minicounsel

DATE: 2024 03 22 COURT FILE No.: FO-23-43889-00

BETWEEN:

KELSEY BOWERS Applicant

— AND —

JUSTIN SNIDER Respondent

Before Justice Jennifer S. Daudlin

Heard on February 29, 2024 Reasons for Judgment released on March 22, 2024

Counsel: Sarah Boulby.................................................................................. counsel for the applicant Surinder Multani........................................................................ counsel for the respondent

1The Father has brought a motion to change the temporary without prejudice parenting time order of Paulseth J., dated August 16, 2023 (“the existing order”), to his 18-month-old son (“the child”). That Order, made on consent of the parties, provides:

(1) The Father would have access to information relating to the child pursuant to subsection 20(5) of the Children's Law Reform Act (“CLRA”), and

(2) The Father would have temporary without prejudice supervised parenting time through Brayden twice per week for two hours.

2The Father seeks to expand his parenting time with the child from two hours supervised by a supervised parenting centre twice per week, as follows:

(1) Stage One: Commencing immediately for one month, six hours supervised twice a week.

(2) Stage Two: Following the conclusion of Stage One and for one month, eight to nine hours unsupervised twice a week.

(3) Stage Three: Following the conclusion of Stage Two and pending further Order or agreement, unsupervised:

(a) eight to nine hours twice a week, and

(b) One twenty-four-hour period per week.

3For all stages of the proposed parenting time, the Father asks that:

(1) Parenting time be dependent on his work schedule which he would provide the month before his parenting time.

(2) Parenting time be confirmed two weeks in advance of the visit taking place.

(3) Each party would be responsible for picking up the child at the start of their parenting.

4The Mother brings a cross-motion seeking:

(1) The appointment of an assessor pursuant to section 30 of the CLRA or, in the alternative, a referral to the Office of the Children's Lawyer (“OCL”).

(2) Disclosure of the Father’s work schedule every six months.

(3) Temporary without prejudice parenting time to the Father every Sunday, Tuesday, and Thursday from 3:00-5:00 p.m., on the following conditions:

(a) The regular parenting schedule may be modified to accommodate the Father’s work schedule when he has provided proof that he is required to work during the regularly scheduled parenting time.

(b) Parenting time shall be supervised by Brayden Supervision Services Inc. (“Brayden”), or by his mother at his step-sister’s home or at a place agreed to by the parties, in writing.

(d) The cost of supervised parenting time to be paid for by the Father, subject to reapportionment at the time the Mother’s claim for retroactive child support and contribution for section 7 expenses is determined.

(4) Holiday parenting time as agreed to by the parties.

5The Mother opposes the Father having unsupervised parenting time, but is agreeable to a small increase in his parenting time to two hours three time per week.

6The Father opposes the Mother’s cross-motion, but during the hearing agreed to a referral to the OCL, provided parenting time was immediately expanded.

7The issues for the court to determine are:

(1) Is the evidence sufficient to demonstrate that an assessment pursuant to section 30 of the CLRA or, in the alternative, a referral to the OCL, is warranted?

(2) If so, should the Court defer its determination of what temporary parenting time order is in the child’s best interests until its receipt of any report?

(3) If not, what temporary parenting time order is in the best interests of the child?

Part Two: Background

8The Mother is 32 years old. The Father is 39 years old.

9The parties dated between 2019 and 2022. They never lived together.

10The parties have one child together, Michael Jacob (“MJ”) Bowers-Snider, born […], 2022. He is 1.5 years old.

11MJ has always lived with his Mother.

12The Mother is a speech pathologist. She is currently on maternity leave. She is anticipated to return to work at St. Michael’s Hospital in May 2024.

13The Father works as a Broadcast Technician for Bell Canada where he has worked for seventeen years. He works on a six-week rotating schedule. He works 12-hour shifts during the days or evenings; eighty-hours bi-weekly. He receives his schedule two-to-three months in advance.

14MJ is scheduled to begin daycare in March, starting with 2.5 hours daily with a goal of gradually increasing to full-time daycare by May 2024 when the Mother is scheduled to return to work. The purpose of the transition is to allow the daycare and MJ to work through any challenges with his feeding and sleeping, with the support of his occupational therapist.

Part Three: MJ’s Health

15MJ has multiple health issues, for which he sees multiple healthcare professionals.

