COURT FILE NO.: FS-21-44465 DATE: 2021-09-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marc Van Ruyven, Applicant AND: Susana Van Ruyven, Respondent

BEFORE: Kurz J.

COUNSEL: Matthew J. Armstrong, for the Applicant Areesha Zubair, for the Respondent

HEARD: September 2, 2021

ENDORSEMENT

Introduction

[1] One cookie and just a nibble or two. That is all that it took to weaponize the parties’ separation. Unfortunately, it was not just an ordinary cookie. It was a one laced with marijuana. And the person who took that nibble or two was the parties’ four-year-old child, A. That was enough to set off the explosion of recrimination and blame-shifting that led to this motion.

[2] After the child ingested a small amount of the marijuana cookie, the apparently panicked Respondent mother (“the mother”) took her by ambulance to the hospital. The mother complains that when reached, the Applicant father (“the father”) was not overly concerned about the cookie ingestion. Two days later, the mother found a Tupperware style container with marijuana in the father’s gym bag and decided to remove the child from the matrimonial home in Burlington (“the home”). She took the child to her parents’ condo in Toronto and chose to withhold her from the father; all absent a court order. She refused to even tell him where she had gone, claiming that he posed a danger to the child. Each party has since gone on to speak of the other’s emotional instability and parental unsuitability. The only independent evidence in this matter is a hospital record, which I cite below.

[3] The father moves for interim primary care of A or in the alternative a week-about parenting arrangement that mirrors his work schedule. The mother brought a cross-motion for primary care of the child and the right to move with the child to Toronto. As set out below, those positions have modified since the parties first brought their motions.

Appearance before Mills J.

[4] The parties appeared before Mills J. on August 26, 2021, who decided that this matter is urgent. She granted the mother’s request for an adjournment to September 2, 2021 and converted the motion before her into a case conference. Mills J. then assisted the parties to come to an interim and without prejudice parenting time agreement, pending the hearing of this motion. They agreed that the father shall have parenting time with A from 9:00 a.m. on Saturday August 28, 2021 to Monday August 30, 2021 at 9:00 a.m. and from Tuesday August 31, 2021 at 9:00 a.m. until Thursday September 2, 2021 at 9:00 a.m. They also agreed that the child would be enrolled in nursery school in Burlington.

[5] Mills J. refused to allow the mother to move for leave to change the child’s residence to Toronto (no advance notice having been given pursuant to the mobility provisions of the Divorce Act). She found no urgency in that request. She also noted that:

there is still a refusal to agree to any parenting time beyond that which is noted above. A temporary parenting schedule must be ordered to ensure the Applicant is provided with parenting time that is consistent with the principle of maximum contact and in the best interests of the child.

The Parents’ Modified Parenting Proposals

[6] To their credit, each party has modified their original positions, as set out in their notices of motion. They have done so by taking into account the concerns raised by the other. The father is seeking a modified week-about arrangement that still aligns with his work schedule. His proposal works out to a 3-1-3 arrangement with an overnight to the other parent in the middle of each parent’s week with the child.

[7] The mother now takes the position that the parties should engage in a “modified” arrangement that would eventually lead to a shared 2-2-3 parenting arrangement. However, she did not indicate in her materials what that modified arrangement would look like or when the parties should move to that 2-2-3 arrangement. On two or three occasions during the argument of the mother’s counsel I attempted to tease out the details of her client’s proposed “modified” parenting arrangements.

[8] After much probing, counsel finally indicated that the mother’s proposal would be to revert to the parties’ arrangement that began in June 2019, when the parties first separated before reconciling in March 2021. For that approximately 21 months, they lived within close distance of each other and voluntarily engaged in a 5-9 arrangement that saw the child with the mother for nine consecutive days and with the father for five consecutive days over each two-week period. That is the proposal that the mother’s counsel finally left with the court. She indicated that this arrangement should be in place until the Office of the Children’s Lawyer (“OCL”) reports or A enters grade one next September. I note that there is no request for OCL involvement before the court at this time, let alone an indication that the OCL is willing to accept this case.

