NEWMARKET COURT FILE NO.: FC-18-56990
DATE: July 16, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.L.
Applicant
– and –
D.L.
Respondent
R. Goddard, Counsel for the Applicant
M. Segal, Counsel for the Respondent
HEARD: July 14, 2021
Ruling on motion
A. HIMEL J.:
Relief Sought
[1] The Applicant Mother (the “Mother”) brings a motion for the following relief:
i. The Mother seeks to relocate to St. Catharines, Ontario effective immediately, with the children she shares with the Respondent Father, namely C.L. (age 6.5) and E. L. (age 5), collectively (the “children”).
ii. If the Mother is permitted to relocate to St. Catharines with the children, an order determining whether the Father shall have parenting time with the children for three weekends each month, the specific weekends to be agreed upon by the parties, or failing agreement, the weekends shall be particularized by this Honourable Court.
iii. In the alternative to paragraph (ii) above, an order determining whether the parties should continue with the current 2-2-5-5 parenting schedule, namely with the children residing with the Mother on Mondays and Tuesdays, the children residing with the Father on Wednesdays and Thursdays, and the children alternating weekends (Friday through Sunday) with each party if the Father resides within 30 minutes of the boundary of St. Catharines, Ontario.
iv. The Mother seeks a shared transportation schedule for parenting time exchanges to deliver the children to the other parent’s home, or failing agreement, to a mid-point exchange between their two residences.
v. The Mother seeks an order permitting the children to be enrolled in school in St. Catharines, Ontario in advance of the 2021-2022 school year.
[2] The Father opposes the Mother’s request to relocate the children St. Catherines, and the related court orders.
[3] In advance of the long motion I requested that each party provide two draft orders to enable me to devise a parenting plan (pending trial). The children require a schedule whether they reside in St. Catherines or in Richmond Hill. A summary of the proposed plans are as follows:
(i) Mother:
i. Relocation permitted – As per paragraph (1) above. Additional time for virtual access, holidays PA/PD days, long weekends and summer.
ii. Relocation denied – By September 1, 2021, the children will reside within a 30-minute commute of the Father’s current residence (in Richmond Hill), and the sum of $80,000 will be released to her from the funds held in the real estate solicitor’s trust account. The existing 2-2-5-5 schedule will continue. Additional time for virtual access, holidays, PA/PD days, long weekends and summer.
(ii) Father:
i. Relocation permitted – The children will reside primarily with the Mother and shall be in the Father’s care from Friday after school until Sunday evening or Monday morning during the first three weekends of every month, as well as additional time for virtual access, holidays, PA/PD days, long weekends and summer.
ii. Relocation denied – The children will reside primarily with the Father and shall be in the Mother’s care Friday after school until Sunday evening or Monday morning during the first three weekends of every month, as well as additional time for virtual access, holidays, PA/PD days, long weekends and summer.
[4] At the start of the long motion the Father confirmed that he would consent to an order releasing the sum of $80,000 to the Mother as an advance on equalization as per paragraph 3(a)(ii) above, if I decline to permit the relocation and she agrees that the children will reside reasonably close to him.
Factual Overview
[5] At some point prior to February 13, 2021, the Mother decided that she and the children would vacate the matrimonial home in Richmond Hill and stay with the Maternal Grandmother (“MGM”) in St. Catherines. The Mother states that she had nowhere to take the children given the impending sale of the matrimonial home.
[6] The Mother did not obtain consent from the Father or from the Court, nor did she provide any advance notice of this plan. Typically, the Court does not tolerate self-help. However, I recognize that in the current era of the Covid-19 pandemic (“Covid-19”), nothing is typical. Parents and children have been significantly impacted by the pandemic, in all areas of their lives including employment and financial support, emotional and mental health challenges, isolation and quarantine.
[7] In February 2021, all Ontario children attended school on a virtual basis. The Mother subsequently changed their status from in-person to online attendance when the schools re-opened (briefly) thereafter. While the Mother’s actions were a form of self-help, she was able to ensure that the parenting time schedule (2-2-5-5) continued uninterrupted.
