Court File and Parties
COURT FILE NO.: FC-21-57041
DATE: 2021/11/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Paul Denomme, Applicant
AND:
Faune Marie Denomme, Respondent
BEFORE: Mr. Justice D.A. Broad
COUNSEL: Caroline Kim, Counsel for the Applicant
Lorri Stojni-Kassik, Counsel for the Respondent
HEARD: November 25, 2021
ENDORSEMENT
The Parties and Family Relationships
[1] The parties began living together in January 2018 and were married on September 4, 2019. There are two children of the marriage, a son, N.J.D. (3 and one-half years old) and a daughter, V.M.D. (one year old).
[2] The respondent (the “mother”) has two children from a previous marriage, aged 13 and 11 respectively. These children are not the subject of the motions herein.
[3] The applicant (the “father”) does not have any children from a previous relationship.
[4] The parties resided together with the four children in the matrimonial home until September 7, 2021 when the mother physically left the home with the four children.
[5] The father is the sole registered owner of the matrimonial home.
[6] The father brought a motion on September 28, 2021, on an urgent basis prior to a case conference, seeking the following relief:
(a) an order that the children of the marriage N. and V. be immediately returned to the care of the father pursuant to section 16 of the Divorce Act and sections 24 and 28 of the Children’s Law Reform Act;
(b) police enforcement as may be required to apprehend and return the children to the father’s care and enforce any other order made in the proceedings with respect to the children, pursuant to section 36 of the Children’s Law Reform Act;
(c) on an interim interim without prejudice basis that the children’s primary residence shall be with the father;
(d) on an interim interim without prejudice basis that the mother shall have supervised access with the children;
(e) on an interim interim without prejudice basis that the father shall have exclusive possession of the matrimonial home; and
(f) that the matter proceed to a case conference as soon as possible.
[7] The mother brought a motion on September 30, 2021, also on an urgent basis prior to a case conference, seeking the following relief:
(a) an order that the mother have primary residence of the children;
(b) an order for the appointment of the Office of the Children’s Lawyer to represent the children;
(c) alternatively, an order that the parties retain the services of Annette Katchaluba to complete a section 30 report.
[8] In her confirmation filed prior to the hearing of the motions the mother revised the orders that she is seeking to the following:
(a) an order that the mother have primary residence of the children;
(b) an order that the father shall have parenting time with the children as follows:
(i) alternating weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m.;
(ii) every Tuesday from 4:00 p.m. to Wednesday at 4:00 p.m.
(c) an order that the mother shall have immediate and exclusive possession of the matrimonial home; and
(d) an order for the appointment of the Office of the Children’s Lawyer.
[9] The evidence led by the parties is conflicting, and neither party was cross-examined on his/her affidavit(s). Although the basic facts concerning what was said or done by the parties at certain times may not be disputed, each party’s intentions, motivations and reasons for taking certain actions and saying certain things to the other, and their relevance to the issues, are in significant dispute.
Father’s evidence and position
[10] The father submits that the mother has repeatedly engaged in irrational conduct designed to harass him and to wreak havoc on his relationship with the children. He points to the mother’s conduct, inter alia, as follows:
(a) on August 21, 2021 the mother called the police to allege concerns about the father. The police spoke with both parties and left the home. No one was charged;
(b) three days later on August 24, 2021 the mother “formed” the father under the Mental Health Act resulting in him being involuntarily admitted to Grand River Hospital for psychiatric observation. The father was detained in the hospital for three days of observation and released. On release he was informed by the doctors that they had no concerns with his mental health;
(c) on September 6, 2021 the mother placed a BBQ knife at the bottom of the basement stairs where the father played with N. and then accused the father of playing with N. in an unsafe place while recording the father in the basement area with her phone;
(d) on September 7, 2021, the mother called the police to allege concerns about the father. The police spoke with both parties, left the home and no one was charged. While the father was speaking with the police officer, the mother suddenly removed the children from the home without notice or consent and had not disclosed their location to the father; and
(e) on September 8, 2021 mother again had the father involuntarily admitted to Grand River Hospital for psychiatric observation and again the father was released without any concerns.
[11] Family and Children Services of Waterloo (the “Society”) became involved when the father was involuntarily admitted for psychiatric observation. On October 4, 2021 the Society investigator stated that the Society “has no concerns for [father’s] mental health and/or any safety concerns that would prohibit [father] from being in a caregiving role for [the] children.”
[12] The father submits that the mother’s behaviour towards him changed in the time leading up to the separation, including becoming aggressive towards him, “supervising” him when he is with the children, removing the children’s car seats from the father’s car, “supervising” the father and his family when they were with the children, and discouraging or physically preventing the children from spending time with him.
