CITATION: Kennedy v. Peters-Kennedy, 2017 ONSC 7296
COURT FILE NO.: 5065/15
DATE: 2017-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Oliff Kennedy
Applicant
- and -
Tara Lynn Peters-Kennedy
Respondent
Lauren Bale, for the Applicant
Christopher Martin, for the Respondent
HEARD: July 31, 2017; August 2, 3, 4, 2017; September, 21, 22, 2017; November 16, 2017
JUDGMENT
THE HONOURABLE MADAM JUSTICE L. MADSEN
INTRODUCTION AND OVERVIEW
[1] This is the Judgment in relation to a seven-day trial on the narrow issue of regular access by the Applicant, Paul Kennedy [“Paul”] to his daughter, Olivia Kennedy, who will be four years old in February, 2018. In advance of the trial the parties, to their considerable credit, had resolved all financial issues, and all issues related to parenting other than regular access.
[2] The parties have agreed that the Respondent mother, Tara Peters-Kennedy [“Tara”] shall have primary residency of Olivia, and sole decision-making authority. However, they disagree on how much overnight access Paul should have now, and when Olivia starts school in September of 2018. Paul says Olivia should spend four overnights with him in every fourteen day period now, and five when she starts school. Tara says Olivia should be in her father’s care two overnights of every fourteen. Paul and Tara also disagree on how much daytime access Olivia should have to her father, and about where and when exchanges should take place.
[3] Two important factors have shaped the parenting dispute between Paul and Tara. First, Paul in some respects behaved badly during the parties’ relationship, having been verbally and in several instances physically abusive to Tara. This was denied by Paul at Trial, but this Court finds that the abuse did take place as alleged. Second, since Tara left that relationship, she has also behaved badly in some respects, failing to communicate with Paul about Olivia, alleging “injuries” to Olivia when in Paul’s care in the absence of evidence of same, communicating disrespectfully with Paul about Olivia, and generally failing to appreciate Paul’s important role in Olivia’s life. This was also denied at Trial, but this Court finds Tara has behaved in this manner post-separation.
[4] The parties’ respective families have been very involved and have not helped the parties focus on resolution. Paul’s family, who love Olivia and Paul dearly, have rallied around Paul and supported him, but have also failed to help him acknowledge his behavior during the marriage. Tara’s parents, who love Tara and Olivia dearly, have rallied around Tara, inflaming rather than helping to de-escalate the dynamic between Paul and Tara. Some family members were blinded by their support for their child to the point where they were not forthright with the Court. It is time for both families to focus on Olivia’s best interests and on supporting cooperative parenting between the two most important people in Olivia’s life: her mother and her father.
BRIEF BACKGROUND FACTS AND CHRONOLOGY
[5] Paul and Tara began dating in 2009 and were married on April 17, 2012. They separated on July 20, 2015. There was conflict in their relationship.
[6] Paul is 32 years old and is a heavy equipment operator with Waterford Crushing and Screening in Hamilton, Ontario. He has worked there for 13 years. He currently works a “continental” schedule, under which he works seven day shifts and seven night shifts in every twenty eight day period, with day shifts running from 6:00 a.m. to 6:00 p.m. and night shifts running from 6:00 p.m. to 6:00 a.m. These shifts include eight hours of regular time and four hours of overtime.
[7] Tara is 33 years old and works as a visiting wound-care nurse in the community. Tara has a flexible schedule and can set her own hours but generally works Mondays to Thursdays, from approximately 9:00 a.m. to 3:00 p.m.
[8] Olivia was born February 19, 2014 at 34 weeks. She weighed only two pounds four ounces at birth and remained in the neo-natal care unit at McMaster Children’s Hospital until April 30, 2014. Olivia has had delays in her speech development.
[9] After the separation, Paul vacated the matrimonial home, and has lived with his parents, Paul Kennedy Sr. [“Paul Sr.”] and Adrienne Kennedy, since then. He has since purchased a home with his sister Lisa Kennedy [“Lisa”] and her husband Gerry Homolka [“Gerry”], in Kohler, Ontario. Paul had not yet moved to that house as at the date of the Trial, but plans to do so. His new home is a country residence where he will have the three-bedroom main floor. Olivia has not slept at this home yet, and Paul is transitioning her gradually.
[10] Tara remained in the matrimonial home after separation and has purchased Paul’s interest in that home. Her parents, David and Gloria Peters have been very involved, staying at the home many nights and providing childcare when Tara is working. They have been providing childcare even when Paul would be available to care for Olivia.
[11] After separation, Paul and Tara arranged for Paul to spend time with Olivia two evenings per week, and Saturdays from 9:00 a.m. to 4:00 p.m. In December 2015, Paul brought a motion to expand access. Pursuant the Order of Justice McLaren dated December 18, 2015, access was expanded to alternate weekends from Friday at 6:30 p.m. to Sunday at 6:00 p.m. effective April, 2016 (with a transitional arrangement until then), and each Tuesday from 5:30 p.m. to 7:30 p.m. This is the access that was in effect as at the date of the Trial.
[12] On December 3, 2015, the involvement of the Office of the Children’s Lawyer was requested by the Court. Mr. Glory To was appointed to investigate. Mr. To completed his investigation in May 2016 and delivered his written report on July 27, 2016. That report found that the “major concern” in this matter was the level of conflict between the parties. Mr. To recommended sole custody and primary residency to Tara, which the parties agreed to in advance of Trial. He also recommended expanded access for Olivia to Paul, to include alternate weekend access, and an overnight every other week.
WITNESSES AND CREDIBILITY
Office of the Children’s Lawyer (OCL)
[13] Mr. To testified first. He is a senior social worker with 43 years’ experience, 21 of those years as a member of the OCL panel. The Court found his testimony to be balanced, clear, and credible. He was consistent in his conclusion that both Paul and Tara are competent and loving parents, and that Olivia is safe in their care. He conducted a thorough investigation, including interviews with both parents, observation visits with each parent, and the review of extensive collateral information. Mr. To did not recall that Paul’s parents each had very dated criminal records entirely unrelated to any concerns about children. I do not find this detracts from his credibility or conclusions as the records had no bearing on any issues related to the care of Olivia either by Paul or Olivia’s grandparents.
Paul’s Case
[14] Paul testified and called his father, Paul Kennedy Sr., and his sister, Lisa Kennedy as witnesses.
[15] The Court found many aspects of Paul’s testimony to be credible, in particular his description of his routines with Olivia, his desire to be able to communicate with Tara about extracurricular and other issues, and his wish to be an active and involved parent. There was no question at all about his love and devotion for Olivia. The Court also found his statements that he did not know he should disclose his purchase of a new home to the OCL, credible. It did not appear that the new home was something he was trying to hide.
