Court File and Parties

COURT FILE NO.: 684/19 DATE: 2021-01-22 SUPERIOR COURT OF JUSTICE, FAMILY COURT

RE: Trevor James Douglas, Applicant AND: Jennifer Marie Douglas, Respondent

BEFORE: The Honourable Justice R. B. Reid

COUNSEL: V. Workman, for Applicant B. Macdonald, for the Respondent

HEARD: January 19, 2021 by videoconference

DECISION ON MOTION

[1] In this motion, the applicant seeks a temporary order that his parenting time with the parties’ child be shared with the respondent based on a rotating 2-2-3-day schedule, or in the alternative an expansion on the existing parenting time arrangement.

Background:

[2] The parties were married August 26, 2011 and separated December 10, 2018. Their only child, now seven years of age, was born September 24, 2013.

[3] Since separation, Ms. Douglas and the child have been living with her parents in St. Catharines. Mr. Douglas has continued to live in the matrimonial home nearby in the north-west corner of Niagara on the Lake. He has recently purchased Ms. Douglas’s interest in the home.

[4] Mr. Douglas is employed on a full-time basis as assistant manager at Lowes Canada in Niagara Falls. Ms. Douglas has worked outside the home but at the present time attends Niagara College studying public relations.

[5] The child attends Port Weller School in St. Catharines, quite close to the matrimonial home.

[6] Following the separation, the terms of a separation agreement where proposed by the applicant through counsel but no agreement was reached. In June and October 2018 efforts were made to arrange mediation but mediation did not proceed. In December 2019, after commencement of the application, further arrangements were made for mediation, which once again did not proceed.

[7] During counselling, Ms. Douglas disclosed to the counsellor that Mr. Douglas had an alcohol problem and that their son had been exposed by him to abusive and aggressive behavior. Family and Children Services Niagara conducted an investigation in December 2018 and January 2019. No restrictions on Mr. Douglas’s contact with the child were recommended.

[8] In about February 2019, a parenting time routine was established on the basis that the child would be with Mr. Douglas on alternate weekends from Friday at 4:00 p.m. until Monday at 8:00 a.m. and in alternate weeks from Thursday from 4:00 p.m. to 7:00 p.m.. Those regular arrangements changed temporarily for about three weeks in February and March 2019 when the child was with Mr. Douglas for approximately 6 nights out of 14.

[9] No court order as to custody or regular access has been made to date, although it appears that Mr. Douglas has been seeking an equally shared parenting arrangement since the separation.

Litigating parenting time:

[10] Following the parties’ separation, informal discussions occurred about issues including the sharing of parenting time.

[11] The application is dated November 14, 2019. In it, as to parenting time, Mr. Douglas requested a 50-50 sharing arrangement similar to what was sought in this motion. In her answer, Ms. Douglas asserted that such an order would not be in the child’s best interests and requested that the existing schedule continue. That is the same position she advances in response to this motion.

[12] An early case conference took place on January 10, 2020 at which an order was made requesting the involvement of the Office of the Children’s Lawyer. The request was ultimately declined.

[13] At the beginning of the pandemic in March 2020, Ms. Douglas suspended parenting time between Mr. Douglas and their son owing to the general lockdown and COVID-19 health concerns. In response, Mr. Douglas sought an order that the established parenting time regime resume. Although the motion was deemed not to be urgent, Ms. Douglas did agree to reinstate parenting time for Mr. Douglas on the previous basis.

[14] A motion for summer access was made by Mr. Douglas in August 2020 which resulted in an order that he have one week of vacation time with his son from August 10-17.

[15] This motion, together with a request for Christmas access was made by Mr. Douglas in November 2020 which resulted in a consent order for one week of holiday time over the Christmas period. Since submissions about the 2-2-3 proposal were expected to require more time, the matter was deferred to the January 2021 trial sittings and ultimately heard by me.

