Court File and Parties

NEWMARKET COURT FILE NO.: FC-21-489-00 DATE: 20220502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Donald Christopher MacLellan, Applicant AND: Anna Sidiropoulos, Respondent

Counsel: M.H. Hilbing, Counsel for the Applicant H.E. Warren, Counsel for the Respondent

HEARD: April 27, 2022

Ruling on Motion

A. HIMEL J.:

Overview and Background Facts

[1] The Applicant (the “father”) seeks an equal parenting time order in respect of the three children of the marriage, E. (age 14.5), M. (age 12.5) and S. (age 9). The Respondent (the “mother”) seeks primary care of the children.

[2] The facts as I find them are derived from the parties’ affidavits and provide context for the analysis.

[3] The parties married on July 1, 2001 and separated on February 9, 2021. They continue to reside together in the matrimonial home.

[4] The parties disagree about their respective roles as parents, their historical and current work schedules and otherwise.

[5] The father rented a townhouse commencing February 1, 2022. However, as there is no temporary agreement in respect of parenting, he has declined to move to the new residence.

[6] The matter was conferenced by Bruhn J. on January 17, 2022. She expressed opinions regarding temporary without prejudice parenting time arrangements, a Voice of the Child Report (VOCR), without prejudice financial arrangements, the sale of the home and disclosure. While the endorsement makes reference to the possibility of Minutes of Settlement which could be converted to an Order, there is no such Order in the file.

[7] As per an endorsement dated February 17, 2022 (and a follow-up one on February 18, 2022), Jarvis J. determined that the parenting time and VOCR issues were urgent. The motion was scheduled for March 2, 2022.

[8] The father filed an affidavit dated February 2, 2022, and a reply affidavit dated February 28, 2022. The mother filed an affidavit dated February 23, 2022.

[9] On March 2, 2022, Corkery J. adjourned the matter as the material was incomplete and there was insufficient time to hear the motion. He set it to an assignment court on April 21, 2022, at which time it was scheduled to be heard on April 27, 2022.

[10] The father requests a 2/2/5/5 parenting time schedule in his affidavits and in oral submissions.

[11] The mother sought a 4/14 parenting schedule for the father (alternate weekends from Friday to Sunday and every Tuesday overnight) in her affidavit. However, in oral submissions the mother seeks an 5/14 parenting schedule (extending Sunday evening to Monday morning).

[12] The VOCR conflict related to the need for a VOCR, the timing of same (before or after the father vacates the home) and whether the VOCR was conditional upon a temporary schedule being implemented or the parenting time motion being adjourned.

[13] However, in the reply affidavit sworn February 28, 2022, the father states that he is not opposed to a VOCR being conducted by the Office of the Children’s Lawyer (OCL) in advance of the Settlement Conference. As there was an agreement, in principle, steps could have been taken to move this forward when the parties appeared before Corkery J. on March 2, 2022 (or by way of a 14B motion on consent).

[14] As the VOCR was still listed as an issue in the mother’s confirmation, I released an endorsement on the morning of the motion which included the following statements and directions:

(a) it is unclear why there was any dispute about the need for a Voice of the Child Report, given the UN Convention on the Rights of the Child and the ages of the children;

(b) the parties are expected to produce a consent as to whether the first choice is the OCL to conduct the VOC or whether a privately retained professional is preferred (and who that person will be). If the OCL is the first choice, I still require the name of a privately retained mental health professional and how that professional will be paid, in the event that that the OCL declines;

(d) I will be dealing with a temporary parenting time agreement if there is no agreement, however, I suggest that the parties work on same today and devise a consent;

(e) my order will continue until otherwise agreed to by the parties or ordered by the Court following a trial;

(f) I will also hear submissions about the parties attending for mediation once the VOC report is available; and

(g) anyone acting unreasonably can expect to pay costs, likely payable forthwith.

[15] At the commencement of the motion that afternoon the parties advised that they had reached an agreement in respect of a privately funded VOCR, and a mediation following the receipt of same.

[16] The motion proceeded on the issue of a temporary parenting time motion. I provided an oral decision that the children will reside with the father on alternate weekends from Friday to Monday, every Wednesday overnight and every Thursday (until 8:30 p.m. during the school year and overnight during the summer).

[17] I heard submissions on the issue of costs and received Bills of Costs and Offers to Settle.

[18] These are the reasons for the motion and costs decision.

Issues and Analysis

Parenting Time Schedule

The Law

[19] The claims in respect of custody and access are made under both the Divorce Act and the Children’s Law Reform Act. [1]

[20] In assessing parenting issues, section 16 of the Divorce Act, [2] provides direction to the Court. The considerations imposed by section 16 were reviewed by Mandhane J. in the recent decision E.M.BP. v. M.V.BP., 2021 ONSC 4264. [3] I summarize the relevant portions of paras. 52 – 71 below.

