Court File and Parties

Date: 2020-07-27 Superior Court of Justice - Ontario

Re: Shereen Al Tamimi, Applicant And: Sean Ramnarine, Respondent

Before: Sossin J.

Counsel: Todd Slonim and Jennifer Howard, Counsel for the Applicant Brian Ludmer, Counsel for the Respondent

Heard: July 17, 2020

Reasons for Order

Overview

[1] These motions were first returnable on December 19, 2019, before Justice Paisley. Justice Paisley adjourned the hearing of the motions to March 17, 2020. The motions were adjourned once again due to the COVID-19 restrictions, until this hearing. In this motion and cross-motion, the Applicant, Shereen Al Tamimi, and the Respondent, Sean Ramnarine, each seek remedies in relation to parenting time and parental decision-making with respect to their son, Daniel Ramnarine (“Daniel”), who turned two in May, 2020. The question to be resolved is whether to alter the interim arrangements put in place by Justice Paisley on December 19, 2019, and if so, what interim arrangements are in Daniel’s best interests.

[2] The Applicant brings her motion seeking, in part, the following relief in relation to Daniel’s parenting:

a. An Order that, on a temporary basis, the Applicant shall continue to have sole custody of Daniel;

b. An Order that, on a temporary, “without prejudice” basis, the Respondent shall have care of Daniel according to the following parenting-time schedule:

i. Every Wednesday from 10:00 a.m. to 7:00 p.m. with this time being changed to 4:30pm to 7:30 p.m. once Daniel returns to daycare;

ii. Week 1: Saturdays from 5:00 p.m. to Sundays at 5:00 p.m. and Week 2: Fridays from 5:00 p.m. to Saturdays at 5:00 p.m.; and

c. At all other times Daniel will be in the Applicant’s care.

d. An Order that the Respondent shall refrain from any alcohol consumption during any access period with Daniel.

[3] The Respondent brings a cross-motion, requesting “an Order for, inter alia, equal shared parenting time, and that the parties to have joint custody of Daniel, as well as the sale and partition of the matrimonial home...”

[4] The parties have since agreed to proceed with the sale of the matrimonial home, so that issue is no longer the subject of these motions.

[5] The parties were married on September 20, 2014. The parties separated on September 14, 2019.

[6] The Applicant initiated an application for divorce on October 1, 2019.

[7] The Applicant left the matrimonial home with Daniel on the date of separation and stayed with her parents for one month, after which the Applicant returned to the matrimonial home with Daniel.

[8] From October 2019 to the date of the first return of the Applicant’s motion on December 19, 2019, the parties lived jointly in the matrimonial home and were able to communicate about Daniel’s daily schedule, and arranged pick ups and drop offs at daycare, as well as each participating in the morning and evening routines.

[9] The parties attended on December 19, 2019 before Justice Paisley.

[10] Following that attendance, a temporary order was issued under which Daniel was to reside with the Applicant while the Respondent was to have parenting time with Daniel every Monday and Friday, or on other week days as agreed upon by the parties, 4:30p.m. to 7:30 p.m. and on Saturday or Sunday from 10:00 a.m. to 7:00 p.m.

[11] Justice Paisley adjourned the other issues to a long motion, initially scheduled for March 17, 2020.

[12] The Respondent moved out of the matrimonial home following the December 19, 2019 court attendance, to a nearby condominium residence.

[13] Increased parenting time was arranged between the parties on February 14, 2020, but the Applicant resisted the Respondent having any overnight parenting time with Daniel.

[14] In light of the Notice to the Profession relating to COVID-19, dated March 15, 2020, the long motion originally scheduled for March 17, 2020, did not occur.

[15] The parties agree that Daniel is doing well, notwithstanding the disruptions to his schedule as a consequence of COVID-19, such as not attending day-care, and notwithstanding the deteriorating relationship between the Applicant and the Respondent.

[16] The parties both are now in professional settings that are well-suited to parenting time. Each parent has significant flexibility in their work schedule and the ability to work from home at the present time and for the foreseeable future.

[17] The Applicant, an engineer by training, was self-employed doing strategy consulting work prior to Daniel’s birth. She is now pursuing a doctorate at Ryerson University and will have a flexible schedule of classes and potential work as a graduate assistant.

