Court File and Parties
Court File No.: FS-20-97624 Date: 2020-06-05
Superior Court of Justice - Ontario
Re: Marsha Russell v. Vincent Ramcharan
Before: Justice C. Petersen
Counsel: Zahra Taseer, for the Applicant Ms. Russell Emily Banks, for the Respondent Mr. Ramcharan
Endorsement
Introduction
1There are two motions before me, both brought on an urgent basis. No Application has yet been filed in this matter.
2The only urgent issue raised by the motions is the determination of an interim parenting schedule for the parties’ two-year-old daughter, MV. The urgency arises because of police involvement during recent exchanges and mutual withholding of the child’s access to the other parent.
3All other issues raised in the motions are not urgent and are dismissed, without prejudice to the parties’ right to bring the issues back before the court after an Application has been filed and a Case Conference has been conducted. One of the issues in dispute, namely MV’s attendance at a daycare centre during the COVID-19 pandemic, may become an urgent issue in the future, in which case either party may seek leave to bring that issue back before the Court on an urgent basis.
4The parties are engaged in ongoing mediation. This Endorsement contains only temporary parenting orders, which will remain in effect until such time as a Court orders otherwise, or the parties agree in writing to a different parenting plan.
Background Facts
Parenting During the Parties’ Relationship
5The parties had an intimate relationship for over six years. They were not married and did not cohabit. They maintained separate residences throughout the relationship. MV resided with her mother, the Applicant Ms. Russell. MV was breast-fed exclusively until the age of 6 months. She continued to breast feed after solid foods were introduced into her diet. She is currently being weaned at a child-led pace.
6During the parties’ relationship, Ms. Russell and MV regularly visited Mr. Ramcharan’s home, usually to stay the weekend. He also visited their home during the week. He was involved in MV’s life as a father, but Ms. Russell was MV’s primary caregiver throughout the relationship from the time of MV’s birth. Mr. Ramcharan briefly cared for MV on his own for one night in April 2018, when Ms. Russell stayed overnight in a hospital, and for two nights in March 2019, while Ms. Russell travelled to Jamaica for a funeral. He also cared for MV alone on occasions during the day when Ms. Russell was running errands or had other commitments.
7Ms. Russell’s parents lived with her from the time of MV’s birth. They cared for MV during the day when Ms. Russell returned to work after a maternity leave, commencing in April 2019. MV was later registered in a daycare, which she started attending in early August 2019. The daycare is currently closed, due to the COVID-19 pandemic. Ms. Russell’s parents are currently away in Jamaica but they intend to return to Ontario later this month and, after quarantining for 14 days (due to the pandemic), they intend to resume residence with Ms. Russell and MV.
8Mr. Ramcharan deposed that, in anticipation of Ms. Russell’s return to work in April 2019, he adjusted his work schedule to travel less and be home more often. He states that he repeatedly tried to increase the time that he was spending with MV after that point, but Ms. Russell mostly dismissed his requests. Ms. Russell disputes this.
9The relationship eventually broke down and ended on August 25, 2019.
Parenting Post-Separation
10At the time of the parties’ separation, Ms. Russell presented Mr. Ramcharan with a comprehensive draft parenting agreement (“Draft 1”). According to Draft 1, Mr. Ramcharan would have access to MV on the following rotating two-week schedule until MV was 30 months old:
Week 1 Wednesday 3PM to 8PM (9PM in summer months) Friday 3PM to 8PM (9PM in summer months) Sunday 9AM to 7PM (8PM in summer months)
Week 2 Wednesday 3PM to 8 PM (9PM in summer months) Saturday 9AM to 8PM (9 PM in summer months)
11Draft 1 contemplated an increase in Mr. Ramcharan’s parenting time when MV turned 30 months old, specifically the introduction of one overnight visit in week 2 of the rotating schedule, from Saturday at 9AM to Sunday at 7PM (8PM in summer months). Draft 1 further provided that, when MV reached the age of 4 years, Mr. Ramcharan’s parenting schedule would change to alternating weekends from 3PM on Friday to 7PM on Sunday (8PM in summer months), plus Wednesday nights from 3PM to 8PM (9PM in summer months).
12Draft 1 also contained a detailed and complex holiday parenting schedule, including statutory holiday long weekends, Mother’s Day, Father’s Day, Christmas, MV’s birthday and vacation time. The holiday schedule allowed for roughly equal parenting time.
13Draft 1 specified that Mr. Ramcharan would be responsible for all drop offs and pick ups of MV, either at her daycare or at Ms. Russell’s residence.
