On a motion regarding interim custody, the court admitted tape recordings made surreptitiously by the father of the interactions with the mother. The court decided that the ends of justice require the tapes admission. The recordings seriously undermined the mother’s credibility. Her affidavit evidence painted the father as an abusive individual whose excessive consumption of alcohol rendered him unpredictable and a serious threat to her and the children. The father admitted excessive alcohol consumption during the period after separation, but denied the allegations of abuse. The recordings revealed that the mother consumed alcohol to excess and was also physically and verbally abusive to the father in front of the children. The court emphasized that the recordings importance lay not in showing that the mother was a bad person, but rather in undermining the apparent reliability of her affidavit material on this temporary motion:

CITATION: Basley v. Basley, 2016 ONSC 5877
COURT FILE NO.: FD311/16
DATE: October 6, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: (MICHAEL) BRETT BASLEY, applicant
AND:
AMY BASLEY, respondent

BEFORE: VOGELSANG J.
COUNSEL: Erin L. Reid and Alice Van Deven for the applicant
Sharon E. Hassan for the respondent

HEARD: August 4, 17, 25 and September 8 of 2016

ENDORSEMENT

[1] The parties in this interim custody dispute began dating before they were 18 years of age. They started to live together in early 1998, marrying in July, 2002. They have two children: Owen Tyler Basley and Paige Megan Basley, now ten and nine years of age respectively. The parties separated March 1, 2014. Since then they have managed to create a most unusual residential situation, aptly described during submissions as a “pressure cooker” or “powder keg”, leading to predictable conflict which has affected the parents and the children.

[2] Mr. Basley applied for a divorce on March 14, 2016. At the time he was still living – although separate and apart from Ms. Basley – in the jointly-owned matrimonial home on Egerton Street in Strathroy, Ontario. His claims included the sale of the home – which has since occurred – and the determination of child support. Since Mr. Basley also sought “shared joint custody” or, in the alternative, sole custody of the children, counsel agreed that the support determination should await the resolution of the imminent custody issues.

[3] The original motion advanced by Mr. Basley sought a week-about – alternatively a three day turnaround – residential schedule for the children with each parent, but also suggested the possibility of a “nesting order” which would allow the children to remain in their accustomed residence with alternating care provided by each parent. That motion was withdrawn before the case conference, from Mr. Basley’s perspective because of a threat of an adverse costs determination and the fact that the parties’ solicitors were then engaged in discussing a possible “nesting” order.

[4] Ms. Basley’s responding motion of July 26, 2016 asks for a temporary order granting her sole custody of the children with Mr. Basley having alternating weekend and some midweek access. Mr. Basley’s second motion, as well before me, is dated July 29, 2016 and seeks, again, an equal sharing of parenting time.

FACTUAL BACKGROUND

[5] The inability of the parties to disentangle themselves for the better part of two years after separation, even though each had found a new partner, made this a high-conflict separation which featured unfortunate incidents of domestic violence and allegations of abuse levelled against both the father and the mother.

[6] Some months before the separation, Ms. Basley told Mr. Basley that she did not love him. She had found another man, Tony Viveiros, although she at first maintained he was only a friend. The marriage struggled on until Mr. Basley, frustrated with his wife incorporating Mr. Viveiros into her life (and that of the children) and flaunting her new relationship, obtained new locks and keys for the home on March 1, 2014. In his words in his March 14, 2016 affidavit:

20 … I was tired of the Respondent coming home in the middle of the night or really early in the morning, just before the children got up, when she would crawl into bed with me after spending the night with Tony. I could not stand this routine any longer and I did not know what else to do.

[7] When Ms. Basley came home, there was a physical fight over the new house keys. Ms. Basley’s thumb was sprained and Mr. Basley was charged with assault. Ms. Basley later apologized to him in a note and expressed sorrow that she had hurt him physically too. As part of a diversion procedure, Mr. Basley undertook and completed the Changing Ways programme. The assault charge was disposed of by his entry into a recognizance to keep the peace.

[8] In his affidavits, Mr. Basley recounts at length his efforts to maintain contact with the children through the week and on alternate weekends after he had to remove himself to his parents’ home in Fullarton, about 30 minutes away from Strathroy. His efforts, through counsel, to put in place a “nesting arrangement” were rebuffed. When Ms. Basley contacted him and urged him not to commence a court action, a very short-lived attempt at marriage counselling with a hope of reconciliation followed; however, Ms. Basley decided she could not abandon Mr. Viveiros.

