COURT FILE NO.: FC-19-380-0000 DATE: 20210309 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Pereira, Applicant AND: Stella Ramos, Respondent

BEFORE: Madam Justice R. S. Jain

COUNSEL: Jeff Ordon and David Anthony, Counsel, for the Applicant Carol Allen, Counsel, for the Respondent

HEARD: October 29, 2020 and February 18, 2021

Reasons for Decision

Introduction

[1] The applicant father brought a motion on October 29, 2020 requesting an order to increase his access/parenting time with the parties three (3) children of the marriage, namely Emily Ramos-Pereira, born February 1, 2009 (“Emily”); Kaylee Ramos-Pereira, born April 17, 2012 (“Kaylee”); and Michael Ramos-Pereira, born May 27, 2017 (“Michael”; collectively, the “children”). Specifically, he asked for an order pursuant to a 2-2-3 alternating week parenting time schedule. In the alternative, the applicant sought an order that he have parenting time consistent with a “shared parenting schedule” and that the parties alternate and split holidays and other special occasions with the children, consistent with the children’s best interests as determined by the court.

[2] The respondent mother opposes the father’s motion and asks that his motion be dismissed. She requests that the parties continue to follow the current schedule where the children reside primarily with her and visit with their father on alternate weekends. She is agreeable to increase the father’s parenting time; however, she is opposed to an equally shared parenting schedule.

[3] The parties and the court have received a s. 112 Investigation and Report of the Children’s Lawyer (the OCL Report) filed by Ms. Sarah Martyn, a clinical social worker with the Office of the Children’s Lawyer (“OCL”). In addition, a Voice of the Child (VOC) report dated January 19, 2021 was filed with the court.

[4] The court heard part of the father’s motion on October 29, 2020. On that date the mother raised some concerns about the OCL report filed with the court dated February 10, 2020. She advised that she had filed a Dispute to the OCL report. Her counsel Ms. Allen argued that the OCL report needed to be “tested in cross examination before the court should place any weight upon it or its conclusions.”

[5] To address this concern, the court attempted to balance the needs for determining best interests of the children on a motion as opposed to making the family wait for a trial. The court ordered that the balance of the motion be adjourned. Pursuant to r. 14 (17) (and on the consent of the parties) the motion was adjourned “for oral evidence to be provided by the OCL clinical investigator Sarah Martyn regarding her Report filed with the court dated February 10, 2020.” [1] The court further requested that Ms. Martyn conduct at least one more interview with the children prior to the hearing so that she would be up to date as to the children’s views and preferences. This request was on consent of the parties and both agreed to cooperate with the OCL in arranging such interviews.

[6] The OCL agreed to become re-involved (and the parties consented by way of a 14B motion) to provide the court with an update by way of a VOC report. The VOC report completed by Ms. Martyn and dated January 19, 2021 was filed with the court. On February 18, 2021, Ms. Martyn attended court via ZOOM and was sworn in by the clerk. While under oath, Ms. Martyn provided oral evidence and was cross-examined by both counsel for the respondent and applicant. She was further questioned by the court. Both parties were further given an opportunity to provide the court with summaries of law and give additional submissions to the court as a result of the oral evidence and questioning of Ms. Martyn.

[7] The issue for the court to determine for this motion is as follows:

1. What parenting order regarding the allocation of parenting time is in the children’s best interests?

[8] The court reviewed and relied upon the following documents:

1. Applicant Father’s Notice of Motion dated October 21, 2020;
2. Applicant Father’s Affidavit dated October 21, 2020;
3. Respondent Mother’s Affidavit dated October 26, 2020;
4. Applicant Father’s Affidavit dated October 28, 2020;
5. OCL Report dated February 10, 2020;
6. Voice of the Child Report dated January 19, 2021;

Decision

[9] For the reasons set out below, the court finds it is in the best interests of the children Emily (12 years old), Kaylee (8, almost 9 years old) and Michael (3, almost 4 years old) to allocate the parenting time with each parent consistent with a shared or equal parenting schedule.

The Law

[10] On March 1, 2021, important amendments to the Divorce Act [2] (the Act) came into force. These amendments are applicable in this case because s. 35.3 of the Act expressly states that the amendments to that legislation will apply to any case decided on or after March 1, 2021 (even if the case was started but not determined before March 1, 2021). Section 35.3 says:

PROCEEDINGS COMMENCED BEFORE COMING INTO FORCE – A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.

[11] Although the amendments were originally scheduled to take effect last year, it was delayed because of the COVID-19 pandemic. All of this came into force as of March 1, 2021 and therefore I must and shall use and apply that language in this decision. The amendments changed and modernized the language in the Act in many ways to remove any reference to the terms like “custody” or “access” for children. These terms were replaced with terminology focused on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced some new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”. Similar changes were also made to provincial statutes like the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (also coming into force on March 1, 2020). [3] In my view, these changes are very welcome to the family court and it is my hope they will do exactly what they were intended to do, which is to help reduce parental conflict (in the best interests of children).