14In her affidavit in support of her motion, Ms. Russell deposed that the parties have been following the proposed holiday parenting schedule in Draft 1 since September 2019, even though there is no signed agreement between them. Mr. Ramcharan did not contradict this evidence, so I accept that the holiday parenting schedule has been followed since the parties separated.
15Mr. Ramcharan rejected the proposed regular parenting schedule in Ms. Russell’s Draft 1 agreement. He deposed that it “greatly diminished” his role in MV’s life. The parties agreed to attend mediation to try to negotiate a mutually agreeable parenting plan. A mediation meeting was scheduled for December 2019.
16Mr. Ramcharan states that Ms. Russell unilaterally imposed the Draft 1 agreement on him in September 2019 and left him with no choice other than to follow the proposed parenting schedule without signing the draft agreement or else he would not have access to MV. In the fall of 2019, the parties argued over Mr. Ramcharan’s access, but largely followed the schedule proposed by Ms. Russell. There were several occasions when Mr. Ramcharan attempted to negotiate additional time with MV and, on at least one occasion in October 2019, he texted Ms. Russell to say that he would be keeping MV overnight after Ms. Russell refused to agree that he could spend time with her the next day. Ms. Russell picked MV up at his home, so the overnight did not occur. There were other occasions when Mr. Ramcharan refused to drop off MV after his parenting time and Ms. Russell was required to go pick her up from his home.
17The parties attended a mediation meeting on December 2, 2019. Ms. Russell claims that they reached agreement on a regular parenting schedule and have been following the schedule since then. She submitted as evidence an undated interim parenting agreement, which she signed on February 4, 2020, but which is not signed by Mr. Ramcharan (“Draft 2”). Draft 2 was prepared by her lawyer. She deposed that it includes “all that was agreed to at mediation”.
18Mr. Ramcharan denies that an agreement was reached during mediation or that he has acquiesced to the interim schedule in Draft 2. He deposed that he felt pressured to accept Ms. Russell’s demands during the mediation and was upset when he later received the mediator’s draft memorandum of understanding because it did not include any of his demands. He did not sign Draft 2 (which reflected the mediator’s draft memorandum of understanding) when it was forwarded by Ms. Russell’s lawyer.
19Draft 2 sets out the following regular parenting schedule for Mr. Ramcharan:
Week 1 Wednesday from between 8AM and 10AM to 7PM Friday from between 8AM and 10AM to 7PM Sunday from 9AM to 7PM
Week 2 Wednesday from between 8AM and 10AM to 7PM Saturday from 10AM to 7PM
20Draft 2 stipulates that Mr. Ramcharan will pick up and drop off MV at Ms. Russell’s residence, except on Saturday and Sunday evenings when Ms. Russell will pick up MV at his residence. It provides that the start time of his parenting on weekdays will vary depending on Ms. Russell’s work schedule; she will text him the night before to confirm the pick-up time (between 8AM and 10AM). Both of these items are the object of Mr. Ramcharan’s dissatisfaction; he wants exchanges to be shared equally and resents Ms. Russell controlling the start time of his weekday visits with MV.
21Draft 2 provides considerably more parenting time for Mr. Ramcharan on weekdays than Draft 1, but only because of Mr. Ramcharan’s current circumstances. He lost his job in November 2019 and has been unemployed since then. The impact of the COVID-19 pandemic on the Ontario economy has made it particularly difficult for him to find new employment. He therefore currently has free time during week days to spend with MV, but it is anticipated that he will eventually become employed. His parenting time under the Draft 2 schedule will then effectively be limited to evenings and weekends, except for holidays.
22Draft 2 stipulates that, if Mr. Ramcharan is unable to be present during his parenting time on weekdays, MV will attend daycare. If he is unable to care for her on a weekend, then Ms. Russell will have a right of first refusal. Draft 2 does not include a reciprocal right of first refusal for Mr. Ramcharan if Ms. Russell is unable to care for MV.
23Draft 2 provides for an increase in Mr. Ramcharan’s parenting time effective February 8, 2020, to include one overnight from Saturday at 10AM to Sunday at 10:30AM in week 2. It stipulates that Ms. Russell will pick up MV at Mr. Ramcharan’s residence on the Sunday morning.
24Having considered all of the evidence and the parties submissions, I conclude that Mr. Ramcharan he did not agree to the terms set out in Draft 2. On a balance of probabilities, I find that no interim parenting agreement was reached during mediation because there is no signed agreement. However, I accept Ms. Russell’s evidence that the parties followed the terms in Draft 2 post-mediation up until the middle of May 2020. This includes the commencement of one overnight visit in every two-week period, which started happening in early February 2020. The overnight visits at Mr. Ramcharan’s home have occurred without incident.
