Court File and Parties

COURT FILE NO.: FC-20-25 DATE: 2021/10/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Erin Mae Nicholson, Applicant AND: Scott Ross Nicholson, Respondent

BEFORE: Madam Justice M. Fraser

COUNSEL: Rebecca Rosenstock for the Applicant M. Peter Sammon for the Respondent Lorelei Gutoskie, Office of the Children’s Lawyer for the children

HEARD: October 5, 2021

ENDORSEMENT

[1] The respondent brings a motion seeking a temporary order which would increase the present parenting time he has with the children, Annika Mae Rose Nicholson born September 28, 2012 (“Annika”) and Adam Philip Nathaniel Joseph Nicholson, born July 23, 2015 (“Adam”) pursuant to a temporary order which was made on March 31, 2021. He also asks for an Order providing for parenting time with the child Genevieve Grace Catherine Nicholson, born December 7, 2008 (“Genevieve”).

Background

[2] The parties married on June 8, 2002. They separated May 17, 2018. The Respondent briefly moved back into the home from June to September 2018. He moved out of the home for the final time in September 2018.

[3] There are six children of this relationship, namely Madeleine, born March 23, 2004. Thomas, born September 8, 2004, Jeremiah, born December 22, 2006, Genevieve, Annika and Adam.

[4] The Applicant did not work outside of the home during the marriage and the Respondent is a teacher at a private school.

[5] Since separation, the Applicant has been the primary caregiver of the children.

[6] At the case conference held on June 20, 2020, the parties agreed to a temporary without prejudice order providing the Respondent with access to the children every second weekend from Friday at 3:30 p.m. until Monday morning at 10:00 a.m., commencing July 3, 2020. Additionally, the parties agreed that the Respondent would have access with the children every second Wednesday from 2:00 p.m. until 10:00 a.m. the following morning and every alternate Wednesday from 2:00 p.m. until 7:30 p.m.. The order provided that the parties could also agree upon further access, taking into account the children's views and preferences

[7] The Respondent then brought a motion which was heard by James J. on March 15, 2021. At that time the Respondent asked for expanded parenting time with respect to Annika and Adam, more specifically, a shared week-about arrangement. By this point, Ms. Gutoskie had been appointed to represent the children and the court had the benefit of the children’s views through her. She had interviewed the children several times.

[8] James J. denied the Respondent’s request. Instead, he ordered that the Respondent’s parenting time would remain the same except that the children would be with the Respondent every second Wednesday afternoon until after dinner but would not include overnight.

[9] As part of his endorsement, dated March 31, 2021, the parties were encouraged to take advantage of the time the Respondent would have off work and it was pointed out that the Respondent could enjoy spending time at the various children’s activities without having specific parenting time allotted to him. James J. also suggested that the Respondent might take advantage of the summer vacation time to have expanded parenting time with them.

[10] A settlement conference was to occur on July 16, 2021 but did not proceed on that date. Instead the parties agreed to a consent order which provided, among other things, for expanded parenting time for the Respondent in the summer. The Respondent by the terms of the order was, on a without prejudice basis to have parenting time on week 1, commencing July 16, 2021, from Friday at 5:00 p.m. to Monday at 5:00 p.m. and then on week 2, commencing July 21, 2021 from Wednesday at 5:00 p.m. to Friday at 5:00 p.m.

[11] The Respondent brought the present motion returnable August 17, 2021. The motion as it pertained to the Respondent’s parenting time with the three youngest children was adjourned to October 5, 2021 in order that Ms. Gutoskie would have the opportunity to prepare and file an affidavit sworn by her clinical assist relevant to this issue.

Respondent’s position:

[12] The Respondent asks that his parenting time with Annika and Adam be extended to occur Friday after school at 2:00 p.m. until Monday before school at 9:00 a.m. every week.

[13] With respect to Genevieve, he asks for parenting time one night per week of her choosing for a period of not less than 18 hours in duration.

[14] The Respondent bases his position on his assertion that Annika and Adam express a desire to continue to see both parties and their siblings daily, which he states cannot be accommodated. He suggests that the best solution would be to ensure there is more frequent parenting time with him so that there are not lengthy gaps of time between the days they are with him.

[15] He maintains that James J.’s Order of March 31, 2021 could not have been intended to have the children go for longer than a week without seeing him as it is apparent in his reasons that he anticipated that the parties would be flexible and agree upon further parenting time for him. He asserts that this did not happen and that this is due to a lack of cooperation from the Applicant, who, he states would ignore his requests for additional access.

[16] The Respondent believes that the Applicant is attempting to limit the Respondent’s time with the children as she wishes to relocate to Ottawa.

[17] He also believes that this change to his parenting time would add greater predictability to the children’s routine.

