COURT FILE NO.: 20-0228

DATE: June 25, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSE CABRAL

Applicant

– and –

AMANDA PARKER

Respondent

G. Edward Lloyd, for the Applicant

Tessa Morris, for the Respondent

REASONS FOR DECISION

ABRAMS, J

Overview

[1] Electronic materials were filed through the Courthouse in Brockville and thereafter filed in the physical record at the courthouse.

[2] At this point I have received and reviewed the following:

a. The Applicant’s Motion dated June 8, 2021.

b. Affidavit of the Applicant dated June 15, 2021, with exhibits attached.

c. The Respondent’s Cross-Motion dated June 14, 2021.

d. Affidavit of the Respondent dated June 14, 2021, with exhibits attached.

e. Reply Affidavit of the Applicant, dated June 15, 2021.

f. Applicant’s Factum dated June 15, 2021.

g. Respondent’s Factum dated June 16, 2021.

h. The pleadings, endorsements and other documents filed in the Continuing Record.

Brief Background

[3] a. The parties cohabited from 2009 until on or about May 24, 2020, when they separated.

They never married.

b. For the duration of their relationship the parties resided at or near Lyndhurst, Ontario in a home owned by the Respondent (“the family home”).

c. Following their separation, the Applicant moved to Kingston, Ontario to live with his parents, where he continues to reside today.

d. The parties are the biological parents of the child, Reed John Parker-Cabral born June 6, 2013 (“the child”).

e. There is no written agreement or order setting out the sharing of parenting time or decision-making responsibilities.

f. There is, however, a status quo arrangement of approximately 10 months whereby the child has resided primarily with the Respondent in the family home, subject to every other weekend plus an evening of week-day parenting time with the Applicant.

g. The matter was Case Conferenced on April 13, 2021 before Johnston J. when the issues of parenting time, decision making responsibility and child support were canvassed.

Issues

[4] a. Should the current status quo parenting time arrangement be disturbed on a temporary

basis in advance of a full hearing (trial) on the merits?

b. If so, what temporary parenting order would be in the child’s best interests?

c. What decision-making order should the court make?

d. What child support obligation, if any, arises from the temporary order, both retroactively and going forward?

Positions of the Parties

[5] a. The Applicant contends that the court should make a temporary order for week-about

parenting time with equal sharing of all vacations, holidays and special days. Further, the Applicant asserts that there should be shared decision-making power. The Applicant concedes that any child support arrears, however calculated, should be deducted from his share of the equity in the family home based on claims grounded in constructive and resulting trust principles.

b. The Respondent argues that the status-quo parenting time arrangement should be maintained pending a full hearing on the merits. The Respondent agrees with an order for joint decision-making responsibility, with a veto to the Respondent if the parties are unable to reach consensus on any issue. The Respondent asks for child support to be paid both retroactively and on-going in accordance with the Guidelines. The Respondent agrees that arears of child support may ultimately be paid from the Applicant’s share of the equity in the family home.

Analysis and Conclusions

Law

Parenting Time

[6] The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27.

This even applied when the child was reluctant to see a parent. Further, the maximum contact principle also applied under provincial cases, even though not set out in CLRA: Cavannah v. Johne [2008] O.J. No. 5027 (SCJ).

[7] Then, as now, the Court is tasked with viewing what is in the best interests of the child, not the parents. The maximum contact principle was mandatory, but not absolute. The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the court could restrict contact: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See: Casselman v. Noonan, 2017 ONSC 3415.

[8] Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[9] Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children: Knapp v. Knapp, 2021 ONCA, per Benotto J.A.

Status-Quo

[10] The status-quo – and avoiding reckless creation of a new status-quo - are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[11] It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 1976 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.) ; M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

[12] In making an interim order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests. McEachern v. McEachern (1994) 1994 7379 (ON SC), 5 RFL (4th) 115.

[13] To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para 26.

[14] It is generally not in the best interests of the child to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the Office of the Children’s Lawyer recommending an immediate change in residence; an indication that the child is doing poorly under a particular regime; serious mental health issues in connection with one of the parents; and drug or alcohol addiction on the part of one of the parents.

Conclusions

Parenting Time

[15] I begin from the standpoint that, at this juncture, the Court record is limited to competing and untested affidavit evidence alone.

[16] That said, there is no quarrel that tension between the Respondent and the child has, on occasion, resulted in the child remaining in the care of the Applicant for additional days of parenting time.

[17] The Applicant contends that on those occasions the child simply refused to return to the Respondent’s care. Moreover, the Applicant argues that the child has consistently voiced his preference to spend equal time with both parents on a week-about schedule.

[18] The Respondent asserts that on those occasions when the child was not returned to her care, the Applicant unilaterally overheld the child. Alternatively, the Respondent contends that the Applicant has included the child in inappropriate conversations regarding the parenting schedule, which is the source of the child’s alleged preference for a week-about schedule.

