REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 297 Date: 2016 09 08 Docket: DIV 501 of 2016 Judicial Centre: Saskatoon Counsel: Brent D. Barilla, Q.C. for the petitioner Raymond Wiebe for the respondent FIAT SCHERMAN J. September 8, 2016 Introduction [1] The petitioner’s application seeks orders granting her exclusive possession of the family home, primary residence of the children and supervised access only for the respondent father. She seeks this relief based on her allegations that the respondent has anger management problems that make her and their daughters fearful of him and addictions to pornography and masturbation that make it not in the best interests of the children, that the children reside with her, and that their father have only supervised access to them. [2] On August 18, 2016 the petitioner received, on without notice application, an interim order of this court granting her exclusive possession of the family home. Although no reasons were given on the granting of the interim exclusive possession order, the petitioner’s grounds for so applying stated: 9. the respondent’s anger management issues have made it untenable for them to continue to reside in the same home. The petitioner is fearful of the respondent’s reaction to receiving and reviewing the information outlined in her application materials. [3] Following the service of the without notice order granting the petitioner exclusive possession of the family home, she served and filed an amended notice of application in which she sought continuation of the interim exclusive possession order and supervised specified daytime access by the respondent every other weekend. The respondent takes the position that this order should not have been granted in the circumstances of this case. [4] The respondent has in response to this application filed detailed affidavit in which he disputes the petitioner’s allegations of addictions to pornography or masturbation, denies that he has ever masturbated when in the company of their daughters as alleged, acknowledges that historically he had anger management issues but states that he has and continues to receive counselling for anger management as well as takes prescribed medications for his attention deficit disorder [ADD], which is related to his anger management. He states that particulars of the anger management incidents alleged by the petitioner are dated, that he now manages his anger well, that there has never been single incident of physical contact involving the petitioner or the children, and there is no basis to the allegations of fear. [5] He says that he has for years been stay-at-home dad and has been significant caregiver throughout and, in aspects of that care and at times, has been primary caregiver of the children. For his part he provides evidence of anger displayed by the petitioner towards him and the children. He says that prior to the petitioner obtaining an exclusive possession order the petitioner was asking him to leave the family home. It was his position that if parenting plan and agreement suitable to him was reached he was prepared to do so. He seeks to have the exclusive possession order terminated and an order providing for shared parenting of the children. Background Facts [6] The parties began cohabiting in August of 2007, had their first daughter [name of child and date of birth stated], and married on January 2009. They had their second daughter [name of child and date of birth stated]. The petitioner is [profession stated] who has since they began cohabiting practised as such in Saskatoon. The respondent was employed as [occupation stated]. [7] Following the birth of [name of child and year of birth stated] the petitioner took six-month maternity leave and then the respondent took six-month paternity leave. The respondent’s employment ended in 2010 when his then employer was taken over by another company and he was unable to find another such position. The petitioner’s evidence is that at this time the respondent told her that he wanted to be stay-at-home dad and that is what happened. While there is evidence of the petitioner’s dissatisfaction with or disapproval of the manner and extent to which the respondent performed this role, it is clear that he has been significantly involved in the parenting of their children until he left the family home pursuant to the August 18, 2016 order of this court. [8] The petitioner states that since the respondent was unable to find work she suggested to the respondent that he start up [type of business stated] with her assistance, which he did in 2011. The petitioner’s evidence is that this business involved some six to eight hours of work per week by the respondent, after hours. Thus with this limited work commitment the conclusion draw is that, in addition to the paternity leave the respondent took in 2009, from 2010 forward, he was available full time to parent the children and was involved in parenting the children to level well beyond what is traditional and would be available to working parent. [9] Both the petitioner and the respondent were significantly involved in the day-to-day parenting of the children and the evidence does not justify the conclusion that one or the other should be classified as having been the primary caregiver. The parties employed caregiver to assist in the care of the children, but none-the-less the respondent can accurately be described as stay-at-home dad until July of 2016 when he once again was able to obtain employment as [occupation stated]. The respondent says that he took this position because of pressure by the petitioner that he do so. [10] As noted above, the fact that the respondent was stay-at-home dad does not mean that the petitioner was not significantly or equally engaged in the care of their children. What it means is that he was significantly involved in his daughters’ lives, well beyond the level of many or most fathers who