Court File and Parties
Court File No.: 43968/21 Date: 2021-04-01 Superior Court of Justice - Ontario
Re: David Joseph PHILLIPS, Applicant And: Nicole T. PHILLIPS, Respondent
Before: Kurz J.
Counsel: Lisa Kadoory, for the Applicant Lisa Katz for the Respondent
Heard: March 25, 2021
Endorsement
Introduction
[1] This is an urgent motion by the Applicant father (“the father”), seeking an order for:
(a) A rotating, 2-2-3, equal parenting schedule for the child of the marriage, Sophie Elizabeth Phillips, born May 12, 2018 (“Sophie”).
(b) An order that Sophie’s residence remain within a 20 km radius of the matrimonial home, municipally known as 4989 Ninth Line, Georgetown, Ontario.
[2] This motion was occasioned by the decision of the Respondent mother (“the mother”) to unilaterally move with Sophie from the matrimonial home in Erin (although the municipal address is in Georgetown) to a rented condo unit near the home of her parents in the Bayview and Finch area of Toronto. The parties agree that the driving distance between the two locations is one hour in the best of conditions and even more during rush hour or other difficult traffic conditions. The distance is about 72 km.
[3] The father says that he was a fully involved and capable parent who often cared for the child while the parties lived together. Sophie had known no other home but the matrimonial home before the move. While the parties seem to have quarreled with some regularity, he says that he was never abusive to the mother. He asserts that she is using her move and the justifications underlying it to attempt to create a new status quo as the primary parent and to dictate the terms that will limit his contact with the child. Shortly after moving, she insisted that he limit his contact with the child to day access (as the term was used at the time). But as the parties continued to negotiate, the mother became willing to agree to increasing amounts of overnight access, provided that she was allowed to move as she wished and effectively assume the role of primary parent.
[4] The mother offers a very different narrative. She states that she has always been the child’s primary caregiver. She took a one-year maternity leave term when Sophie was born. While she returned to work following that leave, she lost her job in the pandemic in September 2020. She has been available to care for the child since then while the father continues to work. Further, he previously allowed her to spend almost six weeks in late 2020 in Toronto, both isolating and visiting her parents. The isolation was necessary because her father is immuno-compromised, and she wished to spend time with her family.
[5] The mother describes the father as having a drinking problem. She adds that he is verbally and emotionally abusive. She says that he has offered to stop drinking for a year and she has offered to do the same, if he would reciprocate.
[6] The mother states that she found life together in the matrimonial home intolerable. She asserts that she and Sophie were both socially isolated in Erin. She moved temporarily to Toronto to be near her parents and sister, with whom she and Sophie are close, but does not believe that she can afford to live there. She will attempt to move to an area that is closer to the matrimonial home but is unwilling to be pinned down in regard to distance.
[7] The mother proposes the following parenting schedule for the father:
Week 1: Tuesday at 5 p.m. – Thursday at 10 a.m.
Week 2: Tuesday at 5 p.m. – Wednesday at 10 a.m. plus Friday at 5 p.m. – Sunday at 5.
[8] That schedule amounts to five overnights out of fourteen. The mother has proposed that she do all of the driving for the parenting changeovers.
[9] Each party relies on affidavits from close relatives, supporting their plan. The court heard from the maternal grandfather, who offered broad criticisms of the father without many particulars. It also heard from the eldest of the father’s three adult children of a previous relationship, now grown into adulthood. She spoke of her upbringing in an equal shared parenting arrangement and her very positive views of the father as her parent and a parent of Sophie. The father’s reply affidavit included an affidavit of his older brother, a police officer. The brother spoke highly of his observations of the father without speaking ill of the mother as a parent.
[10] A twist in this case is that each party relies on the evidence of the father’s sisters. Attached to the mother’s first affidavit are affidavits from each of the father’s three sisters. Those affidavits attested to the quality of the mother’s parenting. But they did not speak ill of those abilities in their brother.
