Court File and Parties

COURT FILE NO.: FC-19-383 DATE: 2020-07-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tyler Hearty, Applicant (the “Father”) AND Julie Hearty, Respondent (the “Mother”)

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Katherine Shadbolt / Alison Boyce, Counsel for the Applicant Pierre Ranger, Counsel for the Respondent Cheryl Hess, Counsel for the Office of the Children’s Lawyer

HEARD: June 11, 2020 by telephone conference

Endorsement

M. Smith J

[1] The Applicant Father had brought a motion seeking to prevent the Respondent Mother from changing the schools of their two youngest children (Max and Lucas) and seeking to prevent the Mother from moving all three children outside of the youngest child’s current school district (Barrhaven to Orleans).

[2] On June 18, 2020, I granted the following: (1) permission to the Mother to move Max and Lucas to Orleans; (2) an order that Max remains enrolled at St. Mother Teresa’s High School, unless he is accepted in the Care and Treatment Program; and (3) an order that Lucas to be enrolled at Convent Glen Catholic School.

[3] I indicated in my decision that I was prepared to make a modest increase to the Father’s parenting time with Lucas to reflect some of the challenges posed by the Mother’s relocation to Orleans. The parties were unable to agree. The Father, Mother and the Office of the Children’s lawyer provided their respective written submissions regarding changes to the parenting time and transportation.

Position of the Father

[4] The Father’s proposed parenting time schedule can be summarized as follows:

a. During the summer, every Tuesday (4:00 p.m. – Mother drops off Lucas at Father’s home) until Wednesday (4:00 p.m. – Father drops off Lucas at Mother’s home); every Thursday (4:00 p.m. – Mother drops off Lucas at Father’s home) until Friday (4:00 p.m. – Father drops off Lucas at Mother’s home); alternating weekend from Friday (4:00 p.m.) until Monday (9:00 a.m. – Father drops off Lucas at Mother’s home).

b. During the School year, every Tuesday (4:45 p.m. – Mother picks up Lucas from school and drops off Lucas at Father’s home) until Wednesday (3:45 p.m. – Mother picks up Lucas from school and takes him to her home); every Thursday (4:45 p.m. – Mother picks up Lucas from school and drops off Lucas at Father’s home) until Friday (3:45 p.m. – Mother picks up Lucas from school and takes him to her home); alternating weekend (commencing September 4, 2020) from Friday (4:45 p.m. – Mother picks up Lucas from school and takes him to Father’s workplace) until Monday (8:00 a.m. – Mother will pick up Lucas at the Father’s workplace). In the event that Lucas’ school does not re-open or require the physical presence of the child because of COVID-19, the summer schedule to apply.

c. For the summer 2020, the Father will have uninterrupted holiday time with Lucas from August 8, 2020 until August 16, 2020.

[5] The Father urges the Court to adopt his proposal for the following reasons:

a. It reflects the parenting schedule that Lucas has been accustomed to since the Order of Justice Phillips on March 2020;

b. It maximizes time between Lucas and the Father, consistent with Lucas’ wishes of spending equal time with both parents. Lucas thrives when the time with his father is increased;

c. It ensures that the driving is shared between both parents, with an increase to the Mother as a consequence of moving to Orleans; and

d. The schedule is most simple for Lucas and does not prejudice the Father’s work schedule and the previously arranged times to care for Lucas during the days on Wednesday and Fridays when school is not in session.

[6] The Father says that the Mother’s proposal is not acceptable as it does not follow the status quo, it reduces one overnight from the Father’s parenting time and it increases the traveling time because in each alternating week, Lucas is shuttled back and forth in a very short period of time.

Position of the Mother

[7] The Mother’s proposed parenting time schedule can be summarized as follows:

a. The week following the Mother’s weekend, on Tuesday (5:30 p.m. – Father to pick up Lucas at Mother’s home) until Thursday (8:30 p.m. – Mother to pick up Lucas at Father’s home). The Mother is responsible for driving Lucas to school on Wednesday and Thursday morning.

b. The week following the Father’s weekend, on Wednesday (5:30 p.m. – Father to pick up Lucas at Mother’s home) until Thursday (8:30 p.m. – Mother to pick up Lucas at Father’s home).

c. Effective July 10, 2020, every altering weekend from Friday (4:00 p.m. – Father will pick up Lucas at Mother’s home) until Sunday (8:30 p.m. – Mother to pick up Lucas at Father’s home) or until Monday (8:30 p.m. if such Monday is a statutory holiday or PD day);

d. For the summer 2020, the Mother accepts the Father’s proposal to have uninterrupted holiday time with Lucas from August 8, 2020 until August 16, 2020. The Mother will have uninterrupted holiday time with Lucas from August 31, 2020 until September 7, 2020.

[8] The Mother highlights in her proposal that she is offering to travel to Barrhaven in the mornings when school resumes, whereas the Father would be responsible for travel in the afternoons. She will also be picking up Lucas on Sunday evenings and driving him to hockey practices and games, while Lucas is in her care.

The Office of the Children’s Lawyer (“OCL”)

[9] The OCL has not been able to discuss the most recent proposed schedules with Lucas. In the past, Lucas has expressed his desire to spend equal time with both parents and he prefers not having an alternating week schedule. He also does not want to stay overnight on Sunday as it would be too difficult for his Father to drive him to school on Monday morning.

