Recent case: Urgent motion for temporary custody

Recent case: Urgent motion for temporary custody

Justice Pazaratz begins his decision in Coe v Tope (2014 ONSC 4002) by venting his frustration with parents generally who, at least in his opinion, fail to put the best interests of their children first. He writes:

BREAKING BAD PARENTS: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation, oblivious to the impact on their children.

The parties in this case separated but remained together in the matrimonial home for almost a year. Neither party took any steps to resolve what arrangements would be made for their two young children (aged 3 and 5 at the time of separation) until very shortly before the home sold, at which point the mother began an Application for custody or residency of both children.

Before the father filed his Answer, she brought an urgent motion for an interim resolution with respect to custody and child support. The father sought equal timesharing and equal parenting involvement while the parties used ADR to resolve the issues on a longer-term basis.

The case was in front of the court three times in one week, including the appearance in front of Justice Pazaratz that led to this decision.

It is his opinion that the parents are pretty evenly matched in terms of their abilities to meet the best interests of the children. He makes the point that at an early motion all the judge has is a “first glance,”  rather than the opportunity to conduct a comprehensive assessment of extensive evidence.

On the motion, the parents each raised many issues about the other. Among the mother’s claims is that the father was physically, verbally and emotionally abusive and intimidating. The father denied this claim.

In dismissing most of the allegations being leveled by each parent against the other, Justice Pazaratz notes that there is a place for urgent motions:

This file —  this family – has gotten off to a terrible start with needlessly confrontational and hurtful affidavit materials. I say this not to discourage prompt and effective access to the courts where truly dangerous circumstances warrant. Physical and emotional safety is always the paramount concern. But there’s nothing about this case that justifies the level of nastiness and entrenchment which has quickly emerged. Particularly where young children are involved, wherever possible we should err on the side of healing as opposed to warring.

He determines that the parenting arrangements while the family all lived under one roof was effectively shared parenting and that this is what should continue on an interim basis until the parents sort out a long-term plan on their own, through the use of parenting professionals or ADR or, if necessary, through litigation.

In concluding his decision, he provides the parents with more unsolicited advice about how they should behave:

Stop! Stop being nasty. Stop jockeying for position. Stop playing hardball. Stop acting like you hate your ex more than you love your children.

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