[11] Two of those sisters soon swore further affidavits. They stated that in securing their agreement to provide evidence, the mother had misled them to believe that she supported an equal shared parenting arrangement. They later came to feel that they had been misled. While they did not withdraw their praise of the mother’s parenting abilities, they also felt that the father is also a good parent and should be an equal 50/50 parent. They were disappointed to learn that their evidence was used to support a position that they did not endorse.
[12] For the reasons that follow, I find that on an interim basis, an equal shared parenting arrangement is in Sophie’s best interests. The parties have agreed that if I make such a finding, that the parties shall engage in a rotating 2-2-3 parenting arrangement. The child’s residence while with the mother shall be no further than 30 km from the matrimonial home. The mother shall move the child’s residence while in her care by July 1, 2021.
Background
[13] The parties began to cohabit in 2012 and married on July 14, 2014. They first resided together in Brampton and in 2015, moved to Georgetown. They remained living in that area until the mother moved with Sophie to Toronto on February 24, 2021.
[14] The father is a fair bit older than the mother. He helped raise an earlier set of three children, now adults, as an equal, joint parent. In that role, he and his former wife each cared for their children for 50% of the time. The father’s eldest child speaks positively about his role as her parent. I will have more to say about that below.
[15] The parties’ relationship was not a smooth one. They went into counselling together even before they married. They disagree about how that process ended. As set out above, the mother took a full year maternity leave following Sophie’s birth. She then returned to work but was laid off because of the pandemic, effective October 9, 2020.
[16] The father says that the marital discord increased when the mother returned to work because he felt that he was forced to assumed too great a level of the responsibilities for the home. The parties also selected a local daycare centre for Sophie. The daycare ended when the mother was laid off.
[17] The mother claims that she was the child’s primary caregiver. She asserts that the father rarely spent any time alone with the child. She speaks of him as a disinterested parent. His narrative is quite to the contrary. He says that he often spent time alone caring for the child, both when the mother was home and when she was out. He says that when the mother returned to work, they both juggled work and childcare.
[18] The parties separated on September 30, 2020, albeit in the same home. Their separation, although apparently cooperative at first, became increasingly acrimonious as they disagreed about Sophie’s parenting arrangements. They had agreed to utilize a mediator, Jan Schloss, to assist with parenting issues. Their first appointment with Ms. Schloss was delayed for reasons that do not appear to have been the fault of either party. Their first session was ultimately scheduled for March 1, 2021. The mother chose to move with the child before the first session could take place.
[19] Prior to their separation, the father had agreed to allow the mother, then unemployed, stay with her parents in Toronto for a few weeks. She had done the same thing the previous year. Because of the pandemic and her father’s compromised health, the parties agreed that mother and daughter would self-isolate for two weeks at an Air BnB location before going to stay with her parents. She was to return on December 12, 2020, at which point the father would close up his shop and spend time with the child until the new year. The father agreed to allow their previous arrangement to continue after the parties separated.
[20] It was during this time that the parties began to quarrel in earnest about their parenting arrangements. The father retained counsel because he believed, based on their discussions, that the mother would not return with the child. The mother retained her own counsel. She denied that she would not return.
[21] In their counsel’s correspondence, the mother insisted that she was the child’s primary caregiver. Her lawyer vaguely alleged that the father was verbally and emotionally abusive. The father claimed that the mother was controlling and trying to limit his role as the child’s parent and failing to meet her financial obligations. The mother’s lawyer suggested that neither party partake in alcohol while with the child. She also suggested mediation, a suggestion that the father accepted.
[22] After the mother returned to the home on December 12, 2020, things became even more acrimonious. The father asserts that the mother was aggressive and argumentative with him, even in front of the child. He contends that she was attempting to goad him into arguments to support her narrative of his abusive nature. She claims that he continued his pattern of verbal abuse. Her lawyer wrote a letter on January 12, 2021 claiming that he raised his voice to her twice in front of Sophie. She said that the situation was intolerable.
