Court File and Parties

COURT FILE NO.: FC-20-861 DATE: 2022/03/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer Elizabeth Marjorie Caroline Weinkauf Applicant (Responding Party on the Motion) – and – Sebastien Ruest Respondent (Moving Party on the Motion)

Counsel: Bruno Sharpe, for the Applicant (Responding Party) Natasha Chettiar, for the Respondent (Moving Party)

HEARD: February 17, 2022

DECISION ON PARENTING TIME

SOMJi J

Overview

[1] The father seeks an interim order for joint decision-making and increased parenting time with his child B.W.F. (“child”). The father has attempted to have more equitable access to his child but claims the mother has unilaterally and repeatedly reduced his parenting time since separation. The father argues it is in the best interests of the child that he have equal parenting time with both parents. The father has made accommodations to his work schedule and elicited the support of his own parents to allow for a week on/week off parenting schedule.

[2] The mother opposes the application claiming that she has been the child’s primary caregiver since birth. She argues the father has consented or alternatively, acquiesced to a parenting schedule whereby he exercises parenting time every other weekend and therefore, the status quo should prevail. She argues that the father’s employment as a transport truck driver has interfered with his parenting time in the past, and she is not confident that he will be available to adequately parent in the future. She believes the paternal grandparents do the parenting when the child is in the father’s care. The mother reports that the child throws tantrums when he has to attend his father’s place, and she does not believe it in the child’s best interests to require him to spend time with the father in these instances.

[3] In response to the mother’s argument that the father acquiesced to the current parenting schedule, the father filed certain correspondence and excerpts from the parents’ settlement discussions. The mother argues these communications are privileged and should not be admissible in these proceedings.

[4] The issues to be decided are:

a. Are all the documents filed by the father admissible? b. Did the father consent or acquiesce to the current parenting schedule? c. What parenting schedule is in the best interests of the child? d. Should the parents have interim joint decision-making?

[5] Upon review of the evidence filed and counsel’s submissions, I find it is in the best interests of the child to have increased parenting time with his father and for the parents to have joint decision-making. There will be an interim order for joint decision-making and for gradually increasing the father’s parenting time towards a 50/50 parenting schedule.

Evidence

[6] In addition to the factums filed by the parties, I have relied on the following affidavits filed in support of the motion:

a. The mother’s affidavit dated February 13, 2022; b. The father’s affidavits dated February 13 and 14, 2022; c. The affidavit of the paternal grandfather Denis Joseph Ruest dated February 14, 2022.

Issue 1: Are all the documents filed by the father in support of the application admissible?

[7] Counsel for the mother argues that paragraphs 18 to 28, 30, 32, and Exhibits A and D of the father’s affidavit dated February 14, 2022, are inadmissible on the grounds of settlement privilege.

[8] Counsel for the father points out that the core of the mother’s response to the parenting motion is that the father acquiesced to the parenting schedule and therefore, the status quo should prevail. In submitting the information contained in the above-noted paragraphs and exhibits, the father does not seek to divulge details of the settlement negotiations, but to demonstrate, contrary to the mother’s assertion, that there was never an acquiescence to the parenting schedule. In other words, the paragraphs outline the father’s effort, as encouraged by the courts, to resolve the matter by way of a mutually acceptable agreement on parenting time.

[9] The issue of settlement privilege in the context of family law settlement mediation was recently addressed by the Supreme Court of Canada in Association de médiation familiale du Québec v Bouvier, 2021 SCC 54. The majority of the Supreme Court of Canada held that the settlement exception applicable in the context of commercial mediations, recognized in Union Carbide Canada Inc. v Bombardier Inc., 2014 SCC 35, “generally applies” to communications in family mediations. In other words, a settlement exception allows the court to recognize and protect the confidential nature of family mediation while also allowing as an exception, communications to be disclosed despite confidentiality if their disclosure is necessary to prove the existence or scope of an agreement. Bouvier at para 97.

[10] In this case, the father does not seek to rely on the content of settlement discussions in September or October 2021 to argue the parties had come to a firm agreement on 50/50 parenting which the court should give weight to, but rather to inform the court that contrary to the mother’s assertion that the father acquiesced to a parenting arrangement of alternate weekends, the father has been actively negotiating for increased parenting time since separation, and in September 2021, had mistakenly understood the parties had arrived at such an agreement.

[11] Upon review of the impugned paragraphs, I find that paragraphs 18 and 19 do not disclose settlement discussions. The paragraphs simply outline that the parties had negotiated in June 2021, with the assistance of counsel, an interim parenting schedule which the parties do not dispute. The paragraphs explain what the undisputed parenting schedule was for a particular period post-separation and that it would be reviewed by August 15, 2021. I see no issue with the admissibility of these paragraphs.

