COURT FILE NO.: FS-17-8787-M1(Owen Sound)

DATE: 2021 12 10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glenda Anne McInnes, Applicant

AND:

Matthew Christian Fritz, Respondent

BEFORE: Justice J.R. Sproat

COUNSEL: S. Arnold, for the Applicant

R. Shankar, for the Respondent

HEARD: November 19, 2021

ENDORSEMENT

INTRODUCTION

[1] The parties entered into Minutes of Settlement on September 20, 2018, the terms of which were incorporated in a consent final order dated May 15, 2019. This order provided that the parties would have close to equal parenting time.

[2] Ms. McInnes then, on July 4, 2019, brought a Motion to Change the final order. In March, 2020 Ms. McInnes changed Mr. Fritz’s parenting time to strictly weekend access citing pandemic related concerns.

[3] Mr. Fritz now seeks a temporary order for equal parenting time. Ms. McInnes argues that the special needs of their two boys are such that equal parenting time would not be in their best interests.

[4] Ms. McInnes seeks to maintain the current parenting schedule and also seeks an order regarding parenting time at Christmas.

THE EVIDENCE

[5] The May 15, 2019 consent final order respecting parenting time with Christian age 9, and Hudson age 6, was structured to accommodate Mr. Fritz’s work schedule. At the time Mr. Fritz worked two weeks on a day shift, then two weeks on an afternoon shift and then two weeks on a night shift. In a six-week period his parenting time was approximately 42 percent of the total time.

[6] Given Mr. Fritz’s scheduled shifts, it would then have been difficult to implement equally shared parenting time.

[7] When Covid-19 struck, Ms. McInnes took the position that Mr. Fritz was not following public health directives. By counsel’s letter of March 26, 2020 Ms. McInnes advised that “the residency schedule must be suspended for the immediate future”. She offered daily video visits and time every weekend. Mr. Fritz reluctantly agreed to the change in schedule. It was, however, also agreed that Ms. McInnes would not rely on this change as establishing a new status quo.

[8] There is conflicting evidence as to whether Mr. Fritz was at all times in perfect compliance with public health guidelines and restrictions. Ms. McInnes cites examples which she contends demonstrate disregard of guidelines and restrictions. She points out that Mr. Fritz visited his mother in Mt. Forest, Wellington County, at a time when Wellington County was a red zone. She suggests that he and the children attended a large gathering at Thanksgiving, 2020. Ms. McInnes’ mother filed an affidavit indicating she has driven past and seen Mr. Fritz’s car in his mother’s drive on “numerous” occasions since fall, 2020.

[9] Ms. McInnes’ sister filed an affidavit attesting to similar observations of Mr. Fritz’s vehicle at his mother’s. She also attached a photo taken on March 13, 2021, a date when she says Wellington County was a “red zone” and Grey County a “green zone”, showing Mr. Fritz’s vehicle in his mother’s drive.

[10] Mr. Fritz filed a responding affidavit. As regards Covid-19, he refuted Ms. McInnes’ allegations. He attached a photo taken at Thanksgiving, 2020 to demonstrate he and the children did not gather with others. He also pointed out that it is a short walk from his mother’s home to Grey County.

[11] Mr. Fritz maintains that he has been in compliance. At no time has he questioned the wisdom and validity of public health requirements and recommendations. As such, I proceed on that basis, and order that both parties act in compliance with public health guidelines and recommendations.

[12] Ms. McInnes suggested that Mr. Fritz should have three of four weekends, one evening visit per week when he is not working afternoons, and PD days at school if he is available. Ms. McInnes supports her position citing the special needs of the boys.

[13] Christian has learning challenges due to a genetic condition. The school reports and related documents indicate he is a delightful young boy. He is described as kind, helpful and collaborative. Hudson also has learning challenges. The school reports also refer to positive aspects of his character such as being enthusiastic and demonstrating responsibility. Their report cards reflect improvement between 2019 and today.

[14] Ms. McInnes attributes their improvement at school, in large part, to the fact she has more parenting time and there are fewer transfers and opportunities for disruption.

[15] Mr. Fritz attributes the improvement to the fact that Christian has been seen by various health care professionals; he has had a psychological assessment; the school has assigned him an educational assistant; and crafted an Individual Education Plan for him.

[16] Hudson also has learning delays and is being seen by an array of health care professionals.

[17] There has been a great deal of conflict between the parties over the children’s education and health care. For example, appointments made by one party and then cancelled by the other.

ANALYSIS AND CONCLUSION

Introduction

[18] These are difficult issues for parents and the court. Whereas I am sure both parties will disagree with aspects of my decision, they need to implement it acting reasonably and cooperatively as that is in the best interests of Christian and Hudson.