[23] In her letter of January 12, 2021, the mother’s lawyer announced that the mother was moving with the child to Toronto to live near her parents. She offered the father limited day access only. The mother complains that following the receipt of this letter, the father’s demeanor became even less pleasant towards her.
[24] In her lawyer’s letter of February 10, 2021, the mother indicated a desire to quickly pick a mediator. But as her affidavit makes clear, she was not open to mediating whether she would be able to move with the child to Toronto. That term was “non-negotiable”. Absent a court order, that stance was most unfortunate for all involved. The mother ended up moving before any mediation could take place and just a week before the changes to the Divorce Act, set out below.
[25] On February 24, 2021, the mother removed the child from the matrimonial home and moved to North York. The condominium to which she moved is 72 km. from the matrimonial home. Since that time, she has unilaterally determined his parenting time with Sophie.
Collateral Evidence
[26] The parties offer diametrically opposed views with regard to the events that led to this motion. The father does not question the mother’s parenting ability or her love of the child. But he does describe her as controlling, particularly regarding the child. The mother describes the father as emotionally and verbally abusive and relatively uninvolved with the child. She also denies that he has a close relationship with his older children.
[27] Each of the parties offers their own witnesses: the mother, her father and the father his daughter and brother. Both parties offer the evidence of the father’s sisters.
[28] The father’s oldest child, Chelsey Anne Greenhalgh (“Chelsey”) is 30 years old. She is married and pregnant with twins. She and her husband live in Milton. Her sister, Samantha is 29 and living in British Columbia, where she hopes to make a documentary film about the ocean. Her brother, Connor is 24 and living independently in Ontario.
[29] Chelsey offered the court an affidavit in which she deposes that her parents divorced when she was 16. The children were consulted and chose to live equally with both parents because they felt close to each. After the separation, her parents lived only blocks apart so that the children could go back and forth between the two homes. Both were very involved parents. Both, in her telling, worked hard so that their children could have the best of both homes. Now, the children are close to each other and both parents.
[30] Chelsey states that she has had “many” opportunities to observe her father together with Sophie, whether at home or on outings. She has seen him prepare her food, change her clothing and diapers, put her to sleep, and engage in activities with the child. She describes her father as “patient’ with Sophie, setting appropriate boundaries and trying to find teachable moments. She recounts “numerous times” when she has called her father and he has had to return her call later because he was caring for the child. She has both observed him caring alone for Sophie and experienced him telling her that he is caring for the child when she has called. She attests to a strong bond between father and young daughter.
[31] The mother’s reply to that affidavit is that the adult child may feel that she is close to the father but that she, the mother, knows better; that the relationship is far more superficial than the eldest child realizes.
[32] The father attaches the affidavit of his eldest brother, Daniel Philips, to his reply affidavit. Mr. Philips is a retired police officer, who does some occasional work with the father. Mr. Philips, like his sister, does not speak ill of the mother’s parenting. But he praises that of his brother as well. Like Chelsey, he has seen his brother parent the child, feed her, change her diaper and put her to bed. He attests to seeing the father care for the child when the mother was not around. He states that the father prioritizes his time with Sophie. As a former police officer, he states that he has no reason to believe that the father has an alcohol abuse problem.
[33] The mother offers the affidavit of her father, Lesley Thomas Merei. Mr. Merei speaks in glowing terms of his daughter and in consistently disparaging terms of his son-in-law. He states that the father has had limited interaction with Sophie. He adds that the father’s behaviour towards the mother is “verbally abusive and inflammatory”. Mr. Merei adds that the father “undermines and yells at” the mother, “orders her around to do various tasks” and “acts condescendingly” towards her. Having said all of that, Mr. Merei offers few particulars of these allegations or even whether these were his direct observations or whether they were recounted to him by his daughter.
[34] The mother also asked the father’s three sisters, Colleen Philips, Dianne Kynnerskyu and Darlene Goren, to depose affidavits on her behalf. All three did so, speaking in very positive terms about her, their relationship to her and her parenting. However, they say nothing that confirms the mother’s very negative portrayal of the father as a parent or person.
