Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12

In the Matter of the Family Law Act, R.S.O. 1990, c. F.3

Between:

LISA JONES

L. Parise for the Applicant

— AND —

THOMAS VAN DRUNEN

C. Hartman for the Respondent

HEARD: June 10, 14, 15 and 16, 2016

BEFORE: Kukurin J.

Endorsement

Introduction

[1] The main issue in this case is not complex, but is a difficult one. Where the court orders joint custody, how does the court divide the time that children spend in the care of each parent after they separate?

[2] Separation of parents is an unremarkable phenomenon in our Canadian society, perhaps even becoming the rule as opposed to the exception. It is the fervent hope of the courts that these parents could settle the issues that arise following their marital separation themselves. As much as that hope springs eternal, the justice system recognizes that many of them cannot do so, and that they find themselves in the courts seeking a judicial resolution to their problems.

[3] Even where the parents arrive at their own solution, as was the case here, circumstances change over time. One, or both, may become dissatisfied with whatever bargain had been reached earlier. In this case, a secondary, yet also important issue is how to deal with their previously negotiated domestic agreement, especially when only one wants to change it.

Background

[4] Thomas and Lisa are now in their thirties. They were teenage sweethearts, both raised in the northern Ontario city of Sudbury where their parents and much of their extended families still reside. They went south for their post-secondary education and graduated from the University of Toronto. In September 2001, they moved in together, eventually marrying in August 2005. They remained in Toronto and started having children: Clark born in 2007, Lorelei born in 2009 and Tessa born in 2011. Lisa was a stay at home mother. Tom obtained employment with a government service in the field of forensics, for which he had, and apparently still has, a strong interest. Somewhere during these years, they moved to Bradford, where they bought a home. As idyllic as this may sound, the reality, in retrospect, is that they both experienced dissatisfaction, Tom with his career and with commuting, and Lisa as a stay at home mother. Although not detailed in the evidence, it is a reasonable inference that their romance took significant hits from the more prosaic realities of domestic life, things like mortgages and other financial pressures, commuting and having little time alone together, the exhaustion of raising three young children, and possibly their isolation from their families and the support they represented. Not surprisingly, when Tom suggested a move back to Sudbury, Lisa jumped for joy. They sold their home and moved to Sudbury in March 2012.

[5] Alas, it is almost impossible to move without baggage. And over their youth and young adult lives, Tom and Lisa acquired some baggage particularly in their relationship with each other. That they fell out of love (even though this term is not in the usual judicial lexicon) is what seems to have happened to them. And this made an enormous difference. They each responded differently to this change in their married lives.

[6] When they returned to Sudbury, Tom and Lisa bought a home from Tom's brother, a home that had been in Tom's family for a long time. Tom took up work in his parents' family business, a plant nursery and landscaping enterprise with an established reputation. The office work was run out of the home that they purchased. Lisa remained at home with the children in a conventional maternal and homemaking role while Tom went to work, fairly long hours, although the nursery business is seasonally skewed.

[7] Lisa had broached the subject of an open marriage with Tom at some point. Tom was not in favour of this. Lisa nonetheless put her profile on a dating website and apparently went on at least one innocuous "date". She then stepped back from the open marriage idea, but returned to it not long thereafter. Tom also joined the website, ostensibly, according to his testimony, to see what Lisa was showing on her profile. He did not join as a participant.

[8] Their cohabitation in Sudbury lasted only about nine months, ending in mid-December 2012. Lisa left their family home which was soon put up for sale. She moved into her parents' home for a short time, then rented her own home in Val Caron, a suburb of Sudbury (on Desmarais Street). Following the separation, Lisa met a man (Tyler) with whom she struck up a relationship. Tyler resided in Edmonton, Alberta but happened to be in the Sudbury area when they met. Lisa felt that her employment prospects in Sudbury were poor. She decided in March 2013 to go to Alberta, to Edmonton, in fact, as she had never been out west. She had kept in touch with Tyler and it was not long before she and he found an apartment together. It does not appear that their relationship was merely a platonic one. She stayed in Edmonton for a full year returning to Sudbury in March 2014. During this year, she found work as a 'doula', with a birthing centre. This was for rather minimal wages. She left this position when her job expectations did not materialize and she realized this was going nowhere. She also did some dog sitting. All in all, her work during this time can be described as part time and short lived. By time of trial, she was no longer in a relationship with Tyler.

