Court File and Parties

COURT FILE NO.: 16-95 DATE HEARD: June 16, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kilby v McMillan

BETWEEN: Kerrie-Anne Carmel Kilby, Applicant and Chad Robert John McMillan, Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Mr. P. Sammon for the Applicant Mr. A. Durgali for the Respondent

ENDORSEMENT

[1] This is the respondent’s motion (the father) requesting a 50-50 parenting regime on a temporary basis pending trial this fall. The children in this case are three sisters, ages 6, 4 and almost 3. The evidence shows that they are happy, well-adjusted children who are meeting their milestones. The timing of this request is unusual because the mother has been the primary parent since the parties separated in November 2014 without any parenting time order in place.

[2] Until now the father has had access Tuesday and Thursday evenings and every second weekend from 9 a.m. on Saturday until 7 p.m. on Sunday.

[3] They agreed to a summer schedule in 2016 that adjusted bi-weekly weekend access to Friday evenings and extended the Tuesday access to an overnight visit. They also agreed to two-five day blocks each.

[4] Since separation, the father has re-partnered and is living with a new partner who has three older children of her own for 60% of the time.

[5] The father says he opposes the current situation which he calls the “default Ontario access” regime. The father notes that the parenting assessment by Valerie Morinville proposed a 2-2-3 scheduling starting at the end of June 2017. Ms. Morinville said that the father’s “parenting skills are certainly adequate and positive for the children” and “there is not enough evidence to suggest that Mr. McMillan should not be seen as an equal parent”. (p. 20). “Very little information has been provided to suggest that Mr. McMillan is a poor or inadequate parent.” (p. 19). The evidence suggests to me that prior to separation the father was much less involved in day to day parenting than the mother but “since the separation, he has consistently shown up for his parenting time.” (p. 19).

[6] The father’s position is that now that Ms. Morinville has corroborated the suitability and adequacy of his parenting skills, there is no reason not to move to a 50-50 parenting regime. In my view, however, it doesn’t follow that proof of adequacy of parenting skills should automatically default to a 50-50 parenting arrangement. Determining the right proportions of parenting time varies from family to family and is highly-individualized.

[7] The mother’s position is that Ms. Morinville’s assessment does not address the criteria contained in section 30 of the Children’s Law Reform Act. She does not identify the needs of the children and the ability and willingness of the parties or any of them to satisfy those needs.

[8] She says the status quo has been in place since separation, the father was not active in parenting tasks before separation and the children are doing well under the present arrangement.

[9] The mother says this motion should be dismissed with costs. There is nothing in the father’s present notice of motion addressing the issue of summer access. If the respondent wishes to address summer access, he can bring a motion focused on summer access.

[10] I see no compelling reason why the parenting time should move to a 50-50 arrangement at this time. I do not regard the observations of the assessor as constituting a material change of circumstances. The father has not demonstrated how the change would benefit the children by better meeting their needs or how a change would be in their best interests.

[11] The question of an appropriate allocation of parenting time is a genuine issue requiring a trial and ought to be dealt with at the trial already scheduled for this fall. There is inadequate justification for making a temporary order at this stage of the proceeding for 50-50 parenting.

[12] At the same time, it is apparent that the parties disagree on summer access. Despite the objection of counsel for the mother, and considering the mother addressed summer access in her affidavit, and considering that counsel for the father agrees that summer access should be addressed as an alternative, I don’t see the advantage in delaying the issue until the summer is half over and requiring the parties to come back at considerable additional expense.

[13] Both sides have presented their positions on summer access. Generally I favour the mother’s schedule and it shall be the basis of the summer access subject to an adjustment which I will describe in a moment. The initial proposal of the father (50-50) not being acceptable to the court, the father came back with a revised proposal which was similar to the mother’s proposal. They differ on Tuesday evenings, whether they should be an overnight or not. I agree that even though the parties agreed to a Tuesday overnight last summer, it seems to me that this involves changeovers which are too frequent and I don’t support it.

[14] I am attaching the mother’s schedule as an appendix. It shall be the basis of the summer access except as hereinafter provided.

[15] A modified 3-2-2 regime will commence on Friday August 18 which is similar but not identical to the schedule requested by Mr. Durgali. I surmise that the father seeks an opportunity to demonstrate in advance of trial that a 50-50 arrangement will work well for these children. I do not see a problem with acceding to the father’s request for a brief period in the context of a summer access schedule. It does not appear to be unduly disruptive to the mother. The mother has asked to have the children during her second holiday block to and including Thursday, August 17. The modified regime will commence on Friday, August 18 with the father picking up the children at the end of their programs on Friday and dropping them off at their programs in the morning on Monday August 21. The mother will pick up the children at the end of day and have them in her care until the father picks them up Wednesday afternoon and has them in his care until he drops them off Friday morning. That evening the mother picks up the children and has them Friday, Saturday and Sunday nights. The father does the pick up Monday afternoon and has the children until drop off Wednesday morning. Wednesday night and Thursday night with the mother and the father picks them up on Friday afternoon. This is the start of Labour Day weekend. He will have them Friday, Saturday and Sunday night and drop them off at their mother’s residence Monday afternoon at 4 p.m.

[16] The father shall maintain a log that indicates his actual pick up and drop off times and the identity of the person doing the pick-ups and drop-offs, whether he is doing so personally or someone is doing it on his behalf.

[17] The parties shall have 10 days to provide their costs outlines and submissions.

James, J. DATE: June 20, 2017