MacDonald v. Harris, 2025 ONSC 25
Court File No.: FC-23-00000381-0000
Date: 2025-01-02
Ontario Superior Court of Justice, Family Court
Between:
Bryce Alexander MacDonald, Applicant
Jonathan Loucadellis, for the Applicant
– and –
Kara Michelle Harris, Respondent
Melissa Hawco, for the Respondent
Heard: September 12, 2024
Decision on Motion for Temporary Parenting Time
Justice N. Edmundson
Background
[1] Bryce Alexander MacDonald is the father and Kara Michelle Harris is the mother of Brayden James MacDonald, born March 7, 2016. The parents had a short-term relationship and did not live together either before or after Brayden’s birth. All three lived in Oshawa until May 2021 when Brayden was five. He is now eight.
[2] In May 2021, the respondent mother moved to Belleville with her new partner, Robert Hampton, with whom she has two younger children: Kinsley, born in November of 2019, and Raya, born in January of 2023. The mother’s evidence is that she and Brayden lived alone in Oshawa until May 2021. While she does not state where Kinsley or Mr. Hampton lived, she does say that Mr. Hampton has been in Brayden’s life since 2017. The statement that she lived alone with Brayden until May 2021 is inconsistent with her Answer, which asserts that she has been living with Mr. Hampton since May 2019.
[3] Both parents agree that a document entitled “Child Custody Agreement” was signed on April 14, 2021, and that it was made in anticipation of the mother’s move from Oshawa to Belleville. The agreement provides that the parents have joint decision-making responsibility with Brayden’s primary residence being with the mother. It sets out the father’s then-existing parenting time, which was every Thursday overnight to Friday in one week and to Sunday on the alternating week, as well as the father’s parenting time following the mother’s move, which was generally to be every Friday overnight to Saturday in one week and to Sunday on the alternating week. The new schedule resulted in less time for Brayden with his father but did include an additional week in the summer. The term of the most significance to the father was that the mother agreed to provide all the transportation, which is specifically spelled out in the agreement. The driving time between the two homes (Belleville and Oshawa) is one hour and twenty minutes, a distance of 132 km each way.
[4] The mother has chosen not to abide by the terms of the agreement. She has been clear in her statements to this court that she will not respect the terms of the agreement. She did not bring an application seeking a court order for a different parenting schedule. The father brought the application in response to the mother’s actions.
[5] The father’s motion asks the court to enforce the terms of the agreement dated April 14, 2021, or, in the alternative, that there be an order that it is in the best interests of Brayden for him to have three weekends out of four with his father in Oshawa and that he also be registered for hockey in Oshawa rather than in Belleville.
[6] The mother’s cross-motion includes a claim to amend or set aside the agreement and to set the father’s parenting time to be alternate weekends during the school year and week about during the summer with the father providing all the transportation. She also seeks an order allowing her to register the child in whatever sports he wishes to participate in and an order that the father not “withhold Brayden from participating in any/all sporting games, practices and tournaments that he wishes to participate in, and to try to take him and attend when possible.” She also seeks other terms that were not addressed during the motion and are more appropriately dealt with during conferences or a final hearing.
[7] Counsel agreed that the issue for this motion is the temporary parenting time schedule.
Interim Arrangements and Procedural History
[8] These motions were first before the court on June 5, 2024, and included the mother’s request for a contested adjournment to allow her to retain counsel. That request was granted with an adjournment to September 12, 2024, on the following terms:
a. During the interim period, and on a without prejudice basis, the applicant father shall have parenting time with Brayden as follows:
i. From June 13, 2024 at 4pm until June 22, 2024, at 8pm. The plan is for Brayden to be on a cruise with his father. If required, the respondent, Kara Harris, shall provide signed authorizations for the travel as requested.
ii. Commencing on Friday July 5, 2024, every second week from Friday to Friday with the exchange taking place at 6pm at the Burnham Parking Lot in Cobourg. On a without prejudice basis the parties will share transportation at this time.
