OSHAWA COURT FILE NO.: FC-19-2033
DATE: 20200910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kendra Smith
Applicant
– and –
Michael Thomas Jefferies
Respondent
Kristen Normandin and Cara Senese, for the Applicant
Marcy Segal, for the Respondent
HEARD: September 3, 2020
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] The applicant mother lives in Bowmanville. The respondent father lives in Scarborough. Since January 2019 they have exercised a shared parenting schedule in which their daughter, K., d.o.b. August 25, 2016, resides with each parent on a week-about basis.
[2] The daughter is about to begin junior kindergarten. Given the distance between the two residences (approximately 50 km or 35-60 minutes by car, depending on the traffic) the parties have concluded that the week-about schedule will no longer work. At a case conference held August 7, 2020, Rowsell J. made an order permitting the parties to bring a motion regarding school enrolment and the parenting schedule.
[3] The mother has brought a motion that the child reside primarily with her and attend school in Bowmanville.
[4] The father has brought a cross-motion that the child reside primarily with him and attend school in Scarborough.
Facts
[5] The parties began dating in 2014 and were never married. They are both employed as full time construction workers. They have one child, born in August 2016. The parties’ relationship finally broke down in December 2018. Each accuses the other of being verbally and physically abusive, each denies the other’s allegation.
[6] Prior to their separation, the parties lived at the respondent’s parents’ home in Scarborough. The applicant moved out of the home with the child in November 2018. Since January 2019 they have exercised a shared parenting schedule with the child residing with each parent on a week-about basis.
Position of the Parties
[7] The applicant mother is proposing that K. reside with her and her family in Bowmanville, and that the respondent shall have parenting time with K. on alternating weekends from Friday pick up after school (or 4:00 p.m. if no school) to Sunday evening at 7:00 p.m. and one mid-week evening visit from pick up after school (or 4:00 pm at the applicant’s residence if no school) and return to the applicant’s residence at 7:00 p.m. The applicant has also proposed additional parenting time for the respondent on two out of three long weekends and various other school and statutory holidays, and a return to week-about parenting during the summer vacation.
[8] The applicant mother takes the position that prior to the parties’ separation, she was solely responsible for the child’s care. Since the separation she has been primarily responsible for child care. Conversely, she alleges that the respondent father delegates most of his child care responsibilities to his mother during his parenting time. The applicant alleges that between January 2019 and March 2020 she was responsible for almost all the driving between Bowmanville and Scarborough.
[9] The applicant also alleges that the respondent was physically and verbally abusive during their relationship, and she was forced to ask for police help to remove herself from the relationship.
[10] The applicant argues that K.’s “support system” is located in Bowmanville. Her pediatrician since September 2019 is in Bowmanville. Her dentist is located in Bowmanville. She attends the local dance school, “minihoops” basketball and children’s events at the Bowmanville library. K. is close to the applicant’s family, including K.’s maternal grandparents and uncle who live with her in Bowmanville.
[11] The applicant states that K. has many friends in Bowmanville who live close by, and will attend the same school in Bowmanville that K. will attend.
[12] The respondent father is proposing that K. reside with him and his family in Scarborough, and the applicant mother will have parenting time with K. the first three weekends of each month, commencing Friday pick up after school (from school or his residence) until Sunday at 7 p.m. pick up in Bowmanville, and one overnight during the week, pick up after school and return to school the next morning, or two evenings a week after school until 7:00 p.m. The respondent has also proposed additional parenting time for the applicant on long weekends and various other school and statutory holidays, and a return to week-about parenting during the summer vacation. The respondent lives only 2.6 km from Highway 401, and this will facilitate pick ups or drop offs at his home.
[13] The respondent father takes the position that the parties all resided in Scarborough together until the applicant mother left to reside in Bowmanville. This move interrupted K.’s routine. Since it was the applicant who moved to Bowmanville, she should not be permitted to change the child’s primary residence.
[14] Prior to the applicant moving to Bowmanville, K.’s doctor was in Scarborough, she went to daycare in Scarborough, and she was involved in community activities in Scarborough.
[15] The respondent states that if K. resides with him in Scarborough his parents will be able to take her to and from school.
[16] The respondent alleges that the applicant and her family consume excessive alcohol and that their residence is in disrepair. He has contacted the Durham Children’s Aid Society (DCAS) several times because he is concerned for K.’s safety. In contrast, his own parents are “both hard working and hold respectable job positions” and have acquired a beautiful home and cottage.
[17] The respondent also has custody of a 12 year old daughter from a previous relationship. He argues that the K. and his other daughter are extremely close, and that primary residence in Scarborough will enable the siblings to continue their close relationship.
[18] The respondent also alleges that the applicant generally works in the Toronto area, and that she must drive past Scarborough on the way to and from work every day. As such, she can easily pick up and drop off K. on the one or two mid-week parenting times he is proposing. He also notes that the applicant’s proposed schedule would actually give him only one long weekend during the school year.
