COURT FILE NO.: FS-19-146

DATE: 2021 10 25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.N., Applicant

AND:

R.N., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. K. Palmer, Counsel for the Applicant

Ms. K. Morris, Counsel for the Respondent

HEARD: October 25, 2021

ENDORSEMENT

A. Two Motions, 26 Heads of Relief Being Sought Excluding Costs

[1] This deals with the motion by the Respondent father, R.N., dated 23 September 2021, and the motion by the Applicant mother, N.N., dated October 14, 2021. Though they should not have been permitted to be scheduled to be heard on the same regular motions date, I heard both motions, via Zoom, on October 25, 2021.

B. Issues to be dealt with Summarily

This is a Temporary Order

[2] To be clear, all orders made herein are temporary.

Communication Between the Parties and Adult Conflict

[3] On consent, the relief sought at clauses 5 (exclusive communication between the parties through Our Family Wizard) and 8 (mutual prohibition against exposure of the children to any further adult conflict or disparaging remarks about the other parent) of the father’s motion is granted.

Electronic Communication Between the Children and the Parties

[4] Clause 6 in the father’s prayer for relief is very similar but not quite identical to that set out at paragraph 10 in the mother’s prayer for relief. Both clauses deal with electronic communication between the children and the parents. The material difference is that the father’s suggested wording compels each parent to fully cooperate in ensuring that the communication between the children and the other parent actually takes place and, further, to not interfere with that communication. I prefer the father’s wording; that type of cooperation is precisely what a responsible parent in a separated family should do. Thus, the father’s wording shall be included in the Order.

Child Support

[5] On consent, the mother’s request for an order that the father shall pay child support, per the Guidelines, commencing November 1, 2021 and on the first day of each consecutive month thereafter, is granted. Counsel shall calculate the monthly amount and include that in the Order based on these annual gross incomes: $65,579.00 for the father and $24,153.00 for the mother. A Support Deduction Order shall issue for enforcement through the Family Responsibility Office.

[6] On consent, the relief sought at clause 8 of the mother’s motion (regarding section 7 expenses for the children) is granted, though the proportionate sharing ratio may change slightly using the incomes noted immediately above.

Sealing Order

[7] The mother wants the Court file sealed. The father takes no firm position on that. The said request is denied.

[8] There is nothing in the affidavit evidence filed that addresses this issue except the mother’s assertion that the sealing order is required “due to the sensitive and graphic nature of the facts contained [in the supporting affidavits/documents], particularly as they relate to the minor children… “ (paragraph 2 of her affidavit sworn on October 14, 2021). With respect, that is not sufficient to oust the well-entrenched and very important open-court principle that is a part of our constitutional law. The request fails on even a rudimentary assessment of the basic requirement that such an order be found to be necessary to prevent a serious risk to the proper administration of justice. L.C.F. v. G.F., 2016 ONSC 6732.

[9] With respect, there are far too many sealing orders being requested in family law matters. Every family law case is inherently private and sensitive. Most of the disputes that come to court involve minor children. Many involve salacious or lewd or otherwise unattractive allegations that are embarrassing to the parties and their families and friends. Before requesting a sealing order, however, which is an extreme measure, the requesting party should, at a bare minimum, be prepared to address issues of (i) notice to the media and whether it should be dispensed with if not given (and why), and (ii) why reasonably alternative measures (such as using initials for the parties and the children in all publicly-accessible documents in the court file and/or a publication ban) are insufficient in the circumstances. Neither was discussed here.

Everything Else

[10] Except for what is expressly dealt with above and below in this Endorsement, besides costs, all other relief sought by both parties is dismissed.

C. Decision-Making Authority, Primary Residency of the Children, Parenting Time, and Alcohol Consumption

[11] The father’s motion is his attempt to simply endorse the recommendations made by the Office of the Children’s Law (“OCL”) in the very thorough report authored by Merle Fast dated August 9, 2021. That is a good thing, in my view, but what is not good is his attempt to vary one of the recommendations where the proposed variance is not for the best interests of the children but rather for his own self-interest.

