COURT FILE NO.: FC-20-809
DATE: 2020/11/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Danielle Price, Applicant, Represented by Ronan Blake
-and-
Jason Grant, Represented by John E. Summers
BEFORE: Justice P. MacEachern
HEARD: Motion heard October 30, 2020 by Zoom videoconferencing
E N D O R S E M E N T
The Applicant mother brings this motion to set aside the Order of Justice O’Bonsawin, dated September 9, 2020, for temporary sole custody with alternate weekend[^1] access to the Respondent, for the child to attend St. Rita Catholic School, and for child support.
The Respondent seeks interim equal timesharing, and that the child attend St. Brother Andre Catholic School.
The parties resided in a common law relationship from July of 2015 to May of 2018.
The parties have one child, E, now age four. E is now residing in an equal timesharing week-on week-off arrangement between the parties. This equal timesharing arrangement has been in place since Justice O’Bonsawin’s September 9, 2020 Order.
This motion only concerns the custody and access of E. The Applicant has two other children who have different fathers - S, now five years of age, and a newborn.
After the parties’ separated, the Respondent had both S and E in his care on a regular basis. In April of 2020, the Respondent told the Applicant that he would no longer take S. In response, the Applicant terminated the Respondent’s access to E.
The Respondent did not have access to E from April of 2020 to September 9, 2020, when Justice O’Bonsawin made the September 9, 2020 Order.
September 9, 2020 Order
The parties agree that Justice O’Bonsawin’s September 9, 2020 Order, except for costs, should be set aside. That order was granted when the Applicant’s previous counsel failed to attend several court appearances. The Applicant now has new counsel.
The Respondent agrees to the September 9, 2020 Order being set aside, although he takes the position that the same order should be made on this motion.
I find that it is appropriate, fair and just, and in the child’s best interests, for Justice O’Bonsawin’s September 9, 2020 Order to be set aside, except for costs. Those costs have been paid by the Applicant’s former counsel.
Time-Sharing
I find that it is in the child’s best interests to be in the interim care of the parties on an equal timesharing basis. The parties currently have a week-on, week-off schedule. This schedule shall continue unless the parties agree to an alternate equal schedule, such as a 2-5-5-2 schedule.
I find that prior to the change in access in April of 2020, the parties had an approximately equal timesharing arrangement. This is the status quo prior to the Applicant’s unilateral change in the status que when she denied access to the Respondent.
The Applicant’s refusal to allow the Respondent to see the child was in retaliation for him no longer taking her other child. The Respondent states that he had been taking the other child as a favour to the Applicant, but that he felt this was no longer necessary because the Applicant was in a new relationship, with a new person who was acting as a parent towards the older child, and he wished to spend one-on-one time with E.
This motion does not deal with the older child’s best interests. The Respondent is not seeking any access to the older child in these proceedings. However, I accept that the Respondent’s refusal to take the older child on access impacts on E because it effects their sibling relationship – they will spend less time together, and there may be a perception that the older child has been rejected by the Respondent. These are legitimate factors in determining what timesharing arrangement is in E’s best interests. But this factor does not justify the Applicant cutting off the Respondent’s access to E. Cutting off access was not in E’s best interests regardless of the appropriateness of the Respondent’s decision to cease taking the older child on access.
I accept that the Respondent’s decision to stop taking the older child changed E’s status quo. There have also been other significant changes that impact on E, including the birth of the Applicant’s third child.
I also consider that the parties had agreed to an equal timesharing arrangement for E prior to April of 2020. E appeared to do well in each parties’ care. This reflects positively on both parties’ parenting. It also appears that both parents viewed this arrangement positively, and saw the other as an effective co-parent. There is evidence of cooperation and flexibility between the parties, prior to April of 2020.
The Applicant states that E’s best interests are to primarily reside with her because she is now home on maternity leave, and has plans to start a childcare business in her home. This factor does not outweigh, on an interim basis, the benefit to E of spending equal time in the Respondent’s care.
The Applicant also raises allegations that the E is exposed to domestic violence when with the Respondent, due to violence between the Respondent and his new partner. Exposing a child to domestic violence is a significant factor when determining the best interests of a child – such exposure can have long-lasting negative impacts. But the Applicant’s evidence on this point is lacking. The Applicant points to one incident in February of 2020 between the Respondent and his new partner, but her evidence is a hearsay account that she states she was told by the new partner. That partner has sworn an affidavit providing her account of the incident, and providing a reasonable non-abusive explanation. The partner was not cross-examined on this affidavit. The Respondent and his partner reconciled in May of 2020. The Applicant’s allegations, which the Respondent denies, are not sufficient to justify a change in the equal timesharing arrangement. This is a particularly so given the evidence that the child is doing well.