[18] The Respondent works as a procurement manager for a national grocery chain. As of January, 2020, the Respondent has entered into a new arrangement with his employer that allows him to work from home any day of the week, as required. Since March, 2020, at the onset of the COVID-19 restrictions, the Respondent has worked solely from home.

[19] The dispute between the parties over parenting appears to have led to a range of serious allegations. It is not necessary to detail all of them. I will focus on those which bear directly on the issue I must determine, which is the parenting time schedule to be put in place at this time.

Analysis

[20] On this motion, the parties seek to resolve both parenting time and parenting decision-making (or “custody,” as it is referred to under the Divorce Act). In my view, it is neither necessary nor desirable to address parenting decision-making at this time. I will focus this analysis instead on the resolution to the dispute with respect to the parenting time that is in Daniel’s best interest pending trial.

[21] The parenting issues raised on this motion are governed by the Divorce Act, R.S.C., 1985, c. 3 (the “Divorce Act”). Section 16 of the Divorce Act provides:

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

(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 a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a 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. (Emphasis added.)

[22] In determining what is in the child’s best interests under s.16 of the Divorce Act, many courts have also considered the provisions of the Children’s Law Reform Act R.S.O. 1990, c.C.12, as am. (“Children’s Law Reform Act”), which requires that in determining the best interests of a child, a court must consider the needs and circumstances of the child, including a specific set of criteria. Section 24 of the Children’s Law Reform Act provides:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[23] The question before me is the extent to which the temporary measures put in place by Paisley J. in December, 2019, should be altered so as to provide the Respondent with expanded parenting time.

[24] As set out above, s.16(10) of the Divorce Act establishes that, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child…”

[25] McLachlin J. (as she then was) detailed the operation of the best interests of the child test in relation to s.16(10) of the Divorce Act in Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 at pp. 270-271:

First, the "best interests of the child" test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role.

Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.

Third, s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). [Emphasis in original.]

[26] The parent seeking unequal contact has the onus of rebutting the presumption of maximum contact; and the greater the restriction sought, the more important it becomes to justify that restriction. As McGee J. stated in Fraser v. Fraser, 2016 ONSC 4720, at para. 59,

Separation is a fundamental disruption in parenting roles. Almost everything changes. Sometimes prior parenting patterns continue, but more often, parents have to step up to a new reality. Ongoing relationships with each of one’s parents is a child’s right. When a parent argues for unequal parenting time, the onus is on that parent to demonstrate why the proposed schedule is in the child’s best interests. The proposal must be forward looking. We must never rob from a child’s future to pay for a parent’s past. (Emphasis in original.)

[27] The goal of maximum contact with each parent is not absolute, but it is mandatory; Berry v. Berry, 2011 ONCA 705, at para. 27. Further, the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests; Tovell v. Jamieson, 2017 ONSC 5079.

[28] In her argument supporting the parenting time plan she has proposed, the Applicant relies a document developed by the Arizona Supreme Court to guide the resolution of disputes on parenting time, Planning for Parenting Time: Arizona’s Guide for Parents Living Apart, 2009 Arizona Supreme Court, Court Services (the “Arizona Guidelines”). The Arizona Guidelines state,

Unless special circumstances exist, preserving a healthy and ongoing relationship between children and both parents after divorce or separation is of greatest importance. Positive involvement with both parents furthers the child's emotional and social development, academic achievement, and overall adjustment. Adult children of divorce describe the loss of contact with a parent and conflict between their parents as the most painful part of divorce or parental separation.

[29] The Arizona Guidelines also speak to the specific situation of children aged 2-3. According to the Arizona Guidelines, when one parent has taken on a greater parenting role and has a stronger bond with the child, the proposed plans for the other parent should include either two periods of three to six hours and one overnight each week or one period of three to six hours and two non‐consecutive overnights each week.

[30] The Applicant submits that Canadian courts have acknowledged the Arizona Guidelines, either as a resource used by parties to parenting time disputes (Wagg v. Simms, 2018 ONSC 1143 at para. 18) or as a source of applicable factors for parenting time decisions (M. (T.) v. H. (R.), 2010 NLTD(F) 38 at paras. 13-14).

[31] The Applicant recognizes the need for some expansion of parenting time for the Respondent with Daniel. She has proposed that the Respondent have more parenting time with Daniel on Wednesdays and an overnight weekend schedule, which she justifies as “the least disruptive to the status quo, which is an important consideration, especially amid COVID-19.” (at para. 35 of her factum).

