COURT FILE NO.: FC-18-1554

DATE: 2019/07/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Donald Baker, Applicant

-and-

Nancy Marie Baker, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Evan Corey for the Applicant

Diana Carr for the Respondent

HEARD: July 19, 2019

amended ENDORSEMENT

The text of the original endorsement dated July 26, 2019 was amended on July 30, 2019 and the description of the amendment is appended

[1] This motion deals with interim parenting of the parties’ three children, ages 10 (twins) and 12.

[2] The parties married in 2006. The date of separation is in dispute, but the parties continued to reside in the same home, with the children until August of 2018. In August of 2018, Mr. Baker left the matrimonial home with the children and brought an urgent motion alleging that Ms. Baker was psychologically and physically abusive to the children. On August 30, 2018, Justice Engelking dismissed Mr. Baker’s motion seeking to have an urgent motion heard before a case conference but, on consent, a custody and access assessment was ordered to be completed by Dr. Horvath.

[3] At the case conference on November 14, 2018, the parties were able to agree on an interim order. The interim order provides for Ms. Baker to vacate the matrimonial home, for Mr. Baker and the children to return to the home, and for Ms. Baker to have supervised access every Tuesday, Friday and Sunday. The November 14, 2018 Order provided for the parties to review “the condition for supervised access three months from the date upon which [Ms. Baker] vacates the matrimonial home, and no later than February 28, 2019.” The November 14, 2018 Order does not specify custody.

[4] Dr. Horvath released her assessment on June 17, 2019.

Consent

[5] Both parties agree to the mother’s access now being unsupervised. They further agree that one of the children, R., see a psychologist recommended by Dr. Horvath, and to use “Our Family Wizard” for communications. I made these orders on consent on July 19, 2019.

Added to Trial List

[6] The parties also agree that this matter needs to proceed to trial. At the hearing of this motion, I proposed that the trial of this matter be expedited and added to the Ottawa family trial lists set to proceed at the end of September 2019 or November 2019. Although counsel for Mr. Baker agreed, counsel for Ms. Baker was not available for the September list and has two other matters on the November list. I, therefore, add this matter to the next available trial list, being the list for the family law trials starting in January 2020.

Trial Scheduling Conference

[7] I will case manage this file to ensure it is ready for trial. The parties shall schedule a trial scheduling date to complete the Trial Scheduling Endorsement Form (TSEF) through the Trial Coordinator for September or October of 2019. At least seven days in advance of that date, both parties shall exchange draft TSEF’s, and shall file the combined TSEF with the court as part of their confirmation forms. The TSEF will be finalized at the conference.

[8] Also, at least seven days in advance of the conference, the parties shall exchange updated financial statements and Net Family Property Statements. Each party shall file a Net Family Property Comparison Statement as part of their conference brief.

[9] Each party shall ensure they provide all disclosure that is relevant and proportional to the issues in dispute that is in their possession, power and control, no later than seven days in advance of the conference so that any disclosure issues may be addressed at the conference.

Interim Parenting Pending Trial

[10] The issue then is what parenting arrangement should be in place until trial. Both parties propose interim access arrangements in line with Dr. Horvath’s recommendations. Mr. Baker’s position is that he is prepared to implement Dr. Horvath’s recommendations for access. Ms. Baker seeks the same, but with some modifications and some additions.

[11] I address the differences between the parties’ respective proposals below.

1. Four Week Schedule v. Five Week Schedule

[12] Ms. Baker sought a slightly modified schedule that provided for access rotating on a five-week schedule, with her having every fifth weekend without a child in her care. Ms. Baker sought this so that she could have some recovery and rest time to “regroup,” and argued that this would support her to succeed in the many changes she has made. Ms. Baker’s proposed schedule also includes a mid-week overnight that is not in Dr. Horvath’s report, in part to make up for the fifth weekend. Ms. Baker’s position, however, was that even without this mid-week overnight, she still sought the fifth weekend free for recovery time.

[13] Mr. Baker did not strongly oppose the fifth-weekend free rotation but did oppose the mid-week overnight visit.

[14] I find that it is in the children’s best interests, on an interim basis, to provide Ms. Baker with one weekend out of five where she does not have a child in her care so that she has time to regroup. I, therefore, order the five-week schedule set out below, without the mid-week overnight.

2. Weekend Visits

[15] Ms. Baker proposes the weekend visit to take place from Friday after school to Sunday at 5:00 p.m. Mr. Baker proposes they take place from Saturday noon to Monday morning drop off.

