Fraser v. Lattuca, 2021 ONSC 6687

COURT FILE NO.: FS-19-0094

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jackie Fraser

Applicant

– and –

Joseph Lattuca

Respondent

Darryl Willer, for the Applicant

Alexandrea Grant, for the Respondent

HEARD: October 4, 2021

Justice Mills

Overview

1The parties have resolved all issues but for parenting time and, flowing from that decision, the amount of child support to be paid. There is only one question to be answered. Is it in the best interests of the child to have shared parenting time with the parties? In my view, the answer is yes.

2In coming to that conclusion, I have examined only the best interests of the child in accordance with s. 24(2) and (3) of the Children’s Law Reform Act (R.S.O. 1990, c. C-12, as am.). The parental preferences have not played a role in my analysis, except to the extent they are relevant to ensure the best interests of the child are met (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52). I accept there is no presumption of equal parenting time, but in accordance with s. 24(6) of the CLRA, I have considered and applied the principle of maximum parenting time within the context of what I believe is in the best interests of the child (Kirichenko v. Kirichenko, 2021 ONSC 2833 at paras. 55 and 57; McBennett v. Danis, 2021 ONSC 3610 at para. 89).

Background

3The parties have one child, JFL, born July 11, 2015. The relationship ended when JFL was one year old, following which the child has lived primarily with the Applicant. The child is now six and is in Grade One at a public school in Burlington. As with all children in Ontario, JFL spent most of last year in online learning due to the Covid-19 pandemic school closures. The Applicant works remotely from home as a computer programmer and was able to ensure JFL succeeded in his online learning. At this stage in the school year and with the ongoing pandemic, it is unknown whether the child will remain attending school in-person or if there will be circumstances which require him to revert to online learning. The Applicant will be able to adapt as her work schedule is entirely flexible.

4The Respondent works in the construction industry and is required to attend at job sites across the GTA. His employer has allowed for a flexible start time to accommodate the current parenting schedule and has indicated a willingness to continue to do so. The Respondent would need to rely on after school care for approximately 90 minutes per day. This of course is an estimate based on the traffic and weather delays that plague many who work in the GTA. The Respondent has committed to be solely responsible to pay all expenses for the after school care.

5The parties have demonstrated over the past five years that they are able to parent together with the best interests of JFL in mind. The Applicant promotes a generous and meaningful relationship between JFL and the Respondent. He is informed of all medical, dental, and school appointments, and they are scheduled at a time when the Respondent can attend. He is an active and engaged parent. There are no issues raised with respect to the parenting abilities of either party. They each facilitate regular FaceTime visits with the other parent when JFL is in their care. Each parent has a very good relationship with the child, and both are proud to say that JFL is a happy, healthy, well-adjusted child who is thriving. This fact is a tremendous credit to both parties.

6From the time the parties separated, the Respondent has requested equal parenting time. In May 2018, on consent and without prejudice, he agreed to the current parenting schedule which provides for one overnight stay per week and alternating weekends. He now asks for a 2/2/3 parenting time arrangement, amounting to one additional overnight per week. In the past three years, the Respondent has requested additional parenting time, but the Applicant has adhered to the existing court order with only limited flexibility.

Analysis

7The Applicant resists a change to the effective status quo on the basis that JFL should not be placed in after-school third party care when she is available to care for him. Also, she raises concerns that the Respondent does not have a support network in the Burlington area to assist in the event of unforeseen issues. I accept the Respondent’s evidence that he moved to the Burlington area solely to be closer to his son and that he has provided a stable, predictable environment for JFL over the last four years. The Respondent’s family connections are in Vaughan.

8The Applicant’s concerns are not compelling reasons to maintain an unequal parenting arrangement. There is no evidence to suggest the YMCA care provided at the school is in any way deficient or not in JFL’s best interests. The only evidence provided by the Applicant was that JFL apparently told her he prefers to play with his own friends after school. That may be so at this time, but he may also make new friends in the YMCA programme. The child was in daycare for approximately two years when the Applicant required third party care. To now suggest it is not in JFL’s best interests to be cared for by others is disingenuous to say the least. If the Applicant is not willing to assist in the event of unexpected illness or unforeseen event, and I am not suggesting that she should in any way feel compelled to do so, the Respondent will need to make appropriate arrangements for child care.

9The Applicant is strongly of the view that the current arrangement is working well and that no changes are required. Transitioning to equal parenting is not a significant change to the existing schedule such that one could argue it may undermine the structure, routine, and stability for JFL. The suggestion that the Court ought not change that which is working well presumes the situation is working well for everyone and that it cannot be made better. It should not be assumed that an adjustment to what is working well will only result in making it worse; it may make the situation even better (Jones v. Van Drunen, 2016 ONCJ 833 at para. 62).

10The current parenting arrangement is not working as well for the Respondent. He has repeatedly and consistently requested more time with the child. The Respondent is deprived of engaging with JFL for the evening and morning routines. The situation can be made better for JFL as he will now have equal time with both his parents who clearly love and adore him.