[32] The Applicant states that the parenting time schedule she has proposed as the parent with the greater bond with the child is consistent with the Arizona Guidelines.

[33] The Applicant also relies on the importance of stability and preserving the status quo with respect to Daniel’s parenting. The Applicant states in her factum (at para. 31): “Amid the current COVID-19 pandemic, courts across the Province have been reluctant to interfere with the status-quo arrangements.”

[34] The Applicant relies on Dnaagdawenmag Binnoojiiyag Child and Family Services v. B.RP, 2020 ONSC 1988 (“B.RP”), where Justice R.S. Jain stated (at para. 15):

[15] Therefore, although the access was supposed to expand, during this crisis, “our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.” This is not the time to commence new routines and activities that increase community interactions and do not support social distancing. There is an increased risk of community spread of the COVID-19 virus if a child is going back and forth between households.

[35] I note that the decision in B.RP was released on March 30, 2020, which was the height of the provincial emergency COVID-19 restrictions. It is not clear that this same reasoning applies at the current stage of easing COVID-19 restrictions. More importantly, the Applicant has not raised evidence of how expanded parenting time for the Respondent would increase any COVID-19 related risks for Daniel or anyone else.

[36] Where there is a status-quo arrangement, however, courts have been clear that such arrangements should be respected in order to provide stability in the lead-up to a trial. In Coe v. Tope, 2014 ONSC 4002, at para. 25, Justice Pazaratz explained that parenting determinations at temporary motions meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process. Pazaratz J. held that the status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interests demand an immediate change.

[37] In Mott v. Green, 2020 ONSC 3761, Bondy J. summarized the case law on status quo parenting arrangements as follows (at paras. 38-39):

[38] The best interests of the children are to be considered in the context of the litigation. The issue before me is interim custody or residency. “[A]ny temporary order granted is always intended only to stabilize separated parties' circumstances until trial, when a full and complete consideration can be conducted…” (see Sellick v. Bollert, [2004] O.J. No. 2022, 4 R.F.L. (6th) 185, at para. 16). “Stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children” (see Donley v. Donley, [2008] O.J. No. 3445, 51 R.F.L. (6th) 164, at para. 91; Kimpton v. Kimpton, [2002] O.J. No. 5367; Dyment v. Dyment, [1969] 2 O.R. 631; Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5; and Lancaster v. Lancaster (1992), 38 R.F.L. (3d) 373).

[39] “In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change" (see: Madill v. Madill, 2014 ONSC 7227, [2014] O.J. No. 5952, at para. 31; Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton; and Easton v. McAvoy, 2005 ONCJ 319). The onus is on the party seeking to disturb a status quo arrangement with respect to the custody of children” (see Donley v. Donley, para. 91, and Norland v. Norland, [2006] O.J. No. 5126, 2006 CarswellOnt 8253).

[38] In this case, however, there is no status quo. The temporary order and adjournment of the motion by Paisley J. in December, 2019, was itself a temporary response to an evolving situation, including the Applicant’s evidence that Daniel was only then being weaned from breastfeeding.

[39] In his endorsement, Paisley J. sought to manage the evolving circumstances rather than establish any kind of durable “new normal.” For this reason, the parties understood that these arrangements would be in place only until the long motion could be heard in March, 2020. It is only as a result of the COVID-19 restrictions that this situation has remained in place until now.

[40] Justice Akbarali confronted a similar question in Verma v. Di Salvo, 2020 ONSC 850, where she stated (at paras. 38-40):

[38] The mother argues that my temporary order of October 17, 2019 establishes a parenting status quo, which should not be changed absent a material change in circumstances. I disagree.

[39] My order set out parenting orders as terms of an adjournment of the motion that, among other things, sought custody of J, parenting time for the mother in accordance with the advice of a parenting coordinator, and delivery of J to the father. Without having heard that motion on the merits, the order setting out terms of the adjournment cannot be considered an order creating a status quo that cannot be varied.

[40] The mother also argues that the current arrangement is a de facto status quo. I disagree again. The current parenting arrangement was established by my order setting out terms of the adjournment and, for the reasons I explain above, is not an order that creates a status quo. (Emphasis added.)