[12] Section 2 of the Divorce Act provides definitions for some of the new terminology. The definition of “custody” and “custody order” were repealed. Now, instead of making a custody order, the courts will now make a “parenting order” pursuant to s. 16.1 (1) of the Act. In the parenting orders, the court may, among other things: allocate parenting time and day-to-day decisions (in accordance with s. 16.2 of the Act; allocate decision making responsibility (in accordance with s. 16.3 of the Act); and requirements regarding communication between the persons that have been allocated parenting time.

[13] Under the Act, a parenting order would be available to either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. Parenting time may be allocated by way of a schedule and unless the court orders otherwise, the parent who has been allocated parenting time has exclusive authority to make the day-to-day decisions affecting the child when the child in in their care. This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare. If there is a particular issue that would normally be a day-to-day decision, but it is of certain significance to a particular child, it could provide for any other matter that the court considers appropriate. The amendments preserved the principle that a child should spend as much time with each parent so long as it is consistent with the best interests of the child. The “maximum contact principle” is now the “maximum parenting time” principle. It is important to note that above all else, this principle is subject to the “primary consideration” that the court must consider a child’s physical, emotional and psychological safety, security and well-being. This is especially significant in cases of family violence. Lastly, none of the above creates a presumption of equal time because if the contact conflicts with the best interests of the child, the court may impose restrictions. [4]

[14] The changes to the Act that are relevant to this matter are the provisions regarding parenting orders, family violence and the definition of best interests of children (that was not previously addressed in the former Act).

[15] Sections 16 and 16.1 and 16.2 and 16.3 and 16.4 of the Act say the following:

Best Interests of the Child

16 BEST INTERESTS OF CHILD – (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) PRIMARY CONSIDERATION – When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) FACTORS TO BE CONSIDERED – In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of the care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) FACTORS RELATING TO FAMILY VIOLENCE – In considering the impact of any family violence under paragraph (3) (j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) PAST CONDUCT – In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) MAXIMUM PARENTING TIME – In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) PARENTING ORDER AND CONTACT ORDER - In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect to a contact order.

Parenting Orders

16.1 PARENTING ORDER – (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of apparent or intends to stand in the place of a parent.

(2) INTERIM ORDER - The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) APPLICATION BY PERSON OTHER THAN SPOUSE – A person described in paragraph (1) (b) may make an application under subsection (1) or (2) only with leave of the court.

(4) CONTENTS OF PARENTING ORDER - The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) TERMS AND CONDITIONS – The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) FAMILY DISPUTE RESOLUTION PROCESS – Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) RELOCATION – The order may authorize or prohibit the relocation of the child.

(8) SUPERVISION - The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) PROHIBITION ON REMOVAL OF CHILD – The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 PARENTING TIME – SCHEDULE – (1) Parenting time may be allocated by way of a schedule.

(2) DAY-TO-DAY DECISIONS – Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1 (4) (a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 ALLOCATION OF DECISION-MAKING RESPONSIBILITY - Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1 (1) (b), or to any combination of those persons.

16.4 ENTITLEMENT TO INFORMATION – Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect to their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Background Facts

[16] The parties were married in 2008 and separated on July 23, 2018. Prior to their separation, the parties resided together with their three children Emily, Kaylee and Michael in a small town north of Toronto, Ontario. They now reside in their own homes within the same school catchment area. The children have resided with the respondent since separation; however, this arrangement was not on consent. There is no court order or agreement setting out the parenting schedule.

[17] This is the first motion related to the ongoing interim parenting schedule. Despite the recommendations in the OCL report for a shared parenting schedule, the parties have been unable to settle the parenting issues. The matter was set down for a trial in May 2020, however, due to the COVID-19 pandemic and suspension of regular court operations, the trial was delayed.

[18] Both parties describe the family law matter as being “high conflict” or “acrimonious.” In their affidavits, they both describe incidents of parent conflict and concerns about the other parent’s anger. They each have their own versions of these incidents and deny the other’s versions. Despite their different versions of the conflict, both parties admit that some of the conflict took place in the presence of the children. Police attended on at least two occasions. On one occasion prior to the separation, the respondent was arrested and removed from the residence. Charges were not laid. On one occasion at the time of separation, the applicant was arrested. Charges were laid; however, they were resolved by way of a peace bond that prohibited contact. The peace bond expired in November 2019. The local children’s aid society (the Society) have been contacted, however they have no open or ongoing file.

[19] According to the applicant, the children want more equal time with both parents. The applicant says the respondent has ignored all of his requests to increase his time with the children to make it more equal. He says that the respondent continues to this day to dictate the schedule despite there being no legitimate reason to limit the children’s time with their father and despite the children’s expressed wishes for more time with him.

[20] The respondent states that she has been the primary caregiver for the children and that the current alternate weekend parenting schedule is essentially the same as it was at the time of separation. She says the OCL report and the recommendations contained therein were based on concerning information and assumptions that should not properly be part of the investigator’s analysis. She says that the OCL report needs to be tested in cross examination before the court places any weight upon it or it’s conclusions. She admits that the eldest child Emily has requested more time with her father.