[13] The father says that until V. was born both parties worked on a full-time basis and shared parenting for N. V. was born with a health condition that required constant supervision and numerous hospital visits. The parties agreed that the mother and maternal grandmother would care for V. and the father would care for N. while all residing together in the matrimonial home.
[14] Both parents drove together to McMaster University Hospital for V.’s visits, however, due to COVID-19 restrictions the mother entered the hospital and the father waited outside.
[15] The father maintains that V.’s condition was declared “clear” in or about June 2021.
[16] Since V. was born the father says that he has slept in N.’s room until N. was removed from the home and with very few exceptions the father would put N. to bed at night and wake him up in the morning. He says that he and N. are very close. He also says that he has always been involved with N.’s medical care and has taken him to doctor’s appointments and knows his schedule and bedtime routine.
[17] The father alleges that the mother has deliberately withheld information from him with respect to the children, particularly medical information.
[18] While the father owns several investment rental properties, he says that they are all rented out with long-term leases. Counsel have determined that one of the rental properties is jointly owned between the father and the mother.
[19] The father says that he is the Global Sales Operations Lead with Shopify and works from home with flexible hours. Since separation until the end of October 2021 the father’s paycheques have continued to be deposited into the parties’ joint bank account, to which the mother continued to have access. Commencing November 1, 2021 the father began voluntarily paying child support in the sum of $3,044 per month, which he says is the table amount based upon his average income over the past three years of $230,607.
[20] Father proposes that the children reside primarily with him and that the mother have the following parenting time:
(a) supervised parenting time every Monday to Friday from 3:00 p.m. to 6:00 p.m. for 30 days;
(b) thereafter, unsupervised parenting time every Monday, Wednesday and Friday from 3:00 p.m. to 7:00 p.m.; and
(c) alternating weekends from Friday at 4:00 p.m. to Monday at 8:30 a.m.
Mother’s evidence and position
[21] The mother alleges that after the parties found out that she was pregnant with V. the father was rarely home and worked longer hours which caused him to spend little time with N. After V. was born in October 2020 the father distanced himself from the mother and the family and would not participate in family activities or communicate with her and the rest of the family.
[22] The mother asserts that the father is unaware of the children’s various medical conditions. In his affidavit the father stated that V. was born with a “condition” which required hospital visits and that N. suffers from no health conditions. However, V. suffers from a mass in her lung and must wait until June 2022 to undergo an MRI and CT scan. She was diagnosed as a fetus with the rare condition of Congenital Pulmonary Airway Malfunction which requires the mother to monitor her breathing, changes in feeding and weight. N. has a heart murmur, a misshaped lung and eczema. The mother has taken N. to all of his appointments and the father has not been involved in his medical care.
[23] The mother asserted that she performs all parenting duties with the children including feeding, bathing, reading stories and putting the children to bed and has attended every medical appointment and administered appropriate medication when required. Notwithstanding that the mother was diagnosed with cancer and has undergone a hysterectomy she continues to be the children’s’ primary caregiver. The father has had very little, if any, active involvement in parenting the children.
[24] Mother stated that she removed the baby seats for the children in the father’s vehicle due to her concerns of the father drinking and driving with the children. She had found empty liquor bottles in the vehicle and feared for the safety of the children. The mother says that the father responded by threatening to put N. in the trunk of his car since he had no accessible baby seats. Although the father maintained that the statement was said in sarcasm, the mother considered the threat to be very serious and did not receive or interpret the sarcasm in that manner.
[25] The mother notes that the father has stated that he could hire a nanny to care for the children due to his work schedule. However, she is on maternity leave and is able to dedicate all of her time for the children.
[26] The mother says that the father does not attempt to spend any time alone with V. however he did on certain occasions take N. for a car ride or to the park. On August 12, 2021 father attempted to take N. for a car ride but finally agreed not to do so due to open bottles of alcohol that were found in the vehicle. On September 5, 2021 the father took N. to the basement where he was residing, which is filled with alcohol, boxes, containers and old food laying around. She says that the atmosphere in the basement is not clean for children to play in.
[27] The mother says she was forced to call the police on September 7, 2021 because she felt threatened by the father. He had advised her that he wanted a parenting talk with her and the mother was reluctant to respond so as not to anger him. The father provided an ultimatum that if she would not speak with him he was going to “do something.” She called a friend as well as police and once the police officers arrived one of the officers advised the mother that it would be best if one of the parties were to leave the matrimonial home. She believed that she was required to leave and physically left the matrimonial home while the father was speaking to the police in the basement.
[28] The mother deposed that on numerous occasions the father spoke to her regarding his mental health, anger and depression. The father was also extremely paranoid. On one occasion, although he knew that the mother was on a walk with the children, he drove throughout the neighbourhood to attempt to find her. The father drove to the mother’s friend’s residence and waited outside. The mother states that the father has recognized that he suffers from mental breakdowns, blankness and that he is quick to anger.