[9] Mr. Basley, unfortunately, was charged with an “80 mgm” driving offence in April, 2015. His licence was suspended immediately. He was able to stay in the matrimonial home with the children while Ms. Basley was out of town undertaking work-related training for one week. After returning to his parents’ home in Fullarton, the real difficulties of getting back and forth to his work near Strathroy became apparent. Ms. Basley was able to agree that he would return to the matrimonial home although he would sleep in the basement and they would continue separate and apart. She gave him back a key and they continued that residence, in his words “sharing care of the children” until June 22, 2016 only one week before Mr. Basley’s shared parenting motion. It was on that date that Mr. Basley was charged again and left the home.

[10] There are conflicts in the affidavit evidence. That should be expected in a custody dispute as intense as this. Each party obviously minimizes his or her negative conduct but manages to emphasize the failings of the other. Also at play is the unfortunately human tendency for a party to remember very emotional and highly charged circumstances in a light somewhat favourable to himself or herself. In assessing the reliability of the sworn statements before me, I agree with the remarks of Leach J. in Bell v. Ferguson, 2015 ONSC 7267 (CanLII), 2015 ONSC 7267 (Sup. Ct.) when he said:

12 Before turning to an overall assessment of what may currently be in Bella’s best interests, (with a particular focus on what currently might be best for her in terms of custody, residence and access issues, along with corresponding child support obligations or lack thereof), I pause to acknowledge the inherently imperfect nature of making such determinations in a context such as this, where the available evidence is confined to paper affidavits that contain allegations and denials, and perceptions and positions that are entirely contradictory.

13 I do not have the benefit of any cross-examination on affidavit material, let alone the opportunity to assess the credibility and reliability of witnesses that comes in the context of a trial.

14 Nor do I have the benefit of the more objective views of witnesses who are not expressly or implicitly aligned with one party or the other. In particular, I do not have the sort of objective insight frequently offered by the Office of the Children’s Lawyer, which would be extremely helpful in this case.

[11] The progress of the hearing was lengthened by the need to decide the admissibility of surreptitiously recorded statements.

[12] I heard a full day of argument concerning audio recordings made by Mr. Basley relating to the conduct of Ms. Basley and statements made by her on December 24, 2015 and March 6, 2016. In the end, I decided that the ends of justice required that the recordings be played in the motion court. That took place shortly thereafter, including the playing, without a picture, of a later cellphone video recording by Ms. Basley of events on June 22, 2016 when Mr. Basley threw a baseball glove which apparently struck her in the head, leading to the charge of assault with a weapon which resulted in his ultimate removal from the matrimonial home.

[13] When the recordings by Mr. Basley were played, a new light appeared and made the assessment of the comparative reliability of the parties’ affidavit evidence somewhat easier. The material supporting Mr. Basley’s first motion had been relatively uncritical of Ms. Basley. That was not the case with her responding affidavit evidence which painted Mr. Basley as an abusive, violent individual whose excessive consumption of alcohol rendered him unpredictable and a serious threat to her and the children. While Mr. Basley was quick to acknowledge that he drank alcohol to excess because of the strain of the unusual circumstances in which the parents and the children were living, he denied the allegations of abusive patterns of behaviour. From the recordings, it appears clear that it was Ms. Basley herself who was quite willing to indulge in singular verbal and physical abuse of Mr. Basley.

[14] The December 24, 2015 recording demonstrated an obviously very intoxicated Ms. Basley, having just returned from her long-time boyfriend’s home, employing unbelievably foul, harsh language in a long harangue directed at Mr. Basley accompanied by hitting and physical aggression.

[15] The recordings of March 6, 2016 followed Ms. Basley’s return to the home and began with her loudly finding fault with Mr. Basley’s actions in both looking for his new accommodation after the imminent sale of the matrimonial home and his dealing with their realtor. She progressed from a uniquely rude display of angry swearing to a complete loss of control when it transpired that Mr. Basley’s parents may have attended at their home during the day’s activities. Ms. Basley was angry and accusatory with the children – who were present throughout the whole shameful display – and actively targeted them for abuse.

[16] While the recordings of Ms. Basley’s conduct were shocking and explicit, their importance and materiality was not to demonstrate that she is, or was, some kind of a “bad person”; indeed, any assessment I was able to make from the materials before me and the appearance and demeanour of the parties throughout the motion was most favourable. They both are highly intelligent, capable and concerned. I have no doubt they both love their two children desperately and that that love is returned to each of them in kind by Owen and Paige.