[21] On December 5, 2019 Healey J. heard a motion brought by the respondent regarding Christmas access and the children’s travel to Florida with the respondent. In her endorsement, Healey J. commented that the respondent had “dictated, not requested the holiday access. It was an attitude that the court cannot condone.” Although somewhat successful in her motion, Healey J. ordered that the applicant have make up access and ordered that in 2020, the children would spend their “entire Christmas school break” with the applicant. Healey J. went on to award costs against the respondent due to the “unreasonableness” and to “signal that a more reasonable, conciliatory effort must be undertaken to this litigation.”

[22] At the beginning of the pandemic in March 2020, the respondent requested the applicant’s help with providing care for the children until they were expected to go back to school. The respondent and applicant were able to cooperate and agreed on a schedule. For a period of approximately three weeks, the children spent close to equal time with both parents. The applicant requested that the shared schedule continue, however, the respondent refused to agree to same.

Analysis: Family Violence, The Best Interests of the Children, and The Parenting Order

[23] In this matter, the applicant is asking the court to make a specific parenting order focused on the allocation of parenting time, (not decision-making responsibility pursuant to s. 16.3 of the Act). Although, I have authority to make an order regarding decision-making responsibility, I did not hear submissions from counsel on the issue of allocating decision-making authority. As such, the interim parenting order I will be making will only address allocation of parenting time in accordance with the best interests of the children and referring to sections 16, 16.1 (1) (a), (2), (4) (a) and (d), (6), 16.2, and 16.4 of the Act.

[24] The list of best interest factors in the Act are non-exhaustive. As said by Justice Melanie Kraft in White v. Kozun, 2021 ONSC 41, at paragraph 174:

[174] The list of “best interests” criteria in the DA amendments is a non-exhaustive list. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion will depend on the circumstances of the particular child.

Family Violence

[25] The court must consider factors relating to family violence when making a parenting order as set out in s. 16 (3) (j) and (4) of the Act. [5] In a motion, because of conflicting affidavits, it can be difficult for the court to determine credibility in regard to allegations of family violence. However, in this motion I am not making any findings regarding the party’s credibility with respect to their allegations of family violence. To be clear, I am not deciding or making findings of fact regarding each party’s versions of the family violence that has occurred. Instead, I am considering the “impact” of any family violence on the “ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.”

[26] Clearly, it is in the best interests of the children to have a meaningful relationship with both parents and not to be exposed to conflict or family violence. Although this matter has been rife with conflict in the beginning, in my view, the nature, seriousness and frequency of the family violence was (unfortunately) quite typical in family court proceedings. In my view, (and for the purposes of an interim parenting order) it does not prevent me from making a shared parenting order that is in the best interests of the children.

[27] In their affidavits, both parties have made allegations against each other in the past. Both parties either deny or minimize the seriousness of the allegations against them. Both parties have commented on the level of conflict between them and shown some limited insight as to how they can avoid it in the future. The police were called to respond to the conflict (especially early in the separation), however, the situation did not result in injury or serious physical harm. In one situation, no charges were laid and in the other, the charges were resolved with a peace bond. There have been no serious conflicts during exchanges and the parents have worked out some changes to the parenting schedules peacefully and cooperatively.

[28] Neither parent has alleged that the pattern of conflict or family violence between these parties was “coercive and controlling” or that any member of the family caused another member of the family to “fear for their own safety or for that of another person”. [6] The conflict described in the affidavits was mostly related to incidents of the separation and did not indicate a power imbalance between the parties. If anything, from their affidavits and the OCL report, both parents strike me as strong people with strong opinions. Neither parent was submissive to the other. The mother confirmed that she “developed a comfort of standing up to” the applicant and “saying what she was feeling.” [7]

[29] Both parties have made allegations that the other has attempted to influence the children with respect to their expressed wishes and preferences. Despite this, the OCL has indicated that the children have expressed themselves with independence. The conflict between the parents was not directed at the children, however, the children were directly and indirectly exposed to it (especially at the initial stages of the separation). [8] Initially, in the first OCL report, Emily shared with Ms. Martyn how she use to protect her younger siblings when her parents were fighting. Now, Emily has shared that “mom and dad argued lots when living together, and this is no longer something that she and her siblings see, as her parents have limited to no contact with each other.” [9] In my view, this shows the parents are now doing a better job at protecting the children from the conflict.

[30] Despite this progress, if the parenting issues continue to go unresolved, the children will continue to be at risk of being exposed to further parental conflict. Children are resilient, however, continued exposure to unresolved conflict causes emotional harm. It is hoped by the court, that by making an interim parenting order, this court will be assisting the family in moving forward to minimize conflict in the future. It is further hoped that this order will help the parties build on their progress so they will be able to show their children that they both love the children (more than they dislike each other).

[31] In my view, the parents don’t have to agree regarding all circumstances related to their past relationship and their separation; or how the existing parenting schedule came to be and why; or what parenting schedule is in the best interests of their children. They are entitled to their own opinions and healing process. In my view, according to the affidavits of the parties and the OCL report, the pattern of conflict between the parents was more “situational” and happened while the relationship was breaking down, or just after it had ended.