[16] The trial of the application which will focus principally on the issue of parenting time is scheduled to be heard during the May 2021 trial sittings and is estimated to require 10 to 12 days. It is uncertain that the case will be reached during the sittings as scheduled based on its anticipated length and the large number of cases on that list.

Competing allegations:

[17] As is not unusual in high conflict cases, both parties have made significant negative allegations against the other.

[18] Mr. Douglas deposes that the respondent has consistently delayed the resolution of the matter and minimized his time with their son. That behavior includes her use of the COVID-19 pandemic as an excuse to limit parenting time, and her agreement to participate in mediation and then refusal to engage. She denies any attempt to delay the litigation.

[19] Ms. Douglas submits that there are problems with the applicant’s parenting capacity including allegations that he has alcohol addiction issues and has been abusive and aggressive in his conduct. She alleges that through counselling and in comments to her personally, the child has indicated that he does not enjoy the parenting time with his father and finds it very stressful. Mr. Douglas’s failure to agree to sell the matrimonial home (or buy her interest in it) until an order was made forcing the issue is an example of his lack of cooperation. He denies those allegations.

[20] Each party blames the other for a failure to engage in timely ongoing and coordinated counselling, either for the child or themselves.

[21] Ms. Douglas claims that she has always been the child’s main caregiver and that prior to separation Mr. Douglas did not spend much time with the child. She states that his claimed interest in being an engaged parent willing to spend significant amounts of time with the child arose only after separation. For his part, Mr. Douglas alleges that parental responsibilities were shared prior to separation.

[22] Undoubtedly those disputed issues account for the substantial anticipated length of trial. It is not possible to resolve any of them on an interim basis faced with competing untested affidavits and mutual denials.

Should changes be made on interim basis?

[23] The existing time-sharing arrangements have been in place, with short-term exceptions, for almost two years since February 2019 without an order or formal consent.

[24] The history of the litigation does not disclose attempts at delay by Ms. Douglas. Indeed, Mr. Douglas could have proceeded with more speed to bring this motion before the court.

[25] As noted, the trial may take place in May 2021 although whether the case can be reached during the May sittings remains to be seen.

[26] At the motion hearing, apparently for the first time, Mr. Douglas proposed that as an alternative to equal time-sharing, the court could consider a temporary change pursuant to which Mr. Douglas’s parenting time would be expanded but within the existing general framework. The submission is that the regular alternate weekend access be expanded to begin on Thursday after school at 3:30 p.m. rather than Friday after school. As well, the alternate Thursday visit from 4:00 p.m. to 7:00 p.m. would be expanded overnight to conclude on Friday morning at school. Those changes would result in two additional overnight periods in every biweekly cycle. Mr. Douglas advised through counsel that he could organize his work schedule to accommodate the changes without the need for childcare. That reorganization presumably includes arrangements to supervise virtual schooling since, at least for the time being, children are not physically attending classes owing to the ongoing pandemic.

[27] A significant amount of time was spent in the motion hearing on the issue of what status quo exists, whether it should be changed, and who bear the onus of proving that a change should occur.

[28] Mr. Douglas submitted that the status quo should be based on the pre-separation situation where the parties shared parenting responsibilities. Ms. Douglas disputes that characterization of the parenting arrangements and in any event states that the actual status quo is that which has been in place since February 2019.

[29] The issue can be significant because the case law reaching as far back as the decision of the Ontario Court of Appeal in Papp v Papp, [1970] 1 O.R. 331 (which dealt with interim custody) is to the effect that the de facto status quo should be maintained prior to trial unless there is a compelling reason not to do so, and particularly when a trial may be imminent. The impeccable logic behind the rule is that it cannot be in the best interests of a child to make a significant change on a short-term basis when the change might need to be undone after a full trial on the merits. Children should not be used like ping-pong balls going back and forth in the conflict between parents.