[12] Paragraphs 20 to 26 explain that the parties negotiated a verbal agreement for equal parenting time in September 2021, but the agreement was never confirmed in signed Minutes of Settlement. The paragraphs establish that counsel for the father wrote to opposing counsel multiple times over the course of the summer to ascertain the mother’s position. Having received no response, the father inquired with the mother if she was still represented by counsel and if they could try to resolve the matter out of court in attempts to save litigation costs given the pending motion date of September 29, 2021. The mother agreed to negotiate directly with the father and the father believed, as it turns out mistakenly, that the mother had agreed to joint decision-making and a gradual move to a 50/50 parenting schedule. Counsel for the father incorporated the agreement in the form of Minutes of Settlement and sent them to opposing counsel on September 10, 2021. In addition, the mother herself sent an email to the father’s counsel on September 17, 2021, less than two weeks before the scheduled motion date, that she was open to coming to an agreement out of court and was waiting to hear back from her counsel. According to the father, on September 28, 2021, the day before the motion, counsel for the mother responded that the mother was not agreeable to equal parenting time, but by this point, the father had failed to confirm the motion date. The September 28th correspondence was not included.

[13] I find that paragraphs 20 to 26 and corresponding Exhibits A and B largely establish the sequence and timing of events to demonstrate that the father was not acquiescing as the mother suggests to alternative weekends, but actively negotiating an out of court settlement to increase his parenting time directly with the mother because mother’s counsel could not be reached. The information is also relevant for understanding why the father did not proceed with the motion of September 29, 2021. The Minutes of Settlement are not filed.

[14] To the extent that paragraph 21 does intrude on settlement privilege because the father reports the parties agreed on joint decision-making and to move towards 50/50 parenting time, I find that the paragraph is admissible as settlement exception: Bouvier at paragraph 97. Furthermore, the father reports only what is necessary to prove the existence of what he believed was a settlement and has not divulged the extent of the discussions: Bouvier at para 97.

[15] Paragraphs 27 and 28 address the father’s further attempt in October 2021 to negotiate an increase to his parenting time. To the extent that the paragraphs disclose contents of the settlement negotiations, I find it is limited to the father’s outline of a proposal for graduated increase towards 50/50 time and is relevant for demonstrating, that contrary to the mother’s assertion, the father was not acquiescing to alternate weekends or any status quo.

[16] I find that paragraph 30 does intrude on the settlement discussions as it refers directly to conditions the mother was seeking during negotiations. Furthermore, the content of paragraph 30 is not relevant to the father’s response that he consented to the status quo. I find paragraph 30 is not admissible, and I have not relied on it as part of my motion decision.

[17] I find that paragraph 32 and the related text messages in Exhibit C do not contain settlement privilege content. The paragraph explains the text messages sent by the mother where she tells the father that the child cries whenever he has to attend his father’s place. The father argues the texts are an example of the mother’s attempt to negatively influence the child and undermine the father’s parenting time. I find paragraph 32 is relevant in assessing the best interests factors discussed below, one of which is the willingness of each parent to support the child’s relationship with the other parent.

[18] Similarly, I find the text message in Exhibit D is relevant to determining whether the mother is adequately attending to the child’s health needs which, as discussed below, is a relevant factor in assessing decision making responsibility and parenting time. Paragraph 32 and Exhibits C and D are admissible.

Issue 2: Did the father consent or acquiesce to the status quo?

[19] The parents were in relationship and lived together from 2016 to October 2019. They had B.W.F. in June 2017. The child is 4 ½ years old and attending school. The father is presently 29 and employed full-time as a truck driver. The mother is 25 and on maternity leave with a second child from another relationship. She was previously employed at Oil Changers, but was laid off due the pandemic. She was relying on CERB. She expects to return to work in the fall of 2022.

[20] The child was born when the mother was 20. The father claims that the mother had difficulty adjusting to parenting. In the first year, the mother cared for the child during the day, but the father claims he was the primary caregiver on the evening and weekends. According to the father, upon his return from work, the mother often left to socialize with neighbours and he took over all aspects of child care such as feeding, bathing, and performing the child’s bedtime routines. When the child was one, the mother returned to full time work and the child attended daycare. The father claims that the mother was a frequent user of marijuana and her inability to settle into family life led to conflicts between the parties and their eventual separation.

[21] The mother does not agree with the father’s characterization of her parenting and socializing after the child’s birth. She states she rarely went out and if she did, it was as a family. While she does not deny she consumed marijuana, she states that it was in moderate amounts and to help reduce her anxiety which was caused in part from her relationship with the father. She claims she has always loved being a mother and has tended to all of the child’s needs since birth. She claims the relationship ended because of the father’s infidelity.

