COURT FILE NO.: FS-20-16453-00

DATE: 20210111

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kai, Liu Applicant

AND:

Cong Xie, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Katherine Long, for the Applicant

Julie Stanchieri and William Francis, for the Respondent

HEARD: January 5, 2021

Reasons for ORder

Nature of Motion

1This was a motion brought by the applicant (“father”) in which he sought a temporary parenting schedule pending the completion of a custody and access assessment to be completed pursuant to s.30 of the Children’s Law Reform Act (“s.30 assessment”) so that he and the respondent (“mother”) can physically separate. In particular, the father seeks a temporary order that the parties’ two children will reside with him primarily (8 nights out of 14) and with the respondent (“mother”), 6 nights out of 14, such that in Week One, the children will reside with the mother on Wednesday, after school to Thursday morning; and in Week Two, the children will reside with the mother on Wednesday, after school to Monday morning.

2The mother brought a cross-motion seeking an alternate time-sharing parenting schedule. In particular, the mother seeks a schedule in which the parties’ two children will reside with her primarily and with the father on Wednesdays, from 3:30 p.m. to 7:30 p.m. (4 hours); Fridays, from 3:30 p.m. to 7:30 p.m. (4 hours) and alternate Saturdays, from 11:00 a.m. to 7:30 p.m. (8.5 hours). The mother’s proposed time-sharing plan is that the children only spend 16.5 hours a week with the father, with no overnight time. The mother proposes that in eight weeks’ time, the father’s Friday access be extended to include an overnight, such that the children will reside with him on Friday, from after school to Saturday, at 7:30 p.m.

3The father scheduled this motion to be heard on the regular motion list. The mother sought to have the motion heard by way of a long motion, given the significant affidavit material each party filed in support of his/her motion and the time she felt was needed to make oral submissions at the motion. Currently, in Toronto long motions cannot be heard before April or May. The parties are residing separate and apart in the matrimonial home and the situation has become toxic. Accordingly, notwithstanding the fact that each party filed three affidavits in his/her name and multiple affidavits from third-party collaterals (12 in total), the motion proceeded on January 5, 2021 on the regular motion list. I heard the motion and these are the reasons for my Order.

EVIDENCE RELIED ON BY EACH PARTY

4In support of the father’s motion, he relied on the following evidence:

a) His Notice of Motion, dated December 11, 2020;

b) His affidavit, sworn on December 11, 2020;

c) His affidavit, sworn on December 21, 2020;

d) His affidavit, sworn on December 23, 2020;

e) The affidavit of Kuan Jiang, sworn on December 23, 2020, a cousin of the father’s;

f) The affidavit of Tian Jiao Li, sworn on December 23, 2020, the wife of the father’s cousin; and

g) His Factum dated December 29, 2020.

5In support of the mother’s motion, she relied on the following evidence:

a) Her notice of motion, dated December 11, 2020;

b) The affidavit of Min Chen and ShiQiang Xie, sworn on November 11, 2020, the maternal grandparents;

c) The affidavit of Feng Yan Xiao, sworn on November 11, 2020, the parties’ nanny from November 2016 to August 2019;

d) The affidavit of BingYang Huang, sworn on November 11, 2020, the mother’s Bank of Montreal (“BMO”) assistant from January 2016 to September 2018;

e) The affidavit of Fang Chen, sworn on November 11, 2020, the mother’s BMO assistant from 2014 to date;

f) The affidavit of Hongling (Lily) Zhan, sworn on November 11, 2020, a friend of the mother’s;

g) The affidavit of HuiHui Ye, sworn on November 11, 2020, a mother of a child at the Waldorf School;

h) The affidavit of Stanislaud Haribowo, sworn on November 11, 2020, Coco’s Kumon instructor;

i) The affidavit of JiaHong Pu, sworn on November 11, 2020, the children’s art teacher;

j) The affidavit of Dan Chen, sworn on November 11, 2020, the mother’s aunt;

k) The affidavit of Susan Xie, sworn on November 11, 2020, a friend of the mother’s;

l) Her affidavit, sworn on December 11, 2020;

m) Her affidavit, sworn on December 18, 2020;

n) Her affidavit, sworn on December 23, 2020; and

o) Her Factum dated December 29, 2020.

6Neither parent sought an order for temporary decision-making responsibilities for the children. This motion is strictly related to defining a temporary parenting time-sharing schedule to allow the parents to physically separate, as they have been living separate and apart in the matrimonial home for the past 19 months.

7There are highly competing affidavits about the roles each parent played in the children’s lives. In sum, the father deposes that he has been a stay-at-home parent since 2017 and that he has been integrally involved in all aspects of the children’s care. By contrast, the mother deposes that she has been the primary parent for the children, that the father is not attuned with the children’s needs, especially in relation to Coco, he has a short temper, he is unable to regulate his emotions and, accordingly, he is not equipped to look after the children without support. The significant quantity of affidavit evidence filed in support of both parties’ motions cannot be tested on this temporary motion. Neither party opted to Question the other in connection with the affidavits filed in advance of the hearing of the motions.

Background Facts:

8The parties were married in China on November 3, 2010. The mother had been residing in Canada prior to the marriage and returned to Canada after the marriage. This was not the mother’s first marriage. The father worked at the Bank of China. He moved to Canada from China in 2011. The parties separated in May 2019, after 9 years of marriage.

9There are two children of the marriage, namely, Coco born on December 13, 2013 (age 7), and River, born January 4, 2017 (age 4).

10Coco has special needs and has been diagnosed with Autism Spectrum Disorder (“ASD”). Although Coco is 7 years old, she is behind her chronological age in terms of her developmental stage both cognitively and physically. Since Coco was born in December of 2013, she started kindergarten with children born in 2014. Coco is currently repeating Senior Kindergarten. River has no special needs and is currently 4 years old. River is in preschool. Both Coco and River are in full-time school at the Waldorf School, a private school in Thornhill.

11Since the separation in May 2019, the parties have continued to reside in the matrimonial home living separate and apart for the past 19 months. The situation in the home is no longer tenable. The maternal grandparents came to Canada from China in December 2019 and have been residing with the family for the past year. In addition to conflict between the parties, there has been conflict between the father and the maternal grandparents. The police have been called to the house on several occasions. No charges have been laid. The Children’s Aid Society have been involved with the family. Both parents agree that it is not in the children’s best interests for the family to continue to reside separate and apart under one roof.

12According to the father, he was vehemently opposed to the maternal grandparents moving into the matrimonial home in December 2019, and he advised the mother of his feelings. Despite his opposition, the maternal grandparents moved into the matrimonial home in December 2019. The father deposes that the maternal grandparents have a history of mental illness and are abusive toward him. In particular, he deposes that the maternal grandmother has a violent temper and is quick to anger; and the maternal grandfather has a history of gambling, alcohol addiction, anger management and was hospitalized for psychosis in China in 2018. The father deposes that during the marriage, he and the mother, together, had regular conflict with the maternal grandparents. The mother vehemently denies the father’s allegations regarding her parents. The mother acknowledges that the father has been negative to her parents historically, despite their assistance with the children.

13The mother is a successful mortgage specialist at the Bank of Montreal. The father used to work at the Bank of China. The father resigned from his position as Branch Manager at the Bank of China (Canada) in September 2017. He has not worked outside of the home since then. According to the father, he has been a stay-at-home father. While the mother does not deny that the father resigned from work in September 2017, she submits that he did not do so to look after the children. Instead, the mother deposes that the father resigned from employment to invest in real estate.

Period of Time since Coco’s Birth

14In 2013, when the mother was pregnant with Coco, she began working as a mortgage specialist at the Bank of Montreal. The father deposes that the mother took a short, one-month maternity leave after Coco was born on December 13, 2013, and that he took three-months parental leave when the mother went back to work, after Coco was born. However, the evidence demonstrates that the mother, in fact, took a three-month maternity leave and the father took a one-month parental leave.