[17] The importance of the recordings, instead, lies in their effect on the apparent reliability of Ms. Basley’s material. It was Ms. Basley who strongly condemned Mr. Basley for abuse and a violent propensity when influenced by alcohol. She went to great lengths to characterize herself as having been the children’s protector and constant saviour. It is but a weak answer for Ms. Hassan to submit that neither parent claimed perfection (undoubtedly true), that Ms. Basley’s displayed conduct was “not who she is” or that Mr. Basley might have somehow provoked her to her outrage. The revelations in the audio tapes belied Ms. Basley’s words about abuse and violence and weigh significantly against her in considering the evidence.

THE LEGISLATIVE FRAMEWORK

[18] These motions are to be determined under s. 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] which sets out the court’s jurisdiction concerning “an interim order respecting the custody of or the access to … any or all children of the marriage” pending a trial or final determination. With respect to legal principles to be applied in the exercise of the court’s discretion, I can do no better than repeat the statement of Chappel J. in K.(V.) v. S.(T.), 2011 ONSC 4305 (CanLII), 2011 ONSC 4305 (Sup. Ct.):

63 As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act. Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) of the Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.

64 Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. [Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.).]

65 Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child. [Young v. Young, supra]

66 Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability. [Gordon v. Goertz, supra.; Young v. Young, supra]

67 In an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the “best interests” analysis may be referred to as guides in deciding cases under the Divorce Act. [T.(K.A.) v. T.(J.) (1989), 23 R.F.L. (3d) 214 (Ont. U.F.C.); V.(K.C.W.) v. P.(K.L.), 2010 NBCA 70 (CanLII), 2010 NBCA 70 (N.B. C.A.).] The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, [R.S.O. 1990, c. C-12, as amended] which provides as follows:

Merits of application for custody or access
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3(1).

Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(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, the necessaries 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.

Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3(1).

Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3(1).

ANALYSIS

[19] Although the extent of the conflict in the various affidavits is apparent, I can find nothing to differentiate between Mr. Basley and Ms. Basley with respect to their love and regard for the children, the extent to which each would go to advance Owen and Paige’s interests or the efforts either would make to provide a safe and secure environment for them. That being said, the children unfortunately have been exposed to violence and conflict in the past. That there is little evidence of harm being caused to them so far from what they have been through stands as a form of testament to their resilience.

[20] The detrimental effect of parental conflict on children has been a topic of some discussion. In Ackerman v. Ackerman, 2014 CarswellSask 511 (C.A.), the court warned:

41 The fact parents have an acrimonious relationship is a factor to be considered in determining an appropriate parenting plan. Conflict, domestic violence and/or abuse, whether it be physical, psychological or verbal, is relevant to a person’s ability to parent. Children learn what they live and it is well documented that children who live with conflict, domestic violence and/or abuse are significantly impacted by such experiences. How the existence of such experiences will affect the outcome of a custody or access hearing depends on a number of factors including, but not limited to, who was involved, when and where the incidents occurred, the context in which they arose, the number and severity of such incidents, the parties’ reactions to the event, including the taking of remedial steps, whether the children were present during the incidents and/or their knowledge of such events and their reaction to them.

[21] R. Smith J., in Parham v. Jiang, 2013 ONSC 6003 (CanLII), relied on Jackson v. Jackson (2008), 2008 CanLII 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. Sup. Ct.) as correctly detailing the “toxicology of conflict” and noted the vulnerability of children and the “devastating impact” high levels of parental conflict in separated families can have on their development. See also Graham v. Bruto, [2007] O.J. No. 656 (Sup. Ct.), affirmed 2008 ONCA 260 (CanLII), 2008 ONCA 260 (C.A.) where Backhouse J. termed exposure to conflict “the single most damaging factor for children in the face of divorce.”

[22] This remains an interim determination of custody and access, in which I lack the resources and procedural niceties available to a trial judge in finding facts and assessing the credibility and reliability of the parties and their witnesses. In Coe v. Tope, 2014 ONSC 4002 (CanLII), 2014 ONSC 4002 (Sup. Ct.), Pazaratz J. said:

25 Parenting determinations at temporary motions are particularly challenging:

a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.
b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.
c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing “status quo” even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.
d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process - quite often at a trial. Brown v. Brown (1999), 1999 CanLII 15074 (ON SC), 45 O.R. (3d) 308 (SCJ); Neilipovitz v. Neilipovitz, 2014 ONSC 3889 (CanLII), 2014 ONSC 3889 (SCJ).
e. The status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change. Button v. Konienczny, 2012 ONSC 5613 (CanLII), 2012 CarswellOnt 12353; Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (SCJ); Rifai v. Green, 2014 ONSC 1377 (CanLII), 2014 ONSC 1377 (SCJ); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (SCJ).
f. Courts must be mindful of - and actively discourage - efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 ONSC 6451 (SCJ).
g. Physical separation between parents usually entails some continuing geographic proximity — usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of “best interests” considerations. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705 (CanLII), 2011 ONCA 705 (Ont. C.A.).
h. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Rifai v. Green (supra).

