COURT FILE NO.: FC-19-1317 DATE: 2022/01/10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JESSICA MORIN-VERTONGEN Applicant – and – DAVID ELLIOT GREGORIS Respondent
Deanna Paolucci for the Applicant John Summers for the Respondent
HEARD: Trial on November 23 to 26, 29 to 30, December 1 and 3, 2021.
decision
Audet J.
[1] By the time this trial was heard, the parties had resolved all issues in dispute between them, with the exception of the parenting plan that would be in their three daughters’ best interest. This trial, therefore, dealt with the single issue of parenting.
The Parties' Position
[2] The mother seeks to implement a joint decision-making regime in which both parties must consult with one another and make decisions together on all issues related to the children, with the following exceptions:
- If the parties cannot agree on a medical decision to be made, the mother will have final say. She will also be responsible for scheduling all medical appointments for the children; and,
- The children will remain in their current school until they graduate. Upon graduation from their current school, they will be registered in a French program at a school within the mother’s catchment. If the parties are unable to agree on the school, the child will have final say.
The mother asks that the children continue to be in her primary care, and proposes a parenting schedule which would be implemented in two phases, with the final one – beginning in February 2022 – providing the following:
- The children would be in their father’s care every Thursdays, overnight, and every second weekend from Friday after school to Monday morning before school or until 3:30 p.m. on the Monday if it is a holiday or PD day;
- The Thursday overnight visit (preceding the mother’s parenting weekend) would be optional for the oldest child;
- Each parent would share important holidays (Christmas, March Break, long weekends and Halloween) on a rotational basis from year to year; and,
- The regular parenting schedule would remain in place during the summer with each parent having the option to take two non-consecutive weeks of vacation with the children [1].
[3] The father also seeks an order granting both parents joint decision-making responsibility for all important decisions related to the children, with meaningful consultation before making them, but if the parties cannot agree on a decision, the following would apply:
- The mother would make decisions related to education and religion;
- The father would make decisions related to paramedical and medical issues including counselling. The father would also be responsible for scheduling all medical appointments for the children (regardless of whether the parties agree on medical decisions or not); and,
- Both parents would make decisions about the activities that occur during their respective parenting time with the children.
[4] In terms of parenting time, the father seeks to implement an equal time-sharing arrangement in accordance with a 2-2-5-5 regime, in which he would have the children in his care every Monday and Tuesday as well as every other weekend (Friday to Monday morning) and the mother would have the children in her care every Wednesday and Thursday as well as every other weekend. The father does not want this schedule to change for any reason at all, including during any holiday or school break, and prefers to let those holidays “fall where they may”, knowing that over the years each parent will be able to enjoy all holidays with the children eventually, and equally.
Background
[5] The parties started living together in September 2001, married on July 21, 2007 and separated on July 15, 2017. They have three children together; EM. G., who was born in May 2009 (now 12); El. G., who was born in July 2012 (now 9); and M.G., who was born in August 2016 (now 5). At the time of the parties’ separation in July 2017, the children were 8, 5 and 1, respectively.
[6] Although fluently bilingual, the mother is francophone and this is the language that she uses to communicate with the children. Although he understands and speaks some French, the father is anglophone and this is the language that he uses to communicate with the children.
[7] When the mother gave birth to the parties’ first child, she stopped working outside of the home and became a full-time homemaker, taking care of the children and the household while the father worked full-time and provided for the family financially. The mother home-schooled EM. G. until the end of Grade 2, El. G. until the end of Grade 1, and M.G. until the end of kindergarten (for M.G., the mother’s decision to homeschool her for her first school year was prompted by the pandemic).
[8] At one point the father found himself in a very toxic work environment which led to his being diagnosed with situational depression on or about 2016, and he stopped working for several months. By June 2017, the mother felt that she was unable to provide the father with the kind of support he needed to improve his mental health and in June 2017, he left the matrimonial home and moved in with his parents in Milton, Ontario. The father’s mental health struggles and other challenges in the parties’ relationship led to their separation on July 15, 2017.
[9] At the time the father moved to Milton, and until he returned to Ottawa four months later (in October), the children remained in the mother’s sole care and the father had very little contact with them. Upon his return to Ottawa in October 2017, the father moved in with roommates. Between October 2017 and August 2018, the father saw the children generally three times per week, for a few hours each time, either at the mother’s home or in a nearby park. The days and times were arranged between the parents and moved around to accommodate the father’s work schedule and other events occurring in the parties’ and the children’s lives.
[10] On or about August 2018, the father expressed the wish to have increased parenting time with the children and a fixed parenting schedule. The parties eventually agreed on the father having the children in his care on Tuesdays and Thursdays from after EM. G. and El. G.’s school until 8:30 p.m., and on Sundays each weekend. On or about that time, the father began a relationship with his current partner, Dayna Winter, who at the time lived outside of Ottawa. They moved in together on or about February 2019 and they continue to reside together in a home located in Ottawa South, roughly 20 kilometres from the children’s school.
[11] From the Fall of 2018 until December 2019, the father became more insistent on increasing his parenting time with the children and on incorporating overnight visits gradually into the schedule. The mother, however, was very resistant to overnight visits, or to increased time between the father and the children. She maintained that the children were too young, and that EM. G. and El. G. felt very anxious before and after their parenting time with their father, showing physical signs of stress (tummy aches, headaches, crying). In the mother’s view, the children were not ready to spend more time with their father or overnights at their father’s house, and she insisted that El. G. and EM. G. needed emotional support through counselling to transition to a new parenting schedule that would include overnights at their father’s.
[12] I find as a fact that until the summer of 2018, the parties had a relatively amicable relationship. However, as time passed the father began to resent the mother’s ongoing refusal to allow increased and more meaningful parenting time between him and the children, something he felt was unreasonable and unwarranted. He became less inclined to accept what he considered to be unilateral decisions on the mother’s part in relation to the children’s care and became more insistent on taking his rightful place as an equal parent to them. As a result, his frustration grew, the parties’ relationship deteriorated, and conflict arose more frequently. The situation worsened considerably in February 2019 after an altercation between the father and the maternal grandmother became physical and led to a complaint to the police and the involvement of the Children’s Aid Society (“the CAS”) with the family.