15The father deposes that he was involved in all aspects of Coco’s care, including changing diapers, feeding her, soothing her, playing with her, and getting her to sleep. Coco was breastfed for the first two months of her life and, as a result, once she was weaned off breastmilk, the father deposes that he was the parent responsible for waking with her in the middle of the night, feeding her and getting her back to sleep. By contrast, the mother deposes that the father was not nearly as involved in Coco’s care as he alleges and that once she returned to work after her maternity leave, her parents came to stay with the parties from China and assisted with Coco’s care. According to the mother, she was the parent integrally involved in Coco’s care when she was a baby and that she continues to be her primary parent today.

16In 2015, the parties enrolled Coco in the Toronto Montessori School (“TMS”). The mother deposes that this decision was hers alone and the father consented to her making this decision. The father deposes that they made this decision together, after considering a number of academic options for Coco. Both parties depose that they recognized that Coco was behind her peers when she was at TMS and the school recommended that the parents consult with medical professionals about her development. Coco’s paediatrician, Dr. Mak, referred Coco to Dr. Freidman, a paediatric neurologist, to be assessed.

17On January 13, 2016, Dr. Gerald Friedman diagnosed Coco as meeting the criteria under the Diagnostic and Statistical Manual 5 for ASD, when she was 2 years old. Dr. Friedman’s assessment report sets out an action plan for the family, which included engaging several supports for Coco, such as Early Intervention Services; consulting with a Speech Language Pathologist; engaging the services of an occupational or physiotherapist to work on her gross and fine motor skills; and learning about resources for children on the ASD such as behavioural therapy with an ABA or IBI therapist. There is no dispute that Coco’s needs are complex and require both parents’ involvement, as well as a number of specialists, doctors and service-providers.

18The mother submits that the father was not involved with the children and that his three affidavits filed in support of the motion are replete with sweeping statements about his parental involvement without objective evidence proving his involvement. In particular, the mother deposes that the father “was uninterested in participating in the children’s appointments, childcare, decision making and activities”.

19The father’s affidavit, sworn on December 11, 2020, specifically outlines various programs he attended to support Coco once she was diagnosed as being on the ASD. Similarly, the mother’s affidavit, sworn on December 11, 2020, demonstrates that she was equally, if not more, involved with Coco upon her diagnosis, including attending all of her assessments and in addition, she completed a three-month program for parents of autistic children, ”More than Words” to gain parenting strategies.

20Further, the evidence supports the mother’s assertion that she has been the parent who arranges appointments, emails and communicates with all third parties involved with the children such as Coco’s paediatric neurologist, Dr. Friedman; Coco’s Speech Language Pathologist; Coco’s Early Interventionists from York Region and the Waldorf School; Coco’s Developmental Assessment Psychologist; Coco’s Kumon Instructor; Coco’s art teacher; Coco’s Waldorf teacher; Coco’s TDSB Teacher in the Fall of 2020; and the Waldorf school in general about Coco.

River’s Birth and the Father Leaving the Work Force

21When River was born on January 4, 2017, the father took nine-months parental leave once the mother returned to work after a short maternity leave. The father deposes that during the nine-month paternal leave, he was solely responsible for caring for both children, feeding them, putting them to bed, soothing them and playing with them. By contrast, the mother deposes that the father chose to take parental leave, but it was not to care for the children or to take on a primary caregiving role. The mother deposes that the parties had a nanny and her parents were living with them for months assisting with childcare after River was born. The father acknowledges that the parties employed a nanny from 2016 to August 2019, to assist with household responsibilities and childcare. However, the father maintains that he was the parent home with the children, tending to their daily needs, taking them to their medical appointments and activities, feeding them, playing with them, going on outings with them, etc. while the mother worked full-time.

22In September 2018, when Coco was 4 years or age, she underwent a Developmental Assessment Report at Morneau Shepell by a psychologist, Dr. Thomas Rhee. The Report was conducted to assess Coco’s cognitive profile in order to assist the parties with choosing the best school for her, given her ASD diagnosis when she was 2 years of age. The report indicates that Coco met the criteria for a diagnosis of Intellectual Disability. The report is clear that both parents were involved in this assessment report and were interviewed. This fact is not disputed, except that the mother deposes the father only attended the assessment appointments on her insistence.

23As stated above, Coco is currently the age of a Grade 2 student (age 7) but she is currently repeating senior kindergarten at the Waldorf School in Thornhill. Again, River has no special needs. She is currently in preschool at the Waldorf Private School full-time.

24On December 11, 2020, the parties executed Minutes of Settlement in which they agreed to have Dr. Susan Walker Kennedy conduct a s.30 assessment pursuant as soon as the parties physically separate.

Father’s Position on Parenting Roles and Temporary Parenting Schedule

25According to the father, he resigned from his employment at the Bank of China (Canada) on September 26, 2017, to look after the children so the mother could pursue her lucrative mortgage specialist career at BMO. According to the mother, the father wanted to stop working and chose to take paid parental leave after River was born so he could use the convenient excuse to advise his employer that he was resigning for “family reasons”. The mother deposes that she never demanded that the father stop working or request that the father leave his career as he alleges. Rather, the mother submits that there were a multitude of people who assisted her in caring for the children, the nanny and her parents, and that the father made the decision on his own to stop his career. The mother deposes that she believes it was the father’s pride that also contributed to his decision to stop working since she was earning much more than he was and he did not want to work. The father disagrees.

26The father deposes that the mother was a hard worker and she was typically out of the home daily from 8:00 a.m. to 8:00 p.m. and, that during her busy season, from October to May in each year, she returned home between 10:00 p.m. and midnight. According to the father, he was the parent involved in all aspects of the children’s day to day care, including morning routines; feedings; diaper changing; playing, activities; outings, soothing, taking the children to doctor’s appointments, etc. The father attaches the mother’s 2016 income tax return as an exhibit to his affidavit, sworn on December 21, 2020, to evidence how hard she was working, which lists her line 150 income as $988,895.99 in 2016, and in excess of $650,000 in 2017.

27By contrast, the mother deposes that she was the primary caregiver for the children attending to their educational, learning and medical needs, and the parent who was involved in their social playing and daily care needs until the litigation commenced. As a mortgage specialist, the mother deposes that she had a great deal of flexibility, was able to work from home when necessary, and was able to leave work early to pick up the children and attend appointments with them. Once the children began attending full time school at Waldorf in September, 2018, the mother deposes that she helped the children dress in the morning, feed them breakfast, take them to school and that after dinner, she would assist with Coco with homework and play games with the children before bed. The mother acknowledges that the father was responsible for picking the children up from school once he resigned from employment. However, the mother has attached school records to her affidavits to demonstrate that the father typically picked and continues to pick up the children after school late, such as closer to 5 p.m., as opposed to retrieving them as soon as school ends so he can spend time with them.

28The father recognizes and acknowledges that his first language is Mandarin and that he does not have fluency in the English language. The father deposes that the mother was the parent who routinely took the lead in conversations with the children’s teachers and service-providers given her proficiency with the English language. However, the father deposes that his lack of fluency in English does not take away from his active parenting role in the children’s life. The mother submits that the father is unable to be the primary caregiver for the children as a result of his limitations with the English language. The mother asserts that the father’s refusal to learn English despite being in Canada for the past ten years impacts his ability to parent the children. As an example, the mother submits that when the children speak with each other in English and have a fight, the father cannot understand what they are saying and is, therefore, unable to intervene or assist with problem solving.

29The mother deposes that she is the only parent to communicate with the children’s teachers and doctors. To illustrate how problematic the father’s lack of English proficiency is, the mother points to the texts the father attached to his affidavit sworn on December 21, 2020, as an exhibit in which the father asks the mother when she was in China/Japan for three weeks in March 2019, to contact the school to advise them that Coco would be staying home school because she was sick because he was unable to communicate that information to them.