have normal work commitments. Absent good reason it is in the best interests of the children that both parents continue to be as involved in the parenting of their children as the circumstances allow. [11] The petitioner’s reasons that this court should order the primary residence of the children be with her and that the respondent should only have limited supervised access are based in her belief and allegations that the respondent has anger management issues and is addicted to pornography and masturbation to the extent that she believes he has masturbated in the presence of the children. All of this she argues justifies the conclusion that it is not in the children’s best interests that he continue to reside in the family home or have other than supervised access to the children. The Applicable Law Re Exclusive Possession of the Family Home [12] Section of The Family Property Act, SS 1997, F-6.3, expressly states that as between themselves both spouses are equally entitled to the possession of the family home and household goods, subject to the power of this court under s. to direct that one spouse be given the exclusive use, possession and enjoyment of same. Section provides: In exercising its powers pursuant to this Part, the court shall have regard to: (a) the needs of any children; (b) the conduct of the spouses towards each other and towards any children; (c) the availability of other accommodation within the financial means of either spouse; (d) the financial position of each spouse; (e) any interspousal contract or, where the court thinks fit, any other written agreement between the spouses; (f) any order made by court of competent jurisdiction before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) with respect to the distribution or possession of family property or the maintenance of one or both of the spouses or with respect to the custody or maintenance of any children; and (g) any other relevant fact or circumstance. Re Custody and Access and Appropriate Parenting Arrangements [13] The Divorce Act, RSC 1985, (2d Supp) directs as follows at s. 16(8) to (10): 16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [14] Section of The Children’s Law Act, 1997, SS 1997, C-8.2, directs as follows: In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. [15] In Hladun Hladun, 2002 SKQB 319 (CanLII) at para 39, 222 Sask 141, Ryan Froslie J. (as she then was), stated: [39] The “best interests of the child” is the test in determining parental involvement whether that involvement be by way of custody or access. (See: Young v. Young et al. (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.)). By virtue of s. 17(9) of the Divorce Act the best interests of the child is presumed to include maximum contact with both parents. Contact is the child’s right, not the parents’ and where, as in this case, parent objects to increased contact, the onus is on that parent to rebut the presumption. (See: C.M. v. B.P. (1995), 1995 CanLII 10817 (SK QB), 129 Sask. R. 278 (Q.B.); Renko v. Magotiaux, [2002] S.J. No. 248 (QL) (Q.B.)). Carol has not provided sufficient evidence in this case to rebut the presumption. The evidence before me indicates that increased contact between Darrell and the children would in fact be to their benefit. [16] In Young Young, 1993 CanLII 34 (SCC), [1993] SCR at page 84 [Young], Justice L’Heureux-Dubé said the following regarding the considerations underlying the best interests tests: The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possible arrangements in the circumstances of the parties. This could not be more clearly indicated than in the report on Family Law, supra, as the Law Reform Commission of Canada begins its recommendations on children and the dissolution of marriage with the following words at p. 63: 1. Children should have two fundamental rights when their parents’ marriage ends: (a) the right to social and psychological support by having the most suitable arrangements possible in the circumstances made for their custody, care and upbringing; and (b) the right to economic support. Without disregarding the disruption inherent in divorce, courts must do whatever is within their power to alleviate rather than disregard, minimize or normalize difficulties, and should beware of adopting needlessly cavalier attitude where solutions can be seen to exist. The fact that many children experience stress and disruption upon the breakdown of the marriage, in my view, only increases the obligation of courts to focus their attention on the best interests of the child. The primary goal of the legal system on divorce must be to minimize the adverse effects on children. However, this requires vision of the best interests of the child that is more than neutral to the conditions under which custody and access occur. The harm test clearly cannot meet this objective. [17] The law is clear. My decisions as to custody, access and appropriate parenting arrangements are to be guided by my assessment of the best interests of the child and the starting presumption is that maximum contact with both parents is in the best interests of the children. The onus is on parents who seek to restrict maximum contact to satisfy the court that there is good reason to restrict contact. In seeking to serve the best interests of the children must strive to make the best possible arrangement for the children in the circumstances of the parties. Re Supervised Access and Allegations of Sexual Abuse [18] In C.L.B J.A.B., 2016 SKCA 101 (CanLII) at paras 44-46 [C.L.B.], the Court of Appeal of this Province said the following: [44] The remaining arguments of C.L.B. must be analyzed in the context of the relevant law. The starting point for cases involving allegations of sexual abuse is the overarching principle of the best interests of the child (Young Young, 1993 CanLII 34 (SCC), [1993] SCR 3). With that principle in mind, the issue on an interim application regarding