Court File and Parties

COURT FILE NO.: FS-19-0063-000 DATE: 2019-05-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M. R. Applicant

W. Shanks, for the Applicant

• and -

B. S. Respondent

S. Filipovic, for the Respondent

HEARD: April 25, 2019, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Reasons For Decision On Motion

1Each of the parties has a motion before the Court claiming relief related to the parenting of their two children, possession and/or sale of the matrimonial home, the sale of jointly owned real property and various ancillary relief.

2The Applicant (“Mother”) and the Respondent (“Father”) were married for approximately 15 years, having separated on February 1, 2019. They are the parents of two sons, namely J.S. age 9, and C.S. age 7. At the heart of the dispute between the parties is the Father’s parenting time with the children.

3The Father seeks shared parenting on a week on / week off basis. The Mother seeks to limit the Father’s parenting time with the children to the following:

a. Each Tuesday, Thursday and Friday from 4:00 p.m. until 7:30 p.m.; and b. Each Sunday from 9:00 a.m. until 6:00 p.m.

4Specifically, the Mother alleges concerns as to the Father’s mental health, which she claims affects his ability to parent the children. The Father acknowledges his mental health challenges but takes the position that they do not affect his ability to parent, and he is taking active steps to address them. There are multiple other allegations as between the parties.

5The financial issues were adjourned for argument to May 30, 2019 at 2:00 p.m. This decision deals solely with the parenting issues.

Background

6The parties began living together in March of 2003. They were married on December 31, 2003 and subsequently separated on February 1, 2019.

7J.S. and C.S. are the only children of the parties. J.S. has been diagnosed with high functioning autism. C.S. is currently awaiting assessment by the Children’s Centre Thunder Bay, and a referral to a paediatrician for issues such as soiling, diet and other behavioural challenges.

8The parties each continue to live in the matrimonial home in a “birds nest” arrangement, whereby they each rotate in and out of the home based on their parenting schedule. Each alleges that the children were being negatively impacted by the tension in the home created by the parties living there together. There is some suggestion that C.S.’s behavioural issues may be related to the tension between the parties and the current arrangements, although this remains to be determined at this point.

9Both parties are employed. The Mother states that she has worked on a part-time basis since C.S. was an infant. The Mother is currently employed with a community symphony orchestra as the Director of Development, earning approximately $27,500 annually. The Father is a self-employed co-owner of a veterinary clinic earning approximately $100,000 annually.

10As for the procedural history:

a. The Mother commenced this Application on March 21, 2019 and brought an urgent motion on that date for primary care of the children, exclusive possession of the home and to limit the Father’s time with the children to Tuesday, Thursday and Friday from 4:00 p.m. – 7:30 p.m. and Sunday from 9:00 a.m. – 6:00 p.m. This time was to be exercised in the matrimonial home. b. Notice, albeit short, with given to the Father’s counsel of the urgent motion. On March 21, 2019 the Honourable H. Pierce made an order limiting the Father’s parenting time with the children as requested by the Mother. Amongst other things, she further ordered the parents to each leave the home when it was not their parenting time. c. A case conference was held before the Honourable Justice J. Fregeau on March 28, 2019, who made a further order with respect to procedural matters and communication with respect to the children. d. Each party brought their motions with respect to parenting and financial issues, which they agreed would be returnable April 23, 2019. At the request of the Mother, I adjourned argument to April 25, 2019. On that date I made an endorsement with respect to the Mother’s request for a further adjournment, and the procedure to be followed by the parties with respect to the outstanding relief in the motions on the financial issues. That endorsement is cited as Ross v. Stuart, 2019 ONSC 2630.

Parenting

The Position of the Mother:

11The Mother’s position is that she has always been, and continues to be the primary caregiver for the children. In her affidavit sworn April 15, 2019, the Mother deposes that she stopped working full-time in November 2013, shortly after her maternity leave with C.S. ended and it became apparent that J.S. was experiencing some developmental challenges. She states that the Father has traditionally been the primary financial provider for the family.

12The Mother’s evidence is that she attended to most of the children’s needs on a daily basis. She prepared most of their meals, did most of the household chores, attended to medical and school issues, scheduled all appointments, and arranged for the children’s extra-curricular and social activities. She has been actively involved in volunteering at the children’s school, and continues her involvement with the Parent Council.