30The father deposes that during the marriage, the mother often travelled for work and left both children in the father’s care. For example, in 2019, the mother travelled to China/Japan for three weeks while the father was in Toronto caring for the children. By contrast, the father deposes that the children have never spent more than one day away him. The mother acknowledges that she has had some travel for work but denies that the travel happens often. The mother agrees that she was away for three weeks in March 2019, in China/Japan and deposes that she left the children with the father because her parents were in Toronto residing at the home as well, and the children were enrolled in March Break camp at the Waldorf School while she was gone, as opposed to spending time with the father.

31According to the father, the mother has been engaging in escalating conflict with him since the separation, as follows:

a. She has removed the children’s immunization records, health cards, passports and all Government issued identification, such that the father cannot access these documents, if necessary. Counsel for the father has written to the mother’s counsel on five occasions, repeatedly asking the mother to return these documents to a shared location in the matrimonial home so both parents can access the documents if needed. The mother refuses to consent;

b. She has removed the children’s toys and possessions from the matrimonial home and when asked to return these items, the mother refuses to consent;

c. The maternal grandparents have been surreptitiously videotaping the father on their phones at the direction of the mother or on their own whim. The father is constantly being surveilled by them. Instead of assisting with the children, the maternal grandparents have been videotaping Coco crying in an effort to “catch” the father in what they say is bad parental behaviour; and

d. She tries to limit the time he has with the children by taking the children into her room to do online school in September and October, or to play, knowing that the father is uncomfortable and will not interfere with her, given his worries about false allegations.

Father’s Proposed Temporary Parenting Schedule

32The father proposes a parenting schedule where the children have their primary residence with him and reside with the mother six nights out of fourteen, such that in Week One, they are with the mother from Wednesday, after school until Thursday morning and in Week Two, they are with the mother from Wednesday, after school until Monday morning. The father submits that his proposed time-sharing parenting schedule is in the children’s best interests for the following reasons:

a. This schedule maintains the status quo to which the children are used to, pending the completion of the s.30 custody and access assessment;

b. A shared parenting schedule provides the children with stability and predictability;

c. This schedule ensures that the father continues to be the primary parent to the children, since he has been a stay-at-home parent since May 20, 2017;

d. The children have not been away from the father for more than one day since they were each born; and

e. The schedule he has proposes allows the children to spend meaningful time with both parents and allows both parents who love the children, to continue to play an active role with the children.

33According to the father, the parenting schedule proposed by the mother is restrictive and does not recognize the role the father has played in the children’s lives. The parenting schedule proposed by the mother limits the father’s time with the children to about 16 hours a week, which he submits is not warranted. He maintains that this limited schedule is not in the children’s best interests to create a situation where their relationship is essentially stunted because he is only permitted to spend four hours at a time with them, three times a week. Finally, the father submits that the mother’s proposed parenting schedule essentially severs his relationship with the children which is not in their best interests, given their attachment to him.

34According to the father, once the Court makes an order defining the temporary time-sharing parenting schedule, he will move out of the matrimonial home. He proposes to either move into a property owned by the parties at 257 Olive Drive which was listed for sale but the agreement of purchase and sale expired at the end of October 2020, or, alternatively, the father plans to move into his cousin’s house, which is over 4,600 square feet, and is close to the matrimonial home, in which both children will have their own bedrooms. The father’s cousin and his wife have each sworn affidavits in support of the father and have confirmed that the father and children can reside with them in their home and their child, with whom the girls know well and are close.

Mother’s Position on Parenting Roles and Temporary Parenting Schedule:

35According to the mother, the father’s three affidavits filed in support of this motion are replete with argument, assertions and sweeping statements about his parental involvement with the children, with little supporting evidence. By contrast, the mother submits that she has filed 10 affidavits from third-party collaterals to evidence her extensive involvement with the children demonstrating that she is the primary parent.

36The mother believes that of the two parents, she is best equipped to manage Coco’s special needs. Coco’s unique needs impact the parenting plan in that Coco does not deal well with transitions. According to the mother, the father’s proposed parenting schedule is not in the children’s best interests because it would result in significant changes for Coco, which is not in her best interests.

37In her position as a mortgage specialist at BMO, the mother deposes that she has a great deal of flexibility and, therefore, has always been able to work full-time and be very involved with the children. The mother deposed that during the marriage, she often worked from home and that she was available to look after the children. In particular, the mother submits that between January 2016 and September 2018, she had the benefit of two assistants from BMO which allowed her to care for the children. The mother’s two assistants swore affidavits in support of the mother. The assistants confirm that they came to the house to work with the mother in the evenings when the children were asleep and that the mother would leave the office early often to take Coco to appointments. The mother deposes that she was not out of the home from 8 a.m. to 8 p.m. most days as the father alleges.

38Although the mother does not dispute that the father has not worked since May 2017, she maintains that she was working from home with two assistants, the parties had a nanny and the maternal grandparents were at home as well. The mother submits that the father was not at home so that he could be a primary parent to the children. There is no dispute that the father took parental leave and has been home since the spring of 2017. The dispute is whether he played as active a parenting role with the children as he claims.

39The mother deposes that she was the parent who sought out and continues to seek out all supports for Coco, arranges for her various therapies such as speech therapy and early intervention therapies. The mother attaches emails between her and various third parties providing supports to Coco to her affidavits evidencing that she was the parent who arranged and was the contact person for these various appointments. The mother deposes that the only assessment or support in which the father was involved was the Developmental Assessment at Morneau Shepell that she arranged for Coco in August and September 2018 and only because she insisted that the father participate in this assessment.

40The mother attached five videos by hyperlink as Exhibit “F” to her affidavit, sworn on December 11, 2020. The mother deposes that these videos were taken by her parents in the matrimonial home to provide examples of concerns she and her parents have about the father’s parenting abilities when she is not present. Counsel for the father submitted that these videos ought not to be considered by the Court, or alternatively, if considered, that they ought to be given little weight. Despite the fact that her parents took videos of the father looking after Coco surreptitiously, the mother deposes that she felt compelled to have her parents take these videos to demonstrate that the father is not equipped to look after Coco, that he becomes frustrated when she cries and that he is not sensitive to her needs.

41The father is not shown in the videos. Instead, the videos show Coco crying in the basement and the individual who took the video, is taping Coco without comforting or soothing her and walks away as she is crying. There is a man speaking in Mandarin on the videos. There is no date on the videos and it is impossible to know for certain when they were taken. The father does not dispute that the man’s voice on the video is his voice. The translation of the videos demonstrate that Coco is crying and the father is telling her to stop crying.

42Just before the commencement of the school year this September, the mother deposes the father withheld his consent to the children recommencing school at the Waldorf School, just days before the school year started. The father, however, deposes that when he attempted to discuss with the mother the safest option for the children to attend school, in light of the Covid-19 health crisis, he learned that she had unilaterally paid for the Waldorf School without discussing this with him. The father submits that he expressed his reservations to the mother about the children attending in-person schooling so far from the matrimonial home and his concerns about the affordability of the Waldorf School since the matrimonial home faced power of sale proceedings. The mother deposes that she enrolled Coco in the on-line school program at the Hollywood Public School as a precaution so as not to miss the on-line registration deadline if the parties could not reach agreement about the children attending school in-person. The father deposes that the parties reached a without-prejudice consent for Coco to attend on-line school at the Hollywood Public school in their catchment area.

43According to the mother, the tuition for Waldorf School had already been paid by her parents and the father had had all summer to raise this issue but did not do so. The mother, however, does not deny that the parties reached a consent for Coco to attend on-line school at the Hollywood Public school. According to the mother, Coco was enrolled in a Grade 2 class given her age, which was a challenge for her given that she had previously been in Senior Kindergarten at the Waldorf School. The mother deposes that she was the parent in contact with the TDSB and Coco’s teachers to ensure they were aware of Coco’s educational issues. The mother deposes that during online learning in September and October 2020, Coco often asked her for assistance with her school work which angered the father; the father was not able to assist Coco given his limitation with the English language, but failed to acknowledge his limitations in this respect and continued to insist that he be the parent to assist Coco even though he was not able to do so. The father deposes that he tried to assist Coco with online learning but the mother refused to cooperate with him, making his involvement difficult without exposing Coco to conflict.