whether supervised access is required where there are allegations of abuse, and it is not possible to determine whether abuse occurred in the past, is whether there is real risk of abuse to the child in the future on the totality of the evidence if access is unsupervised. The level of such risk must be assessed and that factor weighed against all other factors bearing upon the best interests of the child (C.C. L.B. (1995), 136 NFLD PEIR 296 (Nfld UFC) at para 85). [45] Although it is necessary for the Court to exercise degree of caution where allegations of abuse are involved, the cautious approach does not mandate an order which resolves the risk by ensuring there is absolutely no risk as submitted by C.L.B. [46] In Moore Theisen, 2012 SKQB 328 (CanLII), 403 Sask 98 [Moore], the Court dealt with an application for variation of an interim order to restrict the father’s access to supervised access as result of allegations of sexual acts carried out by the father in the child’s presence. Moore was high conflict situation much like this case. In effect, the Court in Moore did not accept that faced with allegations of sexual abuse, the Court should, under the guise of caution, abdicate its responsibility to assess and determine the risk involved with unsupervised access. The Court said: [19] Allegations of sexual abuse of child by parent are not an uncommon allegation in high conflict custody access disputes. Some have validity. Some do not. It is one of the most serious allegations that can be made against parent, because if accepted by the court, the court has no choice but to restrict access to that parent by imposing as minimum supervision access order. The courts recognize that supervised access when imposed creates “an artificial set of circumstances that, other things being equal, would militate against the fostering of proper post-separation relationship” (per Green J. in C.C. v. L.B. (1995), 1995 CanLII 10553 (NL SCTD), 136 Nfld. P.E.I.R. 296, [1995] N.J. No. 386 (QL) (Nfld. S.C.), at para. 92, and there should be good and sufficient reasons presented before the court will order such an artificial relationship between parent and child. [20] Gerein C.J.Q.B. (as he then was) in T.G.F. v. D.S.V., 2005 SKQB 401 (CanLII), 270 Sask. R. 284, at para. 17, pointed out that supervised access is an extreme restriction for the artificial situation it creates, and has the potential to undermine the relationship with non-custodial parent. Gerein C.J. went on to comment on the argument advanced in this matter that extreme caution should be used when such allegations are made, and that the person against whom the allegations exist should have restrictions placed on their access to child or children pending final resolution of the matter. Gerein C.J. rejected such an approach at para. 18 and stated as follows: The adage about erring on the side of caution has its place, but it does not deserve absolute application. Allegations of sexual abuse are always troubling. However, the Court should not simply abdicate its responsibility by postponing its determination under the guise of caution. Rather, the allegations should be examined with care and objectivity. If such an examination reveals the allegations to be reliable and true, or probably so, then the Court should act accordingly. However, if the allegations are based on speculation, conjecture, suspicion or unreliable testimony and evidence, then the Court should reject them. Any other approach invites abuse. The position of counsel for Ms. Moore that once such an allegation is made the court should err on the side of caution, whether or not proper evidentiary foundation has been established, is not accepted. agree with this approach to dealing with allegations of sexual abuse on an interim application. If the evidence is such that proper assessment of the risk going forward can be made, the Chambers judge should do so. [19] The petitioner’s application is based on her allegations that the respondent has anger management problems that create fear in her and the children and that he is addicted to pornography and to masturbation such that he masturbates, albeit under the cover of blanket, even while reading to the children. The argument is that these facts (as the petitioner says they are) should lead to the conclusion that the best interests of the children are served by giving the exclusive parenting of the children to the petitioner with only limited and supervised access. This it is argued will protect the children from both his anger and the risks associated with his sexual addictions as will granting the petitioner exclusive possession of the family home to the petitioner. Re The Implied Sexual Abuse Risks [20] start my analysis with the allegations of addiction to pornography and masturbation. In my analysis of this am guided by the direction in C.L.B. quoted above to the effect that the allegations should be examined with care and objectivity. If such an examination reveals the allegations to be reliable and true, or probably so, then the court should act accordingly. However, if the allegations are based on speculation, conjecture, suspicion or unreliable testimony and evidence, then the court should reject them. As the late Justice Gerein stated “[a]ny other approach invites abuse.” [21] The tenor of the petitioner’s evidence is that based on what she has observed, what she says the children have told her and her conclusions thereon that she needs to protect the children. Implicit in her application and evidence is that she has been and is protecting the children from the risk of sexual abuse by the respondent. [22] In her affidavit she states that in addition to the respondent’s anger, her major concern with the girls spending extended/overnight time with him is his “sex/porn/masturbation addiction”. She states what take to be her basis for making this diagnosis or reaching this conclusion in her affidavit as follows: 