2013 ONSC 5899, 2013 ONSC 5899

CITATION : Bargiel v. Mainville, 2013 ONSC 5899 COURT FILE NO.: 632-2011 DATE: 2013/10/04 SUPERIOR COURT OF JUSTICE - ONTARIO RE: SONIA BARGIEL, Applicant AND RAYMOND MAINVILLE, Respondent BEFORE: Kane J. COUNSEL: Sonia Bargiel, Self-Represented Jocelyne Paquette-Landry, for the Respondent HEARD at L’Orignal: September 12, 2013 ENDORSEMENT [ 1 ] In this motion, the respondent seeks an interim order that the two children, Dehlia Mainville, born July 29, 2003, and Julia Mainville, born December 16, 2005, shall live with each parent equally on a week about basis. [ 2 ] Some of the relevant historical dates involving this family are as follows:

(1) The parents started to live together in 1999;

(2) Dehlia was born July 29, 2003;

(3) The parties were married in May, 2005;

(4) Julia was born on December 16, 2005; and

(5) The parties separated in February, 2011. [ 3 ] The parties executed a separation agreement dated March 1, 2011, which provides that the parties shall have joint custody of the children with the children living alternate weeks with each parent. [ 4 ] The respondent was charged with several offences involving the applicant and her then boyfriend in January, 2012. Those charges were ultimately withdrawn based upon an undertaking by the respondent. [ 5 ] The applicant, represented by counsel, commenced the application herein in March, 2012.

In that application, this mother claims sole custody of the children. [ 6 ] The mother complained to the OPP about a telephone call from the father in May, 2012. [ 7 ] The complaint of the mother against the father to Valoris in May, 2012, was closed in June, 2012. [ 8 ] The applicant mother, with counsel, proceeded to an uncontested trial on June 22, 2012, wherein she obtained, (

a) an order setting aside the separation agreement, and (

b) a final order for sole custody of the children and limiting access to the father to every second weekend and Wednesday overnight. [ 9 ] The children spent alternate weeks with each parent for one year, from separation until the mother’s uncontested trial in June, 2012. [ 10 ] The father served a motion in September, 2012, to set aside the above final order obtained in the uncontested trial . [ 11 ] Pelletier J. in reasons dated December 18, 2012, by interim order set aside the final order of Métivier J., dated June 22, 2012, except for the provisions as to the living arrangements of the children and access by the respondent which issues were to proceed to this hearing. [ 12 ] In his reasons, Pelletier J. expressed concern with the applicant’s decision to proceed to default hearing knowing that the respondent had hired counsel who had requested consent to file a defence.

The applicant failed to advise Métivier J. of such facts.

[ 13 ] While ordering that the default judgment be set aside, Pelletier J. stated that the order respecting the children’s living arrangements was to remain in effect in order to minimize disruptions in the short-term.

The court observed that there did not appear to be any reason for the children spending less time with one parent. [ 14 ] The time between the father and the children was limited to every second weekend plus Wednesday night between September, 2012, and June, 2013. [ 15 ] The father filed his motion herein in July, 2013. [ 16 ] The mother in the May, 2012 uncontested hearing, granted the father three extended periods with his children during their 2012 summer vacation, namely, two 10-day periods and one 14-day period. [ 17 ] The mother by email dated May 3, 2013, divided the children’s 2013 summer holidays such that they spent 37 days with the father and 24 days with her. [ 18 ] This court on July 18, 2013, granted an interim order by which the 2013 summer holiday

schedule with the children spending alternate periods with each parent, would continue on a weekly basis until argument of this motion on September 12, 2013. [ 19 ] This court on September 12, 2013, on an interim basis, ordered that the children should continue to reside on alternate weeks with each parent until release of the decision herein. CHILDREN’S BEST INTERESTS [ 20 ] The applicant has a series of complaints about the respondent and his care of the children.

Specifically, the applicant alleges that the respondent is forgetful, returns the children to her without particular items of clothing or sporting wear or does not ensure that the youngest daughter returns with her Epi-Pen. [ 21 ] The applicant also complains that the respondent does not respond to her emails in a courteous manner and often adopts critical or aggressive language in his emails to her.

The applicant stresses the necessity of effective courteous communication as a pre- condition to joint custody. [ 22 ] The applicant during argument acknowledged these children should alternate weekly with each parent if the parental communication was appropriate. [ 23 ] The applicant attached to her affidavit numerous emails or text messages between herself and the respondent in support of the above allegations. In

summary, the applicant alleges that there have been numerous arguments between the parents via electronic messages which are negatively impacting the children. Accordingly, the applicant seeks sole custody and wishes to limit the time between these children and their father during the academic year to every second weekend and Wednesday night. [ 24 ] The messages attached to her affidavit clearly indicate that the applicant expects an immediate response to each of her many messages to the respondent. This is not an uncommon expectation of many communicating via email today.

This is to be compared to 15 years ago when most people communicated by telephone with a landline which often involved unanswered calls or messages left in voicemail. The heightened expectations in today’s technology should not constitute grounds to defeat a claim of joint parenting. [ 25 ] In his reply affidavit, the respondent states that he is on time in returning the children 80% of the time.

That level of timeliness is insufficient and communicates disrespect to the other person waiting. [ 26 ] Copies of the above text messages demonstrate impolite and aggressive language by the respondent towards this mother. Those inappropriate comments usually follow several text messages from the applicant instructing him to do certain things or, for example, repeatedly insisting that he confirm in writing that he will bring

article X, Y and/then Z with him upon his return of the children. [ 27 ] The applicant accepts no responsibility for the fact that she often bombards the respondent with text messages which are often offensive and insulting in tone. [ 28 ] The mother insists that the Epi-Pen is to be on the person of the youngest daughter, who is now 7 years of age, at all times. Each parent has an additional Epi-Pen at the residence. This child’s school also has an extra Epi-Pen.