The Applicant also alleges that the Respondent has a history of domestic violence, and alleges that he was violent towards her prior to their separation. After their separation, the Applicant agreed to the Respondent having E and S, in his care for significant periods. The Applicant’s change towards access in April of 2020 was motivated because the Respondent refused to have S in his care, not because the Applicant was concerned about the Respondent’s parenting. These allegations are insufficient to change the parenting schedule on an interim basis.
Custody and School
The Applicant seeks a temporary order for sole custody.
There is no existing custody order pertaining to E. The parties do not have a Separation Agreement or other written parenting agreement. Given my finding on the status quo prior to April 2020, I find that a temporary order for joint custody is in E’s best interests. This reflects the status quo prior to the Applicant’s unilateral change in April of 2020.
This finding is supported by the parties’ email communications filed with the motion material.
The current dispute regarding custody appears to center on E’s school. Pursuant to Justice O’Bonsawin’s order, the Respondent enrolled E in St. Brother Andre Catholic School, where he is attending in-person classes.
The Applicant seeks to move E to St. Rita’s Catholic School, where S attends.
St. Brother Andre’s is closer to the Respondent’s home and St. Rita’s is closer to the Applicant’s home. The evidence before me is that St. Brother Andre’s is approximately 30 minutes from the Applicant’s home, whereas St. Rita’s is approximately 18 minutes from her home. I do not find that this distance favours either school on an interim basis.
The Applicant’s main argument in support of St. Rita is that it will allow E to attend the same school as his brother. The evidence before me, however, is that prior to April of 2020, the parties were discussing putting E in a different school than S. The situation may be different now that E and S are not spending all of their time together as they were when the Respondent took both of them. However, in weighing the factors, I do not find the potential benefit to E from being at the same school as S outweighs the disruption caused by changing schools at this time. The child has been settling into a new school, with a new routine, including public health routines, and new friends, since September of 2020. I do not find that a change in schools is warranted, or in the child’s best interests, on a temporary basis.
The Applicant also proposed that she wanted the child to attend virtual school classes, and not attend in-person classes, due to COVID-19. The Applicant did not raise health issues for why virtually learning was in E’s best interests. At this time, given the child is attending in-person classes, and the Respondent reports he is doing well, which the Applicant does not dispute, I find that it is in the child’s best interests to continue to attend in-person classes unless otherwise agreed between the parties.
Child Support
The Applicant’s motion for child support for E and S is adjourned.
The Applicant served her financial statement late, and it was not filed prior to this motion. The Applicant also served her affidavit of October 28, 2020 late. The Respondent consents to the late filing of the affidavit but not the financial statement.
It appears that the late service of the Applicant’s financial statement was caused by her former counsel, but regardless, the Respondent did not have notice of the financial statement, and therefore did not address the issues of child support in his affidavit material. He seeks an opportunity to do so. There are several sub-issues within child support, including whether income should be imputed to the Applicant, who is now on maternity leave after having a third child, the support obligation of S’s biological father, and a determination of child support under s.9 of the Child Support Guidelines. Therefore, I adjourned the issue of child support except for temporary temporary child support for one child if I awarded the Applicant primary residence of E. Given my decision on the temporary time-sharing (being equal time), I am not making an order for temporary child support at this time. The motion for temporary child support is adjourned.
Disposition
- Given the above, I make the following orders:
- The Order of Justice O’Bonsawin, dated September 9, 2020 Order, is hereby set aside, except for the cost provisions of that order.
- The parties shall have temporary joint custody of E, born August, 2016;
- On an temporary basis, E shall reside with each party in an equal timesharing arrangement. This timesharing arrangement shall be on a week-on, week-off basis, unless otherwise agreed by the parties.
- E shall be enrolled in and attend in-person schooling St. Brother Andre Catholic School, unless otherwise agreed by the parties.
- The Applicant’s motion for child support is adjourned.
Costs
- If the parties are unable to agree on costs of this motion, the Respondent may file submissions concerning costs on or before December 11, 2020. The Applicant may file submissions concerning costs on or before December 18, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Dated: December 3, 2020 __________________
Justice P. MacEachern
[^1]: The Applicant’s position is that the Respondent have access on alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m., and every Wednesday from 3 p.m. to 6:30 pm.