[9] The Sudbury home sold quickly. Tom and Lisa divided the net proceeds and divided their other assets. Tom moved into Lisa's rented home in Val Caron (as she had left for Alberta) for a few months pending the closing of a home on which he had put an offer, a home into which he moved and in which he still resides (on Hope Street). The children remained with him throughout. Clark and Lorelei were in school. He put Tessa into day care as he had to work during the daytime. His family, especially his mother (the maternal grandmother of the children), pitched in with fairly regular child care, babysitting, meals and family get-togethers from time to time. Tom pursued his efforts to return to his career in forensics but in the Ottawa area. His efforts did not result in an offer of employment. However, this interest was rekindled later and a job offer may have been put before him. By that time, Lisa was opposed to a move of the children to Ottawa so he declined the offer and stayed put. He professed at trial that he had no intention of leaving Sudbury, and presumably, this also includes no intention to leave his position in the family business. It appears that Tom also had some interest in moving on with his life with female involvement. He had women friends as well as a number of dating relationships, most of which relationships were temporary and did not progress to anything serious. However, he is currently in what appears to be an exclusive and committed relationship with Heather, a young lady he met a year ago.

[10] The children are enrolled in a French separate school, Jean Paul II, after the parents managed to overcome some bureaucratic obstacles to their qualification to be registered there as students. Tessa, who was in day care, is, or soon will be a regular student. By all accounts, the children are bright, well mannered, and excel academically. They are healthy and happy and do not suffer from any significant trauma as a result of the separation of their parents, or of the departure of their mother for her year away, or of the significant others whom their parents have introduced into their lives. They are obviously affected by the fact that their parents no longer reside together. I would be amazed if they were unaware of the fact that their parents are battling with each other over something. The children, according to their mother, and the clinical investigator from the Office of the Children's Lawyer, want to spend more time with her than they have been and are currently spending. Their father indicates that they have not expressed this desire to him. The children have positive relationships with their grandparents on both sides. The grandparents see their grandchildren during the time that their respective children have them in their care.

[11] The maternal and paternal grandparents had a long and mutually satisfying relationship for many years. As a result of a fairly recent dinner meeting, the objective of which was to discuss what they might do to help sort out the conflict in which their separated children were embroiled, these well-meaning people disagreed, exchanged hostilities, and effectively sabotaged what was clearly a valuable and rewarding interrelationship. They have fractured the family support they represented, and are now polarized in supporting their own child.

The Separation Agreement

[12] Of some significance, from a family litigation perspective, is the existence of a domestic contract, specifically a separation agreement, between the parents. It is dated May 14, 2013. It came about because Lisa took the initiative in finding some professional help to come up with an orderly and documented resolution of the affairs of their family following the parental separation. She consulted a local agency, Sudbury Mediation Services, which referred her to a local lawyer, Mr. Douglas Arthur. His role was not fully explained at trial but appears to have been a nonpartisan one, with the aim of negotiating and drafting a separation agreement satisfactory to the parties. Tom was apparently a willing participant in this process which started before Lisa left Sudbury, and continued on for several months until the agreement was executed in mid May 2013 when she was in Sudbury on one of her frequent visits. There is, attached to the agreement, an acknowledgement that they were advised to get independent legal advice prior to signing the agreement, and that they voluntarily declined to do so. It seems clear in retrospect that neither wanted to engage at that time in the court process, and preferred to come to a resolution consensually.

[13] The temporal context is fairly evident from the terms of the agreement. It is clear, for example, that Lisa was residing in Alberta and Tom was residing in Sudbury and that the children were residing with him. The agreement provided for the parents to have joint custody of the three children, but the reference to the mother having "reasonable access" on reasonable notice belied to some extent the joint custodial regime mentioned in the agreement. How do two parents realistically have joint custody when they live two thousand miles apart? Nevertheless, this is what the parties agreed upon and presumably did this believing it to be in the best interests of their children.

[14] There are other aspects of the agreement that are problematic, especially now that Lisa is back in Ontario. From a legal perspective, the most significant issue related to the separation agreement is Lisa's claim in her application asking the court to "set aside", not the entire agreement, but only those provisions that deal with custody and access. This is a claim that is opposed by Tom. He wants the agreement to remain intact as it is, and to be binding upon both of them. Lisa does not attack the validity of the agreement. She does not argue any of the typical grounds for setting aside a contract – such as coercion, misrepresentation, lack of capacity. She wants the court to make orders dealing with custody and access that are different than the provisions for custody and access in the separation agreement, and she wants the court ordered provisions to supersede or override those in the agreement.

[15] These custody and access provisions are contained almost totally in clause 4 of the agreement. Clause 4 has twenty sub-clauses. Lisa is, in actual fact, not seeking to have the court set aside all of these subclauses. She confirms at this trial that her claim is restricted to setting aside only subclauses 4.3, 4.6, 4.7, 4.12 and 4.19. The rest of clause 4 can continue in full force and effect, as can the other fifteen clauses in the document. Regardless of what she wants set aside, Lisa has the onus of satisfying the court of the court's authority to do what she is asking, and to satisfy the court that it should order what she is seeking.