25Despite following the terms of Draft 2, I find that Mr. Ramcharan did not acquiesce to those terms. Rather, he made it clear that he did not agree with the proposed parenting plan. He did not sign Draft 2. He wrote to the mediator setting out his requested changes to the draft memorandum of understanding that she had prepared. I accept Mr. Ramcharan’s evidence that he felt he had no choice but to follow the interim plan reflected in Draft 2 while awaiting the next mediation meeting, which was scheduled for April 14, 2020. However, he continued to ask Ms. Russell for additional time with MV.
26Between December 2019 and May 2020, he made multiple requests for additional parenting time and for changes to his parenting days to accommodate his schedule. He asked Ms. Russell to switch parenting days with him so that he would not miss time with MV. She was not always willing or able to accommodate his requests. From Mr. Ramcharan’s perspective, Ms. Russell “dictates the schedule and is not flexible”. He deposed that, since December 2019, “she has never made accommodations for any reason. It is her way or nothing.” Ms. Russell denies this and submits that the frequency of his requests makes it difficult for her to make plans and implement structure in MV’s life.
27Mr. Ramcharan was hoping to negotiate a parenting plan at the next mediation meeting that would include “extended access as a gradual increase up to 50/50”. Ms. Russell does not believe that it is in MV’s best interests to split her time equally between the parties, especially at her young age. She is willing to negotiate a graduated increase in Mr. Ramcharan’s parenting time, but not at an accelerated pace, and only up to the parenting time she proposed in her original August 2019 draft agreement (i.e., alternating weekends and one mid-week evening visit starting when MV is 4 years old).
28Unfortunately, the mediator cancelled the mediation meeting scheduled for April 14, 2020 and rescheduled it to May 4, 2020. Ms. Russell then cancelled the May 4 date due to childcare issues and the meeting was not immediately rescheduled. No new mediation date has been fixed, although both parties have indicated their willingness to continue with mediation.
29Mr. Ramcharan believes that Ms. Russell used childcare as a pretext to cancel the May mediation date in order to continue the limited access schedule that the parties have been following since December 2019. He was hopeful that the next mediation meeting would result in another immediate increase in his parenting time and in a plan for further gradual increases in the foreseeable future.
30The parties’ ad hoc parenting arrangement fell apart in early May 2020. The problems began when Mr. Ramcharan asked Ms. Russell to agree to make-up time from May 8 at 9:30AM (his usual Friday access day) overnight to May 9 at 7PM in exchange for MV spending Mother’s Day (May 10) with Ms. Russell, which would otherwise have been his regular Sunday parenting day. Ms. Russell refused because the requested make-up time exceeded the duration of the parenting time that would be missed.
31Mr. Ramcharan then refused to forego his parenting time on Mother’s Day. When Ms. Russell texted him to say she was keeping MV with her on Mother’s Day, he replied stating that he would be picking MV up that Sunday morning, as usual, because Ms. Russell had refused his request for make-up time. He showed up at Ms. Russell’s house on Mother’s Day (May 10) to pick up MV. Ms. Russell refused to open the door. He rang the doorbell and called Ms. Russell repeatedly, leaving voice messages, asking for her to bring MV to the door. He left without MV after about 15 minutes because Ms. Russell threatened to call the police.
32Ms. Russell characterizes his behaviour that day as threatening. She says she was concerned for her safety and fearful of what he would do if she opened the door. However, she provides no evidence of any specific remarks, gestures, or actions that were threatening. The documentary record (submitted by Ms. Russell) shows that Mr. Ramcharan’s texts and phone messages were polite and respectful. He was persistent but there is no evidence that he engaged in any threatening or alarming behaviour.
33MV spent Mother’s Day (May 10) with Ms. Russell. Mr. Ramcharan picked MV up for a regular visit on the morning of the following Wednesday (May 13). She was scheduled to return to Ms. Russell’s home at 7PM that day. At 6:08 PM, Mr. Ramcharan texted Ms. Russell to say he would not be returning MV until the next day at 7PM. He deposed that this was his “only avenue” to make up the missed parenting time on Mother’s Day. Ms. Russell went to his home to pick up MV but he refused to open the door. They spoke on the phone briefly and on FaceTime. Ms. Russell eventually contacted the police, who attended but refused to do anything because the parties had no court order regarding parenting.
34Mr. Ramcharan dropped MV off at Ms. Russell’s home the next day (May 14) at 7PM. His next scheduled access visit was from Saturday May 16 at 10 AM to Sunday May 17 at 10:30 AM. That access took place without incident.