16MJ has been diagnosed with laryngomalacia which affects his breathing and eating and he suffers from reflux. His pediatrician, Dr. Hilal, has referred MJ to:

(1) Ear, Nose, and Throat (“ENT”) specialist, Dr. Seaberg, who then referred MJ to Dr. Wolter, an ENT at the Hospital for Sick Children in Toronto.

(2) X-Ray and bloodwork. The X-Ray identifying a thickened adenoid tissues with narrowing of the nasopharynx. Surgery may be required.

(3) Dr. Rosenthal, a pediatrician at a sleep clinic, who then referred MJ to a sleep study electroencephalogram (“EEG”).

(4) Jessica Faith, an occupational therapist at Ellen Yack & Associates Pediatric Therapy, who assists with his feeding issues.

17The Mother attests that MJ’s feeding issues result from a lack of strength and coordination of his oral muscles, so he is unable to drink from a cup or bottle. He also experiences solid food refusal, and texture aversion. He continues to get most of his liquids and nutrients from breastfeeding.

18Regarding his sleep problem, the Mother reports that MJ wakes as many as twenty times a night. He breastfeeds frequently overnight, and when he is sleepy during the daytime.

Part Four: MJ’s Parenting Time

19MJ’s parenting time with his Father has been supervised on a voluntary and interim without prejudice basis since birth, and can be summarized as follows:

(1) Between his birth ([…], 2022) and April 26, 2023: a few hours each week as arranged by the parties, supervised by the Mother or the Mother and the maternal grandmother at their home or in the community.

(2) Between April 27, 2023, and approximately May 23, 2023: parenting time was either suspended by the Mother or not requested by the Father following a disagreement between the parties on April 26, 2023.

(3) Between May 23, 2023, and September 11, 2023: four hours per month, supervised by the Mother and the maternal grandmother in the community. MJ’s paternal grandmother also attended periodically.

(4) Between September 11, 2023, and December 15, 2023: parenting time expanded to two hours twice weekly, supervised at Brayden.

(5) December 15, 2023 and following: parenting time two hours twice weekly, supervised at the paternal aunt’s home. [1]

Part Five: History of Litigation

20The Application was issued on May 8, 2023, and the Answer/Claim was filed on June 27, 2023.

21On August 16, 2023, the parties attended a Case Conference before Paulseth J., who made the existing order.

22Two further Case Conferences were held before Bondy J. on October 10 and November 9, 2023. The Father’s parenting time was discussed at both, but there was no expansion of parenting time was agreed to.

23On November 9, 2023, Bondy J. endorsed:

It appears to this Court that the Father’s desire to move this matter along and move his parenting time to an unsupervised basis has been met with considerable delay and resistance by the Applicant Mother.

The Father has complied with the Mother’s request for supervised access (at considerable cost), a safety assessment, a parenting course and attempts at mediation which have not been fruitful or productive at resolving the issues.

24Bondy J. granted leave on that date for:

(1) The Mother to bring a motion for OCL intervention or an assessment, and

(2) The Father to bring a motion for temporary unsupervised parenting time on a graduated basis.

25The parties’ motions were scheduled to be argued on December 18, 2023, and specific limitations on affidavit material were ordered. [2]

26The motions were administratively adjourned to February 29, 2023. [3]

27The Father’s motion and Mother’s cross-motion were argued before me on February 29, 2023. [4]

28The pleadings, the parties’ 9 affidavits, including their respective Form 35.1 Affidavits, and their Statements of Law were reviewed in consideration of both motions.

Part Six: Position of the Parties

6.1.1 The Father’s Position

29The Father asserts that his parenting time should not be supervised and should gradually expand for the following reasons:

(1) According to the Brayden supervision notes, MJ is thriving and enjoying their time together. Despite limited interaction, MJ and he have developed a close and securely bonded relationship. He has maintained consistency in exercising parenting time despite his fluctuating work schedule and the roadblock erected by the Mother. He believes he deserves a meaningful opportunity to parent MJ and nurture their relationship further.

(2) He has demonstrated his ability to meet MJ's needs during their time together. MJ comfortably accepts food, drink, and naps in his care. He asserts his capability to meet MJ's needs on par with the Mother. He has actively engaged in improving his parenting skills by completing the Triple P parenting program, collaborating with medical professionals (within the limits imposed by the Mother), and adhering to their recommendations. Additionally, he communicates regularly with the Mother regarding MJ's well-being.

(3) MJ is scheduled to commence full-time daycare in March, initially attending for 2.5 hours per day with plans to transition to full-time attendance by May. The Father sees this as an opportunity for extended parenting time with MJ.

