Winn v. Winn 2008 Ont. S.C.J. – Variation of interim custody with an OCL Report

This case which was heard in Newmarket, Ontario, raises an interesting issue regarding whether or not custody arrangements can and should be changed prior to trial based on the recommendations of the OCL (Office of the Children’s Lawyer).

In Winn v. Winn, the interim custody arrangement was that the two children were to reside with their mother and have generous access with their father. The case was referred to the Children’s Lawyer and the OCL report was completed on October 16, 2008. The report made 17 recommendations, among them was that the primary care and custody of the children should be with the father, with detailed and generous access to the mother. The report noted that there had been several incidents involving the parties and the York Regional Police. In addition, the York Children’s Aid Society had been involved with the family several times. The Report noted that although the Society had no concerns with the children being with either of their parents, it felt that existing problems would persist more so if the children lived with the mother.

Based on this report, the father brought a motion for an order to implement the recommendations of the OCL immediately rather than waiting for trial. The father also filed an affidavit in which he deposed that the children were suffering emotional instability as a result of the present arrangement. The mother provided an affidavit in response and disputed the content of the father’s affidavit as well as the recommendations of the OCL. The father filed a further affidavit stating that the mother was creating falsehoods to ‘confuse the court’.

In coming to its decision, the court examined the case of Grant v. Turgeon 2000 Ont. S.C.J. In that case, the judge considered two principles with respect to interim custody motions. The first principle is that it is generally held that the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. Second, an assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding except in exceptional circumstances where immediate action is mandated by the assessor’s report.

The court in Winn also considered the conclusion in Copeland v. Perreault (2007) Ont. C.J. in which Murray J. stated the following: “Generally, it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”

The jurisprudence leans toward preserving the status quo until a final order of the court unless there are exceptional circumstances. The Court in Winn also recognized that the mother disputed many of the allegations in the father’s affidavit and the OCL’s report and the court never had the opportunity to conduct a cross-examination.

As such, the Court held that the status quo should remain (the children should reside with their mother with generous access to their father) until a trial of the issue or other resolution of the matter.

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