[8] The Father objected to the Mother’s unilateral decision to stay in St. Catherines and to change the children’s attendance. However, the availability of online school is the only reason that the current schedule could be maintained. A relocation crisis was averted because virtual school was available. The Father would not have agreed to the children’s ongoing attendance at virtual school (as per his counsel’s letter dated March 29, 2021). Conflict about virtual vs. in-person school would not have been in the children’s best interests.
[9] In any event, most of the 2021 school year was only offered on the virtual platform. While the Mother’s actions are problematic, and she ought to have secured accommodations reasonably close to the Father’s home within a reasonable timeframe, I recognize that in February 2021, the Mother had no other place to take the children. I also note that the house listed for sale shortly thereafter and had a closing date of March 15, 2021.
[10] The Mother now seeks an order that she be permitted to relocate the children to St. Catherines and an order that she may enrol the children at a school near the MGM’s home.
[11] The Mother states that she has no option but to stay with the MGM because the Father has not been paying child support and he refuses to disclose his actual income. She believes that his shareholding interest in a corporation is valuable, yet he refuses to value same. The Mother resides rent-free with the MGM, who can also provide other forms of support. It has been the Mother’s hope to return to St. Catherines for years.
[12] The Father states that the Mother’s primary motivation is not financial need, but rather her desire to reside in St. Catherines. He states that this was never the family’s plan. They have resided in Richmond Hill since shortly after the first child’s birth. The recently secured a paid employment position. Various family members have supported him through the provision of gifts and loans. He does not deny that child support has not been paid since August 2020.
[13] The parties are focused on who is to blame for creating a situation which may require a change to the parenting time status quo (2-2-5-5). However, I am not inclined to focus on the question of: “what came first, the chicken or the egg?”.
[14] Relocations are authorized when the proposed move is in the best interests of the children.
[15] Given the shared parenting arrangement the onus is on the Mother to persuade the Court of same.
Disposition
[16] I decline to authorize the move. Instead, I am ordering the release of funds to enable the Mother to obtain accommodations a reasonable distance from the Father’s home.
[17] The children are to be relocated by September 1, 2021, failing which the Father will have (temporary) primary residence. The children shall be enrolled at Christ the King Elementary School in Richmond Hill, Ontario, or, if that is not permissible, a school situated in the Father’s catchment area.
Background Facts
[18] The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required.
[19] The parties were married on September 28, 2013 and separated on September 2, 2018.
[20] In September 2015, the parties moved into the matrimonial home, which was located in Richmond Hill and held in the Father’s name alone.
[21] During the marriage both parties were actively engaged parents. The Mother stayed at home with the children and the Father worked from home.
[22] By 2017, the marriage was deteriorating. The Father states that part of the conflict related to the parties’ ongoing financial struggles and spending patterns. This led to the decision to remove the children from private school (as of September 2020) and to obtain a line of credit (“LOC”) to pay off debts in July 2018. The Mother is unclear as to the purpose and whereabouts of the LOC funds ($200,000).
[23] The Mother re-trained during the marriage and obtained her real estate licence in October 2018.
[24] The marriage ended on September 28, 2018 when the Father was charged with assaulting the Mother (which he denies). The Father was prohibited from returning to the home.
[25] The criminal charges were resolved by way of a peace bond in January 2019.
[26] Until November 18, 2018, the Mother refused to provide the Father with any parenting time. In December 2018, the parties commenced a shared parenting schedule, being a 3-4-3 schedule. At the time the children were ages 2 ¾ and almost 4.
[27] While the parenting time schedule was never converted into a court order or written agreement, the parties were successful in complying with same. They agreed to the children’s daycare, their private school and, more recently, the elementary school.
[28] The shared parenting arrangement was suspended from October 2019 to June 2020, due to concerns respecting the Father’s mental health. The Children’s Aid Society (the “Society”) commenced a Protection Application in respect of same. The Society also had concerns about adult conflict. The Father complied with requests for an assessment and counselling. He successfully addressed the protection concerns.