The Joint Custody Claim

[16] The main claim is for joint custody of the children, which oddly enough is being made by both Tom and Lisa, and which is what they already have by virtue of their separation agreement. However, what the contest is all about in this case is joint physical custody of the children, as differentiated from joint legal custody. The operative wording in their agreement is in subclause 4.6:

"The parties agree that the children will reside with Tom on a full time basis, with the parties having joint custody. Lisa will have reasonable access to the children on reasonable notice which shall include extended vacation time as may be appropriate given the children's ages, the travel plans and the children's schedules."

[17] What Lisa wants is for joint custody to continue, but by way of a court order, and for the joint custody provision to include a sharing of the joint custodial care of the children on a week about basis. In short, she wants the care of the children shared not only jointly but equally between herself and their father. This is clearly inconsistent with full time residence with Tom, or with maternal access on reasonable notice to Tom.

[18] What Tom wants is a court order for joint custody specifying that the principle residence of the children is with him at his home. He opposes any provision for week about sharing of the joint custodial care of the children. He opposes, in fact, any provision in a court order that will specify that the time that the children spend in the care of the mother is equal to the time that they spend in his care. He wants the 'status quo', as it relates to the time the children are in the care of each parent to remain as is. Tom does want specific days or times outlined in a court ordered schedule. He wants what the parties have agreed to so far to continue, subject to any future changes that they may agree upon.

[19] Counsel for the parties confirm that the joint custody issue does not involve disputes over related matters such as mobility, exchanges, decision making, or discipline or parenting styles. The parties are not completely on the same page on these peripheral issues but are generally in agreement or are tolerant of any disparities between themselves. Accordingly, it appears that the major dispute in this case, to put it somewhat crassly, is one of arithmetic. How should the court divide the time of the children between two loving and competent parents, if it should do so at all?

[20] Before engaging in any determination of time sharing, the court should first look at the joint custody order that both parties are asking the court to order. Simply because this is presented on the basis of their mutual consent does not mean that the court will automatically make this order. There is an abundance of jurisprudence, much of it appellate, that is concerned with the circumstances in which joint custody is an appropriate order to make. In this case, the evidence supports such an order being in the best interests of the children.

The Status Quo

[21] The father advocates remaining with the status quo. Many cases dealing with custody and access refer to the "status quo". This case deserves a closer look at what the status quo actually is for at least two reasons. One is that the main contest seems to be whether or not there should be a departure from the status quo. The other is that the status quo has not been constant but has shifted from time to time. In the context of this case, it is common ground that the status quo is in relation to the time that the children spend with each parent.

[22] The most simplistic view of the status quo is to look at what is the reality at time of trial. However, a more historic examination shows that there has been more than one status quo established over the three and a half years that have passed since the separation of the parties in December 2012. The circumstances prevailing at the time that the status quo underwent a modification are important in the understanding how and why the division of the time of the children between each parent came to be.

[23] December 15, 2012 to March 2013 - The actual separation of the parties followed an invitation, request or ultimatum – the evidence is not quite clear which – by the father to the mother to leave the family home they had purchased in Sudbury, likely following her return to the home in the early morning hours after an evening of socializing with other persons. She did leave and went to stay temporarily with her parents. However, she soon found and rented her own home. The evidence from both sides confirms that the pattern or schedule of parental care of the children for the period until she left for Alberta was pretty much an equal sharing of their time. Specifically, the 'status quo' that the parties put in place at that time involved Monday, Tuesday and Wednesday with one parent, Wednesday Thursday and Friday with the other parent, and the weekends alternating between them.

[24] March 2013 to March 2014 – There is some uncertainty as to why the mother left for Alberta in March 2013, but there is none that she did, in fact, do so. I infer that she went there primarily to pursue a relationship with Tyler, although finding employment may also have been motivating her at that time. She and Tyler did cohabit in a rented apartment, but she made frequent trips back to Sudbury, approximately once every five or six weeks, during which she spent time with the children. She also kept in contact with them on a more frequent basis by way of Face Time, a computer program that permitted visual (screen) contact contemporaneously with electronic conversation. She also took them for a three week summertime road trip to Alberta returning them by air to Ontario. This represented the 'status quo' at that time.

[25] It was during this time that Tom and Lisa negotiated and concluded their separation agreement. The pattern of parenting time during this period reflected the full time residence with Tom, the reasonable access of Lisa, including extended vacation time that was spelled out in the agreement.

[26] March 2014 to March 2015 – This period of roughly twelve months followed Lisa's return to Sudbury after her year away in Alberta. What pattern of parenting was arranged between the parties during this period is not altogether clear and appears to have undergone some adjustments. The children were still in school when she returned. She quickly found her own home, a semi-detached residence quite suitable for the children. Somehow, the parents came to a schedule whereby the children spent every second weekend with Lisa from Friday after school to Sunday just before dinner, and on Tuesdays and Wednesday for a few hours after school until about 7:30 pm when Tom came to pick them up and bring them to his home. Tessa, who was not in school, was with Lisa all day Tuesdays during this time.