[22] In response, the father filed letters from two family friends which indicate that following the child’s birth, the mother consumed significant amounts of marijuana, often left the child in the father’s care in the evenings, and sometimes neglected the child. The father also filed a text message from the mother’s own sister who reports that while the mother and child were living with her for a period of 4-5 months, she observed the mother was regularly high and often neglected the child to the point that she had considered calling the Children’s Aid Society. I find that Exhibits A and B to the father’s affidavit dated February 13, 2022, corroborate the father’s characterization of the mother’s parenting in the child’s first two years.

[23] The parents separated when the child was two. The mother left the residence in October 2019. The father claims they agreed to shared parenting at the time of separation while the mother claims that in November 2019, the father agreed to parenting time every other weekend.

[24] In December 2019, the mother reported to the police that the father had assaulted her. The father believes this was because he refused to accommodate a schedule change. The assault allegation is discussed in further detail in the subsequent sections. Suffice to say, however, that as a result of the charge, the father was placed on a restraining order against the mother. He did not see the child from December 2019 to March 2020. The father did not seek legal advice and misunderstood that the restraining order applied to the child. There is no evidence that the mother attempted to correct the father’s misapprehension and offer the father parenting time with the child. In 2021, the mother retracted her allegation and the criminal charges were stayed.

[25] In March 2020, the father began exercising parenting time, but claims the schedule was tightly controlled by the mother. Given he was on a restraining order, the father did not want to aggravate matters by asking for more time. In August 2020, the mother served the father with a Family Court Application. The father acknowledges he naively believed the parties could resolve the matter and did not file responding materials or retain a lawyer until after a case conference of March 9, 2021. The father takes full responsibility for his late Answer and disclosures.

[26] From January 22, 2021 to March 10, 2021, the mother agreed to a week on/week off parenting schedule during which time, the father claims, the child made developments with his speech and potty training. The father claims that on the day after the case conference, the mother unilaterally reduced the father’s parenting time to alternate weekends. The mother disputes this. She claims that she tried the week on/week off parenting schedule for eight weeks from January to the end of February 2021 but felt the child was not adjusting to the routine and would be tired, fussy, and irritable when he returned from his father’s care. She claims she had already reverted to the previous schedule of alternate weekends before the case conference.

[27] It is difficult to discern what parenting schedule was in place on the date of the case conference or what precisely was discussed. Nonetheless, it is clear in paragraph 8 of Justice Engelking’s endorsement of March 9, 2021, that the father was disputing the mother’s claim for sole decision-making and limited parenting time on alternate weekends.

[28] In June 2021, the mother agreed to expand the father’s parenting time to start on Thursday every other weekend, plus three longer weekends in the year and two non-consecutive weeks with the child in the summer. The father argues that while he did not argue with the mother when she changed the schedule in March and June 2021, this does not constitute acquiescence. The father was not satisfied with the parenting schedule and this is reflected in the fact that by May 2021, he requested a motion on the issues of joint decision-making and parenting time which was scheduled to be heard in the fall of 2021.

[29] In the summer and fall of 2021, both parties had counsel. The father was working full time, paying child support, and incurring legal fees. He relied on his parents’ financial assistance to help with legal fees. Given the costs of litigation, the father hoped that the parties could resolve the matter out of court. During the intervening months, the father claims the parties verbally agreed to joint decision-making and a move to 50/50 parenting time. Consequently, the father surrendered his motion date of September 20, 2021. Once the father decided to forego the motion, he claims the mother reneged on the verbal agreement and unilaterally reduced his parenting time to every other weekend. The father was unable to obtain another motion date until February 2022. The father abides by the mother’s schedule. The mother does not deny this.

[30] Counsel for the mother argues that in assessing what is in the bests interests of the child at an interim motion, one of the most relevant factors is maintaining the status quo pending trial. Temporary Orders are based on limited evidence without the court having the benefit of cross-examination and therefore, only intended to provide a reasonably acceptable solution to a difficult problem pending trial. Counsel for the mother relies on the decision of Grant v Turgeon wherein Justice Mackinnon stated that generally the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity to meet the children’s best interests: para 15. Justice Mackinnon goes onto state that the rationale for this principle lies in fairness to the parties and concern for best interests of the child as it is generally not in the best interests to change residential arrangements if there is a possibility of another change pending trial: Grant v Turgeon at para 15.