44Once Waldorf demonstrated their Covid-19 policies were being strictly followed and the maternal grandparents agreed to pay the Waldorf School tuition temporarily, the parties reached an agreement that they would send both Coco and River back to the Waldorf School, that the mother would take the children to school and the father would pick up the children from school. The mother submits that this could have all been avoided but for the father’s insistence that he home school the children.

45The mother does not dispute that she travelled in 2019 and 2020 for work. She deposes that she was away about 1 week a month. While the mother acknowledges that she did leave the children in the care of the father, she deposes that she did so only because the maternal grandparents were home along with the nanny, who were present to support the father. With respect to the mother’s three-week trip to China/Japan in 2019, the mother deposes that not only were her parents present while she was away, but the children were enrolled in a March Break camp at the Waldorf school rather than in the daily care of the father while she was away.

46The mother asserts that she is the only parent who can effectively communicate with all of the third-party support individuals who work with Coco because the father has refused to learn how to speak and communicate in English. It appears from the various emails attached to the mother’s affidavits, that she has typically been the parent who has had contact with the third parties involved with the children including their teachers and doctors, as opposed to the father.

47The mother describes the father as being controlling, impatient, unable to self-regulate his emotions, having a short temper and a difficult personality. The mother’s parents filed affidavits in support of the mother’s motion and their evidence is that the father is impatient, rigid and often yells at the children.

Mother’s Proposed Temporary Parenting Schedule

48The mother’s proposed temporary parenting plan is that she and the maternal grandparents will remain in the matrimonial home until it is listed for sale and sold and then she will likely have to rental alternative accommodation. Her proposed time sharing schedule provides the children with three separate periods of time with the father in a week, such that the children will be with the father on Wednesdays, from 3:30 p.m. to 7:30 p.m. (4 hours); Fridays, from 3:30 p.m. to 7:30 p.m. (4 hours) and alternate Saturdays, from 11:00 a.m. to 7:30 p.m. (8.5 hours), for only16.5 hours a week. The mother proposes that in eight weeks’ time, the father’s Friday access become overnight such that the children will reside with him on Friday, from after school to Saturday, at 7:30 p.m. The mother believes this time-sharing arrangement is in the children’s best interests because they are not used to being alone with the father and this will give them gradual time to get used to being in his care on their own, and as he spends more time with the children, she believes that an increase in the father’s parenting time to include overnights will be a natural progression.

Relevant Evidence

Texts between the Parents During the Marriage:

49Below, I have reproduced the English translation of some of the parent’s text exchanges found at Exhibits “E” and “G” to the father’s affidavit, sworn on December 23, 2020, as well as some text exchanges between the father and the mother’s aunt, Dan Chen, when the mother was away for 3 weeks in March 2019, found at Exhibit “J” to the father’s affidavit, sworn on December 23, 2020:

1. April 12, 2017: at 15:13 p.m., from mother to father, “Coco is having a fever, quickly go pick her up”. The School is calling”. From father to mother, “appointment made, will leave right away.”

2. September 15, 2017: at 13:46 p.m., from mother to father, “Hubby, is River ok?. At 14:23 p.m., from father to mother, “Just back. It is fine, just a bit of inflammation in the throat. Prescribed a spray”.

3. November 24, 2017: at 22:20 p.m., from father to mother: “both of them are not sleeping”. At 22:33 p.m., from mother to father, “just hold on for a little more”. At 23:03 p.m., from father to mother, “Got to be back, both are crying”. From mother to father, “Ok, I will talk to them.”‘ At 23:09 p.m. ,from mother to father, “leaving going to the parking lot now.”

4. March 2, 2018, at 20:47 p.m., from mother to father, “Hubby, how are the kids doing?”. At 21:07 p.m., from father to mother, “They don’t want to go to sleep”. At 21:12 p.m., from mother to father, “emoji with hand on head, “oh no”, and “Yan ran”.

5. December 2, 2018, at 6:41 p.m., from mother to father: “Hubby, are kids are sleeping? We haven’t even started”.

6. January 3, 2019, at 10:22 a.m., from father to mother, “River, tomorrow at 4:30 p.m.”. From mother to father, “4:30 p.m.? Have you arrived? How is the visit?”. At 11:05 a.m., from father to mother, “There is inflammation, prescribed medicine”. From mother to father, “oh ok, then go home first”. At 1:06 p.m., from father to mother, “Come home before 4:00 o’clock, I will go pick up River”.

7. January 8, 2019, at 10:12 p.m., from mother to father, “Haven’t finished eating. Almost done. I will let you know when I leave in a bit. Kid are sleeping?”;

8. January 19, 2019, at 9:40 p.m., from mother to father, “Are kids sleeping yet. Not done yet”;

9. January 25, 2019, at 2:45 p.m., from mother to father, “Hubby, you go pick up Coco, bring her snow pants back”. At 2:59 p.m., from father to mother, “Ok. River is not having a fever now”.

10. February 7, 2019, at 7:48 p.m., from father to mother, “When are you going to be back roughly? From mother to father, “Just started eating. 10”. From father to mother, “ok”. At 9:02 p.m., “Hubby, I will be done soon. Starting to get back”. At 9:16 p.m. from father to mother, “ok”.

11. March 6, 2019, at 5:02 p.m., from mother to father, “My client just showed up. Will be back a little later. You eat first. Don’t wait for me.” At 6:42 p.m., from mother to father, “I am starting to leave for home now”; and

12. March 7, 2019, at 8:51 a.m., from mother to father, “Deposited. I want to work overtime. Can I bother you to play with the kids?” From father to mother, “ok”.

50While the mother was in China/Japan for 3 weeks:

1. March 19, 2019, at 8:01 a.m., from father to mother, “ok you guys have fun”. From mother to father, “Hey don’t speak English. Crazy.” At 8:55 a.m., from father to mother, “Send me the address”. From mother to father, “Are the kids up? Still have fever? Will the 2nd kid go to school today?” At 5:54 p.m., from mother to father, “How’s River doing. Still having a fever”. At 6:31 p.m., from father to mother, “Taken the medicine. Feeling a bit better. Just some ulcers on the tongue. A little painful. Not eating much.” At 7:12 p.m., from mother to father, “poor baby. Can I have a video chat with her?”

2. March 29, 2019, at 8:39 p.m., from father to mother, “Please call the school in a little bit. Coco is not going to school. She had a fever last night. River is ok. No fever. I will make the appointment with the doctor later.” From the mother to the father, “Omg what’s happening. So hot. Ok. I am calling now. Just called the school. Thank you. Thank you. You will take Coco to see the doctor today, right? Are the kids up? Any fever? The second kid going to school today?”;

3. March 21, 2019, at 8:47 a.m., from father to mother, “Just got up. Coco still had fever last night. No fever now. The second kid is ok. You can have a video chat with your mom. I am washing. No school for all of them today.” At 8:57 a.m., from mother to father, “ok. Ok”. At 10:14 a.m., from father to mother, “made an appointment with the family doctor. 3 o’clock in the afternoon.” At 12:22 p.m., from mother to father, “thumbs up” emoji. At 4:28 p.m., from mother to father, “How is Coco doing? What did the doctor say?”. At 7:37 a.m., from father to mother, “prescribed antibiotics”. From mother to father, “ok. I appreciate your hard work these days.”

4. April 7, 2019, at 8:09 p.m., from mother’s aunt to father, “Ah you did not eat well today. This is how it is when you have kids, it is so hard to have a peaceful meal. Take your time it will be better when the kids are older. I appreciate your hard work, take good care of yourself! We will always be here whenever you call upon us”.

5. June 28, 2019, at 4:10 p.m., from mother to father, “is it ok I made an appointment to have dinner with a client tonight”. At 5:36 p.m. from father to mother, “ok”.

6. July 12, 2019, at 4:17 p.m., from mother to father, “I will have dinner with a few builders tonight. Will be back when I am done”.

