COURT FILE NO.: 8297/20 (Sarnia)

DATE: 2020-09-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Alanna Justine Holomey, Applicant

AND:

Ronald Blake Hillis, Respondent

BEFORE: George J.

COUNSEL: George McFadyen, for the Applicant

Kenneth Fraser, for the Respondent

HEARD: September 16, 2020

Endorsement

[1] This is the Respondent’s motion that seeks joint custody of the child, Emma May Hillis, DOB May 13, 2019. With respect to parenting time, from now until October 31, 2020, he seeks an order that would have the child in his care as follows:

i) Two non-consecutive overnights every week, with each visit to be no less than 24 hours long, with the dates and times of such visits to be determined by the parties in accordance with the Respondent’s work schedule

ii) Two day visits of no less than 6 hours in length, with the dates and times of such to be determined by the parties in accordance with the Respondent’s work schedule.

[2] From November 1, 2020 until April 30, 2021 he asks that his parenting time be increased such that:

i) For the first two overnights of each of his regularly scheduled period of 3 days off, he would have the option to keep the child out of daycare (on his days off) provided that he is able to care for her;

ii) if the first two overnights start on a day that the child is in daycare that he pick her up at a time to be arranged with the daycare provider;

iii) if the first of the two overnight visits starts on a day that the child is not regularly scheduled to be in daycare he shall pick her up from the Applicant at 9a.m.; and

iv) if the second of the two overnight visits ends on a day that the child would ordinarily attend daycare, and the Respondent decides to send Emma to daycare, he shall return her there at a time arranged with the daycare provider (otherwise, the Applicant would pick the child up at 4p.m.).

[3] His request for relief goes on. I am not going to repeat the balance as it is clearly set out in the Notice of Motion and at pages 41 through 44 of his Factum. Let me just start by saying that the schedule, as proposed, is far too complicated and, at least in my view, unsustainable. That said, the issue, generally speaking, is whether we are now at a point where the Respondent’s access should be increased and, if so, to what extent?

[4] Of course, it is important to first know what the current schedule is; how the parties got to that point; and what has happened since.

[5] First, the existing arrangement. On March 5, 2020 Gorman J. ordered that, commencing March 9^th^, the Respondent was to have access to the child every other day, for 2 hours, from 10a.m. to 12p.m. with said access to occur in London. To my understanding the Respondent has been faithfully exercising this access.

[6] What was the state of affairs before that order was made?

[7] The Respondent deposes that immediately following the child’s birth the parties worked well together and in the child’s best interests. He says he then began to notice what he described as the development of an inappropriate connection between the Applicant and child which, according to him, led to the family being insulated from other people. On his telling, the parties separated when the Applicant, without warning, left the home with the child. He remained in the family home in Wyoming while the Applicant and child moved in with her mother in London.

[8] According to the Respondent, after the child’s birth the Applicant became quick to anger and frustration, would routinely refuse the Respondent’s offers of assistance, and at one point began to limit his time with the child altogether. He says this is why the Applicant was responsible for most parenting responsibilities before separation. He indicates that the Applicant flat out refused his offers and effectively prevented him from spending any time with the child, independent from her. He believes the conflict in their relationship was a direct result of his efforts to spend more time with the child, to which the Applicant would invariably become defensive and argumentative. Despite this breakdown, and notwithstanding the Applicant’s resistance, he deposes that he had (and has) a strong bond of love and affection with the child and that, prior to separation he still found time to play with the child and change and bathe her. He says he and the Applicant, jointly, made all important decisions regarding the child - including the choice of pediatrician and daycare provider - until she unilaterally decided to change course.

[9] The Applicant deposes that the Respondent did not assist with the child’s day to day care, did not offer to assist, and was not even aware of her regular routine and feeding schedule. She goes so far as to say that he is incapable of caring for a child citing numerous examples of their child returning to her care appearing dishevelled and wearing a dirty diaper.

[10] She says she left the relationship because the Respondent was “abusive”. As indicated, she disputes the Respondent’s claim that he attempted to assist her with childcare pointing to his work schedule and the fact she has, and continues to, breastfeed, a decision she says the Respondent supported. She further claims that while she has attempted to work cooperatively with the Respondent, he is non-communicative and confrontational.

[11] Despite the conflicting evidence there are two things I do know for certain. First, irrespective of how it came about, the Applicant has indeed been the primary caregiver. This was the case before separation and has been the case since. Second, without question the Applicant goes overboard in describing the Respondent’s parenting abilities. While she is herself a loving and caring parent, and while she may have some legitimate concerns with the Respondent, to imply that he is abusing the child (which is surely her goal by referencing “suspicious red marks”), and to describe him as “incapable” of caring for his own child is, quite frankly, beyond the pale. This may be her opinion, but it is not one supported by the evidence. That is not to say she unilaterally created a status quo (as alleged by the Respondent) but it does reveal the lengths to which she will go to disparage the Respondent.