[13] In its closing letter dated May 3, 2019, the CAS verified that the children had been exposed to the incident between the maternal grandmother and the father, and that based on their interviews with the children it was not the first time they had been exposed to conflict between them. To limit the impact of such conflicts on the children, the CAS recommended that the exchange of the children take place in a public place, and that the exchanges be made by the mother and father themselves, or by a third party other than the maternal grandmother. Finally, it was recommended that EM. G. be seen in counselling as she presented with signs of distress, at times, that could be explained by the family situation.
[14] As a court application had by then been commenced by the mother, following unsuccessful attempts by the parties to resolve their dispute through mediation, a first case conference was set to proceed on December 19, 2019. On that day, however, the parties agreed to an adjournment on terms which included a without prejudice parenting schedule providing the father with parenting time with the children every Tuesdays from after school to 7:30 p.m., and every second weekend from Saturday at 10 a.m. until Sunday at 7:30 p.m. The parties also agreed that El. G. and EM. G. would begin regular therapy sessions at a clinic located by the mother. Despite the father’s ongoing requests, the mother was not prepared to agree to a parenting schedule that would provide the father with increased parenting time during the holidays, school breaks or the summer, but she agreed to allow the children to visit their paternal grandparents in Milton with their father (which included at least one overnight) in early December 2018, and she was agreeable to the children spending Christmas Eve and Christmas Day (no overnight) with their father.
[15] At the return of the case conference on January 13, 2020, the parties agreed to the appointment of the Office of the Children’s Lawyer (“the OCL”). Despite their earlier agreement on a fixed parenting schedule, but in the absence of a comprehensive agreement or court order detailing how decisions affecting the children would be made, the conflict between the parents perdured. Decisions related to the children, no matter how big or small, could rarely be made as the parents disagreed on just about everything, each decision generating a lengthy and mostly unproductive email debate between them.
[16] Despite the parents’ agreement to have EM. G. and El. G. begin counselling sessions as early as November 2018, they could not access those services until the summer of 2020 for a number of reasons, the main one being that the parents could not come to terms on the choice of the therapist or the specific mandate to be given to her. When El. G. and EM. G.’s counselling sessions were terminated after a few sessions in the summer of 2020 because they no longer wished to participate or engage with that particular therapist, it took another full year before the parties were able to agree on another therapist who finally resumed counselling sessions with EM. G. in the summer of 2021.
[17] Throughout that time, the father continued to insist on an equal parenting schedule and to assert himself as an equal parent on all matters affecting the children, and the mother continued to push back, raising ongoing and persistent concerns about the children not being ready, not wanting to spend more time with their father and showing significant signs of anxiety and stress before and after their parenting time with their father. EM. G., in particular, became much more vocal about having to spend more time with her father and about the various challenges she faced in her relationship with him.
[18] On July 30, 2020, the OCL released its assessment report and recommended the following:
- Sole decision-making responsibility to the mother, after she has meaningfully consulted with the father and considered his point of view on any decision to be made;
- Primary residence with the mother;
- Parenting time to the father as follows, once he has successfully engaged in counselling with EM. G. and El. G.;
- Every second weekend from Friday after school until Monday morning;
- On Tuesday after school to Wednesday morning before school the week following his weekend with the children (in other words, every other week);
- The parents to share the holidays (no specific schedule suggested); and,
- The father to have two non-consecutive weeks of vacation during the summer.
[19] The clinical investigator also made a number of other recommendations meant to improve the co-parenting relationship, including that both parents complete a parenting through high conflict divorce course and that El. G. and EM. G. continue participating in therapy. Of particular importance is the following comments the clinical investigator made at the end of her report in relation to the children’s mental health:
As for the children, EM. G. seems to be the most affected by the separation. This affirmation comes from what she shared with various professionals including this clinician during our interviews. The schoolteacher stated: "EM. G. shared with me that she finds it difficult to visit her father. She complains of stomach aches or headaches frequently when she knows she will be going to her father's house in the evening. She cried when sharing this to me, but she never gave details. She says she's going to daddy's and she doesn't like it. This happens about once a week". During a private conversation with her family doctor, EM. G. told her that "the evenings when she has to transition to her father's house are when she has a headache ... EM. G. also worried of not being listened to, and of having her needs met". Following CAS investigation in January 2019, it was recommended that EM. G. be seen in counselling as she presented with signs of distress, at times, that could be explained by the family situation. Lastly, this Clinician and EM. G.'s Counselor's also noticed that EM. G. appeared to be the most affected by the separation, and she gets emotional when talking about it. EM. G.'s discomfort in her relationship with her father seems to be linked to some past events and some current behaviors on her father's part that do not seem to meet her needs, as per the child's comments. Mr. Gregoris admitted that he wants to learn more about EM. G.'s personality, to be a better listener to offer better support to her. This goal could be achieved with the help of a Counselor or Therapist, and it is crucial to take this step to reduce EM. G.'s level of anxiety and ensure the success of the recommended parenting plan.
[20] El. G. had also expressed the same feelings as EM. G., but not as strongly. However, she also talked about having a preference to be with her mother as she found her father to be less receptive and less sensitive to their needs. As for M.G., the clinician felt she was too young to comprehend the complexity of the situation.
[21] The following comments made in relation to the mother are also noteworthy:
This Clinician had relied on the comments that emerged during the investigation regarding the father's relationship with the older children, however, she also believes that the mother has work to do on her side to allow the care plan and communication between parents to be more effective. Ms. Morin should encourage the children to respect the rules put in place by the father at his house, even if they are different from hers, knowing that the father also loves and cares for them. The mother is also invited to encourage the children to report the good times spent with the father. In a context of separation and divorce, the way the children act often has a direct link with their perception of the relationship between the parents. Ms. Morin is encouraged to find a qualified Counselor or Therapist who will be able to better guide her in achieving these objectives.
[22] At the time of the OCL investigation, and at the time of this trial, the children were in their father’s care every second weekend, from Friday after school until Sunday night, and every Tuesday from after school to 7:30 p.m.