7. August 28, 2019, at 12:52 p.m., from mother to father, “How are the kids? Had lunch already”. At 12:59 p.m., from father to mother, “just had it”.

8. September 17, 2019, at 6:56 p.m., from mother to father, “How are the kids?”, from father to mother, “Not bad. Just Ate. Ate a lot”. At 8:01 p.m., from mother to father, “Good. Had Shower? Get ready for bed please. I appreciate your hard work”.

9. September 18, 2019, at 8:47 a.m., from mother to father, “how are the kids. Gone to school?”. At 4:52 p.m., from mother to father, “flight is delayed. I will be back home at 10:00. You go to bed with the kids first”. At 8:59 p.m., from father to mother, “Just had a bath, ready for bed now”. From mother to father, “Ok I will be back in the afternoon. How is the cough of the second kid?”

10. October 9, 2019, at 3:28 p.m., from mother to father, “We just left, you have dinner first. From father to mother, “ok”. From mother to father, “Maybe around 7. No need to prepare my food. I will eat something on the way”. At 7:23 p.m., from mother to father, “In Toronto now, will be back after we eat some noodles”;

11. October 16, 2019, at 8:08 p.m., from mother to father ”just finished my deal. I will eat something with my colleague before I come back”

12. November 8, 2019, at 10:52 p.m., from mother to father, a picture of a round table sent, “President Ji is talking with enthusiasm. Not done yet? Are the kids sleeping? At 11:25 p.m., from father to mother, “yes”. From mother to father, “Everyone is talking enthusiastically. Not done yet”.

13. November 21, 2019, at 8:09 a.m., from mother to father, “How are the kids? How is Coco doing? I have boarded the plane?” at 9:28 p.m., from father to mother, “They are good, in school now”. At 7:41 p.m., from mother to father, “how are the kids? Sleeping?” At 8:29 p.m., from father to mother, “All good, ready for bed”.

14. December 18, 2019, at 11:22 p.m., from mother to father, “You need to bring the kids to see the paediatrician at 4:00 o’clock this afternoon. I invited the underwriters to have dinner tonight. After the dinner, I will meet a few agents with Pres. Li and Ji”. At 11: 56 a.m., from father to mother, “ok”;

15. December 20, 2019, at 5:06 p.m., from father to mother’s aunt, “CONG Xie invited someone for dinner tonight. I have prepared dinner tonight Aunt; you don’t need to prepare our dinner.” From mother’s aunt to father, “You don’t have to cook for yourself, you can just eat here when you come over to pick them up. I didn’t prepare anything special.” From father to mother’s aunt, “I am eating now”…., from mother’s aunt to father, “Take your time to eat more when the kids are not home, it’s rare for you to eat peacefully”; and

16. March 12, 2020, at 9:29 p.m., from father to mother, “roughly, when will you be back home today.” At 9:38 p.m., from mother to father, ‘Later than 10, after the kids are asleep”. At 9:45 p.m., from father to mother, “Ok I just bathed them, I will get them to bed then.” At 10:12 p.m., from mother to father, “Sleeping?”, from father to mother, “sleeping. Try not to make noise when you come in. don’t be like yesterday, waking the kids up”.

51These text messages were exchanged by the parties and between the mother’s aunt and the father, both prior to the parties’ separation and afterwards. As such, they provide objective evidence as to the pattern of parenting roles before the marriage breakdown.

Third-Party Affidavits

52As mentioned above, the mother filed 10 third-party affidavits in support of her cross-motion and to support her position that she is the children’s primary caregiver. Many of these third-party affidavits are self-serving and do not prove the mother’s position namely, that the father was not an involved parent. Accordingly, these collateral affidavits are not very helpful to the Court.

53In particular, the following third-party affidavits were filed and provided the court with the following evidence:

1. The maternal grandparents swore affidavits on November 11, 2020. Attached to both affidavits, is a translated letter both maternal grandparents wrote which made a number of observations as follows: (a) The father has not mastered English despite being in Canada for the past 10 years; (b) when both girls communicate in English, the father cannot comprehend the children, which results in an inability to communicate with the children; (c) the father cannot communicate with the treatment providers for Coco; (d) when a child is ill the father cannot make the appointment for the child at the clinic or describe the symptoms to the doctor; (d) the father often looks at his cell phone while with the children offering no effective companionship; (e) most of the children’s toys and learning materials are purchased by the mother; (f) the father’s mood is unstable and he often yells at the children; (g) the children are resistant to the father because of how he interacts with them; and (h) the father does not cook or clean or purchases the daily necessities for the children or family;

2. FengYan Xia, the parties’ former nanny, swore an affidavit on November 11, 2020 in support of the mother. Ms. Xia worked with the family from November 2016 to August 2019, as a nanny from 1:30 p.m. to 6:30 p.m. every Monday to Saturday. She deposed that her main roles were to take care of the children, cooking and cleaning; the mother usually worked from home before the children went to formal school; the mother’s two assistants would often come to the home to work with the mother; and once the children began to go to school, the mother insisted on dropping off and picking up the children at school in order to communicate with their teachers because the father cannot communicate in English. In terms of the father, Ms. FenYan Xia deposed that the father often watched TV in his room or in the living room while she and the mother looked after the newborn, River; when the father did assist, he would hold River while watching TV and rarely had any interaction or communication with them; when the father did interact with the children he was often impatient and yelled at them; when the children did fight, he was impatient, did not help the children solve the problem and smacked Coco on the bum; and the children did not listen to the father because he was incapable of normal interaction with the children;

3. BingYang Huang, swore on affidavit on November 11, 2020. She was one of the mother’s two assistants from BMO. She worked with the mother from January 2016 until September 2018. Similarly, Fang Chen swore an affidavit on November 11, 2020. Ms. Chen is an assistant to the mother from BMO;

4. Hongling Zhan swore an affidavit on November 11, 2020. She is a friend of the mother and is also the president of the Children and Parenting Education Centre, a non-for-profit organization. She wrote a letter of support for the mother in which she deposed that she and the mother are close friends; the mother asked her for advice on how to cultivate a child’s habit of reading; the mother approached her in the Spring of 2017, when Coco was at the Toronto Montessori School, because Coco was not able to keep up with the learning progress and she recommended Morneau Shepell to the mother to conduct an educational assessment for Coco as her son has been there; and she deposed that the mother has actively sought the help of professionals and doctors for Coco, read many books and studied courses online for parents to assist Coco;

5. HuiHui Ye swore an affidavit on November 11, 2020. She is the mother of one of River’s classmates and she wrote a letter of support for the mother, in which she deposed that she met the mother in the Fall of 2018 at the Waldorf School; she saw the mother picking up the children from school; she observed that the mother was very patient with the children; she did not meet the father until the summer of 2020 when the children were in the Waldorf School’s summer preschool; she observed at a drop off that the father showed more attention to River, applied sunscreen on her and reprimanded Coco; she observed that the father’s tone was impatient and harsh; and when visiting the matrimonial home, she observed both girls clinging and attached to the mother;

6. Stan Haribowo swore an affidavit on November 11, 2020. He is Coco’s Kumon instructor and wrote a letter in support of the mother deposing that Coco has been enrolled in Kumon since the Fall of 2020 for reading remediation and the mother has been a highly involved parent since early on in Coco’s enrolment at Kumon;

7. Jiahong Pu swore an affidavit on November 11, 2020. She is the art instructor for the children and wrote a letter of support for the mother deposing that she gives art lessons to preschoolers; she teaches Coco art once a week; the mother is mainly responsible for drop off and pick up; River has now joined and also enjoyed the art class; and when the mother accompanies the girls to art class she also communicates with the teacher about the previous week’s art practice;

8. Dan Chen swore an affidavit on November 11, 2020. She is the mother’s aunt and wrote a letter in support of the mother in which she deposed that she became a landed permanent resident of Canada on December 20, 2018; she got together with the parties every two weeks for the past two years on weekends; the two girls always stick to the mother and they often went to the park together during which outings. Ms. Chen deposed that the father never attended or played outside with the girls; she always observes the mother with the children studying and arranging the children’s activities; on Saturdays the mother took the children to painting lessons; the mother often arranges play dates for Coco to improve her social skills; the nanny did all the household chores and cooking; once the maternal grandparents came to Canada in December 2019, they took on the responsibility of cooking the children’s meals; and since 2020, she has never seen the father when they visit the home; and

9. Susan Xie swore an affidavit on November 11, 2020. She is a family friend and deposed as follows: she met the mother in 2009 at Seneca College; she meets the mother with her children often at parks, playgrounds; the father rarely speaks English and the mother has to deal with everything; the mother schedules her work at night so she can be there for her kids; the mother works with the specialists for Coco because the father does not speak English; the father has very strict rules for the mother and the girls; and the father will not allow the children to be on an airplane.