35On May 17 at 6:07 PM, he sent an email to Ms. Russell, attaching a proposed new parenting plan, to commence on May 18, 2020, based on a 2/2/3 schedule, with the parties sharing responsibility for exchanges equally. Ms. Russell responded by email, indicating that she did not agree with the proposed plan. She stated that any changes to the parenting schedule would need to be discussed at the next mediation meeting and could not be implemented unilaterally by Mr. Ramcharan.
36Ironically, Ms. Russell then did precisely that which she had just told Mr. Ramcharan he could not do, namely she advised him of a unilateral change to the holiday parenting schedule that they had been following since separation. She stated that she would not permit MV to be in his care the next day (May 18), which was Victoria Day Monday. She stated that she was denying him access because she did not trust that he would return MV on Monday evening, based on what had happened on May 13 and his intent to unilaterally implement a new parenting schedule. She advised him that she would be contacting her lawyer.
37Mr. Ramcharan replied by email, pointing out that she had cancelled the mediation meeting for an invalid reason without communicating with him. He urged her to “accelerate a final and fulsome parenting plan” that would facilitate MV having equal time with both parents.
38In her affidavit, Ms. Russell deposed that Mr. Ramcharan’s May 17 email message demonstrated a “clear intention to unilaterally change the schedule”. She stated that he advised in his email that “he would be following this schedule from May 18”. This is not an accurate statement. Mr. Ramcharan’s May 17 email messages merely propose a schedule to be implemented effective May 18, 2020. He did not say he would be implementing the proposed 2/2/3 schedule without her consent. Although he had unilaterally withheld MV overnight on May 13 (as make-up time for missed parenting time on Mother’s Day), he subsequently complied with the ad hoc parenting schedule on May 16-17. There was therefore no reasonable basis for Ms. Russell to believe that Mr. Ramcharan was intending to withhold MV’s access to her if he exercised his scheduled holiday parenting time on Victoria Day (May 18).
39When Mr. Ramcharan attended at Ms. Russell’s residence on May 18 to pick up MV, Ms. Russell would not open the door, respond to his texts, or answer his calls. He called the police. A constable spoke with Ms. Russell, then assured Mr. Ramcharan that his regular access would take place on Wednesday May 20, so he left.
40Mr. Ramcharan’s regular parenting time did not resume. He has not seen MV since May 17, 2020 because Ms. Russell would not permit him to exercise any access unless he signed a temporary consent Order reflecting the regular parenting schedule and holiday parenting schedule that Ms. Russell maintains was agreed to at mediation.
41Mr. Ramcharan provided an undertaking, in writing, to comply with the parenting schedule reflected in the mediator’s notes until the end of June 2020, at which point it could be reviewed. Ms. Russell took the position that unless he signed the consent Order, she would not allow any access as she did not trust him to comply with his undertaking and she knew the police would not enforce it without a court order.
42These recent events are what led to the parties filing the urgent motions that are now before the court.
Statutory Framework
43Since the parties were never married, this matter is governed by s.24 of the Children’s Law Reform Act, R.S.O. 1990, c.C-12 (“CLRA”), which includes the following provisions that are relevant to the issue before me:
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(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;
(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.
(3) A person’s past conduct shall be considered only,
(b) if the court is satisfied that the conduct is … relevant to the person’s ability to act as a parent.
44I have omitted the subsections of s.24 of the CLRA that deal with family violence because there is no credible evidence in the record suggesting that any violence or threatening behaviour has occurred.
45Although the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) does not apply to this proceeding, the principle of maximum contact articulated in s.16(10) of the Divorce Act is commonly applied in cases involving unmarried spouses: Duthie v. Junker, 2011 ONCJ 298, at para. 56. It is a trite principle of law that a child's best interests are served by having a loving and meaningful relationship with both parents. A child should be given the opportunity to have as much contact with each parent as is consistent with her best interests. The maximum contact principle includes consideration of the willingness of each parent to facilitate contact with the other parent: Bazinet v. Bazinet, 2020 ONSC 3187, at para. 196.
Parties’ Positions
46In her motion, Ms. Russell is seeking a temporary Order that the parties must follow the parenting schedule set out in the Draft 2 agreement, with Mr. Ramcharan being responsible for most pick ups and drop offs and Ms. Russell having a right of first refusal if he is unable to care for MV during his scheduled parenting time. She is also seeking confirmation of the holiday parenting schedule and several ancillary orders, including a police enforcement order to apprehend MV and return her to Ms. Russell, if Mr. Ramcharan ever breaches the court-ordered parenting schedule.