[29] The mother’s Factum disclosed that commencing November 7, 2021 father is having parenting time with the children as follows:
(a) Fridays from 3:00 p.m. to 6:00 p.m.
(b) Sundays from 10:00 a.m. to 4:00 p.m.
(c) Wednesdays from 8:30 a.m. to 3:00 p.m.
[30] The mother proposes an order that the father have parenting time with the children as follows:
(a) alternating weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m.
(b) every Tuesday from 4:00 p.m. to Wednesday at 4:00 p.m.
Statutory Framework
[31] Subsections 16.1(1) and (2) of the Divorce Act provide that the court may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage on application by either or both spouses and may make an interim parenting order in respect of the child, pending the determination of the application.
[32] Pursuant to subsection 16.1(4) the court may, in the order:
(a) allocate parenting time in accordance with section 16.2;
(b) allocate decision-making responsibility in accordance with section 16.3;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
[33] The court may, pursuant to subsection 16.1(5), make the order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate and may, pursuant to subsection 16.1(8), require that parenting time or the transfer of the child from one person to another be supervised.
[34] Section 16 sets out the considerations and factors which shall guide the court in making a parenting order, which is deemed by subsection (7) to include an interim parenting order, as follows:
16(1) Best interests of child
The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
16(2) Primary consideration
When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
16(3) Factors to be considered
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) 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;
(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(d) the history of care of the child;
(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child's care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
16(4) Factors relating to family violence
In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
16(5) Past conduct
In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
16(6) Maximum parenting time
In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
16(7) Parenting order and contact order
In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
Principles Governing Motions Prior to a Case Conference
[35] Both motions came before Justice Gordon on October 5, 2021, who endorsed as follows:
“Each party presents an urgent motion regarding parenting of their two children and related matters. These cannot be properly addressed with only written material.
I agree the matters are urgent and direct counsel to contact the Trial Co-ordinator to schedule a hearing date, such to be expedited, and to be heard by Zoom.”
[36] I am satisfied, based upon the endorsement of Gordon, J. and my reading of the motion material that the issues raised in the motions are urgent, and it is appropriate that the motions be heard prior to a case conference.
[37] However, the principles governing motions brought prior to a case conference remain relevant and bear on the nature of the relief to be granted by the court. Those principles are discussed below.
[38] Sub-rule 14(4) of the Family Law Rules provides that no motions may be heard before a case conference. Sub-rule 14(4.2) provides that, as an exception to sub-rule 14(4), a motion may proceed before a case conference if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
[39] In the seminal case of Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62 (S.C.J.) Wildman, J. adopted the observation expressed by Belch, J. in Hood v. Hood, 2001 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.) that urgency, justifying a motion before a case conference, contemplates issues such as abduction, threats of harm or dire financial circumstances.
[40] The rationale for the rules discouraging the parties from bringing motions at the outset of a case and prior to a case conference was outlined by Wildman, J. in Rosen at para. 2 as follows:
generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge. There is a deliberate attempt to try to avoid the damage that flows from the "nasty affidavit war" that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.
[41] Doyle J. reinforced this explanation of the philosophy of the Family Law Rules in Yelle v. Scorobruh, 2016 ONSC 3300 (S.C.J.) at para. 48 as follows:
Certainly, the focus of early resolution of matters starts with a meaningful case conference in accordance with Rule 17(4). At the case conference, a Court explores the chances of settling the case, explores ways to resolve issues, deals with outstanding disclosure issues, identify issues in dispute and discusses next steps. The case conference is integral to a family law case as it is the first event attended by the parties and is completed in a less adversarial fashion than a motion. A motion requires affidavit evidence that can be very antagonistic and aggressive, which can drive a deeper wedge between the parties and hurt settlement prospects. The FLRs were designed to ensure that parties attend the case conference. Only if there are instances of "urgency" or "hardship" should a Court consider permitting the parties to first attend a motion.
[42] Wildman, J. noted in Rosen that, as a first step, a moving party should make an inquiry as to when case conference dates are available to deal with the matter. The timing and availability of a case conference date are factors in determining whether a matter is urgent (see also Yelle v. Scorobruh at para. 34).
[43] As the next step, the parties should engage in settlement discussions to attempt to resolve pressing matters until the case conference date.
[44] The issues respecting parenting for the children in the case at bar cry out for court intervention prior to a case conference. The need for early court intervention is heightened by the current long delay in securing case conference dates brought on by the heavy demands on scarce court resources respecting family matters, and the impact of the current pandemic on the delivery of court services generally.