41. During our relationship, from the beginning, have observed the respondent habitually masturbate while on the home computer as well as under blanket while sitting on the couch watching sports or movies while [E], the girls and/or am present. have repeatedly requested that he cease this behaviour, but he has been unable to do so. and later after the evidence about him viewing pornography it states: 49. The respondent also masturbates frequently in the evenings while watching TV or movies. The respondent had also masturbated under blanket while reading bedtime stories with the girls in their rooms. [23] It is clear from the petitioner’s affidavit that there were discussions between the petitioner and the respondent as to what the petitioner was observing and that the respondent’s response at the time was that he was scratching not masturbating. In his affidavit he denies her general allegations of masturbation addiction and also denies that he has ever masturbated in the presence of the children. In her reply affidavit to this denial the petitioner acknowledges that when she raised her concerns with him, the respondent has always provided the response that he was itchy and scratching. However, she says what she observed did not look like scratching to her. [24] The respondent states that he has never been diagnosed by anyone with being addicted to pornography or masturbation and that he is not addicted as alleged. He specifically denies any suggestion that he has ever masturbated in the children’s presence explaining that what the petitioner observed would have been him scratching to relieve jock itch condition. [25] The respondent does not deny having watched pornography in the past although he denies many of the particulars alleged by the petitioner. It is clear that the topic of the respondent watching pornography was an issue between the petitioner and the respondent. Based on the evidence conclude that the respondent has responded positively and appropriately to her concerns in this respect. In his affidavit he states that he has not watched pornography since December of 2014 and that at that time he installed software called Covenant Eyes on his computer and cell phone which provides weekly reports to both the petitioner and her friend [C.W.], whom he describes as his accountability partner, to provide assurances to them that he is not watching pornography. In her reply affidavit the petitioner does not dispute this evidence and concedes that she has not seen him access pornography since timeframe she describes as December 2014/January 2015. [26] The petitioner swears as fact that the respondent is addicted to pornography and masturbation and asks the court to accept this as proven. However, her statements to this effect are not statements of fact. Rather it is opinion evidence that she is not entitled to give and to which I cannot reasonably give weight. To the extent that the petitioner has provided factual evidence as background to her opinion, much of it is expressly disputed by the respondent or to the extent allegations are acknowledged by the respondent to have some factual basis, that evidence relates to significantly dated matters. [27] The problems with the petitioner’s evidence of addiction are multiple and include: i. She is [profession stated], not psychologist or psychiatrist and has demonstrated no qualifications to make diagnosis that the respondent is so addicted; ii. Even if she had demonstrated expertise and qualification in the area, as party to the proceedings, receipt of opinion evidence from her would be inappropriate; iii. have no evidence nor basis to take judicial notice that pornography or masturbation addiction is accepted within the psychiatric or psychological professions as recognized forms of addiction; iv. have no evidence, nor basis to take judicial notice, that if an individual frequently views pornography and/or frequently masturbates that this translates into risk that the individual is risk to sexually abuse his children or is pedophile risk; v. Aside from the fact that the petitioner’s evidence is largely disputed, find her evidence to be unreliable because it is not evidence of fact but of her beliefs and is based upon suspicion, conjecture or speculation flowing from what she says she has seen (which itself is an inference) and/or based upon what she says the children have said to her which carries the additional problem of having hearsay basis. [28] The petitioner gives evidence of “pinching” of [name of child stated] bum which she sees as buttressing her concerns that there is credible risk that the children are at risk of sexual abuse. Other than her belief that the respondent has masturbated while in the presence of the children, the only concrete evidence of any contact with one of the children that might be seen as perhaps having sexual element is the pinching incident. To draw such conclusion from the circumstances of this event is simply not credible or reasonable. [29] Whether the respondent pinched [name of child stated] bum to have her move over or whether it was part of innocent playing with [name of child stated] while she was going to bed matters not. am unable to conclude from the evidence that there is anything to be taken from this incident that demonstrates any improper behaviour on the respondent’s part. father is entitled to hug, cuddle, play and wrestle with his children. Our children would suffer greatly if the fathers of this land must be ever fearful of allegations of sexual impropriety and withhold their much needed affection, play and physical contact including hugs, kisses and even pinches. [30] The petitioner’s evidence is that there is recurring theme that the girls only want her to put them to bed. This evidence appears to have been provided as support for the submissions that there are risks the girls need to be protected from. Children may insist that one parent or another only do this or that for myriad of reasons that have nothing to do with inappropriate behaviour. It would be wrong to draw the inference the petitioner suggests. Indeed, as regards this element, the children may be unconsciously adopting their mother’s view that she is the only appropriate person to put the children to bed. [31] have considered the allegations made by the petitioner with care and caution. There is clearly conflict between the parties and the petitioner wants their relationship to end, which she is entirely entitled to do. The proper test is the “risk of harm” test as outlined by Chief Justice McLachlin in Young and more recently discussed in Daya Daya, 2015 ONSC 6240 (CanLII). Allegations of sexual abuse or dangers of sexual abuse based upon speculation, conjecture and suspicion are not to be accepted by the court. See Gerein J. in F.