Court File and Parties

Court File No.: D19-224

Ontario Court of Justice

Between:

A.L.M. Applicant

— AND —

V.L.S. Respondent

Before: Justice Jane Caspers

Heard on: August 11, 2020

Decision on Motions released on: August 14, 2020

Counsel:

• Michelle M. Dwyer, for the Applicant
• Jonathan Krashinsky, for the Respondent

Part One – Introduction

1The parties are the parents of one child, K.L.M., born […], 2011 ("K."), aged 9 years. Both parties have brought motions addressing temporary parenting arrangements and schooling. The Applicant, A.L.M. ("father"), seeks a shared parenting arrangement and an order that K. be returned to Moorefield to attend M. Public School commencing in September. The Respondent, V.L.S. Schmidt ("mother"), seeks an order of sole custody and an order that K. attend R. Public School, in Elmira.

2After hearing the motions, the parties were advised that a decision with written reasons which would address the sole issues of residency and schooling would follow shortly.

3This is that decision.

4The court reviewed two affidavits from the father dated July 22, 2020 and August 4, 2020 and an affidavit from the mother dated July 29, 2020 and heard submissions from the parties both of whom were represented by counsel.

5In keeping with the Notice to the Profession regarding the Scheduling of Matters in the Ontario Court of Justice (Family) Guelph, dated June 25, 2020, the affidavits were limited to 4 pages only and the focus of any motion was to be limited to no more than two discrete issues. I thank counsel for having complied with this Direction. I have taken these factors into account. None of the affidavits has been subjected to any form of cross-examination.

Part Two – Issues

6The issues for the court to decide on these motions are these:

a) What temporary parenting orders are in the best interests of K.?

b) Which school should K. attend?

Part Three – Background Facts

7A brief summary of the agreed upon facts is as follows:

8The parties started living together in 2007. Their relationship was volatile and punctuated by separations of varying durations.

9K. was born on […], 2011. He is now 9 years of age.

10The parties separated on or about September 8, 2019 but continued to live together in the same residence in Moorefield until on or about November 20, 2019 when mother left the family's residence with K. following an altercation between the parties with K. present.

11The mother has now relocated with K. to Elmira, Ontario.

12K. attended grade 3 at M. Public School, Moorefield. Mother has now registered K. at R. Public School, Elmira.

13Father is employed full time at […], Moorefield. Mother has been employed at […], Elmira on a full-time basis since August 2019.

14Father commenced his Application on December 4, 2019. Mother responded with an Answer on January 3, 2020.

15The Office of the Children's Lawyer was requested to represent K. in this proceeding at a Case Conference held on March 10, 2020. By letter dated May 25, 2020, the Office of the Children's Lawyer declined engagement.

Part Four – Position of the Father

4.1 Parenting

Pre-separation

16The father seeks at a minimum equal parenting time with the mother. He submits that this was the status quo prior to November 20, 2019. He claims that he was an active and engaged parent. He states that he was involved in K.'s daily life and sites the following examples:

"bowling, fishing, ATVing, snowmobiling, hiking, baking, playing games together, bike rides, watching movies, assisting with toileting and personal hygiene, cooking and eating meals together, packing his lunch, attending medical/dental appointments, picking up K. early from school when he was ill or injured, attending school events, helping with homework and reading, and putting him to bed."

17The father states that as mother worked, he was responsible for maintaining the morning routine including feeding K. breakfast, getting him ready for school and driving him to the baby sitter. If father was finished work early, he would pick up K. after school. Otherwise he and mother would share the responsibility for collecting K. after school from the daycare provider, L.K.

18The father states that after the separation in September 2019 and while the parents resided together in the family home, he and the mother shared parenting on an equal basis. Mother would often vacate the home during his parenting time. He states that he often stayed in the home during mother's parenting time with their son.

Post-separation

19The father agrees that there was an altercation which resulted in mother's departure from the family home on November 20, 2019. His narrative as set out in his affidavit can be summarized as follows: he and the mother were arguing and so he took K. into the master bedroom with him to deescalate the situation as he did not want his son to witness the confrontation. The mother tried to force her way into the bedroom and in so doing caught her arm in the door. The mother was threatening and volatile. He then called the police as he was concerned about his safety and that of his son.

20The father denies the mother's allegations of domestic abuse.

21The father states that following the altercation on November 20, 2019, the mother unilaterally and without his consent permanently removed K. from the family residence.

22The father concedes that given the intervention of the police and child protective agencies on that occasion it was reasonable to expect that the mother might leave the house for a short period of time until tensions subsided, he did not expect that she would unilaterally relocate to another town and in so doing remove K. from his community, day care provider, friends and school and, in addition, refuse to disclose his whereabouts or provide any details regarding his well-being.

