Court File and Parties

COURT FILE NO.: 854/20 DATE: 2020-10-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: H.P., Applicant AND: L.V., Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: S. Heeley, Counsel, for the Applicant K. Hughes, Counsel, for the Respondent

HEARD: October 2, 2020

Endorsement

[1] What a difference a day makes.

[2] This is an urgent motion brought by the Applicant father seeking to address parenting issues prior to a Case Conference.

[3] An overview:

a. The parents were married May 3, 2008.

b. They separated January 30, 2019.

c. They have three children: a daughter SNP, 10; and two sons NOP, 7; and CAP, 5.

d. Both parents are steadily employed working daytime hours, Monday to Friday. The Applicant is a licenced technician at ArcelorMittal in Hamilton. The Respondent mother owns and operates a dental practice.

e. For about a year after January 2019 the parents lived separate and apart under the same roof within the matrimonial home in Ancaster. The father says during this period they divided responsibility equally. The mother says they alternated days with the children. She says the father cared for the children Mondays, Wednesdays, Fridays and half of Sunday. She says she cared for the children Tuesdays, Thursdays, Saturdays and half of Sunday. But she says she ended up assuming more than one-half of the responsibility for the overall care of the children.

f. In January 2020 the mother relocated to rented accommodation, still within Ancaster. She says the children were not introduced to that accommodation for several months.

g. Tensions between the parents worsened.

h. The parents disagree about parenting arrangements after the Respondent moved out of the matrimonial home. The Applicant says they were sharing time equally. The Respondent says it was never equal time, and that she always assumed primary responsibility.

i. In July 2020 the Catholic Children’s Aid Society (“CCAS”) was contacted by the children’s pediatrician as a result of certain negative statements the children made about the father. The mother suspended the father’s direct contact with the children for about two months, while CCAS investigated. Ultimately on September 2, 2020 CCAS issued a very brief letter indicating that the Society would not have protection concerns about the father resuming access. “This is an issue for the parents to sort out with the assistance of counsel.”

j. Unfortunately, the parents weren’t able to sort it out. The father brought an emergency motion which resulted in a temporary-temporary consent order pending an adjournment of the motion to October 2, 2020. The Respondent mother says the temporary arrangement has stabilized the situation, and the matter should now proceed to a Case Conference without any further determinations being made. The Applicant says he only agreed to the temporary temporary consent arrangement to cover a two week period, because it was the only way he could resume time with his children. His lawyer notes that with the court backlog stemming from the COVID suspension of court operations, the parents will not likely be able to get a date for a Case Conference until the new year, and it’s not in the best interests of the children to allow children’s issues to be so delayed.

k. Although the Respondent’s primary request was to adjourn issues to a Case Conference, fortunately the Respondent filed a detailed affidavit which responded to the Applicant’s narrative and set out the Respondent’s position.

[4] I am satisfied that the issues herein are urgent enough for the court to allow the motion to proceed prior to what will likely be a delayed Case Conference. I am also satisfied that the parents have provided me with sufficient information to make some determinations on a temporary-temporary without prejudice basis.

[5] Each parent has advanced serious allegations about the other parent’s behaviour and parenting.

a. The mother lists many examples of her concerns about the father’s harsh and controlling behaviour; anger control issues; excessive use of alcohol; and his lack of sensitivity to certain children’s issues.

b. The father denies the mother’s allegations, and says she has been engaging in parental alienation and a campaign to significantly reduce his long-standing equal involvement in the children’s lives.

[6] Whether before or after a Case Conference, it is impossible for a motions judge to make a meaningful determination as to which of these competing narratives is more accurate – or which of the expressions of concern should be given more weight.

[7] But – as happens on many of these early motions – even though the parents have presented dramatically different recollections of the past, their proposals for future timesharing arrangements are remarkably similar. So similar that it really raises a question about whether the parents needed to say so many bad things about one another if so little was in dispute.

[8] The bottom line: they both agree there should be generous timesharing – including mid-week overnights -- with no controls or restrictions on either parent’s involvement with the children.

a. The Applicant proposes a two-week rotating schedule – often described as 2-2-3 – which would give him 7 out of 14 overnights with the children.

b. The Respondent proposes a repeating one-week schedule which would give the father 6 out of 14 overnights with the children.

c. Why did we need so many expensive, destructive affidavits – why did I need to hear all the hurtful allegations that people will remember forever – if the only thing in dispute is a single overnight every two weeks?

[9] The only thing that matters in this senseless tug of war is the best interests of the children. And I heard nothing within the litany of mutual complaints which would favour one parent’s position over the other’s.

a. If six overnights is fine, why would seven overnights be unthinkable?

b. If seven overnights is fine, why would six overnights be unthinkable?

c. In either scenario, the experience for the children is going to be very similar.

d. This dispute isn’t really about what’s best for the children.

e. It’s about winning and losing, and what each parent feels is best for them.

f. We need to take the “winning” and “losing” out of family court.

g. That’s what’s best for the children.

[10] Each parent’s proposal entails benefits and drawbacks. That’s inevitable. During submissions I tried to focus the discussion on how each proposal would benefit or impact the children.

[11] The mother’s primary concern about the father’s schedule relates to the weekday school routine.

a. Both parents still reside in Ancaster, and the children will continue to attend the same school in that community.

b. The mother says the father’s work schedule means that he would require before-school and after-school childcare. She says in contrast her work schedule is more flexible so she can be available for the children before and after school. She also says the children would have to wake up earlier on mornings they leave for school from his house.

c. The father denies that any of this is an issue. He disputes that the children would have to wake up earlier when they go to school from his house.

d. He notes that even the mother’s proposal would mean that the children attend school from his house (requiring before and after school childcare) four days within a two week cycle. His proposal would mean they would attend school from his house five days within a two week cycle.

e. Again, we’re talking about one day every two weeks. Not much of a difference.

