COURT FILE NO.: 1210/20
DATE: 20210708
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alexandra Jocelyn Martha Riches McAlister, Applicant
AND:
Joshua Court Hudson, Respondent
BEFORE: Justice R. Raikes
COUNSEL: Randolph Mills - Counsel, for the Applicant
Genevieve M. Samuels - Counsel, for the Respondent
HEARD: June 30, 2021
ENDORSEMENT
[1] The Respondent brings two motions:
To strike paras. 58-63 of the Applicant’s affidavit dated June 25, 2021; and
For the following interim order:
a. Both parties shall consult each other before making any healthcare, education, daycare decisions for the child, Nolan Courtland Hudson born January 22, 2020 (hereafter “Nolan”), and both parties will jointly decide any matter related to the child;
b. Deleting para. 3 of the interim order of Price J. dated January 21, 2021;
c. Setting a parenting schedule per paras. 4-6 of his Notice of Motion;
d. Directing a review of the parenting schedule after November 1, 2021;
e. Directing that each party be responsible for dropping off the child at the start of the other’s parenting time; and
f. Requiring the Applicant to provide the Baby Jogger City Select baby stroller for his use during his parenting time.
Motion to Strike Affidavit
[2] The affidavit filed by the Applicant inadvertently exceeds the prescribed page limit and spacing requirements. Counsel explained that he simply used the formatting provided by his software and was unaware that it differed from court requirements. I am satisfied that the failure to comply was not deliberate and I decline to strike the paras. in question for that reason.
[3] For reasons given orally, I struck paras. 58-61 of the Applicant’s affidavit as they were in the nature of expert opinion evidence which she was not qualified to give. The second sentence in para. 62 and the last sentence of para. 63 should be read as if prefaced with “I verily believe that”. I do not put them on the same footing as paras. 58-61. The remainder of paras, 62 and 63 are factual and admissible evidence.
Parenting Motion
[4] The parties are the biological parents of Nolan. They cohabited for approximately 2.5 years. They separated November 30, 2020.
[5] The Applicant brought an urgent motion prior to a Case Conference at the end of December 2020. On January 21, 2021, Price J. made an interim interim without prejudice order. At para. 3, he ordered:
- The parties shall have regular parenting time with the child as follows:
a. The Respondent shall have parenting time with the child at his residence on the following basis:
i. Each Monday and Wednesday from 5:00 PM to 6:30 PM;
ii. Commencing Sunday January 24, 2021 and each alternating Sunday thereafter, from 1:00 PM to 4:30 PM;
iii. Commencing Saturday January 30, 2021 and each alternating Saturday thereafter, from 1:00 PM to 4:30 PM;
iv. On Friday, January 22, 2021, only, between the hours of 4:30 PM and 6:30 PM;
v. The Applicant shall be responsible for all access transportation to/from the Respondent’s residence;
vi. The Applicant shall provide the child's stroller for parenting time;
vii. The Respondent shall not consume alcohol or marijuana during his parenting time with the child or 12 hours before his parenting time;
viii. Access shall be exercised independently between the Respondent and the child and:
while he resides at 180 Mary Ave, London, David Hudson and Lyn Hoang;
should he relocate to 1453 Trafalgar Street, Apt 3, no one else.
Notwithstanding subparagraph 3 (viii)(2), the child may have virtual access with other members of the Respondent’s family when he is in the care of the Respondent.
b. The child shall be in the Applicant’s primary care at all other times.
[6] A Case Conference was held on March 23, 2021. At the Case Conference, Justice Nicholson provided leave to the Respondent to bring a motion for expanded parenting time.
[7] On the motion before me, the Respondent seeks to be a joint decision-maker for Nolan. He also seeks the following parenting time:
Every Tuesday and Thursday from 5 PM to 6:30 PM;
Every Sunday from 9 AM to 4:30 PM;
After 4 weeks of 1 and 2 above, alternating overnights from Saturday at 5PM until Sunday at 4:30 PM.
[8] In addition, the Respondent has set out a proposed holiday parenting schedule at paras. 5 and 6 of the Notice of Motion. Counsel for the Applicant advises that (c) – (f) inclusive of para. 5 are on consent. The Applicant has set out a proposed holiday parenting schedule in her affidavit. Neither party made submissions on holiday parenting time; they simply agreed that I should determine that issue.
[9] By way of background, in September 2020, the Respondent was charged with DUI and resisting arrest on his way home from a golf outing with friends. In an earlier affidavit, he provided an explanation for these charges. He acknowledges that he was previously convicted of a DUI ten years ago. Those charges are still before the court.