[9] In their materials and during the course of argument, each party asked me to listen to surreptitious recordings that they made of the other and/or the child. Yet, without irony, each party complained about the other having made their own secret recordings. The father says that he once found a GPS tracing device that the mother had placed in his car. Shortly after he announced his desire to finally separate from the mother, he found another such device in his gym bag. The mother does not dispute those claims.

[10] I refused to listen to each party’s secret recordings. As set out below, I find that any probative value that they hold is undermined by policy considerations that call for extreme caution before allowing such recordings to become part of family litigation. Since that which we permit we promote, allowing those recordings to be routinely admitted into evidence absent exigent circumstances undermines any chance that these family law litigants will ever be able to work together for the benefit of the child. I have more to say about that finding and the analysis in which the court should engage when faced with surreptitious recordings of a spouse and/or child, below.

[11] For the reasons that follow, I find that it is in A’s best interests to order the 3-1-3 parenting arrangement proposed by the father, with daily virtual contact. It may not be the optimal arrangement for a four-year-old child who would do best with frequent contact with each parent. But in light of the facts that the mother now resides with her parents in North York and the father continues to reside in the home in Burlington, and that the parties’ parenting exchanges are likely to be fraught and time consuming for the child, the pursuit of the perfect cannot be allowed to become the enemy of the good. I also impose conditions on each parent that may better ensure the best interests of the child.

Background

[12] The outline of facts that brings the parties before this court are not highly disputed although some details and the inferences to be drawn from them are highly contested. Each party also asks the court to find that the behaviour of the other shows their emotional instability and unwillingness to prioritize the needs of the child. The real issue between the parties is the determination of responsibility for their present state of affairs and what the court should do about it.

[13] The parties commenced cohabitation in 2014. They married on January 28, 2017. They purchased the matrimonial home in Burlington (“the home”) shortly before A was born on June 27, 2017.

[14] The father is a police officer with the Toronto Police Services. He has a very rigid seven days on/seven days off work schedule. He provided a letter from his sergeant confirming the schedule and its inflexibility.

[15] The parties first separated in June 2019. The father moved out of their previous home and lived, he says, within one kilometer of the home. He says that he always wanted an equal shared parenting arrangement, but the mother insisted on a 9/5 arrangement in her favour. He acquiesced but argues that he was closely involved in the child’s care and available to assist whenever needed.

[16] The parties attempted a reconciliation in March 2021, when the father returned to reside in the matrimonial home. The father says that when he moved back into the home, the mother decided to quit her $60,000 per year job and insisted that he be her sole financial support. He also says that at some unspecified time, she punched him three times in the face, leaving him with a black eye and a cut. She then bragged that she would teach the child to do the same if she were emotionally threatened by a man with whom she was having a relationship. She does not deny the assault but says that it occurred after he attempted to grab her arm.

[17] The father adds that the mother openly argued with him in front of the child, despite his protests. Further, he says that the child repeats comments that show that the mother is disparaging him to the child.

[18] For her part, the mother says that the father returned to the home “a changed man”. She alleges that he was regularly smoking marijuana and used “magic mushrooms”. She says that he also left a loaded pellet gun lying around the house when it and his drugs should have been in a lock box in the home (the father claims that it was the mother who rifled through that lock box).

[19] The father admits to occasional marijuana use and says that he generally kept it locked in the lockbox in the home. He says that he only once tried “magic mushrooms”. That occurred at a cottage when the child was with the mother. He adds that while in the home he was an equal caregiver for the child. The mother says that his argument cannot be true as his work schedule calls for him to work seven consecutive eleven hours shifts over each fourteen days. That argument rings true.

[20] The parties finally separated on or about July 30, 2021 but continued to reside together in the home until August 13, 2021. That is when the mother removed the child from the home and took the child to live with her parents in Toronto.