[10] The OCL reiterates its suggestion to limit the travel time between both homes and that the exchanges occur in a neutral location such as the school, as often as possible. It is preferable that Lucas not be subjected to the tension between the parents.

Analysis

[11] In accordance with Justice Phillips’ Order dated March 3, 2020, Lucas’ time with his Father was set as follows:

a. Every Tuesday commencing after school until drop off at school on Wednesday morning;

b. Every Thursday after school until drop off at school on Friday morning;

c. Every alternating weekend from Friday after school until Monday morning drop off at school.

[12] In determining a new parenting schedule that is in Lucas’ best interest, I have considered these factors:

a. The parenting schedule that was put into place by Justice Phillips has been working well for Lucas and a modest increase in parenting time should model the existing Order;

b. Changes to the existing parenting schedule should be made with the least possible disruption to Lucas;

c. Traveling time should be kept to a minimum;

d. To avoid parental conflict, exchanges are to occur in a neutral location, as often as possible. When school is in session, this location is to be chosen. Otherwise, they are to occur at the parties’ respective homes;

e. In moving to Orleans, the Mother accepts to bear some added responsibilities for driving Lucas; and

f. Uninterrupted holiday time should not take place while Lucas is in school.

[13] I have considered both proposals and find that the one that most satisfies Lucas’ interest is the Father’s, with some changes. Paragraphs 6 and 7 of Justice Phillips’ Order dated March 3, 2020 will be replaced with the Order that follows:

a. Commencing forthwith and for the remainder of the summer, Lucas shall be with the Father as follows:

i. Every Tuesday commencing at 4:00 p.m. until Wednesday at 4:00 p.m. The Father will pick up Lucas at the Mother’s home on Tuesday. The Mother will pick up Lucas at the Father’s home on Wednesday.

ii. Every Thursday commencing at 4:00 p.m. until Friday at 4:00 p.m. The Father will pick up Lucas at the Mother’s home on Thursday. The Mother will pick up Lucas at the Father’s home on Friday.

iii. Commencing the weekend of July 10, 2020, alternating weekends from Friday at 4:00 p.m. until Monday at 9:00 a.m. The Father will drop off Lucas at the Mother’s home.

b. Upon school commencing in September 2020, and provided that Lucas’ physical presence is required at school, Lucas shall be with the Father as follows:

i. Every Tuesday commencing at 4:45 p.m. until Wednesday at 3:45 p.m. The Father will pick up Lucas from school on Tuesday afternoon. The Mother shall pick up Lucas from the Father’s home on Wednesday morning and take him to school. The Mother shall pick up Lucas from school on Wednesday afternoon and take him back to her home.

ii. Every Thursday commencing at 4:45 p.m. until Friday at 3:45 p.m. The Father will pick up Lucas from school on Thursday afternoon. The Mother shall pick up Lucas from the Father’s home on Friday morning and take him to school. If it is the Mother’s alternating weekend, she shall pick up Lucas from school on Friday afternoon and take him back to her home. Otherwise, the Father shall pick up Lucas from school on Friday afternoon.

iii. Commencing the weekend of September 4, 2020, alternating weekend from Friday at 4:45 p.m. until Monday at 9:00 a.m. The Father shall pick up Lucas from school on Friday afternoon and drop off Lucas at school on Monday morning. If the Monday is a school holiday, PD day, or statutory holidays, and falls on the Father’s parenting weekend, his access will be extended until Monday at 7:00 p.m. on that date. In such an event, the Father will drop off Lucas on Monday evening at the Mother’s home.

c. If Lucas’ school does not re-open or require the physical presence of Lucas at the school due to COVID-19 and holds online classes only, the summer schedule outlined at paragraph (a) above shall prevail and continue.

d. The parties may alter the access schedule as mutually agreed upon by the parties in advance and in writing.

e. For the summer 2020, the Father will have uninterrupted holiday time with Lucas from August 8, 2020 at 4:00 p.m. until August 16, 2020 at 4:00 p.m. The Father will pick up Lucas on August 8, 2020 and drop off Lucas on August 16, 2020, at the Mother’s home.

f. For the summer 2020, the Mother will have uninterrupted holiday time with Lucas from August 31, 2020 until September 7, 2020, provided that Lucas is not in school. In the event that school commences during the Mother’s holiday time, the Mother shall select another week of uninterrupted holiday time, other than from August 8, 2020 until August 16, 2020, and advise the Father of her new selected holiday time by no later than July 13, 2020.

g. Lucas shall be registered with the Nepean Raiders for his hockey league on an ongoing basis. Throughout the hockey season, when there are games, practices and/or tournaments, the parent with whom Lucas is staying with at the time will be responsible to drive Lucas to his hockey games, practices and/or tournaments.

h. The Father will be responsible for driving Lucas to any hockey games or tournaments outside of the City of Ottawa.

i. All other terms found in Justice Phillips’ Order dated March 3, 2020, will remain in full force and effect.

Costs

[14] I maintain that the success of the Motion is shared, and it appears to me that the parties should bear their own costs. That said, if either party wishes to argue a different result, they may do so by following the process outlined in my original decision. The 30 days shall commence as of today. If no submissions are received, there will be no order as to costs.

M. Smith J

Released: July 8, 2020

COURT FILE NO.: FC-19-383 DATE: 2020-07-08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Tyler Hearty Applicant (the “Father”) -and- Julie Hearty Respondent (the “Mother”) REASONS FOR JUDGMENT Justice Marc Smith Released: July 8, 2020