[10] After he was charged, the existing tension in the parties’ relationship increased significantly. They separated when the Respondent moved out.
[11] The Respondent contends that he has always been involved in Nolan’s care. He was laid off due to COVID for six months in 2021. For four of those months he operated his own concrete business which allowed him to set his own hours. Because of the layoff and the flexibility his business offered, he shared in Nolan’s care and was an involved parent.
[12] The Applicant takes issue with the Respondent’s evidence as to his involvement in Nolan’s care and his work schedule. She deposes that she has been Nolan’s primary care giver since his birth. She took a 13-month maternity leave. Nolan is now 17 months old. She is still breast-feeding although Nolan is eating solid foods and uses a sippy cup for some fluids.
[13] She deposes that the Respondent often works long hours and is frequently out-of-town for work. When not at work, he preferred partying and socializing with friends, not caring for Nolan.
[14] The Applicant deposes that the Respondent drinks alcohol and smokes marijuana to excess. He also has anger issues. There was violence during their relationship. He has acted aggressively toward her and her 73-year old father before and since separation. She deposes that the Respondent’s brother has been at some of the exchanges and has likewise acted aggressively and inappropriately. She avers that the Respondent has told her of his childhood and details of his relationship with his mother that were very troubling.
[15] The Respondent denies that he ever intentionally hurt the Applicant. He was charged in January 2021 with assault of the Applicant related to an incident in 2019. The charge has since been withdrawn. He deposes that the incident where the Applicant’s foot was injured by a door was entirely accidental. Her account is vastly different.
[16] The Respondent also denies he was aggressive to her father. He paints her father as the aggressor. He claims his brother has not engaged in any inappropriate conduct toward the Applicant, and his mother is a loving parent.
[17] The Respondent concedes that he was drinking too much during the lockdown. He has sought counselling. He agrees that he ingests marijuana but deposes that it is medicinal for pain from a back injury suffered years ago. He does so under prescription.
[18] The parties now live roughly 400 meters apart. When they separated, he lived with his brother and sister-in-law. He purchased a triplex and renovated it with assistance from his brother. He has resided in one of the units since April 2021. It has plenty of room for Nolan.
[19] The Applicant takes issue with the suitability of the Respondent’s accommodation. She visited the unit quite some time ago and observed what she believed to be black mold. The unit was in very poor condition when she saw it. She is prepared to pay for a neutral third party to test for black mold and for air quality.
[20] Suffice to say, that there are significant differences in the narratives of the two deponents. It is not possible for me to determine who is exaggerating or minimizing or outright misleading in their evidence at this stage. I have not had the benefit of observing the witnesses testify nor has there been any cross-examination. I note that the order of Price J. already addresses alcohol and marijuana consumption. There is also a provision dealing with controlled substances unless by prescription.
[21] I am concerned, however, by the allegations of immature, inappropriate conduct by the Respondent and his brother during exchanges. If true, they show a remarkable lack of good judgment and bad parenting. They also reinforce that the Respondent has anger issues and poor impulse control. He is cautioned that such behaviour may have significant long-term implications for his parenting time with Nolan.
[22] I will deal first with decision-making and then the parenting schedule including holidays. The applicable test is the best interests of the child.
Decision-Making
[23] I do not agree that an order for joint decision-making should be made at this time and in these circumstances. Justice Price’s order at paragraphs 1, 2, 5, 6, and 7 deals with access to information for both parents, healthcare emergencies, and child-care.
[24] The Applicant has Nolan in her primary care. The Respondent’s expanded care schedule, if granted, does not change that. She is and has been making day-to-day decisions regarding Nolan’s care. There is no suggestion that she is a bad parent. Nolan is years away from going to school. He has a doctor and the Respondent is free to attend appointments.
[25] There is no pressing need to adjudicate which parent should be the final decider or whether all decisions must be made jointly. Doing so will establish an interim status quo and give one party a tactical advantage. Each parent will make whatever decisions are necessary for Nolan’s care when in his/her care.
[26] The only exception is daycare. I note that paragraph 8 of Justice Price’s order requires that if a parent cannot care for Nolan for more than 5 consecutive hours, the other parent must be given the option to do so. If he or she cannot care for him, the parent in whose care Nolan is shall make the childcare arrangements. As a practical matter, both parents work. The Applicant’s maternity leave is finished. If the Applicant wants to use daycare for Nolan during the work week, she should consult with the Respondent and in the event of disagreement, she shall decide that issue. Therefore, paragraph 8 of the order of Justice Price should be modified to reflect that change. That change will be without prejudice.