(4) He emphasizes his role as a loving parent with the support of his family. [5] He poses no safety concerns for MJ and ensures suitable accommodations for MJ's age, which have been assessed by Renew Supervision Services to ensure proper baby proofing. He remains dedicated to ensuring MJ's safety in any environment.

6.1.2 The Mother’s Response

30The Mother acknowledges that there has been an improvement in the Father’s parenting time since it began, and proposes that the expansion of the Father's parenting time should be restricted to one additional two-hour supervised visit per week until a section 30 assessment or OCL Report is completed, and recommendations regarding the best parenting schedule for the child are received.

31The Mother contends that the Father's behavior is abusive, threatening, and intimidating. She also highlights his irresponsibility regarding marijuana use in the presence of the child, his unsafe living conditions, and his disregard for MJ's medical needs. She argues that increasing the duration of parenting time or reducing the level of supervision would pose a safety risk to MJ.

32The Mother maintains that continued supervision and a cautious approach to expanding MJ's parenting time with his Father are justified because:

(1) The Father exhibited minimal involvement and disinterest in MJ's life since before birth, displaying resentment towards the pregnancy and providing no financial or emotional support for MJ.

(2) Concerns arise from the Father's heavy marijuana use, with fears of irresponsible usage around the child.

(3) Safety concerns exist regarding the Father's residence, deemed unsuitable for a toddler due to its location in an unsafe neighbourhood, hazards within the building, and the Father's prior cautionary remarks about safety.

(4) She harbours fear due to the Father's history of explosive temper, threats towards her, and intimidating behavior, including brandishing a knife.

(5) The Father's inconsistent attendance and refusal to commit to a fixed parenting schedule raise concerns about stability for MJ.

(6) The Father is unable to address the child's specific medical requirements, which include adhering to medical advice, accommodating the child's feeding and sleep schedule, and ensuring adequate intake of nutrients and fluids, particularly in the absence of the child being able to breastfeed.

(7) MJ's structured routine, including eating, sleeping, and breastfeeding, is disrupted by the distance between the parties' residences, necessitating parenting time near her home for consistency.

(8) Communication issues persist between the parties, particularly during parenting exchanges. There is a notable reluctance on the part of the Father to communicate information concerning the child effectively and promptly, particularly regarding his health.

33The Mother contends that an assessment pursuant to section 30 of the CLRA (or alternatively, a referral to the OCL) is justified due to the child's young age, specific vulnerabilities, and fragility, as well as his clinical diagnoses, the history of family violence, the Father's marijuana usage, the high level of conflict, and the lack of communication between the parties. These factors necessitate the expertise of a professional who can evaluate and report to the court on the child's needs, and who can develop and recommend a parenting plan that best addresses those needs.

34The cost of such an assessment is feasible for the parties, and the recommendations provided by an assessor or OCL clinician may facilitate settlement between the parties or offer valuable insights to the court should the case proceed to trial.

6.1.3 The Father’s Reply

35The Father refutes the Mother's accusations against him, asserting that he has never posed a safety threat to either the Mother or MJ. He emphasizes his ongoing efforts to nurture his relationship with MJ and to showcase his ability to co-parent with the Mother. The Father indicates his acceptance of the Mother's terms regarding parenting time, encompassing aspects such as location, duration, frequency, and supervision level to sustain his bond with the child. However, he alleges that the Mother persistently seeks grounds to limit, disrupt, and impede the father-child relationship.

36The Father's stance is that an assessment under section 30 of the CLRA is unnecessary. While he would agree to an OCL Report if requested, he also views it as unnecessary.

37The Father contends that clinical issues are absent in this case, asserting that the Mother's allegations of conflict and abuse are unsubstantiated and not of a clinical nature. He suggests that while a third-party opinion on the child's best interests may be helpful, it is not essential given MJ's lack of behavioural or significant clinical issues and his young age, where his views may carry limited weight.

38Furthermore, the Father argues that the facts necessary to determine MJ's best interests can be obtained through less intrusive, less expensive, and more expedient means than a section 30 assessment or an OCL Report, and therefore, he opposes their imposition.

39In the event that either process is ordered, the Father’s position is that parenting time should be expanded to ensure both parents have an equal opportunity to participate in the process on a level playing field.

40The Father states the Mother’s concerns are manufactured in an effort to estrange MJ from him, and views the request for an assessment or OCL Report as a further delay tactic by the Mother. He believes this is the case because when he addresses one of the Mother’s concerns, she raises brand new ones.