[21] The parties’ physical separation occurred following the events of August 10, 2021. On that date, A was taken to a hospital emergency ward of McMaster Children’s Hospital (“the hospital”) after consuming small amount of a marijuana laced cookie, which belonged to the Applicant father. The cookie was found in his toiletry bag, which was left on top of a toilet in the home. The father says that about a quarter of the cookie was left in a plastic bag in his shaving kit.

[22] The mother was present at the time that the child bit into the cookie, although exactly where she was standing at the time remains in dispute. She was so immediately concerned that she called a number of agencies for advice before calling for an ambulance. She also called the father. He was far less concerned than her about the marijuana ingestion.

[23] Despite her apparent panic over the child’s condition, the mother had the wit to record their conversation. She recorded some of their other conversations about the subject as well. The father too seems to have managed to have secretly recorded a number of their conversations about the marijuana ingestion and other subjects of conflict between them.

[24] The hospital’s records show that the child was first seen at the hospital at 11:20 p.m. on August 10, 2021. The mother told the emergency physician that A had only ingested “a few nibbles” of the cookie. The doctor wrote that “when [A] was discovered by mom, she was holding a ¼ of a cookie, which is approximately how much was left by dad”. By 2:30 a.m. the next morning, A was released by the hospital. The note says that she was “still doing well” and that the hospital had “no concerns”.

[25] On about August 13, 2021 the mother discovered that the father had left marijuana in a Tupperware container in his gym bag on the ground of his bedroom in the home. She claimed that it was easily accessible to A. The mother claims that the Tupperware container with the father’s drugs was open in plain sight in the father’s gym bag and that she did not have to unzip it.

[26] The father states that after the cookie incident, he placed all of his marijuana in the Tupperware container and then in his gym bag in order to remove them from the home. The bag was in his bedroom. At the time that the mother discovered the gym bag, the child was with the father and had been all of the relevant time. She had no access to the gym bag. He adds that he has not consumed any alcohol or drugs since the child was taken to the hospital.

[27] Judging that the father had been “reckless” with his drugs and that A had to be protected from, him the mother removed the child from the home without the consent or knowledge of the father. She and A then moved in with her parents at their Toronto condo. She thereafter refused to tell the father where she and the child were residing. She now chides him for failing to deduce that she was with her parents.

[28] The mother’s original position in this motion was that the father should have no contact with the child until he passes a hair follicle test or in the alternative that his contact with the child must be supervised. When this matter came before Mills J., the mother amended her position in agreeing to the terms of the consent order set out above.

[29] The father initially sought a sole parenting order. He both minimized and blamed the mother for the marijuana cookie ingestion. He went so far as to suggest that the mother deliberately allowed the child to ingest the cookie in order to find an excuse to take full primary care of the child. Further, while complaining about the mother’s surreptitious recordings of him and the fact that she placed a GPS tracker in his gym bag, he straight-facedly asks me to listen to his surreptitious recordings of the mother and child. It seems that neither party understands the irony of their position.

Applicable Law and Analysis

Surreptitious Recordings

[30] We live in a world of such technological advance that every utterance and gesture is increasingly open to digital capture, whether at a street corner or in a private conversation in one’s home. Privacy experts and advocates are increasingly concerned about the deleterious effects of the unrestrained monitoring of our utterances and behaviour. On the internet, it is said that anything captured can never be forgotten. Provincial and federal legislation has been passed to try to find a reasonable meeting point between the right to information and the rights of privacy, security and free expression. It would be fair to say that the present legislative balance is continually subject to review.

[31] In the evidentiary sphere, the general rule is that if it is relevant, it is admissible, provided that it is not hearsay. But that rule is as often honoured in the breach as it is in its fullest expression. The rules of evidence have evolved to balance various interests in ensuring that the court’s process and its search for truth works towards justice and the public’s interest despite the classical rules of evidence. Further, under r. 14(18) and (19), certain hearsay is admissible in family law motions.