[27] That schedule apparently changed during the summer months which for Tom were the busiest of the year, and during which the children were not in school. There is mention of a summer schedule which had the children with their mother from Friday mornings at 7:30 pm to the following Wednesday at 7:00 pm on alternating weeks. There is also mention of the father having eight days and the mother having six days out of every fourteen during the summer of 2014.

[28] At the start of school in September 2014, the schedule reverted back to alternate weekends and Tuesdays and Wednesdays after school, but the weekend time was extended to Monday mornings, and the pickup time on Tuesdays and Wednesdays was moved up to 7:00 am. According to Tom, these changes were agreed upon by himself and Lisa. According to Lisa, these changes were dictated by Tom and she had little choice but to accept what he was prepared to allow. It was in late July 2014 that Lisa commenced the application that is the subject of these Reasons.

[29] By March 2015, the parties had been in litigation for well over six months. At a settlement conference held March 12, 2015, they consented to an interim-interim without prejudice order that provided for maternal care of the children every second weekend from Friday after school to the following Monday morning (or Tuesday if Monday was a non-school day), each Tuesday and Wednesday after school until 7:00 pm, and Tessa all day Tuesday until 7:00 pm. In addition, the parents were to have the children in their respective care alternating weeks during the summer months of July and August with an exchange at 5:00 pm on Sundays. This order has remained in effect since it was made.

[30] What is clear from an examination of the 'status quo' is that it has not remained constant throughout the time from separation. Some aspects have remained unchanged such as the residence of their father Tom being the principal residence. Others have changed over three and a half years, often dictated by circumstances, sometimes by agreement and sometimes in spite of disagreements. The mother has consistently had an unequal (and lesser) sharing of the time of the children except for a brief period after the separation and before she left for Alberta.

Change, Variation and Setting Aside

[31] One of the claims of the mother in this case is for an order setting aside the separation agreement provisions as they relate to custody and access. In fact, the mother was unable to point to any statutory provision or any Rule that she relied upon to "set aside" any part of the agreement, and she did not argue any common law grounds for doing so. To the extent that this was a claim that was still alive at trial, it is dismissed.

[32] What the mother does rely upon, however, is section 56 of the Family Law Act:

s. 56. (1) In the determination of a matter respecting the education, moral training or custody of or access 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.

[33] The mother has brought an Application seeking a joint custody order that provides for equal shared parenting. She is not seeking this order by way of a Motion to Change but rather as an order in the first instance. She is not seeking a variation of any existing order. Technically, and from both a procedural and substantive point of view, she is not required to show that any material change in circumstances has occurred. A court order that deals with custody and access is necessarily made based on what is in the best interests of the children at the time the order is made. Hence, there is a presumption that the provisions of that order continue to be in their best interests until the court is satisfied that a change in circumstances has occurred, sufficiently material, to warrant a variation of that prior order.

[34] This is not a pre-requisite here. That the parties entered into a separation agreement is an important factual plank that forms the context for the present Application. While it is assumed that parties will enter such agreements with the best interests of their children uppermost, this is not always the case, and there is no presumption in law that any such agreement was in the best interests of a child when it was entered into. Nor is demonstrating that a material change in circumstances has taken place from the date of a separation agreement a legal requirement to making an order for custody or access.

[35] The mother's position in this litigation is that the agreement is fundamentally inappropriate now. It does not accord with the best interests of the children. It was entered into at a time when circumstances were quite different from what they are today. There has, in fact, been a drastic change in circumstances since the date of the agreement, her relocation back not only to Ontario but to the city of Sudbury being the most obvious and the most important. Moreover, the agreement was believed by her, on the advice of the individual who drew it up, to be subject to change over time as circumstances evolved. The court is authorized to, and she argues, should disregard those parts of the agreement that it feels are not in the best interests of the children.

The Best Interests Test

[36] It is universally accepted that the criterion for judicial determinations of custody and access is the 'best interests of the child'. That this is so can be readily seen from the Children's Law Reform Act:

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

[37] The statutory imperative lists a number of considerations that the court must take into account, to the extent that they apply in a particular case, related to the needs and circumstances of the child or children involved in the case. This is a non-exhaustive list.

S.24(2) The court shall consider all the child's needs and circumstances, including,

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

(i) each person entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

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

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

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

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

(a) his or her spouse;

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

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

(d) any child.

[38] While this statutory guidance is welcome, it is almost invariably used by opposing parties to support the position each advocates, even when they are opposed, as they are in the present case. There is no short cut in the application of section 24(2) of the Children's Law Reform Act unless the case so overwhelmingly favours one side over the other that it is obvious what the determination should be. That is rarely the situation when a case manages to reach the trial stage. The court has to look at the evidence at trial in order to properly consider the needs and circumstances of the child(ren) that is mandated by this subsection. What is clear, however, is that this judicial examination and assessment process is child centered:

"The meaning of 'best interests' is as fluid as each child's circumstances. What is certain, however, is that the focus of the exercise is on the child."

