Court File and Parties

COURT FILE NO.: FS-20-00020569-0000 DATE: 20211126

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L.T.C., Applicant AND: D.P., Respondent

BEFORE: Papageorgiou J.

COUNSEL: Max Rubin, for the Applicant Michael Tweyman, for the Respondent

HEARD: November 23, 2021

ENDORSEMENT

[1] The Respondent D.P. (the “Father”) brought a motion for a nesting order and a section 30 report on October 19, 2021. The Applicant L.T.C. (the “Mother”) filed her own cross motion seeking exclusive possession of the matrimonial home and other ancillary relief 3 days before the motion. This included a particular parenting plan whereby the Mother would have primary care of the child of the marriage, K.P.T. (the “Child”).

[2] The Child is currently almost 9 years old and is in Grade 4.

[3] I heard brief submissions on October 19, 2021 but adjourned the remainder of the motion to today because of the Mother’s late delivery of her cross-motion.

[4] At the return of the motion, the Mother revised her proposed parenting schedule to increase the amount of time which the Father would have such that she would have 4 days and he would have 3 on an interim basis.

Background

[5] The Mother and Father have been separated since April 1, 2019. They have resided in the matrimonial home (the “Matrimonial Home”) since the date of separation. The parties entered into a consent order on April 27, 2021 which provided specific times that each party would have parenting time with the Child at the Matrimonial Home.

[6] Both parties agree that this is not working. They are experiencing significant conflict, some of which has been in front of the Child.

[7] The Child was diagnosed with Autism Spectrum Disorder (“ASD”) in 2016.

[8] I am in no position to make any findings on this paper record as to many matters in dispute which include alleged assaults, which parent has in the past had primary care of the Child in terms of his schooling, special needs, appointments and extra-curricular activities, who disparages whom, etc.

[9] This is a high conflict situation.

Section 30 Report

[10] The Father requests a section 30 assessment to be done by Ilana Tamari. The proposed assessor has availability in December and charges $465 per hour. The Mother opposes this on the basis that it is unnecessary since a referral has been made to the Office of the Children’s Lawyer, that it is too costly, is a delay tactic, and will only add more disruption and conflict.

[11] In Glick v. Cale, 2013 ONSC 893, at para 48, the Court provided guidance on criteria that a court should consider in making a section 30 order.

[12] In my view there are a number of factors which warrant an assessment including the following: a) The Child has ASD and as will be seen, the kind of behavioral issues described by the parents are significant. Because of the nature of the Child’s issues, the court requires a clinical assessment to determine the ultimate parenting arrangements which are in the Child’s best interest as well as a manner of implementing them in the least disruptive fashion given his diagnosis; b) Although I made a request for the OCL to conduct an assessment pursuant to my October order, the OCL has not yet agreed that it will provide assistance. There is no guarantee that the OCL will assist or that this assistance will be timely enough or that the OCL will assign a clinician as opposed to a lawyer to conduct the assessment. The more information this court has about this Child, the better; c) There are allegations by both the Mother and Father related to their ability to provide appropriate parenting to this Child given his diagnosis and needs. They both allege that the other behaves inappropriately towards the Child at times in frustration, e.g. yelling at the Child, saying hurtful things, behaving aggressively, pulling his ear, slapping him, allowing him too much screen time, not maintaining appropriate bedtimes etc.

[13] There is a dispute over almost everything to do with the appropriate manner of parenting this Child which this court cannot determine on this record.

[14] The Father says that he will pay the cost of the section 30 assessment up front. Even if it causes some delay in this case it is necessary because of the Child’s diagnosis and significant behavioral issues that the parties get it right the first time, instead of tinkering around in the dark.

[15] In my view, even if the OCL conducts an assessment, it will be of assistance to have a section 30 report before it when the trier of fact hears this case and makes its decision regarding this Child. On the record before me, it also appears that this will be faster than the OCL and this temporary nesting arrangement needs to be addressed sooner rather than later.