[41] The Court of Appeal addressed the potential tension between the statutory goal of maximum contact on the one hand, and the existence of court orders resulting in unequal parenting time on the other hand, in Rigillo v. Rigillo, 2019 ONCA 548. The Court held (at paras. 8-10):

[8] Despite the finding that the child had “enjoyed the benefits of effective parenting in which both parties participated” from the time of the child’s birth, the trial judge concluded that there had been an “undisturbed pattern of care” in place since the time of separation. While the trial judge found as a fact that both parties had engaged in “inappropriate behaviour” since separation, he said that he did “not intend to interfere with the existing parenting schedule except to ensure that adequate provision is made during holidays and special times” in the child’s life.

[9] This demonstrates an erroneous approach. Not only did the trial judge fail to advert to the maximum contact principle, statutorily embedded in s. 16(10) of the Divorce Act, but he proceeded on the basis of the status quo that had developed as a result of an interim without prejudice order. Indeed, despite saying that the “existing parenting schedule” should prevail, the trial judge decreased the father’s time with the child by one hour every other weekend and by one hour every Wednesday.

[10] The trial judge erred by failing to advert to and apply the maximum contact principle without providing any reason for departing from it, and by proceeding on the basis of a status quo that had developed as a result of a without prejudice order. Given the trial judge’s findings of fact, particularly the finding that, while both parties had misbehaved, the child had enjoyed the benefits of “effective parenting” by both, it was an error to make an order that departed significantly from equal parenting time. (Emphasis added.)

[42] The Arizona Guidelines may well be a helpful resource in an appropriate case, but their proposed application here is based on a status quo of the Applicant having taken on a greater parenting role than the Respondent. For the reasons just stated, however, I do not accept the premise of an existing parenting status quo in this case.

[43] Having reviewed the material filed on this motion, and the oral submissions, I am not satisfied that it is in Daniel’s best interests to maintain the temporary parenting time arrangements ordered on a “without prejudice” basis by Justice Paisley in December, 2019.

[44] As courts have reiterated, the maximum contact with parents that is in the child’s best interests is a right of the child, not a right of the parents; PCP v LCP, 2013 ONSC 2564, at para. 124; and Wilson v. Wilson, 2015 ONSC 479, at para. 65.

[45] Additionally, the trend in the case law is to support the formation of close bonds with both parents of young children, particularly through overnight parenting time plans; see Melanie Kraft, “Parenting Plans for Children Under 3 Years Old Merging Perspectives on Overnights for Children Under 3 Post-Separation” (2019) 38 CFLQ 149.

[46] Both the present arrangement, and the plan proposed by the Applicant, would deny Daniel the benefits of the maximum contact with the Respondent that is in his best interests. I find that there is no justification for the denial of this vital benefit to Daniel.

[47] Prior to the parties’ separation in September, 2019, the Respondent states that he had parenting time with Daniel over Saturdays, Sundays and one weekday each week when he worked from home. From October 2019 to December 19, 2019, the parties split weekends whereby each had Daniel all day on one of the days of the weekend. On these days, the Respondent was primarily responsible for Daniel’s care.

[48] The Applicant, who has not worked on a full-time basis since August, 2017, has been Daniel’s primary caregiver since birth. The record demonstrates that she has been devoted to Daniel’s health and well-being. In light of Paisley J.’s temporary order in December, 2019, and the closure of Daniel’s daycare in March, 2020, the Applicant’s care responsibilities for Daniel have increased. In her affidavit of July 3, 2020, the Applicant provided a detailed breakdown of her typical days at home with Daniel, which reflects a carefully planned routine, responsive to Daniel’s needs and stage of development.

[49] I am satisfied that both the Applicant and Respondent are caring, committed and competent parents.

[50] I am of the view that the delay in the hearing of the motions between December, 2019 and July, 2020, however, has resulted in both parties acting toward and reacting to the other party in ways that were not always in Daniel’s best interests.

[51] Given that a certain level of distrust already existed at the time of the separation, the attempt by the Respondent to move forward during the long delay in the hearing of the motion and the Applicant’s resistance to making changes resulted in both parties anticipating the worst from the other and then believing the worst about the other party’s behaviour.

[52] The conduct of the Applicant in “gatekeeping” the Respondent’s access to Daniel has contributed to the tensions between the parties. Denying the Respondent’s repeated requests for increased parenting time after the temporary closure of Daniel’s daycare due to COVID-19 restrictions, and increased parenting time with Daniel even after Daniel was weaned from breastfeeding, are examples of such conduct.