[16] On balance, in the context of all of the other evidence in the proceeding, however, the Court does not accept Paul’s evidence about the physical incidents set out below. While his denials were adamant, the Court found Tara’s description of the incidents to be detailed and credible, and notes that her testimony about the keying of the car is consistent with the counselling notes. The time period those allegations relate to is consistent with the disclosure of violence to the Children’s Aid Society when they became involved in July of 2015.
[17] Lisa Kennedy testified in what was generally a straightforward, genuine manner. It was clear that she is sad about the conflict between her brother and Tara, and that she has felt the loss of Tara from her own life. Lisa said Tara had been her best friend and stated that she had been Tara’s maid of honour. The Court found her evidence of Paul’s parenting strengths detailed and credible. Lisa was also able to list many positive traits in Tara, notwithstanding the conflict since the parties separated. In light of the other evidence in the proceeding however, the Court does not accept her evidence regarding what she said Tara told her about the keying of the car.
[18] The Court had some difficulty with the testimony of Paul Kennedy Sr. It is clear that he adores Olivia and wants what he believes is best for her. However, the Court finds that he was not forthright about his knowledge of the conflict in the parties’ relationship, his knowledge of the keying of the car, as well as his knowledge of the “rainstorm” incident set out below. Paul Sr. denied that Tara would complain to him about her relationship with Paul, although his daughter Lisa testified that Tara would often call him about arguments she and Paul had. In light of all of the other evidence in this proceeding, on a balance of probabilities, the Court found Paul Sr.’s testimony to be unreliable on the issue of violence against Tara and conflict in the relationship.
Tara’s Case
[19] Tara testified and called her father, David Peters, and her mother, Gloria Peters, as witnesses.
[20] The Court found many aspects of Tara’s evidence to be credible, and, as seen below, ultimately found that her description of violence in the relationship is to be believed. However, the Court had difficulty with her evidence regarding when and whether she sent any form of positive communication to Paul. The Court also fundamentally doubts her statements that she is concerned about Olivia’s safety in Paul’s care, in light of her own statements to the Children’s Aid Society that she had no concerns about Paul in a caregiving role, and her decision to leave Olivia in Paul’s care at the age of one for several days while she travelled to Las Vegas. The Court does not accept Tara’s statement that she did not threaten to tell Paul to leave, in light of the notation in notes from two counselling sessions.
[21] It is clear that Tara, at least as at the date of the Trial, would prefer that Olivia spend as much time as possible with her and that she prefers her parents as caregivers than Paul, but this goes less to credibility than her failure to accept Paul’s importance in Olivia’s life.
[22] Gloria Peters testified for the most part in a straightforward manner. The Court was impressed with her ability to recognize Paul’s positive traits, not only what she saw as his weaknesses. She was able to recognize that Paul loves Olivia and that Olivia loves Paul. While Paul’s counsel stressed that Gloria did not mention acts of violence by Paul against Tara, this is not surprising since both Tara and Gloria testified that Tara did not tell her mother about the incidents when they took place. Gloria also acknowledges that Olivia, as a young child, gets bumps and bruises both in her care as well as in Tara’s care.
[23] As with Paul Sr., the Court had some difficulty with the testimony of Tara’s father, David Peters. As with all other witnesses, it is clear he adores Olivia and that their time together is precious to him. He testified that everything is a wonder to Olivia and that he looks forward to seeing her every day. He described Olivia as having a 100-watt smile.
[24] However, David had a much less balanced view of Paul than his wife Gloria does, and was very critical of Paul. His testimony was argumentative and he had difficulty acknowledging, for example, that a parenting schedule involving fewer exchanges would reduce opportunities for conflict. He was also less than forthright when asked whether Tara had shared with him what had taken place at the Case Conference and Settlement Conference. He said she had not, but in his letter to the OCL, Mr. To, he made reference to discussing with Tara what had taken place at a conference.
[25] What was most striking about the testimony of Gloria and David Peters was the extent to which they have been involved with Tara and Olivia generally, through providing childcare, virtually residing at Tara’s home three to four days per week, and being present at exchanges. This seems ironic given Tara’s position that Paul’s time is for Paul alone and not for his family. In her access journal, which she provided a copy of the OCL, she stated “I am not sharing custody with his sisters.” Yet, she appears to be willing to share it with her parents.
[26] Gloria and David’s testimony also showed a high level of engagement in the conflict between Tara and Paul and a tendency to escalate rather than deescalate the conflict. For example, rather that calm Tara down when Paul took Olivia in the car in the rainstorm, they suggested calling the police.
LAW AND ANALYSIS
[27] Section 16 of the Divorce Act, R.S.C. 1985, c. 3 governs the issue of custody and access between married parents and provides that the only factor that the Court is to consider is the best interests of the child. In determining best interests, the Court is to give effect to the principle that a child should have the maximum contact with the other parent as is in her best interests. Conduct is only to be considered where relevant to the ability to parent.
[28] Section 16 reads in part as follows:
- ORDER FOR CUSTODY AND ACCESS – (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an Order respecting the custody of or the access to, or the custody of and access to, any or all of the children of the marriage.
(8) FACTORS – In making an Order under this section, the Court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs, and other circumstances of the child.
(9) PAST CONDUCT – In making an Order under this section, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.
(10) MAXIMUM CONTACT – 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.
[29] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, can be helpful in applying the best interests test. That provision reads as follows:
(24) – MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (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).
(2) BEST INTERESTS OF CHILD -- 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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.
(3) PAST CONDUCT -- 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) PAST CONDUCT -- 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.
(5) SAME -- For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[30] Maximum contact is not about “parental rights.” It is about ensuring that the best interests of the child are nurtured and promoted.
[31] Maximum contact with capable and loving parents will generally be in a child’s best interests. As stated by Justice McLachlin in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, “Parliament has indicated that maximum contact with both parents is generally in the best interests of the child”(see para 25).
[32] While it has been stated that it is “not simply the frequency of access which is the consideration… it cannot be denied that frequency of access bears some correlation to the child’s relationship with the access parent.” Woodhouse v. Woodhouse, 1996 902 (ON CA), 1996 CarswellOnt 1906 (see para 50).
[33] Maximum contact is limited to contact consistent with the child’s best interests. As noted in Young v. Young, 1993 34 (SCC), 1993 CarswellBC 264 at 216: “[t]he only circumstance in which contact with either parent can be limited is where the contact is shown to conflict with the best interests of the child.”
Physical Incidents
[34] As seen above, under section 16 of the Divorce Act, past conduct is only to be considered in the determination of custody or access where it is relevant to the ability to parent. Under section 24(4) of the CLRA, the Court shall consider violence to a spouse or child in assessing ability to parent.