[45] However, the deviation from the rule favouring the holding of a meaningful case conference as the first step in a family proceeding in my view necessarily frames the scope of the determinations to be made by the court. As observed by Doyle J. in Yelle the atmosphere surrounding the dispute between the parties in the case at bar is currently very antagonistic, and the affidavit material exchanged on the motions does risk driving a deeper wedge between them and adversely affecting the prospects for settlement of the matters in dispute.
[46] The court is faced with making important decisions respecting the best interests of the children only in the context of a “nasty affidavit war” with starkly conflicting evidence, untested by cross-examination.
[47] The best that the court can do is to deal with the immediate urgency, in a way which will safeguard the best interests of the children, until the matter is able to reach a case conference where the issues can be explored and settlement options examined and weighed by the parties, with the assistance of counsel, in the cold light of day rather than in the white heat of battle.
[48] The disposition of the court will therefore be made on an “interim interim without prejudice” basis and is not be intended to remain in force until trial, unless otherwise agreed by the parties or determined by the court. A request will be made for the scheduling of an early case conference on an urgent basis.
Striking portions of the mother’s affidavit
[49] In his Factum and at the outset of submissions, the father objected to the admissibility of paragraphs 30 through 40 and exhibits B, C and D of the mother’s affidavit dated September 30, 2021 (revised in submissions to include exhibits C and D only) on the basis that they contain settlement discussions which are protected through settlement privilege.
[50] Following submissions by counsel, and for oral reasons given, I struck the following sections of the mother’s affidavit and the following exhibits:
(a) that portion of paragraph 32 from the second line commencing with the word “providing” to the end of paragraph 32;
(b) paragraph 33 in its entirety;
(c) that portion of paragraph 35 from the third line commencing with the phrase “put forth” to the end of paragraph 35;
(d) paragraph 36 in its entirety;
(e) paragraph 38 in its entirety;
(f) the first two sentences of paragraph 39 commencing with the words “I have” and ending with the words “own needs”;
(g) the second sentence of paragraph 40 commencing with the words “I have” and ending with the words “refused same”; and
(h) exhibits C and D.
Objection to the length of the mother’s affidavit
[51] The father also raised an objection with respect to the length of the mother’s affidavit, on the basis that it exceeds the maximum length set forth in the Province-Wide Notice to the Profession dated September 13, 2021 limiting a party’s primary affidavit in support of their position on a motion to 12 pages of narrative, double-spaced. The father pointed out through counsel that the mother’s affidavit comprised eight single-spaced pages thereby exceeding the limit. Counsel for the father did not seek a specific remedy but submitted that the court may draw an inference that the mother will be reluctant to follow rules.
[52] Counsel for the mother pointed out that the father had filed two affidavits including a primary and reply affidavit and could have, but did not, raise concerns with respect to the length of the mother’s affidavit. In her initial submissions, counsel for the mother submitted that any exceedance of the length limit was inadvertent and not done with any malicious intent. The affidavit was sworn/affirmed only 17 days after the release of the Notice to the Profession.
[53] In later submissions counsel for the mother pointed out that the Notice to the Profession states that the restrictions do not apply to long motions, motions for summary judgment or hearings with respect to the wrongful removal or retention of a child. Counsel for the father did not challenge this submission.
[54] At the conclusion of the argument I reserved on this issue. I find that according to its terms the limitation on the length of affidavit material September 13, 2021 Notice to the Profession does not apply in respect of the motions before the court as they were argued as long motions and deal with an allegation of wrongful removal or retention of the children. Moreover, I note that the mother’s affidavit not only responded to the father’s motion but was also filed in support of her cross-motion and the father exercised his right to file a reply affidavit.
[55] I decline to draw the adverse inference sought by the father against the mother on the basis of the length of her affidavit.
Order seeking involvement of the Office of the Children’s Lawyer
[56] As indicated above, the mother has sought an order for involvement of the OCL, or in the alternative, that a section 30 assessment be ordered. The father was opposed to an order providing for a section 30 assessment but was not opposed to an order seeking involvement of the OCL. At the conclusion of submissions, I made an order seeking the involvement of the OCL with clinical assistance for preparation of a report pursuant to section 112 of the Courts of Justice Act. In my view, the input and perspective of a trained and neutral third party with respect to the parenting issues may be of assistance to the parties and will likely be of assistance to the court.
Analysis
A – Parenting Time
(a) Supervision of the Mother’s Parenting Time
[57] The father initially sought an order, on an interim interim without prejudice basis, that the mother’s time with the children be supervised for an indefinite period. In his confirmation and in submissions the father revised his position to claim that the mother have supervised parenting time for three hours every Monday to Friday for 30 days.