13The Mother acknowledges that the Father is a good and caring parent when he is healthy. Her current concern is that the Father’s ongoing mental health issues prevent him from effectively parenting the children. The Mother alleges the following:

a. Somewhere between January 2007 and March 2008, while the parties were living overseas, the Father suffered a “nervous breakdown”. b. Between 2008 – 2017 the Father continued to struggle with his mental health. But for one appointment with a psychologist, he took no steps to address the concerns. c. The Father has been struggling with more severe depression related concerns since May of 2018. The Mother suspects that the catalyst may have been a complaint to the Father’s professional regulator that was made in January 2018. d. The Father began seeing a counsellor through his EAP program in May of 2018 and was prescribed medication by his physician in the summer of 2018. e. The Father received a referral to a psychiatrist and saw the psychiatrist approximately three times before she closed her practice. He has not seen another one since. f. Between September of 2018 and December of 2018 the Father sent to the Mother a number of text messages indicating that he had suicidal thoughts and was struggling to cope with certain issues related to his condition such as dizziness. g. On February 1st, 2019 the Mother discussed with the Father her desire to separate on a temporary basis, with the goal being reconciliation. She proposed ongoing joint counselling and a bird’s nest arrangement for the children whereby the parties would rotate in and out of the home to care for the children, and rent a separate apartment to stay in when each is not at the home. h. Following this discussion the Father’s mental health deteriorated further to the point that the Mother alleges she fears for his safety, and his ability to care for the children. i. In March of 2019 the Mother states that there was ongoing conflict in the home, resulting in the Father self-harming himself once by hitting his head with such force that it bled, and crisis response being called on two separate occasions. Police were also called to the home and there was a referral to the Children’s Aid Society by the police due to the children being present in the home during conflict. There were no allegations of criminal offences having been committed.

14The Mother takes the position that all of the foregoing requires proceeding with caution with respect to the Father’s involvement with the children. She is willing to consider expanded access once the Father has established a safe residence for children, and he seeing a psychiatrist regularly.

The Position of the Father:

15The Father takes the position that the parties parented their children equally during their relationship, and shared responsibilities for household chores. As such, both parents are integral to the lives of the children. He feels that this is the accustomed status quo for the children that should be continued despite the separation. He takes the position that a shared parenting arrangement that continues with a “nesting” order pending the sale of the home is in the best interests of the children.

16The Father describes his relationship with the Mother, and their conduct towards each other in the presence of the children as “toxic”. The Father claims that the Mother has acted in an abusive manner towards him. He alleges that she has physically pushed him, has called him names and swore at him in front of the children, and that she has spoken of him in a negative, dismissive and condescending manner in the presence of third parties. He takes the position that the Mother’s claims with respect to his mental health reflect her making good on previous threats to ‘keep him in line’ so that she may achieve a resolution of this proceeding on her terms.

17With respect to his mental health, the Father acknowledges having struggled with depression, but denies it affects his ability to parent. He claims that one of the biggest triggers for his mental health challenges is the Mother, and the abuse he suffered at her hands. He alleges that the Mother herself suffers from depression, for which she sees a therapist.

18Additionally, the Father’s evidence is:

a. He has experienced some issues with sleep and dizziness when his medication dosage was changed and he was adjusting to the side effects but this was temporary. b. He is involved with multiple third-party professionals to address his depression, which has improved since separation. Specifically, he has seen a psychiatrist, a counselor, his family doctor and a physiotherapist. The family doctor and psychiatrist have each provided letters c. The Children’s Aid Society has confirmed that they have no concerns with the Father being in a caregiving role, but that the parties should not be in a caregiving role together in the same home. d. There have been no issues or concerns with the Father’s parenting of the children since the Order of Pierce, J. on March 21, 2019. e. Many of the Mother’s complaints are either exaggerated, taken out of context, or occurred prior to his current treatment plan. Since many of the complained of events occurred, the Mother has left the Father alone in a caregiving role with the children. The longest period was for nine or ten days.

19With respect to the children, the Father states:

a. Both children have struggled with the breakdown of the relationship of their parents, the tension in the home and the conflict. b. The children are currently struggling, and unhappy about their father’s limited involvement in their care. c. The children are happy in his care, and the Father has noticed less behavioural issues when the parties are not in the home together.

Analysis

20This matter has all the hallmarks of a high conflict parenting case. The voluminous materials of the parties, and indeed the argument at the motion focused on each party’s complaints with respect to the conduct of the other. I have not outlined all of the complaints of the parties about the other in this decision.

21There is a concern here that the special needs of these children may get lost in, and exacerbated by the conflict between their parents. The affidavit material filed suggests that each party is prepared to think the worst of the other when it comes to their parenting of the children or other issues. The accusations and allegations of the parties are toxic. Conflict needs to be minimized and some stability needs to be brought to the parenting arrangements for the children. It is crucial that this matter proceed to trial as soon as possible so as to further stabilize the parenting arrangements for the children, and remove the litigation as a source of conflict for the parties.

22The focus of the court must be on the best interests of the children, as opposed to the interests or desires of the parents. What little evidence there is with respect to the children themselves suggests that they have struggled with the conflict between their parents both prior to, and post-separation. The children appear to be doing slightly better since the parties have no longer been living in the home together. Having said this, both parties continue to express concerns that the actions of the other are negatively impacting the children.