[35] Tara alleged that during the relationship, Paul could be controlling and have angry outbursts, and that on several occasions he was violent to her. She testified that this underpins some of her concerns about his parenting. In particular she said she is worried about Paul’s anger, rage, and lack of self-control and how this could affect his parenting as Olivia gets older.
[36] Tara made several specific allegations of violent conduct, each of which was adamantly denied by Paul. On a balance of probabilities, this Court finds the following acts of violence did take place:
[37] The keying of Tara’s car: Tara alleged that in June 2013, she and Paul had a heated argument which led to Paul keying her car, a 2008 Corolla. Paul said that this did not take place and that Tara had told him that the car had been keyed before their relationship by a friend or landlord when she lived on Bay Street. Tara and her parents testified that Tara drove a Chrysler Neon when she lived on Bay Street, not the 2008 Corolla.
[38] Tara testified that she was distraught and that after the incident drove to Paul’s parents’ home and tearfully told his parents about what happened. Tara’s testimony on this was detailed and believable. It is also consistent with notes from the parties’ therapist from a counselling visit on June 18, 2013, in which the therapist noted that “P keyed T’s car during an argument last week when she was trying to leave the house”. This is a very specific statement about what happened and when it happened. There is no indication in those notes that Paul denied the allegation. These notes were part of collateral information gathered by Mr. To, the OCL investigator. At that time the therapist also indicated that Tara “denied physical violence.” The keying of the car took place before the incidents set out below.
[39] This Court rejects the evidence of Paul Sr. on this issue. He said that he noticed the scratches on the vehicle when the parties first started dating, well before 2013. While the Court accepts other aspects of Paul Sr.’s testimony (including that he loves Olivia, and that in the beginning they considered Tara part of the family), his testimony regarding knowledge of conflict between the parties was less than forthright. He did not acknowledge, for example, that Tara used to discuss her relationship with Paul with him, although Paul’s sister Lisa, who also testified, stated that Tara used to call Paul Sr. about this regularly. Similarly, while the Court found other important aspects of Lisa’s testimony to be credible, as discussed below, her statement regarding Tara having told her that the car was keyed by a landlord or neighbour did not ring true, having regard to the other evidence in this proceeding. This Court finds that Tara’s description of the keying of the car, coupled with the counselling notes, were more credible than Paul, Paul Sr., and Lisa’s statements that the scratch took place before the relationship started.
[40] The push when Tara was three months pregnant: Tara alleged that when she was three months pregnant, Paul pushed her during an argument. This would have been the summer of 2013, after the counselling. Tara testified that Paul shoved her by the shoulder and she fell down on the hardwood floor. She started crying and asked why he was doing this and said she could lose the baby. Tara said she called her mother a couple of days later and asked what she should look for if she was having a miscarriage, telling her she fell. Tara said she didn’t tell her mother about the push because she didn’t want it to “turn into a huge thing.”
[41] This evidence is consistent with that of Gloria Peters, Tara’s mother. As set out above, I found Gloria’s evidence to be generally credible. Gloria candidly testified that Tara did not disclose abuse to her during the relationship. She stated that Tara had called saying that she fell, and she had told Tara the signs to look for if one were having a miscarriage.
[42] Paul suggested that the allegation might have arisen from an incident where he and Tara had an argument, Tara threw water on the floor and then slipped and that perhaps this is what could explain the allegation. The Court found Tara’s evidence more persuasive, on a balance of probabilities, than Paul’s evidence.
[43] The pull of Tara’s hair and the fall on the bench: Tara alleged that in May 2014, Paul came home from work and was very angry that she had not cooked supper. He was covered in soot from work. Tara was tired, having been up with Olivia at night. The parties argued, and Paul told Tara to give him Olivia. Tara refused and was walking up the stairs. Tara says Paul pulled her hair when she was on the third stair holding Olivia, and that she fell backwards onto a bench at the foot of the stairs. Olivia was not hurt, but Tara stated that she scraped the side of her arm and sustained a bruise on her lower back. The Court found Tara’s testimony, taken in the context of the evidence as a whole, to be detailed and believable.
[44] Tara stated that she did not tell anyone as she felt embarrassed, ashamed, and trapped.
[45] Paul denied this incident, stating that he would never do that. As with his testimony regarding the push, above, on balance, the Court found Tara’s evidence more persuasive than Paul’s evidence.
General Comments regarding the Allegations of Violence
[46] In finding on a balance of probabilities that the incidents described by Tara occurred, the Court makes the following additional comments:
(a) While Tara did not tell her mother about the physical incidents, she has told others about them: for example, as early as July 29, 2015, when the Children’s Aid Society became involved at separation, the worker who attended the home that day wrote in the case notes after a meeting with Tara that “d –[dad] was physical during the pregnancy, just after.” This is consistent with the therapist’s notes referred to above, written before the pregnancy, which noted there had been no physical abuse to that point (June 2013). The period from June 2013 when the keying of the car took place and May 2014 when the pull of Tara’s hair on the staircase coincides with “during the pregnancy, just after”.
(b) Tara alleged in her Answer that there had been physical abuse during the relationship. She mentioned the keying of the car, the push to the floor, and the pull down the staircase. They are set out without detail. Paul’s counsel suggested that the description of the incidents became more detailed and elaborate with each telling. Pleadings are not intended to be exhaustive but rather to set out key facts. The facts as alleged in the Answer are not inconsistent with her testimony. Her testimony was simply more detailed.
(c) The allegations were also set out in an email she prepared on July 22, 2015 which was later provided to Mr. To. That email was more detailed than the Answer and again, not inconsistent with her testimony.
(d) It is not determinative that Tara did not report the incidents to the police or tell her mother. The Court accepts her evidence that she felt ashamed, embarrassed, and trapped. It is also not determinative that Tara’s Dr. wrote that she had not seen signs of spousal abuse, as Tara did not sustain physical injuries requiring medical attention. She had testified she did not tell her mother, so it is not surprising that she also did not tell her physician.
[47] In C.M. v. R.P., 2008 NCSC 268, Justice Forgeron considered the impact of domestic violence in a custody case. She stated:
Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his or her child. Domestic violence demonstrates an inability to problem solve in a healthy manner. Domestic violence shows the absence of respect and dignity for the other parent. Domestic violence demonstrates reactive personality with poor impulse control.
Domestic violence will usually impact the court’s determination as to whom should be assigned primary care of a child. This is one factor, albeit a significant one, which determines the best interests of the child. The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined in determining the best interests of the child.
See paragraphs 11 and 12 [emphasis added].
[48] In considering Justice Forgeron’s comments, I make the following observations:
(a) It is concerning that Tara was holding Olivia during the incident in May 2014.