[58] Ms. Kim submits that the children need a schedule which will serve to re-establish their relationship and bond with the father away from what she characterized as negative conduct on the part of the mother. She submitted that there are few other options to achieve these objectives other than to impose supervision on the mother’s time with the children. Ms. Kim submitted that the mother’s past actions failed to put the children first by improperly interfering with their relationship with the father.
[59] The father made reference in his Factum to the case of Kohli v Thom, 2021 ONSC 927 in which Nishikawa, J. usefully reviewed the principles which should guide the court in considering a claim by a parent that the parenting time of the other parent should be supervised. Justice Nishikawa stated as follows at paragraphs 30 and 31:
Supervised access "is usually a last resort where there is a risk of harm to the children that cannot be addressed in any other satisfactory way.": Ifraimov v. Ifraimov, 2013 ONSC 2762 (Ont. S.C.J.), at para. 10. Supervision is not a long-term remedy, but "a temporary and time-limited measure designed to resolve a parental impasse over access": McEown v. Parks, 2016 ONSC 6761 (Ont. S.C.J.), at para. 24. In Cox v. Lewis, 2014 ONCJ 147 (Ont. C.J.), at para. 62, McSorley J. stated that "[o]nce a non-custodial parent has proven an ability to care for a child and the child has been shown to have a relationship with the non-custodial parent, access should be moved to be unsupervised."
The onus is on the parent who seeks to restrict the other parent's access to demonstrate why that parent's access must be supervised: V.K. v. A.K., 2018 ONSC 7290 (Ont. S.C.J.), at para. 43; Young v. Hanson, at para. 32.
[60] Justice Nishikawa also made the following important observations at para. 29:
In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children: Young v. Hanson, 2019 ONSC 1245 (Ont. S.C.J.), at para. 32. The best interests of the child are generally met by having a loving relationship with both parents, and such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being: Hameed v. Hameed, 2006 ONCJ 274 (Ont. C.J.), at para. 22. Moreover, the child has a right to have contact with both parents.
[61] I am unable to accept that supervision of the mother’s parenting time with the children is warranted in their best interests.
[62] As noted above, the s. 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
[63] S. 16(3) requires the court, in considering the best interest of the children to take into account the factors listed, including (a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each spouse and (d) the history of care of the child.
[64] The mother has been a constant presence in the life of each of the children since birth and has been intimately involved in every aspect of their care, including managing the serious medical issues experienced by V. and addressing N.’s medical issues.
[65] Given that parenting time with the children by the father has recommenced, and that the mother is proposing further expansion to include alternate weekends and one overnight each week, it is not necessary to impose supervision on the mother’s time with the children in order to re-establish their bond with the father. That process is already underway and will continue.
[66] The father has failed to satisfy the onus on him of demonstrating why the mother’s parenting time with the children must be supervised. The supervision proposed by the father would take place in an artificial institutional environment totally foreign to the children’s experience.
[67] I am unable to accept that the observation of Pazaratz J. in Rafai v Green, 2014 ONSC 1377 (cited by the father in his Factum) at para. 22 that “in many cases, courts conclude manipulative, selfish or spiteful parents simply cannot be trusted with custodial authority they would likely abuse” has any application to the case at bar. The father’s position is that, following 30 days of supervision, the mother should have parenting time with the children on alternating weekends from Friday at 4:00 p.m. to Monday at 8:30 a.m. This position is inconsistent with a suggestion that the mother cannot be trusted with custodial authority.
(b) Allocation of parenting time
[68] As indicated above, in making a parenting order the Divorce Act stipulates that the court shall take into consideration only the best interests of the children of the marriage and in determining their best interests to give primary consideration to their physical, emotional and psychological safety, security and well-being, while considering all factors relating to the circumstances of the children.
[69] Subsection 16(5) provides that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time and decision-making responsibility.
[70] Subsection 16(6) provides that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[71] In the case of Rigillo v Rigillo, 2019 ONCA 548 the Court of Appeal held that a judge failing to avert to what had been referred to as the “maximum contact” principle in the previous provision of the Divorce Act ss. 16(10) constituted an error.
[72] However, the court in, additional reasons in Rigillo at 2019 ONCA 647, stated at para. 13 that all decisions must be based on the child’s best interests, and the maximum contact principle does not necessarily require equal parenting time (see also Knapp v. Knapp, 2021 ONCA 305 at para. 30).
[73] In the case at bar, each party seeks primary residence of the children to themselves, with comparatively lesser parenting time to the other. As indicated, the father proposes that the mother have the children on alternating weekends from Friday at 4:00 p.m. to Monday at 8:30 a.m. (3 nights in 14) and the mother proposes that the father have the children on alternating weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and every Tuesday from 4:00 p.m. to Wednesday at 4:00 p.m. (4 nights in 14).