(T.G.) V.(D.S.), 2005 SKQB 401 (CanLII), 270 Sask 284. After considering all of the evidence I am unable to conclude there is a risk of harm. [32] In weighing the risk am fully aware that sexual abuse by parent is among the worst things that can happen to any child. But, balanced against the risk that the petitioner argues exists is the certainty that, if were to wrongly accept her suspicions as justifying protection of the children from their father, the children will suffer the loss of normal relationship with loving father. Being deprived of normal relationship with their father is serious harm and cannot be in the best interests of the children. That is certain harm that the children will suffer. [33] On the one hand are allegations of risk of harm that can only be categorized as possible risk of harm. On the other hand is the certainty of harm to the children that results from denying them normal relationship with their father. In my assessment the magnitude of the latter harm far exceeds the probability adjusted risk of the harm the children might possibly suffer abuse by their father. The Anger Allegations [34] The petitioner provides many examples of anger management issues on the part of the respondent. However s. 16(9) of the Divorce Act directs that the court cannot consider past conduct unless that past conduct is relevant to the ability of the parent to act as parent to the children. [35] Most of the petitioner’s allegations of anger issues are significantly dated. Even the incident with [name of child stated] described at paras. 32 and 33 of the petitioner’s affidavit occurred over two years ago. The respondent acknowledges that in respect of that incident he was expressing frustration, but says he has since learned that hug and encouragement helps both [child’s name stated] and himself to deal with their respective frustrations. None of us are perfect parents and it is not uncommon for parent to be frustrated or even angry with child on occasion. That does mean the parent who sometimes expresses frustration or anger is bad parent or not entitled to parent. The respondent’s affidavit includes evidence that for her part the petitioner has also yelled at the children or given them the silent treatment such that the children feel their mother is mad at them. It would be the rare parent or spouse who has not on at least some occasions been angry. When we do wrong we apologize and strive to do better in the future. [36] The “[name of child stated]” incident above occurred before the respondent’s acceptance that he suffers from ADD. It was before he was taking medication for his ADD and before he had undertaken the extensive counselling outlined in his affidavit. In the more recent and relevant time periods the respondent has: i. Accepted that he suffers from ADD, takes medication for it and his understanding of the effect of ADD has helped him in anger management. accept his evidence that he is in fact compliant with the prescribed medications in preference to the petitioner’s conclusions that he is not compliant; ii. He is involved in continuing counselling with both qualified professionals as well as individuals within his church community to help him deal with such issues; iii. He says he is appropriately managing his frustrations and to minimize conflict with the petitioner he will withdraw to his room in the basement. [37] While the petitioner gave evidence of the fear she has of the respondent, do not find this evidence compelling. The evidence as whole satisfies me that the respondent has been making his bedroom and living space in the basement of the house at the petitioner’s request or insistence since 2015. Since early 2016 she has been asking him to vacate the family home. These are not the actions of spouse who lives in fear of partner. The respondent appears to have been largely compliant with what the petitioner has asked of him but his position is that he was not prepared to vacate the family home unless there is parenting agreement. Yet in her affidavit she states that she is extremely fearful of the respondent’s reaction once he is served with her application for exclusive possession and reviews the contents of her affidavit. The facts do not support an allegation that she fears the respondent and more to the point that the children are in fear of their father. [38] Given that: i. The parties have effectively been separated since 2015, albeit living in the same house; ii. The respondent has acceded to the petitioner’s request that he make his bedroom in the basement; iii. The respondent has taken employment, at the petitioner’s insistence or encouragement, with the consequence that he cannot continue as stay-at-home dad; iv. The petitioner has been asking the respondent to vacate the house for year and the respondent’s response was that he was prepared to do so if they can reach parenting agreement; v. The respondent has taken significant efforts since 2014 to deal with the concerns the petitioner has been expressing to him including stopping viewing pornography, installing the Covenant Eyes software