Kerr v.Hauer 2010- Custody and Access – Interim Custody

The parties in this case separated in 2008. The parties had two children from the marriage. The Respondent father brought a motion for immediate implementation of the parenting recommendations provided by Dr. Sol Goldstein in September 2009. The parenting recommendation suggested that the Respondent father should have the children during the school year and further, that he should have the role of the decision maker with respect to the children’s needs. The Applicant Mother on the other hand argued that the motion should have been dismissed as there was a trial date set during the trial sittings in May, 2010. This case was heard on March 30, 2010. The Applicant Mother argued that since the trial date was just around the corner, interim relief should not have been sought by the Respondent father by way of a motion.

After considering various case law on the issue of interim relief, the judge stated that the status quo is maintained on an interim custody motion unless there are reasons that would demonstrate a need for change to ensure that the children’s best interests are met. Secondly, the Judge stated that an assessment report would typically be used at a trial as opposed to an interim proceeding unless there were exceptional circumstances whereby the assessors report mandates actions to take place immediately. The Judge was of the view that assessment reports need to be approached with caution when they are considered prior to trial. However, the Court should not simply ignore evidence that is available if it can determine the best interests of the children, particularly where statements have been made directly by the children to the assessor, as evident in this case.

The Judge stated the importance of encouraging parties to settle their matter. A judge should not simply refrain from pushing a matter forward simply because a trial is expected to proceed thereafter. Moving on to adjudication should only occur in instances where resolution is not possible because of some issue that parties cannot get beyond by agreement. In this particular case, the Judge was of the view that the parties were not at a complete impasse given that they had previously executed Minutes of Settlement pertaining to the children’s summer schedule, which indicated the party’s willingness to negotiate.

The Judge stated that typically, the recommendations with respect to the parenting time throughout the school year should be considered with caution taking into account the parties personal schedules, employment etc, however given that the evidence before the Judge was from a psychiatrist with credentials in addressing parenting issues, the Judge was of the view that Dr. Goldstein’s recommendations should be implemented. The Respondent father was granted immediate responsibility of decision making with respect to the children’s special needs and ordered to consult with the Applicant mother where the decisions could potentially impact her.

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