41The Father responds to the Mother’s concerns as follows:

(1) The Mother has hindered his involvement in MJ's life by excluding him from prenatal appointments, delivery room access [6], and medical appointments. Despite eventually consenting to share medical information, she limited his involvement by instructing the child's doctor to exclude him from decision-making and as a named parent on the child’s file. [7]

(2) The Mother has controlled all aspects of parenting time, suspended visitation until legal intervention, and refused any reasonable expansions without court involvement. [8]

(3) Disputing claims of marijuana use, he voluntarily underwent drug testing with negative results and provided a letter from his employer confirming his consistent work attendance. [9]

(4) Addressing safety concerns about his residence, he arranged a Baby Proofing Evaluation Report [10] and clarified that safety issues primarily concern downtown Toronto's general environment rather than specific hazards within his building.

(5) He denies being abusive, threatening, or intimidating, stating that during parenting time, he typically responds to disagreements with withdrawal and silence, refuting any allegations of intimidating behaviour. He refutes the accusations of threatening the Mother or endangering MJ's safety, and denies using a pocketknife to intimidate her, stating he innocuously used it to open a Christmas present.

(6) He denies the Mother's accusations of inconsistent parenting and asserts his willingness to accommodate visitation schedules. He explains his flexibility in the hope of reaching a reasonable agreement on expanding parenting time.

(7) He explains gaps in supervised visits at Brayden, attributing them to court dates or scheduling conflicts, and emphasizes his commitment to engaging with MJ during visits.

(8) He clarifies that his current six-week rotating work schedule makes it difficult to set fixed parenting times. Although he requested a transfer to a position with daytime hours in August 2023, a hiring freeze has delayed this change. Nonetheless, he is willing to keep providing his work schedule to the Mother for advance planning of parenting time.

(9) He denies denying MJ's medical diagnoses or neglecting medical advice. He explains that his limited parenting time has prevented him from observing MJ's health challenges as the Mother has observed them. While he receives occasional updates from the Mother, he is often excluded from medical appointments and recommendations. He says, only after accessing MJ's medical records, initially withheld by the Mother, did the extent of the issues become clear.

(10) He states he wants to participate in medical appointments to understand MJ's needs better, and to share his observations of MJ so the doctors have a more complete picture of what’s happening. He is fully committed to following their recommendations to support MJ. However, the Mother refuses to allow him, citing fears of interference and past allegations of threatening behaviour, which he denies.

(11) He argues that the Mother's fear of parenting time disrupting MJ's doctor-recommended feeding and sleeping schedule contradicts her daycare plans and serves as a barrier to his parenting time. He asserts his willingness to follow the schedule with guidance from healthcare professionals, highlighting proactive steps like purchasing specialized items and maintaining logs after parenting time. He denies resistance to these measures, disputes the necessity of breastfeeding relying on the recommendation of Dr. Rosenthal to wean off breastfeeding, and emphasizes meeting his ability to MJ's needs during his parenting time is supported by Brayden's notes.

(12) He acknowledges the limited communication with the Mother during parenting exchanges, attributing it to the Mother's focus on the child. He expresses concern about new allegations and prefers communication through the Our Family Wizard platform. The Father denies being unresponsive outside of parenting time, asserting the Mother's lack of responsiveness.

Part Seven: Legal Considerations and Analysis

7.1 Section 30 Assessment and OCL Report

7.1.1 Legal Considerations

42The Court must determine what parenting time order is in the child’s best interests.

43In this case, the Mother asserts that it is in the best interests of the child that there be no expansion of parenting time beyond the addition of a third two-hour visit per week, pending the completion of an assessment pursuant to section 30 of the CLRA, or a report by the OCL in the alternative.

44Subsection 30(1) of the CLRA provides the authority to the court to “appoint a person who has the technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child”.

45Subsection 89(3.1) or section 112(1) of the Courts of Justice Act (the “CJA”) grants the court the authority to request the support of the Office of the Children's Lawyer in cases involving decision-making responsibility, parenting time, or contact concerning a child under consideration by the court.

46An OCL report differs from a full CLRA s. 30 expert assessment. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word. [11]

47The Court can only make a referral to the OCL. The OCL will decide whether they will accept the case, and what type of service will be offered.