Legal Framework
[23] Section 16.1 of the Divorce Act states 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 (“a parenting order”). Pursuant to subsection 16.1(4), the allocation of parenting time is made in accordance with section 16.2, by way of a schedule, and the allocation of decision-making responsibility is made pursuant to section 16.3. That section provides that decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse or to both spouses.
[24] According to section 16 of the Divorce Act, when making a parenting order, the court is required to take into consideration only the best interests of the children, giving primary consideration to their physical, emotional and psychological safety, security and well-being in relation to the following factors:
(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 [2].
Judicial Interview with EM. G.
[25] There is now a strong trend towards greater participation of children in court processes affecting them. The recent amendments to the Child, Youth and Family Services Act, the Children’s Law Reform Act and the Divorce Act recognize the central importance of children’s participation in the adjudicative processes affecting them, and of their right to have their views, preferences and voices heard. This is consistent with Canada’s obligations under the UN Convention on the Rights of the Child, which have been recognized and repeated by the courts in countless cases (including in Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 and Office of the Children’s Lawyer v. Balev, 2018 SCC 16).
[26] Much of the evidence presented during this trial related to EM. G.’s views and preferences expressed to various adults, including the OCL, because of the three children, she is the oldest and the one who voiced her views, needs and preferences in relation to her parents much more loudly. Although the Divorce Act does not contain any specific provisions to that effect, section 64 of the Children’s Law Reform Act now specifically provides that a child’s views and preferences may be obtained by the Court by way of a judicial interview.
[27] This was particularly relevant in this case because EM. G. expressed the wish to have an opportunity to speak to me directly about her views and preferences, a request that I granted her after having heard all of the evidence, at the end of the trial. For oral reasons given on December 1st, I concluded that there were good reasons for me to speak with EM. G. even though her views and preferences had been relayed to me via various sources including the OCL, her counsellor, her parents and other adults involved in her life who testified during this trial. In particular, I expressed that there was a clear disconnect between EM. G.’s statements to these adults, and observations of how she actually behaves when she is with her father, as reported by the father and other witnesses who testified on his behalf. In addition, the clinical investigator’s own observations of the children during the observation visit that she conducted at the father’s home were somewhat inconsistent with EM. G.’s subsequent statements to her during her interview.
[28] More importantly, a year and a half had past since the OCL’s last contact with EM. G., she was older, had been spending every second weekend (two overnights) with her father for quite some time now (at the time of the OCL’s investigation, the change in the parenting schedule was fairly new), and she had been in counselling for a few months. All of the above, in my view, justified granting EM. G.’s request for a judicial interview.
[29] The interview occurred on December 17, while EM. G. was at school and in the presence of only her counsellor Ms. Juliann Rochette (in addition to the court reporter). The parties and their counsel were not present, but the judicial interview was recorded and, as ordered on December 1st, the recording has been sealed and shall not be made available to the parents or the public without my express leave.
Analysis
[30] This is not a case where one parent accuses the other parent of negligence, poor parenting skills, abuse or other personal or health issues making them an inadequate parent. This case also did not turn on credibility. I found both parents to be credible and I found both their testimony to be truthful, honest and reliable.
[31] I find that both parties are caring, loving and highly motivated parents who want the absolute best for their children. It is obvious to me that these parents love their children deeply, and that they both want to spend as much time as possible with them and have a meaningful relationship with each one of them. I found that both parents had excellent parenting skills and that they were both willing and able to provide the children with a healthy home environment with proper routines, stability, discipline and a wide variety of activities and learning experiences.
[32] But this case does not turn on who is the better parent. This case is about two parents’ very different parenting styles and their – often – completely opposite views of what their children need from a health, educational, emotional and social perspective. In fact, these parents’ parenting styles and views of their children’s needs are in many ways at the opposite ends of the spectrum.
[33] The mother is a gentle, soft-spoken individual whose entire life revolves around her children and their every needs. She is very affectionate, nurturing and comforting. She is an indulgent parent who listens to what the children have to say and who is very attuned to their emotional needs. Although there is discipline in the mother’s home, her disciplinary methods consist mainly in discussing with them around her expectations on appropriate behaviour, rarely resorting to punishments (such as time outs). I cannot envision this mother ever raising her voice with the children.
[34] The evidence before me however supports the conclusion that the mother can be overprotective and hyper-vigilant. The mother’s gatekeeping behaviors and refusal to allow more meaningful parenting time between the children and their father have led him to more firmly assert his rights as a parent, particularly once he entered into a relationship with his current partner, Ms. Winter, and achieved more balance in his life. His very opposite views of what the children needed, particularly from a health and emotional perspectives, and the conflict that resulted from the parties’ entrenched views, led to the children’s complete inability to access much needed services in a timely manner.
[35] The mother chose to homeschool EM. G., and then the other two children, despite the father’s objections. She consults with health professionals whenever she sees a potential health issue, big or small, frequently seeking more than one legal opinion before making a final decision on the treatment to be administered. She was resistant to the children getting their immunizations in accordance with the schedule recommended by their doctor and chose to follow a different schedule based on her own research and the information and advice received from natural health practitioners. When EM. G. became eligible to get her COVID vaccine recently (at age 12), she arranged for her to meet with a nurse practitioner and allowed her to make her own decision about whether to get vaccinated or not (she did).
[36] The mother’s tendency to be overprotective, hyper-vigilant and to act as a gatekeeper was clearly evidenced by her request that Ms. Winter provide a police records check as a pre-condition to the children spending more time with their father, her objections to Ms. Winter picking up the children from school when their father was unable to do so (when she had been his partner for over a year), and her refusal to allow increased and/or overnight visits between the children and their father for an unreasonable amount of time (these are only a few selected examples among many others).
[37] Although M.G. was only two years old in the Fall of 2018 when the father started asking for more meaningful time, EM. G. was 9 years old and El. G. was 6 years old. These children were unquestionably old enough to spend at least one overnight in their father’s care every week, and the mother’s refusal to allow more meaningful parenting time (until the father threatened a motion) is difficult to justify for anything other than hypervigilance. Nonetheless, it is abundantly clear that the children, who had been in their mother’s primary care since they were born, had a very difficult time separating from her at that time.
