Superior Court of Justice - Ontario

Court File No.: 79/20 Date: 2021-06-01

Re: Stephanie Louise (Garrison) Armstrong, Applicant (wife) And: Christopher David Hutton Garrison, Respondent (husband)

Before: Mr. Justice Timothy Minnema

Counsel: Christina T. Rorabeck, for the Respondent Jennifer Kirshen, agent for Gene C. Colman

Heard: May 21, 2021

Endorsement on Motion and Cross-Motion

[1] This is a motion by the respondent husband for equal regular parenting time, holiday time, and a restriction on the applicant wife’s mobility. A cross-motion by the wife seeks a different parenting and holiday schedule and child support and section 7 expenses including arrears.

Background Facts

[2] The parties started living together in 2011, married in 2016 and separated on February 1, 2019. They have two children Everly age 4 and Abbigail age 2.

[3] On October 15, 2019, they entered into a Separation Agreement. In it they agreed to joint custody, with the wife having the right to make the final decision in case of a disagreement. The agreement also says with respect to parenting time (any highlighting was in the document copied):

[4] At the time of the agreement the applicant wife was employed as a Mental Health and Addictions Crisis Worker in Kingston and the respondent father was employed as a Correctional Officer in Brockville. None of that has changed. At the time the husband had a complicated work schedule, and therefore his access was being determined a week in advance. The reason for the provision that the wife was at liberty to insist that the visits become supervised was that, in the year of the separation, the husband had what he has described as acute situational depression, and had admittedly been abusing alcohol and marijuana. While he had stabilized by the time of the agreement, it was still a concern for the wife. The evidence is that between the separation and the agreement, the husband’s parenting time started out as supervised, moved into the community, then to unsupervised and overnights.

[5] Just prior to the agreement, the husband began living with a woman he had been in a relationship with, his current partner. She is currently employed in Brockville and may have been at that time. At the time of the agreement both parties were living in Kingston. The husband subsequently moved to Brockville in early 2020 where he, and likely his partner, worked. As he states in his affidavit, without question the distance complicated the parenting time and exchanges. They did not do the every-three-month access review contemplated in the Separation Agreement.

[6] On February 19, 2020 the wife, acting on her own, brought a simple application seeking a divorce only. Court processes were suspended about a month later because of COVID-19.

[7] Soon afterwards, around April of 2020, the husband began communicating with the wife through his then counsel requesting a set access schedule and expansion of time, which by then was 3 out of 14 nights. It went up to 4/14 nights with both girls by July of 2020 but was reduced by the wife back to 3/14 nights around early August. The husband believed that shortly afterward they had come to an agreement that he would have the girls 2 to 3 nights a week but a minimum of 2 nights a week. When the wife instead insisted that the 3 out of 14 nights would continue and did not allow him a full week of summer holiday time, he brought an urgent motion on August 17, 2020 seeking one specific week of parenting time, two overnights per week, and an order foreclosing the wife from moving. Regarding the latter, around that time the wife had indicated an intention to move from Kingston to Orleans, Ontario.

[8] On August 18, 2020, Justice Swartz found the issue of mobility urgent, but the parenting time requests not. A case conference date was set. The wife changed her plans to move to Orleans and instead moved to Odessa, Ontario, just outside of Kingston, so the motion to restrict her mobility was no longer pursued.

[9] On September 14, 2020, the husband signed an answer to the wife’s divorce application agreeing with the divorce but seeking joint custody and equal parenting time. He still sought a restriction on the wife’s mobility, indicating that he was planning to move closer to her residence (from Brockville back to Kingston). A case conference was held before me on January 13, 2021, at which time some birthday access was agreed upon.

[10] The husband’s work schedule became much less complicated as of February 8, 2021, when it moved to a regular every two-week rotation.

[11] As noted, the motion of the husband is dated March 5, 2021. In it he seeks equal parenting that aligns with his work schedule and amounts to what is often referred to as a 2-2-3 (two days with him, two days with the wife, the weekend with him, and the reverse the following week repeating). He also seeks three non-consecutive 7 day periods in the summer, that each party have their respective Mother/Father’s Day, shared driving for parenting time exchanges, and an interim order restricting the wife’s mobility.

[12] The wife has brought a cross-motion that also seeks a set schedule. Her position is that the husband should have parenting time 4 nights in every two-week period, namely every other weekend from Friday at 6:30 pm to Sunday at 6:30 pm, and from Tuesday at 6:30 pm to Thursday at 6:30 pm the next week. For the summer, she indicates that he should have two non-consecutive 4-day blocks. Her cross-motion aligns with the husband’s proposal regarding Mother/Father’s Day and shared transportation. She also sought to adjust ongoing and retroactive child support and section 7 expenses.

