CITATION: Schell v. Schell 2022 ONSC 2226
COURT FILE NO.: FS-21-0198
DATE: 2022/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyler Schell
Applicant
– and –
Nadia Schell
Respondent
COUNSEL:
K. Klein for the Applicant
R. Leckie for the Respondent
HEARD: April 6, 2022
REASONS FOR DECISION
Ellies R.S.J.
INTRODUCTION
[1] I have competing motions before me. In the earliest motion to be brought, Mr. Schell (“the father”) seeks an order returning the children, shared or primary decision-making, and shared or primary residency, among other things (March 8, 2022, motion).
[2] In two motions brought subsequently, Ms. Schell (“the mother”) first sought temporary decision-making responsibility, primary residency, and specified parenting time for the father (March 14, 2022, motion). In the latest, she seeks an order that the father have either no or only supervised parenting time (March 24, 2022, motion).
[3] Both parties have asked for a police enforcement clause.
[4] For the following reasons, the mother’s motions are dismissed and the father’s is allowed in part.
BACKGROUND
[5] The parties began to live together in 2008. They married in August 2011. They have two children, presently aged 4 and 3, but soon to be aged 5 and 3.
[6] The parties separated on January 1, 2021, but lived together under the same roof until the father left the matrimonial home on or about July 1, 2021.
[7] Between July 2021 and February 2022, the father had parenting time, but the schedule was not fixed.
[8] At the beginning of February 2022, the parents adopted a fixed schedule that fit with the father’s work schedule, as follows:
(a) Rotation1: after dayshifts in the middle of the week: Wednesday at 3:00 P.M. to Thursday at 3:00 P.M. (starting February 2-3, 2022)
(b) Rotation 2: after nightshift beginning of the week: Monday at 5:00 P.M. to Tuesday at 5:00 P.M. (starting February 7-8, 2022)
(c) Rotation 3: after dayshifts starting the weekend: Friday at 3:00 P.M. to Sunday at 3:00 P.M. (starting February 11-12, 2022)
(d) Rotation 4: after nightshifts middle of the week: Wednesday at 5:00 P.M. to Thursday at 5:00 P.M. (February 16-17, 2022)
(e) Rotation 5: after dayshifts beginning of the week: Monday at 3:00 P.M. to Tuesday at 3:00 P.M. (starting February 21-22, 2022)
(f) Rotation 6: after nightshifts starting the weekend: Friday at 5:00 P.M. to Sunday at 5:00 P.M. (starting February 25-27, 2022)
[9] However, the youngest child sustained a bruise on his right cheek during a parenting time visit on the weekend of February 24-27, 2022. The father deposes that the injury arose accidentally, when he was intervening in an incident involving both of the children. The mother refuses to accept this explanation.
[10] As a result of the injuries sustained by the child, the mother called the Children’s Aid Society (“CAS”). She then withheld parenting time from the father until the CAS said that they would not take a position with respect to the injuries sustained by the child. Parenting time for the father then resumed.
[11] According to the mother, however, the youngest child came home on March 22, 2022, again sporting an injury, this time to his back. The mother took the child to a doctor. She has appended a copy of a note dated March 23, 2022, in which the doctor indicates that the rash observed on the child’s back was “likely contact related” and “highly” suspicious of physical abuse by the father.
[12] Again, the mother contacted the CAS. The CAS put a “safety plan” in place that included a term that the mother not allow the children to be in the father’s care.
[13] The father denies that the child was hurt while he was in his care.
[14] A CAS worker was subpoenaed to testify during the hearing of these motions. However, counsel for the CAS appeared, instead, and advised that the CAS was not able to “verify” the allegations of abuse, that no child protection proceeding would be commenced, and that there would be no further suggestion by the CAS that the children not be in their father’s care.
[15] As a result of this development, the mother appears to have eased off on her request that the father have no parenting time, but has not completely relented. Mr. Leckie submits on her behalf that the CAS investigation was rushed to a conclusion because of the return date of the motions. As an alternative, he submits that the father’s parenting time should be limited because the father was never the primary parent, because he gets tired on the days he has to stay awake to change shifts at work (“swing shift days”), and because the oldest child does not really want to be with the father, in any event.
[16] On behalf of his client, Mr. Leckie also submits that the mother should have sole decision-making authority because, without it, no decisions would be made in the children’s best interests.
[17] I am unable to accept any of these submissions.
ISSUES
[18] There are three main issues in these motions: parenting time, decision making, and police enforcement.
ANALYSIS
Parenting Time
[19] To the extent that I can on a paper record and to the extent that I must, I find the father’s evidence to be more credible than that of the mother. My reasons include the following:
The mother’s broad-ranging character assassination of the father.
[20] The mother’s evidence in response to the father’s motion includes allegations that begin with the father’s “unstable and chaotic” childhood and end with the couple’s “turbulent” relationship. In contrast, she paints herself as a hard-working immigrant woman who has made something of herself from practically nothing.
[21] This evidence is inconsistent with the evidence that the mother chose the father, not only as a partner, but as the father to her two children. Based on the mother’s evidence, she is too discerning to have bet her entire future and that of her children solely on the father’s undertaking to improve himself, allegedly made at the time the parties were married. If that is really what happened, one might question the mother’s own ability to act in the best interests of her children.
[22] While it is true that the father has admitted that he is a better person now than he was before the parties separated, that fact may be due as much to the effect of the toxic relationship that existed while the parties lived together as it is to the flaws in the father’s character.