[38] The father, on the other hand, is an active and strong-minded individual who currently works as a construction project manager. As a result of his mental health struggles and following the parties’ separation, he has made important changes in his lifestyle which according to him have allowed him to achieve a more balanced life (he became more healthy, adopted a vegan diet, started to do yoga and volunteer work). While he obviously loves his children and cares for them deeply, he is more authoritarian in his approach to parenting, and together with his partner they seem to have espoused a much more “textbook style” of parenting.
[39] The father has high expectations for achievement and maturity from the children, and wants them to become more independent, confident and self-determined, maybe a little more quickly than they are able to handle, particularly for EM. G.. There are clear rules and expectations in the father’s home around certain behaviours which are different than in the mother’s home, and which bring about harsher consequences from EM. G. and El. G.’s perspective, something they have not been used to throughout the years they were in their mother’s primary care.
[40] M.G. being required to sit alone outside at the patio table until she eats the last bit of zucchini in her plate, El. G. being punished for not having a good attitude during a bike ride, or EM. G. being punished for misbehavior by being required to stay in her bedroom for several hours, are examples of the father’s different approach to parenting and expectations around behavior.
[41] Because the children have been in their mother’s primary care since they were born, and then in her almost full-time care for almost three years post-separation, it is no surprise that they did not ease into their father’s parenting approach without significant difficulty, particularly for EM. G. and El. G. who are older. According to the mother, EM. G. and El. G.’s struggles with their father’s parenting style started well before the parties separated and were exacerbated by the father’s mental health struggles during the year immediately preceding their separation.
[42] Both EM. G. and El. G. have reported to the OCL clinician important strains in their relationship with their father, particularly from an emotional perspective. EM. G. reported that she feels hurt when her father gets angry with her, and that this happens often. She stated that he does not listen, asks them lots of questions and forces them to answer. She indicated that the rules at her father’s home included that she was not allowed to go in the living room or into her father’s bedroom and could not console her sisters when they were feeling badly. While EM. G. recognized that her father loved her, she explained that sometimes he was not nice and that she hoped he and Dayna would become kinder and more flexible. EM. G. was clearly the witness of the physical altercation between her father and maternal grandmother, to whom she is very close, and this appears to have left deep scars in her perception of her father. She is also aware of the conflict that seems to exist between the father and his extended family members.
[43] El. G. also reported difficulties adapting to her father’s parenting style, although she was less vocal than her older sister. She stated that her father did not listen and that when M.G. cried, he did not try to console her. El. G. also reported that her father sometimes yelled at her and that if she had a magic wand, she would make him nicer. She confirmed that her mother provided her with comfort when needed, but not her father, and when asked if she had ever tried to tell her father how she felt, El. G. answered that she was afraid that he would just yell at her. While she indicated that her father was “kind of nice”, she added that she “liked her mummy more than her daddy”.
[44] EM. G. has also reported to various adults, including her therapist Ms. Rochette, that when she had tried to share her feelings with her father, he had either dismissed her, yelled at her or mocked her. It is important to note at this juncture that, as recommended by the OCL clinician, the father arranged for reunification therapy sessions to begin between him and EM. G. in the Fall of 2021. At the time of the trial, they had had three therapy sessions together at the father’s home. Unfortunately, these did not go well at all.
[45] During the first two sessions, EM. G. refused to participate or to engage in any way. She was encouraged to draw and do other things as the sessions went on. During the third session, given that she was still refusing to participate, the therapist asked to speak to EM. G. privately. At the end of their private conversation, it became obvious to EM. G. that her father had – inadvertently or not – overheard part of her conversation with the therapist, which really upset her. EM. G. reported that after the therapist left, she was so upset that she was “shaking with emotions” and she told her father how upset she was. However, her father’s response was to confront her with the fact that what she had said to the therapist was a lie, and to dismissively laugh at her for making false claims to the therapist. Although the father and his partner denied having done this, their own testimony about this event and the evidence as a whole support EM. G.’s version of what happened. EM. G. made it clear to me that she did not wish to continue with reunification therapy at this time, as she did not feel safe sharing her feelings and emotions in that environment.
[46] I find based on all the evidence before me that the father has a strong tendency to be dismissive of the children’s emotional needs, particularly as it relates to EM. G., and that at times he lacks emotional intelligence in relation to his response to EM. G.’s and El. G.’s voiced feelings and emotional needs. EM. G. was described as a very sensitive child who loves to please others and who gets easily upset if she thinks she has done something wrong. She is very loving, likes to give and receive hugs, and craves the affection of others. Everyone agrees that her parents’ separation has been the toughest on EM. G., as the older and more sensitive child.
[47] EM. G.’s feeling that she is not listened to by her father, that she is not allowed to have emotions around him, that she is being judged – and sometimes ridiculed – for having them, and her difficulty expressing her needs to her father, have been voiced by her to too many adults in her life to be ignored, dismissed or simply blamed on the mother. Moreover, they have been echoed, albeit to a lesser degree, by her younger sister. EM. G. has discussed the challenges that she has in her relationship with her father to the OCL, to her teacher, to her grandmother, to her neighbour Ms. Leblanc, to her counsellor Ms. Rochette, to her friend’s mother, and to me. Ms. Rochette testified in this trial that EM. G.’s difficult relationship with her father has been the focal point of all of her therapy sessions with EM. G.. She has tried to help EM. G. better manage her emotions, deal with conflicts with her father, and communicate better with him in a way that she will be heard by him, but EM. G. has not yet reported any improvement in that regard.
[48] The father’s refusal to allow EM. G. to spend Halloween with her mother this year is a good example of the father’s tendency to dismiss EM. G.’s feelings, preferring to blame EM. G.’s resistance to spending more time with him on the mother and her overprotective ways. Due to the way the regular schedule has worked since the parties separated, EM. G. and her sisters have spent every Halloween with their father for the past three years. This year, EM. G. expressed the wish to spend Halloween with her mother and her friends in that neighbourhood, given that she was getting older and unlikely to celebrate this holiday for very long, and given that she had not been able to do so in three years. Not feeling safe or strong enough to communicate how she felt to her father, and worried of his reaction if she did, EM. G. confided in her counsellor instead. Ms. Rochette then offered to EM. G. to speak to the father about how she felt about spending this Halloween with her mother and EM. G. agreed. The father’s response, however, was very poor (he accused Ms. Rochette of getting involved in custody and access issues, which was none of her business) and EM. G.’s request was ultimately dismissed.