[32] For all these reasons, in this matter, it is my view that the parental conflict and family violence that has occurred between the parents is not of the nature, seriousness or frequency that would negatively impact a shared or equal parenting time order. I find that in this matter, the family violence will not significantly impact the ability and willingness of the both the parents to care for and meet the needs of the children. Therefore, in this case, it is appropriate to make an order that would require the parents to cooperate on issues affecting the children as set out in the interim order below.

Best Interests of the Children and The Parenting Order

[33] If there was an interim order or agreement in place, generally, the court would be hesitant to make an order that changes the existing parenting schedule (status quo) unless there were compelling circumstances that would justify the change as being in the best interests of the children. Further, the OCL report is only one piece of evidence, and it should not be solely relied upon as the only basis of changing that status quo.

[34] In this matter, there is no court order or agreement, however, the court is required to consider the history of care for the children and each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse, when determining the best interests of the children.

[35] The respondent mother says that the father was absent as a parent and that throughout their relationship he was uninterested as he “was not involved in decision making related to the children.” [10] She has also described the father as the “fun” parent who was more involved in the evenings and on the weekends. She says that when the parties separated, she remained in the matrimonial home with the children in Wasaga Beach and the father moved to Mississauga to live with his father. [11] She takes the position that the father’s motion is seeking to disrupt a schedule that has been in place “since shortly after separation.” [12] She says that they “have had a status quo with respect to the Applicant’s access for a significant period of time post-separation.” [13] She says that after separation the father had the children every weekend. [14] However, she goes on to say that the parenting schedule changed to alternate weekends because it “worked better” for the father. [15] The mother pointed out that the father did not bring a motion to change the access schedule until now “at a time when the children need stability and routine in their lives to deal with the effects of the pandemic.” [16] The mother is critical of the father’s style of parenting and his skills. She questions his judgment as she views him as being too permissive and making too many promises to the children. She questions his ability to support the children in virtual learning. Despite these criticisms, the mother did not provide the court with any evidence of any serious concerns about the father as a parent. She describes herself as an excellent mother who dearly loves her children and always ensures the children have what they need.

[36] The father denies that he was an absent or uninterested parent. He admits that when the parties were together the mother took on more of the day to day parenting responsibilities. However, this was only since she was home with the children, and he was the primary income earner and he had to go to work. He explains that he was always involved in the caregiving when he was home, (especially in the evenings and on the weekends). He believes the mother has limited his parenting time and imposed a parenting schedule to suit her strategy in this case. He believes that the mother is trying to fulfil her alleged threats at the time of separation. He further believes that she has used the COVID-19 adjournments and delays to “continue dictating” his parenting time. At the same time, he fears that the adjournment of the May 2020 trial may “cause the OCL report – which was not favourable to her position – to become stale dated.” [17] When the charges were laid against the father in July 2018, there were conditions imposed that immediately restricted contact. The father says the mother “used my peace bond and its no-contact conditions to control” his access to the children. [18] The father moved in with his father who resided quite a distance away from the family home. Although there was a period where the father moved back into the family home, it did not last more than a few months. It wasn’t until after the peace bond had expired when the father was able to secure a residence back in the community where the children resided in the family home, (approximately December 2019). Despite this, the father says that the mother “refused to compromise” and was still limiting his access “for no apparent reason and ignoring” his “requests for increased access.” [19] He describes himself as a caring and loving father who is willing to “work cooperatively with the Respondent, and even proposed a “truce” to move forward effectively as co-parents” and is “willing to attend parenting classes and counselling if necessary.” [20]

[37] I am not going to comment on the disagreement between the parties or their opinions about how they divided the labour and child caregiving responsibilities during their relationship. I am further not going to comment on their grievances or perceptions of the other party. The reason for this is that is not useful to get bogged down in trying to resolve the parties’ different perceptions of the parenting roles prior to separation. It is more important to consider the current situation and how best to structure the parenting times to meet the children’s best interests moving forward.

[38] Although on a temporary motion, courts should be cautious against ordering a disruption to the status quo, that is not to say there is a strict presumption in favour of the status quo. Each case turns on its own particular facts, and in this matter although I considered the status quo, the court is mindful of parties who have imposed a status quo through unilateral decisions and without consulting or obtaining the consent of the other party, as is the case in the matter at bar. In L.M.B. v. F. J.D., 2020 ONCJ 239, at para. 31, Cheung J. writes:

The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party. (See Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No. 6120 (Ont. S.C.J.), paragraph 28 and Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.J.), paragraph 1).