Parenting Schedule
[27] The Respondent’s proposed care schedule is outlined above. The Applicant is agreeable to expanding Nolan’s time with the Respondent but wants to do so more gradually. She points to the fact that she is still breast-feeding Nolan and feels that he is too young for overnight visits. She suggests that overnight visits start when Nolan is three (3) years old. She proposes the following care schedule for the Respondent at para. 64 of her affidavit dated June 18, 2021:
a. Tuesday and Thursday from 5 PM to 6:30 PM;
b. Every Sunday - the time of the visits would vary based on the time of year as follows, allowing for gradual increases in time as Nolan ages:
i. June and July – noon to 4:30 PM
ii. August and September – 11 AM to 4:30 PM
iii. October and November – 10 AM to 4:30 PM
iv. December and January – 9 AM to 4:30 PM.;
c. Additional unscheduled days with reasonable notice;
d. Change to a Saturday or both days on a weekend with reasonable notice;
e. When Nolan turns two years of age the visits on the weekend could be expanded to a full day and continue with the Tuesday and Thursday evenings;
f. When Nolan turns three years old introduce overnights. This would start with one weekend night, either a Friday or Saturday night, every other weekend. There would be the full Sunday visit on the weekends when there is no overnight visits. The Tuesday and Thursday evening visits would continue; and
g. Over a period of time access would expand to every other weekend with two overnight visits. The mid-week visit would then change to Wednesday from 4:00 PM to 6:30 PM .
[28] The Applicant indicates in her affidavit that she is “open to having ongoing virtual discussions with the Respondent and adjusting the start and end times as Nolan ages to ensure that access works for all parties and to always be in Nolan’s best interests”. She also indicates that with respect to (c) and (d), she is “open” to those changes. I take that to mean that she would consider such changes, not that she would commit to them at this time.
[29] As is evident, the Applicant’s parenting schedule significantly limits Nolan’s time with his father for the next 18-24 months. In my view, her proposed schedule is far too restrictive and is not in Nolan’s best interests.
[30] Nolan is 17 months old. He is at an age when important bonds are formed. Overnight visits are an important aspect of the development of a close bond between child and parent. It fosters trust and stability. There is no reason to defer or elongate the timeframe for establishing that connection between Nolan and his father.
[31] There is no evidence that Nolan is other than a healthy little boy. The Respondent lives a very short distance from the Applicant. If an issue arises, she is mere minutes away. There are already provisions in place to prohibit consumption of alcohol and drugs. The Respondent is not presently seeking overnight parenting for more than one night at a time. Nolan is able to drink using a sippy cup. I am not satisfied on the evidence before me that the child is so young that breast-feeding is essential.
[32] The Applicant has offered to pay the cost of having the Respondent’s home inspected and tested for mold. I see no reason to deny that inspection given the effects of mold if present. Otherwise, I am not satisfied on the evidence that there are any other valid concerns with the Respondent’s accommodation as it relates to Nolan spending time including overnights with his father.
[33] Having regard to the factors enumerated in s. 24(3) of the Children’s Law Reform Act, both parents love Nolan. Both have formed an emotional bond with him. Both are capable of parenting and attending to Nolan’s needs. It will benefit Nolan to have a strong bond with his father and to get to know his father’s side of the family. Nolan is too young to ascertain his views and preferences. The breakdown of the family unit is relatively recent. There is no new family unit on either side.
[34] Nolan has been in the Applicant’s primary care since the parties separated. The Applicant was on her maternity leave at that point and likely had been the primary caregiver before then. That is not to say that the Respondent did not assist but I note that he was working at least part of that time.
[35] With respect to the allegations of violence, none involve Nolan. None have resulted in ongoing criminal charges. They are untested allegations at this point. That said, there is concern that the Respondent has a temper. It will be a term of the parenting order that no physical discipline will be used on Nolan by either party. Together with the existing terms in Justice Price’s order, that should attenuate any concerns for Nolan’s safety while in the Respondent’s care.
[36] I find that it is in Nolan’s best interests to expand his time in the care of the Respondent. I order that Nolan be in the Respondent’s care as follows:
Every Tuesday and Thursday from 5 PM to 6:30 PM;
For the next four weeks commencing Sunday, July 11, 2021, from 9:30 AM to 4:30 PM;
Commencing Saturday, August 7, 2021, on alternating weekends, from Saturday at noon to Sunday at 4:30 PM;
Commencing Sunday, August 15, 2021, and every four weeks thereafter, from 9:30 AM to 4:30 PM; and
The overnight schedule will be reviewed in February 2022.