[35] The father says that he did not wish to drag his sisters into this conflict but contacted them only after the mother filed their affidavits (which were attached to her first affidavit). Both Colleen Philips and Darlene Goren swore further affidavits, offering context to their first ones.
[36] Ms. Philips clearly felt that the mother had misled her, had filed their text correspondence without her permission, and had omitted an important responding text that offered a caveat to the mother’s assertions. Ms. Philips felt that she was persuaded to provide an affidavit that was, in retrospect misleading. She stated that each of her and her sisters agreed to assist their sister-in-law because they understood that she had agreed to a 50/50 parenting arrangement for Sophie, which they supported. They understood that they had provided their affidavits in support of that parenting arrangement.
[37] The mother told her that she had to move when she did because of a change in the law, which I discuss below.
[38] Further, Ms. Philips deposed that the mother had assured her that her move to Toronto was very temporary, until the matrimonial home was sold, and that she planned to move closer to Georgetown or “maybe Brampton or Mississauga”. After explaining how she came to sign her first affidavit, which she simply saw as the equivalent of a letter in favour of her sister-in law, and in support of shared parenting, she described how she now feels. She swore:
I feel tricked and now manipulated into a situation that is not representing my truth. I am deeply saddened and disillusioned that Niki [the mother] whom I had trusted has used me and tricked me in this fashion.
[39] Ms. Goren had much the same to say in her affidavit. She made clear that she always told the mother that she supported a 50/50 parenting arrangement as being in Sophie’s best interests. She felt that the mother led her on and “twisted” Ms. Goren’s position in support of both parents. Ms. Goren stated that the mother never expressed her opposition to a 50/50 parenting arrangement, “but rather spoke about this issue in a way that made it seem that she was full on board” with it. Ms. Goren added that she felt that the mother misled her about her plans to move to the Toronto area only temporarily. Further she felt that the mother misconstrued her refusal to speak ill of her brother as being an article of family solidarity. Rather, “I refused to say bad things about David [the father] because I did not believe them to be true”.
Credibility
[40] It is always very difficult to assess credibility in a motion where the court is confronted only with the parties’ affidavits, without cross examination. The court can consider the internal consistency of each party’s narrative and the extent to which that narrative accords with objective evidence, whether in writing or from credible witnesses.
[41] Based on the evidence of Ms. Phillips and Ms. Goren, supplemented by that of Chelsey and Daniel Philips, I find that the evidence of the father is more credible for the purposes of this motion than that of the mother. I say that because two of her key witnesses, whom she proffered to the court as credible witnesses to her parenting ability, say that she misled them and perhaps the court about her views of the parenting arrangement in Sophie’s best interests. If she was willing to mislead these witnesses in order to assist her case, she can do the same with the court.
[42] The mother does little to assist her credibility when she asserts, despite Chelsey’s own words, that Chelsey is not close to her father and that the mother knows the depth of that relationship better than Chelsey herself.
[43] The evidence of those witnesses also buttress the father’s assertions because:
a. They confirm his role as an involved parent, both in regard to his first set of children and that as a father to Sophie;
b. Persons who have observed him as a parent of Sophie have seen him as an involved and caring father of the child, contrary to the mother’s assertions;
c. That they feel that he should be an equal shared parent of the child;
d. That, for Ms. Phillips and Ms. Goren, the mother made representations to them that she felt that an equal shared parenting arrangement was in the child’s best interests;
e. The mother misled them about her parenting plan, for her own gain in this litigation;
f. The mother omitted a text response from Ms. Phillips that contextualized their exchange to make it seem that Ms. Phillips was supporting the mother in a manner that was misleading.
Applicable Law
[44] At the present time, there is neither a parenting order nor an agreement.
[45] The applicable law is the Divorce Act, S.C. 2019, c.16, whose parenting amendments came into legal effect on March 1, 2021. Under the the Divorce Act, the court is required, in determining the child’s best interests, to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).