[13] As noted, when he brought his motion, the husband indicated that he was in the process of finalizing a move to Kingston to be closer to the wife’s residence. In his reply affidavit he confirms that the move occurred on April 1, 2021.

Issues/Positions for the Hearing

[14] The parties advised that at the settlement conference that took place the day immediately before this hearing, they resolved the relocation issue and the section 7 arrears issue. As noted, per their respective motions, they were ad item on Mother/Father’s Day, and counsel advised that with the husband’s move to Kingston driving is no longer an issue. Therefore, the only remaining issues for me to decide are interim child support, specifically whether there is to be a retroactive adjustment, and the parenting schedule.

[15] Regarding child support, the issue is paragraph 4.14(c) of the Separation Agreement which says (any highlighting was in the document copied):

The husband agreed that as of this hearing (so commencing June 1, 2021) the support would be based on his full income. The wife in turn clarified that she is only seeking adjustments back to October 1, 2020, given that the first request to deviate from the Separation Agreement was made in her Reply dated September 24, 2020. Both parties agree, in reference to section 9 of the Federal Child Support Guidelines (“Guidelines”), that should an equal parenting time order be made the ongoing child support would be determined using the straight set-off approach.

[16] Regarding regular parenting time, the husband’s Notice of Motion specifically seeks the following:

Week 1: The Applicant Mother shall have parenting time from Sunday at 6:30 p.m. to Tuesday at 6:30 p.m. The Mother shall then drop the children off at the Respondent-Father’s residence on Tuesday at 6:30 p.m. The Father shall then have parenting time from Tuesday evening at 6:30 p.m. to Thursday evening at 6:30 p.m. The Respondent-Father shall then drop the children at the Mother’s residence in Odessa, Ontario on Thursday at 6:30 p.m. The Mother shall then have parenting time until Sunday at 6:30 p.m. (start of Week 2).

Week 2: The Respondent-Father shall have parenting time from Sunday at 6:30 p.m. to Tuesday at 6:30 p.m. with the Respondent-Father dropping the children off at the Mother’s residence in Odessa, Ontario at the end of his parenting time on Tuesday at 6:30 p.m. The Applicant Mother shall then have parenting time from Tuesday at 6:30 p.m. to Thursday at 6:30 p.m. The Applicant-Mother shall then return the children to the Father’s residence on Thursday at 6:30 p.m. The Father’s shall then have parenting time until Sunday evening at 6:30 p.m. (re-start Week 1).

[17] As the wife pointed out, the parties are in agreement regarding week 1. Re week 2, she has expanded her position from the formal cross-motion as noted above, and her position is now that the husband’s Friday parenting time should start at 7:30 am rather than 6:30 pm, giving him most of that day, but still end on the Sunday at 6:30 pm.

[18] To simplify, the disagreement is over week 2. The husband seeks 2 overnights midweek (Sunday and Monday) and that his weekend time start on Thursday at 6:30 pm. The wife’s proposal is that there be no midweek time and that his weekend start on the Friday at 7:30 am.

Law

[19] As the parties were married, this case is governed by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended. All references to legislation are to that Act.

[20] Sections 16.1(2) and 16(6) provide that a court may make an interim parenting order, and section 16(1) provides that in doing so the court shall take into consideration only the best interests of the child. Section 16(3) directs the court in determining best interests to consider all factors related to the circumstances of the child. It goes on to provide a list of included factors, and in subsection 16(2) directs the court when considering those to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The remaining subsections in section 16 clarify how family violence is to be approached, how past conduct is to be considered, and the principle of maximizing parenting time.

[21] Section 15.1(2) provides for an interim order regarding child support. Section 15.1(3) directs the court making such an order to do so in accordance with the Guidelines. Section 15.1(5) addresses agreements and provides in part that a court may award an amount based on an agreement if it is satisfied that the Guidelines amount would be inequitable.

Analysis – Parenting Time

[22] In going through the factors from subsection 16(3), the headings below are loose short forms for the more detailed text of the actual subsections. I have taken some of them out of order.

[23] Both parties addressed the status quo and the parenting history both before and after separation.