[74] Prior to the mother removing the children from the home, both parties resided with the children and the mother’s two children from her previous relationship in the matrimonial home. The father has worked consistently at home since the onset of the COVID-19 pandemic and plans to continue to do so. The father deposed that, because of V.’s condition, she required constant supervision until he says he was told by the mother that she was “cleared.” As a result, until very recently the mother and her mother cared primarily for V. and he cared primarily for N., and as a result he and N. are very close. He stated that he is the parent who has primarily cared for N.’s needs in the last year.
[75] The mother deposed that the father has not been involved in V.’s medical care and that she has not been “cleared” as claimed by him. She stated in her affidavit that the father has never been a primary caregiver for the children, giving an example that he is not aware of the children’s medical conditions. The mother did not specifically dispute the father’s statement that they agreed to divide the care of V. and N. between them to permit her to focus on V.’s health issues.
[76] On the basis of the conflicting evidence in the current record, I am unable to find that the mother was the primary caregiver for both children or that the father lacks the capability to adequately care for the children and to learn to attend to V.’s health issues while she is in his care.
[77] Although I accept that the mother spent more time with V. due to her health issues, I am satisfied that the father did spend considerable time with N., including sleeping with him in N.’s bedroom, and that they developed a close bond. I am also satisfied that he has gained necessary experience in caring for young children.
[78] The letter from Sherri Cuoto, Child Protection Worker, Family and Children’s Services to the father dated October 4, 2021 is supportive of the father’s capability to care for the children. It stated, in part, “based upon my interactions with you… I have found you to be cooperative and you seem genuinely concerned about the well-being of your children… I have no concerns for your mental health and/or any safety concerns that would prohibit you from being in a caregiving role for your children, N. and V..”
[79] In my view it is in the children’s best interests that they have the opportunity to develop close, loving and bonded relationships with both parents, and that the principle in s. 16(6) of the Divorce Act that the children should have as much contact with each spouse as is consistent with their best interests should be given effect to by an equal sharing regime on an interim interim without prejudice basis pending a case conference and receipt of input from the OCL by means of a s. 112 report.
[80] Given the children’s young ages, frequent and shorter contact with each parent would be in their best interests by way of a rotating 2-2-3 parenting time schedule. This would involve the children residing with one parent for two days of the week, the other parent for the next two days and the first parent for the next three days, with the rotation to switch in the following week. In the result, each parent would have an equal amount of time with the children over a two-week period.
[81] Under this arrangement the children would not be away from either parent for more than two or three days which would assist in fostering and maintaining close relationships with both parents.
Police Enforcement
[82] As noted above, the father has claimed police enforcement of any order the court may make pursuant to s. 36 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[83] Ss. 36(1) of the of the CLRA provides as follows:
36 (1) Where a court is satisfied upon application by a person in whose favour a parenting order or contact order has been made with respect to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be.
[84] The father submits that a police enforcement clause is necessary due to the mother having left the matrimonial home with the children without telling the father and refusing to tell him where the children were. He says she did this based upon unfounded safety concerns. He argues that this poses a risk that the mother will continue to withhold the children in the face of an order, citing similar unfounded safety issues.
[85] I agree with the mother that a police enforcement clause is not warranted in the circumstances of this case. In my view, police enforcement should be utilized as a last and not a first resort. The imposition of such a clause is in my view unnecessary and not in the children’s best interests. The mother has agreed to parenting time to the father and has proposed that it be expanded. The risk of the mother unreasonably withholding the children from the father, contrary to a Court Order, has been abated if it ever existed.
Exclusive possession of the matrimonial home
[86] Both parties seek an order for exclusive possession of the matrimonial home pursuant to section 24 of the Family Law Act, R.S.O. 1990, c. F.3, as am. (the “FLA”).
[87] Pursuant to ss. 19(1) of the FLA both spouses have an equal right to possession of the matrimonial home.
[88] Para. 24(1)(b) provides, in part, that the court may direct one spouse be given exclusive possession of the matrimonial home and ss. (2) provides that the court may make a temporary or interim order for that relief.
[89] Ss. 24(3) provides that in determining whether to make an order for exclusive possession, the court shall consider, inter alia:
(a) the best interests of the children affected;
(b) the financial position of both spouses;
(c) the availability of other suitable and affordable accommodation; and
(d) any violence committed by a spouse against the other spouse or the children.
[90] Ss. 24(4) provides that in determining the best interests of the child, the court shall consider:
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained (this factor has no application in the case at bar given the young ages of the children).
