COURT FILE NO.: FS-20-97309
DATE: 2021 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Hazel Swift
Roslyn M. Tsao/Laura Petryshen, for the Applicant
Applicant
- and -
Bradley Stephen Swift
Gida Deti, for the Respondent
Respondent
HEARD: January 26, 2021
REASONS FOR JUDGMENT
MANDHANE J
Facts
[1] The Applicant/Mother, Jennifer Swift, and the Respondent/Father, Brad Swift, were married for 13 years and have three children: Jason (age 12), Victoria (8) and Ben (7).
[2] Both parties genuinely care for the children. During the marriage, they generally shared parenting responsibilities. Jennifer took maternity leaves with the children and worked part-time until 2020. Brad left for work early in the morning and Jennifer was primarily responsible for before-school care. Brad would pick the children up from daycare and was primarily responsible for after-school care. The parents shared dinner preparation and bedtime.
[3] Both parents are fortunate to have benefited from ongoing support from their extended family. Brad’s mother helps with homework, and Jennifer’s mother helps with minding the kids and shuttling them around. When Jennifer was struggling with post-partum depression and anxiety, Brad and his mother took on the lion’s share of parenting.
[4] The parties separated in September 2019 and retained counsel. They continued to live under the same roof, which was less than ideal. The parents would fight in front of the children and Jennifer began to go out in the evenings when Brad was caring for them.
[5] The CAS eventually became involved. In the middle of a CAS investigation, Brad reported to the police that Jennifer had slapped him 14 months earlier. On January 8, 2020, Jennifer was charged with assault and a non-contact order was put in place. Jennifer permanently left the matrimonial home and moved in with her elderly parents in Caledon. She filed this application in February 2020.
[6] After her arrest, Jennifer had less access to the children and exchanges were fraught. Jennifer says that Brad limited her contact and started alienating the children against her and her new boyfriend. Brad, on the other hand, says that Jennifer was not interested in seeing the children and that she often relied on her mother to care for them.
[7] On June 19, 2020, on a without prejudice basis and through their counsel, the parties agreed that Jennifer could access to the children for a total of four nights every two weeks. Though the parties currently earn roughly the same amount in employment income, Jennifer has not been paying adequate child support and has not contributed to section 7 expenses.
[8] Victoria and Ben seem content in the care of both their parents. However, Jason has recently stopped attending at Jennifer’s parenting time. Jason told the CAS that Jennifer’s father speaks poorly about Brad in front of the children. He also says that Brad told him that Jennifer’s boyfriend is a bad person. An OCL report was ordered at the first case conference and its investigation is ongoing but delayed due to the COVID-19 pandemic.
[9] The criminal charges against Jennifer were withdrawn by the Crown on July 30, 2020. On the record, the Crown stated that that the slap was an isolated incident, that it was a “consent fight,” and that the timing of Brad’s complaint to the police was suspicious. The Crown noted that Brad had essentially admitted to going to the police as a tactic related to this litigation; he said that he went to the police to try to prevent Jennifer from going to them first.
[10] Despite the criminal charges against her being withdrawn, Brad has repeatedly refused to agree to an increase in Jennifer’s access to the children.
Issues
[11] Jennifer now brings a motion for interim relief. She would like to modestly increase her access to the children from four to six overnights in a two-week period, and to share vacation time equally. She wishes to retrieve some belongings from the matrimonial home, and sell the matrimonial home so that she can buy her own place.
[12] Brad opposes Jennifer’s motion and brings a cross-motion for retroactive and ongoing child support.
Analysis
Parenting Schedule
[13] A decision regarding parenting time must be made in accordance with the best interests of the children. In determining their best interests, I am mindful of the factors set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, as well as the “maximum contact” principle set out in s.16(10) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).
[14] On an interim motion, a judge should only disrupt the status quo if a change is necessary to meet the child’s best interests: Batsinda v Batsinda, 2013 ONSC 7869 at para. 24.