[32] One iteration of the evolution of evidentiary rules in family law is the reluctance to allow surreptitious recordings made by spouses of each other and their children. The reasons for that stance were articulated by Sherr J. in Hameed v. Hameed, 2006 ONCJ 274. There, Sherr J stated at paras. 11-12:

[11] ... Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 14087 (ON SC), 1998 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this "evidence" convince me that it should be struck in its entirety and should not be before the court.

[33] The rule is not an absolute one. As Sherr J. noted, the court retains some discretion to determine whether the probative value of secretly recorded evidence outweighs the strong policy factors set out above.

[34] The court’s discretion to exclude or allow secret recordings in family law matters was confirmed by the Court of Appeal for Ontario in Sordi v Sordi, 2011 ONCA 665. There, Epstein J. A., writing for the court, upheld the trial judge’s exercise of discretion to exclude the recordings. She referred at para. 12 to “the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings”.

[35] In Scarlett v Farell, 2014 ONCJ 517, Spence J. of the Ontario Court of Justice, reviewed a number of cases that had been decided to date regarding the admission of surreptitious recordings into evidence. Those cases included Hameed, as well as Seddon v. Seddon, [1994] B.C.J. No. 1062 (B.C. S.C.), Toope v. Toope, 2017 CarswellNFld 185 (Nfld U.F.C.) and Reddick v. Reddick, [1997] O.J. No. 2497 (OC (GD)). Spence J. helpfully concluded that these cases, which offered differing results regarding the admission of such recordings contained a common seed of principle, which he set out at para. 31 as follows:

31 Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court's need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

[36] Spence J. admitted into evidence the recordings in the case before him, finding that they had probative value. But he was also clear that the recordings were not surreptitiously made. Had they been secretly recorded, Spence J. was clear that he would not have allowed them into evidence.

[37] In F.(A.) v. A.(B.J.), 2017 ONCJ 108, Sager J. of the Ontario Court of Justice considered the authorities cited above. She allowed recordings made and transcripts created by one party into evidence, finding that the recordings were not secretly made. Moreover, even absent such a finding, she stated that she would have allowed them into evidence. In one of the recordings, the mother could be heard threatening to kill herself, disparaging the father and the child, “using racial slurs and profanity in excess”. Sager J. stated that the issues raised by the recordings were “of sufficient importance” to the determination of the issues before her that they should be admitted into evidence.

[38] In L.R. v. Children’s Aid Society, 2020 ONSC 4341, Horkins J. of this court affirmed a ruling of Zisman J. of the Ontario Court of Justice (2020 ONCJ 22), extending the general prohibition on the admission of surreptitious recordings to child protection professionals and a reunification therapist.

[39] In the years since Hameed was first decided by Sherr J., the attempt to admit secretly made recordings by one parent of another and/or the child/ren has surged from a trickle to a gusher. I find that I am regularly provided with secret recordings that one party has made of the other, which the recording party asks me to then consider in order to prove the instability or perfidy of the other. Most of the times, the recording is an edited or selectively recorded version of a highly contentious argument between the parties.

[40] It is dangerous to the state of family law and more importantly, to the parties and children governed by it, to treat their dealings as if they were living under the Stasi in East Germany. Not everything is public and not every utterance or gesture needs to be recorded. To the contrary, routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.

[41] The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.

[42] Here, the recordings encompass discussions between the parties over who was responsible for the child taking a “nibble or two” of a marijuana cookie as well as other arguments between the parties. The child’s marijuana consumption turns out to be minor and appears to have had no effect on the child. The evidence of the parties’ discussion of the incident does not rise to the level that I have described above. Neither does the evidence of their arguments, Accordingly, I exclude the surreptitious records that each party made of the other from the evidence in this motion.

[43] In addition, I order that neither party will record the other without their clearly expressed consent. Any recordings of A shall be for personal use only.