[23] The issue of the status quo was raised by both parties. Each urged on me that the established parenting arrangement ought not to be dramatically altered at the temporary order stage: Muruve v. Muruve (2013), 37 R.F.L. (7th) 481, 2013 ONSC 5981 (Sup. Ct.) (CanLII) per Kiteley J. The difference between them lay in their recollections in the affidavit evidence about what that parenting arrangement actually was at the point of their physical separation. Requiring compelling reasons to disturb an existing settled routine naturally magnifies the importance of the inquiry as to what that routine was. As the court said in Rifai v. Green, supra:

19 Accordingly, consideration of the “status quo” becomes an enduring component of access and particularly custody disputes, at virtually every stage of the process. It’s little wonder that so many lawyers - and parents - become preoccupied with the strategic implications of any pattern or routine a child comes to be used to.

20 Sometimes, determining the status quo can be problematic. Is it the most recent arrangement in a child’s life? Or is it an earlier routine which might have been more long-standing? Should we stick with what’s working at this precise moment? Or should we go back to something that was working well recently?

21 Very much related to this is the court’s increasing concern that parents should not be allowed to gain strategic advantage - and children should not be needlessly disrupted — by a parent unilaterally creating a new status quo through manipulation or deliberate acts. Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 ONSC 6451 (SCJ); Nyari v. Velasco, 2008 ONCJ 272 (CanLII), 2008 ONCJ 272 (OCJ).

[24] While the importance of the status quo is easily recognized, the difficulty arises, as stated in Rifai v. Green, when the nature of the existing parenting arrangement is unclear and disputed. In Bell v. Ferguson, supra, Leach J. said:

26 … as I also indicated in Peet v. Zolob, [[2014] O.J. No. 4652 (Sup. Ct.)], it seems to me that concerns about disturbing status quo have more force when that status quo is reasonably clear, and especially when it has been clearly defined by previous party agreement or a court order. Such arguments have less resonance in circumstances, such as the one before me, where there is a dispute as to how long the existing arrangement was intended to last, (e.g., extending beyond the summer or the transfer of ownership in the matrimonial home), and where continuation of the arrangement has been the subject of ongoing disagreement for much of its duration, without any prior court determination of what arrangement might be in the best interests of a child.

[25] O’Dea J. canvassed the assessment of the real status quo in Hachey v. Blain (unreported) September, 2015: St. Thomas Docket No. 74/15 (Ont. C.J.) where he said:

I am firmly of the view that a child is entitled to a relationship with both parents that, as best as can be accommodated after a separation, mirrors the child’s pre-separation relationship with each parent.

The pre-separation relationship is not to be measured by who changed the most diapers or how much time either spent with the child; it is measured in context of a child’s need for consistency which itself will be defined by the household/employment/child-care role each parent undertook during cohabitation. By this measurement, a parent’s post-separation time with a child is not diminished because he or she is often out of the home due to employment or enhanced because he or she is at home more than the other. Post-separation time will reflect pre-separation roles that the child became accustomed to and that both parents, in better times, adopted for the purposes of supporting the family structure.

[26] Interestingly, the factual background in Coe v. Tope, supra was oddly similar to this motion as it involved conflicted evidence and a lengthy period in a joint residence before actual separation. Pazaratz J. said:

26 In this case, I find that the parenting arrangement prior to the July 19, 2013 separation under the same roof - and prior to the June 26, 2014 departure from the matrimonial home - was effectively shared parenting. For clarification:

a. I am not specifically finding that the “status quo” entailed an exactly equal division of time or responsibility.
b. I am not specifically finding that the best interests of the children require an exactly equal future division of time or responsibility. There will be lots of time to talk about specific schedules and division of authority.
c. But particularly at this very turbulent time for these two young children, I find that their best interests require a continuation of an exactly equal psychological or emotional bond with both parents. (my emphasis)