[15] That said, there is no presumption in favour of continuing the status quo. To succeed on this motion, Jennifer must simply establish on a balance of probabilities that it is in the children’s best interests to disrupt the status quo and grant her modest additional overnight access. Giving undue weight to the status quo runs contrary to the overriding concern that the children’s best interests be prioritized when making parenting orders.
[16] In this case, based on the relevant factors from the Children’s Law Reform Act and Divorce Act, Jennifer has satisfied me that it is in the children’s best interest for them to spend roughly equal time with both parents pending final resolution of the parenting-related claims.
[17] First, I find that a more equal parenting schedule is consistent with the status quo established during the marriage. I prefer to look at the entirety of the relationship rather than parsing out each hour of the day or day of the week to create some sort of ledger or balance sheet. This does not accurately reflect how families arrange their lives over the course of a long-term relationship.
[18] During the marriage and while she was living in the home, Jennifer was an equal parent. Both parents worked outside the home, and each parent was primarily responsible for the children at different points during the day. After they separated, this arrangement continued, except that Jennifer would sometimes leave the home while Brad cared for the children in the evening. Given the rising tension in the house, this was probably for the best.
[19] To the extent that Jennifer sometimes relies on extended family to help out with the children, I find that these are reasonable, time-bound arrangements to necessary to accommodate Jennifer’s mental health disabilities. There is no fault in Jennifer acknowledging that she requires occasional support and putting that support in place. This is especially the case if support is available in the form of loving grandparents.
[20] I refuse to reward Brad for using the criminal justice system to advance his parenting claim. Brad effectively orchestrated a change in status quo when he called the police, had Jennifer charged and forced her to leave the family home. He made sure that Jennifer would face an extended, uphill legal battle if she wanted to see the children nearly as much as she had been while living in the matrimonial home. Indeed, it has taken her nearly a year to resolve the outstanding criminal charges and bring this motion for increased access. She still does not have her own housing. Under these circumstances, I refuse to defer to the interim parenting schedule negotiated by counsel prior to Jennifer’s criminal charges being withdrawn.
[21] Despite numerous calls to CAS by both sides, the agency has repeatedly found that there are no child protection concerns. That said, neither parent is perfect. Brad has anger issues and admits to physically disciplining the children. He willingly attends regular counselling and is reporting improvement.
[22] Jennifer suffers from anxiety for which she receives ongoing treatment. She occasionally uses doctor-prescribed cannabis, but never in the presence of the children or while they are in her care. There is no evidence to support Brad’s suggestion that Jennifer has substance abuse issues or that her boyfriend poses a risk to the children.
[23] There is some evidence to suggest that the children do not always complete their homework and have a lot of screen time when they are with Jennifer. Jennifer’s family sometimes speaks ill of Brad in front of the children, and her father has subjected Brad to unwarranted verbal abuse in the past.
[24] There is also evidence that Brad regularly expresses concerns about Jennifer and her boyfriend in front of and to the children. He has posted nasty comments on social media. There is a real risk of parental alienation on both sides if this behaviour continues.
[25] There is conflicting evidence about the children’s views and preferences. While it would have been ideal to await the OCL’s report before changing the temporary parenting schedule, that report has been delayed due to the pandemic. In the meantime, I am concerned that the current access schedule risks further alienating the children from Jennifer, especially since Jason who has already stopped attending visits with her.
[26] Overall, given the status quo during the marriage, the clear emotional ties between both parents and the children, the ability of both parties to act as parents, and the maximal contact principle, it is in children’s best interests for both parents to be equally involved in their lives on a go-forward basis.