"The rights in custody and access are those of the child"

[39] There is no statutory priority or hierarchy among the listed considerations in subsection 24(2). In other words, none is necessarily more important than any other. However, that does not apply universally and in every case. For example, if a plan proposed by one of the parties puts the child at high risk of harm, then that is a consideration that may eclipse many of the others. Moreover, while there is likely a tendency to mentally assign a score to one party or to the other on each consideration (or perhaps to consider a consideration neutral) and to tally up the scores at the end, this is not always the best approach to the judicial application of s.24(2). The ultimate determination of a custodial or access dispute requires a more sophisticated and comprehensive process.

[40] In the present case, subsections 24(3) and 24(4) have no application based on the facts of this case. Neither was mentioned in the submissions of counsel. While the mother's one time drinking and driving conviction might qualify as conduct referred to in s.24(3)(b), as might her relocation to Alberta, I am not convinced that these reach the level needed to raise concerns about the mother's ability to parent or to act as a parent. We are left with the considerations listed in s.24(2) and any others that are referred to below that relate to the needs and circumstances of the children.

[41] The examination of these circumstances is not necessarily in the order in which they appear in s.24(2). This is not accidental. Some count little in the overall process. Some are more relevant than others. Some are argued to favour each side, based on different factual events recounted in the evidence. In some cases, the parties argue that the same evidence supports their respective contentions with respect to a consideration. The process is not an easy one and even more difficult when each parent acknowledges that the other is a good and adequate parent to the children, a sentiment in which this court concurs.

Analysis

[42] Of critical importance in this case is the fact that the court is not called upon to determine whether a party should have or not have custody or access. Nor is it called upon to decide if the order should be one of sole custody as opposed to joint custody. Nor is it called upon to decide any of the possible incidents of custody except for how the time of the children is to be split between the parents. The mandatory considerations in s.24(2) are more suited to the former determinations than to the latter. However, some do factor into the decision of the degree of sharing of parental joint custodial care of the children.

[43] The relationship by blood or through an adoption order between the child and each person who is a party to the application. This is a neutral consideration in this case as all three children have an equal blood relationship with each of their parents.

[44] The ability of each person applying for custody of or access to the child to act as a parent. This consideration is also relatively neutral in determining the sharing of custodial time. Both parents are acknowledged to be good parents. The mother has never criticized the father's parenting abilities. The father has. Those criticisms have surfaced more recently, since the separation of the parties. They are raised in connection with the following:

(a) The decision to relocate far from the children's home, especially to pursue a romantic relationship, without any apparent pre-planning;

(b) The drinking and driving and the circumstances in which this occurred;

(c) The differential ability to assist the children with 'homework' in French;

(d) The disparity of discipline methods used with the children;

(e) The inadequacy of maternal supervision when the children are in her care which has led to several incidents (misuse of hand held devices, injury to Clark caused by Tessa during a disagreement, not knowing where the children were at pickup).

[45] If the father is suggesting that he is better at parenting than is the mother, I agree with him. This does not mean that the mother is an inadequate parent. It simply means that he is better at it than she is. And this, I would gauge is across a wide spectrum of parenting criteria. The foregoing areas raise some concerns but more in the realm of decision making than in hands-on parenting. For example, the drinking and driving is criminal conduct and the mother ought to have foreseen the consequences. Fortunately, this did not involve the children at the time of the driving. It did spill over in that the mother's ability to drive was curtailed, she is subject to interlock restrictions, and she has incurred some significant expenses by way of fine and in getting back her licence. Did this affect the children? I would say so. She has had to explain the interlock device to them, and likely with some awkwardness. Her ability to transport the children was compromised. The money she has had to spend could have been better spent on her children. On the other hand, this is her first and only offence in over thirty years and it is unlikely that she will have another, especially of this variety.

[46] There was a great deal of evidence about 'Frenchness' in this family. I found the father's argument to be cogent but relatively unimportant. That he has a command of French while the mother does not is of some benefit in parenting these children. However, this disparity does not actually count much in deciding what this court is asked to decide. The father will always be there to help with homework, and to engage in conversations with them in French, at least 50% of the time. Whether the mother has the children 20%, 30%, 40% or 50% of their available time will be relatively unimportant in terms of their academic and non-academic development in the French language. Whatever help the father can be will wane eventually as the student outstrips the teacher. The father is not a Francophone in any event; he is a fluently bilingual Anglophone. Surmounting all of this is the undisputed fact that these are excellent students exceling at whatever they set their hands to. Also, and not to be forgotten, is that homework is a minor aspect of learning: most academic learning is done in the school. That is what schools are for. Frankly, these children are not "French". They are more properly bilingual which means that they are learning two languages. Also they are learning other things like mathematics, for example, which in the eyes of some is considerably more important and more useful than learning a language. That their instruction is in French is a reality that is acknowledged, but this does not mean that having a unilingual Anglophone mother will detract from their learning. The mother has the children for a significant amount of time as things stand. There is a feeling perhaps, but no credible evidence, that her having them more often or the father having them less often will compromise their education in French, or in any other aspects in any significant way.