[27] In his material, Mr. Basley describes a very close and strongly bonded attachment with the children and many examples of the parents’ mutual shared discharge of the usual responsibilities in the care and nurture of the two children. He emphasizes the fact that he enjoys a status with his employer, Armo-Tool Ltd., which has allowed him to fix or adjust his work schedule to accommodate the needs of the children and to provide him the time to actively share their care. Ms. Basley, for her part, insists that the children looked to her for their day-to-day needs, and makes much of the fact that Mr. Basley did not reside in the matrimonial home for almost one year post-separation when he was required to be out of the residence by the terms of his former release conditions. To that, Mr. Basley responds that he contributed fully to Owen and Paige’s care when Ms. Basley returned to fulltime work in 2013 until that terminated in early 2016. He says that, from his return to the home in April, 2015 until the June, 2016 criminal charge, he shared the parental role with Ms. Basley. Indeed, in her factum, the latter admits that the two parents settled into a routine where they would alternate sole care of the children on weekends, with Ms. Basley spending alternate weekends with Mr. Viveiros and Mr. Basley usually going to Ottawa where his new girlfriend lives. This, combined with the fact of joint residence, Mr. Basley’s descriptions of his extensive activities with Owen and Paige and the very real difficulties I have with Ms. Basley’s reliability and the weight to be afforded to her affidavit evidence, all satisfy me that, for the purposes of this motion, both Mr. Basley and Ms. Basley were equal psychological and emotional parents of the children before the final physical separation.

[28] It is Mr. Basley’s position that Ms. Basley seemed to change when she became unemployed in late January, 2016 and began regularly leaving the house with the children in the evenings to go to Mr. Viveiros’ home, returning with them at their bedtimes. He complains that she began a subtle campaign of withholding the children from him and trying to limit his time with them, notwithstanding that the parties’ solicitors were then actively discussing a “nesting agreement” which would allow the children to stay in their accustomed home.
AN INTERIM ORDER CONCERNING CUSTODY

[29] I am asked by Ms. Basley to make an interim order granting her sole custody of the children. Mr. Basley seeks a “shared joint custody” order or, in the alternative, sole custody.

[30] In Easton v. McAvoy, 2005 ONCJ 319 (CanLII), 2005 ONCJ 319 (Ont. Ct.), Renaud J. declined to make an interim custody determination to avoid the risk that the children involved would have their future care and relationships with their parents affected by potentially unreliable and contradictory information. The court approved the words of caution expressed by Pierce J. in Crocker v. Hooke, 2003 CanLII 2298 (ON SC), [2003] O.J. No. 1742 (Sup. Ct.), an interim custody motion, where she said:

29 This court does not have the same vantage point as the trial judge, who will hear evidence tested by cross-examination, hear testimony from third parties, including professionals involved with the child and his parents. That court will assess credibility and weigh evidence; it may ask questions.

30 Interim custody, in the face of conflicting affidavits and a climate of recrimination, is not a time for experimentation with the child’s life. Such decisions are difficult enough for the court when it has the benefit of hearing evidence presented by the parties. …

31 Rather than awarding interim joint custody in such a climate, the child may be better served by an expedited trial, where all issues surrounding his care can be explored.

32 I am not persuaded there are compelling reasons to change the status quo on an interim basis. The father’s proposal is a fundamental shift from the status quo. Making no order as to custody will leave the parties on an equal footing to argue the matter at trial. …

[31] Doyle J. came to a similar conclusion: that making a custody order would be inconsistent with the child’s best interests and would not do so in Ascani v. Roberts, 2015 CarswellOnt 11016 (Sup. Ct.). There, neither parent could safely be empowered by a custody order which would make a balance of power neutralizing the parents impossible, potentially allowing one parent to usurp the role, possibly marginalizing the other and impacting the child. The court expressly pointed to M. v. F. (2015), 58 R.F.L. (7th) 1, 2015 CarswellOnt 5630 (C.A.) where Benotto J.A. pointed out that the legislation does not require a court to make an order for custody. See also Ene v. Ene, 2015 ONSC 697 (CanLII), 2015 ONSC 697 (Sup. Ct.) where McGee J. made a multi-directional temporary order dividing children’s time with each parent but would go no further because “[the] future pattern of their time within each home, their parents’ ability to make decisions together, or the need to vest one parent with decision making authority [had] yet to be determined.”

[32] In Coe v. Tope, supra, the court came to the same result with respect to interim custody:

28 Neither parent has established that a primary residence designation in their favour - let alone custody - is either necessary or in the best interests of the children. (I reject the father’s argument that only residency, not custody, was case conferenced. If I felt a temporary custody order was appropriate, I would make one.)

29 I make no prediction or recommendation as to the eventual custodial label, if any. For the moment these parties don’t appear to be candidates for joint custody. Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). But it’s early, and there’s time for mature problem-solving. There are many creative options available to help these parents get what they want; and to ensure these children get what they need.

[33] I decline to make an interim order with respect to custody.