iii. Following Brayden’s first week of school, the parenting time with his father shall be from Friday September 6, 2024 at 6pm until Sunday September 8, 2024 at 6pm.
b. The parties shall use the parenting application, AppClose. All communication shall be child-focused and respectful. Brayden is not to be shown the communications on this App.
c. Neither parent is to speak negatively, or allow others to speak negatively, of the other parent in the presence or earshot of the child.
d. Given Ms. Harris’ acknowledged refusal to follow the terms of the domestic contract from 2021, there shall be a police enforcement clause.
e. The applicant’s counsel shall draft the temporary order and send it to Ms. Harris for her approval as to form and content. If there are any issues about the drafted order, it may be sent to my attention; otherwise it should be sent to the Court Services staff in the usual way.
f. A referral is made to the Office of the Children’s Lawyer for representation for the child Brayden.
[9] The OCL did not accept the referral. There were also some changes made to the summer schedule which resulted in the father having less time than ordered.
[10] In her affidavit dated May 30, 2024, the mother made claims that the father was abusive towards her earlier in their relationship. These claims did not appear in her Answer and are strongly denied by the father in his Reply affidavit. I am unable to make any finding of fact on these contested allegations in the absence of cross-examination or further evidence.
[11] This is not a mobility or relocation case where the relocating parent comes before the court seeking an order to allow the child’s residence to be changed prospectively or one where the relocating parent moves without giving notice. The central issue is what happens when notice of a move is given, an agreement is reached, and the relocating parent disregards the agreement and structures the child’s new life in such a way as to effectively frustrate the agreement.
The Agreement
[12] The father’s unrefuted evidence, which I accept, is that the mother presented him with the draft agreement. Whether the terms were discussed and negotiated in advance is not known. He states that they followed the agreement for about a year. She states that it quickly became clear that the agreement was not going to work for her.
[13] Section 51 of the Family Law Act (FLA) defines a domestic contract as a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement. The parties agree that they did not cohabit and I find that they did not intend to cohabit at the time that the April 14, 2021 agreement was signed. Therefore, the agreement does not satisfy the definition of a separation agreement or a cohabitation agreement under s.53 or s.54 of the FLA. It is also not a marriage contract, paternity agreement or family arbitration agreement. It is therefore not a domestic contract to which the FLA applies. While it meets the formalities of s.55(1) of the FLA as it is in writing, signed by the parties and witnessed, it does not meet the definition of a domestic contract for the purposes of that Act.
[14] If this were to be a domestic contract, then s.56(1) of the Act applies. It states that:
In the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.
[15] Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. Section 56(1) of the FLA provides that in the determination of parenting time for a child, the court may disregard any provision of a domestic contract where in the opinion of the court, it is in the best interests of the child. In Vale v. Vale, 2022 ONCA 278, the Ontario Court of Appeal found that the motion court judge had jurisdiction to make an interim variation of parenting time although the parties had signed a separation agreement.
[16] In M.S. v. D.F.M.A., 2020 ONCJ 497, the mother resiled from temporary minutes of settlement that would have started overnight visits. In lieu of an enforcement motion, the parties agreed to proceed with a final motion to change and allow the father to submit the minutes as evidence. The court found, while not binding, it was an implicit admission of a material change in circumstances and reflective of parental intentions at that time regarding the child’s best interests. The court found:
a) While the court is not bound by the agreement, it should respect the agreement unless the agreement is not in the child’s best interests.
b) The agreement reflects the parties’ intentions about parenting at the time the agreement was made.
c) It is sound public policy that parenting agreements be encouraged. If the contents were simply ignored, it would eliminate any incentive to negotiate them.
[17] I find that the “Custody Agreement” dated April 14, 2021, is an agreement which sets out the intentions of the parties for the parenting of their son, Brayden, in light of the mother’s intention to move Brayden’s primary residence from Oshawa to Belleville. Both parties have relied upon it at various times and for various purposes. I agree that the court should respect the agreement unless, in the court’s opinion, it is not in the best interests of the child.