47In his cross-motion, Mr. Ramcharan is seeking a temporary order setting out a graduated access schedule, with increases in his parenting time commencing immediately and occurring at approximately two-month intervals, culminating in an equal shared parenting schedule, based on 2/2/3, starting in December 2020. The order he seeks would include an immediate additional overnight from Tuesday at 9AM to Wednesday at 7:00 PM in week 1, and two consecutive overnights from Friday at 5PM to Sunday at 7PM in week 2, commencing June 22, 2020. By August 2020, his requested order would include two consecutive overnights in both week 1 and week 2.
48Mr. Ramcharan is asking for the pick-ups and drop-offs to be shared equally by the parties, for a mutual right of first refusal, for make-up access time (including make-up time for the parenting time missed during the past two weeks), and a holiday parenting schedule that is slightly more generous to him than that which Ms. Russell is seeking. He does not want the court to make a police enforcement order, but in the alternative, he submits that any such order should be mutual to allow for the police to apprehend MV and deliver her to him if Ms. Russell fails to comply with the court-ordered schedule.
Analysis and Orders
49In her initial affidavit submitted in support of her motion, Ms. Russell did not raise any concerns about Mr. Ramcharan’s parenting ability. She relied solely on MV’s attachment to her and MV’s need for structure, routine and stability to argue that the status quo arrangement (which she claims was agreed upon in mediation) should remain in effect on an interim basis. However, after Mr. Ramcharan filed his cross-motion, she submitted a further affidavit in which she made claims that, on several occasions during their relationship, Mr. Ramcharan endangered MV’s safety by placing MV on the ground in circumstances where she was at risk of being hit by a vehicle. Ms. Russell deposed that she did not believe Mr. Ramcharan was capable of providing MV with a stable and safe environment.
50I reject this evidence as not credible for two reasons. First, as discussed in paragraphs 32 and 38 above, Ms. Russell has tended to exaggerate and mischaracterize Mr. Ramcharan’s actions to her advantage. Second, I expect that Ms. Russell would have included the alleged incidents in her original affidavit if she had genuine concerns about MV’s safety while in Mr. Ramcharan’s care.
51Ms. Russell also included in her reply affidavit an assortment of accusations against Mr. Ramcharan involving improper and illegal conduct, none of which has any bearing on his parenting abilities. Mr. Ramcharan’s counsel objected to the admissibility of this evidence and I have disregarded it based on its irrelevance.
52The admissible credible evidence in the record shows that both parties are nurturing, caring, competent parents, capable of providing MV with appropriate care to meet her needs. They are both eager to do so. Despite their willingness and ability to parent, neither of them has consistently been child-focused in their recent parenting decisions and actions. In the midst of their parenting dispute, they have had difficulty putting MV’s best interests ahead of their own.
53Both parties have engaged in inappropriate withholding of MV from the other party. Mr. Ramcharan did so on only one occasion, to make up parenting time he missed on Mother’s Day. I am neither condoning nor minimizing the impropriety of his actions on May 13, but Ms. Russell’s most recent conduct is even more egregious. She compromised MV’s best interests by blocking MV’s access to her father (other than FaceTime access) for more than two weeks leading up to the motion hearing.
54Ms. Russell’s actions pose a risk of emotional harm to MV. This Court has recognized that continuing parenting time with both parents is particularly important to children’s wellbeing during the COVID-19 pandemic, because they are otherwise socially isolated. They require the love, affection and emotional support of both of their parents “now more than ever”: Ribeiro v. Wright, 2020 ONSC 1829, at para. 10.
55The fact that Mr. Ramcharan unilaterally and inappropriately withheld MV on May 13 does not justify Ms. Russell’s subsequent prolonged withholding action. Ms. Russell denies that her conduct was retaliatory. She claims that she acted to protect MV because Mr. Ramcharan clearly intended to unilaterally implement a new parenting regime that included prolonged separation of MV from Ms. Russell. However, Mr. Ramcharan had not stated that he was going to unilaterally impose a new parenting regime starting on May 18. He merely made a proposal that he wanted to take immediate effect. With the next mediation meeting indefinitely postponed, he was eager to advance the negotiations directly with Ms. Russell. He was overreaching in his proposal (with an immediate transition to equal parenting time), but Ms. Russell overreacted.
56In the wake of their email exchanges on May 17, 2020, Ms. Russell’s counsel appropriately wrote to the court, seeking leave to file an emergency motion, which was granted. However, rather than pursuing the legal process to a resolution, Ms. Russell engaged in inappropriate self-help tactics. Even after receiving a written assurance from Mr. Ramcharan that he would follow the Draft 2 parenting schedule for the time being, she blocked MV’s in-person access to him in an overt attempt to exert pressure on him to sign a consent Order containing the parenting schedule that she prefers.