on his computer and phone to provide assurances of the same; vi. The respondent accepts he has ADD, takes medication for the same and continues with regular counselling to deal with various issues, all of the above has occurred in context where there is no evidence of single occasion of physical threat being made or physical force being used. There is no evidence of any specific incidence of uncontrolled angry and out of control behaviour in the last two years. I conclude that the petitioner’s stated concerns of fear of the respondent to such a degree that he should be excluded from the family home or that put the children at risk of harm are not supported by the evidence and are unreasonable. [39] The conclusion that draw from the evidence as whole is that the respondent is doing all he can to accommodate the petitioner’s demands while ensuring that he continues to have the opportunity to parent the girls. Parenting and Possession of the Family Home [40] The applications came before me as the designated case management judge. without notice order of exclusive possession was obtained on August 18, 2016 and the respondent was required to vacate the family home as result. When the matter came before me had the benefit of the respondent’s affidavit, which was not before the judge granting the ex parte order. While not stated in the ex parte order, it is clear that the intent of that ex parte order was that it was to operate until the specifically contemplated application with notice could be heard by this court. [41] The family home is joint property and both the petitioner and the respondent are entitled to enjoy it. Neither is entitled to exclusive possession unless judge of this court sees fit to grant such an order having regard to those matters listed in s. of The Family Property Act. First and foremost of those considerations are the interests of the children. For the reasons given above do not find the allegations of pornography and masturbation addictions or the suggested risk of sexual abuse of the children by the respondent are justification or proper basis to exclude the respondent from the family home or such as to give the petitioner an enhanced right to possession over the respondent. have found there is no realistic risk to the children in the various allegations made. [42] As regards the anger allegations, for the reasons outlined above do not accept this evidence as basis to exclude the respondent from the family home and grant the petitioner exclusive possession. [43] Having concluded the above my focus must then turn to what is in the best interests of the children in the circumstances. The Best Interests of the Children [44] In her application the petitioner takes the position that it is in the best interests of the children that they continue to reside in the family home and be parented there exclusively by her. Absent other overriding considerations, it is in the children’s best interests that they continue to reside in the family home. Continuing to live in the family home will provide stability and level of comfort that would be severely compromised by the children having to periodically reside with another parent, particularly when one of the parents does not presently have the capability to establish proper home in which to parent the children. [45] On all of the evidence am satisfied that both parents are loving and concerned parents who will provide appropriate care notwithstanding that they clearly have different standards as to what are permissible activities, what is the required level of supervision, what level of assistance should be provided regarding school homework and the like. am also satisfied that it is unlikely that the parties can continue to both reside in the family home with the children. [46] Based upon their respective past parenting activities I am satisfied that it would not be in the children’s best interests for one parent to be classified as or be the primary parent. The principle of maximum contact is particularly applicable and workable in the circumstances of this case and I am satisfied that it is, at this time and in the present circumstances, in the best interests of the children that their parenting be shared on an equal basis. [47] Both parents have considerable flexibility in their work schedules. There is an existing caregiver who will be present in the family home to assist the parents while they are working. The children are now both of school age. [48] In her application the petitioner suggested that the respondent could simply move into vacant rental property that the parties own jointly. That opportunity is of course equally available to her and the financial resources that she has available to do so would make that very viable option for her. The same cannot be said of the respondent. [49] In the circumstances I have concluded that on an interim basis the best interests of the children are best served by a parenting regime sometimes called a nesting arrangement. The level of conflict that now exists between the parties, exasperated by the petitioner’s without notice application and the consequent ejection of the respondent from the family home satisfies me that, absent an understanding between the parties, it is no longer feasible for the parties to co-exist within the family home. [50] However both the petitioner and the respondent are presumptively entitled to the right of equal possession. The right of equal possession can be accommodated by nesting arrangement and it is my conclusion that nesting arrangement serves the present best interests of the children. [51] When delivered an interim order in open court on Friday, September 2, was attempting to remedy as quickly as possible the harm caused to the children by the peremptory removal of the respondent from the family home by the without notice order of August 18, 2016. concluded that the sooner the father was reintroduced back into the children’s