[18] The father maintains that the agreement was signed in contemplation of the mother's move to Belleville and the terms include that the mother will drive Brayden to and from his father's residence during his set days in accordance with the yearly calendar. The mother acknowledges that she refused to continue to do that after a brief period of time. The father states that the consent he provided to her moving to Belleville was predicated on the agreement itself with specific reference to the fact that she was going to do all the driving.
[19] The mother provided doctor’s notes to the father about her inability to drive while pregnant and breastfeeding. However, she continued to drive Brayden to his games and practices. There is no evidence as to her ability to have another person drive for the parenting time exchange. The father was put in a position where he had to provide transportation to see his son. His parenting time still decreased.
[20] Based on both parties’ evidence, I find that the mother has refused to provide the transportation and that she has set up other events for Brayden during the father’s parenting time. I find that she has attempted to control how the father and Brayden spend their time together and has involved Brayden in those discussions. Her own evidence is that she has withheld eight-year-old Brayden in order to ensure that her plan for his time is followed.
[21] The agreement provides for joint decision-making; however, the mother has signed Brayden up for extracurricular activities without the consent or knowledge of the father and has used Brayden's attendance at those activities to justify cancelling Brayden's parenting time with his dad. The mother has also made it very clear that she expects the father to bring Brayden to sports activities whether they be practices or games, in Belleville or Trenton, during his parenting time.
[22] The mother maintains there is a material change in circumstances since the agreement was signed and bases that on the fact that he was four [he was actually 5], that he is now full-time at St. Michael's school, the parties live far apart, the Covid pandemic is over and she submits that there should be a fresh inquiry into the best interests of the child. As set out above, the court does not need to find that there has been a material change in circumstances as there is no existing court order. Rather, the court must consider whether the terms of the agreement are in the best interests of the child.
What Temporary Order Is in the Child’s Best Interests
[23] Brayden is in Grade 3 and is involved in ball hockey, ice hockey and soccer. He is reported to do very well in these sports and the mother points to the fact that he played all of these this year. She states that there should be balance in the child's life between time with each parent, schoolwork, social life with peers, and his sports activities. She submits that the father has prioritized his time over the child's activities. When asked if the mother was not prioritizing sports activities over the father's parenting time, her response was that the child wants to do these activities.
[24] At the age of eight, views and wishes are important but they do not determine the issues before the court. It is clear that the mother has involved Brayden in discussions about his parenting time with his father and how it impacts on his participation in sports in the area where they now live. I have no third party evidence of Brayden’s views and wishes and no confirmation of the independence of those views and wishes if he indeed holds them. The mother is very dedicated to the child's sports participation and she has goals in the future for him regarding playing on rep teams, the possibility of scholarships and other sports-related opportunities.
[25] Of particular concern is the fact that the mother did not discuss or obtain the consent of the father to these activities prior to enrolling him. Her evidence reveals that these decisions were made by her and her partner, not the child’s father. The agreement signed in 2021 reflects the decisions that the parents made in the best interests of the child at the time of the agreement. It was made in clear contemplation of the mother moving to Belleville and it includes joint decision-making.
[26] The court has respect for the agreement put in place at that time but it is clear that the mother has resiled from that agreement in both words and actions. I am concerned that she has excluded the father from decisions about the child’s sports activities and that she appears to have made those decisions without placing Brayden's need to have parenting time with his father at the forefront. Her own evidence makes it clear that she believes that she has the ability to dictate how Brayden spends his parenting time with his father; such an approach is inappropriate.
[27] Brayden plays hockey from September until the beginning to middle of March of the following year and there is usually a tournament at the end of the March break. Soccer is played from May to August of each year and ball hockey is played from April to the first week of July. In addition, he plays or has the opportunity to play on the development teams for both hockey and soccer.