[19] More recently, the parties acknowledge that tension between the Respondent and the child has abated, although the Applicant continues to assert that the child would prefer a week-about sharing of parenting time. Further, the Applicant argues that a week-about schedule would likely resolve any future tension between the Respondent and the child, and thus must be in the child’s best interests. I do not see it that way, for the following reasons.

[20] First, the claim that the child would prefer a week-about schedule is hearsay evidence emanating solely from the Applicant, which the court has no way of assessing the veracity of at this juncture.

[21] Second, even if the court was able to establish the bona fides of the professed claim in favour of a week-about schedule, the record is not sufficient for the court to assess the significance of the child’s wishes with respect to the relevant factors, specifically: (a) how clear and unambivalent the wishes are; (b) how informed the expression is; (c) the maturity level of the child; (d) the strength of the wish; (e) the length of time the preference has been expressed for; (f) practicalities; (g) the influence of the parent(s) on the expressed wish or preference; (h) the overall context; and (i) the circumstances of the preferences from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218. See also Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

[22] Third, the Applicant’s proposed week-about schedule is, in my view, impractical and unsustainable from the perspective of an eight-year-old child. To recall, the Applicant resides in Kingston. The child attends day-care in Seeley’s Bay - before and after school - which is approximately 30 minutes from Kingston, in good weather. Daycare begins at 6:00 a.m. The child attends school at Sweets Corners Elementary, which is another ten minutes away. In order to be at the daycare by 6:00 a.m., the child would need to be up at 5:00 a.m. and on the road by 5:30 a.m. His school day begins at 9:20 a.m. and ends at 3:45 p.m. While the Respondent can pick the child up directly from school, the Applicant’s workday doesn’t allow him the same flexibility. Thus, the child must attend after school care until 4:30 p.m., when the Applicant is able to pick him up, at the earliest. Accordingly, on those weeks when the child is in the Applicant’s care under the proposed week-about schedule, the child will have logged approximately four and a half hours from the time he wakes until he starts classes, and approximately 12 hours, give or take 30 minutes, by the time the Applicant arrives to pick him from after school care. Further, by the time he arrives back in Kingston in time his dinner, he will have put in a 13-hour day. There is evidence in the record that the child has already quit certain extracurricular activities while in the Applicant’s care because he is “tired”, which is entirely understandable.

[23] To reiterate, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status-quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests. In my view, the record does not establish that the child’s best interests are not currently being met nor that his welfare is in danger in maintaining the status-quo. Rather, for the reasons previously stated, the opposite is true, namely: a week-about schedule would impose on this eight-year-old a 12-13 hour travel/daycare/school day, while in the Applicant’s care, without factoring in time for anything else, which is clearly not in his best interests.

[24] The court is not prepared to establish a risky and perhaps reckless new status-quo on an interim basis pending a full hearing on the merits. If the Applicant moves back to the Seeley’s Bay area, which he proposes to do, the move may constitute a material change sufficient for the court to review the matter.

[25] For these reasons, the Applicant’s claim for a change to the parenting schedule is dismissed. For the same reasons, the Respondent’s claim for primary residence, which effectively affirms the status-quo, is granted. Further, the Respondent’s claim to share holidays and vacation time pursuant to paragraphs 2 a-d of her Cross-Motion is also granted.

Ancillary Issues

[26] The parties agree to share decision making responsibility; however, the Respondent asks that she be granted a veto in the event of a disagreement. In my view, in her role as the primary parent that request is not unreasonable, subject of course to the Applicant’s right to have any decision reviewed by the court, in advance of the decision being implemented.

[27] Given that the child has been residing primarily with the Respondent since separation, the Applicant ought to have been paying child support at the Guideline amount of $591.00 per month based on his gross income in 2020. Child support arrears are calculated at $7,683.00, which the Respondent agrees may be paid out of the Applicant’s claim to equity in the family home, but which the court orders payable and enforceable in any event of the resolution of the property issues. Ongoing child support is set at $591.00 per month, subject to further and better evidence regarding any changes in the Applicant’s gross annual income. Section 7 expenses should be shared between the parties on a pro-rata basis relative to their gross annual income.

[28] If the parties are unable to agree on the issue of costs, written submission of no more than four pages, double spaced, one side of the page, 12 point font or larger, shall be filed within 30 days, including a bill of costs and any offers to settle.

The Honourable Mr. Justice B. W. Abrams

Released: June 25, 2021

COURT FILE NO.: 20-0228

DATE: June 25, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOSE CABRAL

Applicant

– and –

AMANDA PARKER

Respondent

REASONS FOR DECISION

Abrams, J.

Released: June 25, 2021