23On an interim motion, with a significant body of conflicting he said / she said allegations it is difficult to determine which of the parties is responsible for the current conflict that is negatively impacting the children. Each wants me to attribute blame to the other. It strikes me that there is sufficient blame to be attributed to each.

24On the evidence before me I am also unable to resolve the conflicting evidence as to whether the Mother was the primary parent, or whether the parties shared child-rearing obligations equally. It strikes me that both parties contributed equally to the functioning of the family unit, whether that was by virtue of their care provided to the children, contributions to the household chores or contributions towards the household finances. While the text and email communication between the parties were included in their affidavits for a different purpose, I glean from them that the parties functioned as a team (albeit not well at times) with respect to coordinating and sharing family obligations. Each spouse may have adopted a more significant role with respect to certain functions than others.

25Right now, the parties appear to be unable to agree on even simple matters pertaining to the children, including how they will communicate with respect to J.S. and C.S. Having said this, I have no doubt that if the parties are able to focus on the needs and interests of their children, they have the skills and abilities to co-parent in a way that will better serve the children. They simply are not there yet.

26It is evident that both parents, despite the foregoing, are otherwise good and loving parents who want the best for their children. The real issue is quite simple; whether the Father’s mental health currently prevents him from being able to parent the children in anything other than a limited way.

27Based on the evidence before me, I find that while the Father’s mental health concerns warrant a conservative approach pending trial, they do not warrant continuing the limited parenting role he has had since the Order of Pierce J., dated March 21, 2019. That Order may have been warranted at the time, but there has now been a period of time during which the Father has had parenting time alone with the children, albeit limited. The Father has also now had an opportunity to respond to the Mother’s allegations.

28In addition to the foregoing, I also note the following, which have factored into my decision with respect to the interim parenting arrangements:

a. Many of the allegations of the Mother pre-date the separation of the parties. As the Father has pointed out, the Mother has since left him to parent the children alone during her out of town trips. b. The Father is addressing the concerns raised with respect to his mental health. The Father is currently undergoing a treatment plan that includes medication and the involvement of various professionals. None of these professionals, or the Children’s Aid Society have expressed concern with the Father’s ability to parent. The Father appears to be successfully managing his mental health, and if he continues on this path he may very well be in a position to parent on an equal basis. However, I find that for the time being it is in the best interests of the children to proceed with some caution. c. I fully appreciate the Mother’s arguments with respect to the limited and questionable value of the letters from the Father’s health care practitioners. However, I also note that the Mother has not provided any evidence to suggest that there have been any significant parenting issues since the Order of Pierce J. There are some issues raised, which if proven true, remain concerning. For example, the allegation that the Father was crying a lot in the presence of the children because he was sad about not seeing them more. d. The evidence of the Father, undisputed by the Mother is that that the children enjoy time with him, and wish to see him. The current amount of time that the Father has with them is insufficient to parent the children in any meaningful way. While the children may currently experience their father making them dinner or helping with homework, he is not participating in the usual aspects of parenting such as putting the children to bed, getting them up in the morning, preparing them for their school day, and the like.

Order

29For the foregoing reasons it is hereby ordered that:

1. The Father shall have the children in his care as follows: a. Every second weekend from Thursday immediately after school (or 3:30 p.m. if it is not a school day) until Monday morning when the children are delivered to school. b. If Monday is not a school day, then the Father’s time shall be extended to 5:00 p.m. c. During the week when the Father does not have the children for the weekend, from Thursday after school (or 3:30 p.m.) until Friday after school (or 3:30 p.m.
2. Until such time as the issue of exclusive possession of the matrimonial home is determined, the Father may exercise his time with the children at the home, unless he finds other suitable accommodation.
3. The children shall be in the care of the Mother at all other times.
4. Each parent shall have reasonable telephone communication with the children when in the care of the other.
5. Neither party shall make disparaging remarks either to, or in the presence of the children about the other parent or their extended family. They shall similarly not permit others to do so.
6. Counsel may (but are not required to) speak to me as to any additional parenting terms that are either agreed upon or required, including but not limited to holiday parenting, additional orders required with respect to communication, and whether the involvement of the Office of the Children’s Lawyer is warranted.
7. Communication between the parties, with respect to the children, shall be conducted through the Our Family Wizard program. Communication shall be respectful and child-focused.
8. This Order shall be without prejudice to the positions of either party at trial.
9. This is not a case for costs. There shall be no costs ordered with respect to the parenting issues.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: May 30, 2019

COURT FILE NO.: FS-19-0063-000 DATE: 2019-05-30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: M. R. Applicant - and - B. S. Respondent REASONS FOR DECISION ON MOTION Nieckarz J. Released: May 30, 2019 /lvp