[49] Whereas the children feel like they can express and discuss their emotions freely with their mother, without fear of being dismissed, at their father’s house they are expected to behave in a “more mature way”. For instance, when El. G. lost a necklace given to her by her maternal grandmother while swimming in a lake while in her father’s care, she was very upset. At her mother’s home she voiced how hurt she had been by her father and Ms. Winter suggesting that the necklace was worthless and, therefore, not a cause for such an emotional outburst. Although both the father and Ms. Winter downplayed the impact of their words on El. G., Ms. Winter’s post on social media in relation to this event suggests that she and the father were indeed quite dismissive of El. G.’s feelings about losing this important token given to El. G. by her grandmother. Ms. Winter’s post read as follows: “At the beach where the 8yo just lost a cheap, meaningless necklace, and having never experienced real loss, all three kids are mourning it as if their entire family and all of their pets have died. ANYWAY MY "VACATION" IS GOING VERY WELL, THANKS.”.
[50] The father’s perspective on medical issues related to the children is also very different than the mother’s. In his view, the mother often sees problems where there are none. For instance, he is of the view that unless an orthodontic treatment is required for medical reasons, EM. G. does not need one. EM. G. expressed feeling quite shy about her teeth because some of her adult teeth, due to a very crowded mouth, have grown over her baby teeth, on top of the gum. In the mother’s view, exploring a treatment plan for EM. G.’s dentition would go a long way in improving her self-image and, as a result, her self-esteem. The father, on the other hand, is of the view that such treatment is entirely unnecessary because it would be purely cosmetic and not based on a medical need. From his perspective, it is the parties’ role as co-parents “to guide our children and support them in building confidence in themselves and with their bodies” and to “avoid overreacting to EM. G.'s normal pre-teen emotions.” Any insecurity and a low self-confidence about her teeth – which he notes he has not noticed in any event – is to be expected and he feels that “expensive cosmetic orthodontics is not the solution for EM. G.’s insecurity about her appearance”.
[51] EM. G. regularly suffers from what she and her mother describe as “migraines”. While the mother was quick – perhaps too much so – to arrange a medical appointment with a doctor to seek a diagnosis on this issue (and to get a second opinion when the first doctor was inconclusive about whether they were migraines or not), the father was dismissive of EM. G. having a medical issue related to migraines. From his perspective, one that Ms. Winter shares and which he states was supported by his discussions with EM. G.’s teacher as well (she did not testify at trial), while EM. G. may have a headache from time to time, which is normal, she uses this excuse frequently to avoid doing things that she does not want to do. In his view, EM. G.’s belief that she suffers from migraines has been ingrained in her mind by her mother’s suggestions that she does, and he (and Ms. Winter) feel very strongly that it is not in EM. G.’s best interest to be made to believe that she has migraines when she does not. Therefore, at her father’s home, EM. G. is not allowed to claim she suffers from a “migraine”, but her “headache” is properly tended to by her father if she has one.
[52] Whether EM. G. suffers from migraines or not ought not have been the focus of so much debate between the parents, in my view. What is important is that EM. G. gets the treatment that she needs when she has a headache (whether it is a migraine or a regular headache). What is even more important, however, is for both parents to acknowledge EM. G.’s pain (perceived or real) and to provide her with an environment where she feels safe and comfortable talking about her headaches and the reasons why she might have them in the first place. I find that in her father’s home, EM. G. does not feel like she can discuss this openly. It is not difficult based on all the evidence before me to conclude that there is likely an emotional cause/trigger to EM. G.’s headaches – and to the other signs of physical distress that she experiences, at times, before or after her parenting time with her father – which has not yet been addressed as a result of the parents’ futile debate about whether they are headaches or migraines.
[53] The “teddy bear” incident is another very good example of the parents’ very different parenting styles. In December 2019, when M.G. was only 3 years old, she forgot her beloved teddy bear at her father’s home after her weekend with him. The mother wrote to the father expressing how upset M.G. was to have forgotten her bear at her father’s home and asked if he could bring it to his work the next day (as it is located nearby the mother’s home) where she would pick it up so that M.G. would not have to go without her bear for several days. When the father advised, the next day, that he had not seen the mother’s email on time to take the bear with him at work, and offered her to come pick it up from his home on Sunday if she wished, the mother expressed frustration about the situation and advised that “at this point, she might as well wait until Tuesday”. The father’s reply, which speaks loudly of his very different parenting style, was the following:
“Your approach – removing the stressor or shielding from disappointment rather than help build the skills to overcome them – does disservice to our children. It is our job as parents to help them navigate through hard things. We were able to get M.G. smiling after she cried for a minute in the car about the bear – we told her he would be safely tucked into her bed waiting. That you choose to instead encourage overreaction to a non-emergency is disappointing. When we choose to remove the hard things for children, they don't build coping skills and we set them up for failure in life.
My hope is that you will commit the same focus and intensity that you have for a stuffed bear towards a fair interim agreement and helping our girls transition with confidence rather than protecting them from the world.”
[54] It is clear that the father blames the mother for the things that EM. G. and El. G. reported to third parties about their feelings towards him. In his view, what they have reported about him is the result of the mother’s negative influence on them, and her inability to shield the children from her own anxiety being separated from them. From his perspective, all three children have a great time when they are in his care; they are happy, well-adjusted, loving and engaged, and they do not show any signs of stress or distress, emotional or otherwise. While they once did in the early months after the parties’ separation, particularly during their transition to his care, any such behavior quickly subsided once the mother was out of their sight.
[55] I find as a fact that the children, and more especially EM. G. and El. G., have simply learned to adapt to their father’s ways and have chosen to keep their feelings and emotions at bay as much as possible when they are in his care, as a means to protect themselves from the father’s dismissive and, at times, angry reactions at their expression of emotions. While this appears to have been more naturally achieved by El. G., who is reportedly stronger, more reserved, most energetic and less prone to emotional outbursts, for EM. G. it has been and continues to be most difficult.