Educational and Health Care Decisions

[19] While neither party sought an order in relation to health care and education a lot of the affidavit evidence was devoted to conflict in these areas. I think that reducing the potential for conflict is an important component of adjusting the amount of parenting time. As I will later explain, I accept Mr. Fritz’s arguments regarding moving to equal parenting time. To make this work I am, therefore, also going to make a temporary order respecting health and education.

[20] Ms. McInnes has had the greater role in attending to educational and health care needs. As such, I make a temporary order that she have sole responsibility for educational and health care decisions, acting reasonably in light of the expert advice she receives. She shall immediately advise Mr. Fritz when she makes any appointments as that will maximize his chance of being able to attend. She shall immediately share any information she receives and advise him of any decisions that she makes.

[21] So there is no uncertainty, Ms. McInnes’ decision making responsibility does not extend to making any change to the parenting time schedule. For example, she cannot suspend parenting time for Covid-19 or other health reasons.

[22] My hope is that designating one person to be responsible for education and health care will reduce the conflict and distrust that has existed.

Parenting Time – Christmas Schedule

[23] The Divorce Act provides that, “the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[24] Turning to the issue of parenting time, my focus is on the best interests of the children. In 2019 the parties agreed to a parenting schedule that was almost 50:50. All that changed when Covid-19 intervened. Christian and Hudson are making significant progress at school. The evidence, however, points to this being the support received from various health professionals and the school board.

[25] The parties have in the summer and holidays followed a week about schedule, so the children are accustomed to an equal parenting time arrangement.

[26] I conclude that it would be in the best interests of the two boys to, in essence, return to the pre-pandemic roughly equal parenting time that they both consented to in September, 2018. I do not think that would compromise the progress the children are making at school.

[27] Mr. Fritz now works two weeks on day shift followed by two weeks on afternoon shift. While Mr. Fritz did not set out his proposed schedule in detail, I understand him to be suggesting that the parties should have parenting time while he is on day shift as follows:

a) Mr. Fritz commencing on Sunday at 7:00 p.m., prior to the Monday of his next scheduled day shift until drop off Friday at school;

b) Ms. McInnes from Friday after school to Sunday 7:00 p.m.;

c) Mr. Fritz Sunday 7:00 p.m. to Sunday the following week at 7:00 p.m.

[28] When Mr. Fritz has two weeks on the afternoon shift, he submits the parenting schedule should be as follows:

a) Ms. McInnes from 7:00 p.m. on Sunday prior to the Monday of Mr. Fritz’s next scheduled afternoon shift until drop off Friday at school;

b) Mr. Fritz from Friday after school to Sunday 7:00 p.m.

c) Ms. McInnes Sunday 7:00 p.m. to Sunday the following week at 7:00 p.m.

[29] I agree and order a parenting schedule as set out above. I also order that the parties facilitate a telephone or video chat of up to 30 minutes for Tuesday and Thursday evenings between the boys and the parent not residing with them at the time. If the parties consent, they can vary this order to fine tune things like pick up or drop off times.

[30] This new schedule shall take effect after school on Friday December 17, 2021. Notwithstanding this schedule, the party who would otherwise not have the boys on Christmas day shall have parenting time December 24 at 3:00 p.m. to December 25, 2021 at 3:00 p.m.

[31] The parties are encouraged to reach an agreement on other holiday access. They should be able to adapt what they agreed to in the May 15, 2019 consent order to the current circumstances.

[32] Transfers other than by drop off or pick up at school shall take place at the Shell station in Flesherton.

Other Issues

[33] Mr. Arnold asked that the Office of the Children’s Lawyer be appointed. Christian and Hudson are receiving support from a long list of educational and health professionals. Ms. McInnes agrees there have been positive results. At this stage, I think additional professional involvement would be more of a burden than a benefit to Christian and Hudson.

[34] Mr. Arnold also asked for an order requiring the parties to retain a parenting professional. Similarly, with a simplified parenting time schedule, and with responsibility for health and education vested by Ms. McInnes, I do not see the need for the parties to incur the expense of a parenting professional.

CONCLUSION

[35] With the increase in Mr. Fritz’s parenting time comes additional responsibilities. Christian and Hudson need stability, encouragement and support to continue to progress at school. It is, therefore, up to Mr. Fritz to ensure that when the boys are with him, any additional support requested by the school or health care professionals is provided so that the boys can take full advantage of the supports being provided to them.

[36] If the parties cannot agree on costs:

a) Mr. Fritz to provide cost submissions by December 17, 2021;

b) Ms. McInnes to provide cost submissions by December 31, 2021;

c) Reply, if any, by January 10, 2022.

Sproat J.

December 10, 2021