THE TEMPORARY RESIDENCE ARRANGEMENT FOR THE CHILDREN

[34] Ms. Hassan submits that the best interests of Owen and Paige would be served if they shared their principal residence with their mother at Mr. Viveiros’ home and had access visits with Mr. Basley on alternate weekends and some midweek contact. Mr. Basley responds with a claim for an order for shared equal residence time with each parent, pending the trial.

[35] For the reasons which follow, I am satisfied that Mr. Basley’s plan of care is to be preferred, being in my view much more consistent with the children’s best interests.

[36] In Easton v. McAvoy, supra, the motion judge established an equally shared temporary residence structure. Some of the important factors set out by Renaud J. were expressed in this way:

29 In considering what temporary solution is in the best interests of these children, the court looks at all the needs and circumstances of the children, which include the following largely uncontradicted facts:

1. both parents have a strong bond with the children;
2. the parents have each had a significant, if not entirely equal, parenting role in the care and upbringing of the children since they began cohabitation;
3. both parents appear committed to the well-being of the children;
4. the views and preferences of the children cannot yet be ascertained independently;
5. the not insignificant time the children have lived in a stable home environment, which environment has included both parents;
6. the expressed ability and willingness of each parent to provide the children with guidance and necessaries of life;
7. the fact that the parents’ respective plans for the children each have some strengths but also suffer from the inevitable difficulty that the separation has just recently occurred and some time is to be permitted to allow the situation to stabilize …

[37] While every case is, of course, unique, I am struck by the similarities between the factors set out in Easton and the matter before me. With particular reference to Owen and Paige, the following seem to me important considerations:

1. Mr. Basley’s new residence and Mr. Viveiros’ home (where Ms. Basley now lives) are very close, being only about seven minutes apart. Both residences are within Owen and Paige’s established school district, allowing them the comfort of the same school activities, associates and friends which they have established before now;
2. The children are not being forced to leave an established home to live half the time in a strange new environment because each of Mr. Basley’s accommodation and that of Mr. Viveiros represents a relatively new experience for them and there is nothing in the material to suggest any possible detriment to them;
3. While there may have been some past friction and upset between Mr. Basley and Mr. Viveiros, there was nothing alleged that indicates any potential risk to the children from Ms. Basley’s relationship with her partner. Mr. Viveiros has entered into a bond to keep the peace with respect to Mr. Basley and it now appears each of the parents has found a companion and a happy life. More importantly, both new partners appear to have accepted Owen and Paige quite readily. To her credit, Ms. Basley has taken important steps to establish friendly communication with Mr. Basley’s girlfriend;
4. Before the criminal charge which led to Mr. Basley’s removal from the house in June, the parties had accepted a temporary equal sharing of the children throughout the summer, albeit with the children spending the hours with Ms. Basley when Mr. Basley worked. That plan never came to fruition because of the criminal charge, but it indicates at that time some kind of basic consensus towards a trial residential equivalence;
5. Despite considerable oppression arising from the very restrictive terms of Mr. Basley’s interim release order concerning contact between the parties, I was impressed by their ability, when necessary, to effect some small change or accommodation to their arranged access through Wayne (a mutually agreeable and willing third party) or through their parents. They have been able to arrange for the children’s dog to travel between their homes with them. Ms. Basley, in particular, is to be commended for her continuing efforts to do whatever was necessary to have Mr. Basley’s criminal lawyer obtain a release variation;
6. Even a temporary order with a weekly turnaround (to minimize contact or more frequent exchanges) would not result in the children having to go an unreasonable time without seeing the other parent because Mr. Basley and Ms. Basley have always been very accepting and united about the children’s extra-curricular activities – dance and soccer – and both attend practices and games to support Owen and Paige. In addition, counsel suggested Wednesday evening time with the non-residential parent;
7. As already stated, the children have fortunately demonstrated considerable resilience when faced with parental conflict and considerable upset which ensued;
8. There is some merit in ensuring that Mr. Basley remains a full participant in the lives of the children when one considers his complaints that Ms. Basley has demonstrated a propensity to limit or interfere with his contact with the children.

[38] An equal access order on an interim basis also is consistent with the Divorce Act principle of maximum contact with each parent. Such maximum contact cannot be said to always be in the best interests of a child, because that interpretation would represent a “cloaked presumption” of shared custody ignoring the plethora of “best interests” factors: H.(A.N.) v. C.(M.K.), 2010 NBQB 120 (CanLII), 2010 NBQB 120 (N.B. Q.B.).

[39] That said, the Court of Appeal has emphasized in Berry v. Berry, 2011 ONCA 705 (CanLII), 2011 ONCA 705 (C.A.) that maximum contact is a mandatory principle and that a trial judge erred in saying that maximum contact between a young child and both parents “… is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In that case, Juriansz J.A. pointedly said at para. 13:

13. … In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).