[31] While there may be circumstances in which maintaining the status is in the child’s best interests, for example if the facts are heavily contradicted and a trial date is scheduled, I do not read Justice Mackinnon’s decision to read that changes to parenting schedules cannot be made during interim motions. The predominant consideration for determining parenting time at any stage of the proceedings is the best interests of the child. The status quo is but one aspect of the best interest test which requires consideration of the history of the child’s care and the need for ongoing stability: Subsections 24(3) (a) and (h) Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”).

[32] Furthermore, as explained by Justice Leach in Peet v Zolob, 2014 ONSC 5748 at para 17, concerns about disturbing status quo have more force when that status quo is reasonably clear and one that has been defined by a previous agreement or a court order. In this case, the fact that the father has abided by the various parenting schedules imposed by the mother in March 2020, March 2021, and September 2021, does not constitute consent or acquiescence. The father has consistently requested a shared parenting schedule which he believed had been agreed upon by the parents at separation, in January 2021, and again in September 2021. Furthermore, the father’s disagreement with the mother’s parenting arrangement is evident in the fact that he clearly stated his position at the case conference of March 9, 2021, and by May 2021, scheduled a motion to address parenting time when out of court negotiations were not fruitful. I agree with counsel for the mother that if a status quo has developed in this this case, it is largely because of the mother’s unilateral actions.

[33] Furthermore, counsel for the father relies on the decision of Gordon-Bowes v Gordon-Bowes, 2020 ONSC 4994 at para 16 where Justice Leach cautions that the courts must be mindful of and discourage efforts by parents to unilaterally create a status quo through manipulation, exaggeration or deception. Counsel for the father argues that mother regularly questions the young child regarding the father’s parenting time and then relies on what she perceives and alleges to be the child’s wishes to restrict the father’s parenting time and further entrench the status quo. During FaceTime when the child is in the father’s care, the mother will repeatedly ask the child if he is “okay”. The father filed text messages sent by the mother to him where she reports that the child is crying and does not want to go to the father’s house, that she has recorded the child screaming and crying that he doesn’t want to see his father, and that she won’t force the child to do anything she doesn’t want to. The mother does not deny these text messages or recordings.

[34] While the child’s wishes are an important consideration in determining the child’s best interests, those wishes must be assessed in accordance with the child’s age and development. As discussed further below, one of the factors for determining a parenting schedule in the child’s best interests is the willingness of each parent to support the child’s relationship with the other parent. While I do not find that the mother’s conduct is sufficiently egregious to restrict her parenting time with the child, it is cause for concern and suggests, as counsel for the father argues, that the that the mother is negatively influencing the child against father and the paternal family to further entrench the status quo.

[35] The mother’s primary reason for opposing a week on/week off parenting schedule is that the father keeps long hours and leaves the grandparents to do much of the parenting when the child is scheduled to be with him. The father disagrees. The father readily acknowledges that when he did not have the child in his care, he worked long hours. His works as a truck driver is based on his availability, the seasons, and the workload of the company.

[36] Following the case conference of March 9, 2021, the father provided the logs of his work hours from January 2021 through to January 2022. He acknowledges the disclosure was late, but explains that he was only able to provide the logs after his employer digitized employee hours. The mother relies on select logs to demonstrate that the father starts work very early and often works late into the evening thereby interfering with his parenting responsibilities. Counsel for the father confirmed at the motion hearing that the dates selected by the mother as examples of his long hours were not dates when he had care of the child. Finally, the father argues that while his parents may assist in picking up the child from daycare, he is actively involved in parenting the child once he is home. This is corroborated by the grandfather’s affidavit.

[37] As indicated during the motion hearing, one could spend an inordinate amount of time analyzing the logs to determine the father’s shifts and on how many occasions they interfered with his parenting schedule. The fact of the matter, however, is that the father has now discussed with his employer his parenting responsibilities and has taken steps to ensure that he can be home at a reasonable hour during the weeks the child is with him. The father’s schedule is expected to vary from 6 or 7 am in the morning to 3 or 4 pm in the afternoon. The father has always had his parents available to assist with child pick ups and drop offs. While it is the mother’s preference that the grandparents be less involved, I find that it is entirely reasonable for the grandparents to assist with pick ups and drop offs as well as childcare to assist the father.

[38] I find the evidence does not demonstrate the father consented to or acquiesced to the current parenting arrangement. Any status quo that has developed is the result of the mother’s unilateral conduct. The evidence filed indicates the father has been an active parent in the child’s life and is available to perform that role. It is clear that parents differ in their understanding of what was agreed upon as a parenting schedule at the time of separation, but this is not case where the facts are so controverted and require credibility findings at trial before the court can determine a parenting schedule in accordance with the child’s best interests. While revising the parenting schedule will cause some disruption to the child’s present routine, the child is young and should have maximum contact with both parents as is consistent with his best interests: As stated recently in T.P. v A.E., 2021 ONSC 6022 at para 151:

151 While there is no presumption of equal parenting time, the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6); Bembenek v. Bembenek, 2019 ONSC 4050; Kirichenko v. Kirichenko, 2021 ONSC 2833.