Analysis

54The only test upon which the Court must rely in determining a parenting schedule, either at a temporary or final stage of the case, is the best interests of the children as set out in s.16(8) of the Divorce Act and having regard to the factors set out in section 24(2) of the Children’s Law Reform Act reproduced below:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

55As held by Coroza, J. in Sheikh v. Muzaffar, 2018 ONSC 4415, “These factors are not watertight compartments. The strength of some of the s.24(2) factors may compensate for the weaknesses of others.” The overarching principle is the best interests of the children.

Factor (a): Love, Affection and Emotional Ties.

56This factor is neutral in this case. The mother claims the children are more attached to her while the father claims that the children are equally as attached or more attached to him. However, in the face of competing affidavits, I have no independent objective evidence that suggests that the children are more attached to one parent over the other.

Factor (b): Child's Views and Preferences.

57This too is a neutral factor in the case at bar. One of the difficulties in this motion is that the children are fairly young and Coco, given her special needs, cannot verbalize her views and preferences. Given the young ages of the children and Coco’s special circumstances, their views cannot readily be ascertained. The court has not received, and arguably cannot ascertain, evidence regarding the children's views from the children themselves. Each party has attempted to set out the children's views by explaining that the children exhibit behaviours such as crying and resistance behaviours.

58It is an impossibility for me to make a finding based on this evidence. The proffered evidence regarding the children's views has been filtered through the lens of each party's opposing views and opinions. The affidavits are diametrically opposed, and each party’s assertions have not been tested. I am not in a position to make any definite conclusions on the views of the children based on their affidavits.

Factor (c): Length of Time Children have lived in a stable home environment.

59The children have been living in the matrimonial home since separation together with both parents. However, with the conflict that has arisen between the mother and father and the father and maternal grandparents, the home environment is unstable which is why a temporary parenting schedule needs to be put in place in two separate households immediately.

Factor (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.

60The mother deposes that the father is not sensitive to and does not fully appreciate Coco’s needs or River’s for that matter. She submits that the father is rigid, controlling and has a temper when dealing with the children. The mother seems intent on minimizing the father’s role with the children. I reach this conclusion because when the issue of Coco’s schooling arose in the fall of 2020, the mother discounted the father’s opinion about Coco’s safety during Covid-19 entirely and deposed that the father ought to have simply capitulated to her unilateral re-enrollment of the children at the Waldorf School. The mother’s position in this regard minimizes the fact that both parents have a right to decide what is best for the children in terms of education and school placement, particularly in this school year as a result of the additional concerns regarding the Covid-19 pandemic. The parents, having separated, not only have to consider their own opinions and beliefs about what is best for the children, but they must respect and consider the other parent’s opinions and beliefs about what is best for the children or co-parenting will not work.

61The father vehemently denies that he does not appreciate or understand Coco’s needs. Other than short clips of a video tape which show Coco crying and the father speaking to her (in a loud voice), there is no independent or objective evidence on the record to suggest that that the father has not in the past, and cannot in the future, look after the children adequately. Furthermore, the text messages between the parties seem to indicate the opposite, which will be more fully canvassed below.

Factors (e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing

62The father’s proposed temporary parenting plan is one which provides the children with meaningful time with both parents and is meant to ensure that the children spend maximum time with both their primary caregivers. Although the father has proposed a schedule where the children spend 8 nights out of 14 with him, his temporary parenting plan recognizes the importance to the children is having a meaningful relationship with both parents.

63By contrast, the mother’s proposed temporary parenting plan is highly restrictive. The mother’s plan suggests that the father is incapable of looking after the children and their needs and that it will take at least two months for the children to become sufficiently comfortable with before they can spend overnight time with the father. Based on a thorough review of the evidence before me, I do not accept that the father is incapable, unwilling or uninterested in caring for the children as the mother alleges. The history demonstrates that the parties were both involved with the day-to-day care of the children. While the parents may differ in their temperaments and in how they interact with the children, in my view the mother has not met her onus to demonstrate why the father’s parenting time ought to be as restricted as she proposes, pending the completion of a s.30 assessment.

Factors (f) through (h)

64The mother’s primary argument is that the father’s proposed schedule will be very disruptive to the children and particularly difficult for Coco since she is not used to being with the father primarily and she does not deal well with transitions. The mother’s position is that the children should live with her as the primary caregiver so that she can provide consistency and a reasonable schedule. She argues that the father is unable or does not have the ability to properly parent the children, particularly Coco.

65Since this is a temporary motion the court is also required to consider the principles with respect to temporary orders.

66A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not, the issues will be resolved at a trial: Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean, 2014 ONSC 7332 at para. 11.

67The status quo should be maintained until trial unless there is material evidence that the child’s best interests requires an immediate change.

68Children should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

69The party seeking to reduce normal access will generally be required to provide a justification for taking such a position. The greater the restriction sought, the more important it is to justify that restriction: M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 at para. 24.

70On a temporary motion, the most relevant factor to be considered is the principle of maintaining the status quo, recognizing that any evidence adduced at the motion, cannot be properly tested at an interim stage in the proceeding. As held by Zisman, J. in Perchaluk v. Perchaluk, 2012 ONCJ 525, at para. 28:

“In considering these factors at a temporary stage in the proceedings, the most relevant factor the court must keep in mind is the principle of maintain the status quo pending trial. Temporary orders are by their nature based on limited evidence without the scrutiny of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. After a full investigation of the facts, a trial judge may very well come to a different conclusion”.

71I have also considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations and such orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial, and in this case, pending the completion of a s.30 assessment.

72I have also considered that a temporary order can have and frequently does have long term implications.

73Even though on this motion, many more affidavits were filed than are usually seen by the court on temporary motions, none of this evidence has been scrutinized as it will if this matter proceeds to trial or after the court and parties have had the benefit of reviewing the s.30 CLRA custody and access assessment report.

74In this case, the parties have already agreed that a s.30 assessment will commence as soon as the agreed upon assessor can commence once this decision is released. This means that once the assessment report is rendered, a further change in the children’s parenting schedule will be likely. As held by Murray, J. in K.A.C. v. P.P. 2007 ONCJ 217 (OCJ), at para. 49:

“The principle that there must be a good reason in a custody case to change the status quo before trial flows from two concerns: a concern for fairness to the parties and a concern for the child’s best interests. Generally, it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”

75In this case, the quality of the evidence available to the court has not yet been tested by cross-examination. Regardless, the Court must determine a temporary parenting schedule so the parents can physically separate to prevent any further exposure by the children to parental conflict.

76What is telling in terms of the evidence on the record, are the copies of the WeChat texts/messages between the parents attached to the father’s affidavit, sworn on December 23, 2020, as Exhibits “E” and “G”. The texts between the parents date back from November 2017 and demonstrate that prior to the breakdown of the marriage, the father was very involved in looking after the children late at night, when the mother was either at work, attending work events, out with friends or travelling; bringing them to school, picking them up from school and taking them to the doctor, feeding them, bathing them and playing with them. The texts demonstrate that the parents approached their parenting from the perspective of a “partnership” and that the father was equally aware of and involved with the children daily, as was the mother.