[19] Contrary to the applicant’s position, the respondent alleges that he took paternity leave for approximately eight months and cared for K., while the applicant returned to work shortly after K. was born. He also disputes the applicant’s contention that he delegates most of his parenting responsibilities to his mother. The applicant states that whenever he is not working he spends a significant amount of time with both of his daughters at various child centred places and the family cottage.
[20] In her reply affidavit the applicant denies that anyone in her family abuses alcohol. As indicated below at para.31, the convictions of her mother and uncle for drinking and driving both occurred before K. was born.
[21] She states that the respondent has made 3 complaints about her and her family to the DCAS, the last being on August 19, 2020, six days after she had served her Notice of Motion. The DCAS has confirmed that it has no concerns with her or her family’s ability to care for K. A copy of the DCAS letter of August 25, 2020, confirming that the DCAS has completed its investigation and closed her file is attached to her reply affidavit. The applicant alleges that these unfounded complaints to the DCAS are a form of harassment, and are stressful for their daughter, who must be interviewed for each CAS investigation.
[22] The applicant also states that, as a construction worker, her work location changes, and she does not always drive into Toronto.
Analysis
[23] The primary issue for this court to determine on this motion is K.’s primary residence pending the hearing of the main Application. This issue comes to a head now because the parties live 35-60 minutes apart, and, now that K. is about to start school, the parties agree that the existing week-about schedule is no longer practicable.
[24] There is no dispute that the court must make this determination based on the best interests of the child. Often in such cases, “best interest” is determined by maintaining the status quo: Ursic v. Ursic, 2006 CanLII 18349 (ONCA), at para. 32; De Matos v. De Matos, 2015 ONSC 4554, at para. 18. The status quo is particularly important in an interim motion because the court is often not in a position to make factual findings if there are, as in this case, conflicting affidavits.
[25] As noted by Audet J. in Trudel v. Ward, 2019 ONSC 5047, at para. 10, the court must be mindful of the fact that this decision, which is interim in nature, is likely to establish a status quo that may be very difficult to change in the context of a trial that might take place over a year from now.
[26] Given K.’s age and history, there is no real “status quo” that can be preserved pending the application. K. has never before gone to school. She has lived briefly in Scarborough and briefly in Bowmanville. The only real “status quo” is the nearly two years of week-about access arrangement that all recognize is not practicable once K. begins school.
[27] I also note that Scarborough and Bowmanville are not so far apart. They are both in the Greater Toronto Area (GTA), and a 35-60 minute commute is not uncommon for separated parents within the GTA. Indeed, had the applicant remained in Toronto, the parties could still live 35-60 minutes (or more) apart.
[28] Moreover, the applicant alleges that she returned to her family home in Bowmanville because the respondent was physically and verbally abusive. While these allegations are not yet proven, it would be unfair at this stage to penalize the applicant for removing herself from an allegedly abusive relationship and returning to Bowmanville where her family support resides.
[29] The main issue in this case is not where K. should go to school, it is where she should have her primary residence. From an educational perspective, there is no reason to prefer one school over the other. I do not doubt that she will receive an excellent junior kindergarten experience in either Scarborough or Bowmanville, and that she will make friends wherever she goes. The choice of school will be determined by her primary residence.
[30] Both parents have put forward a reasonable parenting plan for K. Both parents work and will rely, to some extent, on their extended family to help with child care. Both parents claim that their extended families love K., and that K. has established strong bonds with both families. Given the week-about access that has prevailed for almost two years, I accept this evidence from both parties, which demonstrates that the week-about access was accomplishing what was intended.
[31] There are historical criminal convictions in both families. The applicant’s mother and uncle, with whom she is now living, have both been convicted of driving under the influence, although both of these convictions pre-date K.’s birth. The respondent was convicted of assaulting his previous spouse in 2002, for which he received 18 months probation. Given the historical nature of these convictions, they do not play a significant role in my analysis.
[32] Section 24 of the Childrens’s Law Reform Act, R.S.O. 1990 c. C12, (CLRA) states that when considering what is in a child’s best interests:
(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.
[33] Section 24(4) requires the court, in assessing a person’s ability to parent, to consider whether the person has at any time committed violence or abuse against the spouse.
[34] Having considered the various factors set out in s. 24 of the CLRA, I am persuaded that, on a temporary basis, it is in the child’s best interest to have her primary residence with her mother in Bowmanville, and to attend school in Bowmanville. I have taken into consideration the conflicting affidavit evidence and my inability to make any firm factual findings on the material filed. That said, it appears from that evidence that the applicant has been the more directly involved parent and is in a better position to provide the child with day to day care and attention.
[35] It is also in the child’s best interest to maintain her close relationship with the respondent father. While certain compromises must be made to take into account the distance between the parties, I do not accept that a 35-60-minute commute is too great to permit the respondent to have at least one overnight during the week with his daughter. While a 35-60 minute mid-week commute twice a week may not be ideal, it is important that the respondent share mid-week time with K. Three hours after school is not a sufficient substitute for a weekday overnight. Other minor adjustments should be made to the parenting schedule (eg. long weekends and summer) to make up for some of the inevitable reduction in parenting time with the father that will result from primary residence with the mother.