[28] Counsel for the mother suggested that there be alternate weekends parenting time for the father during the school year but with flexibility for Brayden to attend at his sports activities. The evidence is that the mother has not been flexible in her dealings with the father and that flexibility in the schedule does not work for this family.
[29] The Children's Law Reform Act in s. 24 sets out the considerations and factors in determining the best interests of the child. I have considered all of the factors in s.24(3) of that Act in reaching my decision. I find that s.24(3)(c) is particularly important in this case, being the consideration of each parent's willingness to support the development and maintenance of the child's relationship with the other parent. Additionally, s.24(6) states that in allocating parenting time the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[30] While I accept that sports participation is important for Brayden’s physical and emotional well-being as required by s.24(2), there must be a balance. The circumstances of this child are that his parents live in different communities and that the travel time is approximately one hour and 20 minutes between each home. The mother's actions to register Brayden in multiple sports to the exclusion of his time with his father is not in Brayden's best interests.
[31] The father has proposed that Brayden be registered in hockey in Oshawa and in soccer in Belleville. He submits that last year he coached that hockey team and that Brayden was part of it. He states that he would continue to coach the team this year and that there will not be hockey practices during the week. When he previously coached hockey, Brayden played every second weekend.
[32] I find that it would be beneficial to Brayden to have his father's active participation in his hockey either as a coach or a participating parent, and I note that playing in Oshawa allows Brayden to be with the team and other children that he already knows. When playing soccer, he will be with a team and other children in his mother’s home area.
[33] Over the summer months there has been week about parenting time between the parents which did not follow the schedule set out in my endorsement of June 5, 2024 as the parents varied the start date of the father's weeks. This resulted in the father having less time than had been anticipated. He does report, however, that the week about time worked well although there continued to be issues with the mother attempting to determine the child’s participation in sports events.
[34] The father resides with his parents in Oshawa. Brayden has extended family there; he lived in Oshawa for the first five years of his life and has friends and teammates in that locale. The father was also active in sports and coached hockey.
[35] The status quo, or history of care of the child (a relevant factor under s.24(3)(d) of the CLRA), which has been in place prior to the matter coming before the court will often be preserved by a temporary order in the absence of a compelling reason to change it. In this case I must ask what is the status quo? Is it the parenting schedule in place prior to the mother’s move, is it the schedule set out in the written agreement in anticipation of the move or is it the greatly reduced parenting time that has resulted from the mother’s unilateral actions?
[36] In Southorn v. Ree, 2019 ONSC 1298, J.P.L. McDermot, J. stated the following at paras 12 and 13:
Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”
There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child’s life. Moreover, evidence at a trial has the benefit of being tested through cross examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.
[37] The importance of the status quo may be diminished in cases where one party has imposed the status quo and the other party has not acquiesced. See: L.M.B. v. F.J.D., 2020 ONCJ 239, at para. 31; McArthur v. Stickwood, 2023 ONSC 4807.
[38] Courts have been clear that self-help remedies should not be condoned and must be discouraged. If a parent believes that a court order or separation agreement is no longer in a child’s best interests then their recourse is to apply to the courts. See for example, Blair v. Hamilton, 2018 ONSC 7328; Ng v. Charles, 2016 ONSC 2946; Phillips v. Phillips, 2021 ONSC 2480.
[39] As the court stated in Fallis v. Decker, 2013 ONSC 5206, at paragraph 26:
“Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.”
[40] The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113.
[41] I find that the status quo is reflected in the terms of the written agreement of April 14, 2021. I also find that such a schedule is not in the best interests of Brayden. The mother has frustrated and repudiated that agreement and attempted to change the status quo through unilateral action. I find that in this case there are exceptional circumstances that require a temporary parenting order to be made in the child’s best interests and that the status quo will continue to put the child in an untenable position.
