Court File and Parties

COURT FILE NO.: FS-19-217-00 (Brampton) DATE: 20210303 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

James Cromwell Applicant

-and-

Erin Allaby Respondent

Counsel: Gary Joseph, for the Applicant. Paul Pellman, for the Respondent

Heard: March 2, 2021 by video conference Chown J.

Endorsement

[1] In my decision released January 8, 2021 at para. 115, I asked the parties to try to negotiate additional weekday evening parenting time for the father (not overnight), and if they could not, I would receive further submissions on the issue. I have now received submissions in a further hearing.

[2] The respondent mother has suggested mid-week parenting time from 4:00PM after daycare to 7:00PM on Wednesdays. The applicant father has found this impractical to exercise, given that he is located in Brampton. It was submitted that, with the pandemic, there is nothing the father and child can do together on a weekday in Scarborough. If the father drives the child to his home and back, there is no time to do anything with the child for a weekday non-overnight visit.

[3] The parties both seem to expect the father should drive back and forth for pickup and drop off for weekday parenting time. My order says at para. 116 that the party picking up the child shall be responsible for the transportation. I did not want to preclude the parties from negotiating other arrangements, but the parties may not have considered that on its face this order applies to weekday parenting time as well as weekend parenting time. Given the distance between them, to the extent it is practical, both parents must participate in transportation of the child for transitions of parenting time. This is necessary to support the child’s relationship with both parents.

[4] The opportunity for the child to develop a strong relationship with her father has been provided for through parenting time with the father for three weekends a month, creating longer blocks of time. The schedule curtails travel for the child, hectic mornings, congested morning commutes, and the associated uncertainty over travel time and therefore arrival time. These concerns will become more acute when the child starts school in September. Under the schedule, the quality waking hours that the child spends with each parent is not excessively disparate in the circumstances. However, the schedule does involve stretches more than once a month when the child will not see her father for about 12 days in a row. It is this deficiency that I most hoped the parties could address through negotiation.

[5] I did appreciate, and I do still appreciate, that non-overnight access on a weekday limits the quality of the child’s experience with her father for such parenting time. This must be balanced with the concerns described above – those which arise from a morning commute and the problematic logistics that can be anticipated in this case with weekday overnight parenting time for the father. In addition, the schedule must balance the quality of the time the child will experience with each parent. Under the schedule, the child will experience longer blocks of more relaxed, unscheduled time with her father than with her mother. She will of necessity experience more regimen with her mother, because of the daily need to get to daycare, and soon, to school. The child needs quality relaxation time her mother too.

[6] I have considered all the foregoing in making my previous order and adjusting it with my weekday parenting time order below. I have also considered the changes to the Divorce Act which have now come into effect. I have specifically reviewed and considered all the factors listed in s. 16(1), (2), (3) and (6) of the new Divorce Act (Bill C-78).

Parenting time

[7] Having heard additional submissions, this is my order for weekday parenting time:

a. On the Thursday before and the Tuesday after any weekend in which the father does not have parenting time, the father shall have parenting time from after daycare until 7:00 p.m.

b. If the father brings the child to his home in Brampton on those nights, the mother shall pick up the child at the father’s house at 7:00 p.m.

c. The father shall notify the mother with 48 hours notice if he is unable pick up the child or for any reason does not wish to exercise his parenting time on those nights.

d. Unless the child is with the father pursuant to paragraph a. above, the father shall be entitled to a video call or, if preferred by the father, a telephone call with the child every Tuesday and Thursday night at 6:00 p.m. for up to 15 minutes. The father shall confirm on Sundays whether the calls will proceed that week.

e. On the Sunday of every long weekend where the child is with the father, the mother shall be entitled to a video call or, if preferred by the mother, a telephone call with the child at 6:00 p.m. for up to 15 minutes. The mother shall confirm on the Friday of any weekend where this applies whether the call will proceed on the Sunday.

Case conference

[8] The father would like me to order that there does not need to be a case conference on the weekday parenting time issue before the father brings a motion. I will not make this order.

[9] The scheduling considerations involved in this case are better suited to resolution at a case conference than at a motion. By way of example, I have no evidence about what regular appointments or activities may exist in the parties’ weekly schedules and which might be important to accommodate. I have no evidence about any regular activities the father’s other children may participate in. As such, I cannot craft an order which accommodates such interests. Case conferences (or better yet, negotiations) are better suited to accommodating such concerns.

Daycare costs

[10] On consent, the order contained within para. 118 of my reasons that the parties shall share the cost of daycare in proportion to their incomes is set aside, and with partial consent is replaced by the following:

a. Commencing January 1, 2021, the father will pay the mother $350 per month on a without prejudice basis;

b. This amount is to be adjusted at the end of the calendar year to reflect equitable after-tax cost sharing of the daycare cost in accordance with the parties’ incomes.

The parties did not agree on when this should start with the father arguing that it should start February 1, 2021 because he was required to pay a cancellation penalty at the YMCA daycare. I have not accepted the father’s position on this point. However, the cancellation fee paid by the father is to be treated as a joint daycare expense and treated on the same without prejudice and subject-to-adjustment basis, if possible.

407 Tolls

[11] In my reasons from January 8, 2021 at para. 117, I ordered that the mother shall pay the father’s 407 tolls associated with trips to transport the child. The mother seeks clarity and wants me to limit this to three trips or $75 per month as, in her view, the father only needs to use the 407 for the Friday pickup, which is only required three times a month.

[12] For his work, the father travels outside of the GTA to service clients. I had no evidence on whether the father’s employer reimbursed him for 407 use or whether he typically uses it.

[13] My reasons state that the mother will pay the father’s 407 tolls associated with trips to transport the child. It was my intent that the mother would pay the father’s 407 tolls associated with trips to transport the child for parenting time. It was not my intent that she would pay 407 tolls if the father was using the 407 for other purposes such as his employment or for child-transport trips that could be coordinated with other purposes. However, the mother is to pay the tolls in both directions where the father uses the 407 solely to transport the child to or from parenting time.

[14] I understand that since I made my order, on weekends where he has parenting time, the father has been picking up the child at daycare on Friday afternoons and dropping the child off at daycare on Monday mornings. In this regard, despite my lack of particularity on this point, the parties have interpreted my order as I intended. That is, it was my intent that if the father exercised his option to have the child overnight on Sunday nights, he would have to transport the child to daycare on Monday mornings. However, the mother is required to pay the tolls for both directions of this trip if the father cannot coordinate his use of the 407 for other purposes such as his employment.

[15] I recognize this is a significant expense, but it is one that was caused by the mother’s move to Scarborough. I have accepted that the move to Scarborough was for good reasons and that there were compelling circumstances favouring the move. However, it did upset the status quo. There is a savings in that the mother no longer has a daily commute. The father has increased travel cost as a result. My order was an attempt to balance these considerations.

Our Family Wizard

[16] On consent, the parties shall sign up for and use the Our Family Wizard app.

Questioning

[17] The parties shall arrange and attend questioning by videoconference with a limit of 3 hours per party.

Family Dispute Resolution

[18] To my knowledge, the parties have not participated in a family dispute resolution process. The parties are reminded of their new obligations in this regard under s. 7.3 of the new Act.

Form of Order

[19] Counsel are reminded when that they formalize the order there is a new form for orders under the new Act.

Costs

[20] There shall be no costs for the March 1, 2021 hearing.

“Justice R. Chown”

Released: March 3, 2021