48There are no strict guidelines for ordering an assessment under section 30 of the CLRA. Instead, the decision is based on the specific facts of the case and is adaptable. [12]

49Where the Court must determine whether to request the assistance of the OCL, the Court should ask itself “whether the involvement of the Office of the Children's Lawyer will likely be helpful in determining what is in the best interests of the child”. [13]

50It is essential to avoid treating assessments as fishing expeditions. Courts should exercise caution when ordering assessments because they are not scientific inquiries; often relying on hearsay evidence and can disproportionately impact the final outcome. The burden of proof rests on the moving party. [14]

51In Glick v. Cale, 2013 ONSC 893 [15], Justice Kiteley determined that a "clinical issue" is not a prerequisite for ordering an assessment, as section 30 of the Children's Law Reform Act does not include such a requirement. She noted that judges may struggle to distinguish between "clinical issues" and family dysfunction. Consequently, Justice Kiteley developed a non-exhaustive list of factors that she deemed useful for the court to consider when assessing the need for an order for an assessment.

48I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child? [16]

52In instances where clear clinical issues are absent, the court must ascertain two key factors:

(1) first, the existence of a genuine dispute between the parties where the expertise of an assessor would aid resolution, particularly in areas beyond the court's purview; and second,

(2) whether the benefits derived from such assistance outweigh the inherent drawbacks of delay, intrusion, and expense associated with the assessment.

It's crucial to avoid setting the bar too low, as mere assistance to the court shouldn't automatically warrant an assessment, potentially leading to its indiscriminate use. However, if a clinical issue is present, the necessity for an assessment becomes more compelling, emphasizing the need for a balanced approach in determining its appropriateness. [17]

53Assessments inherently involve intrusion, expense, and time consumption. Therefore, the court requires compelling evidence demonstrating that the benefits of the assessment outweigh any potential harm it may cause. Paramount to this consideration is the best interests of the child. Any order for an assessment must be grounded in solid evidence and deemed to be in the child's best interests. [18]

54A dispute regarding parenting time (or decision-making responsibility) constitutes a question of fact. While an assessment may offer assistance in resolving such disputes, it is not required for making a determination. [19]

55For an assessment to be warranted, there must be a discernible advantage to the court stemming from expertise that is otherwise unavailable, thereby justifying any potential negative impact on both the parties involved and the child. An assessor's specialized knowledge becomes essential only in cases where clinical issues extend beyond the typical dynamics of custody and access disputes routinely handled by the court. [20]

7.1.2 Analysis – Is a section 30 CLRA assessment or referral to the OCL warranted?

56The Mother has not met her onus to justify an assessment pursuant to section 30 of the CLRA or a referral to the OCL.

57Despite MJ's health challenges, there is no compelling evidence of clear clinical issues necessitating such interventions. The issues primarily relate to the dysfunction between the parties rather than specific clinical concerns of the child – though the child’s medical care is central to their dispute.

58Furthermore, the Mother has not demonstrated that expert intervention is necessary to resolve the parenting disputes. While the parties have a contentious relationship and disagreements about parenting time, there is no indication that the issues extend beyond typical dynamics of family law disputes.

59The Mother's assertions about the Father's behaviour are largely unsubstantiated or refuted. Ordering an assessment or requesting OCL intervention would involve significant delay, intrusion into privacy, and expense, with potential benefits not outweighing drawbacks.

60It is more efficient and helpful for the court to receive information directly from the child’s healthcare professionals involved in MJ's care. This ensures timeliness and accuracy in evaluating MJ's health status and minimizes unnecessary delays or interventions.

61Utilizing information from healthcare professionals supports informed decision-making while preserving the integrity of the judicial process. The Father has expressed willingness to cooperate without expert intervention, and less intrusive measures should be considered before resorting to assessments or OCL involvement.

62Ultimately, the court's primary consideration is the best interests of the child. While assessments can provide insights, they should only be ordered when necessary to protect the child's welfare. In this case, the Mother has not convincingly demonstrated that an assessment or OCL report is in MJ's best interests.

7.2 Best Interests Test

7.2.1 Legal Considerations

63Having determined that an assessment pursuant to section 30 of the CLRA or a referral to the OCL is not warranted in the circumstances, I must determine what temporary parenting time order is in the child’s best interests.

64In determining the child’s best interests, the court shall consider the factors set out in subsections 24(2) to (7) of the CLRA, including a consideration of family violence, as defined in subsection 18(1) of the Act.