57I addressed the issue of MV’s need to have regular access to her father with an interim oral order at the end of the motion hearing on June 2, 2020, stipulating that Mr. Ramcharan would have MV in his care from 9:00AM to 7:00PM on Wednesday June 3, 2020 and Friday June 5, 2020, pending the release of my Endorsement.
58Although the parties have recently demonstrated poor judgment in their parenting decisions, with Ms. Russell employing particularly coercive tactics at MV’s expense, the court’s condemnation of this conduct is not an appropriate basis upon which to determine a parenting schedule. In other words, sanctioning Ms. Russell’s conduct by granting Mr. Ramcharan greater parenting time is not the appropriate approach. A party’s willingness to facilitate access with the other parent is a relevant consideration in determining a child’s best interests, but it is only one of many important factors that must be taken into account.
59Other relevant factors include MV’s emotional ties to her parents and to others who have been involved in her care and upbringing. It is undisputed that MV experiences reciprocal love and affection with both parties. She has emotional ties to both parents, but she possesses a stronger emotional attachment to her mother, who has been her primary caregiver since birth. At MV’s young age, it is important to implement a parenting schedule that recognizes the beneficial sense of stability and security that MV derives from her attachment to her mother, while at the same time promoting the development of a strong bond with her father. At this stage of her development, prolonged absences from Ms. Russell are not in her best interest. Frequent contact with Mr. Ramcharan is in her best interests.
60MV also has emotional ties to her maternal grandparents, who resided with her and cared for her during infancy, and who will soon be returning to live with her and Ms. Russell. Despite their current absence (which has been prolonged due to travel restrictions during the COVID-19 pandemic), they form an integral part of the stable home environment that Ms. Russell has provided for MV since birth. It is important to ensure that the interim parenting schedule takes into account the significant relationship that MV has with her maternal grandparents.
61The interim parenting schedule must also take into consideration the maximum contact principle. It is in MV’s best interests to develop and maintain a meaningful and close relationship with her father. The parenting plan should foster the development of that bond by maximizing the time they spend together. Mr. Ramcharan’s parenting time should include not only MV’s waking hours, when he can engage in activities with her, but also overnight visits because the bedtime routine, responding to her needs if she wakes during the night, and the morning routine are important aspects of parenting and provide opportunities for bonding.
62Ms. Russell submits that it is in MV’s best interests to order enforcement of the Draft 2 parenting arrangement on a temporary but indefinite basis. In support of this submission, she relies on recent case law confirming the importance of maintaining status quo parenting arrangements during the COVID-19 pandemic: C.Y. v. F.R., 2020 ONSC 1875, at para. 13; Berube v. Berube, 2020 ONSC 2591; Ribeiro v. Wright, 2020 ONSC 1829, at para. 11. There is also settled case law, outside of the COVID-19 context, establishing that courts generally do not experiment with new parenting regimes on an interim basis where there is a status quo arrangement under which the child appears to be doing well. Most courts are reluctant to effect a substantial change in the established childcare regime on an interim motion.
63Those cases are, however, distinguishable because there is no status quo parenting arrangement in this case, other than for holiday parenting. The evidence demonstrates that one parenting schedule (Draft 1) was followed by the parties from late August 2019 to the end of November 2019, then a different parenting schedule (Draft 2) was followed from early December to early February 2020, then yet a different parenting schedule (per Draft 2) was followed from early February to mid-May 2020. Each change in the parenting schedule consisted of an expansion of Mr. Ramcharan’s parenting time. There was another mediation meeting scheduled in April 2020 at which the parenting plan was going to be reviewed and possibly modified again.
64There has not been a consistent parenting schedule since the parties separated. Moreover, throughout the entire period since separation, Mr. Ramcharan has followed the terms of the draft agreements only out of fear that he would otherwise be denied any contact with MV. His fear was evidently reasonable, given that Ms. Russell blocked his access starting on May 18, 2020 after he proposed an equal shared-parenting plan going forward. When one party unilaterally imposes a parenting arrangement on the other party in order to create a status quo, the courts will generally be reluctant to condone such conduct by confirming the status quo on an interim application.
65The fact that Mr. Ramcharan reluctantly followed the terms of a parenting plan to which he did not agree is not an indication that he believed the ad hoc parenting arrangement was in MV’s best interests. Rather, he is clearly of the view that it is in MV’s best interests to spend equal time with each of her parents. However, he acknowledged in his motion materials and during the motion hearing that an immediate move to equal shared parenting time would not be in MV’s best interests.