[18] With respect to Adam, the Respondent believes that Adam becomes focused on missing his mother during visits with him. He feels that expanded parenting with Adam would improve this and that his lack of substantive parenting time with Adam has hindered his having a stronger relationship with Adam.

[19] With respect to Annika, the Respondent believes she would prefer to spend more time with the Respondent and to have some time with the Respondent when Adam is not also present. He maintains that he recognizes and would promote Annika’s need to socialize with her peers.

[20] With respect to Genevieve, the Respondent feels that she would benefit from a period of having some “regulated freedom” concerning when and how she spends time with the Respondent and that this is preferable to her being given the complete freedom to decide whether or not to spend time with the Respondent at all. He expresses a concern that Jeremiah did not exercise “access” with him over an eight-month period as a result, in his view, of the Applicant “empowering” Jeremiah with the same option. He feels Genevieve’s expressed concerns to be in actuality the concerns of the Applicant and that by providing an expected structure to parenting with the Respondent, Genevieve will feel free to spend time with him, free of other responsibilities, including the care of the younger children.

[21] The Respondent responds to the Applicant’s assertion that the Respondent demands for greater time with the children is motivated by his desire to gain financially through eligibility for the CCB by suggesting it is actually the Applicant seeking to gain financially through the children. He also suggests that the Applicant is presenting “childcare” as an obstacle to her obtaining employment.

[22] The Respondent argues against preserving the status quo on an interim basis. He denies responsibility for any delay in this proceeding and asserts that establishing an expanded relationship with the younger children should not be put off.

[23] The Respondent also described a conversation he had with Genevieve concerning same sex marriage. Genevieve apparently asserted that the state had changed its definition of marriage and stated that she believed that the Church should too and that if the Respondent did not agree with this that he was homophobic and unaccepting of homosexuals. The Respondent asserts that he told Genevieve that he did not know where she got the idea he was homophobic and that most people fall short of what the Church presents as an ideal, both in terms of sexuality and in other areas. The Respondent asserts that he told Genevieve that he believes people should be accepting of people who do not meet these “ideals.” He asserts that whatever Genevieve’s current views on sexuality are, and wherever she gets such views, she is always welcome in his home.

[24] The Respondent asserts that the Applicant is attempting to paint a picture of him as unsafe to the children given the “anti-vaccination” views that are attributed to members of his school/church community.

[25] In his affidavit sworn September 28, 2021 in particular, the Respondent asserts that the children are being coached and negatively influenced by the Applicant on the issue of spending more time in his care. He perceives that the children did not have positive things to say about him to the OCL clinical assist and that this necessitates a conclusion that they are being alienated. He maintains that statements made to the OCL clinical assist which came “out of the blue” could only have originated from the Applicant.

Applicant’s position:

[26] The Applicant asks that the parenting time as ordered by James J. on March 31, 2021 continue.

[27] She points out that the Respondent asks for every weekend with Annika and Adam and that he fails to understand how hectic their weekday routine is and that it would not be in their best interests to not also have weekend time with her.

[28] She asserts that she has difficulty co-parenting with the Respondent and that, for instance, instead of working with her in the management of Annika’s diabetes, he harasses her and the diabetes team at CHEO treating Annika with incessant emails.

[29] The Applicant claims that the Respondent has refused to engage in communication with her regarding pandemic and safety protocols. She states that the Respondent is dismissive of the children’s authentic concerns regarding COVID-19 and the seriousness of the pandemic. The Applicant maintains that while she and the children who are old enough have all be vaccinated, the Respondent refuses to advise her whether he has been vaccinated. She is concerned that the two younger children remain ineligible for vaccination and that Annika is at an increased risk for complications given she is a Type 1 Diabetic.

[30] She believes that Genevieve has clearly stated her views and preferences to the OCL clinical assist and that Genevieve is mature for her age. The Applicant believes Genevieve is being given excessive levels of responsibility in the Respondent’s home. The Applicant asserts that Genevieve’s relationship with the Respondent is strained due to his strict religious views and authoritarian parenting style.

[31] The Applicant asserts that Genevieve claims that the Respondent recently shared his “homophobic” views with her which upset Genevieve.

[32] The Applicant believes that Genevieve should not be forced to see the Respondent unless she chooses to.

OCL position:

[33] The OCL has filed an affidavit sworn September 20, 2021 by Carmela Savoia, who is the clinician engaged to provide clinical assistance to Ms. Gutoskie, OCL counsel for the children.

[34] The OCL submits that the present interim parenting arrangement is consistent with the children’s present views and preferences.

[35] In particular, the following is noted from Ms. Savoia’s evidence:

(a) Adam reports that he finds it very hard to go back and forth between his parents’ home, leaving all of his “stuff” behind. He prefers spending time at the Applicants as they “don’t go to mass as much.” He feels that the Applicant takes better care of him and that he wanted to see more of his mother than his father. He asserts that it is not very fun at his father’s home.