65The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. [21]

66Courts tasked with allocating parenting time are required to uphold the principle that "a child should have as much time with each parent as is consistent with the best interests of the child." [22] This provision does not override the best interests analysis. It is part of it. [23]

67The optimal distribution of parenting time varies depending on numerous factors, such as the child's age, temperament, developmental stage, as well as the respective schedules and commitments of both parents. Additionally, any other pertinent considerations relevant to determining the child's best interests must be taken into account. Ultimately, the parenting schedule must align with what is in the child's best interests. [24]

68A custodial parent must not just accommodate access, they must facilitate it. [25]

69The more extensive the limitations one parent aims to impose on the other's parenting time, the greater the necessity to provide compelling justification for such restrictions. [26]

7.3.2 Analysis - What temporary parenting time order is in the best interests of the child?

70Considering the factors outlined in section 24 of the CLRA I am cognizant of the following:

(1) Parenting time is the right of the child.

(2) Parenting time should not be frozen in time pending a trial of the issue.

(3) Supervised parenting time is meant to be a temporary or intermediate step. [27]

In Stec v. Blair, 2021 ONSC 6212, paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access:

22 Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)

24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

(4) The expansion of parenting time in consideration of specific factors including family violence and substance misuse, must be done in a proportionate, cautious and child focused manner.

71The Father wants to increase the duration of parenting time gradually over the next several months, and to terminate the requirement of supervision within the next month. The Mother would agree to increase the frequency of parenting time but opposes extending the duration or transitioning to unsupervised parenting time.

72The Mother opposes unsupervised parenting time and longer duration for the Father due to concerns about his ability to meet the MJ’s medical needs, ensure MJ’s safety in and around his home, potential drug use, and lack of communication about the MJ’s health.

7.3.2.a The Father’s home and neighbourhood

73The Mother failed to provide evidence supporting her concerns about the safety of Father's home and neighbourhood. Therefore, I find no basis to conclude that parenting time cannot safely occur there.

74The Brayden supervision notes highlight the Father's protective behaviour in relation to MJ. His willingness to obtain a Baby Proofing Evaluation Report demonstrates his commitment to MJ's safety and addressing the Mother's concerns.

75It is reasonable to assume that the Father will exert similar efforts to ensure MJ's safety irrespective of the location or level of supervision of parenting time.

76Moreover, restricting parenting time solely based on a parent's neighbourhood sets a dangerous precedent in family law, risking subjective judgments rooted in biases or stereotypes. Our judicial system must prioritize fairness, basing decisions on concrete evidence of parental ability to provide a safe environment. Deviating from this principle undermines equal treatment under the law and may unfairly penalize parents for circumstances beyond their control.

7.3.2.b Concerns regarding the Father’s use of marijuana

77The Mother hasn't presented evidence that the Father's marijuana use affects his ability to care for the child, nor is there proof of him using marijuana while caregiving. Therefore, there is no basis to restrict his parenting time due to this concern.

7.3.2.c Unwillingness to communicate

78The evidence reveals a mutual reluctance between the Father and Mother to engage in effective communication, and at least two instances where the Mother has limited the Father's access to information and communication with healthcare professionals.

79Although there's room for further progress, there's been noticeable improvement in the parties' communication and collaboration, especially since the last parenting time order and the commencement of parenting time. Despite their imperfect record, both parties have shown they can communicate respectfully and prioritize the child's welfare.

80The Father has shown willingness to address the Mother's concerns regarding himself, his parenting time, and living arrangements. Despite her request for supervised parenting time, he has adhered to her schedule to maintain his relationship with MJ, incurring significant financial expense for himself and his family. He is also open to sharing his work schedule and establishing a fixed but flexible parenting schedule adapted to his six-week rotation until a position with fixed hours at Bell Canada becomes available.

81Effective communication between parties and with healthcare professionals is crucial, particularly for a child with special medical needs, ensuring comprehensive coordination of care. This facilitates informed decision-making about the child's health status, treatment plans, and appointments.

82While the Mother's concern about receiving timely information from the Father is valid, it can be addressed through a court order without necessitating restrictions on parenting time expansion.

83Direct communication and involvement in medical appointments empower parents to advocate for the child's needs and maintain consistency in care. Despite the Mother's discomfort, prioritizing the child's well-being warrants allowing the Father to participate in medical appointments by phone, with similar arrangements available for the Mother during if the child’s appointments occur during his parenting time.

7.3.2.d MJ’s medical needs and feeding and sleep schedule

84MJ's medical diagnoses and healthcare practitioners' recommendations are undisputed, necessitating a child-focused parenting schedule. However, disputes arise regarding the Mother's claim that ongoing breastfeeding is necessary for MJ's nutritional needs and soothing sleep, as well as concerns about the Father's ability to address MJ's feeding and sleeping issues.