66I make no finding with respect to whether an eventual equal shared parenting plan is in MV’s best interests. My decision on this interim motion focuses only on MV’s short-term needs. If the parties are unable to resolve their parenting dispute via mediation, a final determination of the long-term parenting plan will need to be made after a trial.
67In the short-term, I agree with Mr. Ramcharan that MV will benefit from spending more time with him. Additional parenting time is required to solidify their bond and nurture their relationship. However, the maximum contact principle is not absolute; the principle holds that a child should be given the opportunity to have as much contact with each parent as is consistent with her best interests. Each child’s needs and interests vary depending on her particular circumstances, including her age. I agree with Ms. Russell that, at this stage of MV’s development, given the history of her care, it is not in MV’s best interests to spend consecutive overnights away from Ms. Russell.
68Although Mr. Ramcharan has been a consistent presence in MV’s life, MV has always resided with her mother and only recently (4 months ago) began to have overnight visits away from her mother at his home. Even prior to the parties’ separation, MV did not live with her father. She only stayed overnight at her father’s house when she was accompanied by her mother (except on two occasions when Ms. Russell was unable to care for her).
69Given these circumstances, a rapid, albeit incremental, move toward full weekend visits or consecutive overnight mid-week visits is not in MV’s best interests. It would be too disruptive to the only parenting regime that she has ever known. She needs time to adapt to the overnight separation from her mother before the duration of those separations is lengthened. The incremental increase in Mr. Ramcharan’s parenting time needs to be implemented gradually over time so has not to disrupt MV’s sense of security, which is largely grounded in the stability of Ms. Russell’s home environment.
70Taking all the above factors into consideration, I conclude that the following temporary parenting schedule is in MV’s best interests:
EFFECTIVE IMMEDIATELY Week 1 Wednesday from 9AM to 7PM Friday from 9AM to 7PM Sunday from 9AM to 7PM
Week 2 Wednesday from 9AM to 7PM Saturday from 10AM to Sunday 10:30AM
EFFECTIVE JUNE 15, 2020 Week 1 Tuesday 7PM to Wednesday at 7PM Friday from 9AM to 7PM Sunday from 9AM to 7PM
Week 2 Tuesday 7PM to Wednesday at 7PM Saturday from 10AM to Sunday 10:30AM
EFFECTIVE AUG. 10, 2020 Week 1 Tuesday 9AM to Wednesday at 7 PM Friday from 9AM to 7PM Sunday from 9AM to 7PM
Week 2 Tuesday 7PM to Wednesday at 7PM Saturday from 10AM to Sunday 10:30 AM
EFFECTIVE OCT. 19 2020 Week 1 Tuesday 9AM to Wednesday at 7PM Friday from 9AM to 7PM Sunday from 9AM to 7PM
Week 2 Tuesday 9AM to Wednesday at 7PM Saturday from 10AM to Sunday 10:30 AM
71Daily FaceTime access with both parents shall continue.
72The parties are encouraged to continue their mediation efforts to arrive at a settlement on a long-term parenting plan. The above temporary plan extends into October 2020 only because the court recognizes the possibility that an agreement may not be reached, despite their best efforts, in the next four months.
73The holiday parenting schedule is not an urgent issue. In any event, there is a status quo arrangement for holidays, set out in Draft 1. That Draft 1 holiday schedule shall continue to be followed by the parties on a temporary without prejudice basis, until such time as they reach a final agreement on parenting or a court orders otherwise.
74Exchanges shall be shared equally. Each party is responsible for picking up MV at the other party’s residence at the beginning of their parenting time.
75Consistent with the principle of maximum contact, Mr. Ramcharan shall have a right-of-first refusal on occasions when Ms. Russell is unable to care for MV for an extended period (i.e. more than two hours), for reasons other than her regular employment. This is particularly important during the COVID-19 pandemic, when public health guidelines dictate social distancing from everyone other than household members. It is in MV’s best interests, therefore, not to be cared for by third parties.
76If Ms. Russell is unable to care for MV for a shorter period than two hours, her parents (who reside in the household) can safely provide care. Ms. Russell is therefore not required to offer Mr. Ramcharan the opportunity to care for MV if she needs childcare for less than two hours. To order otherwise could result in MV being shuttled back and forth between her parents’ households for visits of extremely short duration, which would not be in her best interests.