(b) Annika, like Adam, reported that she found going back and forth between her parents’ homes to be difficult, particularly when a personal belonging is at the other parent’s home. Annika maintains that the Applicant requires that she read and write after breakfast each day for twenty minutes. She asserts that her father, in contrast, requires her to read a lot of books and that if she does not read fast enough she is made to read the story over again. She reports having chores at both homes. Annika finds it “easier” to be at the Applicant’s home because she is not required to do as much reading. She stated that her mother takes care of her best and that she gets more sleep there as opposed to at her father because he makes her stay up late reading. She claims that if something is worrying her, she feels “safer” telling her mother. She also feels safer in the care of her mother with managing her diabetes and that when her blood sugar is low, her father often maintains it is “borderline.”

(c) Genevieve hasn’t spent substantive time with her father in several months. She is not presently wishing to see him. She reported that time spent with the Respondent was initially good but that she became increasing uncomfortable over time. Genevieve reported that the Respondent would wake her up at 7:00 a.m. so that she could watch her younger siblings when he went to church. In addition to watching over her younger siblings, she was frequently asked to make dinner and do the laundry. On the last occasion she saw her father (in August, 2021) she had asked him to drive her to swimming. During the drive they engaged in a discussion about same sex relationships. Genevieve felt that the Respondent is homophobic and stated that she does not agree with his views.

Analysis:

[36] Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) There is, therefore, a heavy onus on a party who seeks to vary a temporary order - essentially replacing one imperfect solution with another imperfect solution - pending trial: Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.).

[37] In Greve v. Brighton, 2011 ONSC 4996, at para 24, the court writes that a court should only vary an interim order “… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the Children’s best interests.”

[38] A court may be more willing to change a temporary order when a trial date is not imminent and the best interests of the child justify it. See: Closner v. Closner, 2019 ONSC 703 (Div. Ct.).

[39] The Respondent’s “compelling reason” that it would be in the children’s best interest to vary the interim order of James J. is based upon his assertion that the circumstances point to the conclusion that the Applicant has embarked upon a course of action intended to alienate the children from him.

[40] I have reviewed the Respondent’s affidavit of September 28, 2021 carefully. While I acknowledge his concerns that the Applicant is alienating the children from him, I do not conclude that the statements made by the children to the OCL clinical assist could not equally support alternate conclusions that do not point to alienation. Genevieve’s reluctance to spend time with the Respondent at the moment may have grounding in other issues which have arisen in her relationship with the Respondent.

[41] It is clear that Adam and Annika have a comfort level while in the care of the Applicant which is not surprising given she has been a “stay-at-home” parent throughout their young lives. She cared for them while the Respondent worked outside of the home. The fact that they are more comfortable remaining in one party’s principal care does not necessitate the conclusion advocated by the Respondent. To the contrary, it would seem the children wish to continue their contact with the Respondent.

[42] It is also clear that the parties have different parenting styles. This seems to be leading to discomfort and resistance by the children. For instance, the Respondent’s belief that Annika would benefit from a disciplined, structured approach to addressing the fact that she is behind in her reading stands in contrast to the Applicant’s less regimented approach. Their different approaches to Annika’s diabetes management could also account for Annika’s expressed concerns that she feels “more safe” at the Applicant’s home.

[43] It might be difficult to expect a child to understand that both approaches might be “safe” when the parents remain in conflict with one another, both clearly believing their own approach to be the correct one. Ideally if the parents were better able to adopt a “unified” approach, I would expect that Annika might find reassurance.

[44] Ms. Savoia, as the OCL clinical assist, does not suggest that the children are expressing views which are tainted or unfounded. To the contrary, Annika and Adam have remained open to ongoing contact with their father. I am not satisfied that there is persuasive evidence that the children’s present comfort level with the status quo is due to negative influence or alienating behaviours by the Applicant.

[45] Therefore, at this interim stage, I am not satisfied that there are compelling reasons to alter the parenting schedule which was ordered by James J. on March 15, 2021. The Order of James J. as it pertains to the parenting time each of the parties is to have with Adam and Annika is to continue and Genevieve’s time with the Respondent shall remain at her option and in accordance with her views and preferences.

[46] The parties have not yet completed questioning in this matter. This prevents the parties from scheduling a settlement conference and thereafter proceeding to a trial of the issues in dispute based upon a more comprehensive evidentiary record. I would encourage the parties to agree upon a timeline to ensure this matter moves forward.

[47] If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before November 5, 2021. The Respondent may file submissions concerning costs on or before November 12, 2021. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by November 12, 2021, then there shall be no order as to costs.

Justice M. Fraser

Date: October 22, 2021