COURT FILE NO.: FS-20-051 DATE: 20220413
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Graham Melbourne, Applicant AND: Laura Melbourne, Respondent
BEFORE: The Honourable Justice McGee
COUNSEL: Mikayla Greig, for the Applicant Lawrence Ryder, for the Respondent
HEARD: April 6, 2022
E N D O R S E M E N T
Background
[1] The parties are the parents of three-year-old Sloane Ivy Melbourne. They agree that they will jointly make decisions for their daughter and abide by all federal and provincial Covid health care guidelines; but they cannot agree on Sloane’s parenting schedule or where she should attend daycare.
[2] Mr. Melbourne’s March 28, 2022 Notice of Motion asks for a schedule known as a 2-2-3 schedule in which Sloane transitions between her parents’ home every Monday at 5:30 p.m., Wednesday at 5:30 p.m. and Friday at 5:30 p.m. He also asks that she be placed at Bright Beginnings Child Care in Tiverton, Ontario which is approximately 10 minutes south of Bruce Power where both parents are employed.
[3] Ms. Melbourne’s March 31, 2022 Notice of Motion seeks a more complicated parenting schedule. In her proposal, Sloane would transition Mondays at 4:00 p.m., Tuesday at 4:00 p.m., Thursday at 4:00 p.m., alternate Fridays at 4:00 p.m. and alternate Sundays at 4:00 p.m. The hour of the transition is not material because it is agreed that pick up will occur at the daycare, irrespective of which daycare is chosen. Ms. Melbourne asks that Sloane be placed at Saugeen Shores Childcare Centre which is about 25 minutes northeast of Bruce Power.
Analysis
[4] I will begin with the choice of daycare. The test to be applied is the best interests of the child within the overall context of each parent’s proposed parenting plan. At the age of three, a consideration of a preschool child’s best interests as to the choice of daycare will include the quality of the program, transit time, contingency planning, stability and cost.
[5] I was not made aware of any special needs for Sloane, other than she has some speech delays that may not be atypical for a child of her age.
[6] I learned during the presentation of these two motions that both daycares are housed in attractive facilities and offer excellent services. Saugeen Shores is a newer building, is more expensive and is open an hour later until 6:30 p.m. Neither parent states that such a late pick up is needed and in any event, both daycares offer before and after school programs. Each offers language instruction, a lunch program and extensive play.
[7] For different reasons, both daycare locations offer contingency planning, which I referred to during submissions as a “Plan B” for the parents. At Bright Beginnings, Mr. Melbourne’s new partner is available for pick up, and at Saugeen Shores Ms. Melbourne’s extended family is close by; although I expect that both parent’s support people would also be available for pick up at the other’s preferred location.
[8] What is the better choice for Sloane in the absence of an agreement between the parents?
[9] At the heart of this dispute appears to be the location of the parents’ homes, rather than the proximity of the daycare to their work.
[10] Ms. Melbourne lives in Port Elgin, a few minutes away from Saugeen Shores Daycare. A placement in her community would allow her extended family in Port Elgin to be close by and on bad weather days Ms. Melbourne would bear the risk of travel to and from work because Sloane would only be in transit for the brief period between her home and the daycare. However, were bad weather to befall Mr. Melbourne on his parenting days, Sloane would be on the road between Saugeen Shores and his residence for at least 40 minutes.
[11] Mr. Melbourne now lives in Kincardine, which is a further 15 minutes south of Bright Beginnings. A placement in his preferred daycare would be on his way to and from work, whereas a placement in Saugeen Shores would require him to overshoot his work exit on Highway 21 by a good twenty minutes, adding at least 40 minutes to each workday.
[12] Having Sloane attend Bright Beginnings offers another benefit for Mr. Melbourne and his new partner in that his infant son could also attend Bright Beginnings when he comes of age, providing additional time together for the half siblings. He argues that this would provide additional stability for Sloane. In response, Ms. Melbourne points to the community friends that Sloane would have at Saugeen Shores and the continuity of that peer group should Sloane attend school in Port Elgin.
[13] Although there is no status quo in daycare placement, I do note that Mr. Melbourne has been paying for a spot for Sloane throughout the Covid period and that Saugeen Shores was a more recent proposal. Mr. Melbourne has already arranged for speech augmentation services for Sloane at Bright Beginnings.
[14] I can well understand why this issue has eluded settlement. Both parents are working fulltime, and travel time to and from daycare will significantly impact their workday and travel time, and as a result, their health and wellness. I acknowledge the importance of this decision for the parents while at the same time, placing my focus squarely on Sloane’s best interests.
Decision on Daycare
[15] After much reflection, I have decided to grant Mr. Melbourne’s preference for Sloane to attend daycare at Bright Beginnings for the following child centred reasons:
a. Bright Beginnings is very close to both parents’ work. Should Sloane be ill or suffer an injury, either parent can be there almost immediately. b. If Sloane is placed at Bright Beginnings, she will be picked up earlier. c. If either parent can get away from work a bit early, she or he will have a greater opportunity during regular hours to interact with Sloane’s instructors, or to stay for a few minutes and engage in activities with Sloane. d. When I total travel time for Sloane over a two-week period, she will spend approximately the same amount of time in a vehicle within each proposal, but the father’s proposal better balances that time between her mother and her father. I agree with mother’s counsel that the five minutes between Saugeen Shores and the mother’s residence is ideal during the mother’s parenting time, but it means a long drive for Sloane when she is in her father’s care. Bright Beginnings moderates the driving time to even out all the trips from each of her parents’ home to the daycare, making for a better overall and consistent routine for Sloane. e. Bright Beginnings is about $300 less a month, a not insignificant amount. f. Bright Beginnings already has an enhanced language program in place, although I do not give this point priority, as I expect that Saugeen Shores could also make programming available if requested.
