Superior Court of Justice - Ontario

BRACEBRIDGE COURT FILE NO.: FC-15-123-01

DATE: 20190913

RE: Jody Gallaugher, Applicant / Moving Party

AND:

Avery Kober, Respondent / Responding Party

BEFORE: The Honourable Madam Justice V. Christie

COUNSEL: Ben Ulster, Counsel, for the Applicant / Moving Party Andrew Brown, Counsel, for the Respondent / Responding Party

HEARD: September 12, 2019

ENDORSEMENT

[1] The parties have one child together, Jack, who was born on July 14, 2015. He is now 4 years old.

[2] On October 22, 2015, a final order was made by Justice Wood, providing for joint parenting, with the primary residence to be with the Applicant, and a parenting schedule, whereby Jack was to be with his father on certain days and times, to be revisited by the parties in July 2016, with the goal of increasing parenting time. The Respondent has brought a motion to change the order of Justice Wood, to increase his parenting time with Jack.

[3] By agreement of the parties, and by Order of Justice Wood on October 22, 2018, at para. 5, it was determined that:

[5] On a temporary and without prejudice basis, commencing Sunday June 30, 2019 the parties will begin a shared access schedule to be followed on a week about basis from Sunday at 5:00 p.m. until Sunday at 5:00 p.m., or at times agreed upon in advance between the parties. The Applicant Mother shall begin the week about arrangement. This arrangement shall be revisited after approximately 1 month for a Settlement Conference.

[4] On August 1, 2019, during a settlement conference before Justice Wood, the parties further agreed at para. 12 in Minutes of Settlement filed August 1, 2019 that:

[12] On a temporary and without prejudice basis, the parties shall continue the access schedule per the Oct 11, 2018 [should be October 22, 2018] order until a motion can be heard in September to address the access schedule going forward for the school year. The weekly schedule shall be tweaked based on the attached Schedule “A”.

[5] In a handwritten endorsement on September 12, 2019, this court determined that Justice Wood’s order of August 1, 2019, incorporating the Order of October 22, 2018, remains in effect, and continues with no fixed date for termination, subject only to further order of the court or written agreement between the parties.

[6] On the same day, September 12, 2019, the Applicant brought a motion to vary the current temporary, without prejudice, parenting schedule. Specifically, the Applicant requested a temporary order that:

1. The primary residence of Jack be with the Applicant mother during the school year;
2. The Respondent father have parenting time with Jack during the school year every other weekend, from Friday to Monday, and from every Wednesday after school until Thursday morning; and
3. Jack would continue to spend equal time with the parties for all holidays and extended school breaks.

[7] There is a wealth of legal precedent that establishes that it is not wise, in most cases, to change an existing temporary parenting order prior to trial. This is so for a number of reasons:

1. The variation will usually be argued on the basis of affidavit evidence only, as opposed to fully tested evidence through examination-in-chief and cross-examination;
2. The parties should be encouraged to come to a final order as opposed to reworking the existing orders time and time again.
3. It is in the best interests of the child to have stability throughout the proceedings as opposed to being subjected to numerous parenting schedule arrangements.

See M.D. v. N.J., 2016 ONSC 6058; Also: McEachern v. McEachern, 1994 CanLII 7379 (ON SC), [1994] O.J. No. 1544 (Gen. Div.); Grgurich v. Del Ben, 1997 CanLII 12390 (ON SC), [1997] O.J. No. 5134 (Gen. Div.); Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.); Shotton v. Switzer, [2014] O.J. No. 566 (S.C.)

[8] While this court accepts that the status quo should remain in most cases, in this particular case, there was no intention on the part of the parties, or the court, to establish a status quo. The Orders clearly indicate that this parenting schedule was meant to be a temporary situation, in the truest sense, until the matter could be litigated. The week about parenting schedule commenced on June 30, 2019; in other words, during the summer months. Both court orders, created from the minutes of settlement, state that this matter will be revisited at the end of summer, presumably around the time that Jack would start school.