The applicant argued strenuously on this motion that this daughter’s occasional arrival at home without her Epi-Pen is justification to deny interim joint custody. I disagree, given the above facts. [ 29 ] The applicant included text messages from herself involving the late arrival on occasion of one of these children with their father to the locker room in order to put on their equipment for a hockey game. This is another instance of the respondent running late. However, it is also an instance where the children are with their father.

Time during such periods is not subject to time management or directives by the applicant. [ 30 ] The respondent points to instances where the applicant did not bring one of the children to their hockey. He however raises this is a shield to the mother’s criticism, not as a reason to deny time between the children and their mother. Considering the age of these children, minor hockey should remain “minor” in deciding the issue of interim custody. [ 31 ] In argument of this motion, the applicant stated that other adults have suggested that she can be a bit “obsessive” or “anal”.

If that is true, the children are probably cared for and protected while with their mother. That approach however can be disruptive and build antagonism when dealing with other adults, like the respondent. That is exactly what has occurred based upon the text messages presented by the applicant.

[ 32 ] The applicant has repeatedly made complaints since the separation to public agencies, including police and the Children’s Aid Society. The original criminal charges were withdrawn. The original complaint to the Society resulted in a closure of their file very shortly thereafter. Police have laid no new criminal charges against the respondent.

The applicant inappropriately tells the children that she will call police unless their father follows her directives or has them returned within, for example, 10 or 15 minutes. [ 33 ] The applicant attaches correspondence from Valoris dated August 1, 2013, which is informative. It states the children are witnessing parental conflict and receiving messages from the parents to alienate them from the other parent. Meetings between representatives of that agency have occurred on these subjects with the parents and the children.

The above correspondence recites the children stating to Valoris that there have been positive improvements by the parents in these areas. [ 34 ] The applicant is inaccurate in laying exclusive blame on the respondent for the present conflict in their communications. She is equally to blame based on her excessive number of and condescending “instructions” to the respondent as well as her continuing attempts to use public officials to control, manipulate and limit the father’s time with the children.

The applicant is not to be rewarded in the form of interim sole custody for her responsibility in the present conflict between herself and the respondent. [ 35 ] The respondent can and must take measures to reduce points of conflict. Those should include waiting 15 minutes before pressing “send” of his response to messages from the mother.

He must also be polite enough to avoid being late in drop-offs and pick- ups of the children. [ 36 ] Each of these parents are still learning how to accommodate the realities as separated parents of these children, how to deal with their personal conflict such that the children are protected from it and how to respect and maintain the relationship of these children with the other parent. [ 37 ] The agitation being expressed by the applicant is to be compared to her own actions.

Notwithstanding her allegations against the respondent, the applicant for this past summer school holidays announced that the respondent would be entitled to a greater portion of the children’s summer holidays than herself. What this demonstrates is the applicant’s acknowledgment that these two young girls are being properly cared for by their father. [ 38 ] The applicant acknowledges that the respondent has a warm loving relationship with his daughters.

She is comfortable that the children spend considerable periods of time with their father during holidays. [ 39 ] Each of the parties has a loving relationship with and things to offer these girls. These children can and are benefitting from their time with each parent. Each parent is responsible for their present level of parental conflict.

The children should not effectively lose one parent beyond token access because of the current sporadic verbal outbursts. [ 40 ] Courts are directed not to change the status quo via interim orders of custody and access as the court has only limited and untested allegations and in order to prevent harm to the children before trial. [ 41 ] What however is the status quo in this case where the children lived alternate weeks with each parent during the first year pursuant to an agreement, in July and August, 2012 and 2013 and since then? What is the status quo when that

schedule only changed because the applicant proceeded to an uncontested trial without disclosing that this father had retained counsel and requested a short extension to file his defence? It is unlikely based on the agreement and the first year of alternating weeks that Métivier J. would have ordered custody to the mother and limited this father to alternate weekends had there been disclosure. The applicant is not to be rewarded for her non-disclosure to the court. [ 42 ] This court orders on an interim basis that these children shall spend alternate weeks with each parent.

That is in the best interests of these children. [ 43 ] The applicant and respondent are directed to proceed now to register and participate in a parenting course for separated parents.

Each of them needs help to increase their skill level as to how to co-parent and avoid conflict. [ 44 ] The parties are further directed to jointly engage the services of a parenting coordinator to assist them to better understand their individual personality traits and those of the other parent so as to more effectively communicate with one another, develop tools to avoid points of conflict and thereby parent these children properly. [ 45 ] Each parent is entitled to communicate with, receive full disclosure from and instruct school, health care and sports trainer officials regarding these children. [ 46 ] The children may contact the other parent with whom they are not residing during that week away.

That other parent however may not contact/communicate with the children more than twice during the seven days while the children reside with the other parent. The children are entitled to a quieter week while residing with each parent without constant and emotional contact from the parent they are not then residing with. [ 47 ] Each of the parties may make brief written submissions to this court as to costs of this motion in the event that they are unable to agree to the same. Such submissions are to be made within 30 days from the date hereof.

Kane J. Released: October 4, 2013 CITATION : Bargiel v. Mainville, 2013 ONSC 5899 ONTARIO SUPERIOR COURT OF JUSTICE RE: SONIA BARGIEL, Applicant AND RAYMOND MAINVILLE, Respondent BEFORE: Kane J. COUNSEL: Sonia Bargiel, Self-Represented Jocelyne Paquette-Landry, for the Respondent ENDORSEMENT Kane J. Released: October 4, 2013