[47] As for inadequate maternal supervision, I am unconvinced that this is an inference I should make on the evidence presented. There will inevitably be occasions when one parent will have his or her hands full in trying to keep track of and manage three children. This comes with parenting. The mother gave explanations in defence to the father's allegations of her supervisory deficiencies. I don't think that this is a mother whose supervision of her children is anywhere close to concerning. If it were, the father would not have entrusted the care of these children to her alone as a stay at home mother for all of the years prior to their separation. Nor would he be seeking to maintain the present schedule which has the children alone in the mother's care for lengthy periods including overnights. Nor would he have let her take the children on a road trip to Alberta.

[48] The discipline methods of these parents are more similar than dissimilar. Their style may differ, with the father engaging in conversations with the misbehaving child more than would the mother. This does not mean that adjusting the ratio of joint custodial care will make things any different in terms of discipline. From the point of view of the children, they appear to be well behaved for the most part and certainly not what might remotely be considered behaviour problem children, whether they are with their mother or whether they are with their father.

[49] The mother's decision to move to Alberta was not a good one. I think she realizes that. She plans to stay put. I believe her. While the past provides some insight into the future, I do not think mobility is going to be her issue. If anything, the father may wish to relocate more so than she, as he still seems to have career aspirations in forensics. In any event, this has little relevance to adjusting joint custodial care time between two local parents.

[50] The permanence and stability of the family unit with which it is proposed that the child will live. This consideration is one that cuts both ways in this case. From a superficial point of view, the father's family unit seems to be more stable and more permanent than the mother's. However, the mother has returned to Sudbury. She has a home that appears to be suitable as a residence for herself and three children. The father has a job and a steady source of a reasonable level of income. The mother has neither at the moment but manages to provide an adequate level of food, clothing and shelter for the children when they are with her. Both parents are saying they intend to remain in Sudbury. I can only take them at their word on this. The father has a committed and exclusive relationship with another woman. Is she going to be an addition to the father's family unit? Is this more stability or is it destabilizing? Difficult to say at this point. From a historical point of view, both parents have made moves and/or decisions that have uprooted or at least disrupted the family in some way. Looked at from the children's position, both parents have remained constants in their lives, even when the mother was living in Alberta. They have not been the victims of any trauma. They are reportedly well adjusted. They do not seem to suffer from any insecurity. They fit in well and are comfortable in both households. Overall, the situation currently, and for the foreseeable future, in terms of stability and permanence differs insignificantly when viewed from a child's perspective. This consideration helps almost not at all in the determination of the ratio between mother and father in their joint parenting time.

[51] The length of time the child has lived in a stable home environment. This consideration is related to permanence and stability of the family unit. It looks historically to the length of time that a child has lived in a stable home environment. One reason why is because stability in the home is desirable and disruption of home stability is not. One should not take too myopic a view of this consideration. While it might be said that living full time with the father since separation is the relevant period in this consideration, this is not all that the children have experienced in their lives. Perhaps ranking above this period in importance is the period of their infancies when they were for the most of their waking hours in the sole care of their stay at home mother, a period which I would say was for them, a "stable home environment". This by far exceeded the duration of time that they were with their father post separation. The father was a working father, unlike the mother who was virtually 24/7 with the children. When the mother returned from Alberta, they resumed living with her, not 24/7, not even 50:50 – but certainly for significant lengths of time, in what I would describe as a stable home environment. If there was disruption, the most disruptive event was parental separation. The mother has effected a restoration of a stable home environment, albeit in her own separate household. It took her somewhat over a year to do so. The father, on the other hand, continued to provides this home stability throughout. Does this count in what this court has to decide? Not appreciably having regard to the past and the future. Whether the children are in their mother's care half the time or a third of the time or something in between, they are still going to be in a stable home environment whether that time is in their mother's home or in their father's home.

