Court File and Parties

Court File No.: Woodstock File 10707/16 Date: 2019-07-05 Superior Court of Justice – Ontario Family Court

Re: Deborah Ruth Hunter, Applicant And: Daryl Hunter, Respondent

Before: Justice I.F. Leach

Counsel: Ms Camara, counsel for the Applicant (present) Ms Walters, counsel for the Respondent (present)

Heard: July 5, 2019

Endorsement

[1] Time constraints prevent a more fulsome endorsement in relation to the Applicant’s motion and Respondent’s cross-motion, and the nature of the narrow substantive issues and relief involved inherently will make the decision I am about to make something incapable of revisiting in any event after this weekend.

[2] For present purposes, suffice it to say that I have reviewed and considered the parties’ motion material at length yesterday evening and this morning, as well as counsel submissions delivered a short time ago.

[3] The narrow substantive issue is where the two surviving children should spend this evening through to Monday morning, having regard to the fact that their parents have committed the children to both attending two separate but simultaneous wedding celebrations taking place many miles away from each other, (i.e., with their maternal uncle being married in Beamsville, and their close friend and cousin by marriage being married in the Kawarthas area), effectively rendering the participation of both children in each celebration impossible.

[4] The Applicant wishes the children to attend their uncle’s celebration, wherein the child Hanna is a contemplated flower girl.

[5] The Respondent wishes the children to attend the cousin’s celebration, wherein Gabriel is the contemplated ringbearer, and Hanna a contemplated flower girl.

[6] Unfortunately, the children, no doubt oblivious to the timing conflict, have been advised of both celebrations, were looking forward to attending and participating in both, and committed (to the extent they had a say), to attending both.

[7] In the circumstances, both children now have been put in an extremely unfortunate situation where they inadvertently will experience some degree of disappointment, and possible guilt for having, for reasons beyond their control and 10-year-old sensibilities, disappointed someone now apparently very important in their lives, as well as each “side” of their new extended families looking forward to their presence and participation this weekend.

[8] In my view, that scenario is clearly attributable to the parties’ ongoing inability to communicate effectively. In that regard, I think the Applicant arguably bears the larger degree of responsibility, insofar as:

a) the court ordered schedule and established pattern clearly placed the children in the Respondent’s care this weekend, barring an agreed upon deviation, (with the summer access not yet established by agreement or court order if necessary);

b) the Applicant spoke to the children about her brother’s wedding, but not the Respondent;

c) the Applicant simply seems to have assumed the 10-year-olds would adequately share that information with their father in a timely way, without formally raising the matter, via correspondence, until a relatively short time ago – i.e., in May 2019, after the children had been committed to participation in the Kawarthas celebrations; and

d) the Applicant similarly assumed there would be an accommodation possible on the part of the Respondent, and his new extended family shared by the children.

[9] However, for his part, while admittedly entitled to assume the children would be in his care as per the court ordered schedule, the Respondent did not make the Applicant aware, before responding to the Applicant’s indications regarding this weekend, that the children had plans to be travelling to and participating in the Kawarthas celebrations.

[10] In any event, the reality is that such communication failures, (from which the parties hopefully will draw valuable lessons moving forward), have placed the children in an unfortunate position beyond their control, through no fault of their own, with inevitable feelings of disappointment and guilt for the reasons I have mentioned.

[11] I approach this matter not from the perspective of pleasing either party, or imposing a “victory” or vindication (or corresponding loss) on one or the other, but with a view to minimizing those detrimental impacts on the children.

[12] In that regard, I frankly am unable, based on the conflicting affidavit evidence, to determine with any reliability which marrying party has a closer relationship with the children in terms of emotional bonding. Certainly, the uncle has a closer relationship in terms of blood kinship and degree of affinity than a cousin by marriage. However, case after case before this court has made it clear that emotional bonding is not determined by such matters alone. The evidence before me suggests that each marrying party is important to the children, and that the relevant bonds have developed strongly, in large measure, after the parties’ separation. I frankly am sure the children do not wish to disappoint either.

[13] As I expressed to the parties and their counsel, and which no one really disputes, there is no perfect solution to this unfortunate situation. The children realistically cannot both attend each wedding, neither of which realistically can be rescheduled to accommodate their presence.

[14] However, the preliminary view I expressed to the parties at the outset of oral submissions frankly remains the same; i.e., that the “least imperfect” solution is not the binary choice of sending both children to one venue or the other, but the alternative of having the court-ordered schedule altered, on an exceptional basis, so as to permit Hannah’s attendance at her uncle’s celebration while Gabriel attends the celebrations in the Kawarthas; i.e., with Gabriel remaining in his father’s care as per the existing schedule.

[15] In my view, that imperfect solution will mitigate the unfortunate effects of this situation in the following ways, (while inevitably not permitting each child the satisfaction of participating in both ceremonies):

i) Each child will have a special role in the ceremony in which he or she participates – and indeed likely will be the focus of increased attention in the absence of his or her sibling.

ii) Each child will know and realize that their uncle and cousins have not been disappointed or had their wedding plans disrupted in their entirety – as they undoubtedly will otherwise come to know and forever remember going forward in life;

iii) Each hopefully will have a compensatory and ironically “bonding through separation” experience, if the parties emphasize that the children are a team effectively working together to assist two people important in their lives, neither of whom the children wish to disappoint, and can thereafter, (or perhaps even during the week-end, if phone, I-pad or other devices permit), reinforce that “ team-work” by keeping each other apprised of their respective experiences directly; i.e., not through the medium of the parties. In short, while it may be the height of optimism to look for a silver lining in this situation, each child simultaneously will have his or her own unique but shared adventure, as they separate, apparently for the first time, this week-end.

[16] An order therefore will go granting the Applicant’s requested relief in relation to the child Hannah, but denying that relief in relation to the child Gabriel.

[17] Conversely, the Respondent’s motion is successful, to the extent of having the Applicant’s motion dismissed in relation to the child Gabriel, (with his schedule to remain unchanged), but unsuccessful in resisting the Applicant’s motion in relation to Hannah.

[18] There will, as well, be an order entitling the Respondent to corresponding “make up time” with the child Hannah at a time this summer, to be agreed or determined on further motion to the court, (which hopefully can be avoided), thereby enabling each child to have further “one-on-one’ time with one of his/her parents.

[19] Regarding costs: as substantive success on the motion has been divided, and with a view to avoiding further exacerbation of the parties’ interactions with each other, there shall be no costs awarded in relation to either motion; i.e., with each party to bear their own costs.

Justice Ian F. Leach

Date: July 5, 2019