(b) The incidents referred to took place in 2013 (the keying of the car and the push) and 2014 (the pull of the hair). There is no evidence of any violence by Paul against Tara since June 2014, now almost three and a half years ago;
(c) There is no evidence that Olivia has experienced or witnessed any further violence by Paul against Tara since May 2014;
(d) The keying of the car involved an argument with Tara but no physical violence against her. Tara alleged two incidents of violence against her within a one year period;
(e) Tara, though shaken, and understandably upset, sustained bruises but was not injured in the two incidents of violence against her;
(f) The parties have already agreed that Tara will have sole custody of Olivia and Olivia will reside primarily with her. Only access is at issue.
Paul is a Competent Parent
[49] The three incidents of violence described above (one against property and two against Tara) are not acceptable and point to Paul having difficulty managing his anger, at least during the one-year period of time over which the incidents took place.
[50] However, it does not follow from having found that the three incidents alleged by Tara in fact took place that the Court should prefer her proposed parenting schedule over Paul’s proposed parenting schedule. As noted, the parties have already agreed that Tara is the primary residential parent – what is at issue is how much time Olivia should have with her father.
[51] While the finding that the incidents occurred as set out above is relevant to assessing Paul’s ability to parent as contemplated under section 16(9) of the Divorce Act, the balance of the evidence in this proceeding is that notwithstanding these incidents having taken place, Paul is a loving and competent parent.
[52] In his testimony, Paul gave detailed evidence about his routines with Olivia, which are child-focused and appropriate. In addition to the regular parenting responsibilities of feeding Olivia, bathing her, clothing her, and putting her to bed, he testified that he engages in learning games with her, using building blocks, drawing with her, and outdoor play.
[53] Tara expressed a number of concerns about Paul’s parenting. These included: that Olivia sustains injuries in his care; that Paul does not have good judgment in general about what is safe for Olivia; and that his anger could be taken out on Olivia at some point.
[54] In support of the allegation that Olivia sustains injuries in Paul’s care, several photos were entered into evidence of bruised shins, and bruises on Olivia’s back. Those photos did not show cause for concern. The evidence was that Olivia is an active young child and that she gets bruises from time to time when she plays at the park, goes down the slide, and participates in other common activities for young children. There was no evidence that Tara ever felt that emergency care was required for Olivia following Paul’s care of her. There were no medical records suggesting that Olivia had been injured in Paul’s care. Tara’s mother Gloria acknowledged that Olivia gets bruises in Tara’s care from time to time, as well as in her own care. Indeed on one occasion, Olivia sustained a fat lip in Tara’s care.
[55] In support of the allegation that Paul has poor judgment when it comes to Olivia, Tara described an incident in June 2014 in which Paul took Olivia out in the car during what she called a rainstorm. The Court finds on the evidence that the parties had an argument, following which Paul took Olivia in the car without bringing her diaper bag or supplies. It was raining heavily. Tara had gone to the washroom and when she came out Paul and Olivia were gone and Tara became worried and upset. This was shortly after the incident when Paul pulled Tara’s hair and she fell, as set out above, so things were likely already escalated between them and the relationship was likely tense. Olivia was still very young and tiny, having been born prematurely. I found Tara’s detailed description of the incident credible and I understand why she was concerned. I did not hear evidence, however, of any similar or equally concerning event in the over three years since that time.
[56] Tara also testified about Paul taking Olivia to the “Flying Squirrel”, a trampoline park, in the spring of 2017. The evidence was that Olivia played in the section for young children, aged 3 to 6. This Court does not find anything unreasonable about a parent taking a child to a Trampoline Park. Having said that, Paul signed a Waiver releasing the facility in the event of any injury to Olivia while at the park. He should have consulted with Tara before signing that waiver, since it purported to limit rights to seek compensation on Olivia’s behalf if something had gone wrong.
[57] On balance, the examples cited by Tara do not support the allegation that Paul is not a good parent. Indeed, on balance, the evidence shows to the contrary, that he is capable and loving to Olivia.
[58] Perhaps the best evidence Paul is a capable parent comes from Tara herself. For example, in March of 2015, well after all three of the incidents set out above took place, Tara took a trip to Las Vegas for several days. Olivia was about one year old at that time. Tara went for four nights while Paul cared for Olivia. Olivia slept at Paul and Tara’s home, not at Paul’s parents’ home. Tara did not have her parents take care of Olivia. While Tara told Mr. To in her letter to him that Paul had booked he trip for her knowing that her parents were away, she still chose to go on the trip and leave Olivia in Paul’s care. This tells the Court that for whatever Paul’s anger issues may be, Tara felt that Paul was well able to take care of Olivia, even when she was much younger than she is now.
[59] Further, when the parties separated and the CAS worker met with Tara at the home on July 29, 2015 (the same meeting where the worker made note of that Tara said Paul was physical during the pregnancy and just after), the notes indicate that Tara told the worker that she had no concerns about Paul in a caregiving role.
[60] As noted, the Children’s Aid Society was involved for a brief period, arising from a police call made at the time of separation. Having investigated the matter, the CAS closed the file, not verifying any protection concerns. The CAS is the agency charged with ensuring children’s safety. That agency expressed no concern with Olivia’s safety or comfort in Paul’s care before closing the file.
[61] The OLC investigator, Mr. To, met with both parents and observed each parent with Olivia. He testified in a detailed, balanced manner about his observations during his investigation. Mr. To found Olivia to be safe with both parents, physically and emotionally secure with both parents, and found both to be competent parents. Mr. To in no way stated or implied that his assessment of Paul was contingent on him continuing to reside with his parents, as suggested by Tara’s counsel.
[62] Mr. To was aware of the allegations of violence but stated that due to the lack of “objective” evidence he was unable to “substantiate” that the abuse took place. However, he acknowledged in his testimony that domestic violence often takes place behind closed doors and stated that the lack of objective evidence did not mean that the abuse did not happen. He was clearly aware of the allegations and had considered them when he arrived at his conclusions.
[63] Even if it can be said that to some extent Mr. To’s recommendations may have rested on an assumption that the violence did not occur, this Court would have reached the conclusion that Paul is a capable parent even without relying on Mr. To’s evidence. There is ample additional evidence to support this conclusion.
[64] Tara indicated that part of her concern with respect to Paul having increased time with Olivia stemmed from the fact that up until now, access has taken place at his parents’ home, while grandparents as well as Paul’s siblings are present. She referred to him being “watched” by his family and expressed concern that when he moves to the home he has purchased with his sister Lisa and her spouse, he will not have as much family support. In essence she suggested that Paul’s time with Olivia has been informally supervised until this point.