23The father denies that there was any oral agreement between the parties before or after November 20, 2019.

24For an extended period after November 20, 2019, he alleges that mother refused to allow him to see K. He claims that "dozens" of requests were made for additional access and holiday time, all of which were denied. For approximately one week following mother's relocation, he was not permitted to speak with K. on the telephone. When telephone communication did resume father maintains that he could hear mother coaching K. as to what to say.

25The father states that mother has refused to share information with him and that when information about K. is requested, he is accused of "harassing" her.

4.2 School

26The father alleges that on November 20, 2019 mother unilaterally and without his consent, removed K. from M. Public School where he had been in attendance from the start of his schooling until the middle of his grade 3 academic year.

27The father alleges that mother has deliberately interfered with his ability to communicate with professionals involved with K. by instructing them not to speak with him. In support, he cites the fact that the principal of R. Public School was advised by the mother not to provide any information to him and that if father were to attend at the school, the police were to be called. This is not refuted by mother in her affidavit.

28The father wishes K. to return to M. Public School where he has friends, teachers he likes and a supportive principal. Father states that prior to the separation he was working co-operatively with the principal to formulate a learning plan for K. to address issues associated with reading.

29The father alleges that as a result of the 2-week school break during the winter months, rotating strike days and the outbreak of the COVID-19 epidemic, K. has attended R. Public School for only 40 days and that he has not truly settled in his new academic environment.

4.3 Daycare

30The father states that mother took K. from his daycare provider, L.K., with whom he was closely bonded and whose care and attention he has enjoyed, when required, since 2016. The father states that the mother notified the daycare provider that K. would not be returning to her care before she notified the father.

31The father further states that mother arranged for K. to attend a new caregiver but that she refused to provide the name of the babysitter until March 2020. Father further alleges that mother instructed the new babysitter, N.R., not to speak with him nor was she to share information about K. with him. This is not refuted in mother's materials filed.

4.4 Counselling

32Both parents agree that K. would benefit from counselling. The Order of March 10, 2020 requires both parents to cooperate and confer to arrange for suitable counselling for K. The father wishes K. to attend counselling at By Peaceful Waters. He is prepared to pay the initial $700.00 retainer and a proportionate share of the ongoing costs.

Part Five – Mother's Position

5.1 Parenting

Pre-separation

33The mother says that she has always been the primary caregiver for K.

34The mother denies that there was any co-parenting of K. throughout the relationship. She challenges the assertions of the father that he was an involved parent. In fact, the mother significantly downplays his role as a parent. She notes that "he has never attended a dental or medical appointment for K." She states that he seldom participated in the nightly routine and never prepared K. for school.

35Contrary to the assertions of the father, the mother states that her separation from the father was planned and that a strategy was in place to address all the relevant issues. Her narrative outlines what she construed as the agreed upon plan: on December 1, 2019 she would leave the home and take K. with her. K. would continue at M. Public School until the end of the calendar year and would then transition to R. Public School in Elmira. She cites, in support of her position the fact that father scanned her rental agreement for her on November 8, 2019 so that she could send it to her new landlord. This father denies.

36The mother alleges that she was the victim of domestic abuse by the father.

37The mother states that it was the incident which took place on November 20, 2019 which accelerated her timeline by some ten days. In her version of events, the mother asserts that on November 20, 2019, the father locked K. in the master bedroom. She states that K. was crying and yelling "I want my mom, let me out dad" repeatedly. She asserts that she forced her way into the bedroom and that as she did so, the father pushed her into the wall and slammed and held the bedroom door shut on her arm. The mother acknowledges that the police attended but she does not say who called them. On the recommendation of either the police or a social worker, she left the residence with K.

Post-Separation

38The mother denies that she has frustrated the father's ability to have time with K. although she does acknowledge that she suspended access while Waterloo F&CS was completing its inquiries.

39The mother states that as the parties were jointly planning her relocation to Elmira, it was agreed that the father would have alternate weekend access from Friday at 3:30 pm until Sunday at 7:00pm (extended to Monday if it were a holiday) and each Tuesday and Thursday evening from 3:30 pm to 8:30pm. This was, according to the mother, a schedule in keeping with the general thrust of the Order of Justice Snowle made in 2012, when K. was 6 months of age, and when the parties were litigating in the Superior Court of Justice. She states that she and the father entered into the arrangement on their own and with the assistance of Waterloo F & CS.

40The mother has a predictable work schedule from 8:00 am to 5:00 pm and has child care arrangements made for K. She does not have to work on weekends.