[24] The husband asserts that status quo prior to separation needs to be given priority over the current situation as the latter (3 overnights in 14 days) was imposed by the wife. He says that prior to separation they were a typical young family with two working parents who together shared the role of caring for the children. However, it is undisputed that at the time they separated Everly was only one year old (about to turn 2 in about a month), that the wife took the maternity/paternity leave, and that the husband was in the bad place for a number of months in the year leading up to the separation. As to Abbigail, she was just two weeks old when the parties separated. Although the evidence is conflicting and that dispute may need to be determined at trial, on the evidence before me these broad circumstances lend support to the wife’s assertion that even prior to separation she was the primary caregiver.

[25] The events since separation have been chronicled above. The husband’s parenting time for the most part has been 3 out of 14 nights. While he asserts that this was imposed by the wife, the tenor of their agreement was that she would take the primary role (ie. he had to “request” “access” and she could “insist” on it being “supervised”). The wife asserts that in view of the husband’s past difficulties, his parenting time was slowly expanded in the children’s best interests. While the husband does not deny the expansion, he maintains that once they got to 3 out of 14 overnights the wife has practiced inappropriate gate-keeping by refusing to move beyond that without a good reason, contrary to the children’s best interests.

[26] The Separation Agreement, in providing for “liberal and generous access … at such times as the parties agree”, was an agreement to agree: see J.D. v. M.C., 2020 ONSC 4599 at paragraphs 5, 43, and 57. Such wording had the advantage of providing flexibility in circumstances of the husband’s uncertain work schedule. There is no evidence that it did not work for the first 6 months. The husband’s first documented request to expand parenting time beyond the 3 nights out of 14 was April 20, 2020. In the negotiations that followed, the parties seemed to appreciate that the loose wording was causing conflict, but they were unable to come to a written agreement with set terms. Except for a brief period, the husband’s parenting time has remained as indicated, which in part triggered the need for a court proceeding in his eyes. I do note that, while it would not have necessarily foreclosed an expansion of his time, the husband’s complicated work schedule persisted until only fairly recently.

Children's Needs

[27] I am to look at the children’s needs given their age and stage of development, and stability is a need noted in the subsection.

[28] The parties, and in particular the husband, have encouraged me to consider the social science literature, including the Parenting Plan Guide (“PPG” or “Guide”) published by the Association of Family and Conciliation Courts – Ontario (AFCC-O) which provides a good up-to-date summary of the research.

[29] Everly, who turned 4 years old in March, is described in the PPG as a ‘preschooler’. At pages 18 and 19, after commenting generally on the needs of preschoolers including that they have a growing sense of independence but find security in their routines, the Guide indicates:

If one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent.

If both parents were employed outside the home at the time of separation and were equally involved in the child’s care, it may be appropriate to have an arrangement with roughly equal care, but not more than 3 nights away from either parent.

[30] The wife essentially maintains that we are dealing with the former scenario, the husband the latter. However, as noted above, on the limited evidence before me, it is difficult to find that the husband was equally involved in the child’s care prior to separation.

[31] Abbigail, who turned two years old in January, is described in the PPG as a ‘toddler’. At page 17, the Guide notes that toddlers need predictable and consistent routines and clear structures to help them develop a sense of limits to help them feels safe and secure. If older siblings are present, they are often part of the security system for toddlers and they should normally be on the same parenting schedule. As to the parenting plan, the PPG indicates at pages 17 and 18:

If parents have fully shared in the caretaking arrangements before the child has reached this age, the child has an easy temperament, or there are older siblings sharing a similar schedule, parenting time can be shared equally - as long as the separations from each parent are not too long (no more than two to three days or two nights for example).

If the child has some trouble with transitions, or is not particularly adaptable or flexible, or if the parents are unable to effectively communicate with each other about the child, it may be better for a child this age to have a primary residence with one parent and frequent contact, including some overnight visits, with the other parent (for example three contacts during the week, made up of one or two 4 to 6 hour blocks and one or two non-consecutive overnights).

If one of the parents has not established the parenting skills necessary to effectively and safely manage a toddler, that parent having 2 or 3 day-time contacts a week (starting at 1 to 2 hours and working up to 4 to 6 hours) should allow that parent to develop a relationship and parenting skills. If the child does not show distress in the care of that parent, visits may increase to include an overnight each week, perhaps extending to two overnights a week. At least initially, if there is more than one overnight a week, they should be spread out over the course of the week. More overnights may be appropriate if the child responds well to overnight visits or there are older siblings who can provide support for the younger child.

[32] Of course, Abbigail was just born when the parties separated, and has always been in the wife’s primary care. That said, there is no suggestion that the husband does not have the necessary skills to effectively manage a toddler. While it took some time, both children are seeing their father now on the same schedule. The mother’s evidence is that both children have shown some signs of distress after longer visits with their father.