[16] Given that the Mother did not oppose the specific assessor proposed and the fact that this assessor is available, I will be making an Order that the parties obtain a section 30 assessment from Ilana Tamari at the Father’s initial up front cost, to be addressed in the final equalization payment.

The Parties’ Proposed Parenting Plan

[17] The Father proposes that on a temporary basis, the parties share parenting pursuant to a nesting arrangement where the Child will stay in the Matrimonial Home and the parents will each spend their parenting time with the Child in the Matrimonial Home.

[18] The Mother and Father own two other properties:

a) A property where the Mother and Father previously resided with the Child. This property will be available for either the Mother or the Father to live in as of December 1, 2021 which I will refer to as “A”; and

b) A triplex with one apartment which is currently vacant and available which I will refer to as “B”.

[19] The Father proposes that the Mother and Father may each live in either property while the Child remains at the Matrimonial Home and they rotate in and out pursuant to a specific proposed schedule (which includes time with the Father’s parents. I will deal with that issue at the end.)

[20] The Mother proposes that the Child reside with her from Sunday evenings until Thursday after school and that the Child reside with the Father from Thursdays after school until Sunday evening. During the motion she proposed some visitation for the Father on a Monday to ensure the Child does not go four straight days without seeing the Father.

Best Interests of the Child

[21] The best interests of the child are paramount and the Divorce Act solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests: Divorce Act, RSC 1985, c 3 (2^nd Supp), s. 16.

[22] The Divorce Act also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: Divorce Act, s.. It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

[23] Above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira at para 13,

[24] Other relevant considerations are contained in section 16 of the Divorce Act.

[25] The best interests’ analysis is holistic, taking into account a child’s well-being in a broad sense, including their “basic material, physical, educational, and emotional needs, as well as needs for affection and safety.” The court is to engage in a rigorous assessment of the specific child’s circumstances: SS v. RS, 2021 ONSC 2137 at paras 35 to 37.

Analysis

[26] The only material issue which is not in dispute in this case is that this Child has ASD. Both parents assert that the Child requires stability because of his diagnosis but they disagree as to what will provide this stability.

[27] Nesting orders are not common. In Chaudhry v. Meh, 2019 ONSC 6101, at para 10, the court described the purpose of a nesting order as follows:

A nesting order may be in the child’s best interests where it keeps the child in the matrimonial home, while rotating the parents in and out, to maintain the continuity of the parents’ involvement while minimizing the disruption to the child. However, nesting orders have been rejected where they create opportunities for conflict or perpetuate conflict between the parents. Where the parties have lived in the same home with little interaction and little conflict, a nesting order made be appropriate, Grandy v. Grandy, 2012 NSSC 316 at paras 33, 35.

[28] As always, the primary consideration is the best interests of the child.

[29] It is difficult to address all of the factors set out in the Divorce Act on this highly contested record. The child appears to have a strong relationship with both parents, a strong relationship with his grandparents, each parent says they are prepared to support the development and maintenance of the other’s relationship with the Child, but at the same time they criticize each other for their interference. The history of the Child’s care as to whether the Father or Mother contributed more is in dispute, but as will be seen I am maintaining the shared parenting arrangement that they have currently had.

[30] In my view, the most salient factor on this interim motion is the needs of the Child at this time.

The Needs of the Child

[31] The affidavits filed by the Mother and Father contain significant details with respect to the Child based upon their own observations, which support that this Child’s welfare could be destabilized by a significant change to his life. For example: a) While the Child can communicate stories, ask for things he needs, tell the listener what he likes and have regular conversation, he has challenges including sensitivity to light, sounds, smell and touch; b) He has trouble articulating his feelings which results in frustration; c) He sometimes has meltdowns when he is not being understood or feels he is treated unfairly; d) It is difficult to put him to put him to bed as he is sometimes not calm enough; e) Both parents have described incidents which have occurred when the Child has become frustrated. Both parents describe an incident where the Child struck the Father in the genitals although they describe the cause differently; f) The Child has had difficulty with toileting and would defecate in his pants at school at times. This caused him embarrassment and the parents have worked hard to address this issue by ensuring that he toilette’s before school; f) the Mother’s affidavit refers to non-stop tantrums without structure; g) The Child has required various forms of therapy including speech therapy, occupational therapy and struggles with self-regulation.