85Despite his slow start, the Father has exhibited his dedication to addressing MJ's medical needs. Following his access to healthcare professionals and their records, he has taken proactive steps to educate himself and improve communication with the Mother regarding these matters. Furthermore, he has followed the recommendations provided to ensure MJ receives the necessary support while in his care. It's evident that the Father is actively striving to deepen his involvement in MJ's medical care.

86The Mother hasn't provided evidence from MJ’s healthcare practitioners to support her claims. In fact, Dr. Rosenthal's recommendations suggest reducing MJ’s breastmilk intake and the Mother states she is weaning MJ off breastfeeding to facilitate daycare attendance and her return to work.

87The Mother plans for MJ to gradually transition to daycare, starting with 2.5 hours per day and increasing gradually over two months until full-time attendance by May. The daycare collaborates with the Mother and the Occupational Therapist on MJ's feeding and sleep schedule.

88In contrast, the Father's current supervised parenting time is 2 hours twice weekly at the paternal aunt's home. The Mother intends to add a third 2-hour visit per week but has no plans for further expansion in the foreseeable future.

7.3.2.e Mother’s plan to expand parenting time

89On November 9, 2023, Justice Bondy noted, “the father’s desire to move this matter along and move his parenting time to an unsupervised basis has been met with considerable delay and resistance by the Applicant Mother. The father has complied with the mother’s request for supervised access (at considerable cost).” [My emphasis added].

90I agree.

91I find that the Mother's attempts to unreasonably curtail the Father's parenting time are unfounded, driven by unverified concerns regarding his ability to adequately care for MJ or ensure his safety during his parenting time.

92The Mother has not met her onus of justifying that the restrictions she is seeking to impose on the Father’s parenting time are necessary or in MJ’s interests for the reasons that follow.

93Restricting parenting time to two-hour supervised visits at the paternal Aunt's residence or in public spaces unnecessarily intrudes upon MJ's relationship with his father, depriving him of the chance to experience substantial parent-child bonding in his Father's care and home environment.

94The Mother does not appear to consider that denying MJ the opportunity to visit his Father’s home or to spend one-on-one time with him may convey the message that their relationship is unimportant and unworthy of quality time together.

95The Mother lacks insight into her behaviour. Her readiness to send MJ's attendance at daycare while opposing the expansion of time with his Father starkly emphasizes the diminished significance she places on MJ's relationship with his Father.

96The Mother asserts her restrictive approach to parenting time is in MJ’s best interests. In Oriaku v. Ransome, 2021 ONCJ 660 [28], Justice Sager of this Court noted:

“A child focused parent ought to know that for their child to develop a deep and meaningful bond with their other parent, they must be given the opportunity to experience meals together, enjoy bedtime and wake up routines together, get ready for school together, do homework together, visit family together, celebrate milestones, vacation together and experience day to day life that includes discipline, learning, consoling, encouraging and loving. J.R-O. and her father have been denied the opportunity to experience many aspects of life together and the emotions that go with those experiences.”

97Both parties being first-time parents understandably leads to worries about MJ's well-being when not in their care, especially given his young age and vulnerabilities, which may amplify concerns about the other parent's ability to meet his needs. However, many individuals lack formal training in parenting skills. Intelligent and caring parents acquire parenting wisdom through their own experiences and by learning from their partners, parents, friends, and most importantly, from their children. [29]

98The parenting schedule that is in MJ’s best interests, will allow MJ to develop a closely bonded and meaningful relationship with both parents.

7.3.2.f Final comments

99The Father has demonstrated commendable patience in navigating the Mother's discretion regarding his parenting time. Despite encountering obstacles, he persists in responding to the Mother’s concerns and adjusting to the circumstances, making the most of the parenting time granted by the Mother in his endeavor to foster a close and affectionate bond with MJ - and he is achieving success in this regard.

100The Court finds it is in the child’s best interests to order that the Father have temporary parenting time with him on terms closer to the Father’s proposal. The Court finds his proposal is more child-focused compared to the mother’s restrictive approach.

Part Eight: Disposition

101For the reasons outline above, I make the following orders:

(1) The Father shall immediately provide the Mother his work schedule for the following month so that parenting time can be scheduled.

(2) The Father shall continue to provide the Mother his work schedule one month in advance of his parenting time.

(3) Except for the first two weeks, the parties will confirm the dates and times of each visit two weeks prior to the visit taking place.