In that case, the trial judge had failed to recognize that the parties had, in effect, shared custody and control of the child.

[40] In V.(B.) v. V.(P.), 2012 CarswellOnt 4738 (C.A.), the court again dealt with children’s maximum contact with both parents. The trial judge had criticized the conduct of the children’s mother in resisting any expanded access for the father, and access was ordered over lengthened alternate weekends; every Wednesday overnight; three weeks of summer access; Father’s Day and shared holidays, Christmas and March breaks. The Court of Appeal found the trial judge had “erred by awarding minimal access” (my emphasis) and failed to respect the “maximum contact principle.” At para. 16, the court said:

16. The trial judge did not identify any compelling reason for limiting B.V.’s access to the extent that he did. Indeed, the trial judge’s findings … support a more generous access order.

Having said that, the court noted the findings at trial that the father tended to be controlling, overbearing and disrespectful of the mother and rejected access on a 50% basis as being inconsistent with the children’s best interests. The father was to have access 35% of the time.

[41] Price J. emphasized the importance of maximum contact in Folahan v. Folahan, 2013 ONSC 2966 (CanLII), [2013] O.J. No. 2450 (Sup. Ct.) where he said:

9 The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child. [Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at pp. 46, paras. 117-118] The children’s best interests must be paramount to any other consideration when access is ordered. The convenience and wishes of the parents are not ignored, but are secondary to the welfare of the children. [S.(B.L.S.) v. S.(T.M.), 2003 CarswellAlta 133 (Alta. Q.B.)]

[42] Considering Owen and Paige’s bonding with both their parents, the context of the facts of this case reveals its difference from recent decisions where equal residence time was ultimately rejected. Examples of those circumstances where the child’s best interests outweighed maximum contact include: where a joint custodian father and his new partner adopted an aggressive and confrontational stance opposing the mother (Harrington v. Ross, 2014 ONCJ 334 (CanLII), 2014 ONCJ 334 (Ont. Ct.)); where expansion of the father’s time to 50% would unnecessarily reduce even further the mother’s quality time with her daughter (Kerr v. Pickering, 2013 ONSC 317 (CanLII), 2013 ONSC 317 (Sup. Ct.)); where a father demonstrated a violent, assertive and unbending personality and balked at administering prescribed medication (Khairzad v. McFarlane, 2015 CarswellOnt 17532 (Sup. Ct.)), and where children “should not be subjected to ‘two masters’ when the masters can create very little but war” and equal time would serve only to undermine their stability in the context of their parents’ unstable relationship (Easson v. Blase, 2015 CarswellOnt 14086 (Sup. Ct.)).

[43] Taking into account all the information before me relating to these two children, in my view the only appropriate temporary access order consistent with their best interests is week-about access with each parent to – as in Parham v. Jiang, supra – avoid conflict “which would inevitably result from an order for joint custody or from any form of regular access that brings the parties into contact with each other during transition times,” and also give effect to the maximum contact principle enunciated in the Divorce Act.

[44] Accordingly, Owen and Paige shall be in the care and control of both Mr. Basley and Ms. Basley, with Mr. Basley to have the sole care of the children for one week from Friday after school (or at 3:30 p.m. if there is no school for the children on Friday with Ms. Basley dropping them off at Mr. Basley’s residence or exchanging the children at the Walmart store in Strathroy, her option being transmitted to Mr. Basley by text message with neither comment nor embellishment) commencing the second Friday after the release of these reasons. Mr. Basley’s care of the children will continue until his return of the children to school on the Friday next following or at 3:30 p.m. of that day by return to Ms. Basley’s residence or the option as above. Ms. Basley’s week of the children’s care will follow on the same terms.

[45] This schedule for the children is subject to the proviso that, in each week, the parent not having their care will be entitled to pick up the children from school (or the other parent’s residence) at 3:30 p.m. Wednesday, returning them to the other at 7:15 p.m.

[46] I am reluctant to simply impose a sharing of traditional holidays, Christmas or the children’s summer vacation from school without the benefit of specific submissions. Obviously, fairly apportioning the children’s special time with the parents is necessary for Owen and Paige. If counsel are unable to come to a reasonable arrangement to advance the children’s interests with the parties, I may be spoken to.

SOME DIRECTIONS FOR THE PARENTS

[47] At this juncture, two specific insights from experienced family law judges may be of assistance to Mr. Basley and Ms. Basley.

