Interim Custody – Motion to Change a Temporary Order for Custody & Access

Miner v. Mandel, 2015 ONSC 6792

This case examines some of the factors considered when assessing best interests of the child in the context of changing a temporary order for custody and access.

Background

The parties separated on March 11, 2014, however, a trial would not take place until February of 2016 to determine custody and access arrangements for their two young children on a final basis.

After separation, the father remained in the matrimonial home near the children’s school in Hamilton and the mother moved in with her step-father in Burlington, which was much further from the children’s school.

Pursuant to a temporary without prejudice order, the children resided with their mother and the father was allowed access.  This decision likely hinged on the fact that the father was charged with three counts of assault on the date of separation, however, all charges were later withdrawn due to issues with the mother’s credibility.

While residing with their mother, the children often arrived late to school and were occasionally absent.  The school records showed that the children were late on approximately 25 days.

The mother also defied court orders in the following ways:

  • She failed to return the children to their father when the court order specified; and
  • She allowed the children to be alone with her step-father who has a history of sexual abuse and harassment allegations.

The father brought a motion on October 5, 2015, to change the temporary order so that the children would reside with him until the trial.  He argued that the issue of the children’s residence could not wait until trial and he raised the following concerns with respect to the best interests of the children:

  • The mother jeopardized the children’s educational needs by allowing them to be absent or late for school;
  • The mother allowed the children to be alone with her step-father who has a history of sexual abuse and harassment allegations;
  •  The children do not have proper sleeping arrangements when residing with their mother;
  • The mother could not be trusted to comply with court orders; and
  • The only stable environment for the children was with their father.

The mother’s explanation for the children’s late arrival to school was as follows:

  • The children were difficult to wake up as they were tired after evening visits with their father;
  • The mother suffered from anxiety, which made it difficult to persuade the children to go to school; and
  • The mother lived too far from the school.

However, the children were only with the father from Tuesday to Wednesday during the week and his position was that it did not make sense for their time with him to be the cause of their tiredness and pattern of lateness.

Additionally, the mother argued that her step-father was never investigated with respect to the sexual abuse allegations and he was not left alone with the children.  She also submitted evidence of the children’s father having previous family court proceedings due to his “volatile behavior” with a previous spouse.

The mother further submitted that the father was only seeking primary residence of the children because he would have difficulty paying child support.  However, the mother also stated that the father had hired a nanny.

Decision

The father’s motion was granted and the children were to reside primarily with him.  The mother was to have weekly access to the children overnight on one weeknight and one weekend night.

Analysis

The Court emphasized the notion that the temporary without prejudice order must be consistent with the children’s best interests and is not intended to indicate that the court favours the position of either party.

The Court held that the consistency of the children’s attendance at school was a priority.  The court further held that the children’s lateness appeared to be caused by their mother’s circumstances, whereas the children would have more stability if residing with their father as he could get them to school on time.

Although the Office of the Children’s Lawyer (OCL) report favoured residence with the mother, further exploration was needed as the OCL report was disputed by the father.

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