[29] In June 2020, the Society learned that the Mother intended to relocate with the children to St. Catherines and had taken steps to enrol them in school. The Society voiced concerns about the impact of such a move on the plan to increase the Father’s time with the children. The Society observed and assessed the children’s relationship with the Father as being meaningful and beneficial. The children (then ages 4 and 5 1/2) genuinely expressed a desire to spend more time with the Father.
[30] The Father states that he first learned of the Mother’s proposed move from the Society.
[31] The parties attended a case conference before Kaufman J. on July 14, 2020, and the Mother confirmed that she would not be seeking to relocate the children. The Office of the children’s Lawyer appointed Debra Snider (the “OCL”) for the purposes of a child protection mediation. As a consequence of the mediation the parties agreed to a 2-2-5-5 schedule.
[32] The Society closed its file in November 2020.
[33] In January 2021, the Mother suggested that both parties move closer to the Niagara Region, which is more affordable. At the time the Father was unemployed. Since neither party’s extended family reside in Richmond Hill, and the Father’s friends reside in Toronto and elsewhere in the Greater Toronto Area, this proposal was reasonable. However, the Father did not consent to move away from Richmond Hill.
[34] Following the Mother’s decision to stay with the Maternal Grandmother in February 2021, the Father’s counsel sent a letter dated March 29, 2021 stating his intention to bring an urgent motion for the return of the children to their habitual jurisdiction and to in-person school.
[35] A case conference was heard before Bird J. On April 15, 2021, she directed that a long motion be scheduled on the relocation issue only.
[36] In June 2021, both parties engaged in questioning and the transcripts were filed for this motion.
Post Separation Finances
[37] From September 2018 to February 2021, the Father was solely responsible for the mortgage, property taxes (which fell in arrears of approximately $20,000) and condo fees (which fell in arrears of approximately $600). He also paid uncharacterized support of $1,097 per month from December 2018 to August 2020. The parties dispute whether or not the suspension of child support was on consent. The Father states that the business he was involved in could no longer afford to pay his salary and he had insufficient funds to pay the above expenses in addition to his own rent and living expenses.
[38] There is a dispute about significant funds deposited into and withdrawn from the Father’s bank accounts, his expenses (which have considerably exceeded his stated income), an undisclosed inheritance and disclosure issues relating to the corporation where he is a 21.6% shareholder (that may or may not be bankrupt, may have run out of investment funds and is involved in a lawsuit).
[39] The Father states that he has recently started an employment position after a period of unemployment. A letter from an employer (without any back-up documentation) sets his income at $60,000 per annum plus commission. The job includes virtual and in-person meetings around the Greater Toronto Area.
[40] The Mother states that she has experienced financial difficulties notwithstanding the Father’s contributions as set out above or the fact that she receives the Child Tax Benefit. Her 2020 income (she is a realtor), was approximately $ 27,000 after expenses and before taxes. Her year-to-date 2021 income is $57,000 (or $114,000 annualized), before expenses and taxes. However, the Mother’s income may increase as she is now a partner in a new Asian grocery store in St. Catherines. She intends to work there on a part-time basis.
[41] There are credibility issues in respect of both parties’ claims of impecuniosity. As per the transcripts from the Father’s questioning in June 2021, he is in receipt of various loans and gifts from his family, and he makes loans to family members. He was non-responsive to questions about these loans and gifts and the remaining amount of an inheritance (not previously disclosed).
[42] The Mother’s questioning reveals that in the past 45 days she has made an offer to purchase a home in St. Catherines, with no recollection about the location or deposit. She also stated that she is prepared to make an offer on another home if the opportunity arises. As of September 2021, the Mother will be liable for lease payments on account of the grocery store. She provided no reasonable explanations as to how she can afford the above.
Sale of the Matrimonial Home
[43] In early 2020, the Father requested that the matrimonial home, which was held in his name alone, be listed for sale. The Mother refused to consent to sale of the home, and the Father brought a motion which was heard on November 6, 2020. The Father requested that the sum of $100,000 be disbursed to each party following the closing. The Mother requested that the matter be adjourned until proper disclosure had been made or until a relocation motion could be brought. The motion proceeded and the Mother was ordered to pay costs of $2,500.
