Court File and Parties

COURT FILE NO.: FS-21-42

DATE: 2021-05-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L. L., Applicant

AND:

N. L., Respondent

BEFORE: Conlan J.

COUNSEL: J. Zimmerman, for the Applicant

L. Kirwin, for the Respondent

HEARD: May 17, 2021

ENDORSEMENT

The Motions

[1] Two motions were argued at Court, via Zoom, on May 17, 2021. The first was brought by the Applicant mother on April 27th. The second was brought by the Respondent father on May 10th. There has been no Case Conference in this proceeding. Emery J. had adjourned both Motions to May 17th, with each side limited strictly to twenty minutes of submissions total.

[2] The mother asks for leave to bring her Motion on the basis of urgency, an Order that the children live with her and have supervised contact with the father, an Order that she make the final decisions regarding the children, and an Order that she be granted exclusive possession of the matrimonial home in Shelburne, Ontario.

[3] The father asks for equal parenting time and joint decision-making authority regarding the children (an alternating weekly schedule) and an Order that both parties be permitted to reside in the matrimonial home until it is sold.

[4] The undisputed basic facts are that (i) the parties were married in July 2012 in Jamaica, (ii) there are three children, 7, 4, and 2 years old, (iii) the parties lived together under the same roof for some time after the separation, (iv) since April 9th, the mother and the children have been living at the home of the maternal grandparents, (v) the mother is a teacher and works remotely, (vi) the father is a general labourer, and (vii) everyone agrees that the jointly-owned matrimonial home needs to be sold as soon as possible.

Decision

[5] With respect for Ms. Zimmerman, whose submissions were ably made, there is no urgency to her client’s request for exclusive possession of the matrimonial home. That relief is denied. Cramped living quarters, inconvenient sleeping and bathroom arrangements, and “living out of a suitcase” (paragraph 118 of the mother’s April 27, 2021 affidavit) do not come anywhere close to satisfying the test for urgency. This Court therefore orders that all issues regarding the matrimonial home shall proceed to a Case Conference. That Conference shall be scheduled by the trial office in consultation with both counsel.

[6] It follows that the father’s request in his Cross-Motion that both parties be permitted to reside at the matrimonial home is hereby granted, on a temporary basis. Of course, the mother has no obligation to move back there.

[7] I am satisfied that (i) where the children live in the interim, and (ii) what type of contact they have with their father, and (iii) who will make the final decisions for the children, are urgent matters. They are urgent because of the number of children involved (three), the ages of the children (all very young), the time that it may take to get to a Case Conference (several weeks to a few months in Orangeville), and the palpable acrimony between the parties which suggests that Court intervention is necessary.

[8] I accept the mother’s evidence that she has always been the primary caregiver for the children, and on that basis alone (without any finding that the father is a drunk or is abusive or violent) it is in the best interests of the three children that, on a temporary without prejudice basis, they live with their mother and that she be the final decision-maker on matters concerning their welfare. This Court so orders. To be clear, that order includes but is not limited to dental care for the children and counselling for M. (see paragraphs 7 and 8 of the mother’s Notice of Motion).

[9] As for the final question, that is what type of contact there should be in the interim between the three children and their father, I decline to accede to either side’s position. On my review of the evidence that I do accept, the father’s proposal for equal parenting time is not consistent with what the history has been, both pre- and post-separation. I think that to impose that now, in advance of a Case Conference, would not be in the best interests of the children. On the other hand, the mother’s request for supervised contact only is unwarranted. Her allegations against the father are serious, and if true they may end up being conclusive on the ultimate parenting disposition, but they are almost entirely uncorroborated and, in light of the child welfare agency’s very recent letter of May 11th, certainly not grounds to order what is truly exceptional relief – that is to deny to a father his right to see and spend time with his children without his former partner or her mother supervising him.

[10] This Court therefore denies the mother’s request to order supervised contact between the father and the children.

[11] How often should the father have contact with the children? In her draft Order dated May 17th, the mother proposes once daily (by telephone or video) and two one-hour visits per week. That, in my view, is wholly unsatisfactory and not in keeping with the maximum contact principle. This Court orders, on a temporary without prejudice basis, that the father shall have contact with the children daily (by telephone and/or video) and at least six hours per week in-person, unsupervised. The time(s) and duration(s) of the daily remote contact shall be worked out between the parties. The details of the 6-hours breakdown shall also be worked out between the parties. The six hours per week is reflective of the very young ages of the children, one still an infant. This Court will not be pleased if those details cannot be worked out between the parties, and costs are a handy mechanism for addressing such intransigence.

[12] Unless otherwise expressly stipulated herein, all other relief prayed for in either party’s Motion is denied. It is either inappropriate or not urgent and can await the Case Conference.

[13] If costs remain outstanding, this Court will hear brief oral submissions by Zoom. Counsel may contact the trial office in Orangeville to arrange that.

[14] I thank Ms. Zimmerman and Ms. Kirwin for their assistance.

(Original signed by)

Conlan, J

DATE: May 18, 2021