[56] I wish to make it clear that, despite all of the above, it is nonetheless my view that the children do share a loving bond with their father who loves them very much and who wants the best for them. Both El. G. and EM. G. reported having good times with their father when they are in his care. EM. G. reported that she likes playing soccer with her father, playing in her father’s backyard and building things with him. El. G. reported that she likes to play outside on the swings at her father’s home. Due to her very young age, M.G. was not interviewed by the OCL and I have no independent evidence about her experience of each parent. However, given that she was very young when her parents separated, she is reportedly the child who adapted to her parents’ different parenting styles most easily.
[57] During the observation visit at their father’s home, the children were also observed to be engaged, happy and enjoying the various activities made available to them by their father and Ms. Winter. The clinician observed the atmosphere to be calm, interactive and friendly. The children also appeared comfortable with their father and Ms. Winter. Neither EM. G. or El. G. sought to reduce the time they spend with their father; they both wanted things to remain the same, and both expressed a very clear preference to remain in their mother’s primary care.
Conclusions and Order Related to Parenting Time
[58] As I said earlier in this decision, this case does not turn on who is the better parent. This case turns on continuity of care for the children, on their different affinity with each parent, and on the children’s difficulty adapting to their parents’ very different parenting styles.
[59] The mother was the children’s primary caregiver from birth to the day the parties’ separated. During the last year of the parties’ relationship, the mother was the main caregiver as the father struggled with his mental health and had a limited ability to care for the children on his own. The mother was the children’s sole caregiver for a period of approximately four months following the parties’ separation during which they did not see their father and had very limited contact with him, by his own choice. Thereafter, the father began to have increased parenting time with them, but he was never their primary caregiver.
[60] It is clear to me that the children’s preference for being in their mother’s care has nothing to do with how much love they have for their father. It is not about which parent has better parenting skills or parenting abilities. It is not about whether one parent’s disciplinary methods are better than the other’s. Although I come to the conclusion that the mother can be an overprotective and hyper-vigilant parent, I do not find, as alleged by the father, that she has negatively influenced the children against their father. The fact is that the children have more affinity with their mother than with their father for various reasons. While M.G. and El. G. appear more resilient in their ability to cope with their father’s very different parenting style, EM. G. has struggled to adapt. This is due in large part to her unique personality, and to her being much more aware than her siblings of the ongoing parental conflict. This is also because the mother is more attuned to the children’s emotional needs, whereas the father is not.
[61] While in their mother’s care, the children have thrived in all areas of their development, with the exception perhaps of EM. G. who, as the eldest child, has been most affected by her parents’ separation and the parental conflict that ensued. The evidence before me convinces me that at this time, the mother is best suited to meet the children’s emotional needs and to address their emotional struggles (particularly EM. G.’s), and the children are more comfortable in their mother’s care from an emotional perspective.
[62] During my interview with her, EM. G. expressed that she wants to continue to spend time with her father and to have a relationship with him, and that “sometimes” she enjoys her time with her father. However, the challenges that she experiences in her relationship with her father, which were echoed by El. G. – albeit to a lesser degree – when speaking to the OCL, are real. The father needs to gain insight into how his own behaviour has negatively impacted his relationship with his children, particularly his relationship with EM. G., and learn how to better meet their emotional needs. While I acknowledge that the father has been engaged in counselling, which is a very positive step toward achieving these goals, I am not certain how accurately or objectively informed his counsellor is about what the children have said about their relationship with their father. This would be a very important piece of information for the father’s counsellor to have if real progress is to be made.
[63] As for M.G., she was only one year old when her parents separated and her current living arrangements, which include being in her father’s sole care for longer periods of time and, therefore, being exposed to his parenting style from a very young age, is all she has ever experienced and it seems to work for her, at least for now. The evidence before me is that she is thriving, with no concerns reported at school or by either parent. This said, M.G. and her siblings are very closely bonded, and it would not be in M.G.’s best interest to separate her from her siblings by imposing upon her a different parenting regime than for her sisters.
[64] For all of the above reasons, I find that it is in the children’s best interest to continue to be in their mother’s primary care, and to continue to have meaningful parenting time with their father every week. I find that adding two overnights per two-week cycles, one on the Sunday of the father’s weekend and one on the Tuesday following the mother’s weekend with them, will provide the father with lengthier and more meaningful time with the children while maintaining the parenting schedule relatively the same from the children’s perspective. Adding these two overnights will also have the benefit of reducing the number of exchanges that do not occur directly at school. More specifically, the father shall have the following parenting time with the children (regular schedule):
1- Every second weekend, from Friday after school until Monday morning before school; 2- During the week following the father’s weekend, on Tuesday from after school to 7:30 p.m.; and, 3- During the week following the mother’s weekend, on Tuesday from after school to Wednesday morning before school.
[65] More details have been added to this schedule in the Final Order below.
[66] The mother sought an order allowing EM. G. to choose whether to have parenting time with her father on the Tuesday following her weekend with him. In my view, EM. G. has already been way too involved in the parental dispute and it would not be in her best interest to be placed in the position of having to choose, and then explain to her father, whether and why she wishes to see him or not. Further, that particular Tuesday visit does not include an overnight and in my view EM. G. should be required to go see her father along with her siblings.
[67] In my Final Order, below, I have also included other provisions related to exchanges, communication, sharing of information and other relevant details, many of which were requested by both parties.
Holiday Schedule
[68] The father wishes to maintain the regular schedule, without modification, for all school breaks and holidays (except the summer). In his view, maintaining the exact same schedule will limit the parental conflict and the need for the parents to communicate and negotiate various details each year. In his view, special events and holidays (such as Christmas, New Year, Halloween, etc.) can be celebrated on any other day and the benefits resulting from the parents not having to negotiate or communicate far exceed the benefits of being able to celebrate Christmas with the children on Christmas Day, for instance.
[69] As inviting as this proposal may seem, it prioritizes the parents’ needs over the children’s desire to share special events and holidays with each of their parents. I am of the view that with a very detailed holiday schedule, there will be no need for the parents to negotiate or engage in lengthy discussions about the sharing of holidays or other related details. As a result, I have included in my Final Order, below, a detailed parenting plan related to the sharing of holidays and special events.