[36] I agree with the applicant that it is preferable to alternate weekends rather than giving one parent 3 out of 4 weekends. Weekends become all the more important when a child is of school age, and they should be divided somewhat equally. That equal division of weekends does, however, make the weekday overnight all the more important.
Conclusion
[37] Therefore the following temporary order shall issue:
[38] The applicant Kendra Smith shall have temporary primary residence of the child, K., d.o.b. August 25, 2016, in Bowmanville, Ontario, and the child shall be registered and attend school in Bowmanville, Ontario, commencing September 2020.
[39] On a temporary basis the respondent Michael Thomas Jefferies shall have parenting time with K. according to the following schedule:
i. Alternate weekends from Friday after school (or 4:00 p.m. if no school) to Monday morning drop off at school (or drop off at mother’s residence by Monday at 7:00 p.m. if no school). The parties will divide the transportation so that the applicant is responsible for getting K. to the respondent’s home on Friday, and the respondent is responsible for getting K. to school or returned to mother’s residence on Monday.
ii. One mid-week overnight (other than the Monday night following the respondent father’s alternate weekend) from pick up after school until drop off the next morning at school. If the respondent is unable to pick up K. from the school directly, the respondent shall pick up K. from the applicant’s residence. The respondent will be responsible for transportation for the mid-week overnight.
Family Day and Victoria Day Weekends
iii. In addition, and regardless of whether the weekend would otherwise fall on the respondent’s parenting time, the respondent will have the February long weekend of Family Day and the May long weekend of Victoria Day. All other long weekends will be distributed according to the regular alternate weekend schedule except Thanksgiving and Easter weekends as provided below:
March Break
iv. The weekend before and after March break will be divided according to the regular alternate weekend schedule. The five weekday days of the March break will be divided 3 consecutive days to the respondent and two consecutive days to the applicant, with the respondent’s 3 days to be consecutive with his weekend.
Easter Weekend
v. The parties will share the Easter Weekend such that one parent will have K. from Thursday after school until Saturday at 6:00 p.m. and the other parent will have K. from Saturday at 6:00 p.m. to return to school Tuesday morning. The respondent will have first choice in respect of which part of the weekend he would like.
Thanksgiving Weekend
vi. The parties will share Thanksgiving Weekend such that one parent will have K. from Friday afterschool until Sunday at 9:00 a.m. and the other parent will have K. from Sunday at 9:00 a.m. to return to school Tuesday morning. The respondent will have first choice in respect of which part of the weekend he would like.
Father’s Day
vii. If K. is not otherwise with the Respondent on Father’s Day, K. will spend Father’s day with the respondent from 9:00 a.m. until Monday morning drop-off at school.
Mother’s Day
viii. If K. is not otherwise with the applicant on Mother’s Day, K. will spend Mother’s day with the applicant from 9:00 a.m.
Summer Holiday
ix. a). Subject to (b), the parties will equally share K.’s summer holiday, such that K. will reside with each parent pursuant to a week-on week-off schedule. b.) The respondent father may also choose one additional week so that he has two consecutive weeks with K. during the summer.
Christmas Break
x. The parties will equally share K.’s Christmas Break. K. shall reside with the applicant for the first half of her Christmas Break in odd numbered years and for the last half in even numbered years, and with the Respondent for the first half of her Christmas Break in even numbered years and the last half of Christmas Break in odd numbered years. The first half of Christmas Break shall begin after school on K.’s last day of school in December and end at noon on the date that is the half-way point of Christmas Break. The second half shall begin at noon on the date that is the half-way point of the Christmas Break and ends on the morning K. returns to school in January. Notwithstanding the above schedule:
a. In even numbered years, K. will reside with the applicant from December 23rd at 12:00 p.m. until December 25th at 12:00 p.m., and K. will reside with the Respondent from December 25th at 12:00 p.m. until December 27th at 12:00 p.m.;
b. In odd numbered years, K. shall reside with the Respondent from December 23rd at 12:00 p.m. until December 25th at 12:00 p.m., and K. will reside with the applicant from December 25th at 12:00 p.m. until December 27th at 12:00 p.m.;
c. In even numbered years, K. will reside with the Respondent from December 31st at 12:00 p.m. to January 1st at 6:00 p.m.;
d. In odd numbered years, K. will reside with the applicant from December 31st at 12:00 p.m. to January 1st at 6:00 p.m.
Halloween
xi. The parties will alternate Halloween, with the applicant having Halloween with K. in odd numbered years and the respondent having Halloween with K. in even numbered years. Halloween shall take place from pick up after school or 3:30 p.m. if no school until 8:00 p.m. drop off at the resident parent’s home.
xii. On non-parenting time days, the respondent may have telephone or facetime communications with K. before bedtime.
[40] The applicant is presumptively entitled to her costs for this motion: Family Law Rule 24(1). If the parties are unable to agree on costs, the applicant may serve and file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision. The respondent may file responding submissions on the same terms within a further 15 days thereafter.
Justice R.E. Charney
Released: September 10, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kendra Smith
Applicant
– and –
Michael Thomas Jefferies
Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: September 10, 2020