[44] Macpherson J. found that the Mother could not afford to buy-out the Father’s interest. He ordered that the home be sold as soon as reasonably possible, “as is”, with a listing price of $1,128,000 and a closing date no earlier than February 15, 2021. The Father was ordered to pay the Mother the sum of $20,000 to assist her in locating new accommodations. That amount would be reimbursed from her portion of the net proceeds of sale. Macpherson J. directed that the issue of the Mother’s request to relocate be addressed at a case conference, and he provided his opinion respecting same.
[45] The Mother immediately took steps to negotiate a buy-out of the Father’s interest in the matrimonial home, and it appeared that there was an agreement respecting same. She refused to sign the listing agreement until she abandoned the buy-out plan and took the children to St. Catherines (February 13, 2021).
[46] The house sold for the sum of $1,045,000 and had a closing date of March 15, 2021. After the re-payment of debts, the remaining balance in trust is approximately $253,000.
[47] The Father never paid the sum of $20,000 (until June 2021 when this motion arose). I accept that the funds would not have been payable until the Mother signed the listing agreement (as there is no need to find alternate accommodations in a buy-out scenario). The Mother subsequently advised of her intention to continue to stay with the MGM. When the funds were ultimately released from trust in June 2021, the Mother opted to use the funds to pay legal fees (but declined to pay the court ordered costs of $2,500 until later).
Summary
[48] I have provided a detailed history and extensive facts as the parties focused on same in their materials, and to provide context for these reasons.
[49] I note that disclosure continues to be an ongoing issue, as does the issue of child support.
[50] I decline to accept the Mother’s argument that the Father’s failure to provide disclosure should be a factor that I consider in favour of her request to relocate.
[51] The issue of disclosure and child support will be addressed at a settlement conference on August 9, 2021.
[52] I recognize that some of the facts set out above are more relevant than others to the primary issue before the Court, being the Mother’s request to relocate the children.
Issues and Analysis
The Law
PARENTING ORDERS UNDER THE DIVORCE ACT
[53] On March 1, 2021, the parenting provisions contained in the Divorce Act, RSC 1985, c.3 (2nd Supp). came into force and the amended provisions apply to the motion before me. These are the same as those contained in the children’s Law Reform Act, R.S.O 1990 c. 12.
Best interests of the child
[54] In E.M.B. v. M.F.B., 2021 ONSC 4264, Mandhane, J. explains the judge’s role at paras. 62-63:
“When making a parenting order, I must stay laser-focused on the child’s best interests: preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.
According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child.”
Maximal contact
[55] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the Divorce Act. The legislation states in 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.”
[56] As stated by Mandhane J., “clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.” (E.M.B. v. M.F.B, supra).
The Parenting Time Schedule
[57] The parties agree that so long as they live reasonably close to one another the status quo, being the shared parenting schedule, should continue.
[58] The children are doing well in both parents’ care, the schedule is age and stage appropriate, and there is an opportunity for each parent to share his/her cultural, linguistic, religious and spiritual upbringing and heritage.
[59] But for the Mother’s request to relocate, which requires a review of the additional factors to be considered, there would be no reason to change to the 2-2-5-5 schedule.
RELOCATION ORDERS UNDER THE DIVORCE ACT
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Burden of Proof – person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
[60] My analysis of the additional factors set out in section 16.92(1) of the Divorce Act is detailed below. Given that the children spend equal time in the care of each parent, the Mother has the burden of proving that the relocation is in the children’s best interests.
[61] The reasons for the Mother’s proposed relocation - section 16.92(1)(a):
(i) The Mother states that she cannot afford to reside in Richmond Hill. Since the Father asserts that he should receive the majority, if not all of the proceeds currently held in trust, she may not receive a property settlement. Furthermore, no support is being paid.