Conclusions and Order Related to Decision-Making Authority
[70] In relation to decision-making, it is clear that if these parents are to continue to share this responsibility jointly, the children will be deprived of the opportunity to access much needed services promptly, or at all. Further, the children will continue to be exposed to their parents’ conflict as discussions related to their care will continue to be unnecessarily drawn out and lead nowhere. Joint decision-making responsibility has not worked for these parents in the past because their views of what their children need, and how to meet those needs, are too different. Although both parents have, at times, been able to communicate effectively and in a child-focused way, the evidence shows that at other times, they have both been accusatory, condescending and/or confrontational in their communication. More importantly, the past four years have shown that they have too often been unable to agree on important decisions to be made in a time-effective manner, resulting in the children not accessing much needed services.
[71] I find that while the father has not always agreed with the mother’s decisions in relation to the children’s health and medical needs, and even though the mother has, at times, acted unilaterally and imposed her decisions as if she had sole decision making responsibility, she has nonetheless been very diligent in seeking medical care whenever she felt it was needed, she has generally followed the advice of medical and health professionals, and she has kept the father informed of medical issues related to the children as they arose, and of the course of treatment to be followed. Further, I find that the mother has, most of the time, meaningfully consulted with the father on medical issues related to the children in a timely manner, and that she has even changed her decisions on occasions after hearing the father’s views on the matter. Her decision to have all three children fully immunized, as advocated by the father, is a good example of this. Her decision to pursue physiotherapy for EM. G.’s flat feet, instead of braces, as suggested by the father, is another example.
[72] While I have some concerns about the mother’s hyper-vigilance in relation to the children’s medical needs, there is certainly no evidence before me that would suggest that she has ever made decisions that were detrimental to the children or not in their best interests. Further, the evidence is clear that the mother has always been responsible for all of the children’s health needs when the parties were together, including attending all medical and dental appointments, and the father had no issue leaving that role to her throughout their relationship and for at least an entire year after the parties’ separation. In my view, continuity in the children’s medical care is best for them, and it is crucial that one parent be given the right to make a final decision if the parties are unable to agree after a meaningful consultation has occurred. As the parent who has always been primarily responsible for the children’s medical care, and since they will continue to be in the mother’s primary physical care, I find that it is in the children’s best interest for the mother to have final say in relation to their medical needs, including their counselling needs, provided that she has meaningfully consulted with the father.
[73] This being said, I have reservations about the mother’s ability and willingness to foster the father’s role as a parent in the children’s lives, and I am concerned about the father being marginalized as a parent if final decision-making responsibilities are left entirely to the mother. For that reason, I have divided decision-making responsibilities in some areas as set out in more details in my Final Order below.
[74] With respect to education, the children have been enrolled in a French school since they started their education. The father took no issue with this and the evidence overwhelmingly supports the conclusion that the children are doing very well in that setting. The mother seeks an order that the children continue to be registered in that school and, when they graduate from that school, that they be registered in a French program at a school within their mother’s catchment. If the parties cannot agree on the school, she asks that the child be given the final say in the matter.
[75] I do not agree that a child should have the responsibility to choose the secondary school in which he or she should be enrolled, although I agree that a child’s views and preferences in that regard should be strongly considered. In this trial, the father was prepared to leave to the mother final say in relation to the children’s education, after meaningful consultation with him, although I acknowledge that this was premised on his being granted final decision-making responsibility in relation to the children’s health.
[76] Nonetheless, in my view it is not in the children’s best interest to invite further litigation in the event that the parties are unable to agree on a school for any of the children, nor is it in their best interest to have the responsibility to decide if their parents cannot agree. For those reasons and given that the mother has always been primary responsible for their educational needs, I find that it is best for her to have final say in the event that the parties cannot agree on educational issues, with some limitations as set out below.
Final Parenting Order
Decision-Making Responsibility
With respect to decisions necessary for all three children of the marriage, including in relation to their health, education and major extracurricular activities, the parents shall jointly make those decisions subject to the following terms: a. The parents shall promptly notify one another of a major decision to be made for the children. b. Upon receiving notice of a decision which needs to be made, along with all necessary information for the other parent to form an informed view of the matter, the parent receiving this notice will respond within 5 days. This mechanism shall be flexible and not be rigidly used with the knowledge that the other parent is unavailable to reply (ex: on vacation, away for work). c. The parties shall communicate about these decisions in a meaningful way, provide their input in writing and, if they are able to agree, make the decision jointly. d. In the event that the parents are unable to reach an agreement on a decision to be made within a reasonable amount of time, the mother shall have final decision-making responsibility. The mother shall notify the father promptly of any decision being made.
The mother shall be responsible for making all medical, dental and/or health appointments for the children, and ensuring that the father is appraised of the time and date, with sufficient notice to attend. This is with the exception of EM. G., whose consent is required where necessary and the other two children as they reach the age to provide their individual consent. Consent for both parents to attend will at all times be encouraged.
EM. G. shall continue her therapy sessions with Ms. Rochette for as long as this is possible and deemed necessary by the mother.
If a new counsellor needs to be introduced to any of the children, both parents shall be allowed to do an initial intake session with the counsellor to provide his/her perspective and input.
EM. G. shall not be required to attend reunification therapy with her father without her consenting to the therapy and the therapist.
Barring any further agreement between the parents, in writing, with respect to decisions involving the education of the children: a. The children shall remain at their current school; b. When the children graduate from their current school, they shall be registered in a French program at a school within the mother's catchment; c. When choosing this school, should the parents be unable to agree as to which school the child shall attend, the child’s views and preferences shall be strongly considered, and the mother shall have final say.
Both parents shall abide by ss. 16.7 to 16.9 of the Divorce Act as it relates to any potential changes of residence and/or relocation.
The father shall be entitled to register the children in one extracurricular activity on Tuesdays if he so wishes, without the need to obtain the mother’s consent. The mother’s consent shall be obtained prior to the children’s registration in the activity if a financial contribution is sought from her. The mother shall not unreasonably withhold consent.
Decision related to the children’s religious upbringing or spirituality shall be made jointly.