Children's Relationships

[33] There is no suggestion that wife’s relationship with the children is other than what one might expect from a primary parent. There is also no dispute that the children have a strong relationship with their father. Both parents have new partners, and the children have extended family relationships on both sides.

Willingness to Support the Children’s Relationship with the Other Spouse

[34] The husband suggests that in “limiting” his contact the wife is not willing to support his relationship with the children. The wife to the contrary suggests that she has been appropriately expanding the husband’s parenting time, keeping in mind that it started as supervised. I am unaware of the wife ever suspending the husband’s parenting time. This disagreement appears to be one of expectations. If one starts from the expectation that parenting time should always be equal, the husband’s perspective of inappropriate gatekeeping is understandable. However, if you start from the position that the parenting time had to start out supervised and be expanded cautiously given the husband’s past difficulties and the children’s young ages, the wife’s approach is understandable. I would note that the Separation Agreement was framed around the husband’s “access”, not shared parenting.

[35] The husband points out that his mental health and substance abuse difficulties were short lived and over two years ago, and he refers to section 16(5) which says that in determining what is in the best interests of a child, the court shall not take into consideration past conduct unless relevant to, in this case, the exercise of his parenting time. While I agree that those difficulties are now largely historical, they are relevant in the limited sense that they explain how we got to where we are and why the gatekeeping that the husband complains about was in some sense built into the Separation Agreement he made.

[36] The husband argues that the maximum contact principle in section 16((6) means that the onus is on the wife to establish that equal parenting would not be appropriate, suggesting that the court in Fraser v. Fraser, 2016 ONSC 4720 at paragraph 59 elevated shared parenting “almost to a presumption level”. What the court actually said was “[w]hen a parent argues for unequal parenting time, the onus is on that parent to demonstrate why the proposed schedule is in the child’s best interest.” In my view the court was intending to refer to the evidentiary burden of needing to prove one’s own case, which was made clear in the following paragraph (para. 60) where it commented that “[t]he court was listening for evidence that would support each of the parents’ proposals”. I also note that was a trial decision, and the father had previously brought a motion for interim shared custody that was unsuccessful: 2015 ONSC 4640 starting at para. 14.

Children's Views and Preferences

[37] Given the children’s ages, this is not applicable, with nothing having been raised by counsel.

Children's Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage

[38] This is not applicable, with nothing having been raised by counsel.

Ability of Parents

[39] I do not see any evidence that either parent does not have the ability and willingness to care for and meet the needs of the children.

Plans of Care

[40] The plans of care are tied to the parties’ positions on the motions, and both have supports as noted briefly under ‘Relationships’ above. The recent changes to the husband’s work schedule and to his residence have eliminated any practical difficulties with his plan.

Ability to Cooperate with Other Parent

[41] This consideration is directed more at decision making, which is not an issue on this motion. I have no sense that there will be any difficulty or lack of cooperation in implementing a set parenting schedule set by the court.

Family Violence

[42] This is not applicable, with nothing having been raised by counsel.

Other Relevant Proceedings

[43] This is not applicable, with nothing having been raised by counsel.

Non-Listed Factors

[44] The only relevant factors outside of the headings above are once again the husband’s work schedule and the current proximity of their homes, and these have already been discussed.

Conclusion – Parenting Time

[45] None of the relevant best interest criteria reviewed above has priority over another. However, special attention was given by both parties as noted to the status quo (addressed under the heading History of Care above) for the reason that this is an interim motion. Evidence to warrant an order for interim parenting time must more cogently support disturbance of the de facto situation than evidence to support an order after a trial on the merits: Papp v. Papp et al., 1969 219 (ON CA), [1970] 1 O.R. 331. It has also been held in many cases that in the absence of material evidence that the child’s best interests demand an immediate change, the status quo will ordinarily be maintained until trial: for example, see Coe v. Tope, 2014 ONSC 4002 at para. 25(e); Daniel v. Henlon, 2018 ONCJ 122 at paragraphs 26-27, Monroe v. Graham, 2021 ONCJ 253 at para. 28, and Liu v. Xie, 2021 ONSC 222 at para. 66.

[46] Gerbert v. Wilson, 2015 SKCA 139 discusses the role of the parenting status quo on an interim motion. As noted at paragraphs 11 and 12, that factor does not displace the paramount or only consideration on an interim motion, namely the best interest of the child. Rather it is rooted in that very consideration, recognizing that changes in primary residence have a profound effect on children and a temporary change is one that could be reversed in the final resolution. In that sense, it is the profound changes that the court needs to be more cautious about, and changes in parenting time (what used to be called access) are not to be treated in the same way, as they are less likely to alter significant aspects of children’s lives such as their day-to-day home environment, routines, activities, etc.