[12] In my view the mother’s proposed schedule entails a bigger disadvantage for the children.

a. She suggests the father should have the children every week from Sunday at 5:00 p.m. until Tuesday dinner hour (two overnights) and then again Friday after school until Saturday at 1:00 p.m. (one overnight).

b. The obvious disadvantage is that this proposal would never allow either parent to have a full uninterrupted weekend with the children. Weekends are precious time for families, particularly if the children and both parents have fairly rigid weekday commitments.

c. And perhaps not coincidentally, the mother’s proposal would mean that she gets the majority of Saturday and Sunday time with the children.

d. In my view, that’s a non-starter.

[13] In response to my comments the mother came up with a revised proposal which included alternate weekends. But it reduced the father’s overnights to five out of 14. And it increased the number of days the children would go without seeing the father. All of that is moving in the wrong direction.

[14] So we’re back to a one day difference every two weeks. And truthfully, no matter which of those options I select, I have confidence that the children will be fine.

a. It’s not the “one day” that’s going to ruin these children’s lives.

b. It’s the senseless, bitter dispute about the one day that’s going to ruin these children’s lives.

[15] This wasn’t a coin toss. I have carefully considered all of the practicalities of each proposal, from the children’s perspective. And I find that – particularly during this early stage in what I hope won’t develop into a high conflict custody dispute – the father’s proposal has slightly more advantages.

[16] Temporary temporary without prejudice order:

a. The parents shall share time with the children equally on a 2-2-3 rotating 14 day schedule.

b. For clarity, in the first week the father shall have the children Monday and Tuesday overnight; then Friday, Saturday and Sunday overnight; and then in the second week Wednesday and Thursday overnight. In the absence of any other agreement between the parents, exchange times shall be 5:00 p.m.

c. Both parents shall ensure that the children arrive for school on time and that school commitments are fulfilled by the children during their respective parenting time.

d. The children shall continue with their regular routines and extracurricular activities. Both parents shall be equally entitled to participate in the children’s extra-curricular activities, and equally responsible to ensure that the children attend those activities. If either parent is unable to facilitate a child’s attendance at a scheduled activity, that parent shall notify the other parent immediately to allow the other parent to take the child to the activity. However, the Respondent mother may assume greater involvement in relation to SNP’s horse shows, but otherwise both parents are equally entitled to participate in the oldest child’s equestrian activities.

e. The children shall be permitted to initiate contact with the non-resident parent as they wish, and neither parent shall discourage or interfere with the children’s communication with the other parent. However, the non-resident parent shall not initiate voice communication with the children more than once every second day.

f. Communication between the parents shall be primarily by email, not more than once a day and strictly limited to efficient communication about children’s issues. Both parents shall monitor their email accounts to provide a same-day response for any emails arriving by 7:00 p.m.

g. Each parent shall encourage the children to have a positive and respectful relationship with the other parent, and members of the other parent’s family or household. Neither shall make any disparaging or negative comment about the other parent in the presence of the children, or allow others to do so.

h. Neither parent shall consume alcohol to excess or consume any non-medically prescribed drugs while caring for the children. Neither parent shall consume any alcohol within 12 hours of operating a motor vehicle in which any of the children are passengers.

i. Each parent shall be entitled to make day to day decisions for the children when they are in that parent’s care. Neither parent shall make decisions which will impact on the other parent’s time or involvement with the children, without first consulting with the other parent.

j. Each parent shall notify the other of any medical or other developments in the children’s lives which requires any form of professional assistance. Both parents shall be equally entitled to communicate with and instruct any professionals or agencies currently involved in the children’s lives. Neither shall schedule any professional appointment for the children without consulting with the other (unless it is an emergency). Appointments should be coordinated with both parents’ schedules (if possible) to allow both parents to attend.

k. If counselling for any of the children is recommended or determined to be appropriate, the parents shall jointly arrange and participate in such counselling. Neither parent may initiate any new professional involvement for the children or registration in any new activities, without the consent of the other parent.

[17] The motions are adjourned without a return date, returnable on seven days notice.

[18] The parents may schedule a Case Conference if they wish. It is anticipated that a Case Conference date will not likely be available until early 2021. If by any chance the parents are able to arrange a Case Conference date sooner (as a result of a cancellation, for example), the terms herein should preferably not be revisited for at least three months, to allow the parents to evaluate how these arrangements are working. Strict compliance with these terms is anticipated. If serious problems arise, parenting issues may be returned as required. But I have attempted to provide the parents with some guidance as to the level of cooperation and practicality which the court will require.

[19] To save time and expense, if both parents consent, a Case Conference may be dispensed with and the parents can schedule a Settlement Conference as the next event. However, no Settlement Conference should be scheduled until all disclosure issues have been resolved.

[20] If the parents wish to address any issues other than costs, they may arrange a date for this matter to be spoken to.

[21] If only costs remain to be determined (and I hope they won’t be), the parents are to serve and file written submissions on the following terms:

a. Applicant’s submissions (no more than three pages with no more than five pages of attachments) by October 23, 2020.

b. Respondent’s submissions (same size limits) by November 6, 2020.

c. Any reply submissions (two page maximum) by November 13, 2020.

Pazaratz J.

Date: October 5, 2020