Regular Parenting Schedule
- Effective immediately the father's parenting time with the children shall be as follows: a. Every second weekend, from Friday after school (or 3:30 p.m. if there is no school on Friday) until Monday morning before school (or 8:30 a.m. if there is no school on Monday, unless the father is able to take off work, in which case he may return the children at their mother’s home at 3:30 p.m.); b. On the Tuesday immediately following the father’s weekend with the children, from after school (or 3:30 p.m. if there is no school) to 7:30 p.m.; c. On the Tuesday immediately following the mother’s weekend, from after school (or 3:30 p.m. if there is no school) to Wednesday morning before school (or 8:30 a.m. if there is no school on Wednesday, unless the father is able to take off work, in which case he may return the children at their mother’s home at 3:30 p.m.); d. Any other time as may be agreed upon by the parties in writing.
Holiday Parenting Schedule
The below holiday schedule shall override the regular parenting schedule when the two schedules do not coincide and may be varied on consent of both parties in writing. The parents shall share all holidays, including: a. Christmas: In even numbered years, the children shall be with the mother from December 24th at 2:00 p.m. to December 26th at 10:00 a.m. and with the father December 26th at 10:00 a.m. until December 28th at 6:00 p.m. and from December 31st at 2:00 p.m. to January 2nd at 10:00 a.m. In odd numbered years, the children shall be with the father from December 24th at 2:00 p.m. to December 26th at 10:00 a.m. and with the mother December 26th at 10:00 a.m. until December 28th at 6:00 p.m. and from December 31st at 2:00 p.m. to January 2nd at 10:00 a.m. b. Easter Weekend: In even numbered years, the children shall reside with the father from Thursday (after school or 3:30 p.m.) until Saturday at 7:30 p.m. and with the mother from Saturday at 7:30 p.m. until the return to school Tuesday morning or 8:30 a.m. In odd numbered years, the children shall reside with the mother from Thursday (after school or 3:30 p.m.) until Saturday at 7:30 p.m. and with the father from Saturday at 7:30 p.m. until the return to school Tuesday morning or 8:30 a.m. c. Halloween: In odd numbered years the children shall be with the father from after school (or 3:30 p.m.) to the next morning at school (or 8:30 a.m.). In even numbered years the children shall be with the mother from after school (or 3:30 p.m.) to the next morning at school (or 8:30 a.m.). d. The children shall spend Mother's Day with the mother and Father's Day with the father from Sunday at 10:00 a.m. until their return to school on Monday morning or 8:30 a.m., regardless of the schedule, unless a parent confirms in writing that they do not wish to prevail themselves of the extra parenting time in any given year. e. March break: Shall be divided into two halves in accordance with the school schedule and each parent’s scheduled parenting weekend, with the exchange taking place on Wednesday at 3:30 p.m. f. Summer vacation: Each parent may take two non-consecutive periods of 7 days of summer vacation with the children, provided that they give the other parent 60 days written notice. In the event of a conflict of dates, the father shall have priority for July in even numbered years and the mother shall have priority for August. The father shall have priority for August in odd numbered years and the mother shall have priority for July. A parent’s vacation week shall begin on the Friday of his or her scheduled parenting weekend.
All exchanges, with respect to the regular parenting schedule and holiday parenting schedule shall occur at school, regardless of whether the children have school on that day, unless the parties agree otherwise. The mother shall not attend the children’s school at exchange time when it is the father’s responsibility to pick up the children, and vice versa (when there is school). A parent’s live-in partner or extended family members (aunt, uncle, grandparent) shall be allowed to pick up or drop off the children at school if the responsible parent is unable to do so, without the need to obtain the other parent’s consent.
Additional Clauses
Both parents may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, healthcare providers, summer camp counsellors, daycare providers or other professionals in the community involved with the child. The consent of the other parent is not required.
Both parents shall include the other parent’s information on all medical, dental, counselling, school, daycare, summer camps or other professional or community services involved with all three children, so as to ensure that both parents have equal access to these files and documents.
Both parents may attend all school functions. The parents may attend parent teacher meetings together or separately.
The parties shall update each other as to persons residing in the same household by providing the person's name. This obligation shall be mutually perpetual where details are required to be provided immediately following a change to the current living situations of the parties.
The parties shall create and maintain a calendar for the children's activities and appointments. Entries to be done on a calendar by either parent when making an appointment or when scheduling activities for the children and with sufficient notice to the other parent, so as to allow them to attend.
The Respondent shall maintain medical and dental coverage for the children so long as support is payable. He shall further authorize the Applicant full access to the children's records and sign all authorizations permitting her to file and be directly reimbursed by the insurance company, if possible.
The parties will jointly submit any documents necessary to obtain a passport, a renewal or other government documents for each child. The mother will hold those documents but will provide the father with same when requested or needed by him.
For any overnight trips outside of Ottawa, of one week or more, the parents shall provide each other with 10 days notice of the intended trip, including where they will be staying and contact information while away. The non-traveling parent shall sign a travel consent, if necessary, which will be provided at the traveling parent's expense. Consent shall not be unreasonably withheld.
Within six months from the date of this decision, both parents shall enroll and successfully complete the Parenting Through High Conflict Separation and Divorce course with Family Services Ottawa, or another similar course available elsewhere, and provide the other parent with proof of successful completion.
Divorce
[77] On consent of the parties, and upon review of all relevant documents, the divorce shall issue.
Costs
[78] If the parties are unable to agree on costs, I will accept written submissions not exceeding ten pages (double spaced, not including Bills of Costs or Offers to Settle) in accordance with the following timelines:
a. The mother to serve and file by January 24, 2022; b. The father to serve and file by February 7, 2022; c. Any reply, not exceeding three pages, to be served and filed by February 14, 2022.
Madam Justice Julie Audet Released: January 10, 2022
COURT FILE NO.: FC-19-1317 DATE: 2022/01/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JESSICA MORIN-VERTONGEN Applicant – and – DAVID ELLIOT GREGORIS Respondent decision Audet J.
Released: January 10, 2022
[1] The mother’s position as detailed in her closing submissions was a significant departure from her position as set out in her pleadings.
[2] Neither party is alleging in this case to have been the victim of family violence at the hands of one another and as such, factors relating to family violence are not relevant here.