[16] I make this determination on the motion record before me, and it is not binding on school placement for Sloane. Sloane will be eligible to attend school in both Kincardine and Port Elgin and although I raised it in counsel’s submissions, this decision is not a predetermination of school placement for Sloane. Because her school placement is undetermined, I have not considered Mr. Melbourne’s argument that the half siblings will be at the same daycare, as Sloane may be in school by the time her brother starts at the daycare.
[17] Order to issue pursuant to paragraph 4 of Mr. Melbourne’s March 28, 2022 Notice of Motion.
Analysis of the Proposed Parenting Schedules
[18] The 2021 amendments to the Divorce Act and the Children’s Law Reform Act introduced new provisions for parenting plans. The goal of a modern parenting plan is to craft a child centred schedule, an approach that has been extensively researched and advanced within the AFCC Parenting Guidelines. In the past, the use of a detailed parenting schedule was generally limited to the most difficult parenting relationships: those in which multidirectional Orders were necessary to remove as much discretion – and therefore potential conflict – as possible. The modern approach to parenting plans is to move beyond the baseline of conflict reduction and as much as practical, to map out the best childhood possible for children growing up in two (or more) homes.
[19] The AFCC Parenting Guidelines were prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) to assist parents and their professional advisors in specifically developing the best, child-focused, and realistic parenting plans. As set out in its preamble,
This Guide combines knowledge gained from developmental research on the impact of parental separation and divorce on children, with practical insights about the needs of children with parents living apart. This Guide is intended to be used in conjunction with the AFCC-Ontario Parenting Plan Template, which offers suggestions for specific clauses that can be used or adapted for a parenting plan.
[20] I agree with Justice Chappel in McBennett v. Davis 2021 ONSC 3610 when she states in paragraph [92] that:
"The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children."
[21] And as further stated by Justice Kraft in H. v. A., 2022 ONSC 1560:
The parenting plan guide produced by the Association of Family and Conciliation Courts - Ontario ("AFCC-O") has been found by many courts to be of great assistance in determining parenting schedules that are in a child's best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation.
[22] There are two suggestions within the AFCC Parenting Guidelines for young children that I find to be useful within this decision: that transitions occur at a neutral location such as a daycare or school (to which the parents have already agreed), and that the number of transitions for a child be minimized while ensuring that she is able to spend as much time with each parent as is in her best interests.
[23] Transitions are stressful for children. There is a change in expectations and relationships every time that a child moves from one home to another. There are few, if any constant objects. Some of the child’s belongings or a favourite activity or a pet will be left behind. Each transition requires an adjustment, the length and quality of which will depend on the child’s individual temperament, the stability of the pattern of care and the demonstrated empathy of her parents. Should the parenting schedule be uneven, or not allow enough time for adjustment before the next transition, a child may never truly settle in either home, or perhaps, even be fully present.
Decision on the Parenting Schedule
[24] Mr. Melbourne and Ms. Melbourne are fully committed to Sloane’s care. It is unfortunate that the parents have been unable to find common ground as each has offered a thoughtful parenting schedule.
[25] When I holistically review the criteria in Section 16 of the Divorce Act, the suggestions within the AFCC Parenting Guidelines and Sloane’s specific best interests, I find that Mr. Melbourne’s proposed parenting schedule offers a more child centred approach. Because the transitions are always on the same three weekdays: Monday, Wednesday, and Friday, they are stable and predictable. All the transitions can occur at the daycare. The father’s plan has one less transition a week than that of the mother’s plan, which has an alternating fourth transition that limits Sloane’s ability to have a full weekend with each parent.
[26] Order to issue pursuant to paragraph 2 of Mr. Melbourne’s March 28, 2022 Notice of Motion.
[27] Further order to issue that should either the Friday or the Monday be a school holiday, that Sloane will remain in the care of the parent that would have dropped her off at daycare that day, (“the care parent”) and the transition will occur at that parent’s home at 5:30 p.m. or as may be agreed. If the care parent is unavailable on the Friday or Monday, then the other parent shall be offered the day, before the care parent delegates Sloane’s care to her or his support people.
[28] The parents are encouraged to negotiate a parenting schedule for holidays, the summer and special occasions.
Costs
[29] If costs cannot be resolved, the applicant father’s costs submissions shall be due on April 27, 2022, response on May 11 and reply on May 18, 2021. Submissions are limited to three pages exclusive of a Bill of Costs or Offer to Settle, and caselaw is to be hyperlinked. A copy of each parties’ submissions is to be emailed to my assistant at Brenda.Berger@ontario.ca.
McGee J. DATE: April 13, 2022
