COURT FILE NO.: FS-19-42 DATE: 2023 03 24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.P., Applicant AND: W.W., Respondent

BEFORE: Conlan J.

COUNSEL: Elli M. Cohen, for J.P. Kevin Roche, for W.W.

HEARD: March 23, 2023, in Walkerton

ENDORSEMENT on motion

I. Two Motions to be Decided

[1] Each side has brought a motion.

[2] The Applicant mother, J.P., asks for an order for:

i. joint decision-making responsibility for the child, T. (12 years old), but, in the case of an impasse, final authority to be in her hands;

ii. the primary residency of T. to be with her;

iii. contact between T. and his father, the Respondent W.W., to be on alternate weekends and one mid-week overnight, every week; and

iv. child support for T. and also for C. (her older son, 18 years of age, from another relationship).

[3] The father asks for an order for:

i. sole decision-making responsibility for T., or, alternatively, joint decision-making responsibility;

ii. the involvement of a parenting coordinator;

iii. an equal shared parenting regime, week on/week off; and

iv. that the child not be moved to somewhere outside of Port Elgin.

[4] The two motions were heard at Court in Walkerton in less than two hours’ time, and it is fair to observe that the vast majority of the time spent by counsel in their submissions, ably made on both sides, dealt with two issues: (i) decision-making responsibility and (ii) parenting time.

[5] In support of the mother’s motion, the Court has the benefit of affidavit evidence from the mother (two affidavits), from the mother’s current partner, and from the maternal grandmother. The mother’s current partner lives not with the mother in Port Elgin but in Kingston, Ontario with his teenage son, and he works in the oil and gas industry.

[6] In support of the father’s motion, the Court has the benefit of affidavit evidence from the father (three affidavits), the paternal grandfather, and a close personal friend of the father who has observed the father spending time with T.

[7] The parties were previously cross-examined out of court, and the transcripts of those cross-examinations have been filed.

[8] In addition to the affidavit evidence, the Court has reviewed independent evidence from the Office of the Children’s Lawyer (“OCL”). A clinical investigator, Mr. Todd Perreault, prepared a very thorough report for the OCL, dated January 10, 2020. T. was 8 years old at that time. As well, there are other pieces of independent evidence that help this Court to better understand the needs of the child, including but not limited to a psychological assessment report dated January 27, 2022, and school board documents.

[9] Rather than deal with each parent’s motion in turn, the structure of this Endorsement is on an issue-by-issue basis.

II. A Few Undisputed Facts

[10] The parties were married in July 2009 and separated in March 2018. Since the date of separation, T. has spent time with both parents but has lived primarily with and has spent more time with his mother.

[11] The proceeding is not on a trial list, but a trial management conference is being scheduled.

III. The Statutory Regime

[12] Counsel on both sides were helpful in citing numerous court decisions that are relevant to the various issues to be decided, mainly decision-making responsibility and parenting time.

[13] I think it is more important, however, to focus on the legislation itself, as the recently amended provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), tell us, in clear language, most of what we need to know. All references below are to that statute.

[14] In making a parenting or a contact order, this Court must (not should) consider only (not among many other things) the best interests of T. – section 16(1). There is a non-exhaustive list of things that the Court must (not should) consider in determining what those best interests of T. are, and the factors that are most relevant to our case are:

T.’s needs;

i. the mother’s and the father’s willingness, or not, to support the development and maintenance of T.’s relationship with the other parent;

ii. the history of the care of T.;

iii. the child’s views and preferences; and

iv. the ability and willingness, or not, of the mother and the father to communicate and cooperate, especially with each other, on matters affecting T.

[15] The reference for the above are clauses (a), (c), (d), (e), and (i), respectively, of section 16(1).

[16] The Court must (not should) fashion a parenting order that respects, as far as it is consistent with the best interests of T., the principle that T. should have as much time as possible with each parent.

[17] That does not mean, however, that there is a presumption that a parenting time order should reflect an equal shared parenting regime. The legislation does not say that, and it could have. Counsel for the father argued that the onus lies on the mother to demonstrate why anything less than equal shared parenting time in our case is in the best interests of the child. In support of that submission, counsel for the father took this Court to paragraph 59 of the decision in Fraser v. Fraser, 2016 ONSC 4720, and the comment, “[w]hen 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”.