[16] I agree with Mr. Baker that the benefit of the Saturday to Monday visit is that it includes Ms. Baker in the pre-school preparation for Mondays and that this is in the children’s best interests. Ms. Baker’s position was that a Friday start would facilitate her travelling with the children if they went someplace for the weekend, but I do not have evidence before me that the option of travelling on the weekend would not be equally available for a Saturday to Monday morning visit.

[17] Both parties confirm that there is no restriction on either party travelling with the children while the child is in his or her care.

3. Return Time

[18] Mr. Baker seeks a return time for the mid-week visits of 7:30 pm. Ms. Baker seeks a return time of 8:00 p.m. so that she has more time between picking the child up after work and returning the child to Mr. Baker’s so that such visits are not as rushed. Mr. Baker argues that the children need some time to adjust or “wind-down” after a visit before bed.

[19] I find that at this interim stage, given the adjustments, a cautious approach is warranted and that, at this time, on an interim basis, the return time should be 7:30 pm.

4. Holiday Access

[20] Ms. Baker sought several special provisions for holiday access, including Thanksgiving, Labour Day, Easter, Christmas and New Year’s. Mr. Baker’s position is that although he agrees to Ms. Baker’s proposal for Christmas access, he does not agree to additional holiday access being implemented[^1] on an interim basis primarily because he believes that it is in the children’s best interests to have a consistent schedule that is not subject to frequent adjustments. I agree that on an interim basis, it is not necessary to address most holidays, nor is it in the children’s best interests to add further variables into the schedule.

[21] On an interim basis, the regular schedule shall apply to holidays and other special occasions except for the following:

a. For Christmas Day in 2019, which falls on a Wednesday, Ms. Baker will not have her regular Wednesday visit but will instead have all three children in her care from Christmas Eve until Christmas Day at 1:00 p.m. (on consent);

b. Mother’s Day will be spent with Ms. Baker regardless of the schedule, from 10:00 a.m. to 6:00 p.m. (on consent);

c. Father’s Day will be spent with Mr. Baker regardless of the schedule, from 10:00 a.m. to 6:00 p.m. (on consent);

d. The regular schedule shall apply to each child’s birthday. However, the parent who does not have care of the child under the regular schedule shall be entitled to have at least one hour of access on the child’s birthday.

e. Each parent will have care of the children on that parent’s birthday. If the parent’s birthday falls on a school day, the parent whose birthday it is will have the children from after school to drop off at 7:30 p.m. If it is not a school day, the parent whose birthday it is will have the children from 10:00 a.m. to 7:00 p.m.

Interim Custody

[22] Ms. Baker seeks an interim order implementing the parallel custodial recommendations of Dr. Horvath, which provides that Mr. Baker make decisions regarding education and activities and that Ms. Baker make decisions regarding medical and health.

[23] I decline to do so at this interim stage. There is no custody order in place at this time. The parties have been operating under a de facto joint custody arrangement. Neither party has pointed me to a custody decision that they need to make before trial that requires an interim order. The parties do need to agree on a psychologist for R., but they have agreed on a process for doing so by utilizing Dr. Horvath’s recommendations. I leave the issue of decision making, which will include weighing Dr. Horvath’s recommendations on a full evidentiary record, for the trial judge.

Other Issues

[24] Ms. Baker sought an order requiring the Ottawa Children’s Aid Society to produce a report of their involvement. I decline to make such an order. There is already an Order providing for the Society, subject to its objection, to produce a copy of its records[^2]. If either party needs a new order for production of records since August 30, 2018, they may seek such an order by filing a Form 14B Motion. I do not find that a report, in addition to the Society’s records, is required. I also will not order the Society to produce such a report when Ms. Baker has not served them with this motion.

Disposition

[25] For the above reasons, I make the following interim orders:

1. I will case manage this file.

2. This matter is added to the Ottawa trial list for trials starting in January 2020.

a. The parties shall schedule a trial scheduling date to complete the Trial Scheduling Endorsement Form (TSEF) through the Trial Coordinator for September or October of 2019. At least seven days in advance of that date, both parties shall exchange draft TSEF’s, and shall file the combined TSEF with the court as part of their confirmation forms. The TSEF will be finalized at the conference.

b. Also, at least seven days in advance of the conference, the parties shall exchange updated financial statements and Net Family Property Statements. Each party shall file a Net Family Property Comparison Statement as part of their conference brief.

c. Each party shall ensure they provide all disclosure that is relevant and proportional to the issues in dispute that is in their possession, power and control, no later than seven days in advance of the conference so that any disclosure issues may be addressed at the conference.