lives, the easier it was going to be for normal relationship to be re-established. Accordingly gave an interim order from the bench that implemented nesting arrangement the next day. also specified that in my written decision might amend, modify or expand on the orders made in open court. The reasons for my decision are set forth above. My modified orders follow. Conclusion [52] I order as follows: a. The without notice order of August 18 granting the petitioner exclusive possession of the family home is terminated effective as of the time that so ordered in open court on September 2, 2016; b. The parties shall have joint custody of the children [name of child stated] and [name of child stated]; c. On an interim basis until further order of this court the parties shall share the parenting of the children on an equal basis on nesting arrangement within the family home; d. Under that nesting arrangement each of the parties shall be entitled to exclusive possession of the family home during their assigned periods of parenting; e. The nesting arrangement shall commence with the respondent parenting the children, in the family home, for the week commencing at noon on Saturday, September 3, 2016 until Sunday September 11, 2016 at noon. Thereafter the parties shall alternately parent for the following weeks until further order of this court with the changes in possession occurring at noon of each Sunday unless and to the extent otherwise agreed to by the parties in writing; f. The respondent shall not view or access pornography of any form or through any medium during any period of time when he is parenting the children; g. The respondent shall take any medications prescribed for his ADD in accordance with the instructions of his physician and continue with his current counselling; h. The petitioner shall be entitled to exclusive occupation of the bedroom she occupied in the family home and may place lock on the door. The respondent shall not enter this bedroom whether locked or not; i. The respondent shall be entitled to exclusive possession of the bedroom he occupied in the lower level of the family home and may place lock on this door. The petitioner shall not enter this room whether locked or not; j. Each of the parties are responsible for the purchases of groceries and household consumables used during their respective weeks of parenting. Each shall ensure that such staples of the kitchen and bathroom that are exhausted during their stay are restocked before their respective Sunday noon departures; k. Each of the parties shall ensure that the family home is clean, orderly and maintained to level consistent with what has historically been the practice; l. While periods of exclusive possession of the family home by the parties has been ordered, if the parties agree in writing, that they will revert to shared occupation of the family home and file that agreement with the court, then the exclusive possession aspects of this order may be suspended; m. Unless counsel for the parties are in agreement that it is not required, they shall schedule through the Registrar’s office return of this matter before me the week of October 10, so that refinements to the nesting order made may be considered or other applications counsel may see fit to bring can be considered. [53] award the respondent costs of $2,000 in any event of the cause to be payable by the petitioner within 30 days. These costs are awarded because it is my conclusions that: a. The without notice application was inappropriately and unnecessarily brought and when all of the evidence is considered have concluded that the August 18, 2016 order should not have been granted; b. The petitioner has not succeeded in her application for exclusive possession or supervised access only; c. The respondent has succeeded in his application that there be shared parenting and to set aside the exclusive possession order; d. Counsel for the petitioner failed, due to misunderstanding as to the adjourned date, to attend on September and thus counsel for the respondent was in attendance on both September and 2. “B. Scherman” J.
HELD: The court found that both parties were significantly involved in the day-to-day parenting of the children such that a conclusion that one parent or the other was the primary caregiver could not be made. The court also found that the respondent responded positively and appropriately to the petitioner’s concerns regarding masturbation and pornography. The respondent indicated that he had not watched pornography since December 2014 and that software on his cell phone and computer provide assurances that he had not watched pornography to the petitioner. The petitioner did not dispute that evidence. The court could not reasonably give weight to the petitioner’s opinion evidence regarding the respondent’s alleged addictions. The court listed numerous problems with the petitioner’s evidence of addiction. The court was unable to conclude that there was a risk of harm to the children caused by the respondent. With respect to the petitioner’s allegation of the respondent’s anger management problem, most of the incidents were dated. The respondent had since taken anger management counselling, accepted that he suffers from ADD, and began taking medication for ADD. The court held that it was in the best interests of the children to continue to reside in the family home and that it would not be in their best interests for one parent to be classified as or be the primary parent. It was also in the children’s best interests that their parenting be shared on an equal basis. A nesting arrangement was found to be in the best interests of the children. The court ordered that the parties would have joint custody of the children and each party had exclusive possession of the family home when they were enjoying their assigned periods of parenting. The parents would alternate weeks living in the family home with the children.