41The mother is concerned that the father's work schedule as a millwright will not allow him to provide care for K. as he works from 7:00 am to 3:30 pm daily, plus overtime and is on call some weekends and week nights.

5.2 School

42The mother states that she enrolled K. in R. Public School, Elmira, on November 25, 2020 in advance of her anticipated move on December 1, 2020. Mother claims that K. is a happy, healthy child who has a "great" relationship with his daycare provider, his teachers and his friends at the new school. This is supported by the letter from J.S., Child and Youth Worker dated April 6, 2020 attached as an Exhibit to the mother's affidavit.

5.3 Counselling

43K. has been enrolled in Divorce Care 4 Kids which began in January 2020 and in the Celebration Place support program. Mother says that she cannot afford the fees for By Peaceful Waters but would be willing to engage if the father would pay the cost.

Part Six – Temporary Custody

6.1 Legal Considerations

44Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application, whether temporary or final, shall be determined on the basis of the best interests of the child.

45Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interest determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.

46The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) at paragraphs 50 and 54.

47The status quo is a very important consideration on temporary motions for custody and access. See: McEachern v. McEachern; Panaia v. Alves, 2020 ONCJ 255. The status quo whereby the children were enjoying maximum contact with their parents should not be lightly interfered with unless there are compelling reasons to do so. See: Lafond v. Blouin, 2020 ONSC 2396.

48Parties should be discouraged from using self-help to establish a new status quo. See: Howard v. Howard, [1999] O.J. No. 3164 (Ont. Fam. Ct.); Nyari v. Velasco, 2008 ONCJ 272. In Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.), it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.

49In C.Y. v. F.R., 2020 ONSC 1875, the court ordered the children returned to the mother when the father unilaterally attempted to alter the status quo.

50In Raifi v. Raifi, 2014 ONSC 1377 , the court stated the following at paragraphs 21 and 22:

21. The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be trusted with custodial authority they would likely abuse. Izyuk v. Bilousov, 2011 ONSC 6451 ; Clement v. Clement, 2010 ONSC 1113

22. Where only a short amount of time has elapsed between the deliberate creation of a new status quo in the hearing of the temporary motion, the court will be more inclined to presume that her restoration of a previous successful status quo is appropriate. Kennedy v. Hull, 2005 ONCJ 275 , 2005 O.J. 4719.

51A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

52An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962.

53If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.

54Children should have maximum contact with both parents if it is consistent with the children's best interests. See: Gordon v. Goertz, supra.

55The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

6.2 Who Was the Primary Caregiver for the Children Prior to the Separation?

56The parents have conflicting accounts of what parenting looked like both before and after separation.

57Dual-earner families with young children will strive to have compatible work schedules to meet the needs of their children and will allocate the child care responsibilities as necessary. I find this to be the case here. Both parents worked. When one parent was working, the other parent cared for K. When neither parent was available, then the mother and the father settled on a child care provider. There is nothing filed by either party to suggest that both parents did not contribute equally to raising their son or that one parent's role surpassed that of the other.

58In this case, despite the separation which took place in September 2019, the mother and the father were able to reside together in the same home and to provide care for K. until the unfortunate occurrence of November 20, 2019.

59The evidence before me today supports the father's position that the parties shared the caregiving responsibilities prior to November 20, 2019.

6.3 Was There an Agreement to Share Parenting Time After Separation?

60The father asks this court to accept that he did not know of mother's intention to leave the home. I cannot accept this proposition. It is unreasonable to suggest that father was completely oblivious to mother's intention to relocate and establish an independent residence at some future date as he claims. The parties had separated and continued to live together in the same residence. But surely a physical separation with a change of residence by the mother was inevitable. I accept mother's evidence regarding the rental agreement and the fact that father was aware of her intention to move in December, 2019.

61Father denies that there was any agreement between the parties' post-separation.

62Mother asks the court to accept that the parties tailored an agreement premised on an Order made when K. was 6 months of age. In summary, she would have custody of K. and father would have alternate weekend access supplemented by more expanded access on holidays. I do not accept that such an oral agreement existed. However, even if that were the case, mother has certainly not complied with the terms of what she says was the settled intention of the parties regarding parenting.

63Based on the evidence before me I cannot find that there was an agreement with respect to parenting time after separation.

64K. has a close bond with his parents. I draw this conclusion from the Interview Record dated November 27, 2019 attached to the mother's affidavit as Exhibit "A" wherein K. is noted that he was "feeling sad and did not want them [his parents] to separate." These simple words reveal a regret that the parents have separated and a poignant longing for the family to be reunited. K. appears to be a conflicted child who is trying to give each parent what they want.