[32] While the Mother has provided literature to the Court on what a child with ASD needs, this is not the same thing as a medical report or sufficient to address this child’s specific needs and circumstances at this time to ensure that a smooth transition can be made in a parenting plan which sees both of the parents, or one of the parents, leave the Matrimonial Home.

[33] The Mother’s current proposal involves her staying in the Matrimonial Home and having the Child from Sunday evenings until Thursday mornings with the Father having the Child every weekend. This is an unusual schedule and one which is unlikely to be sustainable long term as the Father would have the bulk of the time when the Child has no structure—the weekends. Given the behavioral issues described by the parties, it makes little sense to set up a situation where one parent has the bulk of the more difficult or time intensive parenting time. There is already evidence that the Child’s behavior can lead to frustration on the part of the parents.

[34] The Father argues that his proposed nesting arrangement is only a temporary solution but he is advocating for it until more information is obtained.

[35] In this significant situation, there should be as little disruption to this Child’s life as possible by obtaining input from either the OCL or from the section 30 assessment as to the kind of parenting order which should be made, and the kind of transition steps which should be taken to ensure that the Child’s needs are met. I have no admissible or persuasive evidence as to any of this before me.

[36] In my view, it is in the Child’s best interests that changes to his current schedule be minimized as much as possible to ensure his stability, and to ensure that he does not regress in his development due to a hasty or poorly thought out parenting plan.

[37] In my view a nesting arrangement is the least disruptive parenting plan for this Child at this time because: a) This child is young and the challenges that the parents have described with the Child’s behavior are not minimal; b) He is in the middle of the school year; c) He has lived in the Matrimonial Home following his wake up and bed time routine there for more than two years; d) The nesting arrangement mirrors what his life has been like, but removes the conflict because the parents are not in the same house at the same time; e) There are minimal exchanges as all but one occur during the school day; f) It preserves the status quo until either the OCL or the section 30 report provides further guidance on what an appropriate child-focused change in the Child’s residence would be given his circumstances; g) At this stage, there is no direction from anyone with any expertise on what it would do to this Child to change his schedule and his life in either of the ways proposed by the Mother.

[38] As well, while the Child sees each of the parents more frequently pursuant to the Father’s nesting arrangement, the Mother’s proposal involves longer periods when each parent does not see the Child. At this time, without the benefit of a section 30 report or OCL report, this court requires further direction on whether this kind of change would be destabilizing and/or the best way to implement such a change.

[39] The Mother also references her allegations of domestic violence in support of her assertion that the proposed nesting arrangement will not work. There are three specific instances which all occurred while the parties were living together as follows:

a) An alleged incident on November 4, 2020 where the Father splashed burning oil on her while cooking.

b) An alleged incident on February 23, 2021 when the Father screamed at the Child at an intersection, which the Mother says put the Child in danger of running across the road. At the time, the Child hit the Mother’s hand; and

c) An alleged incident on August 17, 2021 when the Mother heard the Child screaming when the Father had allegedly brought him home late where she says the Father slammed the door on her hand when she tried to enter.

[40] The Father has explanations for and/or denies the way the Mother has described these incidents and I am unable to make any determinations.

[41] I understand the Mother’s concerns about not wanting to live in the same home given her allegations against the Father (which also include allegations of control and surveillance). However, all but one transition will occur without the parties present. In that regard, the parties will rotate in and out during the school day. e.g. on a day when parenting time ends, the departing parent leaves the home by 12:00 pm on that day, and the returning parent returns no earlier than 1:00 pm. The Child does not return until 4:00 pm. The morning time gives the departing parent time to tidy up. The afternoon gives the returning parent time to arrange things for the Child but does not require that returning parent to see the other parent.

[42] The only time there is an in-person transfer is on Sunday nights. Given the parties have had a nesting arrangement in the house for two years already where they actually lived in the same home and saw each other daily, I think they can manage this nesting arrangement, which requires very little contact, until they can determine what is best for their Child.