Determining Parenting Arrangements

[44] As I set out in Phillips v. Phillips, 2021 ONSC 2480,

45 The applicable law is the Divorce Act, S.C. 2019, c.16, whose parenting amendments came into legal effect on March 1, 2021. Under the Divorce Act, the court is required, in determining the child's best interests, to "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": ss. 16(2)-16(3).

46 The factors that relate to the child's best interests are set out in s. 16(3) as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

47 The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her.

48 The Divorce Act also expressly directs the court to consider family violence in its many manifestations as a factor in determining parenting. I am aware that the mother alleges such violence in an emotional and verbal context. She also says that the father raised his voice to her twice in front of the child before she moved with the child. Any allegations of family violence must be taken seriously and not dismissed peremptorily. However here, based on the evidence presently before the court, I am not convinced, for the reasons set out above, of the credibility of those allegations. There is simply no corroborative evidence other than the paternal grandfather's broad and unparticularized assertions.

49 The principle that a child should have as much contact as possible with each parent remains a part of the court's best interests considerations. However, the Divorce Act's previous reference, in the heading to the relevant section, to "maximum" contact has been removed. However, the operative terms in the section remain the same.

50 Whether "as much contact as possible" or "maximum", the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.

51 The present provision, s. 16(6) states:

Parenting time consistent with best interests of child

(6) 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.

52 The previous provision stated:

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

53 Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court's failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child's best interests.

[45] In Knapp v. Knapp, 2021 ONCA 305, the Court of Appeal for Ontario strongly implied that the law set out in Rigillo remains in place. As Benotto J.A. wrote for the court at para. 31, just before adverting to the relevant former and current provisions of the Divorce Act,

As this court said in Rigillo v. Rigillo, [2019] O.J. No. 4088, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

[46] At para. 34, Benotto J.A. went on to set out the principle that the balance between maximizing a parent’s contact with a child and the child’s best interests requires:

a child-focused approach to achieving as much parenting time as 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.

[47] In W.H.C. v W.C.M.C., 2021 ONCJ 308, Sherr J. of the Ontario Court of justice set out the following additional principles to guide the determination of parenting decisions when there is a request for maximal or minimal parenting time, writing:

71 An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

72 The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., 2003 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

73 The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, supra.

[48] In addition, as Sherr J. pointed out at para. 74, the court’s powers under the Divorce Act offers a broad canvas for parenting orders that respond to the individual needs and interests of a child and the abilities of their parents to meet them. As he wrote:

the court's powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children's best interests. See: S.S. v. R.S., 2021 ONSC 2137.

Self Help

[49] In Phillips, cited above, I wrote of the importance of discouraging parents from arrogating the right to self help regarding parenting in anything less than urgent circumstances. There, I set out the applicable authorities as follows:

61 In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:

25 The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life.

62 He described the parent who engages in self-help tactics that belie a child's best interests as raising questions about the new status quo and the moving parents' own parenting skills, writing:

22 A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).

63 Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as "brinksmanship". He asserted at para. 27 that "[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized." He added that "[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo."

64 In Arbitman v. Lee, 2021 ONSC 315, Monahan J. took a similar approach to the problem of self-help, even when confronted with that behaviour from a primary caregiver. He wrote of the need to discourage that kind of behaviour as follows:

39 First, the current arrangements whereby the Applicant's time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent's right of access to children is to be restricted. If the current restrictions on the Applicant's access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent's resort to self-help.

65 Here, the mother attempted to unilaterally create her own new status quo, brazenly asserting that her unilateral right to remove the child was "non-negotiable". She may have done better by making it negotiable.

Conclusions

[50] Here, as I told the parties, I am concerned about both of their behaviours. The father was not careful about the placement of his drugs in the home. He then underplayed the incident, which further concerned the mother (although the circumstances proved him right). In hindsight, one can say that she overreacted to the ingestion of what appears to be trace elements of what is now a commonly available drug. But if the child had consumed more of the marijuana, she may have experienced a greater effect from the drug. Thanks to the mother that did not occur.