[52] The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child. This consideration would favour the father if the contest was one in which one of the parties was seeking sole custody. How this might tie into a division of joint custodial time is difficult to pin down. Firstly, there are no special needs involved. Secondly, necessaries of life are needs, not wants. It is the ability and willingness to supply the basics that is involved in this consideration. There is no allegation that one parent is deficient in this respect. Nor any evidence. As for guidance and education, I have already commented in paragraph [46] above on my views with respect to French language education. This consideration is broader in its scope. I take guidance and education to encompass more than just their present grade levels or just their homework. From a guidance viewpoint, the father will never be a mother and the mother will never be a father. Each has guidance of a special kind to provide to their children, whether male or female, by virtue of their own gender. Luckily, the children have both parents in their lives and so can receive guidance from each of their parents in a multitude of matters that are typical in the upbringing of children. In terms of education, the decision to have the children educated in French schools appears to have been a joint decision made prior to separation. The parental levels of linguistic limitations have not changed, only that they are no longer in a common household. I find neither parent lags the other in willingness to provide each of their children with education or with guidance. As for ability, they each have abilities in their own unique ways to provide both guidance and education. This consideration does not favour either equalizing the time the parents have their children in their care, nor does it favour maintaining the unequal time schedule currently in place.

[53] The plan proposed by each person applying for custody of or access to the child for the child's care and upbringing. There is not a great deal of evidence on this topic. The father's plan expressed at trial appears to be one of staying the present course in terms of residence, employment and care and upbringing of the children. This sounds like a good plan to me. It seems to be working. If anything, it is would be naïve to think it will continue long term as children grow and change. And so do parents. Tom says very little about incorporating Heather into his family unit but she would clearly be a big part of any plan that involved child care and upbringing. I don't know many young ladies her age who would be satisfied to remain on the periphery of the family of the man she proposes to be her life partner. The mother's plan is similarly undetailed. She plans to get remunerative employment at some point. How that will affect her care and upbringing of the children is unknown. She has, as does the father, the support of family in the community. Whether she will remain a single mother is doubtful, given her age and her historical interest in forming a relationship with a male partner. At the moment, her plan is short term and doesn't seem unusually problematic. Neither plan enhances or detracts from the viability of maintaining or changing the existing shared parenting schedule.

[54] The love, affection and emotional ties between the child and:

(i) each person entitled to or claiming custody of or access to the child,

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

(iii) persons involved in the child's care and upbringing.

The love, affection and emotional ties of the children is not qualitatively or quantitatively different with either of their parents in any significant way. There is no tender years doctrine that seems to apply here. The children are as comfortable with their father as they are with their mother. There is no language impediment with either parent. There is no mental health issue or any other obstacle to the formation and fostering of a normal and healthy parent-child relationship with each of Tom and Lisa. As for the extended family, it is clear that the children have a close and loving relationship with both maternal and paternal grandparents, all of whom appear to be healthy, relatively young, and actively involved with these grandchildren in a personal way. In summary, there is nothing in the evidence as it applies to this consideration that contraindicates an equality in the time the children have with their mother or their father. There is no independent grandparental access to these children. If anything, the occasions when the children will have contact with their maternal extended family will be when they are in the care of their mother. The paternal extended family will have contact with them through their father's time with them. There is no logical justification to an inequality of the opportunities that the children will have to enjoy relationships with members of either family tree.

[55] The child's views and preferences, if they can reasonably be ascertained. The children's views and preferences are ascertainable on the main issue, mainly the division of their care by their mother and their father. Whatever evidence comes from them is primarily and necessarily hearsay in nature. It comes through the mother and also through the clinical investigator from the Office of the Children's Lawyer. The verbalizations of the children are consistent in that they want to spend more time with their mother. The father doesn't say that the children do not express this sentiment. Nor does he say that they are expressing the opposite. He says only that they do not say this to him. I am not entirely sure that this has always been so. The fact is that maternal care of the children underwent some temporal expansion on consent of the parents, and more than once. What was the reason for this to happen. In the father's trial affidavit (Exhibit 9), he states:

"49. … When the children mentioned to me that they wanted more time with their mother, Lisa and I agreed to extend her weekends to Mondays at the beginning of school."

[56] I am satisfied that the wishes and preferences of the children are to spend more time with their mother than they are at present. Is this something that should affect the determination of the sharing of joint parenting time? The answer has to be answered in the affirmative. These wishes and preferences are right on point. Should they be discounted? Perhaps a little, having regard to their ages and to the hearsay nature in which they come to the court. However, they still deserve considerable judicial weight. These are bright and intelligent children. There is no evidence that what they are expressing is not reflective of what they really wish. Although they have not expressed a preference in terms of percentages or in particular days and times, it is abundantly clear that they want more time with their mother than what they presently have. The father's argument is that a child's wish is not necessarily in a child's best interests. True, but it can equally be said that a child's wish may well be in the child's best interests.

[57] In the balancing of all of these considerations, my inclination is to accede to the mother's request to increase her joint custodial time when the children are in her care to the point that they spend equal amount of time with each parent. Week about would be the simplest and would involve only one exchange. However, I am not averse to a schedule that involves shorter stays with each parent with more exchanges. In fact, at their ages, the latter might be preferable for a variety of reasons - the proximity of the parental homes to each other and to the children's school, the availability of transportation by both parents being the most practical.