[65] This suggestion rings hollow, for two reasons. First, at no time has Tara claimed that Paul should have supervised access, nor has she sought to amend her claim to seek this relief from the Court. If she were truly of the view that Paul is not a safe or competent parent, one would think she would seek this relief. Second, at various points in the proceeding, she expressed concerns about Paul’s family. For example, she told the CAS that she felt their home was too small for overnight access. She has also stated at various points that Paul’s mother takes insulin and could have a medical event while caring for Olivia and that his father has mobility issues which could prevent him from adequately caring for Olivia.
[66] In addition to the other evidence that Paul is a capable parent, this Court accepts the evidence of Paul’s sister, Lisa, with respect to Paul’s parenting. She testified that Paul is a “very good father.” She described Paul’s routines with Olivia, and described him devoted to Olivia. Lisa’s evidence was for the most part balanced and thoughtful. She was also able to list many positive attributes of Tara, including that she is smart, funny, and caring. She was able to acknowledge that sometimes Paul lingers too long at access exchanges.
Allegations of Paul having Obsessive Compulsive Disorder
[67] Tara alleged that Paul has undiagnosed Obsessive Compulsive Disorder (OCD). She testified that he would become angry if the kitchen, for example, was not spotless, and that some days he would come home from work after a twelve hour shift and spend two hours scrubbing the kitchen. She testified that she was worried about how this could impact Olivia and whether Paul could make her scrub the kitchen for hours as well.
[68] Paul may or may not have OCD. If he does, he has not been diagnosed. The evidence was that he has not had a family physician for about ten years, which Tara says explains why there is no diagnosis.
[69] Whether or not Paul has OCD does not bear on the appropriate access schedule in this case. While the Court accepts that the behavior alleged may have created conflict between the parties, there is no evidence that these alleged behaviours have impacted Paul’s ability to parent or his care of Olivia. Speculation that a strong concern with cleaning could affect Olivia as she gets older is precisely that – speculation.
Tara has Sought to Marginalize Paul’s Role in Olivia’s Life
[70] As seen, there was conflict between Paul and Tara, and Paul was, on the occasions set out above, physically violent. This is not appropriate or acceptable.
[71] It is understandable that Tara was angry with Paul about how she had been treated. It is clear there were confrontations in the relationship and physical conflict between June 2013 and May 2014. As Tara said when challenged by Paul’s counsel about some of her communication with Paul in the fall of 2015, she had just gotten out of an abusive relationship with Paul. The implication was: how could she be expected to “be nice” given the incidents which took place in their relationship.
[72] While the anger and hurt are understandable, particularly leading up to and shortly after separation, given that Paul is a competent parent (Tara herself having told the CAS that she had no concerns with Paul in a caregiving role and she having left Olivia with him for four days to go to Las Vegas) her conduct should have become more child-focused. She should have focused less on the anger and more on interacting cooperatively with Paul for the benefit of Olivia.
[73] Instead what has happened is that the anger has stayed strong, and Tara has sought to marginalize Paul from Olivia’s life.
[74] Tara seems to have started from the proposition that Olivia was hers alone and that she had more right to time with her than Paul had. For example in her 16-page single spaced memo to the OCL investigator, she stated that she had been “more than generous with the access granted to Paul”, as if it were her right to determine when Olivia could spend time with her father. She also stated that “I have allowed Paul every scheduled access visit granted...”
[75] Tara has sought to document “reasons” why Paul should be less involved, notwithstanding that this is not in Olivia’s best interests. This has taken a number of forms.
[76] Tara started an access journal only five days after separation, which she maintained until March 19, 2016. This was provided to Mr. To, the OCL investigator, and formed part of his notes and records. This detailed journal sets out a litany of criticisms of Paul’s time with Olivia. Indeed, there is not a single positive statement about Paul or his time with Olivia in the entire journal. Complaints include: “returned both evenings with popsicle stains”; “Olivia and her clothing smell like stale cigarette smoke”; “he was five minutes late and had a prolonged goodbye”; “Paul the last two times including this access has showed up five mins early”; “he is sending me messages asking me to kiss Olivia for him and sending me pictures of their day together… I have asked him to stop and he continues.”
[77] Of significant concern, Tara and her parents have frequently been photographing Olivia after her time with her father. Indeed Tara’s father, David Peters, stated that they are “always looking at Olivia after access with her dad.” While Tara indicated that they are no longer doing this, photos were filed from 2017 in relation to bruises on Olivia’s back from going down a slide, and bruises on her shins from going to a trampoline park. On one of the photos, Gloria Peters, Tara’s mother, can be seen holding Olivia’s legs in place. Gloria stated that this was “so she doesn’t jiggle.” This is very concerning.
[78] In over two years since separation, Tara has only once agreed to an additional visit for Paul (Thanksgiving 2015), beyond the schedule in effect. On one occasion, Paul got off work early and asked whether he could pick Olivia up early. He was told he could pick her up early and return her early, rather than have a slightly longer visit with her.
[79] Tara has not shared information with Paul about Olivia, even when she clearly should have. For example:
(a) On one occasion, Paul’s sister and mother picked up Olivia from Tara’s home. Olivia was taking antibiotics and Tara testified that she told Paul’s sister what the dosage was. Paul texted later on to ask what the dosage was. Tara did not respond. Challenged about this during the Trial, her response what that Paul’s sister had already been told. That may very well have been the case – however, the child focused response would have bene to provide the information again, to make sure that Olivia received the right amount of medication.
(b) In 2016, Tara failed to tell Paul that Olivia had been referred to a speech pathologist. Paul learned this from Mr. To.
(c) Very recently, on August 25, 2017, while this Trial was ongoing, Tara took Olivia to a walk-in clinic. Notwithstanding that the parties entered into a Consent Order on July 10, 2017 which explicitly provided that she was to advise Paul within 48 hours of “any appointment pertaining to Olivia,” she did not advise Paul. Tara testified that she did not tell Paul because she did not believe it was a big deal. That she did not do this even in the context of this Trial shows a lack of understanding of her obligation to keep Olivia’s father informed.
[80] Tara’s communication with Paul about Olivia has been limited, curt, and often sarcastic, and not supportive of Paul’s role in Olivia’s life. The majority of the communication has been by text. Even ignoring texts in 2015, when Tara may still have found it difficult to see Paul as a capable parent rather than as a former spouse who had been physical with her, her approach in 2016 and 2017 was to either not respond to reasonable texts about Olivia, or to respond curtly. Paul, by contrast, provided regular, courteous, informative updates by text to Tara about his time with Olivia and any concerns that arose during that time. Confronted with this at trial, Tara stated, that she did not need a “play-by-play.”