[18] If that comment was meant to stand for the proposition advanced by counsel for the father, that is that there exists a presumption in law for equal shared parenting time, which I am not sure is a fair interpretation of the said comment, then I respectfully disagree with the learned justice in that case.

[19] The statutory authority for the father’s request that this Court prohibit the relocation of T. to any place outside of Port Elgin is found in section 16.1(9).

[20] Finally, the term “parenting order”, as used in the legislation summarized above, does not merely refer to an order about parenting time or a parenting schedule but also includes an order about decision-making responsibility. That is made clear by section 16.1(4), which section outlines the contents of a “parenting order”.

IV. Decision-Making Responsibility

[21] In my view, it is in the best interests of T. that the mother have the final decision-making responsibility for the child. This Court orders that, in accordance with clause 1 of the draft order filed on behalf of the mother, the parties shall share decision-making authority for all major decisions on account of the child, but if the parties cannot come to an agreement, the mother shall have temporary decision-making authority with respect to same.

[22] There are three main factors that have driven the Court’s conclusion on this issue.

[23] First, the Court’s decision is consistent with the recommendations of the OCL, and this Court places significant weight on those recommendations, despite the passage of time since the report was prepared, because of (i) the sheer thoroughness of the report (it is one of the most extensive ones that I have seen) and (ii) unlike the competing affidavits filed in the names of the parties and their family members, partner, and friend, it is truly independent.

[24] Second, the distrust that the father has about T.’s special needs and his diagnoses, those needs outlined in the psychological report and the school board documents referred to above, suggests that he is not a good candidate to leave final decision-making authority with. The evidence in support of the father’s said distrust is summarized in the factum filed on behalf of the mother, at and around paragraph 33, and I accept that evidence.

[25] Third, there is no real complaint made by the father that the mother has been making bad decisions for the child. Rather, the chief grievance is that the mother has not been diligent in sharing information with the father and involving him in the decision-making process. The order made herein mandates that the mother shall, for every major decision affecting the child, start from the premise that the decision will be made jointly. That means that she has a positive obligation to do what the father argues she has not been doing to date.

V. A Parenting Coordinator

[26] I decline to make an order for a parenting coordinator. It is unnecessary given that a final arbiter has been identified for all major decisions affecting the child.

VI. Parenting Time and Primary Residency

[27] In my view, it is in the best interests of T. that he enjoy equal time with both parents. This Court orders that, in accordance with clause 6 of the draft order filed on behalf of the father, commencing on a date no sooner than 15 calendar days after today (to allow the child to prepare himself for the change) and no later than 30 calendar days after today, that date to be agreed on between the parties, the child shall reside with both parents equally, pursuant to a week-on/week-off schedule.

[28] Again, there are three main factors that have caused the Court to decide the issue as it has.

[29] First, the Court’s decision is consistent with the recommendations made by the OCL. Although the mother’s work schedule has changed considerably since the date of Mr. Perreault’s report, and thus the precise five-week schedule that he outlined therein is no longer practical, when one analyzes that schedule carefully one sees that it called for much more time between the father and the child than what is contemplated by the mother’s proposal – alternate weekends and one mid-week overnight. In fact, what Mr. Perreault envisioned was pretty close to an equal shared parenting regime.

[30] Second, the Court’s conclusion on this issue is consistent with the views and preferences of the child. In the father’s motion materials, including at paragraph 6 of the factum filed on his behalf, the comments made by T. to Mr. Perreault are summarized, and I agree with Mr. Roche that those comments cannot reasonably be squared with a parenting order that relegates the father to the role of a weekend dad.

[31] Third, there is nothing contained in the psychological report, or the school board documents, and nothing about T.’s special needs, that is incompatible with a week-on/week-off schedule. Such a schedule is not, as implied by the mother, any less stable than the status quo and, further, such a schedule is actually more stable, with fewer transitions, than the proposal advanced by the mother herself.