Relationship with Grandparents, linguistic culture and religious upbringing

[43] The Father takes the position that any parenting plan should incorporate the fact that the Child has had regular and consistent time with his grandparents E.P. and G.P. The Father has given evidence that the Child has consistently spent overnights with his grandparents on a weekend night except during the COVID lockdown.

[44] He seeks an order that any parenting plan should incorporate a weekend overnight with his parents and that this should not be looked at as either parent’s time.

[45] COVID began in or around March 2020 and the Child has not been going to the paternal grandparents for overnights since then; it is not part of the Child’s current regular routine. In the paternal grandmother’s affidavit, she confirms that although the paternal grandparents have had a strong relationship and bond with the Child, during the first part of COVID there was suspension of some of their weekend time as well as their attending church. In the last six months the routine has been that the Child “stays with [the paternal grandparents] on Sunday, then [they] will eat together and eventually [the Child] goes home with [the Father].” Therefore, although the relationship is important and should be supported, overnights with the paternal grandparents has not been part of the Child’s regular routine recently and is not a part of the status quo.

[46] Counsel for the Father referenced the new amendments to the Divorce Act as supporting his position, in particular section 16(3)(b) which provides that in determining the best interests of the child, the court shall consider all factors including “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.”

[47] The Father’s counsel was unable to reference any cases where a court has made a parenting order requiring one grandparent to have specified time with a child in the manner he proposes, although this is a new provision of the Divorce Act.

[48] In my view, the Father’s counsel is reading this amendment of the Divorce Act too broadly, particularly with reference to this interim motion. Section 16.1(1) of the Divorce Act is the section which provides the Court with jurisdiction to make a parenting order on the application by:

(a) Either or both spouses; or

(b) A person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

[49] In my view, this section does not contemplate an order for parenting time in favor of a grandparent who is not standing in the place of a parent. Section 16.5 of the Divorce Act provides that a court may on an application other than a spouse, make an order providing for contact between that person and a child of the marriage. There is no application before me by the paternal grandparents pursuant to section 16.5 before me.

[50] The Mother does not have any opposition to the Child spending time with the paternal grandparents and the Father may continue to support that relationship as he sees fit as well as the Child’s linguistic and cultural heritage. At this stage, in my view, it is not in the Child’s best interests to make any order providing the grandparents with specific court-ordered parenting time. There is already a significant conflict between the Mother and Father as to their parenting time with the Child; carving out specific time for the grandparents at this time will only increase this conflict. The Father is in a position to continue to foster this relationship during his parenting time. As to Church attendance, the Father may continue to foster this religious heritage during his parenting time.

[51] I will be making strict orders to ensure that neither parent can enter the Matrimonial Home when the other is there, a prohibition on any surreptitious surveilling of the other parent while in the Matrimonial Home, as well as an Order that each parent shall have one room in the Matrimonial Home that they may place a lock on to ensure their privacy etc.

[52] I will be ordering that the Mother reside at B and that the Father reside at A although the parties are free to agree to switch this if they wish.

Sale of the B Property

[53] The Mother has brought a motion for the sale of the B property because the Father has not contributed any funds to the mortgage payments of the Matrimonial Home which is one payment away from foreclosure. She says they need these proceeds to be able to afford the mortgage on the Matrimonial Home. The Father does not deny that he does not contribute to these payments but says that the Mother “does not appreciate that the management of rental units requires injections of capital and that when there are profits, she has scooped those to use for [the Matrimonial Home]”. He states that she took funds from the B account to make the mortgage payment on the Matrimonial Home so that it would not bounce.

[54] Given that the Father is not alleging that he has no means to pay ½ the Matrimonial Home expenses, and given that he is in receipt of rental incomes, and given that I cannot order the sale of the B Property because I am granting the Father’s nesting order, from this point on, the Father shall pay ½ of the expenses of the Matrimonial Home.