65In keeping with the maximum contact principle, K. should spend as much time as possible with both parents. There has been no evidence presented to show why any contrary arrangement would be in his best interest.

6.4 Status Quo

66The mother posits that her relocation in November 2019 created a status quo. I do not agree. A status quo as the line of cases dictates, means a primary or legal status quo not a short-lived status quo to obtain a tactical advantage. That is what has happened here. The mother's conduct cannot now be used to bolster the claim that the parenting arrangement that she wishes the court to adopt is the one that should prevail by virtue of her relocation.

67The mother's relocation did not create a new status quo. I find that the true status quo was established in Moorefield where, prior to November 19, 2020, there existed a shared parenting arrangement.

6.5 Abuse Allegations

68The parents have differing accounts as to what occurred on the evening of November 20, 2019. Waterloo F&CS and the police were involved but no charges were laid. No child protection proceedings were commenced. Having said that, the absence of charges in no way absolves either parent from such behaviour in the presence of, or for that matter, away from, K.

69The court placed very little weight on the allegations of abuse of the mother by the father. The evidence presented about the allegations is unreliable.

70The existence of parental strife does not in and of itself mean that either parent cannot fulfill his or her obligation to be a nurturing and supportive parent. It is possible to be a good parent if not a good partner. The starting point is to ensure that a child is physically and emotionally safe. I believe that both parents can meet that threshold.

6.6 The Ability of Each Parent to Facilitate a Positive Relationship with the Other Parent

71The question that must be answered is this: which parent encourages the most productive relationship with the other parent?

72A starting point to assess a child's best interests when making a custody and access order is to ensure that the child will be physically and emotionally safe. Both parents have viable plans which would meet the physical and emotional needs of K. Schools are accessible in each location and day care is in place. It has been determined that the parties live approximately 20 minutes apart. It is not such a distance that would make shared parenting unworkable.

73Mother proposes alternate weekends and two evening visits during the week.

74Father proposes an equal sharing of time. He undertakes to keep mother fully informed with respect to any development while K. is in his care and to maintain open lines of communication. He is employed at a family operated business where his parenting commitments can be accommodated.

75Maximum contact between parents and children should not be lightly interfered with unless there are compelling reasons to do so. No such reasons have been advanced by mother. In the absence of a court order that addresses the maximum access principle, there is a real concern that the relationship between father and son may well be eroded.

Part Seven – Schooling

76In making this decision, the court is faced with limited and contradictory affidavits.

77K. attended M. Public School until November 20, 2019 when he was unilaterally removed by his mother. These steps were taken by the mother notwithstanding her own evidence that even if she moved to Elmira in December 2019 as she says was the plan, K. would remain in his school until the end of the calendar year. She did not stand by this undertaking.

78Father wants K. returned to his school in Moorefield, where he has thrived, has a positive relationship with staff and has lots of friends. He would maintain his daycare provider with whom he has a close relationship and he would take the bus to school from her home at the beginning of the day and return to her home, by bus, at the end of the school day. In short, father seeks K. returned to the community where he has spent his entire life.

79Mother has enrolled K. in R. Public School in Elmira. It appears that although he has spent only a short time at the school, he has developed a positive rapport with staff and has made good friends. According to the affidavit evidence, his school is only a 4-minute drive away. A new daycare provider has been selected to provide care as necessary.

80The decision with respect to the issue of schooling is a difficult one and must be determined through the child's lens and not in accordance with the wishes of either parent.

81Both schools seem equally acceptable. Neither school appears to have any advantage over the other. I have no independent information by way of school reports to tell me how well K. is progressing, whether he is adjusting well or whether he has the network of friends that mother speaks to.

82On a cautionary note, the court is concerned about mother's high-handed approach to the move and to her son. She instructed the principal not to speak with the father or provide any information to him once K was registered at R. Public School. Indeed, the evidence is that if father were to attend at the school, the police were to be called. Similarly, mother told K.'s daycare provider, L.K., that her services were not needed before she advised father and then she made her own daycare arrangements in Elmira and refused to provide contact information. This is not good parenting. This is unacceptable behaviour and certainly not child-focused. Having said that the child should not be penalized for mother's misconduct.

83K. has been exposed to a number of significant changes in his young life. He has witnessed the breakdown in his parent's relationship, he has witnessed a physical altercation between his parents which brought police and social workers to his home, he was taken out of his home, school and familiar surroundings on a moment's notice by his mother and at a time when contact with two loving parents ought to have afforded him security, access with his father was frustrated.

