In the case of Ene v Ene 2015 ONSC 867, the mother brought a motion seeking a number of orders including sole custody and primary residence of the 5-year-old daughter. The older daughter, who was 16, lived with the father, which the mother was not contesting.
Both parties allege abuse by the other. As the parties were in the process of separating, but still living in the matrimonial home, the mother left the matrimonial home with the 5-year-old daughter without telling the father. She sent him a short email in which she said she considered the marriage over and that her lawyer would soon be in touch with him, but did not tell him where she and the child were or make any suggestions about access.
Within a few weeks, the mother had served the father with an Application, a notice for an urgent case conference and a Notice of Motion. In her Form 35.1, she alleged the father had been “verbally abusive and physically hurtful towards her in the presence of the children.”
A number of court appearances followed, with both parties arguing their cases strenuously in their written materials. The mother submitted a very large number of affidavits to support her claims.
In making her order, Justice McGee noted that the mother’s actions “can only be interpreted as her personal, perhaps even panicked, response to the breakdown of the marriage. . . . It simply cannot be said that she has acted with a view to [her daughter’s] best interests.
Justice McGee was troubled by the fact that the mother had taken no steps to pursue a relationship with her older daughter, who was living with the father, or to ensure that the sisters would be able to have time together. “This is quite telling, and may ultimately prove to be the greatest harm caused to [the younger daughter].
She found that immediate action was warranted, and ordered that the younger daughter was to spend 3 weeks with her father, with no contact between the daughter and her mother for the first seven days. Following that, the child would move back and forth between her parents on an equal time share arrangement.
Justice McGee noted that the case was at a very early stage, so long-term determinations could not yet be made:
The parents are separated. The marriage is over. [The daughters] will now have a residence with each parent. 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 has yet to be determined.