice Campbell. [ 15 ] Currently both parties submit that the status quo should be maintained, however they both propose different time periods for me to use to determine the status quo.

The mother submits it should be the time period when they lived together and she did the bulk of the child care and the father submits that the status quo time period should be the time from June 2011 to December 2012 when there was week about “joint” custody. [ 16 ] The mother’s main concerns about the father seem to be the amount of time Ethan spends with his father verses his other family day care providers. More importantly from her perspective is Ethan’s behaviour before he goes to and after he returns from his father’s.

In addition she alleges Ethan uses foul language and repeats thing which are of an adult nature with respect to this litigation. (Tab 70, Paragraphs 32 & 39 of the continuing record). [ 17 ] The mother’s evidence is that she can arrange her

schedule to be home near 2 pm each day and that she has family support

when she is not there. [ 18 ] Father for his

part can arrange his

schedule to be home by 4:30 pm each day and also has sufficient family support when he is unavailable. [ 19 ] Despite the acrimony between his parents Ethan has met all of the milestones that a parent would want their child to meet and based on letters dated December 11 & 12, 2012 from the Montessori school Ethan is, from their objective assessment doing very well. (Tab 68, subtab “c”). [ 20 ] This Montessori letters cover a significant time period when Ethan was alternating his residence on a weekly basis. [ 21 ] Often in custody cases, interim orders are made to try to determine how they will work in the “real” world.

In this case we have had the equivalent of such an order for 18 months. [ 22 ] Fortunately for Ethan both parties appear to be good parents and seem to have Ethan’s best interests at heart, if only they can get on the same page. [ 23 ] On the limited material before me Ethan fared well sharing his time between both parents. The parents and the courts will soon have the assistance of Lourdes Geraldo’s input. The “playing field” should continue to remain level while Ms. Geraldo completes her report.

In the meantime I find, that it is in Ethan’s best interests to have the time he spends with each parent maximized. [ 24 ] According I make the following interim order: A. The parties shall share custody of Ethan on a week about basis with the exchange to take place Friday afternoons at 5:30 pm unless otherwise agreed upon by the parties. B. Ethan shall be with the father on the weekends commencing on the Friday March 29 for Easter, April 19 for the Ethan’s great grandparents 60 th Wedding Anniversary and June 21 for a Holy Communion celebration.

If these weekends do not fall on the father’s weekend and if the parties are unable to agree how to compensate mother for the lost time, she shall be given the next weekend which would normally be the father’s weekend such that he would pick up Ethan on Monday from Montessori or his day care at the appropriate time instead of the previous Friday. C. The mother and father shall have the right to consult with and obtain information, records, and report cards directly from the Ethan’s teachers, doctors and any other professionals involved with the Ethan about the Ethan’s health, education and general welfare. D.

The parties shall convey any necessary information about the Ethan by e-mail. This shall include information about the Ethan’s health and medications. E. Neither party shall speak negatively about the other party in the Ethan’s presence. Both parties shall also make their best efforts to prevent any other person from speaking negatively about the other party. F. Neither party shall discuss or allow others to discuss this court case or other adult issues involving the parties with the Ethan or within ear shot of Ethan and shall expressly tell their other family members and care givers not to do so. G.

The mother shall make child support payments including

section 7 expenses to the father in the amount of $478/month commencing on April 1, 2013 based on her income of $144,843/year and the fathers income of $82,973/year. The paragraph is without prejudice to either party to argue for a different amount and retroactivity of child support and for

section 7 expenses. H. I adjourn the issue of spousal support to be discussed at the settlement conference. I. Given the very unusual fact situation and that this is a “custody” dispute, I make no order as to costs. [ 25 ] Both of these parents are well educated & appear to be reasonable people with a tremendous amount to offer Ethan. Hopefully with the assistance of Ms.

Geraldo, Justice Campbell and their lawyers they can resolve this matter short of having a trial. [ 26 ] In closing, I want to remind both parties that while they are no longer spouses of one another they are and will remain for their entire lives, the mother and father of Ethan and will be the most important people in his life. As Ethan’s mother and father they deserve to be treated with the utmost respect by each other especially where Ethan is concerned. J. W. Sloan J. Date: March 21, 2013