[47] While the evidence is conflicting, in my view, at this stage the husband has failed to establish a pre-separation shared parenting status quo or explain why the one currently established by the Separation Agreement should be ignored. His request is not to simply increase parenting time, but rather to alter the children’s long-standing primary residence on a temporary basis, from sole to shared, impacting their day-to-day existence. While he has done all the right things – child focussed things – with his move and change in work schedule, and these should assist in a gradual increase in his parenting time, the children are still very young, and I am not prepared to fundamentally shift their current living situation now on what could turn out to be a temporary basis. The wife has proposed additional time in her motion, and even more at the hearing, and there is little evidence of an urgent problem or situation that needs to be immediately corrected to protect or improve the children’s lives by moving far beyond that. Whether the husband’s plan is in the children’s long-term best interests is disputed by the wife who is their primary parent.

[48] Given all the above factors, I would dismiss the husband’s motion and grant the wife’s motion regarding regular parenting time, plus the extra time on the Fridays that she proposed at the hearing.

[49] Holiday time was not argued. However, it was raised in both motions. I would grant the summer holiday time mid-way between both parties’ positions, not as a saw-off but for the following reasons. I cannot see why the husband should only have two non-consecutive periods, and I would order three. However, I would limit them to the 4-day periods for this summer as proposed by the wife. Extended periods away from her as their primary caregiver may not yet be appropriate given the children’s ages and stages of development (see the PPG at page 26).

Analysis – Retroactive Child Support

[50] I note that this is an interim motion. Retroactive support issues are routinely deferred until trial. However, courts generally make interim support orders effective from the date the proceeding started. The request in this case, as already noted, is found in the wife’s Reply dated September 24, 2020. As the issue is not complicated, I am prepared to deal with it.

[51] Section 15 of the Guidelines reads as follows:

15. (1) Subject to subsection (2), a spouse's annual income is determined by the court in accordance with sections 16 to 20.

(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse's income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.

[52] At the time of the Separation Agreement both parties were living in Kingston. There is no explanation or argument as to why the husband’s overtime income was excluded in that agreement or why that should continue. Simply put, I do not see how excluding his overtime income would be a fairer or more reasonable treatment than using his Line 150 income. In addition, referring to the section 15.1(5) of the Divorce Act, I do not see how the amount determined in accordance with the Guidelines could be considered to be inequitable here.

[53] The starting point on retroactive child support is S. (D.B.) v. G. (S.R.); L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, most often referred to as “DBS”, which summarizes its conclusions at paragraphs 133 to 135. At paragraph 133 it indicates that in determining whether to make a retroactive award a court will need to look at all the relevant circumstances of the case in front of it and listed four considerations (reasons for the delay, conduct of the payor parent, the circumstances of the children, and hardship). The issue was fundamentally reconsidered in Michel v. Graydon, 2020 SCC 24, which gave further updated guidance on the scope of those four factors and how they are to be analyzed. Both of those cases were helpfully interpreted and applied more recently in Henderson v. Micetich, 2021 ABCA 103.

[54] I see no reason why I should not make a retroactive award. To put it simply, there is no evidence or argument before me relating to the four considerations. Retroactive support is not exceptional relief (DBS at para. 5; Michel at para. 31) and there needs to be strong reasons not to award it (Michel at para. 132).

[55] Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. Here the date of effective notice and formal notice are one in the same, found in the wife’s Reply. With no request to make the award earlier, the husband shall pay child support based on his actual income commencing October 1, 2020. The parties are adhering to their adjusting process as set out in the Separation Agreement, and I am confident counsel can work out the wording of this order.

Decision

[56] Orders to go as set out above. As noted, the parties have settled most of the other issues, and if there were any outstanding, I did not hear argument on them. I have left it to counsel to work out the formal order in keeping with my directions above and, other than any issues arising from that, in my view both motions have been fully dealt with.

[57] Both parties have requested costs. That is a complicated matter, with settlement on some issues, some compromise on the eve of the hearing, and some mixed results. Appreciating that there may be other factors to consider that are unknown, such as offers to settle, if the parties still want to address me on that issue they can request a 30 minute Zoom hearing from the Trial Coordinator, provided that they do so within 10 days.

Minnema J.

Released: June 1, 2021