[39] In this matter, the court is dealing with a determination of what interim parenting schedule is in the children’s best interests more than two years after the separation. It is undisputed that the children have been in the respondent’s primary care since separation. However, it is clear to the court (and an undisputed fact) that the respondent has “imposed” or “directed” the schedule because she believes that it is in the children’s best interests. In my view, it is inappropriate for the mother to rely on the length of time this imposed schedule has been in place as a reason that it should not be disrupted prior to a trial. This schedule was never arrived at “on consent”. In this situation, continuing to delay a change in residential arrangements until trial is not appropriate. [21]

[40] Further, in this situation, the circumstances of the separation necessarily and temporarily limited contact between the parents to keep the peace. This meant that the father had to reside quite far away and therefore the children’s contact with their father was limited by distance. Lastly, neither the father nor the mother (nor the court) should be faulted for not bringing or hearing a motion earlier when the COVID pandemic has delayed the final resolution of many family law matters. The trial was not able to proceed in May 2020 due to the suspension of regular court proceedings during the first COVID shutdown. In my view, the court and both the parties must remain flexible and try to find creative solutions to honour the best interests of the children without being unreasonably restrictive during these unprecedented times (and when there is not a lot of trial time available). Thus, the court has a duty to intervene and change the parenting schedule if it is not satisfied that the current arrangements meet the children’s best interests.

[41] What is clear to the court is that these are two people who share one thing in common, that is their deep love for their children. Both parents have a strong relationship with the children, and although their parenting styles may differ, they can both meet the children’s needs. It is clear that the mother does not agree that the father should have the opportunity to equally parent the children as she believes that it is not in their best interests and, according to her, he did not participate equally in the past. However, the parties have now been separated for more than two years, and as Ms. Martyn wrote in the OCL Report, “Roles and responsibilities alter and change throughout a relationship and with a separation these roles and responsibilities will forever be different.” [22] The court agrees with this observation. So long as the changes in the parents are positive and show a willingness to support the development and maintenance of the children and the children’s relationship with the other spouse, then these changes are a factor in determining the best interests of the children.

[42] I find it is not appropriate for the mother to resist expanding the children’s time with their father considering the pandemic. In a recent decision of Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. gave guidance on parenting issues during this extraordinary time. It is critical in terms of safety and the COVID-19 emergency, that both parents work together flexibly, co-operatively, respectfully and with the child’s best interest remaining paramount. In times like these, the support and comfort of both parents is very important to the children. [23] In my view, the mother’s resistance to expanding the father’s parenting time (especially since the release of the OCL report in February 2020) signals to the court her lack of support for the development and maintenance of the father and children’s relationship despite both parents abilities and willingness to care for and meet the needs of the children.

[43] The court must consider the children’s views and preferences in determining the best interests of the children, unless they cannot be ascertained. In this matter, the court has received the benefit of the OCL report written by Ms. Martyn dated February 10, 2020 and the VOC report also written by Ms. Martyn dated January 19, 2021. As explained earlier, since the respondent had filed a dispute to the OCL Report and did not want the court to give the OCL Report any weight, the court requested Ms. Martyn attend at the hearing and give oral evidence and be questioned by both parties and the court. In this way, the court was able to honour and consider all the factors in determining the best interests of the children and give due consideration to the children’s views and preferences.

[44] The OCL Report discusses the adult conflict that the children were exposed to prior to and post separation. Despite the level of conflict between the parents and the peace bond for approximately one year, Ms. Martyn says that the parents were “effectively able to make plans and transfer the children between their two homes” and attend “at community events, such as the children’s dance recital.” [24] Further, there was flexibility shown in their parenting, “particularly when extended family events were occurring.” [25] The report states that both parents “agreed that the most important for their children is healthy, happy and safe. They expressed a need for their children not to be exposed to any further conflict between them. They also both openly shared acknowledgment of love and care by the other parent to the children and the importance of the children having a relationship with each of their parents.” [26]

[45] The OCL report discusses how the children were observed and appeared to be comfortable in both parents’ homes and in both parent’s care. The children were affectionate with both parents. Ms. Martyn discusses the parenting styles of both parents and comments on their concerns, strengths and challenges. She says that both parents “agreed that generally, their views on what is best for the children is in line.” [27] Examples of the parents values being similar were: both are of Portuguese heritage and have agreed to raise the children in the Roman Catholic faith; the children attend a Catholic School; both parents would likely agree regarding an emergency medical decision and follow the recommendations of the physician; both parents support the children participating in activities.

[46] The OCL Report and VOC report further provided evidence of the two elder children’s views and preferences, (Emily and Kaylee). Michael’s views were not sought out due to his age. All three children are generally healthy. Emily has been diagnosed with Asthma and Kaylee had some surgeries in the past.

[47] At the time of the OCL Report, Emily was in grade 5. She does well in school and is social and outgoing. She is described as a “well spoken young lady with a sense of kindness and care. She talks from a place of wanting both her mom and dad to find happiness and to just get along.” [28] She was observed to have great communication skills and was described by her parents as “comfortable and confident saying it is as it is, telling others what may be bothering her and standing up for herself.” [29] Emily confirmed that she witnessed her parents frequent “yelling, arguing and fighting” and that she would often act protectively towards her younger siblings by taking them into another room. [30] Emily shared her wish and preference for an equal time with both parents. She loves both of her parents and wants to have the same amount of time (50/50) one week in both homes. She further shared that she wants Kaylee and Michael to have plans that are the same as hers. [31]

[48] At the time of the OCL Report, Kaylee was seven years old and in grade two. Like her sister, she does well in school. She is described as having a great sense of humour, subtle seriousness and being somewhat quiet in public. She is a little more cautious around new people but warms up quickly and has a good sense of judgment. Kaylee shared how important her family is to her and that she has some sad and “unsafe” feelings and memories form when her mom and dad lived in the same home and had fights. She shared that now there is no more fighting, and she enjoys her time and cuddles with both of her parents in their separate homes. She expressed a wish for both her parents to be nice to each other.