Issue 2: What parenting schedule is in the best interests of the child?

[39] Under the present parenting schedule, the father has 11 days between visits with the child and is only able to bond with him on alternate weekends which he finds is very limited. Furthermore, the current schedule does not permit the father to actively participate in the child’s school, extracurricular activities, or day to day life in a meaningful way. The father seeks an order allowing for a gradual increase in parenting time towards a week on/week off schedule.

[40] The sole criterion for determining parenting arrangements is the best interests of the child. Subsections 24(1), 24(2), and 24(3) of the CLRA set out the factors for consideration as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(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 co-operate, 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 co-operate 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. 2020, c. 25, Sched. 1, s. 6.

[41] The application of these factors are addressed below, and in some instances, collectively.

i. Section 24(2) CLRA: the child’s physical, emotional and psychological safety, security and well-being:

[42] The paramount consideration is the child’s physical, emotional, and psychological safety. While the mother supports the father’s relationship with the child, she claims that the child often cries before attending the father’s home and when she questions him about the father’s parenting. The mother does not articulate, however, if this crying is cause for any legitimate concerns about the child’s physical, emotional, or psychological safety while in the father’s care.

[43] As the father points out, the child is always happy and excited to see him and not surprisingly for a four year old, also tells the father that he does not want to leave when he is preparing the child to return to the mother’s residence. The father does not use these emotional reactions to suggest that the child does not like his mother or criticize the mother’s parenting. The father accepts that a young child is prone to react to transitions in routine.

[44] In the absence of further evidence, I am not prepared to find that the mother’s claim that the child cries before going to the father’s residence is reason to deny the father increased parenting time. The mother has not identified any specific concerns with respect to the father’s parenting that would warrant restricting his parenting time on grounds of the child’s safety. On the contrary, the paternal grandfather, who lives with and observes the father, indicates in his affidavit that the father performs many parenting tasks such as bathing, feeding, playing, performing bedtime routine, and consoling the child when he is emotional. The grandfather reports that he is deeply proud of his son’s parenting ability.

[45] This factor favors increased parenting time for the father.

ii. Section 24(3)(a) and (h): child’s needs, development, and stability and ability of each parent to provide for those needs:

[46] The father states that he has provided a safe and stable home for the child at his parent’s place, and it is an environment that the child is familiar with. He describes in detail his daily routine with the child, the activities and games they play indoors and outside, as well as the child’s interactions with his cousins who come over on the weekends.

[47] While the father indicates that he is trying to save funds to purchase his own home, he is not seeking any immediate change to the child’s surroundings, school, or residence. The father agues that the greatest source of instability for the child has been the fluctuations to the parenting schedule. The father has consistently exercised what parenting time he has been given and intends to continue to respect the parenting schedule ordered. As already noted, the father has been actively parenting the child since birth and is able to provide for the child’s needs.

[48] Even though the father has had difficulty in accessing information regarding the child’s professionals, he has tried to stay abreast of the child’s health needs. The parents acknowledge the child has a speech delay. Since January 2021, the father has been working to assist the child with his speech. Arrangements were made for the child to access speech therapy at CHEO. The father followed up with the mother to ensure the referral went through. Nonetheless, the mother missed the deadline to finalize the child’s referral to CHEO. The mother does not deny this and has not provided any explanation for why she failed to file the necessary paperwork.

[49] The father has also expressed concerns about whether the child has been obtaining adequate medical and dental care. He filed a text message sent to the mother where he asked if the child has had his eyes checked or had gone to the dentist. The mother replied that the child has not gone to many of these things because everything “is still emergency”, which I gather is reference to the lockdowns arising from COVID-19. The mother does confirm, however, that the child has an annual medical and was booked for a flu shot.

[50] I find the evidence demonstrates that the father has taken an active interest in ensuring that the child’s day to day needs, as well has medical, dental, and other professional needs, are met. I find it would be in the child’s best interests to have his father more involved with the child’s professionals to ensure that the child’s health needs are being met, including for example, assistance with speech therapy.

[51] I also find that while the child may have to make some adjustment to his school routine under a shared parenting schedule, it is important for both parents to be fully engaged in the child’s educational development and school life. A shared parenting schedule will allow the father to attend the child’s school, meet with teachers, stay informed of school events, and become familiar with the child’s friends, curricular activities, and school environment. It will require the father to assist the child with his daily homework and monitor his progress at school, a responsibility that should not be borne by just one parent. The father is eager and willing to take on more responsibility in the child’s education, and I find the mother has not identified any sound reason to prevent that from commencing sooner rather than later.