[91] In the recent case of Colasuonno v. Colasuonno, 2020 ONSC 2061 Charney, J. noted at para. 48 that given that s.19 of the FLA gives both spouses an equal right to possession of the matrimonial home, the onus is on the spouse seeking exclusive possession to demonstrate that continued cohabitation in the home is impractical or, where there are children of the marriage, that the well-being of a child is threatened.
[92] At para. 52 Charney, J. quoted from the decision of Jarvis, J. in Naccarato v. Naccarato, 2017 ONSC 6641 at para. 5:
It is axiomatic that any order for possession of the matrimonial home should focus on the children’s well-being and stability and remove them as much as possible from their parents’ conflict. Perpetuating a conflict-filled environment cannot be best for children. The court must be cautious though that allegations of conflict are not made on specious grounds or purposed to misrepresent the facts so as to enable a party to “win”.
[93] Both parties in the case at bar seek an order for exclusive possession of for themselves. It may be inferred from this that they are each of the view that their continued cohabitation in the matrimonial home is impractical and that it would threaten the well-being of the children.
[94] As I have ordered equal parenting time on an interim interim without prejudice basis, the children will spend half their time in the matrimonial home with the parent possessing it, and the other half with the other parent in separate accommodations. The best interests of the children are therefore a neutral factor in determining which party should be awarded exclusive possession of the matrimonial home on an interim interim without prejudice basis pending a case conference.
[95] The father points out that, in the context of exclusive possession, “violence” has been read to include intimidation, emotional abuse, and efforts by a dominant partner to engage in psychological warfare, citing Kutlesa v Kutlesa, [2008] O.J. No. 1157 (S.C.J.) at para 31.
[96] The father submits that the mother’s actions in invoking the Mental Health Act to cause him to be twice removed from the home for involuntary admission to Grand River Hospital for psychiatric observation and in involving the police on two occasions constitute intimidation and psychological warfare against him.
[97] However, it is noted that the father cites the mother’s conduct in this respect in support of his submission that he cannot reasonably be expected to share a home with the mother following these actions on her part.
[98] It is unnecessary to make a finding as to whether the mother’s conduct rises to the level of “violence” as it is relevant only to the question of whether it is impractical or not in the best interest of the children that the parties continue to cohabit in the matrimonial home. I am of the view that the level of conflict between the parties is such that that is the case.
[99] The issue therefore is left to be resolved on the remaining factors being the financial positions of both spouses and the availability of other suitable and affordable accommodations.
[100] The parties had not exchanged Financial Statements at the time the cross-motions were launched and the supporting affidavits were sworn/affirmed. However, I was advised by counsel that Financial Statements have now been exchanged.
[101] Counsel have advised that the father’s 2020 income was the sum of $340,000. The father says that his average annual income over the past three years was the sum of $230,607. The mother, when working, earned $60,000 per year. She is currently on maternity leave during which she receives $1,300 per month.
[102] Commencing November 1, 2021 the father began voluntarily paying table child support based upon his average income over the past three years in the sum of $230,607, in the sum of $3,044 per month.
[103] The mother has been paying the cost of heat, hydro, and internet service in respect of her current occupation of the matrimonial home, and the father, as the registered owner of the home, has been paying for the mortgage, property taxes and insurance, totaling $2,662.91 per month.
[104] Although not in the affidavit material, counsel for the mother advised that she is currently residing with the four children with a friend, occupying two bedrooms of a four-bedroom home.
[105] The mother deposed in her affidavit that, in addition to the matrimonial home, the father owns four residential properties.
[106] The father deposed in his reply affidavit that the rental properties are not readily available as they are all leased and require 60 days’ notice to remove the tenant. He stated that only one property is solely owned by him while the others are jointly owned.
[107] Subsequent to the exchange of the affidavits counsel determined that at least one of the properties is jointly owned by the father and the mother.
[108] In my view it is clear that the father has significantly more income and resources available to him and is in a better position to secure alternate accommodation which would be affordable to him.
[109] For the foregoing reasons I find that it is appropriate to order that the mother have exclusive possession of the matrimonial home. The mother should be ordered to continue to pay for the cost of heat, hydro and internet service in respect of her occupation of the home pending the holding of a case conference. I decline to order the mother to make periodic payments to the father pursuant to para. 24(1)(c) of the FLA as it is anticipated that appropriate adjustments to account for her possession of the matrimonial home pending a case conference may be made in respect of the father’s spousal support obligation, or alternatively on equalization of the parties’ net family property.
[110] Exclusive possession of the matrimonial home by the mother shall take effect January 1, 2022 to afford the father time to obtain alternate accommodation suitable for him and the children.
Other Relief Sought
[111] The father did not pursue the claim in his notice of motion for documentary disclosure by the Children’s Aid Society of the Regional Municipality of Waterloo.