The Father provided sample listings that confirm that accommodations are available near Christ the King Elementary School for reasonable rent. The Mother’s evidence from her questioning is as follows. She refuses to research rental accommodations in St. Catherines or in Richmond Hill, as renting is not a viable option. She believes that it does not make sense to rent. I disagree.
Given that the Mother recently made an offer to purchase a home in St. Catherines I decline to find that that the Mother cannot afford to reside in Richmond Hill. The ability to purchase a home is a luxury and not a necessity.
Moreover, if the Mother’s 2021 anticipated annual income is $114,000 (before reasonable business expenses) and the Father’s 2021 anticipated annual income is $60,000 plus commission (for the months that he works this year), the Mother may be the party who is obliged to pay child support.
Finally, the Father has agreed to release the sum of $80,000 to the Mother as an advance on equalization.
(ii) The Mother’s support network (being the Maternal Grandmother and extended family) reside in St. Catherines. There is no evidence that the children spent considerable time with the maternal family before or after separation. In any event, the children can spend every other weekend in St. Catherines if the Mother wishes to stay at the MGM’s home. Alternately, the Mother can stay with the MGM when the children reside with the Father.
(iii) Throughout the materials the Mother describes herself at the children’s primary caregiver or primary parent, a characterization that she relies upon as a reason to support the children’s move to St. Catherines. As stated by the Mother, she was and is the parent responsible for preparing the children’s meals, scheduling and attending doctors and dental appointments; responsible for bath and bedtime routines, arranging for and attending playdates, choosing the daycare and school, and the parent responsible for the day-to-day plans, activities and needs. The Father acknowledges that during the marriage the Mother was better at organizing the children’s schedules, whereas he was young at heart and enjoyed playing and teaching them mandarin. He asserts that they both actively involved in decision-making and the day-today care of the children.
The Mother may have been the CEO of the family (in respect of organizing, planning and scheduling). However, I find that the children enjoyed substantial time with both parents during the marriage and equal time in both parties’ homes from 2018 onwards (aside from the period described previously). Many of the tasks used to define the Mother’s role as the primary caregiver are shared responsibilities.
I do not accept that the Mother is the primary parent of the children. I also reject the argument that her role provides a justifiable reason for the move.
[62] The impact of the relocation, the amount of parenting time, and the reasonableness of the proposal - section 16.92(1) (b), (c) and (f):
(i) The Mother asserts that the children have not developed close friendships at Christ the King Elementary School as they were new students in September 2020. Given that in-person school shut down in December 2020, there was no opportunity to develop deep ties to Richmond Hill, such as friendships, school ties or sports affiliations. The Father disputes same as the children have spent most of their lives in Richmond Hill (although he states that they previously went to daycare in Toronto and his friends with children reside in Toronto, contradicting the statement above).
On this point I agree with the Mother. Both parents advised that they have followed Covid-19 protocols since March 2020. In other words, the children have no present connections to any particular school or community. Given their ages and attendance at three schools it is unlikely that they are close friends with anyone in Richmond Hill or St. Catherines.
The children will likely attend a new school in September 2021, as the Father does not reside in the Christ the King Elementary School catchment area, nor has he applied for out-of-area attendance. I find that the children are young and can develop friendships, community ties and sports affiliations in either (or both) communities.
(ii) The Father states that the proposed relocation will have a significant impact on the children given the distance (being 145 km) between the homes, and the dramatic change to the schedule (being 6 rather than 15 overnights per one month period). The Mother believes that her offer of three weekends per month addresses the reduced mid-week parenting time. I disagree. When the children are in the Father’s care, he is solely responsible for them before and after school, and they benefit from the substantial mid-week time that they spend together.
I find that the proposed relocation would have a significant impact on the children for the following reasons:
First, since the inception of the shared parenting arrangement both parties have had primary care of the children during their respective parenting time. There is no evidence that one parent is more important to the children than the other. I note that in June 2020, the Society disclosed that the children wanted more time with the Father. A mediation led to the current 2-2-5-5 schedule.