[30] Regardless of how one may define the status quo in this case, a change to a 2-2-3 equal time-sharing regime would be a very significant difference from the situation that has been in existence either before or since separation. As noted, the equal time-sharing is almost exactly what is being requested by the applicant in the application. That is the issue the determination of which is scheduled to take 10 to 12 days of trial. As I advised counsel at the hearing, I am not inclined to make an order to that effect on a temporary basis in the face of an upcoming trial and on competing facts deposed in untested affidavits. An equal time-sharing order would be destabilizing and therefore not in the best interests of the child. The applicant’s success at trial is far from assured.

[31] Much of the case law is focused on the understandable reluctance of courts to make changes in existing temporary orders in advance of trial. Likewise, in those cases many of the changes that are resisted relate to significant matters of custody, primary residence, geographical relocation of the child’s home or changes to parental responsibility. Those factors are not at play in this case.

[32] The alternate proposal made by the applicant is for relatively modest changes in the existing situation. It would not increase the frequency of contact between the parties at pickup and drop-off, which contacts have been a source of difficulty. The changes would reduce the gap in time between visits which I consider to be desirable and in the child’s best interests.

[33] Changes before trial in the details of time-sharing exercised by the parent with whom a child does not have principal residence are routine, not rare. Those changes do not attract the danger of destabilizing a child’s situation even if further changes including a return to the present situation are required after trial.

[34] The maximum contact principal found in s. 16(10) of the Divorce Act provides that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. In fact, s. 16(8) provides that in making an order respecting access to a child, “the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”

[35] In this case, when the discussion changes from a focus on the behaviour of the parties to the best interests of the child, impediments to changing the existing time-sharing regime are minimized. Overnight visits are already in place. The separation of the child from the applicant for four nights rather than three every two weeks is not a dramatic change and the span is of shorter duration than the summer and Christmas access periods that have occurred without incident. Allowing Mr. Douglas greater involvement in the child’s weekday and weeknight activities including schoolwork is to be encouraged. Mr. Douglas has committed to make appropriate arrangements with his employer to spend the proposed extra parenting time with the child. There have been no manifestations of alcohol, anger or abuse behaviours on the part of Mr. Douglas since the current time-sharing regime began two years ago. Supervised access has never been required.

[36] The affidavits filed by the parties following the Christmas 2020 holiday week disclose a dramatic difference between what the applicant says occurred and what the respondent has been told by the child. It may well be that the seven-year-old’s comments are coloured by his attempts to keep both parents happy by seeming not to enjoy time with the other too much. If that is true, it reinforces the importance of counselling for the parties and the child so that a healthier relationship can develop. I am not prepared to accept the version of events to which the respondent deposed, which amount to double hearsay, as reasons to resist change to the existing parenting time regime. At worst, they challenge the quality of time spent by Mr. Douglas with his son without any suggestion of harm. The child appears to be well cared for by both parents.

[37] The benefits or detriments to modestly expanded parenting time for the applicant can be fully explored after the fact at trial.

Conclusion:

[38] For the reasons set out above, there will be a temporary order as follows:

a. the applicant is to have parenting time with the child on alternate weekends from Thursday after school (3:25 p.m.) until Monday at school (8:00 a.m.).

b. The applicant is to have parenting time with the child on alternate Thursdays after school (3:25 p.m.) until Friday at school (8:00 a.m.).

c. The pickup and drop-off of the child is to take place at the school, when the child is attending school in person, or at the respondent’s home when the child is not attending school in person.

d. The applicant is to be responsible for transportation.

Costs:

[39] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:

• The applicant is to serve his Bill of Costs and submissions by February 5, 2021;

• The respondent is to serve her Bill of Costs and submissions by February 19, 2021;

• The applicant is to serve his reply submissions, if any, by February 26, 2021;

• All submissions are to be filed with the court by March 2, 2021.

[40] If no submissions are received by the court by March 2, 2021 or any agreed extension, the matter of costs will be deemed to have been settled.

Reid J.

Date: January 22, 2021