[32] These parents live in the same rather small town, very close to each other, and there is no suggestion that the father cannot properly parent his son for several days in a stretch. The mother has some concern about the father not being prepared to administer to the child his medication. But that same concern would be present under the mother’s own proposal. In addition, to further guard against any potential difficulty with the medication, this Court makes the following order: both parents shall follow all recommendations made by T.’s medical doctor(s), including but not limited to the administering of all medication prescribed for him.

VII. An Order that T. Not be Moved Outside of Port Elgin

[33] This relief sought by the father is denied. I am not aware of any plan by the mother to move away from Port Elgin. If either parent announces an intended relocation or actually moves without any prior announcement, then the other side can bring the matter back to Court.

VIII. Child Support for T.

[34] My impression from the materials is that this issue was not being pursued by the either side in the event that an equal shared parenting regime was implemented. If I am wrong in that impression, either side may bring that to my attention in their written costs submissions.

IX. Child Support for C.

[35] This relief sought by the mother is granted, pursuant to section 5 of the Federal Child Support Guidelines (SOR/97-175), made under the Divorce Act. The Court finds that the father “stands in the place of a parent” for C.

[36] I find it offensive that the father would ever suggest that he scrub a tattoo of C.’s name from his body. I hope that the young man has not, and never will be, told any such thing.

[37] I disagree with Mr. Roche that this issue should be deferred to trial or that there is no urgency to it. First, we are a long way from the start of this trial. I doubt that the matter will be tried within the next eighteen months. Second, urgency is not required to obtain relief on a motion brought in the normal course, and this relief was pleaded by the mother at first instance. Third, that the father has not paid a cent of child support for C. in the five years since separation makes this a pressing issue, if not an “urgent” one.

[38] I adopt the framework set out by Justice Chozik in Spry v. Shetler, 2021 ONSC 603, referring to the test and the principles outlined by the Supreme Court of Canada in Chartier v. Chartier, and I would draw attention to many of the same considerations noted by Her Honour at paragraph 15 of the Spry, supra decision. That the father appears to have elected to withdraw from any part of C.’s life, post-separation, does not absolve the father of his obligations to support C.

[39] In the factum filed on behalf of the father, at paragraphs 34 through 36, there is no issue raised about C.’s entitlement to support because of his age. The argument is simply that the father does not currently, and did not before, stand in the place of a parent, in loco-parentis, with regard to C. I find otherwise. I accept the evidence of the mother in terms of the relationship between the father and C.

[40] As observed by Mr. Cohen, the father knows that the mother is not receiving regular support from C.’s biological father. He should have been eager to demonstrate that he was different. This Court orders the relief outlined at clauses 9 and 10 of the draft order submitted on behalf of the mother – to paraphrase, the father shall pay $364.00 per month in child support for C., commencing on May 1, 2018, and the father shall contribute to C.’s section 7 expenses in proportion to his income, commencing on the same date.

X. Costs of this Temporary Order

[41] The parties shall file written costs submissions, keeping in mind that there has been some divided success overall. Each side shall file within 45 calendar days after today. Each side is limited to one filing (there shall be no reply), and each side’s submissions shall not exceed five pages in length, excluding attachments.

XI. Other Relief, and a Parting Message for the Family

[42] There is a small handful of other relief sought in the parties’ respective draft orders that has not been dealt with herein, such as specified holiday parenting time and financial disclosure. Surely, counsel and the parties can work those things out, failing which they may be brought to my attention in the written submissions on costs.

[43] I want the mother to know that this Court does not accept the father’s allegations that she has tried to alienate the child from the father. My decision on the parenting time issue should not be taken as a condemnation of the mother but rather as a simple recognition that much more time between the father and T. is, for the reasons stated, in the child’s best interests.

[44] I want the father to know that this is his chance to be more involved in the life of his son. He should not ruin it by continuing to take a terribly dim view of the mother and then project that for the child to see, and he should stop this nonsense about questioning the special needs of T. and what they require in terms of support. The fairly recent psychological report speaks for itself.

[45] I want T. to know that I tried to do the best that I could for him. If I turn out to be wrong, someone will bring it back to Court right away to fix my mistake. I am confident that will not be necessary, however.

Conlan J. Date: March 24, 2023