[58] There are other considerations not listed in s.24(2) that influence this decision. One major one is the principle of maximum contact that is articulated in the federal Divorce Act, in judicial determination of custody made under that legislation. That this principle applies in custody determinations under Ontario law is well established in our jurisprudence. The wording in the Divorce Act is:

Divorce Act s.16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[59] This maximum contact principle must not be inconsistent with the best interests of the child. In the present case, I have canvassed the best interests considerations and conclude that adjusting the parental joint parenting times to a level of parity is not averse to the best interests of these children. Maximum contact cannot exceed equality of parental time.

[60] The report of the clinical investigator in this case was a means to verify what the mother was saying was the expressed wishes of the children in relation to the time they spend with each parent. I agree that the investigator's report is somewhat flawed mainly in that it misconstrued what the contest was all about. However, the report's recommendation of equal shared parenting was not determinative of the main issue. It is admittedly difficult to ignore what someone with the extensive experience of working with children possessed by this witness says about her observations and perceptions of the children in this case. I found the report and the clinical investigator's testimony helpful, but not overwhelmingly so. I would not disregard it entirely as suggested by the father. There was plenty of evidence from the parties and other witnesses to make a determination.

[61] The reasons for the father's opposition to equal shared parenting time were in many ways the crux of the litigation. He says that he was never in favour of a shared parenting schedule (from which I take he means an equal shared parenting schedule). This is not entirely true as an equal shared parenting schedule was put in effect after the separation and lasted until Lisa left for Alberta. I can only infer that this was effected consensually. I have no evidence that this was forced upon the father who would clearly have had the upper hand at that time.

[62] His reasons are his concern that the children will fall behind in their schooling because of Lisa's lackadaisical attitude in ensuring they complete their homework. This is in addition to Lisa's inability to assist in their French homework. This is an untenable basis for maintaining an unequal shared parenting regime. The father's fears are without any evidentiary foundation. They are speculative at best. The fact is that the children do spend a lot of time with their mother as things stand and they do quite well academically despite her alleged inadequacies. He sees equal parenting time as "topsy-turvying" a schedule that has been working well for the children. I believe this is an exaggeration as moving to parity is not that large a step and it is not going to destroy the structure, routine and stability that he has put in place for the children. The mother respects the father's parenting; she doesn't disagree with it. The argument that the court should not tinker to what is working well is based on a premise that it is working well. It may be from the father's point of view. It is not from the mother's and in terms of the issue in this case, it is not working well from the point of view of the children. Adjusting the physical joint custody may not make what is working well worse; it may make it better.

[63] As for communication difficulties between parents, this seems to be something that can be worked out by implementing better communication techniques. The father argues that the level of communication/co-operation simply doesn't exist to justify equal shared parenting. In fact, case law suggests that it is joint custody that is contraindicated in such circumstances, not equal shared parenting. The communication difficulties do not resolve whether the children are with the parents an unequal or equal amount of time. It is implementation of better communication that resolves these problems.

[64] Overall, I cannot agree that the father's reasons for opposing equal shares parenting in the circumstances is justifiable on a best interest analysis. I would certainly endorse the residence of the children with him as their principle residence as this reflects the historical and current reality as well the perceptions of the children. Their residence with their mother, even if equal in duration, is their secondary residence.

[65] The separation agreement does not disappear as a result of any order I may make in this case. It is not being set aside. Whatever order this court makes will supersede and basically nullify only those provision in the agreement that are inconsistent with the order made. This may leave the parties in a quandary.

[66] By way of example, I do not set aside the first right of refusal provision in the agreement. It is clearly a bone of contention between the parents who interpret this differently and to their own benefit. Frankly, I find such a clause to be a fertile ground for disagreement and future conflict particularly when it is not sufficiently detailed. The parents executed this agreement. It is up to them to decide what to do with it as it is still a binding contract that has rights and obligations. Agreements are not forever. They can be amended by the contracting parties, something that is done often.

[67] As for the actual wording of the order that should follow from these Reasons, I rely on the parties to come up with terms that are mutually acceptable and in accordance with these Reasons. Failing this, I will devise the wording myself.

[68] There are also claims for child support which I canvassed with counsel at the time of their submissions. I understood that there would likely be no issue on these claims which are understandably contingent on the outcome of the issue of shared parenting time. I leave the wording of the appropriate child support provision to be worked out by the parties with the assistance of counsel. If this cannot be done, I have a deficiency of evidence on this issue and may require further submissions of counsel.

[69] Finally, both parties have claimed costs. If any party wishes to pursue such a claim, he or she shall submit their submissions on costs limited to five pages together with any Bill of Costs or other documentary material in support or opposition to such claim. This is to be filed within thirty days next following the formal issuance of the order based on these Reasons. Failing this, there shall be no order as to costs of such party.

Released: June 23, 2016

Signed: Justice John Kukurin