[81] Tara testified that she had sent positive texts that had been auto-deleted by her phone. The Court has some difficulty with this evidence in light of the sheer volume of negative commentary by her in her access journal and in the texts before the Court. Tara submitted a copy of one text message from January 2017 which was positive. Paul’s counsel pointed out that this was approximately the time that the matter was initially set down for Trial.
[82] By text, Paul would often ask Tara to give Olivia a kiss and to tell her he loves her. At Trial Tara stated that he could tell her himself. On one occasion Paul had Olivia prepare a Mother’s Day card for Tara. Tara described this as just a scribble on a piece of paper. Asked whether she ever considered having Olivia prepare a Father’s Day card for Paul, she stated that she didn’t know she had to, and that Olivia can’t spell.
[83] In summary, the Court is concerned that notwithstanding that the separation took place now almost two and a half years ago, Tara does not recognize the important role of Paul in Olivia’s life. She has remained focused on keeping Olivia’s time with her father to a minimum and has had significant difficulty appreciating that Olivia’s time with her father is important to Olivia’s development and identity. Tara has had difficulty accepting that Paul is able and willing, within the meaning of section 24 of the CLRA, to provide Olivia with love and guidance, and that he is able to meet her needs when she is in his care.
[84] In Fielding v. Fielding, 2013 ONSC 5102, Justice MacKinnon set out a non-exhaustive list of behaviours which may impair a child’s relationship with the other parent. Some of the conduct exhibited by Tara finds itself on that list, including: taking the position that contact should be limited; creating the impression that the other parent is dangerous (in terms of the allegations of “injuries”); and withholding medical information from the other parent. It is essential, for Olivia’s well-being, that efforts at marginalization abate, and that Tara do her part to enable a cooperative parenting relationship to develop.
Conflict at Exchanges
[85] The exchange of Olivia between Tara and Paul has taken place at Tara’s home. Paul brings a third party, often Lisa. Tara’s parents, Gloria and David, are often present for the exchanges.
[86] There has been some conflict at exchanges since the parties separated, including an occasion in November 2015 between Gloria and Paul. Gloria said that she told Paul he could come inside to say his goodbyes with Olivia as it was cold outside. Gloria said Paul got angry, shook his fist in her face, and said not to tell him what do with his daughter.
[87] However, virtually all witnesses testified that conflict has decreased considerably on access exchanges. Gloria testified that in 2017 there has been no conflict at exchanges and that Olivia is happy to go with Paul and happy to come home again. Paul’s sister Lisa, who is involved in many access exchanges also testified that things have gotten much better at exchanges.
A Child’s Time with Capable Parents Supersedes Time with Third Parties
[88] Shortly before separation, in June of 2015, the parties arranged that Tara’s parents would care for Olivia when Tara was at work. This has continued since separation, even though there are times that Paul is available to care for Olivia when Tara is working. Indeed, Tara’s proposed access schedule involves her parents continuing to care for Olivia at times when Paul is available.
[89] Tara stresses that the childcare arrangement was consented to by Paul in June 2015. This was approximately six weeks before separation. Paul agrees that he consented, but emphasizes that circumstances have changed with the separation, and he would like the opportunity to care for her when Tara is working and he is available.
[90] The starting point in a custody and access determination is that both parents are equally entitled to custody of the child. This is set out in the CLRA at section 20. Under section 16(10) of the Divorce Act, this is implicit in the maximum contact rule, set out above: the child is to have as much contact with each spouse as is consistent with the best interests of the child.
[91] Where, as here, both parents are capable and appropriate caregivers, parents are the priority caregivers for their children. This is so even where the proposed third parties who could provide care to a child are loving and devoted grandparents.
[92] The law provides for maximum contact with spouses, not with grandparents. Thus in Erb v. Fradette, 1999 CarswellSask 57, for example, Justice McIntyre found that preferring grandparent care over parental care “tends to indicate an unwillingness to promote maximum contact.”
Determination of the Appropriate Schedule
[93] As noted above, Paul works a continental shift. This results in him having Mondays and Tuesdays off one week and Wednesdays and Thursdays off the next week. He has Friday, Saturday, and Sunday off in alternate weeks. Though somewhat complicated, his schedule is fixed and predictable, and repeats every 28 days.
[94] Tara has a flexible schedule and sets her own hours.
[95] Paul and Tara agreed at Trial that time allocated to Paul under the schedule should be when he is not working and is available to care for Olivia.
[96] Tara’s proposed schedule provides for two overnights in every fourteen-day period and no mid-week overnights. In addition it provides for two day visits in every fourteen day period, until Olivia starts school, and then three evening visits in every fourteen day period. This schedule would reduce Paul to being a “visitor” in his daughter’s life.
[97] Paul’s proposed schedule provides for four overnights in every fourteen-day period, comprised of alternate weekends and one mid-week overnight. When Olivia starts school, his proposed schedule provides for five overnights in every fourteen day period.
[98] The OCL Investigator, Mr. To, recommended three overnights in every 14-day period, in addition to two evening visits. He was questioned by counsel about each of the parties’ proposed schedules. Based on his extensive experience as a social worker and as clinical investigator for the OCL, Mr. To stated that he had no concerns about the schedule proposed by Paul. Questioned about the schedule proposed by Tara he stated that it is “not adequate.”
[99] Having found that Paul is a capable and loving parent, this Court concludes that the amount of time that Tara is proposing Olivia spend with Paul is not adequate. It is in Olivia’s best interests that she have further time with Paul to continue to nurture the father-daughter relationship.
[100] The parenting schedule must account for Paul’s regular work schedule. If Paul is to have time with Olivia following a night shift which ends at 6:00 a.m., the commencement time for access should account for travel time and Paul having time to sleep after his shift. Furthermore, if there is to be an overnight, Paul should be available not only in the evening but also the following morning. The schedules set out below account for this factor.
[101] Tara had a number of concerns with Olivia having mid-week overnights with Paul, including the need for routine and consistency, and Olivia having to wake up early to get to school on time if she is in Paul’s care on a week-night overnight.
[102] First, I would note that “routine” and “consistency” are often cited by parents resisting mid-week overnights as a reason why these visits should be avoided. This Court cannot accept this argument. Any parenting schedule, repeated consistently, will create “routine” for the child. It is just a different routine. I have no doubt that Olivia could adjust well to having a mid-week overnight with her father each week. This would be the new routine.
[103] Second, with respect to the distance from Paul’s new home to Olivia’s school, this Court finds that the distance is manageable and that Paul will be able to get Olivia to school on time without a very early wake-up time.