[46] The factors that relate to the child’s best interests are set out in s. 16(3) as follows:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[47] The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her.
[48] The Divorce Act also expressly directs the court to consider family violence in its many manifestations as a factor in determining parenting. I am aware that the mother alleges such violence in an emotional and verbal context. She also says that the father raised his voice to her twice in front of the child before she moved with the child. Any allegations of family violence must be taken seriously and not dismissed peremptorily. However here, based on the evidence presently before the court, I am not convinced, for the reasons set out above, of the credibility of those allegations. There is simply no corroborative evidence other than the paternal grandfather’s broad and unparticularized assertions.
[49] The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. However, the Divorce Act’s previous reference, in the heading to the relevant section, to “maximum” contact has been removed. However, the operative terms in the section remain the same.
[50] Whether “as much contact as possible” or “maximum”, the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.
[51] The present provision, s. 16(6) states:
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[52] The previous provision stated:
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[53] Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court’s failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child's best interests.
[54] Despite the changed wording of the heading and any potential implications, it remains necessary for any court making a parenting decision to avert to the s. 16(6) principle.
[55] Under the Divorce Act’s s. 2(1) interpretation provisions, relocation is defined as:
a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order
[56] The Divorce Act’s new relocation provisions require, before any move with a child, specific advance notice by a person with decision-making responsibility regard that child. If there is no agreement there is to be a court hearing. That did not occur here.
[57] The relevant provisions read as follows:
Relocation
Notice
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
Content of notice
(2) The notice must set out
(a) the expected date of the relocation;
(b) the address of the new place of residence and contact information of the person or child, as the case may be;
(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
(d) any other information prescribed by the regulations.
Exception
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.
Application without notice
(4) An application referred to in subsection (3) may be made without notice to any other party.
Relocation authorized
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
(A) a form prescribed by the regulations, or
(B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
(ii) there is no order prohibiting the relocation.
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Burden of proof — person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
[58] These provisions apply retroactively under s. 32 of the Divorce Act, which sets out the statute’s transitional provisions as follows:
32 Proceedings may be commenced under this Act notwithstanding that the material facts or circumstances giving rise to the proceedings or to jurisdiction over the proceedings occurred wholly or partly before the day on which this Act comes into force.
The Timing of the Mother’s Move
[59] From the evidence of Ms. Phillips, it appears that the timing of the mother’s move, coming just days before the Divorce Act’s relocation provisions came into force, was no coincidence. She could not even wait until after the March 1, 2021 mediation date offered by Jan Schloss because that was the day that the changes to the Divorce Act came into effect. As Ms. Phillips stated, the mother told her “that if she didn’t leave before March 1 the law was changing and she would have to give 60 days [sic] notice.”
[60] That understanding of the changes to the law dovetailed with accords with the mother’s expressed understanding of her unilateral right to move with the child, without a court order or the agreement of the father.
[61] In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:
25 The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life.
[62] He described the parent who engages in self-help tactics that belie a child’s best interests as raising questions about the new status quo and the moving parents’ own parenting skills, writing:
22 A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).
[63] Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as “brinksmanship”. He asserted at para. 27 that “[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.” He added that “[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo.”
[64] In Arbitman v. Lee, 2021 ONSC 315, Monahan J. took a similar approach to the problem of self-help, even when confronted with that behaviour from a primary caregiver. He wrote of the need to discourage that kind of behaviour as follows:
39 First, the current arrangements whereby the Applicant's time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent's right of access to children is to be restricted. If the current restrictions on the Applicant's access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent's resort to self-help.
[65] Here, the mother attempted to unilaterally create her own new status quo, brazenly asserting that her unilateral right to remove the child was “non-negotiable”. She may have done better by making it negotiable.
[66] There are many best interests factors at play here, including the fact that the mother is capable, loves Sophie and, along with her extended family, has much to offer the child. But the evidence which I have accepted shows that much the same can be said about the father. Further while the mother’s extended family is close to her temporary home in North York, the father has extended family in Milton and Rockwood Ontario, who are also close to the child and have much to offer her. The fact that her step-sister is about to give birth and wishes to remain involved in her life is of great value to the child.