[52] This factor favours increased parenting as well as joint decision making.

iii. Section 24(3)(b): Relationship of child to parents, siblings, and grandparents:

[53] The mother does not support the extensive involvement of the grandparents in the child’s care and states that the child has a particular dislike to his grandmother. The mother has not provided any evidentiary basis for this assessment except that she alleges the child becomes upset and will cry when told he may be at his grandparents. She also states that when the child talks about his grandmother, he whispers as though he is ashamed of saying his feelings. The mother alleges that the child reported to her that his grandmother treats his cousins better than him. Unfortunately, she does not provide any information on when this was said, in what context it was said, or whether she discussed it with the father so as to verify whether there was any basis for it with the aim of resolving the issue.

[54] The father disputes the mother’s allegations. He states that he has never observed the child express any negative feelings towards his parents or observed him to be uncomfortable with his parents. On the contrary, he argues his parents have a wonderful and caring relationship with the child. They play with him, read to him, and engage in various activities with him. The grandfather’s affidavit corroborates this. The grandfather states that he and the grandmother love to play with the children and go for hikes and picnics. While the grandparents prioritize eating dinner with their family every evening, they also have independent lives. The grandfather works two jobs but accommodates his work schedule to assist with picking up the child from daycare. The grandmother also engages in volunteer work. The grandfather reports that the child loves to do crafts with his grandmother and is openly affectionate with her. The grandfather reports that he and the grandmother do not favour any grandchild and are hurt by the mother’s allegation.

[55] Based on the affidavits filed, I find there is no evidentiary basis to conclude that there is anything amiss in the child’s relationship with his grandparents. The mother does not point to any observations made of the grandparent’s care when with the child or anything specifically articulated by the child that would be cause for concern. The child is fortunate to have loving and engaged grandparents in his life. This factor favours increased parenting time with the father.

[56] The mother also argues that the grandfather has on two occasions been late in picking up the child and the daycare worker had to walk the child to the mother’s parents’ home. Having reviewed the grandfather’s responding affidavit, I place no weight on the mother’s claim. The grandfather provides a very reasonable explanation for what transpired in each instance, points out that the distance walked by the daycare worker was 30 feet as the maternal grandparents live next door to the daycare, and reports that the mother herself is frequently late for transitions involving the child. Furthermore, it is not uncommon for caregivers to be late for pick-ups and where the tardiness gets out of hand, most childcare institutions are able to address the consequences directly with the parents. The mere fact that a parent or caregiver is late in picking up a child on two occasions is not grounds for restricting the father’s parenting time.

[57] The mother requests that a clinician for the Office of the Children’s Lawyer (“OCL”) be appointed to speak with the child. I do not find the circumstances of this care warrant the intervention of the OCL. If there are concerns with the child’s relationship with family members, it is the responsibility of both parents to try and accurately identify the specific concern when it is raised with the child, address the issue with the other spouse to verify what may have happened to trigger the child’s comments, and then find a way, agreed upon by both parents and preferably together, to speak to the child and resolve the issue. Leaving the child’s negative sentiments towards a family member, if indeed the exist, to linger is emotionally harmful for the child and unfair to both the child and the family member. This process would be a recommended first step on the part of the parents before considering interventions of a counsellor or clinician from OCL. Furthermore, I find that it would be beneficial for both the mother and father to consider attending a course on co-parenting so as to learn better ways to communicate on issues involving the child going forward.

[58] Finally, I must consider that the child has a newborn sibling at his mother’s residence. The mother reports, and I accept, that the child has a loving relationship with his half brother and enjoys being an older brother to him. Fostering that sibling relationship is in the bests interests of the child. However, there is nothing to suggest that a shared parenting schedule would adversely impact that sibling relationship.

[59] On balance, I find this factor favours increased parenting time for the father.

iv. Section 24(3)(c) and (i) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent and to communicate and cooperate on matters affecting the child:

[60] The father has demonstrated that he is willing to support the child’s relationship with his mother. The father has respected the mother’s parenting schedule to date. The father made concerted efforts to negotiate out of court an increase to his parenting time and even surrendered his motion hearing scheduled for the fall of 2021 because he believed the mother had agreed on a shared parenting schedule.

[61] While the mother may have had valid reservations about the father’s work schedule and its impact on parenting, it is not clear that she has been willing to work with the father to directly address these issues towards a graduated increase in his parenting time. Rather, she has relied on the child’s emotional state at transitions to determine the parenting schedule. This has the effect of placing the child in the middle of what is effectively a parenting dispute which jeopardizes the child’s emotional wellbeing and undermines the child’s relationship with his father. Despite my concerns with the mother’s conduct, I am not satisfied that the mother would not abide by an interim court order. As noted above, both parents are well advised to consider parenting courses that will assist them in co-parenting and better communicating on matters that affect the child.