[104] As indicated, Paul has purchased a home with his sister Lisa and her husband in Kohler, Ontario. Tara resides in Binbrook, Ontario. Olivia will attend Bellmore Elementary School in Binbrook, when she starts Junior Kindergarten in September 2018. This is very close to Tara’s home, and according to Tara, a 35 to 40 minute drive from Paul’s Kohler home. Paul says it is about a 25 minute drive from his new home. The first bell goes at 8:15 a.m. and school starts at 8:30 a.m. Paul testified that if he had a mid-week overnight with Olivia, she would wake up at about 7:00 a.m. and he would leave the house with her at 7:45 a.m., to have her at school on time. The Court accepts this evidence.
(i) Schedule Commencing Immediately:
[105] Based on the findings above, and having regard to Paul’s work schedule, this Court finds that the parenting schedule which is in Olivia’s best interests, is as follows:
[106] Commencing immediately, with Week One to coincide with weekends that Paul is not scheduled to work, Olivia shall reside with Paul in accordance with the following alternating two week schedule:
Week One
(a) from Monday at 3:00 p.m. until Tuesday at 7:30 p.m.;
(b) from Friday at 3:00 p.m. until Sunday at 7:30 p.m.;
Week Two
(c) from Wednesday at 3:00 p.m. until Thursday at 7:30 p.m.
[107] The schedule above recognizes that on alternate Mondays of Week One and on alternate Wednesdays of Week Two, Paul will have just come off a night shift at 6:00 a.m. that day. By using 3:00 p.m. pickups rather than the noon pick-ups he suggested, this schedule will ensure that he is well rested for Olivia’s time with him. Pick up times are consistent, including on the Mondays and Wednesdays that follow a day shift (where there is no concern about being rested for access), so that the schedule is easy for Olivia to adjust to and for Tara and Paul to implement (rather than establishing a four-week schedule with different pick up times).
(ii) Schedule Commencing September 1, 2018:
[108] Both Paul and Tara’s proposed schedules contemplated a two-part schedule, with the second part to take effect once Olivia starts school in September 2018. In his proposed schedule, Paul has reasonably proposed that Olivia be with Tara on Tuesday afternoons in Week One and Thursday afternoons in Week Two.
[109] However, he has also proposed that on his weekends, Olivia stay with him until Monday morning at 8:30 am. The difficulty with this is that on one of his two weekends per four week period, Paul has a regularly scheduled day shift on the Monday starting at 6:00 am. While Paul testified that others at work could help him cover the early part of his shift so he could go in a bit later, the Court is not prepared to build the schedule around these ad hoc arrangements. Olivia’s weekends with Paul shall continue to end on Sundays at 7:30 pm when school starts.
[110] Commencing September 1, 2018, Olivia shall reside with Paul in accordance with the following alternating two week schedule:
Week One:
(a) from Monday at 2:50 p.m. until Tuesday at 2:50 p.m.;
(b) from Friday at 2:50 p.m. until Sunday at 7:30 pm;
Week Two:
(c) from Wednesday at 2:50 p.m. until Thursday at 2:50 p.m.
(iii) Regular Schedule during the Summer
[111] In Paul’s Order sought, he requested that commencing in the summer of 2019, Olivia’s regular summer time with him commence at noon rather than at 2:50 p.m. He also requested that on Tuesdays in Week One and on Thursdays in Week Two, the return time be at 7:30 p.m. rather than 2:50 p.m.
[112] This Court declines to adjust the pickup times to noon for the reasons set out above. However, the other changes sought to the regular schedule in the summer during the non-vacation weeks are reasonable, in Olivia’s best interests, and accord with the principle of maximum contact under section 16(10) of the Divorce Act. Olivia will not be in school in the summer. It is reasonable that the regular schedule be adjusted so she can have additional time with her father when she is not in school, over and above the vacation time the parties have negotiated.
[113] Commencing July 1, 2019 until August 31, 2019 and each summer thereafter, the regular schedule shall be modified as follows:
Week One:
(a) from Monday at 3:00 p.m. until Tuesday at 7:30 p.m.;
(b) from Friday at 3:00 p.m. until Sunday at 7:30 pm;
Week Two:
(c) from Wednesday at 3:00 p.m. until Thursday at 7:30 p.m.
(iii) Exchanges
[114] In light of the conflict between the parties, Mr. To recommended that exchanges be at school where possible. The general consensus among witnesses in this proceeding was that conflict at exchanges has lessened considerably. Nevertheless there are other good reasons why the exchanges should be at school when Olivia starts Junior Kindergarten and when consistent with the schedule. In addition to reducing conflict between the parties and between family members, pickups and drop offs at school would allow Paul to develop a familiarity with the school, and to have an opportunity to speak with teachers and staff on a regular basis. This will allow him to better support Olivia’s academic development. Accordingly, once Olivia starts school, the 2:50 p.m. pickups during the school year shall be at school and drop offs shall be at Tara’s home.
[115] When Olivia is not in school, pick up and drop off shall be at Tara’s home unless the parties agree otherwise. In light of testimony that there has been little if no conflict at exchanges in all of 2017, this Court is not placing restrictions on who may be present for the exchanges. The parties are encouraged, however, to make every effort to ensure that Olivia is not exposed to conflict during exchanges.
[116] From time to time there has been disagreement between the parties when Paul’s sister or other family member has occasionally picked up Olivia. This parenting schedule is designed to maximize Paul’s time with Olivia when he is not working. As a general rule then, it is appropriate that Paul be responsible for pickups and drop offs. If from time to time however, he requires assistance of a third party, the Order set out below does not restrict him from making such arrangements. However he will need to ensure that the school (when Olivia starts school) and Tara are apprised of who will be picking up Olivia.
(iv) Paul’s availability for his scheduled time
[117] Tara expressed concern during the Trial about Paul potentially working overtime (other than the four hours of overtime that are part of his regular shifts) and not being available for his scheduled time.
[118] Mr. To also indicated in his recommendations that Paul’s parenting time with Olivia should be when he is not at work.
[119] Paul’s proposed schedule was designed based on his availability in light of his work schedule. In the event that Paul’s schedule changes such that he is not consistently available for his scheduled time as set out above, he shall advise Tara, so that he and Tara can discuss changes to the parenting schedule. Pending any agreed-upon changes however, the schedules set out above shall continue in full force and effect.
CONCLUSION AND ORDER
[120] It is clear that Paul and Tara both love Olivia with all of their hearts. It was also clear from the evidence that both Paul’s family and Tara’s family adore this little girl. Indeed each witness positively glowed when they spoke about her.
[121] Olivia needs to know and experience the love and parenting of both her mother and her father. Neither parent should be a mere “visitor” in Olivia’s life. The parenting schedule that this Court has determined gives Olivia meaningful time with her father while preserving meaningful time with her mother. She is a little girl who will have two homes, two routines, and two extended families to nurture her and support her healthy development and growth. Yet, at the same time, it is important to remember that from Olivia’s perspective, this is still one “family”. She deserves to have a childhood without conflict between her parents and her extended family.
