Court File and Parties
COURT FILE NO.: FC-19-FS054630-0000 DATE: 2021-05-05 SUPERIOR COURT OF JUSTICE-ONTARIO
RE: SHANNON MARGARET BELL, Applicant AND: JASON LEE REINHARDT, Respondent
BEFORE: Gibson J.
COUNSEL: Jennifer Bolduc, counsel for Applicant Raymond Wrubel, counsel for Respondent
HEARD: March 25, 2021
ENDORSEMENT
Overview
[1] This motion concerns access (since the changes to the Divorce Act that recently came into effect on March 1, 2021, now known as “parenting time”) by the Respondent father with the parties’ two children. It arises in the context of what has been an ongoing high-conflict dispute between the parties.
[2] By his Notice of Motion dated March 1, 2021, the Respondent, Jason Lee Reinhardt (“the Respondent”), seeks an Order that:
- The Respondent shall have unsupervised access to the children of the marriage, namely Xavier Lee Reinhardt (male), born March 1, 2011 and Wyatt Brady Reinhardt (male), born November 16, 2012 as follows:
(a) on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m., to be extended to the Monday at 7:00 p.m. if the Monday is a holiday, or the children are not in school (either in person or virtually);
(b) every Wednesday from after school to Thursday drop off at school (or Applicant's residence at 9:00 a.m. if children are not in school (or attending virtually));
(c) such further and other times as the parties may agree; and
(d) reasonable telephone/text/email access;
In the alternative to Paragraph #1, an Order that the Respondent have regular periods of unsupervised access to the children, namely, Xavier Lee Reinhardt (male), born March 1, 2011 and Wyatt Brady Reinhardt (male), born November 16, 2012, dates and times to be set by this Honourable Court;
In the alternative to #1 and #2 above, an Order that the Respondent have supervised access to the children, namely, Xavier Lee Reinhardt (male), born March 1, 2011 and Wyatt Brady Reinhardt (male), born November 16, 2012, such access to be supervised by one of the Respondent's parents, as follows:
(a) on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m., to be extended to the Monday at 7:00 p.m. if the Monday is a holiday or the children are not in school (either in person or virtually),
(b) every Wednesday from after school to Thursday drop off at school (or Applicant's residence at 9:00 a.m. if children are not in school (or attending virtually));
(c) such further and other times as the parties may agree; and
(d) reasonable telephone/text/email access.
- Costs on a substantial indemnity basis.
[3] The Applicant, Shannon Margaret Bell (“the Applicant”), resists the motion. She submits that the Respondent has a history of physical abuse, emotional abuse and manipulation of the children, and that there is an ongoing concern about potential violence towards her. She submits that any order for parenting time should require supervision. She opposes supervision by the Respondent’s parents.
[4] Pursuant to the Order of Braid J. dated December 4, 2020, records of the Waterloo Region Police Service and of Family and Children’s Services of Waterloo Region relating to the parties and their children were to be released to counsel for the parties.
Facts
[5] The parties started living together in 2010 and were married in 2015. They separated on May 31, 2018. Although they separated in May 2018, they continued to reside in the matrimonial home. The Applicant moved out of the matrimonial home in January 2019. The house was sold on January 29, 2020. The Respondent plead guilty to a charge of mischief for destroying the Applicant’s cellphone. He received a conditional discharge and one year probation. He completed the PARS program. He had supervised access with the children on four occasions in May 2019, with the assistance of By Peaceful Waters.
[6] Pursuant to the Order of Braid J. dated November 26, 2020, on a temporary, without prejudice basis, the Applicant mother has interim custody of the children of the marriage.
[7] The Respondent is dissatisfied with the parenting time he has received with the children and seeks to expand it.
Issue
[8] The issue before the Court is whether an Order should be made for the Respondent father to have parenting time with the two children and, if so, whether that parenting time should be supervised, and if so, by whom.
Analysis
[9] This is a situation in which there is ongoing conflict between the parties, and allegations of physical and emotional abuse.
[10] Significant amendments to the Divorce Act came into effect on March 1, 2021, which are of direct application to this situation. I am required to have regard to these statutory provisions when assessing the present situation.
[11] Subsection 16(1) of the Divorce Act now provides that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order.