Disposition
[112] For the foregoing reasons it is ordered as follows:
On an interim interim without prejudice basis:
The applicant and the respondent shall have parenting time with the children N.J.D. (identification and date of birth redacted for publication) and V.M.D. (identification and date of birth redacted for publication) on a rotating 2-2-3 parenting time schedule commencing December 6, 2021 with exchanges to take place at 8:30 a.m. at the respondent’s residence unless otherwise arranged. The children shall reside with the applicant from December 6, 2021 at 8:30 a.m. to December 8, 2021 at 8:30 a.m. The children shall reside with the respondent from December 8, 2021 at 8:30 a.m. to December 10, 2021 at 8:30 a.m. The children shall reside with the applicant from December 10, 2021 at 8:30 a.m. to December 13, 2021 at 8:30 a.m. The 2-2-3 rotation for the children’s residence shall switch in the week commencing December 13, 2021. The rotation shall continue on this basis until further order of the court;
The respondent shall have exclusive possession of the matrimonial home municipally known as 33 Goldschmidt Crescent, Baden, Ontario N3A 4R5 and of its contents (excepting the applicant’s exclusive personal belongings) commencing January 1, 2022;
The applicant shall make payment of the following expenses to maintain the matrimonial home: mortgage instalments, property taxes, property insurance, and repairs and maintenance necessary to maintain the integrity and reasonable habitability of the home;
The respondent shall make payment of the costs of heat, hydro and internet service during her period of occupation of the matrimonial home;
On a temporary basis:
Neither party shall speak negatively about the other parent or members of their extended families, in any communication with the children or in their presence or involve the children in the parties’ dispute or adult issues. The parties shall use their best efforts to encourage any person coming into contact with the children, including their extended families, to maintain the same standard, refraining from speaking negatively about the other parent or extended family to, or in front of the children;
The parties shall encourage and support each other’s parenting time with the children and recognize the children’s need for a good and ongoing relationship with both parents and their extended families;
Each party shall immediately provide to the other a list of all upcoming appointments with medical or other professionals that they have scheduled for the children, all activities that they have enrolled the children in, as well as all of the details necessary to ensure that the other parent knows when and where those appointments and activities are to take place;
In the event that a party schedules an appointment for a child to be seen or to receive service from a professional (ie. family doctor, specialist physician, therapist, dentist, etc.) that party shall promptly notify the other party that this has been arranged and shall provide the details including date, time and location;
Both parties have the right to make emergency medical decisions respecting a child while he/she is in their care;
In the case of a medical emergency involving a child, every effort shall be made by the party in whose care the children are by immediate telephone call, text message or email to notify the other party at the time of an emergency visit to a physician, specialist or hospital, as soon as it is feasible to do so. The location of the children shall be provided and the party who is not with the children shall have the right to attend;
Unless otherwise agreed in writing by the parties, the children’s health cards shall travel with them between the parties’ residences;
Each party shall be entitled to consult with and obtain information and records from all professionals and service providers involved in the children’s care (ie. family doctor, specialist physician, therapist, dentist, etc.) about the children’s health and general welfare;
In the event that any professional involved with a child requires the consent of the other party before providing information to him or her, the other party shall execute all necessary consents immediately upon request;
The applicant’s motion that the respondent’s parenting time with the children be supervised is dismissed;
The applicant’s motion for police enforcement of this order is dismissed;
The applicant’s motion for disclosure of records by The Children’s Aid Society of the Regional Municipality of Waterloo is dismissed, without prejudice to either party moving for such relief in the future;
The matter shall proceed to a case conference as soon as possible, to be determined by the Trial Coordinator. As the matter is considered to be urgent, the Trial Coordinator is requested to give it priority in scheduling a case conference to the extent possible.
Costs
[113] Without having the benefit of submissions from counsel, given the mixed success achieved by the parties, it appears that in all of the circumstances the parties should bear their own costs of this matter. However, if either party wishes to argue for an award of costs against the other party they may do so by written submissions within 14 days of the release of this Endorsement. The party against whom an award of costs is sought shall have 10 days thereafter to respond to any such submissions. The party seeking costs shall have the right to deliver reply submissions within a further 5 days.
[114] The initial submissions of each party shall not exceed five (5) double-spaced pages (exclusive of attachments such as Bills of Costs and Offers to Settle). Any Reply submissions shall not exceed three (3) double-spaced pages. The submissions shall be sent via email to Mona Goodwin, Judicial Assistant at Kitchener at the email address used for the release of this Endorsement.
[115] If the parties are able to settle the issue of costs (which is strongly encouraged) or if a party does not intend to make written submissions on costs, or to deliver reply submissions on costs, counsel are requested to advise the court accordingly.
D.A. Broad, J.
Date: November 30, 2021