[12] On the other hand, while I appreciate the Respondent’s explanation for how we got to this point, the fact remains that the Applicant is now and has always been the child’s primary, and at some points only, caregiver.

[13] What has happened since Gorman J.s order? While the Respondent has been faithfully exercising his access, the discord continues. The Respondent maintains that, what is clearly a status quo, was created unilaterally by the Applicant and that he, both before and after separation, has attempted to be more active in the child’s life but has met resistance at every turn. He argues that he is capable of caring for the child and that his time with her should therefore be expanded. He acknowledges that the child is breastfed but argues that, as important as that is, it needs to be balanced with her right to have a meaningful relationship with him.

[14] For her part the Applicant continues to argue that the Respondent has never shown much interest in the child, is incapable of caring for her, and that the child’s breastfeeding schedule simply does not allow for an expansion right now.

[15] Two things to say about the host of cross-allegations. First, I am unable to say one way or the other whether the Applicant has in fact unilaterally created a status quo. She might have and I think the Respondent stands a good chance of establishing that at trial. Having said that the reality is, both before and after separation, the Applicant was the primary caregiver. She always has been. Maybe, as I suspect, the Applicant has not been as receptive as she should have to the Respondent’s efforts to be more involved. Maybe the Respondent has shown no interest and has never really tried (which I highly doubt). It is hard to say with any certainty, and no real clarity will be brought to this until trial. Second, there can be no question that the Applicant is a loving and caring mother. The Respondent agrees and there is no evidence to the contrary. She is an excellent parent and the child is well cared for.

[16] Where does that leave us? To start, some of the requested relief is off the table. They are non-starters. For instance, I am not going to order the Applicant to relocate so that she (and the child) are within 25 kilometers of Wyoming. I am not going to direct that the child be reunited with her previous doctor. Neither would, in the circumstances, make any sense. The child’s needs are being met and she is reaching all milestones. Her current doctor is closer to the Applicant’s residence (where the child is living and will be for the foreseeable future) and there is no reason to disrupt that. I am also not going to, at this point, make a custody order. Joint custody seems to make sense as, apart from the Applicant’s contention that these parties cannot get along (which I do not find convincing as, while they might not in fact work cooperatively, they most certainly can and should be), each is a responsible, contributing member of society who, I believe, have the child’s best interests at heart. Regardless, there is simply no need to weigh in on this issue now. A defined parenting schedule is sufficient to get these parties to a final resolution, or trial, without elevating one’s position over the other.

[17] Again, the question is whether to increase the Respondent’s access. To my mind, the Applicant’s resistance to any increase at all appears to be, for whatever reason, punitive. While she has clearly convinced herself that she is the only one who can adequately for the child, that the Respondent is incapable of doing so, and that there can be no disruption to the current breastfeeding schedule, there is just no other way to explain or characterize her staunch intractable position. I appreciate the child is being breastfed - which is a factor I must consider (and weigh against the need to foster a loving relationship between the child and Respondent) - but the Applicant’s complaints otherwise ring hollow. On the breastfeeding issue specifically, I am aware of no case that stands for the proposition that it should overwhelm any other relevant factor. It is a factor, but one amongst many.

[18] To the question of caring for young pre-school children generally, the authorities filed by the Respondent were most helpful. While Applicant counsel ably drew distinctions between those cases and the matter at hand, there are still several passages that have relevance to the issues I must grapple with. For example, in Huess v. Surkos, 2004 CarswellOnt 3517, at para. 30 Spence J. writes that:

30. I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children. What I glean from these cases are the following principles: First, it is important to maximize the contact between access parents and young children. Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish. Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits. And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.

[19] The Saskatchewan Court of Queen’s Bench in Lygouriatis v. Gohm, 2006 CarswellOnt 448 takes a similar view, rejecting the idea that, in that case a three month old child, was not “ready” to spend overnight visits away from her primary residence. Wilson J. cites Joan Kelly and Michael Lamb’s work in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” published originally in the Family and Conciliation Courts Review, where the authors write:

Such unnecessarily restrictive and prescriptive guidelines were not based on child development research and, thus, reflected an outdated view of parent-child relationships. Furthermore, such recommendations did not take into account the quality of the father-child or mother-child relationship, the nature of both parents’ involvement, or the child’s need to maintain and strengthen relationships with both parents after separation. Research and experience with infant day care, early preschool, and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized. Indeed, a child also thrives socially, emotionally, and cognitively if the caretaking arrangements are predictable and if parents are both sensitive to the child’s physical and developmental needs and emotionally available.