[12] Recommendation number eight requires that neither parent consume alcohol while in a caregiving role or 24 hours prior to parenting. The father would like that amended to prohibit only excessive consumption, or at least to get rid of the 24 hours’ stipulation. A prohibition against excessive drinking is useless as it is wholly subjective. And the evidence filed by the mother from the child welfare agency is sufficient to justify the extension of the prohibition on the part of the father to 24 hours before having the children in his care. The result is that the said recommendation of the OCL, without amendment, shall be included in the Order.

[13] In terms of decision-making authority and primary residency of the children, Ms. Palmer quite responsibly did not spend any time in her oral submissions dealing with any alleged requirement that the father demonstrate a material change in circumstances before this Court could order that he be granted temporary sole decision-making authority for and primary residency of the two children, ten and seven years old. There is no Order or consent arrangement in place currently on the issue of decision-making authority. The only relevant Order is that of Justice Miller made on April 11, 2020, and that temporary, without prejudice Order is silent about custody or decision-making authority and deals only with parenting time between the father and the children in the context of an allegation by the father that the mother had withheld the children from him. In addition, the OCL report makes it clear that both parties had acknowledged the competing proposals for decision-making authority in the face of a situation where “[t]here are no orders stipulating decision making or parenting time” (page 2 of the OCL report).

[14] It is not open to the mother now to argue that a material change in circumstances must be shown.

[15] I am impressed with the thoroughness of this OCL report. The father was interviewed twice. The mother was interviewed twice. Home visits were conducted for both parties. The children were observed spending time with each parent. Each child was interviewed twice. Medical, school, and child welfare agency contacts were consulted. The father’s new partner was spoken to. The mother’s sister was spoken to. Police and school psychological reports were consulted. The court file was reviewed. The report itself is twenty pages in length, excluding attachments. The report gives several reasons as to why the de facto status quo ought to be altered.

[16] I am aware of the mother’s Dispute filed regarding the OCL report, but I am not persuaded on the evidence before me that the recommendations made are susceptible to criticism on the basis of misapprehended or ignored facts, an incomplete or biased investigation, an excess in authority, and/or any of the complaints outlined by the mother as contained in her affidavit materials (in particular, at paragraph 18 of her affidavit sworn on October 14, 2021). To the contrary, I conclude that the OCL recommendations appear to be in the best interests of the children.

[17] Interestingly, I observe that the mother’s own reasons for opposing the recommendations are inconsistent with the very status quo that she wants to preserve. If, as she alleges at paragraph 20 of her affidavit sworn on October 14, 2021, the father is an unpredictable alcoholic who cannot be trusted to make decisions for and to parent the children responsibly, then why does she allow him to be with the children, unsupervised, every Tuesday, every Thursday, and every second weekend? It makes no sense.

[18] This Court orders that the father shall have sole decision-making authority for the children. This Court orders further that the primary residence of the children shall be with the father.

[19] Both parties and the OCL all agree that there should be equal parenting time. The father has requested a modification to the schedule recommended by the OCL in order to decrease the number of transitions for the children, and that objective of minimizing transitions is supported by the mother. Thus, this Court orders that the parenting time schedule shall be as proposed by the father – rotating weeks, commencing with the children being in the care of the mother from 3:30 p.m. (after school) on Friday, October 29, 2021 until 3:30 p.m. on Friday, November 5, 2021, at which time the children shall transition to the care of the father, and so on.

[20] I am not in agreement with counsel for the mother that there is anything inappropriate about the father’s current partner dropping the children off at school when the father is unable to do so because of his work. And I am not persuaded that this Court should ignore the OCL recommendation about exchanges of the children taking place somewhere other than the parties’ homes. If it is true that the father is recording the exchanges at the convenience store, or plans to do so, or wants to do so, he should think again. It is a bad idea and will undoubtedly be frowned upon by any judge who deals with this file down the road.

D. Costs

[21] The father has been more successful than the mother and is, therefore, presumptively entitled to some costs. Counsel are encouraged to resolve the costs in a reasonable way. If they cannot do so, I will hold a hearing via Zoom for fifteen (15) minutes to hear submissions and decide the matter. The trial office in Orangeville may be contacted in that regard, if necessary.

(“Original signed by”)

Conlan J.

Date: October 25, 2021