[55] Given the nesting order I am making I am dismissing the Mother’s motion for exclusive possession of the Matrimonial Home at this time without prejudice to her bringing this motion again upon completion of either the OCL assessment or the section 30 assessment.

Order

[56] Therefore, until further order of this court or agreement of the parties, pursuant to the section 16 of the Divorce Act, I order on a temporary and without prejudice basis as follows;

1. Pursuant to section 16.1(4)(d) of the Divorce Act, the Child shall reside at the Matrimonial Home.

2. Pursuant to section 16.1(1) and 16.2(1) of the Divorce Act, I am ordering a nesting arrangement in the Matrimonial Home whereby the Mother and Father shall each rotate in and out during their parenting time. The parties shall submit to me a specific nesting arrangement based on 2 2 3 parenting time with the Child on alternating weeks.

3. Pursuant to section 16.1(4)(d) of the Divorce Act on a day when the parent’s parenting time ends, that parent shall leave the Matrimonial Home no later than 12:00 pm and the returning parent shall not return to the Matrimonial Home until after 1:00 pm.

4. Pursuant to section 16.1(4)(d) of the Divorce Act, the parties shall put deadbolts on every door in the Matrimonial Home that exits the house so that each parent can ensure non-interference with their parenting time.

5. Pursuant to section 16.1(4)(d) of the Divorce Act the parties shall each select one bedroom in the Matrimonial Home which shall be theirs during the nesting period and they may put a lock on the door to that room to ensure their privacy when the other parent is exercising their parenting time.

6. Pursuant to section 16.1(4)(d) of the Divorce Act when not at the Matrimonial Home, the Father may reside at A.

7. Pursuant to section 16.1(4)(d) of the Divorce Act when not in the Matrimonial Home, the Mother may reside at B. The Mother may change the lock to this residence.

8. Pursuant to section 16.1(4)(d) of the Divorce Act neither party shall conduct any surveillance of the other while in the Matrimonial Home or otherwise.

9. Pursuant to section 16.1(4)(d) of the Divorce Act the parties shall each choose one extracurricular activity that they shall both take the Child to during their parenting time. Each parent may take the Child to other extra-curricular activities as they wish during their parenting time provided that they pay for it.

10. Pursuant to section 16.1(4)(d) of the Divorce Act the departing parent shall leave the Matrimonial Home neat and tidy.

11. Pursuant to section 16.1(4)(d) of the Divorce Act the parties may share any groceries that are currently in the Matrimonial Home.

12. Pursuant to section 16.1(4)(d) of the Divorce Act the parties shall each have separate cupboards in the Matrimonial Home’s kitchen where they may put new groceries which do not need to be refrigerated.

13. Pursuant to section 16.1(4)(d) of the Divorce Act the parties shall mark any food they purchase which requires refrigeration as theirs. The other parent shall not use any food purchased by the other parent and so marked. In the alternative, if there are two fridges in the house, or if the parties wish to purchase another refrigerator, they may use different refrigerators.

14. Pursuant to section 16.1(4)(d) of the Divorce Act each parent shall be responsible for purchasing groceries for their parenting time and neither parent shall use the groceries purchased by the other without their consent.

15. The parties shall attend a settlement conference on February 28, 2022 at 10:00 a.m. If this date is not agreeable, the parties shall contact the trial co-ordinator’s office and obtain another date.

16. Pursuant to section 16.1(4)(d) of the Divorce Act from December 1, 2022 onwards, the Father shall pay ½ of all expenses associated with the Matrimonial Home.

17. Pursuant to section 30 of the Children’s Law Reform Act I am ordering an assessment of the Child by Ilana Tamari. The Father shall pay the costs of the assessment up front and the Mother’s share of the report will be addressed in the final accounting of the parties’ positions in this matter.

18. If the parties cannot agree on costs they may make brief submissions no longer than 5 pages within 7 days.

19. The parties shall submit an Order together with their 2 2 3 parenting plan based on a nesting arrangement.

20. I am seized of this matter subject to my availability. I will hear any motion related to this Child’s welfare on an urgent basis, subject to my availability.

Papageorgiou J.

Date: November 26, 2021