[67] Each parent has much to offer the child. She should not be deprived of that opportunity because the mother felt entitled to act unilaterally.
[68] I also worry about the mother being able to perpetuate a new status quo that allows her to control the father’s parenting time and ultimately limits the child’s ability to have a close relationship with both parents.
[69] It is in Sophie’s best interests to have the opportunity to have her parents share in her upbringing. The father has proven that he is capable of participating in such an arrangement, both with his previous family and with Sophie. It is to be hoped that the mother can do the same.
[70] My decision is not intended to punish the mother for her improper resort to self-help. Rather it is intended to secure for the child the opportunity to be raised in love by both of her parents. The mother’s conduct in unilaterally removing the child and then attempting to arbitrarily limit the father to day access shows the need to resolve that concern at this early stage.
[71] The parties agreed that if I were to order a shared parenting arrangement, it should be a “revolving” 2-2-3 arrangement. I so order.
[72] With regard to location, I cannot order the mother to move. But I can set out where the child shall live while in the care of the mother. The mother has signed a month-to-month lease in North York, which allows her the flexibility to move. Because I do not wish to punish her and most particularly the child, I will give her some time to obtain reasonable accommodations.
[73] The father seeks an order that the child not live more than 20 km from the matrimonial home. He is residing there now, and will have half of the time with the child. But as it is jointly owned, I expect that arrangements will be made to sell it. Thus, I want to offer some flexibility to allow the mother a bit more variety of locations that will still allow shared parenting to work. I do not have a great deal of evidence of what accommodations are available at various distances from the matrimonial home. But because both parents will eventually have to do some driving between their homes, it is in the mother’s interests to move closer to the matrimonial home area. She shall move the location of the child while in her care to within 35 km of the matrimonial home. This would allow her to move to North Brampton. Caledon, Georgetown, Erin, Guelph or other areas of Halton Region. I will not require that move until July 1, 2021, so that she may have some time to search for a new location.
[74] Each party has at some point suggested a term with regard to drinking and their willingness to abide by a non-consumption term. I will take them at their word. Accordingly, neither party shall imbibe alcohol while Sophie is in their care or within six hours of the time that she is scheduled to come into their care.
[75] The mother has offered to do all of the driving for parenting transitions, but she did so in the context of her parenting plan that offered the father less than equal time. As I have expanded it somewhat, until the mother returns the child’s home while in her care to a location as set out above, the father shall be responsible for the driving before and after the commencement of his weekend parenting time. The mother will be responsible for the remainder of the driving. Once the move is made, the parties will equally share the driving.
[76] The one issue that has given me pause is the issue of daycare during this pandemic. This province is in the third wave of COVID-19. I have received no evidence about its effect on the Georgetown/Erin area. However, schools remain open at this time.
[77] While the father will have the right to choose the appropriate parenting arrangements while the child is in his care, I assume that he will make choices that will keep the child safe. If that means that he will have to take time off from work to do so, that is part of the role that he asked the court to grant him. He shall inform the mother of the childcare choices that he makes for the times that Sophie is in his care and he must leave her childcare to a third-party because of work. In doing so, he shall take all government recommended COVID protocols. The same terms will apply to the mother as well when she returns to work.
[78] I am also aware that Mr. Merei, the maternal grandfather, is immuno-compromised, although I know no other details of his medical condition. From the mother’s evidence I understand that they maintain a safe distance even when together. I do not know whether he has been or can at this time been vaccinated. I assume that the mother will be careful enough to keep her father safe.
[79] This case has all of the hallmarks of a high-conflict, long-term legal war. That is the last thing that Sophie needs. I strongly suggest that the parties enter into mediation before this litigation escalates further out of further control.
[80] If counsel require any further direction with regard to the terms of my order they may arrange to appear before me.
Costs
[81] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Original will be placed in court file
Date: April 1, 2021