Nolan’s primary residence will be with the Applicant. He will be in her care except during the Respondent’s parenting time. Paragraph 3 of Justice Price’s order is varied accordingly.
[37] Thus, during the initial four-week period, the Respondent will have Nolan in his care Tuesday and Thursdays from 5-6:30 PM and on each Sunday from 9:30 AM to 4:30 PM. At the end of that initial period, he will then have Nolan in his care overnight every other Saturday starting at noon in addition to the Tuesday and Thursday visits. He will also have Nolan one Sunday a month on a non-overnight weekend. That ensures that the Applicant has at least one full weekend in each four-week cycle where Nolan is in her care. It is only fair that she also have weekend time with Nolan.
[38] To be clear, there is nothing preventing the parties from mutually agreeing to change the schedule to meet their and Nolan’s needs.
[39] Further, I order that the Respondent shall cooperate and allow an inspection to be done for the purpose of testing for mold contamination in his residence. The Applicant shall bear the cost of the inspection and shall provide a copy of the report from the inspector forthwith. The inspection shall take place in the next 60 days and parenting time shall proceed as above in the meantime.
Exchanges and Stroller
[40] As indicated, the distance between their respective homes is modest. It makes sense from Nolan’s perspective that his primary home be the place for exchanges. Therefore, all exchanges shall be done by the parties at the residence of the Respondent. The parties will communicate only as to parenting issues and always in a respectful and civil manner. Once again, the parties can mutually agree to do the exchanges elsewhere if they wish.
[41] Much ink was spilled concerning the involvement and conduct of others who have been present at exchanges. The Applicant’s father may be present so long as he is merely a witness. Given the allegations of past violence and aggression, the presence of the Applicant’s father would no doubt provide some re-assurance. It is preferable that he watch from a distance if possible.
[42] There is no need for the Respondent’s brother to be present. He appears to have aggravated an already inflamed situation. He is not permitted to attend any exchanges and is not to have any communication with the Applicant except in case of a medical emergency involving Nolan where the Respondent is unable to communicate with the Applicant.
[43] The Respondent should use the stroller provided by the Applicant. If he is unhappy with it, he is free to buy another.
Holiday Schedule
[44] The parties agree on parenting time for the Respondent on Canada Day, the August civic holiday, the Respondent’s birthday, and at Thanksgiving. They cannot agree on Father’s and Mother’s Day, Christmas, Easter, Victoria Day, New Years Day, Nolan’s birthday, Halloween, or Family Day.
[45] There is no evidence as to family traditions or religious observances. Nolan is still quite young. The Easter Bunny and Santa await. I have tried to allocate holidays and times fairly between the parties. Again, the parties can mutually agree to a different schedule if they choose.
[46] I order that the regular parenting time schedule be suspended as necessary for the following holiday time:
Father’s Day – If Nolan is not already scheduled to be in the Respondent’s care that day, he will be in the Respondent’s care from 9 AM to 3 PM.
Mother’s Day - If Nolan is not already scheduled to be in the Applicant’s care that day, he will be in the Applicant’s care from 9 AM to 3 PM.
Nolan’s Birthday – The parent who is not scheduled to have Nolan in his/her care on Nolan’s birthday shall have Nolan from 11 AM to 2 PM on that day.
Halloween – In odd numbered years, Nolan will be in the care of the Respondent from 4:30 PM to 6:30 PM. In even numbered years, Nolan will be in the care of the Applicant from 4:30 PM to 6:30 PM.
Family Day and Victoria Day – Nolan shall be in the Applicant’s care until 1 PM, and in the Respondent’s care from 1 PM to 5 PM.
New Year’s Day - Nolan shall be in the Applicant’s care until 1 PM, and in the Respondent’s care from 1 PM to 5 PM.
Christmas – In odd numbered years, Nolan will be in the care of the Respondent from 4:30 PM on December 24 to noon on December 25. In even numbered years, the reverse shall apply.
Easter Sunday – In odd numbered years, Nolan will be in the care of the Applicant from 9 AM to 1 PM, and in the Respondent’s care from 1 PM to 5 PM. In even numbered years, the reverse shall apply.
[47] The Notice of Motion deals with the Respondent’s birthday (see para. 5(e)) but not the Applicant’s. In the event the Applicant’s birthday falls on a day when Nolan is scheduled to be in the Respondent’s care, Nolan will be with the Applicant from noon until 6:30 PM that day.