11The Applicant is also concerned about the Respondent’s ability to home school JFL in the event he is required to return to online learning. I accept the Applicant’s evidence that as a computer programmer, she is better equipped to assist the child when using computers. That is not a reason to deny the child equal parenting time with the Respondent. Both parents expressed a willingness to support JFL in his academic endeavours and it is expected they will work together to ensure the child is provided every opportunity to succeed in our digital world. Equally, it is expected the parents will work together to ensure JFL is provided every opportunity to succeed if he should wish to learn a trade. Together, relying on their respective strengths and talents, the parties must ensure the best interests of JFL are met as he progresses with his education.

12The Applicant submits that communication between the parties is strained and therefore equal parenting time would be an invitation to conflict and chaos that would be destabilizing for the child (D.G. v. A.-G. D, 2019 ONCJ 43 at para 131). While I accept there have been challenging times in the past, the parties have demonstrated they are able to be respectful, responsive and child focussed in their communications. I adopt the sentiment of Kukurin, J. that communication difficulties do not resolve if the children are with the parents an unequal or equal amount of time; rather, the resolution lies with the implementation of better communication by the parents (Jones v. Van Drunen, supra. at para. 64). I am confident that with the resolution of this litigation, the parties will continue to communicate in a respectful and child focussed manner, and they will continue to cooperate with each other in the best interests of JFL.

13Giving primary consideration to the physical, emotional and psychological safety, security and well-being of JFL, and considering the factors underlying the “best interests” analysis, it is my view that the best interests of JFL dictate an equal parenting arrangement on a 2/2/3 basis, as proposed by the Respondent. This will give JFL structure and stability, while ensuring the nature and strength of the relationship he has with each parent is preserved, maintained, and developed. It will ensure he has maximum parenting time with each parent, consistent with his best interests. Both parties are willing and capable of caring for and meeting the needs of JFL. As he is only six years old, he is too young to express a meaningful view or preference on this important issue. As there is no evidence of family violence nor any legal proceeding with respect to the safety, security, or well-being of JFL, these issues have not been considered.

Parenting Schedule

14The Respondent shall therefore have parenting time with JFL from Tuesday after school until the return to school on Thursday morning, and every alternate weekend from Friday after school until the return to school on Monday morning.

15The Applicant shall have parenting time with JFL every Monday and Thursday after school until the return to school on Tuesday and Friday mornings, and every alternate weekend from Friday after school until the return to school on Monday morning.

16The parenting transitions shall take place at the school. In the event there is no school on a transition day, the party with JFL shall drop him off at the home of the party whose parenting time is scheduled to commence.

17The parties have agreed to a holiday/vacation schedule and the Minutes of Settlement in this regard have been incorporated into a Court Order.

18Additional parenting time may be agreed upon by the parties.

Child Support

19The parties have agreed their incomes for child support purposes are $138,488 for the Applicant and $72,998 for the Respondent, as reflected in their respective income tax returns at Line 150.

20Counsel submitted the Respondent is deliberately underemployed as his work schedule is limited to 32 hours per week as opposed to a typical 40 hour work week. The reduction in hours allows the Respondent to take JFL to school in the mornings before travelling to his job site. There are some opportunities available to the Respondent to make up the time with his employer, but it is not guaranteed.

21I expressly reject the submission of intentional underemployment and I will not impute income pursuant to s. 19(1)(a) of the Guidelines to compensate for the modest reduction in income. This is not a situation where JFL’s financial needs are not being met. The Respondent is simply making a small compromise to spend quality time with his young child. The evidence of the Applicant was that her concerns respecting a shared parenting arrangement were not in any way influenced by this reduction in the Respondent’s earning capacity.

22Based on their 2020 incomes, the Applicant shall pay $532 per month to the Respondent in child support, based on the Child Support Guidelines for a shared parenting arrangement. The child tax credit shall be shared equally between the parties.

23The parties shall share s. 7 expenses on a proportionate basis, with the Applicant paying 63% and the Respondent paying 37%. After school childcare costs shall not be characterized as a s. 7 expense if JFL is attending only on a part-time basis when in the care of the Respondent, in which case the Respondent shall be solely responsible for paying that expense. If JFL is placed in full-time after school childcare for the benefit of both parties, the costs shall be a s. 7 expense and shared in accordance with the parties’ respective incomes.

24The parties shall provide each other with continuing and annual financial disclosure pursuant to s. 21 of the Child Support Guidelines. This information shall be provided annually on or before May 1st of each year and the child support payable shall be adjusted accordingly, effective June 1st of each year. The parties shall advise the FRO of the new amount payable in writing on or before June 1st of each year.

25A Support Deduction Order shall issue.

Costs

26I would encourage the parties to resolve the issue of costs but if they are unable to do so, written submissions not exceeding two pages with a Costs Outline and any Offers to Settle, may be submitted by the Respondent within 15 days and by the Applicant within 10 days thereafter.

J. E. Mills J.