[48] In Coe v. Tope, supra, Pazaratz J. encouraged the parties to reconsider their struggle:

36 One final comment:
37 I hope I didn’t offend the parties with my Breaking Bad Parents analogy. They’re not bad parents. Yet.
38 Mainly, I was trying to give both parties a sobering warning: Stop!
39 Stop being nasty.
40 Stop jockeying for position.
41 Stop playing hardball.
42 Stop acting like you hate your ex more than you love your children.
43 It didn’t have to be this way. These parties had a year between separation in July 2013 and the sale of the house in June 2014 to work out a comprehensive, sensitive parenting plan. They could have spent a lot less money on parenting professionals than they’re spending on lawyers. They could have negotiated a civilized final agreement by now. There was no need for crisis and brinksmanship.
44 Now that things have stabilized (albeit, by court order) both parties have a chance to rethink their strategies and start over.
45 They can waste time, money and energy on more case conferences, motions, settlement conferences, trial management conferences, questioning, and a long trial.
46 Or, they can declare a truce; focus on their children; call in some therapeutic help (like social workers or mediators); make a few compromises; work out a plan everyone can live with - and take the kids on annual vacations to Disney World with the money they save.

[49] If these parties are not able to settle their differences and must go to trial, Renaud J. said in Easton v. McAvoy, supra:

60 Finally, it is fully recognized that the present order is based on information provided in affidavits prepared with a view to these motions for temporary relief. The present order is subject to variation in accordance with the rules of court or ultimate determination by final order at trial that will depend upon the evidence. Both parents are reminded that their conduct in the intervening period will be subject to exacting scrutiny and will very likely assist in the further variation or determination of the issues. Reasonableness, sensitivity to others, flexibility, generosity of spirit and action and selflessness are hallmarks that guide courts in considering parenting plans and in determining which parent is better disposed to advancing the best interests of the children.

ADDITIONAL TERMS

[50] To facilitate the parenting arrangement described in these reasons, supplemental orders will issue as follows:

a) The parties will each forthwith execute a full and effective consent to treatment by health practitioners and to full release of all school information and particulars with respect to each of the children.
b) The parties shall both be named as emergency contacts with the children’s schools and with any other organizations or professionals involved with the children.
c) Neither party may object to the other’s plans with the children and must respect each other’s ability to care for the children appropriately.
d) Neither party will arrange activities for the children when the children are scheduled to be with the other parent without that parent’s consent.
e) There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take with them between the residences of their parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other party.
f) Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of or within earshot of the children.
g) The parties shall abide by the following principles in their relationship with each other and their contact with the children:
i) they shall not question the children about the other party’s personal life and activities;
ii) they shall not video or audio record the children for the purpose of recording statements or discussions about the other party, members of their household or family, or parenting issues;
iii) they shall encourage the children to have a strong and positive relationship with both parents, and shall use all reasonable efforts to foster a meaningful relationship between the child and extended family members.
h) Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children, or regarding conflicts between the parties relating to parenting issues. Each party may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by one of the children.
i) Each party shall be entitled to make one telephone or video call (i.e. Skype, FaceTime, Google Hangouts, etc.) to the children on any day that the children are out of their care. The call shall be made at 7:00 p.m. and may last up to ten minutes with each child. The other party shall actively support and use reasonable efforts to facilitate the call, including maintaining telephone, computer and internet capacity at their residence. The other party shall not be in the same room as the child during the call, except to facilitate the call. The call may be used to wish the children good night and provide general comfort but shall not be used to question the children about parenting methods or the activities of the other party.
j) Neither party shall change the names of the children – either formally or informally – without the written consent of the other party or court order.
k) The children may travel outside Canada for vacation purposes with either parent, with the consent of the other party, which consent is not to be unreasonably withheld. The travelling party shall request the consent of the non-travelling parent a minimum 21 days in advance of the scheduled trip, unless otherwise agreed, and the non-travelling party shall provide a notarized “Travel Letter” authorizing the children to travel with the travelling party a minimum 7 days in advance of the scheduled trip.
l) Should either party desire to take the children from the Province of Ontario for vacation purposes, they shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the children can be reached where they are going, a minimum 21 days in advance of the scheduled trip, unless otherwise agreed.
m) Should a passport be required for the children, the parties shall cooperate with each other in providing the necessary information to make the application. Ms. Basley shall keep the passports at her residence and they must be made available promptly to Mr. Basley as required.

COSTS

[51] I will receive point-form written submissions concerning costs to be delivered to my assistant. Mr. Basley will have 45 days to deliver submissions and a bill of costs, after which Ms. Basley will have 30 days to respond. Mr. Basley may deliver a brief reply within 15 days.

“Justice Henry Vogelsang”
Justice Henry Vogelsang

Date: October 6, 2016