77This right of first refusal shall be reciprocal. Ms. Russell must similarly be offered the option to care for MV if Mr. Ramcharan is unable to do so during his scheduled parenting time. It is not apparent from the evidence in the record who else could provide childcare in Mr. Ramcharan’s absence (particularly during the COVID-19 pandemic), so no time restriction will be imposed on Ms. Russell’s right of first refusal. If Mr. Ramcharan is unable to care for MV during his scheduled parenting time, for any amount of time, then he must provide Ms. Russell the opportunity to care for MV during his absence (which may be for only part of his scheduled parenting time) before securing a third-party caregiver.
78Both parties must give the other parent reasonable notice of their inability to care for MV so that the right of first refusal can be meaningfully exercised.
79To promote MV’s best interests, both parties must be flexible and shall accommodate the other’s reasonable requests for MV to attend important family functions (eg. weddings, birthday and anniversary celebrations) or other significant events with them, even if the event is not during their scheduled parenting time.
80Mr. Ramcharan asks the court to make an order for specific make-up time on occasions when his parenting time is cancelled. He seeks an order for any missed time to be made up within a two-week period. He also seeks an order that there be make-up access visits for the parenting time missed between May 18 and June 2, 2020, to be rescheduled within one month.
81Whether make-up time is appropriate in any given case, and in what amount, must be based on a determination of the best interests of the child, taking into account all of the relevant circumstances, including the magnitude of the make-up time sought: Balice v. Serkeyn, 2016 ONCA 372, at para. 17. Mr. Ramcharan recently missed two full consecutive weeks of parenting time with MV because of Ms. Russell’s actions. In these circumstances, it is in MV’s best interests to have some additional parenting time with her father in the near future, but it is not feasible to reschedule all the missed time without creating significant disruption in MV’s parenting routine (which is not in her best interests). I therefore order that the missed parenting time be partially made-up as follows:
Sunday June 7, 2020 Mr. Ramcharan’s parenting time (which starts at 9AM) shall be extended to include overnight. On this occasion only, Mr. Ramcharan will be responsible for returning MV to Ms. Russell’s home at the end of his parenting time at 9:00 AM on Monday June 8, 2020.
Sunday June 14, 2020 The termination of Mr. Ramcharan’s parenting time will be extended from 10:30 AM to 7PM.
Sunday June 28, 2020 The termination of Mr. Ramcharan’s parenting time will be extended from 10:30 AM to 7PM.
82I hesitate to order make-up time generally, because of the potential that negotiations over make-up time can lead to conflict between the parties, as it did surrounding Mothers’ Day in May 2020. However, if there is no make-up time order, the parties’ flexibility will be disincentivized. Moreover, the principle of maximum contact favours an order for make-up time for Mr. Ramcharan.
83I therefore conclude that the following order is in MV’s best interests. In the event that Mr. Ramcharan’s parenting time is cancelled due to a request by Ms. Russell to have MV attend a family function or significant event with her, he shall be entitled to a make-up visit of equal duration. He shall provide Ms. Russell with three options for a make-up visit within two months of the missed parenting time. The options shall not include consecutive overnights. Ms. Russell shall choose one of the three options provided by Mr. Ramcharan. This order is reciprocal and applies equally to requests by Mr. Ramcharan to have MV attend a family function or significant event with him outside of his scheduled parenting time. On those occasions, Ms. Russell shall provide Mr. Ramcharan with three options for make-up time and he shall select one of the options provided. It is anticipated these events will occur infrequently to minimize disruption to MV’s parenting regime.
84In light of the parties’ mutual right of first refusal, they shall accommodate each other’s reasonable requests to exchange parenting time (days or overnights) in order to accommodate vacation or unforeseeable events, such as a death of a close friend or family member, grave illness, or a non-routine work commitment that cannot be rescheduled. These requests should occur infrequently in order to minimize disruption to MV’s parenting regime. Such exchanges shall be for the same duration of time and shall not result in two consecutive overnights with Mr. Ramcharan. The implementation of the holiday schedule shall not result in any make-up time.
85Finally, I decline Ms. Russell’s request to make a police enforcement order. There is no evidence before me that would warrant such an order. Furthermore, police involvement could potentially be traumatic for MV, so it should be discouraged in the absence of a compelling reason to order it.
86The parties are encouraged to negotiate a settlement with respect to costs of these motions. If they are unable to reach agreement, they may make brief written submissions to the court. The costs submissions shall not exceed 2 pages and shall be accompanied by a Bill of Costs and by any relevant Offers to Settle. Submissions must be delivered to the opposing party by email and submitted to the court by email, addressed to my attention. If neither party makes submissions by June 26, 2020, there will be no order for costs.
Petersen, J.
DATE: June 5, 2020