84In this COVID-19 environment, parents are wrestling with new and unfamiliar concerns. K. has, as have most children, been isolated – separated physically from friends, has had his activities restricted, has been unable to partake in his favorite warm weather events and has been deprived of so many wonderful experiences that can expand a child's world. This adds to his fragility and vulnerability.

85This court does not wish to add to any anxiety K. may be experiencing. It is only conjecture but given that K. has been living in Elmira, he has probably made friends with whom he will go to school and given the proximity to school reopening – in whatever form that may take – he is probably excited and preparing himself to return to R. Public School despite the fact that his time there has been brief. Therefore, K. will attend school at R. Public School commencing in September.

86We need to trust that schools will make decisions that will keep our children safe and parents informed especially in this challenging climate. K. needs the support of both parents and his parents need to keep each other informed as to his progress and any emergent issues.

87I fully expect that both parents will be involved in K.'s education. They both have much to offer their child. With an equal time-sharing arrangement, the father will have the time and the opportunity to supplement K.'s education.

Part Eight – Counselling

88Both parents agree that K. needs counselling. Both mother and father appear to accept that By Peaceful Waters is an appropriate counselling resource. K. is to be enrolled as soon arrangements can be made.

Part Nine – Conclusion

89The determination of these issues – residency and schooling – must be made in K.'s best interests.

90It is in the best interests of K. to order interim shared custody. It is in the best interests of K. that he commence his schooling at R. Public School in September, 2020.

Part Ten – Order

91A temporary order shall go on the following terms:

1. The child, K., born […], 2011, shall reside with the Applicant Father, and the Respondent Mother as follows:

a. REGULAR SCHEDULE: The child shall reside equally with each parent, on a "week-about" basis, with the exchange taking place on Fridays at 3:00 p.m.;

b. The HOLIDAY SCHEDULE shall override the Regular Parenting Schedule:

i. EASTER: The child shall be with the Applicant Mother from after school on Thursday until 6:00 p.m. on Saturday and with the Respondent Father from 6:00 p.m. on Saturday until his return to school on Tuesday;

ii. MOTHER'S DAY / FATHER'S DAY: The child shall be in the care of the Mother/Father on Mother's Day/Father's Day weekend, from Saturday at 6:00 p.m. until his return to school on Monday;

iii. VICTORIA DAY, CANADA DAY, AUGUST CIVIC HOLIDAY and LABOUR DAY: In even numbered years, K. shall be with the Mother on the Victoria Day weekend and the August Civic Holiday weekend and with the Father on the Canada Day long weekend and the Labour Day long weekend, from 9:00 a.m. on Friday until 9:00 a.m. on Tuesday. In odd-numbered years, K. will be with the Father for Victoria Day and the August long weekend and with the Mother for Canada Day and Labour Day, from 9:00 a.m. on Friday until 9:00 a.m. on Tuesday. If Canada Day is not on a weekend, the parent who has K. in his/her care that year may choose which weekend to have K., for the time period set out above, advising of his/her chosen weekend by no later than April 1st of each year; and

iv. CHRISTMAS: In even-numbered years, K. will be in the care of the Applicant Father from 3:00 p.m. on December 24th until 1:00 p.m. on December 25th and he shall be in the care of the Respondent Mother from 1:00 p.m. on December 25th until 6:00 p.m. on December 26th. The balance of the winter school break shall fall in accordance with the Regular Parenting Schedule.

2. Each parent shall be responsible for picking up the child at the commencement of his/her parenting time;

3. If either party is unable to care for K. during his/her parenting time for a period of 6 hours or more, s/he will advise the other parent and give him/her the opportunity to do so;

4. Commencing in September of 2020, the child shall attend R. Public School, Elmira;

5. Each parent shall be entitled to communicate directly with and receive information from all third-party professionals involved with the child and each parent shall execute any consents necessary to facilitate this term of the Order.

6. The child shall be enrolled in By Peaceful Waters as soon as counselling services resume. The Applicant Father shall pay any retainer required. Thereafter the costs for ongoing counselling shall be shared proportionately.

7. The matter is adjourned until September 21, 2020 at 11:00 am for a Case Conference. Unless otherwise notified, the conference will be held in person.

8. If the parties cannot reach an agreement on the issue of costs, costs submissions may be filed by August 28, 2020. Any reply may be filed by September 11, 2020. The submissions should not exceed 3 pages, not including any offers to settle or bills of costs. The submissions should be emailed to the trial coordinator.

9. The parties are encouraged to use this adjournment period to negotiate an agreement of the issues before the court in good faith. It is very important that they do their best to resolve these issues and protect the children from further conflict.