[53] The Applicant’s position is that her reticence to agree to expanded parenting time for the Respondent has been based on her assessment of Daniel’s need for stability. She also emphasizes that Daniel is thriving under the current parenting time arrangements.

[54] The Applicant also submits that she is deeply troubled by the Respondent’s conduct towards her. She has alleged that the Respondent engaged in bullying and abusive conduct towards her. These allegations have led to investigations by the police and children’s aid authorities, but not to any charges or findings of wrongdoing against the Respondent.

[55] For example, the Applicant called the police after an incident involving the Respondent’s parents and Daniel in September 14, 2019, in which the Applicant believed the Respondent’s parents were attempting to remove Daniel. The police found no basis for these allegations.

[56] On October 24, 2019, the Applicant told Daniel’s paediatrician that the Respondent engaged in yelling, screaming and swearing and on one occasion grabbed her arm in the presence of Daniel. The physician contacted the Children’s Aid Society, which opened an investigation into the allegations. The Children’s Aid Society closed its investigation on December 23, 2019, and took no further action.

[57] These allegations have yet to be tested. As Justice Pazaratz reiterated in Coe v. Tope, 2014 ONSC 4002, at para. 25, parenting decisions on interim motions are particularly challenging as the facts presented by affidavit evidence are untested by cross-examination and may still be evolving.

[58] Notwithstanding the serious allegations raised by the Applicant about the Respondent, and the evident conflict between the parties, the Applicant has supported Daniel having a close bond with the Respondent.

[59] Clearly, Daniel’s best interests require that the parties behave in a cooperative, understanding and responsible manner toward one another in their parenting.

[60] Four additional issues were raised in the parties’ motion materials which need to be addressed.

[61] First, the Respondent sought an assessment pursuant to s.30 of the Children’s Law Reform Act.

[62] This issue was not pursued in oral argument and I decline to make any finding on whether the record justifies the need for such an assessment in Daniel’s best interests, at least at this time.

[63] Second, the Applicant seeks leave to have admitted into evidence certain audio tapes recorded without the Respondent’s knowledge on June 4, 2018, and July 27, 2019, prior to the separation of the parties, which are alleged to show the Respondent’s deceptive and disrespectful treatment of the Applicant.

[64] This relief was raised only briefly in oral argument, and relates only indirectly, if at all, to the issues of parenting time before me. In my view, it is not necessary to address leave for the admission of this evidence on this motion.

[65] Third, the Applicant seeks an order requiring that the Respondent refrain from any alcohol consumption during his parenting time with Daniel.

[66] This issue also was not pursued in oral argument, nor is there a basis in the record on which to conclude that the Respondent has consumed alcohol irresponsibly during any parenting time in the past. While the Applicant states in her affidavit of July 10, 2020, that the Respondent sometimes drinks to the point of becoming inebriated, she acknowledges that he does not drink often.

[67] In my view, there is insufficient justification for the requested order.

[68] Fourth, the Applicant also seeks an order striking out certain portions of the Respondent’s motion materials, including specific affidavit evidence.

[69] I understand counsel reached some agreement to remove some of this affidavit evidence.

[70] To the extent that additional disputes remain over this evidence, these arguments were not pursued in oral submissions, and I decline to make any findings in relation to this evidence.

[71] In light of the analysis presented above, I find that it is in Daniel’s best interests that he reside with his parents on a shared basis. However, I also find that there is no need for a sudden and significant disruption to Daniel’s schedule. Rather, I find that a gradual expansion of the Respondent’s parenting time is consistent with Daniel’s best interests and a smooth transition, culminating with a regular weekly, rotating 2-2-3 schedule.

[72] While the parties each seek relief relating to parental decision-making, the focus of the written and oral submissions on these motions was parenting time.

[73] The record shows, for the most part, despite the conflict between them, that the parties have cooperated on key parenting decisions. For example, the email correspondence in the record concerning arrangements relating to the deferral of Daniel’s return to daycare in June, 2020, shows effective ongoing collaboration on parental decision-making.

[74] For these reasons, I decline to make an order with respect to parental decision-making, without prejudice to either party making an application to this Court in the future to resolve parental decision-making disputes should any arise.