77It is clear from these texts that the mother trusted the father to care for the children alone and was thankful for his assistance. Any suggestion otherwise by the mother is simply disingenuous. These texts do not indicate, as the mother alleges, that the father is not interested in looking after the children or their needs. Rather, these texts indicate that both parents were involved with the children and that the mother relied on the father for childcare assistance when she was not available.

78Further, I reviewed the five video recordings that the mother attached to her affidavit, sworn on December 11, 2020, of the father and Coco. The videos were taken surreptitiously and, in my view, do not support the mother’s proposed parenting time-sharing proposal which restricts the fathers time with the children dramatically. The videos, in my view, do not demonstrate that the father is inappropriate with Coco. Rather, they depict a child crying and a father giving her time to calm down and encouraging her to use her words to communicate.

79The Ontario Court of Appeal in the case of Sordi v. Sordi, 2011 ONCA 665 affirmed that a trial judge has the discretion to determine if taped conversations should be admissible taking into account “the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings” but also a trial judge needs to assess “the probative value of the tapes in relation to the issues”.

80Similarly, Sherr, J. held in Hameed v. Hameed, 2006 ONCJ 274, at paras, 11 and 13:

“[11] Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

12I agree with Justice Henry Vogelsang who said in paragraphs [5] and of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 CanLII 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):

5. . . There is a wide scope for potential abuse in this practice.

6The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court.

13The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.”

81In this case, there is a certified translation of the audio heard on the video tape from Mandarin to English. The videotapes are being relied upon by the mother to demonstrate that the father does not have the parenting capabilities necessary to look after the children’s best interest and/or to support her position that the father is not sensitive to Coco’s needs. The father deposes that the probative value and the reliability of the surreptitious video recordings is very low. He deposes that the recording were taken by an unidentifiable party, ostensibly one of the maternal grandparents, and not the mother; that no context is provided for the recordings, other than the date; the location of the recordings is unclear; and the adult speaking in the video is not visible.

82I find the video recordings of little value to the Court. They are not reliable given that the maternal grandparents took the videos, as acknowledged by the mother, while not parties to the case, are the parents of an interested party; the method of recording and lack of context of what was transpiring just prior to the recording. They have little probative value, if any, to the issues on this motion. Furthermore, I do not find that the video recordings support the mother’s position that the father has not been an involved parent or engages in concerning discipline of or poor treatment toward Coco. In one example, rather than soothing Coco when she is crying, the maternal grandparent who took the video recording continues to tape Coco while she cries, instead of attending to her needs, which is indicative of the animosity between the maternal grandparents and the father.

83In terms of the 10 third-party collateral affidavits filed by the mother in support of this motion, as stated above, I find these affidavits have very limited probative value and I find as follows:

a. Although the maternal grandparents have been residing with the family since December 2019, the contents of their affidavits do not emanate from their own observations and contain, i.e. that the father cannot make an appointment for a child at a clinic if a child is ill. Instead, this is information they would have only been able to have obtained from the mother. Further, the maternal grandparents’ observations are not necessarily reliable. Most of their complaints about the father relate to his lack of fluency with the English language, which does not mean that he has not been an involved parent with the children. Further, there has been no sufficient opportunity to test the maternal grandparents’ affidavits with Questioning. Finally, given that they are the mother’s parents, the unreliability of the maternal grandparents’ evidence outweighs the probative value of this evidence, in my view.

b. The father deposes in his affidavit, sworn on December 21, 2020, that Ms. Xia, the parties’ prior nanny, has a pre-existing relationship with the mother; that she and her family are closely financially connected to the mother; and the mother has loaned Ms. Xia money as well as the nanny’s brother. Again, without the benefit of Questioning of this witness it is difficult to assess the neutrality of this evidence and/or weigh its probative value, which is suspect in my view.

c. Ms. Huang, one of the mother’s BMO assistants, is a paid employee of BMO but was financially reliant on the mother for her position. In any event, Ms. Huang’s affidavit was not useful. She has no direct knowledge of the father’s parental role. In my view, this affidavit is self-serving and of little assistance to the court. Again, while Ms. Chen is a paid employee of BMO, she is dependent on the mother financially for her employment and is unable to comment on the father’s parenting abilities or roles in this family. This affidavit is also self-serving and of little assistance to the court.

d. Ms. Zhan’s affidavit, the friend of the mother, supports the fact that the mother is an involved parent, who asks knowledgeable friends for references for Coco. However, Ms. Zhan’s affidavit is not helpful in advising the Court as to whether the father is or is not an involved parent and she has no direct knowledge of the father’s parenting role.

e. Ms. Ye’s affidavit, the mother of one of River’s friends, does not assist the Court as to whether the father is an involved parent or provide any evidence as to the parenting role he plays with the children in the house. Ms. Yie’s affidavit is not helpful and is self-serving, especially since she saw and/or met the father on one occasion while he dropped the children off at a summer program.

f. Mr. Hairbow’s affidavit, Coco’s Kumon instructor, is consistent with both parties’ evidence that the mother is the parent who communicates with and is involved with the third parties involved with the children. However, Mr. Haribowo’s affidavit does not provide any assistance to the Court and has no probative value as to the parenting role the father has played with the children.

g. Mr. Pu’s affidavit provides little assistance to the Court as to the father’s parenting role. It speaks only to the fact that the mother is mostly the parent who picks up and drops off the children at art classes on the weekend.

h. Ms Chen’s affidavit, the mother’s aunt, is somewhat helpful as it describes the children’s attachment to the mother when she was visiting with the family, which was fairly regular and often. However, the father attached WeChat messages between him and Dan Chen to his affidavit, sworn on December 21, 2020, as Exhibit “J”, in which Ms. Chen is praising the father for looking after the children, for all of his hard work, and for taking the children to their appointments when the mother is away. Again, without the benefit of being able to test the affidavit and have viva voce evidence, the probative value of this evidence has to be weighed against its reliability, which is not possible on this motion; and

i. Much of Ms. Xie’s affidavit, the mother’s friend, contains hearsay evidence that she could have only learned from the mother, i.e. the father has strict rules; or the mother has to do everything. As such, this affidavit is not reliable and has no probative value. Further, the father deposes in paragraph 33 of his affidavit sworn on December 23, 2020, that Ms. Xie is not only a close friend of the mother but she also has a history of financial dependence on the mother. The father submits that the mother loaned Ms. Xie $30,000 during the marriage, which she has yet to be repaid. Again, the probative value of this affidavit must be weighed against its reliability which has not been tested and is suspect. Either way, the affidavit is not helpful in that it does not provide assistance to the Court as to whether the father was as involved a parent as he deposes.

84The practice of litigants filing multiple third-party collateral affidavits in support of a parent are only helpful, in my view, if the third party has direct knowledge of the parenting roles played by the parties. Having a third party depose that one parent is a good parent, an involved parent, and that he/she loves his/her children, does not assist the court in reaching a conclusion that the other parent is not a good parent; is not involved or does not love his/her children as much as the other parent.

85The mother submits that the father’s proposed temporary parenting schedule will be harmful to the children or has the potential of being harmful to the children. The mother’s proposed temporary parenting plan is so restrictive that it completely minimizes the father’s role in the children’s lives and demonstrates to me that the mother will not necessarily facilitate the children’s relationship with the father. The father’s proposed temporary parenting plan has the children spending more time with him than the mother, although it is more balanced in terms of recognizing the importance to the children of having meaningful relationships with both parents. I am not persuaded, on the evidence before me, that a temporary parenting schedule that provides the children with significant time with both parents will be harmful to the children as the mother submits.

86Given the highly conflicting evidence before me, I am ordering a temporary parenting schedule where the children spend equal time with the parents based on the best evidence before me. The temporary parenting schedule I am ordering is not being made for the purposes of maintaining an equal playing field pending the completion of the s.30 assessment. Had I been satisfied on the evidence before me that a parenting schedule, other than an equal time-sharing plan would be in the best interests of the children at this time, I would have had no hesitation in ordering such a plan, given the parties’ positions that they cannot remain residing together in the matrimonial home pending the completion of the s.30 assessment. The parties and their counsel are to provide a copy of these reasons to the assessor conducting the s.30 assessment and undertake to the assessor that each will cooperate in the assessment completely, so the assessor can complete the s.30 assessment as soon as is reasonably possible.