[42] I find that in accordance with s.24(2) and (3) of the CLRA and in order to give primary consideration to Brayden’s physical, emotional and psychological safety, security and well-being, the best interests of Brayden require that there be a temporary order that he have parenting time with his father for three weekends each month as set out below. I also find that it is in Brayden’s best interests to be registered for hockey in his father’s community of Oshawa and for soccer in his mother’s community of Belleville or Trenton. The parents are agreed on joint decision-making which shall also be part of the temporary order.
[43] Police enforcement clauses should only be used in limited circumstances. I am satisfied that police enforcement of this temporary order is required given the mother’s previous actions; if she complies with the order set out below then the police will not need to be involved. (see Walton v. Walton, 2022 ONCJ 394)
[44] The applicant’s counsel shall draft the temporary order and send it to the respondent’s counsel for her approval as to form and content. If there are any issues about the draft order, it may be sent to my attention; otherwise it should be sent to the Court Services staff in the usual way.
Order
[45] I make the following temporary order:
a. The mother and the father shall have temporary joint decision-making responsibility for the child, Brayden, subject to the following:
i. Braydon shall be enrolled in hockey in Oshawa by the father. The father may do that immediately or may choose to wait for a more natural transfer time between teams. The consent of the mother is not required.
ii. Brayden shall be enrolled in soccer in Belleville or Trenton as agreed by both parents.
iii. The mother shall not schedule any extracurricular events for the child during or adjacent to his parenting time with his father without the father’s express written consent provided in advance. She shall inform him of any activities that she wishes to schedule for Brayden on her time and shall seek his consent to those activities.
b. The father shall have parenting time for the first three weekends of each month from Friday at 6:00pm until Sunday at 6pm. For clarity:
i. If the first day of a month falls on a Friday or Saturday, that weekend shall be the first weekend of the month.
ii. If the first day of the month falls on a Sunday, then that weekend is the last weekend of the month.
iii. If the Friday or Monday of a weekend when Brayden has parenting time with his father is a statutory holiday or a PA day, the father’s time shall be extended accordingly; if the Friday is the holiday/PA day then the parenting time shall commence at 6:00pm on the Thursday and if the Monday is the holiday/PA day then the parenting time shall end at 6pm on the Monday.
c. Brayden shall otherwise have parenting time with his mother. If any month has five weekends then Brayden shall be with his mother for the fifth weekend.
d. Transportation for parenting time shall be provided by both parents:
i. The father or his designate shall pick up Brayden in Belleville at the start of his parenting time;
ii. The mother or her designate shall pick up Brayden in Oshawa at the resumption of her time.
e. Brayden shall be with his father for the March Break 2025, unless otherwise agreed in writing and in advance by the parents.
f. Easter falls on the third weekend of April in 2025; Brayden shall be with his father for that weekend from Thursday April 17, 2025, at 5pm until Monday April 21, 2025, at 6pm unless otherwise agreed in writing in advance by the parents.
g. Unless a final settlement or court order has been made, summer parenting time shall be on a week about basis with the exchange time being Friday at 6pm. If school ends mid-week, the father shall have Brayden with him for that partial week as well as the first complete week of the summer.
h. The parties shall use the parenting application, AppClose. All communication shall be child-focused and respectful. Brayden is not to be shown the communications on this App.
i. Neither parent shall speak negatively, or allow others to speak negatively, of the other parent in the presence or earshot of the child. Neither parent shall discuss these court proceedings or other adult issues with Brayden.
j. The police force having jurisdiction in any area where it appears that the child may be, is empowered pursuant to s. 36(2) of the Children's Law Reform Act, RSO 1990 c. 12, to locate, apprehend, and deliver the child to the Applicant father for his parenting time pursuant to the interim parenting schedule set out above until further order of the court.
k. If the parties are unable to agree on costs of this motion, the issue shall be addressed at the case conference which is the next step in these proceedings and set for January 7, 2024.
“N. Edmundson, J”
Released: January 2, 2025