[122] The best gift Tara and Paul can give Olivia at this time is to put this Trial and the litigation mindset behind them and to parent cooperatively and respectfully, each with due regard for the other’s essential role in Olivia’s life. Their parenting relationship can be better than their spousal relationship, and for Olivia’s sake, it must be. The best gift that Tara and Paul’s extended families can give Olivia at this time is to support Paul and Tara’s shared parenting efforts and to encourage their cooperation for Olivia’s benefit.
[123] For the reasons set out above, this Court makes the following Order:
Regular Schedule
- Commencing immediately, with Week One to coincide with weekends that Paul is not scheduled to work, Olivia shall reside with Paul in accordance with the following alternating two-week schedule:
Week One
(a) from Monday at 3:00 p.m. until Tuesday at 7:30 p.m.;
(b) from Friday at 3:00 p.m. until Sunday at 7:30 p.m.;
Week Two:
(c) from Wednesday at 3:00 p.m. until Thursday at 7:30 p.m.
- Commencing September 1, 2018, with Week One to coincide with weekends that Paul is not scheduled to work, Olivia shall reside with Paul in accordance with the following alternating two-week schedule:
Week One:
(a) from Monday at 2:50 p.m. until Tuesday at 2:50 p.m.;
(b) from Friday at 2:50 p.m. until Sunday at 7:30 p.m.;
Week Two:
(c) from Wednesday at 2:50 p.m. until Thursday at 2:50 p.m.
- Commencing July 1, 2019 until August 31, 2019 and each summer thereafter, the regular schedule shall be modified as follows such that Olivia resides with Paul as follows:
Week One:
(a) from Monday at 3:00 p.m. until Tuesday at 7:30 p.m.;
(b) from Friday at 3:00 p.m. until Sunday at 7:30 p.m.;
Week Two
(c) from Wednesday at 2:50 p.m. until Thursday at 7:30 p.m.
Exchanges
- When Olivia is in school, pickups and drop offs shall be at school, when transition times provided in this Order align with the start and end times of the school day. When she is not in school, pickups and drop offs shall be at Tara’s home, unless the parties agree otherwise in advance.
Change of Schedule
- If there is a material change in Paul’s employment schedule such that he is not consistently available for his scheduled time with Olivia, he shall advise Tara within 30 days, so that changes to the schedule can be determined. Pending any agreed-upon or ordered changes, the schedule set out above shall continue in full force and effect.
ON CONSENT
- The following holiday access schedule shall override the regular schedule:
Statutory Holidays and School Professional Activity Days
a. In the event that the Paul’s regular access falls on a long weekend not otherwise specified below (including both statutory/civic holidays and the child’s P.A. Days from school), his regular access shall be extended one full day.
Summer Vacation
b. Commencing in 2019 each party shall have the child in his or her care for two non-consecutive weeks of summer vacation (from Sunday to Sunday). Paul shall have the first choice to select summer vacation time in even-numbered years and shall notify Tara in writing of his chosen vacation weeks by no later than May 1st. Tara shall then notify Paul of her chosen vacation weeks by May 15th. The parties’ priority of choice and dates of advancement shall be reversed in odd-numbered years.
Christmas and New Years
c. In odd-numbered years:
i. The child shall be in the care of Tara from December 24th at 12:00 noon to December 26th at 12:00 noon, and in the care of the Paul from December 26th at 12:00 noon to December 28th at 12:00 noon; and
ii. The child shall be in the care of the Paul from December 31st at 12:00 noon to January 1st at 12:00 noon.
d. In even-numbered years:
i. The child shall be in the care of Paul from December 24th at 12:00 noon to December 26th at 12:00 noon, and in the care of the Tara from December 26th at 12:00 noon to December 28th at 12:00 noon; and
ii. The child shall be in the care of the Tara from December 31st at 12:00 noon to January 1st at 12:00 noon.
Easter
e. The child shall reside with each parent for approximately equal periods over Easter weekend. Unless otherwise agreed, the first block of the weekend shall commence on Thursday at 2:50 p.m. (school end time) and conclude at 7:00 p.m. on Saturday evening. The second block of time shall commence at 7:00 p.m. on Saturday evening and conclude on Tuesday morning at 8:30 a.m. (school return time). Paul shall have the first block in odd-numbered years and Tara mother shall have the first block in even-numbered years.
Thanksgiving
f. The child shall reside with each parent for approximately equal periods over Thanksgiving weekend. Unless otherwise agreed, the first block of the weekend shall commence on Friday at 2:50 p.m. (school end time) and conclude at 11:00 a.m. on Sunday morning. The second block of time shall commence at 11:00 a.m. on Sunday morning and conclude on Tuesday morning at 8:30 a.m. (school return time). Paul shall have the first block in odd-numbered years and Tara shall have the first block in even-numbered years.
Mother’s Day/Father’s Day
g. If the child is not otherwise in Paul’s care on Father’s Day pursuant to the regular access schedule, the child shall be in Paul’s care from 10:00 a.m. on Sunday to Monday morning at 8:30 a.m. (school return time). If Paul is scheduled to work on Father’s Day, the child shall remain in the care of Tara, unless Paul provides written confirmation from his employer to Tara at least 72 hours in advance of Father’s Day that there has been a schedule change and Paul is available to personally care for the child on this date.
h. If the child is not otherwise in Tara’s care on Mother’s Day pursuant to the regular access schedule, the child shall be in Tara’s care from 10:00 a.m. on Sunday to Monday morning at 8:30 a.m. (school return time).
Child’s Birthday
i. The child shall spend her birthdays in accordance with the regular access schedule. The parent who does not have regular care of her that day shall, however, have an opportunity to spend four hours of time to celebrate with the child, either on the child’s birthday or the day before/after the child’s birthday.
COSTS
If the parties cannot agree upon costs – and I urge them to do so – the Court will accept brief written submissions and a Bill of Costs from each party by January 19, 2018, and brief responding submissions by January 26, 2018. If submissions are not received on this timeline, which may not be extended without leave of the Court, the parties shall be deemed to have resolved the matter of costs.
On consent there shall be no costs in relation to the holiday schedule set out above.
OTHER
[124] The Court thanks both counsel for their thoroughly professional and courteous conduct of this Trial, and for their helpful written materials.
Madsen J.
Released: December 11, 2017
CITATION: Kennedy v. Peters-Kennedy, 2017 ONSC 7296
COURT FILE NO.: 5065/15
DATE: 2017-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Oliff Kennedy
Applicant
- and -
Tara Lynn Peters-Kennedy
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice L. Madsen
Released: December 11, 2017