[49] The child Michael was observed and described as having lots of energy and being very smart and determined. He looks up to and is very attached and close to his sisters. Michael will start school in 2021 and has been enrolled in daycare since the mother has been working outside the home. Ms. Martyn observed Michael to be “able to calm [himself]” in both parents care and he “initiated and was accepting of affection by both his parents.” [32]

[50] The VOC report dated January 19, 2021 provided an update regarding the children’s wishes. Emily and Kaylee were interviewed twice, once in each parent’s home. According to Ms. Martyn, the children expressed their wishes with independence. Emily spoke about her concerns of having too little time with her father and how she wanted a “more fair” division of time between both parents’ homes. Ms. Martyn described Emily as “owning her feelings and actions” and that she expressed her wishes strongly and consistently. Emily’s expressed wishes were for her parents to have better communication and “be friends” so it would be easier to have more regular time between her two homes; and more equal time between her two homes. Ms. Martyn observed that Kaylee was not consistent between the two interviews. She seemed to change her perspective depending on which home she was in. Despite this inconsistency, she did share that she trusted that her parents would make the best decision for her regarding their care and time between their two homes; and she loves her family and both her mom, and her dad have both taught her lots of things. Both children talked about feeling safe in both of their homes and not feeling the need for limitations of time moving forward.

[51] The OCL Report recommends the parents equally share the children’s time between both parents’ homes on a 2-2-3 schedule. She made other recommendations regarding other incidents of a parenting order including a recommendation that the respondent have decision-making responsibility. As I did not hear submissions on this issue, I am refraining from making an order regarding decision-making responsibility. I would suggest that the parties attempt a family dispute resolution process to help resolve this issue and to negotiate a comprehensive holiday schedule and improve communication. In accordance with s. 16.1 (6) of the Act, I will be directing the parties to do so. As explained above, I have only been asked to make an order to allocate the parenting time.

[52] Ms. Martyn’s evidence strongly supported not only an increase of the children’s time with their father but an immediate move towards an equal parenting schedule. During her oral evidence and questioning, she advised the court that she suggested the 2-2-3 schedule primarily because she was gearing the recommended schedule to the needs of all the children including the youngest child Michael at the time. If it wasn’t for Michael, Ms. Martyn said that she “may have suggested a different shared parenting schedule like week about.” Ms. Allen asked her if the COVID pandemic would alter or impact her recommendation for a 2-2-3 schedule and Ms. Martyn responded “No.” Ms. Martyn further commented that equal time is still in the best interests of the children if both parents are available and flexible. She stated that she understood that the father’s self-employment made him available to care for the children. When asked about the different perspectives of the parents and their different parenting styles, she stated that she was not concerned about the parenting different parenting styles negatively impacting the children because “these kids can adjust to minor differences in parenting in each home.” As stated in her report, she found that the parents have demonstrated flexibility (with respect to school/dance events and extended holidays) and similar values (religion, school, spirituality).

[53] Ms. Martyn was asked why she would recommend a 2-2-3 schedule that would create numerous opportunities for conflict at the exchanges and transitions for the children. She answered that she understood that the parents had been able to exchange the children without incident for a long period of time. She further stated that since filing her Report dated February 10, 2020, the children have gotten older and have been able to experience extended longer periods of time in their father’s care, (March 2020 and Christmas 2020) and this may indicate that less transitions would be required in a shared or equal parenting schedule.

[54] Although there are cases where the implementing the recommendations of an OCL report without the benefit of viva voce evidence or cross-examination is generally discouraged, there are also cases where if the court is simply implementing a parenting schedule, an untested OCL report may be used. In this matter, the OCL Report and the assessor has been tested by way of Ms. Martyn attending at court and providing viva voce evidence and being cross examined. As such, the court can give weight to (and honour) the children’s expressed views and preferences. [33] I found that the OCL investigation and Report and the VOC report were both comprehensive and helpful regarding all the factors the court must consider concerning the best interests of the children and the allocation of parenting time. I found the evidence provided by Ms. Martyn was insightful, strong and credible. I found her evidence compelling and I gave her evidence significant weight. In my view, when well-adjusted children have the courage to express their views and preferences, they should be supported (if there is evidence of their strength, consistency and independence). As set out in the Act, children’s views and preferences should be given their due weight (according to their age and maturity).

[55] Counsel for the applicant suggested in his submissions that I should consider the “maximum parenting time” principle as set out in the s. 16 (6) of the Act. I have done so, and in this matter, I have found that it is in the best interests of the children to spend as much time with each parent as possible. In this matter, it means an equally shared parenting time schedule. I wish to make clear however, that this section does not create a presumption of shared or equal parenting under the Act. I repeat, none of the factors listed in s. 16 of the Act are to be given priority over another.