[12] Subsection 16(2) provides that, when considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[13] Subsection 16(3) enumerates a number of factors to be considered in determining the best interests of the child. Amongst these are: at s.16(3)(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; at s.16(3)(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 at s.16(3)(k), any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[14] Flexible arrangements may not be appropriate for parents unable or unwilling to cooperate or communicate with each other. Detailed agreements or orders specifying the arrangements for the children may make it less likely that the children will be exposed to conflict between the parents.
[15] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. To help courts assess the impact, severity and risks of family violence, s.16(4) provides a non-exhaustive list of additional criteria.
[16] Subsection 16(4) provides the following in respect of factors relating to family violence.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
[17] Subsection 16(5) provides that, in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[18] Subsection 16(6) provides that, 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.
[19] Subsection 16.1(2) provides that the court may, on application by a parent, make an interim parenting order in respect of the child, pending the determination of an application. Subsection 16.1(5) provides that the court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
[20] Subsection 16.1(8) provides that an order may require that parenting time of the child from one person to another be supervised.
[21] Applying these statutory factors, I assess the following:
• I must take into consideration only the best interests of the child of the marriage in making a parenting order;
• When considering the factors referred to in subsection 16(3), I must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being;
• There are significant concerns in this case about past family violence, the prospect of future family violence, and the ability and willingness of the parties to co-operate with each other;
• In light of this, I must consider whether a co-operative parenting arrangement is appropriate;
• I accept the evidence of the Applicant that there is a pattern of coercive and controlling behaviour in relation to the Respondent in this matter, and that this causes her to fear for her own safety to some degree; and,
• In allocating parenting time, I must 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.
[22] In assessing these factors, I conclude first of all that it would be in the best interest of both children to have some parenting time with the Respondent. It is clear that the Respondent cares for the children, and they for him. I must then assess how much time is consistent with the best interests of the children in the current circumstances.
[23] I consider that a co-operative parenting regime necessarily inherent in the extensive parenting time requested by the Respondent in his primary submission is not currently appropriate. The potential for friction between the parties, and the potential impact of this on the best interests of the children, is too high.
[24] I must therefore consider whether lesser periods of parenting time for the Respondent are currently appropriate and, if so, whether it should be supervised or unsupervised.
[25] I assess that, in light of the statutory factors mentioned above, it is not currently appropriate for the Respondent to have unsupervised parenting time with the children.
[26] I do assess that the Respondent’s parents would be suitable candidates to provide such supervision. It is not currently necessary or conducive to their ongoing relationship for the children to have to spend parenting time with the Respondent in the artificial (and expensive) environment of a supervised access setting. There is no substantial evidence before the Court that the Respondent’s parents would be unsuitable to provide such supervision.
[27] The Respondent’s motion will be granted in part. An Order will go, pursuant to ss. 16.1(2), 16.1(5) and 16.1(8) of the Divorce Act, providing on an interim basis, for the Respondent to have supervised parenting time with the children, to be supervised by one of the Respondent’s parents.
Order
[28] The Court Orders, on an interim basis until further Order of the Court, that:
- The Respondent, Jason Lee Reinhardt, shall have supervised parenting time with the children, Xavier Lee Reinhardt, born March 1, 2011, and Wyatt Brady Reinhardt, born November 16, 2012, such parenting time to be supervised by one of the Respondent’s parents, as follows:
(a) one weekend per month from Friday at 5:00 p.m. until Sunday at 7:00 p.m., to be extended to the Monday at 7:00 p.m. if the Monday is a holiday or the children are not attending school (either in person or virtually);
(b) every Wednesday from after school to Thursday drop off at school ( or the Applicant’s residence at 9:00 if the children are not in school (or attending virtually));
The parties may agree which weekend each month the children will have this supervised parenting time with the Respondent. If the parties are unable to agree, then it will be the first weekend of each month, commencing June 4, 2021;
Pick up and drop-off of the children is to be supervised by one of the Respondent’s parents;
The Respondent may have telephone time, or Facetime or some sort of similar audiovisual means of communication with the children twice a week, at a convenient time in the evenings to be agreed between the parties, not to exceed 30 minutes per occasion; and
The Parties may agree to additional parenting time for the Respondent with the children.
Costs
[29] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at Kitchener.SCJJA@ontario.ca. The Respondent may have 14 days from the release of this decision to provide his submissions, with a copy to the Applicant; the Applicant a further 14 days to respond; and the Respondent a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timeframes after the Respondent’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson J.
Date: May 5, 2021