Implausibility of some of the mother’s evidence.
[23] The mother’s affidavit evidence contains other allegations that I find difficult to accept in the absence of convincing viva voce evidence. For example, she deposes that she was so frightened of the father after the parties separated, but before the father left the matrimonial home, that she kept a cup beside her bed, presumably to urinate in, rather than leave the safety of her bedroom at night. She also deposes that she and the children were responsible for maintenance of the property. As I said above, the oldest child is still under the age of 5. He would have been even younger then.
The mother’s evidence about a separation agreement the parties signed.
[24] The father has appended to his first affidavit two copies of a document entitled “Separation Agreement”, dated July 2, 2021. The copies are identical, with one exception. That exception is the addition of the following words at the end of a paragraph in one of the copies:
Children to stay with Nadia Schell.
[25] The father deposes that the agreement was written by the mother. Although she denied writing it in her March 14 affidavit, counsel for the mother admitted during his submissions that the agreement is in his client’s handwriting.
[26] The father alleges that the words set out above were added by the mother after the original agreement was signed. That seems obvious from the photocopies alone. But the mother denies this, too. Instead, she deposes that the original agreement “is not legitimate” and that it was to be destroyed in favour of a new agreement, the one including the additional words. There are two problems with this evidence.
[27] First, the two agreements are identical in every way but for the added words.
[28] Second, as the mother points out, there were attesting witnesses. Not only are their signatures exactly the same and in exactly the same place on each version, but there is no affidavit evidence from either one of these witnesses to support the mother’s contention that they signed two versions and that the contested words were there when they signed the second one.
[29] The mother also alleges that she signed the agreement under duress. She deposes that the father refused to leave the matrimonial home until she signed it. However, the agreement appears to have been very neatly written, as opposed to having been written in a hurry. It seems unlikely that she would have taken such care to prepare an agreement that she really did not want to sign, especially in circumstances where she was in a hurry to have the father leave the home, as she deposes.
[30] Further, the terms of the agreement offer no circumstantial evidence of duress. They provide that the parties will have “joint custody” and “equal parenting time” of the children, to be scheduled by giving “reasonable notice.” Nothing in the terms of this agreement support the mother’s contention that it was signed because of coercion by the father.
Lack of opportunity to inflict the second alleged injury to the youngest child
[31] These difficulties with the mother’s evidence cause me to question whether the youngest child came home to the mother in March with the back injuries referred to above, as the mother alleges. The evidence about this injury is also called into question by evidence that the CAS visited with the father on the very day that he had parenting time with the children. While the evidence indicates only that the CAS were there in the afternoon (and not the specific time), it also indicates that the children were brought home at about 3:00 p.m. The injuries were not reported by the mother to the father until about 7:00 p.m. Further, these allegations of injury coincided quite closely with the first return date for the father’s motion, being March 25, 2022.
[32] For the foregoing reasons, I am not persuaded that the children are at risk while in the father’s care. Therefore, I believe that he should have unsupervised parenting time. The remaining question is exactly how much.
[33] The father proposes to increase the parenting time from what it was in February by roughly one day per visit. The mother proposes to reduce the parenting time by a number of hours per visit. The mother says that the reduction in parenting time will ensure that the oldest child gets on and off the school bus at the same place every day and provide the stability that the parties seem to agree he requires. She also submits that the schedule she proposes will facilitate her re-engagement in the workforce.
[34] I am not persuaded that the schedule should be changed at all from what the parties had agreed upon and that was in place in February and March 2022. The schedule accommodates the father’s shift work, I do not see that the oldest child may be getting on and off the bus at different places to be particularly harmful, and I fail to see how the mother’s proposed schedule will give her any advantage in returning to work.
Decision-making
[35] This leaves the issue of decision-making.
[36] There is no evidence to support the mother’s allegation that nothing would have been decided if she had not decided it unilaterally. The fact is the father has not been given an opportunity to exercise his decision-making responsibility. I believe that both parents are capable of making appropriate decisions. The difficulty is whether they can cooperate enough to do that. Only time will tell. In the meanwhile, to facilitate that cooperation, I would order that the parents communicate only through a communication application available to separated parents, such as “OurFamilyWizard”.
[37] The decisions that have been made unilaterally by the mother will remain in place. The father takes no issue with any of them.
Police Enforcement
[38] As both counsel acknowledge, police enforcement clauses are the exception, and not the rule. They have the potential to do far more harm than good. Children, especially children the ages of those involved in this case, can be severely traumatized when the police must intervene to enforce a parenting-time order.
[39] The evidence before me is insufficient to justify taking such a dangerous step. It consists only of threats made by the mother, with the exception of the incidents involving the CAS to which I have referred above.
COSTS
[40] The parties agreed at the conclusion of the motion that the successful party should be awarded costs in the amount of $500.00. In my view, the father was more successful. However, the mother has no money. She is currently not employed as a result of the role she assumed during the parties’ cohabitation. For that reason, while I fix the costs of the motions at $500.00, I order that they be paid to the father only in the discretion of the trial judge.
M.G. Ellies R.S.J.
Released: April 11, 2022
COURT FILE NO.: FS-21-0198
DATE: 2022/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyler Schell
Applicant
– and –
Nadia Schell
Respondent
ENDORSEMENT
M.G. Ellies R.S.J.
Released: April 11, 2022