[48] Nolan is not yet in school. I have not addressed school holidays like the Christmas break or March break as it seems to me to be premature to do so. I declined to deal with Boxing Day as it seems to me that Nolan will already be going back and forth between homes the preceding two days. It is open to the parties to reach agreement or wait until it comes up as part of school break.
[49] Neither party broached the subject of uninterrupted vacation time. That is an issue best discussed between the parties through counsel.
Conclusion
[50] With respect to the parenting motion, for the reasons above, I order as follows:
- Paragraph 8 of the order of Price J. dated January 21, 2021 is hereby varied and replaced on a without prejudice basis with the following:
The Applicant shall consult with the Respondent regarding daycare and may make such arrangements as she considers appropriate for daycare for the child during the work week. If either party cannot care for the child for more than 5 consecutive hours (excluding time in daycare), that party will first notify the other party and give them the opportunity to care for the child. If the party notified is unable to care for the child, the other may make childcare arrangements at his or her expense. Both parties shall provide the names and contact information of care providers to the other party.
Each parent will make whatever decisions are necessary for Nolan’s care when he is in their respective care.
Neither party shall use physical discipline on the child.
The parties will communicate only as to parenting issues and always in a respectful and civil manner.
The Respondent shall cooperate and allow an inspection to be done of his residential unit for the purpose of testing for mold contamination. The Applicant shall bear the cost of the inspection and shall provide a copy of the report from the inspector forthwith upon receipt. The inspection shall take place in the next 60 days and parenting time shall proceed in the meantime.
Paragraph 3 of the order of Price J. dated January 21, 2021 is hereby replaced with the following:
The parties’ regular parenting schedule is as follows:
a. With the Respondent,
• Every Tuesday and Thursday from 5 PM to 6:30 PM;
• For the next four weeks commencing Sunday, July 11, 2021, from 9:30 AM to 4:30 PM;
• Commencing Saturday, August 7, 2021, on alternating weekends, from Saturday at noon to Sunday at 4:30 PM;
• Commencing Sunday, August 15, 2021, and every four weeks thereafter, from 9:30 AM to 4:30 PM; and
• The overnight schedule will be reviewed in February 2022.
b. The child’s primary residence will be with the Applicant. He will be in her care except during the Respondent’s parenting time.
All exchanges will take place at the Applicant’s residence.
The Respondent’s brother, David Hudson, shall not be present for any exchanges and shall not communicate with the Applicant except in the event of a medical emergency involving the child where the Respondent is unable to communicate with the Applicant.
The Applicant’s father may be present for exchanges so long as he is merely a witness.
The regular parenting schedule is suspended for holidays and special occasions as follows:
i. On consent, in accordance with paras. 5(c)-(f) of the Respondent’s Notice of Motion;
ii. For the following,
Father’s Day – If Nolan is not already scheduled to be in the Respondent’s care that day, he will be in the Respondent’s care from 9 AM to 3 PM.
Mother’s Day - If Nolan is not already scheduled to be in the Applicant’s care that day, he will be in the Applicant’s care from 9 AM to 3 PM.
Nolan’s Birthday – The parent who is not scheduled to have Nolan in his/her care on Nolan’s birthday shall have Nolan from 11 AM to 2 PM on that day.
Halloween – In odd numbered years, Nolan will be in the care of the Respondent from 4:30 PM to 6:30 PM. In even numbered years, Nolan will be in the care of the Applicant from 4:30 PM to 6:30 PM.
Family Day – Nolan shall be in the Applicant’s care until 1 PM, and in the Respondent’s care from 1 PM to 5 PM.
New Year’s Day - Nolan shall be in the Applicant’s care until 1 PM, and in the Respondent’s care from 1 PM to 5 PM.
Christmas – In odd numbered years, Nolan will be in the care of the Respondent from 4:30 PM on December 24 to noon on December 25. In even numbered years, the reverse shall apply.
Easter Sunday – In odd numbered years, Nolan will be in the care of the Applicant from 9 AM to 1 PM, and in the Respondent’s care from 1 PM to 5 PM. In even numbered years, the reverse shall apply.
Applicant’s birthday - In the event the Applicant’s birthday falls on a day when Nolan is scheduled to be in the Respondent’s care, Nolan will be with the Applicant from noon until 6:30 PM that day.
[51] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days hereof.
Justice R. Raikes
Date: July 8, 2021