Conclusion and Orders

[75] It is in Daniel’s best interests that he reside in both parents’ care according to the following rotating-weekly parenting schedule, which shall be implemented gradually under the terms of this paragraph and be fully in place in October, 2020.

[76] With respect to parenting time, I am mindful that detail and certainty may be particularly helpful in settings such as this where there is conflict and low trust: see Nicolas Bala and Nicole Bailey, Enforcement of Access & Alienation of Children: Conflict Reduction Strategies & Legal Responses (2004-2005), 23 CFLQ 1; and Marguerite Trussler, “Managing High Conflict Family Law Cases for the Sake of the Children” (2007) 86 Canadian Bar Review 515.

[77] I seek to provide this certainty in the orders set out below.

[78] First, the temporary order of Justice Paisley, dated December 19, 2019 shall continue in force until Saturday, August 1st, at 10:00 a.m., at which time those terms are no longer in effect.

[79] Second, starting on Saturday, August 1st, 2020, Daniel shall reside in the Respondent’s care on Tuesdays, from 10 a.m. to Wednesday, at 10:00 a.m. and on Saturdays, from 10:00 a.m. to Sunday, at 10:00 a.m. He shall reside in the Applicant’s care during the balance of the time.

[80] Third, starting on August 22, 2020, Daniel shall reside with his parents on a weekly-rotating schedule, as follows:

(a) In Week One, Daniel shall be in the Respondent’s care from Tuesday, at 10:00 a.m. to Wednesday, at 10:00 a.m., and from Friday, at 10:00 a.m. until Sunday, at 10:00 a.m.

(b) In Week Two, Daniel shall be in the Respondent’s care from Wednesday, at 10:00 a.m. until Friday, at 10:00 a.m.

(c) He shall reside in the Applicant’s care during the balance of the time.

[81] Fourth, starting on September 12, 2020, Daniel shall reside with his parents on a weekly-rotating schedule, as follows:

(a) In Week One, Daniel shall be in the Respondent’s care from Monday, at 10:00 a.m. to Wednesday, at 10:00 a.m., and from Friday, at 10:00 a.m. until Sunday, at 10:00 a.m.

(b) In Week Two, Daniel shall be in the Respondent’s care from Wednesday, at 10:00 a.m. until Friday, at 10:00 a.m.

(c) He shall reside in the Applicant’s care during the balance of the time.

[82] Fifth, starting on October 3, 2020, at 10:00 a.m., the following 2-2-3 parenting time plan shall take effect:

S	M	T	W	T	F	S
Week 1	M	F	F	M	M	F
Week 2	F	M	M	F	F	M

(a) For ease of reference, the above schedule above identifies in which parent’s care Daniel will be overnight on each day of the weekly-rotating schedule (using M for mother, and F for father). Changes in his residence from one parent’s care to the other’s shall take place at 10:00 a.m., unless otherwise agreed by the parties.

(b) Thus, in Week 1, Daniel shall be with the Applicant until Monday, at 10:00 a.m. He shall be in the Respondent’s care from Monday, at 10:00 a.m. until Wednesday, at 10:00 a.m. He shall be in the Applicant’s care, from Wednesday, at 10:00 a.m. until Friday, at 10:00 a.m. He shall be in the Respondent’s care, from Friday, at 10:00 a.m. until Monday, at 10:00 a.m.

(c) In Week Two, Daniel shall be in the Respondent’s care until Monday, at 10:00 a.m. He shall be in the Applicant’s care from Monday, at 10:00 a.m. until Wednesday, at 10:00 a.m. He shall be in the Respondent’s care from Wednesday, at 10:00 a.m. until Friday, at 10:00 a.m. He shall be in the Applicant’s care from Friday, at 10:00 a.m. until Monday, at 10:00 a.m.

[83] The parties shall proceed now to fix the date for a case conference, if they are not yet ready to proceed to trial on all of the issues that are outstanding in this case, or a settlement conference, if they are.

[84] If the parties cannot agree on costs, the parties shall submit brief written submissions as to costs, not to exceed 3 pages, together with a costs outline. The Respondent shall submit his submissions on costs by August 14, 2020, and the Applicant shall respond, by August 28, 2020.

[85] This judgment and resulting order are effective from the date indicated below and are enforceable by law without any need for entry and filing. Either party may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.

Sossin J. Released: 2020-07-27