[27] Jennifer’s motion for increased access is granted on the terms set out in paras. 1-5 of her Notice of Motion dated January 12, 2021. I further order that:
a) Both parties shall ensure that the children participate in online school and submit required homework;
b) Neither party shall speak negatively about the other party in the children’s presence;
c) Both parties shall make best efforts to prevent any person from speaking negatively about the other party;
d) Neither party shall discuss this court case or other adult issues involving the parties with the children;
e) Jennifer shall abstain from using cannabis in the presence of or while caring for the children;
f) Jennifer shall not leave the children unsupervised with the paternal grandfather or paternal uncle; and
g) Either party shall be permitted to bring a return this portion of the motion, on notice, within 30 days of receipt of the OCL report.
Child Support
[28] Jennifer did not pay meaningful child support between January 2019 and December 2019, even though Brad had primary residency of the children. Based on the federal Child Support Guidelines, Jennifer would have owed approximately $1200 per month during this period. Significant child support arrears have accumulated. In December 2019, Jennifer began paying $800 per month towards child support.
[29] Given her full-time employment, the resolution of her criminal charges, and the fact that she has been living rent-free for over a year, I find that Jennifer must pay adequate child support and s.7 expenses. Based on the new access schedule, Jennifer will now have “shared custody” pursuant to s.9 of the Child Support Guidelines.
[30] Jennifer shall pay interim child support to Brad in the amount of $1000 per month, on a without prejudice basis, commencing February 1, 2021 and on every first of the month thereafter. This amount shall include $84 per month in ongoing child support and $916 per month in child support arrears.
[31] Commencing on February 1, 2021, Jennifer shall also pay 50% of agreed upon s.7 expenses for the children.
Sale of the Matrimonial Home
[32] Jennifer asks that I order sale of the jointly-owned matrimonial home. She wants to move out of her parents’ home, purchase her own place, and create a more positive home environment for the children. Brad asks that I delay the closing date until after the school year ends to minimize disruption to the children.
[33] Given that Jennifer’s increased access to the children, it is in their best interests for her to find appropriate housing as soon as possible. This will ensure that the children are not exposed to negative commentary by Jennifer’s father.
[34] Bearing in mind the Court of Appeal’s decision in Latcham v Latcham, 2002, CaswellOnt 1757, I am prepared to order that the matrimonial home shall be listed for sale forthwith, on the terms set out in sub-paragraphs 6 (a)-(h) of Jennifer’s Notice of Motion.
[35] Pursuant to s. 24 of the Family Law Act, R.S.O. 1990, c. F.3, I also order that Brad have exclusive possession of the matrimonial home pending its sale. While it would be ideal for the children if Brad bought Jennifer out, I am not prepared to delay the sale on that basis: Chateauvert v Chateuavert, 2019 ONSC 81 at paras. 74-75.
[36] I further order that each party receive $75,000 from the proceeds of sale for their exclusive and immediate use. The remaining proceeds shall be held in trust pending final determination of the financial issues or further order of this court.
[37] Between the monies held in trust from the sale of the home, Jennifer’s pension, and my order that she start to pay down the child support arrears, I am satisfied that there is no prejudice to Brad if the matrimonial home is sold prior to equalization.
Contents from the Matrimonial Home
[38] Jennifer asks that I order Brad to return various household items from the matrimonial home. On consent, I order Brad to provide Jennifer with the items listed in Schedule A to his Notice of Motion dated January 18, 2021 forthwith.
[39] Despite my jurisdiction in s.10(1) of the Family Law Act, I am not prepared to use scare judicial resources to divide common household items between separating spouses. I agree with Brad’s proposal that the remaining items be divided on an “I choose, you choose” basis in the presence of counsel. The chattels shall only be divided upon the closing of the sale of the matrimonial home or upon Jennifer re-housing, whichever occurs first.
Costs
[40] The parties both provided their Bills of Costs. Given the divided success on the main issues of parenting time and child support, I decline to order costs for this motion.
MANDHANE J
Released: January 27, 2021
COURT FILE NO.: FS-20-97309
DATE: 2021 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Hazel Swift
Applicant
- and -
Bradley Stephen Swift
Respondent
REASONS FOR JUDGMENT
MANDHANE J
Released: January 27, 2021