The evening and overnight periods (like extended days with nap times) with non-residential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide. These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.

[20] This says it all and highlights just how untenable the Applicant’s position is. The reality is the Applicant needs to start, now, adjusting the way she thinks about this. The fact she breastfeeds the child cannot rule the day. Furthermore, the fact she thinks she is a better parent than the Respondent is not dispositive. For the sake of the child she must immediately begin to recognize the value in her having a full and loving relationship with her father, which cannot even start to grow and develop until the child spends more, and higher quality time, with him. While perhaps not as expansive as the Respondent suggests (and I do question the appropriateness of an interim, gradually increasing, schedule), there is simply no need to delay the start of this process. In fact, it is essential that it begin now, as I get the distinct impression that once the child is no longer breastfed the Applicant will simply advance yet another reason to limit the Respondent’s time with her.

[21] In other words, I agree with the Respondent that the child’s best interests demand that her time with the Respondent be increased, right now, and that he have at least some overnight visits.

[22] On the issue of transportation, of course the Applicant should bear some of the burden. She made the decision to move to London and, consequently, it is reasonable to expect that she share in this responsibility.

[23] For these reasons, I make this interim order:

i) Commencing October 4, 2020 the child, Emma May Hillis DOB May 13/19, shall be in the care of the Respondent each week for one day – for no less than seven (7) hours – with the date and times to be determined by the parties in accordance with the Respondent’s work schedule. The Respondent shall be responsible for the child’s transportation both to and from this visit.

ii) Commencing October 4, 2020 the child, Emma May Hillis DOB May 13/19, shall be in the care of the Respondent each week for one overnight visit – for no less than twenty four (24) hours – with the date and times to be determined by the parties in accordance with the Respondent’s work schedule. The Applicant shall be responsible for the child’s transportation both to and from this visit.

iii) The child shall also be in the Respondent’s care at other times as agreed upon.

iv) The child will otherwise be in the care of the Applicant.

v) The current parenting schedule, as ordered by Gorman J., shall continue until October 4^th^.

vi) The balance of the Respondent’s motion is dismissed.

[24] To be absolutely clear, commencing October 4^th^, the above schedule has the child in the Respondent’s care twice per week – one day visit and one overnight visit (as well as other times as agreed). This is not an alternating week schedule.

[25] I have considered the Respondent’s request for a gradually increasing schedule, but decline to do so. Irrespective of why or how we got to this point, the Respondent has not yet had much of an opportunity to care for the child on his own and while this may indeed just be a starting point (and I fully expect that it is), it is important that a routine be established with the Applicant and court thereafter having an opportunity to assess the new schedule, as opposed to automatically increasing parenting time upon an artificially imposed deadline passing.

[26] This schedule calls upon the parties to agree on days, and times, that fit with the Respondent’s work schedule. I fully expect them to do just that, and would view any failure to do so as inexcusable. Each party should keep this in mind should they, for even a moment, think a better course is obstinance or the resurrection of this motion (for the purposes of relitigating issues I have already decided). I will not tolerate or countenance either party placing obstacles in the way of the other in giving effect to this order. For clarity, I have made this decision fully aware of the Applicant’s, and her doctor’s, views on breastfeeding. It should be apparent that I find this to be subordinate to the fostering of the child’s relationship with the Respondent. The long and short of it is, the Applicant has until October 4^th^ to plan accordingly and to do what she must in order to prepare for the transition.

[27] The parties will have also noticed that, in dismissing the balance of the Respondent’s motion, I have not addressed holiday access. While I am not all that concerned with Thanksgiving I appreciate this schedule could become problematic should no final resolution be reached before Christmas. To repeat myself, this was unavoidable because the primary goal now should be to see how this new schedule works. My sincere hope is that the parties can reach a resolution before then, failing which they should make best efforts to secure the earliest possible trial date.

[28] I am inclined to have each party bear their own costs for this motion. I view this as a mixed result with divided success. Having said that, if either served on the other a r. 18 compliant Offer to Settle, and take the position that this result is as good as or better than that offer, then I will hear from them. If that is the case I would ask that counsel agree on a timetable for written cost submissions (that would not include a right of reply), or seek further guidance from me through the trial coordinator. If no such offers have been exchanged then no submissions will be accepted and the order that is ultimately issued is to indicate “no order for costs”.

Justice J. C. George

Date: September 25, 2020