[56] Over the past year the children have spent long durations with each parent (in March and December 2020). At the time of the OCL report, they had not had this type of experience. In her evidence, Ms. Martyn explained that the reason that she suggested a 2-2-3 parenting schedule was to consider the different ages and stages of development of the children. Specifically, the age difference between the youngest child Michael and the eldest child Emily meant that the parenting schedule she recommended was catering to what she felt were the youngest child’s needs. During cross-examination, she advised the court that now that Michael was older and had spent long periods of time in both parent’s care, a parenting schedule that had less transitions would likely suit the children. I agree. In my view, any form of 2-2-3 schedule creates numerous transitions. In this case, fewer direct parenting exchanges are preferable and in the best interests of the children.

[57] In addition, the parents have resided close to each other (in the same school catchment area) since at least December 2019. The change to a more equal time sharing parenting arrangement will not be overly disruptive to the children or cause them a longer commute.

[58] In my view, both parents are capable, loving and responsible. The court has a duty to intervene and change the parenting schedule if it is not satisfied that the current arrangements meet the children’s best interests. I find that it is in the best interests of the children to spend an equal amount of time with both parents.

[59] If the parents are unable to negotiate or mediate a final resolution to the remaining issues, this matter should be treated with urgency, (the trial was already delayed once). The parties require a final parenting order with respect to all parenting terms (including a full holiday schedule and allocating decision-making responsibility). It should be added to the trial list in May 2021 if possible, and the parties should contact the trial coordinator to schedule a trial scheduling conference and trial management conference as soon as possible.

[60] For all the above reasons, interim order to go:

Interim Parenting Order

1. The parties shall share parenting time with the children on a “week-about” schedule as follows: (a) Commencing March 15, 2021 and every other week thereafter until further court order or agreement, the children shall reside with the Respondent for the entire week, including all overnights. (b) Commencing March 22, 2021 and every other week thereafter until further court order or agreement, the children shall reside with the Applicant for the entire week, including all overnights. (c) The children shall transition into the other parents care on Monday mornings as specified below.

2. Both parties shall ensure that the children are ready for and arrive at school on time on Monday mornings.

3. The party relinquishing parenting time shall be responsible for drop-offs at the children’s bus stop, school, daycare, or extra-curricular activities, on time, as applicable. The party with the children overnight shall be responsible for pick-ups from the children’s bus stop, school, after-school care, daycare, or extra-curricular activities, on time, as applicable.

4. When the children are attending school (i.e., during the academic year of September to June), drop-offs and pick-ups shall take place at the children’s bus stop, school, after-school care, daycare, or extra-curricular activities, on time, as applicable.

5. When the children are not attending school (i.e., holidays, school P.A./P.D. days and summer vacation in July and August) drop-offs shall take place at 9:00am, or a time agreed upon by the parties in writing. Parenting time exchanges shall occur at the receiving party’s residence or a location agreed upon by the parties in writing.

6. If the children go back to “learning from home” (i.e., at-home schooling due to the COVID-19 pandemic), then “school” shall take place at the party’s residence where the children are spending their overnight that day. For example, on the day of a parenting change, the party receiving the children for overnight is responsible for facilitating at-home schooling that day, while the relinquishing party is responsible for ensuring that the children arrive at “school” (aka the receiving party’s residence) that day by 8:30am. The parties may also use the children’s bus stop as an exchange location if requested.

7. If the children go back to “learning from home”, both parties shall make themselves available to facilitate at-home schooling for the children during their scheduled parenting time. In other words, when the children are “learning from home”, the party with the children overnight that day must be at home with the children to facilitate at-home schooling/learning from home.

8. The parties may agree to reasonable and necessary ad hoc changes to the regular parenting schedule, if agreed in writing.

9. The parties will accommodate reasonable requests for adjustments to the regular parenting schedule to accommodate special events/occasions. Requests shall be made emailed to the other party at least one (1) week prior to the event. A response shall be emailed to the requesting party within three (3) days of receipt of the request.

10. The parties shall make non-major, day-to-day decisions for the children when the children are in their care (i.e., during their parenting time). In the event of an emergency, the party with the children shall contact the other party promptly, and as soon as possible.

11. The parties shall communicate about the children’s parenting schedule and any other incidents of parenting including the children’s education and health in writing via email.

12. Both parties shall provide to each other and be entitled to request from each other any information about the children’s well-being including in respect of their health and education.

13. Subject to any applicable laws, both parties shall be entitled to communicate with and receive information about the children’s well-being including in respect of their health and education from any institution or person that is involved in the lives of the children (including doctors and teachers).

14. The parties shall contact The Mediation Centre in Barrie and complete the intake process for mediation and/or parenting coaching regarding the remaining parenting issues and the full holiday schedule. If deemed appropriate by The Mediation Centre, the parties shall attend and participate in at least one of these family dispute resolution processes.