[51] The father exercised poor judgment in leaving marijuana where the child could find it. He had a lockbox in the home for the purpose of storing that drug as well as any weapon that he may possess.

[52] On the other hand, the emergency doctor’s conclusions should have assuaged the mother’s concerns. Yet she seized on the later presence of a Tupperware container with marijuana in a gym bag in a room where the child was not present to unilaterally remove the child from her home. She then assumed the right to determine the father’s contact with the child and attempted to use the events to change both the child’s residence and even the jurisdiction in which she will live.

[53] Yet, she now acknowledges that it is safe to leave the child with her father. Her counsel asked for the child to be left with him for five consecutive days out of very fourteen. But almost in the same breath she warned against keeping the child from her mother for too long a period of time. As I stated above, I had difficulty obtaining a clear parenting plan from the mother during this motion other than that it should eventually be a 2-2-3 arrangements that the father should work towards. She no longer insists in a hair strand analysis test before allowing the father to see the child.

[54] Further I cannot ignore the uncontradicted evidence that she assaulted the father and then bragged to him that she would teach such behaviour to A. That being said, she was also the child’s primary caregiver, at least when the father was working and for a time, for nine out of fourteen days. The father does not argue that she should be a less than equal parent.

[55] Both parents have acted badly and dare I say, immaturely towards each other. Each has secretly recorded the other multiple times. The mother has twice attempted to secretly surveil the father using a GPS device, whether on his car or gym bag. Their child needs them to grow up and find a way to act better, towards both each other and by doing so, towards her as well.

[56] Normally a child as young as A should not be away from either parent for a lengthy period of time. Further, as set out above, I am concerned about the distance between the parties now that the mother has disembarked to her parents’ condominium in the North York district of Toronto. While the mother says that the child should not be separated from either parent for too long a period of time, she offers nine consecutive days away from the father and five consecutive days away from her. Frankly, I do not find that her immediate plan, which I almost had to coax out of her lawyer, is well thought out.

[57] The father’s shared time proposal has the virtue of being the one that appears to be the more child-centred option presented to me in that the child will only be away from one or the other of her parents for a maximum of three days. That plan represents a great improvement on the father’s original plans of sole parenting time and week-about parenting time. He also proposes 15 minutes of video contact with the non-residence parent each day. That aspect of the plan is also in the child’s best interests.

Decision

[58] For the reasons cited above, I order as follows on a temporary basis:

a. The parties will share primary care of and major decision making for A.

b. They shall adopt a 3-1-3 parenting arrangement as proposed by the father. That arrangement shall coincide with the father’s work schedule.

c. The parent taking the child into their care will be responsible for picking up the child to begin their parenting time.

d. The non-resident parent will be entitled to 15 minutes of video time with the child at times arranged by the parties.

e. If the parties cannot agree on the details of the terms set out above, they may arrange to re-attend before me or have their counsel attend by conference/Zoom call.

f. Neither parent shall consume alcohol or non-prescribed drugs while the child is in their care.

g. Neither parent will have any non-prescribed drugs in their home while the child is in their care.

h. Neither parent will record the other without the other’s clearly expressed consent. Any recordings that either party may make of A shall be for personal/family use only.

i. The parties shall each ensure the removal of any recording or tracking devices installed or left in the home, in any belongings or personal property of the other party, or in any location that may record or track the other party.

j. Neither party shall, in the presence of the child:

i. engage in any conflict with the other party;

ii. speak negatively about the other party; or

iii. discuss parental differences or disagreements.

k. The parties will arrange a further case conference to deal with support issues and any other parenting issues that may arise.

[59] During the hearing of this motion, I strongly took both parents to task for the events that led to this motion. I equally encourage them to attend mediation to help them resolve their parenting issues and increase their ability to communicate in a more child-centred manner.

Costs

[60] While the father was generally successful in this motion, the positions of both parties have evolved from the time that it was brought. Further, I have been critical of the behaviour of both parties.

[61] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit his costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. He need not include the authorities upon which he relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: September 8, 2021