[62] I find this factor favours shared parenting.

v. Section 24(3)(d): the history of care:

[63] As already addressed above, while the child has resided primarily with the mother, it is because the mother has largely determined the parenting schedule since separation. The father has respected that schedule despite his understanding at the time of separation that there would be shared parenting. Despite the father’s limited parenting time, he has been an active and engaged parent. I do not find the pattern of care that has evolved in this case should be grounds to limit the father’s parenting time in the future.

vi. Section 24(3)(e): the child’s views and preferences:

[64] The child’s wishes are an important consideration in determining the child’s best interests. However, those wishes must be assessed in accordance with the child’s age and development. A child’s wishes will generally be given more weight as they grow older and particularly, into the teenage years: Children’s Aid Society of Algoma v. LG, 2020 ONCJ 297, at para 175. As already noted above, I find there is no evidentiary basis to conclude that the child does not wish to be with his father. Moreover, I do have concerns that the mother’s manner in handling transitions, her filming of the child, and her questioning of the child while in his father’s care is undermining the father’s relationship with the child. I do not find that the mother’s conduct is sufficiently problematic so as to minimize her parenting time, but I do find that the mother could benefit from parenting courses.

vii. Section 24(3)(j) history of family violence:

[65] The mother alleges that on October 8, 2019, just a few days after she had left the residence, the father invited her to come over to the residence to say good night to the child. The child was in bed when she arrived and the father wanted to speak to her about getting back together. She did not wish to speak about it and claims that as she was leaving the residence, the father blocked the stairway to the exit and would not let her leave. She repeated “let me leave” multiple times and when she reached for the door knob, the father pushed her hand away. The neighbour came to the front door and yelled at the father to let her leave through the door. She reached for the doorknob and the father grabbed her wrist and forcefully pulled her away causing her to fall and the father to fall on top of her. The mother states she injured her wrist and bruised her ribs. The mother does not mention in the affidavit that the neighbour was the man she had moved in with following the parties’ break-up.

[66] The father describes the incident differently. He indicates that following the separation, the mother went to stay with a neighbour downstairs who had a reputation for violence. The father was concerned for her safety. On the night in question, she came up looking for a pillow and other belongings. They started to argue and were arguing in the entryway between the front door and the staircase when the mother’s new roommate came up and started banging hard on the door and threatening to force the door open. The father was sincerely afraid and so he reacted by holding the door closed. It was at this juncture that the mother grabbed the father to pull him away from the door and they both fell on the staircase. The father indicates in his affidavit that he did not intend to hurt her, and his version of events is also consistent with the text exchange between the parties that night describing the incident.

[67] The mother reported the incident to the police in late December of 2019. She does not explain why she waited over two months to contact the police. The father claims that in December 2019, he refused to accommodate the mother’s request for a change to the parenting schedule and consequently, she lashed out by alleging that he assaulted her. The father was subsequently charged with assault and placed on a restraining order. He describes the months that followed as nightmarish. He had no prior criminal history and had to deal with the police. He also went several months without seeing his child. The father explains the mother retracted her allegation in 2021 and the charges were stayed.

[68] Counsel for the mother argues that the mother did not retract her statement, but realized the severity of the allegations and decided not to proceed with charges. Counsel argues, therefore, that the court is entitled to consider the incident as family violence that is a relevant consideration in the best interests of the child: 24(3)(j) CLRA. It is important to note, however, that the mother provides no explanation in her affidavit of why the charges were stayed.

[69] Counsel for the father argues, on the other hand, that there was a retraction and the mother sent the father an apology. The father filed a text message dated January 13, 2021, where the mother states as follows:

Like I’m sorry for the shit I put you through with the police and I’ve admitted I was wrong and I tried to get rid of it as hard as I could and I’ve told you many times how I regret it and felt bad but I can’t change it can only change How things go from here that’s why i always try to get you to take [child’s name] more

[70] As per ss. 24(3)(j), 24(4) and (5) of the CLRA, I must consider the presence of family violence. However, I am only required to consider the past conduct of either the mother or father if it is relevant to the exercise of the person’s decision-making responsibility, parenting time, or contact with the child: CLRA, s 24(5), as amended SO 2020, c 25, Sched 2, s 6.