3. The children’s interim primary residence shall be with Mr. Baker;

4. The interim parenting time shall be on a five-week rotation in which:

a. Ms. Baker has each child individually for two overnights during the weekend:

i. from Saturday noon drop off by Mr. Baker at Ms. Baker’s residence to Monday morning drop off by Ms. Baker at school, camp or Mr. Baker’s residence no later than 10:00 a.m. if school or camp is not in session;

b. Ms. Baker has all three children for the fourth weekend:

i. From Saturday noon drop off by Mr. Baker at Ms. Baker’s to Monday morning drop-off by Ms. Baker at school camp, or Mr. Baker’s residence no later than 10:00 a.m. if school or camp is not in session

c. Ms. Baker has the fifth weekend without any children in her care; and

d. Ms. Baker has each child one weekday night between Tuesday and Thursday (from pick up after school to 7:30 p.m. drop off at Mr. Baker’s residence). Each child’s weekday evening access shall remain on the same evening for at least three months.

5. On an interim basis, on July 1, 2020, the weekend access will change as set out in paragraph 10, page 57 of Dr. Horvath’s report (on consent) with the option of continuing the fifth weekend without a child being in Ms. Baker’s care if she elects to do so.

6. On an interim basis: the regular schedule shall apply to holidays and other special occasions except for the following:

a. For Christmas Day in 2019, which falls on a Wednesday, Ms. Baker will not have her regular Wednesday visit but will instead have all three children in her care from Christmas Eve until Christmas Day at 1 p.m. (on consent);

b. Mother’s Day will be spent with Ms. Baker regardless of the schedule, from 10:00 a.m. to 6:00 p.m. (on consent);

c. Father’s Day will be spent with Mr. Baker regardless of the schedule, from 10:00 a.m. to 6:00 p.m. (on consent);

d. The regular schedule shall apply to each child’s birthday. However, the parent who does not have care of the child under the regular schedule shall be entitled to have at least one hour of access on the child’s birthday (on consent).

e. Each parent will have care of the children on that parent’s birthday. If the parent’s birthday falls on a school day, the parent whose birthday it is will have the children from after school to drop off at 7:30 p.m. If it is not a school day, the parent whose birthday it is will have the children from 10:00 a.m. to 7:00 p.m.(on consent)

7. On an interim basis, if G. has an out-of-town hockey tournament, Mr. Baker shall bring him to the tournament and R. and C. will be in Ms. Baker’s care regardless of the schedule. The parties may agree to reverse this arrangement if they agree that Ms. Baker will take G. to the out-of-town tournament (on consent).

8. On an interim basis, Ms. Baker may attend, or volunteer at the children’s school, have access to the children’s school or attend any school events or activities. Ms. Baker may communicate with the children’s school authorities, teachers, and /or other relevant person related to the school. If necessary, Mr. Baker shall apply written consent for this purpose (on consent).

9. On an interim basis, the children shall be free to call either parent when they wish to do so.

10. On an interim basis, if any exchanges of the children must take place not specified above unless otherwise agreed, these exchanges will take place at the school (if during school hours) or, if not during school, at Mr. Baker’s home.

11. All other requests for relief, except for costs addressed below, sought on the parties respective Notices of Motion, are dismissed.

Costs

[26] If the parties are unable to agree on the costs of this motion, Mr. Baker may file submissions concerning costs on or before August 22, 2019. Ms. Baker may file submissions concerning costs on or before September 13, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Justice P. MacEachern

Date: July 30, 2019

APPENDIX

July 30, 2019: The heard date should read July 11, 2019 instead of July 19, 2019

July 30, 2019: Counsel for the Respondent has brought to my attention that their motion was served on the Ottawa Children’s Aid Society. This does not change my decision on the request for a report from the Society, but paragraph 24 of my endorsement is amended as follows:

“[24] Ms. Baker sought an order requiring the Ottawa Children’s Aid Society to produce a report of their involvement. I decline to make such an order. There is already an Order providing for the society, subject to its objection, to produce a copy of its records.[^3] If either party needs a new order for production of records since August 30, 2018, they make seek such an order by filing a Form 14B Motion. I do not find that a report, in addition to the Society’s records, is required.”

COURT FILE NO.: FC-18-1554

DATE: 2019/07/30

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Robert Donald Baker, Applicant

-and-

Nancy Marie Baker, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Evan Corey for the Applicant

Diana Carr for the Respondent

amended ENDORSEMENT

Justice P. MacEachern

Released: July 30, 2019

[^1]: Except for Father’s Day, Mother’s Day and birthdays that are agreed upon

[^2]: Justice Engelking made an order for the production of the Society’s records on August 30, 2018.

[^3]: Justice Engelking made an order for the production of the Society’s records on August 30, 2018.