Next, the proposed move places the burden of long car rides on two small children. They will be required to sit in a car for approximately 1.5 hours most Fridays after school and again on Sundays. The Mother is more equipped to bear the burden of the travel than the children, and she can opt to stay in St. Catherines for some or all of the 2-2-5-5 schedule when the children are not in her care.
(iii) While the travel expenses (gas as well as vehicle maintenance) are not significant, they are added costs that one or both parents would need to incur. In the absence of these expenses, the funds can be applied to the costs of caring for the children.
On the totality of the above, the Mother’s proposal is not reasonable.
[63] Compliance with notice provisions, agreements and the likelihood of future compliance - section 16.92(1) (d), (e) and (g):
(i) The Mother asserts that there is no order in respect of parenting time. Moreover, Father has been aware for years that she hopes to relocate to St. Catherines. The Mother’s argument once again must fail. An agreement has been in place since the commencement of the shared parenting schedule (until its suspension). The equal time agreement was re-instituted following a mediation when the parties, the Society and the OCL agreed to the current plan.
Many parents follow schedules that they never put down in writing. That does not, in and of itself, negate the existence of an agreement. Moreover, the Mother’s decision to take the children to St. Catherines without notice, and knowing that the Father did not consent, is problematic. I note that this is the second time that she attempted to move to St. Catherines.
I am concerned about the Mother’s incentive to comply with the schedule once she is permitted to move to St. Catherines. This concern is highlighted by the Mother’s unilateral decision to cancel a dental appointment and attempt to change the children’s dentist and doctor. The parties have a defacto joint significant decision-making regime and the Mother’s breach of same (presumably to choose professionals in St. Catherines) was not in the children’s best interests.
Conclusion
[64] While I accept that the Mother would prefer to reside with the children in St. Catherines, where she can live rent-free (until she purchases a home), I cannot find that the proposed relocation is in the children’s best interests.
[65] The impact of the distance between the two homes is significant in a case where the children are accustomed to (and successfully) transition between their parents’ care every two or five nights.
[66] Notwithstanding my decision that the children cannot relocate, given the 2-2-5-5 schedule, the Mother can spend considerable time in St. Catherines on her alternate weekends with the children or when they are not in her care.
[67] The Father argues that the luxury of purchasing a home in a more affordable area pales in comparison to the principle of “maximum contact” with each parent and the need for stability. I agree.
[68] The Father also argues that the arbitrary and unilateral decisions of one parent can be seen as an attempt to minimize and marginalize the other parent, in spite of the fact that the other parent has been intricately involved and engaged, repeatedly and continuously, with their children. I agree.
[69] Another alternative to the order set out below is for the Father to move to St. Catherines. However, the Court has no jurisdiction to make such an order and the Father does not consent to same.
[70] To give effect to the principle that C.L. and E.L. should have as much time with each parent as is consistent with their best interests, and to prevent any future interference with either parent’s close relationship with the children, I am ordering that the shared parenting regime and the defacto joint significant decision-making continue.
[71] The Mother has failed to prove that the relocation is in the best interests of the children. Consequently, the Mother’s motion is dismissed.
[72] The parties have agreed that the unsuccessful party will pay costs in the amount of $13,500 inclusive of HST.
TEMPORARY ORDER TO GO:
Regular Parenting Schedule
Pending Trial, the Mother, J.L., shall reside with the children, C.L. and E.L. (collectively the “children”) within a 30-minute rush hour commute of the Father’s current residence, 34 William F. Bell Parkway, and the Mother shall receive forthwith $80,000 of the sale proceeds of 97 Genuine Lane, Richmond Hill, Ontario, currently held in trust. This residency schedule shall be effective September 1, 2021.
The Mother and the Father, D.M., will have a 2-2-5-5 parenting schedule with respect to the children, with the children residing the Mother on Mondays and Tuesdays, the children residing with the Father on Wednesdays and Thursdays, and the children alternating weekends (Friday through Sunday) with each party.