[71] Family violence is not limited to conduct that is criminal or to physical abuse. In recent amendments, family violence was defined in the Divorce Act R.S.C. 1985, c.3 (2nd Supp), as:

any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct

[72] In this case, I accept there was an incident at the door following the parties’ break-up and that the mother did hurt her wrist and ribs. However, based on the affidavit evidence and text messages filed from the same night, I am not prepared to find that it was the father’s intention to hurt the mother. In addition, the mother does not report any other violence on the part of the father during the course of their relationship, and it appears that this was an isolated incident and out of character for the father. Finally, the incident did not occur in front of the child. For all these reasons, I am not prepared to put any weight on the incident or find that the incident warrants a parenting order in favour of the mother.

viii. Section 24(3)(g) any plans for the child’s care:

[73] The father has put forward a plan for his gradual reintegration into the child’s life. The father’s proposal is that the child would continue with alternate weekends and an additional overnight on the weeks he does not have the child until March 18, 2022. At that time, the alternate weekends would extend by one day to Tuesday morning. Commencing April 29th, the father seeks to extend the alternate weekends to every Wednesday, and by May 27, 2022, the father seeks to have the child reside with him on a week on/week off basis. Throughout the transition, the child would continue to attend the same school, continue with his activities, and have access to the same friends.

[74] The mother has not presented any plan for varying the parenting schedule, but indicated at the motion hearing that should it be ordered, she would request that it be done gradually.

[75] I find the father’s proposed plan for gradual reintegration is reasonable given the age of the child and the need for a stable transition in his care.

ix. Section 24 (3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage:

[76] Neither parent has identified child’s cultural, linguistic, religious and spiritual upbringing and heritage as an issue for consideration in determining an appropriate parenting schedule. I find this factor is neutral in this case.

[77] In conclusion, I find that the best interests factors favour gradually increasing the father’s parenting time to a week on/week off schedule.

Issue 3: Should the parents have interim joint decision-making?

[78] The father seeks joint decision-making. The mother’s materials are silent on this issue.

[79] I find it is in the best interests of the child for the parents to have joint decision-making for the following reasons. First, as already indicated, concerns have been raised about the mother’s ability to follow through on medical issues such as the child’s referral for speech therapy. Having the father involved in decision-making will allow the father to remain informed of issues concerning the child and will assist in ensuring the child’s medical, educational, and developmental needs are met.

[80] Second, despite their conflict over parenting time, the parties appear to be able to reasonably communicate for the purposes of joint decision-making.

[81] Third, the child is young and decisions will have to be made on a variety of issues as the child grows older. It is preferable that both parents learn to communicate about issues concerning the child sooner than later and where necessary, take parenting courses to assist them in learning the skills for communicating and co-parenting.

Order

[82] There will be an interim Order as follows:

1. The parties will have joint decision-making responsibility for the child.
2. The parties will move towards a shared parenting schedule as follows: a) Commencing March 11, 2022, the child, shall reside with the Respondent father as follows: i. Every other Friday from the time the child finishes school until the child commences school the following Monday morning. If Monday is a holiday or PD Day, the child will be returned to the Applicant mother at 4:00pm; and ii. During weeks when the Respondent father does not have weekend parenting time, the child shall spend Thursday night with the father from the time the child finishes school until the time the child commences school the following Friday morning. b) Commencing March 25, 2022, the child shall reside with the Respondent father as follows: i. Every other Friday from the time the child finishes school until the child commences school the following Tuesday morning; and ii. During weeks when the Respondent father does not have weekend parenting time, the child shall spend Thursday night with the father from the time the child finishes school until the time the child commences school the following Friday morning. iii. There will be an exception to the parenting schedule for Easter Weekend of 2022 which shall be shared equally by the parents. c) Commencing April 29, 2022, the child shall reside with the Respondent father every other Friday from the time the child finishes school until the child commences school the following Wednesday morning. d) Commencing May 27, 2022, the child shall reside with the parties on a week on/off basis on a go-forward basis with transitions occurring on Fridays.
3. Following the transition to a week on/week of parenting schedule, all statutory holidays will be shared equally between the parties unless the parties agree otherwise.
4. During the school year, pick ups and drop offs shall occur at the child’s school.
5. Outside of the school year, pick ups and drop offs shall occur at the Petro Gas Station located at the intersection of Blair Road and Innes Road.
6. The week on/week of schedule will continue in the summer months unless the parties agree to an alternate schedule to allow each parent consecutive weeks for summer holidays.
7. The party with whom the child is scheduled to be according to the parenting time schedule will make the day-to-day decisions affecting the child during that time. The party will notify the spouse immediately of any emergency while the child is in their care.

Costs

[83] The father is the successful party on this motion If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The father shall file his submissions by March 21, 2022, the mother by April 4, 2022, and the father will have until April 18, 2022 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: March 7, 2022