[9] Therefore, while the court accepts that the status quo would typically have a great deal of bearing upon the matter going forward, this court does not find that it has as much bearing upon this case, as it appears that the week about was something the parties wanted to try, short term, in order to see how it worked. In such circumstances, the status quo should not have the same weight as it would otherwise.

[10] In my view, there has been no established status quo that binds the court in this case. Therefore, the court must decide which parenting schedule is in the best interests of the child, Jack, and consider the factors set out in subsection 24(2) of the Children’s Law Reform Act in reaching this decision. This subsection reads as follows:

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, 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[11] In making this determination, this court considers the “best interest” factors set out above, along with all other relevant considerations. No one “best interest” factor is given more importance than the others. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. The child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; Mattina v. Mattina, 2018 ONCA 64; Rigillo v. Rigillo, 2019 ONCA 548.

[12] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. See: Wilson v. Wilson, 2015 ONSC 479.

[13] It is the view of this court that the best interests of Jack are satisfied by a week about shared access schedule. This is so for the following reasons:

1. Jack is entitled to the maximum time with both parents. Neither party appears to take any issue with the fact that Jack has a strong emotional tie with both parents.
2. A week-about parenting schedule will not affect where or when Jack will attend junior kindergarten. No matter which parent he is with, his school will remain in Bracebridge. Both parents will have equal access to information about Jack’s education and experiences while attending junior kindergarten.
3. The Respondent’s current work schedule does not create an issue for a week about parenting schedule. He is able to leave work most days by 4:45 p.m. when Jack is in his care. This allows the Respondent to pick Jack up at the Bracebridge daycare by 5:15-5:20 p.m. each evening, which is before the daycare closes for the day. After pickup, they will drive home, which takes about 30 minutes, and prepare supper. Certainly, the Respondent will drive greater distances to make this parenting schedule work. However, the driving time for Jack is only about 30 minutes to school. This is not an unreasonable distance to be driven.
4. The Respondent’s current work schedule, a job that he commenced in the spring of 2019, allows him flexibility, in that he can make his own schedule during the summer months, and has the ability to work from home from November to April every year. The Respondent clearly intends to spend most of his time with Jack during his parenting time.
5. The Respondent has no difficulty getting Jack to his daycare on time in the morning and, with a slight adjustment to his travel route to work, it takes only an extra few minutes.
6. The Respondent has shown a willingness to reach out to the Applicant if he is unable to care for Jack for a period of 2 hours after the end of daycare, to offer this time to her until he is able to pick him up.
7. The Applicant’s request for a parenting schedule that has Jack seeing his father every other weekend, from Friday to Monday, and one overnight on the off week is less than the parenting schedule that commenced in October 2018.
8. The parenting schedule requested by the Applicant increases exchanges, leading to more instability for Jack.
9. The Respondent agrees to the Applicant’s weeks with Jack corresponding to her weeks with her daughter, Jack’s half sister, Avery.
10. The Applicant agreed to a week about parenting schedule throughout the summer, which suggests to this court that she has no parenting concerns when it comes to the Respondent, despite the various allegations that she raises in her affidavit.

[14] For all of the foregoing reasons, it is in Jack’s best interests to continue on the week about parenting schedule that commenced on June 30, 2019, as ordered by Justice Wood based on the minutes of settlement. This decision is not based on an established status quo, but rather based on what is in Jack’s best interests.

[15] The Applicant’s motion to change the temporary parenting schedule is denied. The week about parenting schedule will continue as per the orders of October 22, 2018 and August 1, 2019, on a temporary basis.

[16] This matter should be scheduled for a further settlement conference / trial scheduling conference as soon as possible.

[17] The parties are entitled to make written submissions with respect to costs. The submissions must be received by the court on or before September 20, 2019.

CHRISTIE J.

Date: September 13, 2019