87I have considered both parent’s arguments carefully and reviewed the evidence. In an effort to consider Coco’s special needs and her difficulties with transitions, I am ordering a nesting arrangement where Coco and River will remain in the matrimonial home and the parents will rotate in and out of the house. In this manner, Coco and River will experience the least disruption in their lives. The father has indicated that his plan is to move to his cousin’s home which is close to the matrimonial home. While the mother’s plan was to stay in the matrimonial home with the maternal grandparents, the parties have a jointly owned property on Olive Road that is currently vacant. The Olive Road property was listed for sale but the listing agreement expired at the end of October 2020. I am advised that the mortgage registered on title to the Olive Road property is in default but that, as of today, the bank has not called on the loan. I am also advised that the mortgage payments in connection with the first mortgage registered on title to the matrimonial home, is in good standing. Accordingly, a nesting arrangement is the most stable option for Coco and River at this time because, of the properties jointly owned by the parties, the matrimonial home is the least likely to be forced sold by way of Power of Sale.

88The evidence as a whole establishes to my satisfaction that the both parents have been very involved with the children. As with many parents with two young children, especially one with special needs, the parties have shared parenting responsibilities and fulfilled different functions based on their own strengths and weaknesses. In this case, the evidence is clear that the mother was the parent who was the contact person with the children’s schools, teachers and service-providers given her fluency with the English language, and the father picked up the children, helped them with homework, took them to many appointments, and played with them. The mother did as well. The father’s lack of fluency in the English language does not mean the father is not and has not been an involved parent. There is no dispute that the children speak both English and Mandarin. As such they are able to communicate with both parents. Both parents are able to care for the children and attend to their needs even if they do not have similar fluency with the English language. In the same manner that the father has required the mother’s assistance in communicating with the third parties involved with the children during the marriage, he can continue to seek her assistance in this regard even once the parents physically separate. It remains in the children’s best interest for the parties to be able communicate about the children and for the mother to continue to be the parent who is the point person for communication that takes place in writing.

89Pursuant to all of the above reasons, after weighing and balancing the factors in CLRA, s. 24(2), a nesting arrangement which provides for an equal time-sharing schedule that allows both parents to spend significant time with Coco and River is in the children's best interests on a temporary basis, pending the completion of a s.30 custody and access assessment.

ORDER:

90This Court makes the following order on a temporary basis, pending the completion of the s.30 custody and access assessment, and until further court order or agreement of the parties:

a. Commencing on Monday, January 18^th, 2021, the children shall reside in the parties matrimonial home and the parents will rotate in and out of the matrimonial on a temporary basis, pursuant to a nesting arrangement, such that the children spend equal time with the parents pursuant to a 2-2-5-5 schedule over 14 days, as follows:

i. With the mother on Monday, from after school to Wednesday morning, when the children will be dropped off at school;

ii. With the father on Wednesday, from after school to Friday morning, when the children will be dropped off at school;

iii. With the mother on Friday, from after school to Wednesday morning, when the children will be dropped off at school; and

iv. With the father, from Wednesday, after school to Monday, when the children will be dropped off at school.

Mon.

Tues.

Wed.

Thurs.

Fri.

Sat

Sun

Week One

Dad drops off at school.

Mom picks up from school

Mom

Mom drops off at school.

Dad picks up from school

Dad

Dad drops off at school.

Mom picks up from school

Mom

Mom

Week Two

Mom

Mom

Mom drops off at school.

Dad picks up from school

Dad

Dad

Dad

Dad

b. 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;

c. When the parties are scheduled to be in the matrimonial home they shall ensure that they leave the matrimonial home when he/she takes the children to the school in the morning and, in any event, the resident parent shall leave the matrimonial home by 10:30 a.m. to ensure there is no overlap between the parents;

d. Whenever possible all exchanges shall take place at school. If a child is ill on a given day and has to stay home from school, the exchange shall continue to take place after school at 3:30 p.m. but it shall occur at the matrimonial home and the parent leaving the matrimonial home shall leave at the same time, the parent entering the matrimonial home arrives;

e. When the parents interact at a school event, or an extra-curricular activity of because of a situation referred to in (d.) above, they shall keep their verbal communication brief, polite and courteous;

f. The maternal grandparents shall follow the mother as per the above parenting schedule if they intend to move in and out of the matrimonial home with her. Under no circumstances shall the maternal grandparents reside in the matrimonial home on the father’s scheduled days. The maternal grandparents’ right to be in the matrimonial home arises from the mother’s right to possess the matrimonial home only;

g. The children’s Government-issued identification documents, including the children’s immunization records, health cards, passports and birth certificates shall remain in the matrimonial home in a location both parties can access, if necessary when he/she is the resident parent looking after the children;

h. Neither party shall remove any belongings in the matrimonial home that belong to the other party during the period of the nesting arrangement;

i. Neither party shall install a recording device of any kind in the matrimonial home in an attempt to audio record or video tape the residential parent with the children;

j. Neither party shall remove the children’s belongings, toys, clothing, electronics, etc. from the matrimonial home. The expectation is that the children and all of their belongings will remain in the matrimonial home;

k. Both parents shall strictly adhere and follow Covid-19 protocols and regulations;

l. The mother shall return any of the children’s toys or belongings she has removed from the matrimonial home promptly;

m. The parent scheduled to reside with the children, shall be responsible for taking a child to any scheduled medical appointment, such that if a medical appointment is scheduled on a Monday, then the mother shall take the child(ren) to the appointment and if a medical appointment is scheduled on a Wednesday, then the father shall take the child(ren) to the appointment;

n. The parties shall each subscribe to the web platform OurFamilyWizard.com (“OFW”) for communication purposes. Each party shall pay for his/her own subscription. The parties shall only communicate through OFW to ensure that a record is maintained of all communications. The parents shall update each other on the day of each parenting exchange through OFW by no later than 7:00 p.m. on the date of exchange. All communications shall only be about pertinent information about the children and shall not include any denigrating comments about the other parent;

o. The mother shall remain the parent responsible for scheduling all of the children’s medical, dental and support service appointments. She shall notify the father of all such appointments on OFW. If an appointment falls on a day when the father is the resident parent he shall accompany the child to the appointment even if the appointment was arranged for by the mother;

p. 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 or video communication with the children more than once every day. The resident parent shall facilitate the children’s contact with the non-resident parent if it is by Facetime or video chat;

q. Each parent shall advise the other if he/she takes a child to an appointment and provide an update as to what transpired at the appointment referring to pertinent information only;

r. If the father requires the mother’s assistance to communicate to the children’s school, teacher, therapist, or any third-party service provider for any reason, he shall notify her of his request through OFW and the mother shall respond promptly and assist the father in the best interest of the children;

s. Each parent shall respond to the other parent’s communication promptly and, in any event, within 24 hours, unless a matter is more urgent and requires a quicker response;

t. 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;

u. If an emergency arises while the children are in the care of one parent (such as the need to a child to the hospital), that parent shall notify the non-resident parent as soon as practicable possible through OFW and text or email to ensure the non-resident parent is aware of the emergency.

v. The parties shall not speak disparagingly of the other in front of the children or permit any third party in the presence of the children to do so;

w. Neither party shall expose the children to any conflict or discuss the court proceedings with them;

x. If, for any reason, the nesting arrangement is no longer economically feasible because the Olive Road property is forced into power of sale and/or the matrimonial home is forced into power of sale, then the parties shall follow the same temporary parenting schedule as outlined in this order, such that the children will travel between both parents’ homes pursuant to the same time-sharing schedule, pending the completion of the s.30 assessment; and

y. If either party is seeking costs, they shall serve and file their written costs submissions by January 25, 2020. The other party shall have until February 2, 2021 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

M. Kraft, J.