COURT FILE NO.: FS-18-5835 DATE: 2019-05-01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.L. C. Bell, for the Applicant Applicant

• and -

J. L. S. Lundin, for the Respondent Respondent

HEARD: April 24, 2019, at Kenora, Ontario Mr. Justice W. D. Newton

Decision On Motion

Overview

[1] There are two cross motions for temporary parenting time and child support.

[2] The mother [^1] seeks an order that the father have the children in his care for three weekends per month (Friday to Sunday, Thursday to Monday, Friday to Sunday) and seeks child support in the amount of $1,193 based on the father’s annual earnings of $78,800.

[3] The father seeks a four week rotating schedule in which the children are in his care from 3:00 p.m. Thursday until Monday morning for three weeks and in his care from Thursday at 3:00 p.m. until Saturday at 9:00 a.m. on the fourth week and that child support be payable based on guideline amounts with an offset.

The Facts

[4] The mother and father began cohabiting in 2008. They married on August 20, 2011, and separated November 4, 2018. They have two children: a daughter born October 31, 2012 (aged 6), and a son born July 26, 2016 (aged almost 3).

[5] Both parents are employed. The father works as a truck driver in the logging industry. One week, he works days from 5:00 a.m. to 5:00 p.m. Monday to Thursdays. The next week, he works nights from 3:00 p.m. to 3:00 a.m. Monday to Thursdays. The mother works in healthcare basically on a two-week rotation also. The first week, she works evening shifts on Wednesday and Thursday from 3:00 or 3:30 p.m. to 8:30 p.m. The following week, she works the same shifts on Wednesday and Thursday and also works Friday from 3:30 p.m. to 8:30 p.m. and Saturday and Sundays from 8:30 a.m. until 8:30 p.m. When the children are in the father’s care, the mother also picks up additional shifts at a hospital in the area.

[6] When the children are in the care of one parent, child care assistance is provided by that parent’s extended family when that parent has work commitments.

The Law

[7] The application of the best interests test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3. McLachlin J. (as she was then) stated that the “best interests” test is the only test and the test is, necessarily, broad. The only specific factor that the judge must consider is the “maximum contact” principle set out in s. 16 (10) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.): at paras. 201-204.

[8] Section 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, also provides helpful guidance:

Best interests of child

(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.

Analysis and Disposition

[9] Considering these factors, no significant issues are raised with respect to parenting ability. On a temporary basis, the considerations are stability and maximum contact with each parent so that the children can adapt to the new reality post separation.

[10] Practically speaking, the solution is driven by the parties’ work schedule and adherence to the maximum contact principle. When the father works nights from 3 p.m. to 3 a.m., he has little ability to actively parent. When the father works days, he is gone from 5 a.m. to 5 p.m. with only the early evening available to parent these young children.

[11] Similarly, the mother is unavailable for parenting Wednesday and Thursday evenings one week, Wednesday, Thursday, and Friday evenings the following week, and she is unavailable for 12 hours on both Saturday and Sunday. When neither parent is available to care for the children, the grandparents take over.

[12] Considering all the factors, I conclude that the following order is appropriate on a temporary basis:

(a) Commencing Monday, May 6, 2019, the children shall be in the primary care of the mother until Wednesday, May 15, 2019, from after school (3:30 p.m.) and that the children then will be in the care of the father from Wednesday, May 15, 2019, at 3:30 p.m. until Monday, May 20, 2019, when school commences (at 9:00 a.m.). Thereafter the schedule will repeat on a biweekly basis coinciding with the father’s night shifts. (b) The father shall pay to the mother child support for the support of the two children in the amount of $1,193 monthly based on annual income of $78,800. (c) The parent into whose care the children are coming will pick up or arrange to pick up the children from the other parent’s home or such other location as the parties may agree. (d) I may be spoken to by teleconference if clarification is required to give effect to this order.

[13] If the parties cannot agree on costs, then the party seeking costs shall submit costs submissions limited to two pages, plus costs outline, plus authorities within 30 days of the date of this decision. Thereafter, the opposing party may submit their costs submissions, subject to the same limits, within 10 days.

[14] If no cost submissions are received within 30 days, then costs will be deemed settled.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: May 1, 2019

[^1]: To protect the privacy of the parties and their families, nonspecific identifiers are used throughout these reasons.