In the alternateive that the Mother does not move as contemplated by paragraph 1 above, then the children will reside primarily with the Father until she complies with same. In this scenaro, paragraph 2 shall be replaced with the following: The Mother will have the first three(3) Fridays of each month, from 3:00pm, pick up from school, and drop off at school on Monday morning, at school, or Sunday at 5:00 pm, wherein the Father will pick up the children at her residence in St. Catharines. The holiday schedule shall be as set out below or as otherwise agreed to by the parties.
Neither party shall make any substantial decision affecting either child without the written consent of the other or a court order.
The parties will equally share the driving related to parenting time exchanges. The parenting time exchanges will take place at the children’s school, with the party whose parenting time is ending dropping the children off at school in the morning before school and the party whose parenting time is commencing picking up the children in the afternoon after school.
The resident parent will be responsible for taking the children to school and bringing them home.
If either of the children are ill in the morning and cannot attend school, the resident parent will contact the other party as soon as possible. Unless mutually agreed to otherwise, the ill child will remain in the care of the parent who had care of the child in the morning. If it is a transition day, the ill child will be taken to the home of the other parent by the resident parent at the time that school normally ends.
If the school calls and asks that either of the children be picked up early, the party reached by the school will contact the other party to advise. Unless mutually agreed to otherwise, the party who is scheduled to get the children from school that day will pick up the children from school and assume care as per the regular or holiday schedule.
Holiday Schedule
- The holiday schedule will supersede the regular residential schedule. It is as set out below until otherwise agreed varied by the consent of parties or ordered by the court.
a. Christmas and New Years – In even-numbered years the children will reside with the Father from December 24 (pick up at 11:00 a.m.) to December 25 at 11:00 a.m. The children will reside with the Mother from December 25 at 11:00 a.m. to December 26 at 11:00 a.m. The balance of the Christmas School Break will be shared equally with the Mother having the first half in odd-numbered years. The exchange will take place on the Saturday in the middle of the break at 11:00 a.m. In even-numbered years the reverse is true.
b. March Break – Commencing in March 2022, in even-numbered years the children will reside with the Father commencing with the Monday (a.m.) and ending on the Friday (p.m.) of the school break and will attach to his/her regular weekend. In odd-numbered years the children will reside with Mother.
c. Summer Break – Summer commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each party will have one week of uninterrupted time with the children during July and August. The Mother will have her first choice of weeks in odd-numbered years, and the Father in even-numbered years. The party with the first choice will advise the other in writing by January 15 annually. The party with the second choice will advise the other in writing by January 22 annually. The parties shall align their holiday weeks with their regular weekend schedule. Holidays shall commence and end on Fridays. The balance of the summer school break will follow the regular schedule.
d. Statutory Holidays / Long Weekends / PA Days – The resident parent will have the additional 24 hours added to his/her regular weekend. The non-resident parent will have 3 hours time on the Easter weekend and Thanksgiving weekend to celebrate a holiday meal with the children. This statutory holiday provision will not apply during the summer if the children are with either parent for his/her uninterrupted summer vacation time.
e. Children’s Birthdays – The non-resident parent may take the children out for dinner for up to 2 hours on each child’s birthday.
Facetime
- The Mother and the Father acknowledge that Facetime and telephone communication are alternate forms of access that can be beneficial for the children. The party that does not have the children will be able to Facetime the children for a minimum of 10 minutes each night.
Parenting Principle and Co-Parenting Education
The Mother and Father will make every reasonable effort to ensure that the children attend special occasions involving their extended family (e.g., special birthdays and anniversaries). While it is understood that this may not always be feasible, where possible the Mother and the Father will schedule these occasions when the parents know the children will be residing with them.
Prior to the settlement conference the parties shall review the AFCC-Ontario Parenting Guide (www.afccontario.ca) and the High Conflict Tip Sheet.
School
- Unless otherwise agreed to by the parties, they shall both enrol the children at Christ the King Elementary School or, if that is not permissible, then a school situated in the Father’s catchment area.
Costs
- The Mother shall forthwith pay costs in the amount of $13,500 inclusive of HST from her share of the net proceeds of sale being held by the real estate solicitor.
Justice A. Himel
Release Date: July 16, 2021