(4) Stage 1: Commencing immediately and continuing for 4 weeks, the Father shall have parenting time with MJ for 4 hours twice a week, in accordance with his work schedule. The Father’s parenting time shall be supervised by his mother, Lynn Snider, or his sister, Sara Snider.

(5) Following the conclusion of Stage 1, and going forward, the Father’s parenting time shall be unsupervised.

(6) Stage 2: Following the conclusion of Stage 1, and for 4 weeks, the Father shall have parenting time with MJ for 6 hours twice a week.

(7) Stage 3: Following the conclusion of Stage 2, and for 6 weeks, the Father shall have parenting time with MJ from 9:00 a.m. to 5:00 p.m. (or for 8 hours), twice per week.

(8) Stage 4: Following the conclusion of Stage 3, and continuing until further agreement between the parties or Court Order, the Father shall have parenting time with MJ:

(a) From 9:00 a.m. to 5:00 p.m. (or for 8 hours), twice per week; and

(b) One 24-hour period per week.

(9) Each party shall be responsible for arranging for the pick-up of MJ at the start of their respective parenting time from the other party’s residence, MJ’s daycare, or another location agreed to by the parties.

(10) Each party may bring a third party to the parenting exchange.

(11) The parties shall continue to use Our Family Wizard for communications relating to the child.

(12) The parties will use the Calendar application on OFW to diarize MJ’s medical, healthcare appointments, and other important appointments, when the appointment is scheduled.

(13) The Mother shall continue to schedule MJ’s medical and healthcare appointments and will seek the Father’s consent if an appointment must be scheduled during his parenting time, before scheduling the appointment.

(14) The party having care of the child at the time of the appointment shall take MJ to the appointment. The other party may participate in the appointment by telephone.

(15) Both parties are to follow the recommendations of MJ’s medical professionals, including adhering to his feeding and sleeping schedule as much as is reasonably possible.

(16) Any logs the parties are recommended to complete will be completed within a reasonable following the parenting exchange.

(17) Time sensitive information regarding MJ’s health will be shared during the parenting exchange and provided by OFW immediately following the exchange.

(18) Both parties shall be named as parents and as MJ’s first (or first and second and the form may require) emergency contact with MJ’s third-party services providers, including but not limited to medical and healthcare providers, daycare providers, etc.

(19) The Mother’s motion for the appointment of an assessor pursuant to section 30 of the CLRA, or, in the alternative, a referral to the OCL in the alternative, is dismissed.

102If the parties cannot reach an agreement regarding costs, the Court will receive written costs submissions. The parameters of those submissions will be determined on the return date, on March 27, 2024.

103Released: March 22, 2024

Signed: Justice Jennifer S. Daudlin

1Some additional holiday parenting time also took place.

2Both parties in their affidavits and submissions noted that the restrictions on the affidavit evidence precluded their respective ability to include the evidence of third parties, and additional information in support of their claims. Neither brought a motion to seeking to increase the page limits, the number of Exhibits, or the number of affiants.

3Neither party moved to have the matter heard earlier on the basis of urgency.

4Both parties filed updating Affidavits.

5The Father’s sister has facilitated supervised parenting time in her home, and his mother travels regularly from Leamington to supervise the his parenting time.

6Due to COVID-19 restrictions and the Mother’s preference, the Father respected her choice to have her mother attend the delivery instead of him.

7The Father further attests that the pediatrician had previously advised the Mother that unless they had a court order stating otherwise, their default was that both parents had decision-making responsibility and access to MJ’s records.

8On June 25, 2023, the Father proposed parenting time be supervised either by his mother, or Brayden. The Mother refused. The Mother consented to Brayden supervising parenting time on August 16, 2023.

9The Father has included negative urinalysis and hair follicle test results in his affidavit, citing his 17-year tenure at Bell Canada without taking sick leave as evidence against the Mother's accusation of substance misuse.

10Provided as an Exhibit.

11 Ganie v. Ganie, 2015 ONSC 6330.

12 A.C.V.P. v. A.M.P., 2022 ONCA 283 at para. 30.

13 Flood v. Flood, 2018 ONCJ 822, at para. 34.

14 Mantesso v. Mantesso.

15 2013 ONSC 893, [2013] O.J. 573., at paras. 40 through 44.

16Ibid., at para. 48.

17 Haggerty v. Haggerty, 2007 ONCJ 279

18 Glance v. Glance.

19 Baillie v. Middleton, 2012 ONSC 3728 at para 35.

20Supra, note 38, at para. 7.

21 Kirichenko v. Kirichenko, 2021 ONSC 2833.