15. The parties shall refrain from discussing the ongoing Court case with the children. Both parties shall refrain from speaking negatively about the other party to or in front of the children and shall make their best efforts to ensure that third parties refrain from doing so as well.

Interim Spring/Summer Holiday Schedule

16. In addition to the parties’ regular parenting time schedule, they shall also adhere to the below holiday and special occasion parenting time schedule for the children. Where the Regular and Holiday schedules conflict, the holiday schedule shall prevail.

17. On Mother’s Day, if the children are not otherwise with the Respondent, the children shall be in her care from 10:00am to 7:00pm. On Father’s Day, if the children are not otherwise with the Applicant, the children shall be in his care from 10:00am to 7:00pm.

18. Commencing in 2021, the parties shall begin alternating Easter weekend every year. Easter weekend begins after school on the Thursday before Good Friday and ends on Easter Monday at 9:00 am. The Respondent shall have Easter weekend in 2021 and every odd numbered year thereafter, and the Applicant shall have Easter weekend in 2022 and every even numbered year thereafter.

19. Commencing in 2021, each party shall have one (1) week of “summer-vacation” parenting time during the children’s summer holiday from school in July or August. The parties shall consult each other about which week they would prefer on or before May 1st every year.

20. The parties may agree to reasonable and necessary changes to the Holiday parenting schedule as necessary, if agreed in writing.

[61] Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the applicant is the successful party and is presumed to be entitled to costs, (subject to any Offers to Settle that may affect costs). If the parties cannot agree, I will receive written submissions commencing with the applicant serving and filing his submissions on or by March 18, 2021, followed by the respondent serving and filing her submissions on or by March 25, 2021, then the applicant’s reply submissions, if any, served and filed on or by April 1, 2021. Cost submissions shall be no more than 3 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by April 1, 2021, the issue of costs will be deemed to have been settled between the parties.

R. S. Jain Date: March 9, 2021

[1] Family Law Rules r. 14 (17) and my endorsement of October 29, 2020 [2] Divorce Act (R.S.C. 1985, c.3 (2 nd Supp.), as am.) [3] Justice Sherr of the Ontario Court of Justice clearly and succinctly discussed the transitions under the CLRA and summarized the changes in terminology in the amended CLRA in his recent decision (L.B. v. P.E. 2021 ONCJ 114). [4] See the helpful guidance provided by the Ministry regarding Bill C-78 in the Ontario Family Law Practice, Volume 1, 2021, Coats, Steinberg et.al. LexisNexis Canada Inc., Toronto [5] Divorce Act sec. 16 (3) (j) [6] Divorce Act sec. 16 (4) (a) through (h) [7] OCL Report dated February 10, 2020 at page 28 [8] Both the Applicant and Respondent’s affidavits discussed incidents of conflict as occurring in the children’s presence. [9] VOC Report dated January 19, 2021 at page 6 [10] Respondent’s affidavit dated October 26, 2020 at para 8 [11] Respondent’s affidavit dated October 26, 2020 at para 6 [12] Respondent’s affidavit dated October 26, 2020 at para 15 [13] Respondent’s affidavit dated October 26, 2020 at para 39 [14] Respondent’s affidavit dated October 26, 2020 at para 15 [15] Respondent’s affidavit dated October 26, 2020 at para 15 [16] Respondent’s affidavit dated October 26, 2020 at para 39 [17] Applicant’s affidavit dated October 21, 2020 at para 6 [18] Applicant’s affidavit dated October 21, 2020 at para 26 [19] Applicant’s affidavit dated October 21, 2020 at para 27-29 [20] Affidavit of Applicant dated October 21, 2020 para 55-56 [21] See J.D. v. N.D., 2020 ONSC 7965, at paras 17-23, and Ma.M. v. A.W.M., 2019 ONSC 2128 [22] OCL Report dated February 10, 2020 at page 32 [23] Ribeiro v. Wright 2020 ONSC 1829, [2020] O.J. No. 1267 [24] OCL Report dated February 10, 2020 at page 13 [25] OCL Report dated February 10, 2020 at page 14 [26] OCL Report dated February 10, 2020 at page 15 [27] OCL Report dated February 10, 2020 at page 12 [28] OCL report page 18 [29] OCL Report page 19 [30] OCL Report page 20 [31] OCL Report pages 21-22 [32] OCL Report page 24 [33] See Bos v. Bos, 2012 ONSC 3425 (Ont. S.C.J.) at paras 19-28) and Morrell v Morrell, 2018 ONSC 465, at paras 24-28 and Forte v. Forte. See also: In Kohli v. Thom, 2021 ONSC 927 the applicant brought a motion for increased and unsupervised parenting time with the child. The materials filed consisted of lengthy affidavits containing conflicting evidence and allegations of domestic violence. The court made note of the challenges inherent in making a decision, on an interim basis, based on a paper record of highly conflicting evidence without the benefit of cross-examination: at para. 33. However, the court relied heavily on an OCL report that referenced collateral information to assess the credibility of the affidavit evidence. The court also made note that while the OCL report made a recommendation as to custody, that issue was not before the court.