PARENTING ORDERS UNDER THE DIVORCE ACT

On March 1, 2021, the parenting provisions contained in the Divorce Act came into force and the amended provisions apply to the application before me: ss. 126(1)-(2).

Circumstances of the child

The Divorce Act calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. Subsection 16(3) sets out the factors related to the “circumstances of the child”, which include, but are not limited to, the following:

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,

Best interests of the child

When making a parenting order, IP must stay laser-focused on the child’s best interests: Divorce Act, s. 16(1). Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.

According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2) - 16(3).

Maximum contact

The Act states in s.16(6) that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”.

Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

[21] A recent publication on parenting time by Professor Nicholas Bala and Dr. Rachel Birnbaum is entitled, “Focusing on Children in Post-Separation Parenting.” [4] The article considers arguments made in favour of a presumption of shared parenting (that it is more just and fair) and against such a presumption (that it puts victims of family violence at further risk of harm). The Canadian government declined to include such a presumption in the recent Divorce Act amendments. The authors support the government’s decision and disagree with the notion that family justice professionals act out of economic self-interest when they decline to support a presumption. Instead, the researchers state as follows:

“Australia adopted such a reform in 2006, but abandoned it in 2012, as it resulted in increased litigation and endangered children. As in Canada, a majority of parents in Australia settle their cases, and many more make plans for shared parenting. But having a presumption in favour of shared parenting actually seemed to inflame the high conflict cases and cause more litigation. The problem with a legal presumption of shared parenting is that the cases where this is most relevant, those which are litigated, are atypical higher conflict cases….”

[22] Professor Bala and Dr. Birnbaum highlight the importance of considering the views of children about post-separation parenting arrangements.

“Research suggests that most children appreciate having significant, continuing involvement with both parents, but that many resent the rigidity of parents who insist on “equal” parenting arrangements. Children want flexibility, especially when they reach adolescence. Most teenagers want a role in making arrangements that meet their evolving needs. Many adolescents want a significant relationship with both parents, but prefer having a “home base” rather than a division of their time in way that parents might consider “fair”.

[23] The parties make various arguments in support of and against an equal time sharing schedule, which I consider below.

[24] The father’s arguments in support of an equal parenting time schedule are as follows: (a) he was the primary parent at times as the mother worked long hours and far away from the parties’ home; (b) the children need both parents equally and the status quo is equal parenting; (c) the father rented the townhouse in November 2021, on the basis of an agreement that there would be an equal time sharing arrangement; (d) the mother will need to return to her office on some days which could result in the children remaining at her home alone after school, or needing childcare. The father will be the parent to take the children to activities as his schedule is more flexible; (e) while the father initially planned to use before and after care, he can now commit to taking the children to and from the school busses; (f) his rental home is 12 minutes form the matrimonial home; and (g) on February 19, 2022 the mother went away for the weekend and the children enjoyed spending time with the father.

[25] The mother’s arguments in support of the father having care of the children on 4/14 (and now a 5/14) overnights are as follows: (a) she was the primary caregiver and that is the status quo; (b) the father leased a home outside of the school catchment area; (c) the mother has a flexible work schedule and will not require before or after care. They can walk to the busses from her home. At a later date when she is required to work in downtown Toronto, the mother will be home before and after school or the maternal grandmother will be present; (d) the parties never formalized any parenting or financial agreement; (e) the father may need the mother to provide before and after care for the children given his work schedule; (f) at the father’s home all three children will need to wake up early (6:15 a.m.) as E. needs to be at the bus stop by 7:15 a.m., notwithstanding that M. and S. do not need to be at the bus stop until 8:41 a.m.; (g) attendance at the school’s before and after care will create a long school day (7:20 a.m. until 5:45 p.m.,) and M. is too old for the program; (f) the children advised the mother that they wish to remain with her and go with the father a few times a week; (g) the father is motivated to have an equal sharing arrangement to reduce his child support obligations; and, (h) the father disengaged from the family, only became a more active parent in January 2022, and is trying to win over the children’s affections.

[26] Both parents make complaints about the other’s behaviours (mental health issues, family violence and alienation) which they each deny. The allegations are contained in the affidavit materials that were served in February 2022. However, I note that the York Region Children’s Aid Society (CAS) attended at the home on January 31, 2022 (following an anonymous report about adult conflict) and met with each of them. The CAS opted to close the file after that meeting. There has been no other CAS involvement. I therefore conclude that the CAS has no child protection concerns about either parent.

[27] I find that the children are suffering from the parents’ decision to continue to reside together. E., M. and S. are caught in the middle of a high conflict dispute. It appears that the parents are discussing same with the children, rather than protecting them from the conflict. The tense home environment could have been avoided if the parents had entered into a temporary without prejudice parenting time agreement at any time since February 2021.

[28] I also find that parents have a good relationship with the children and spend time with each of them. The children are fortunate to have loving and committed parents.

[29] The arguments in support of 7/14 overnights (father) or 4 or 5/14 overnights (mother) suggest that the parties are more interested in criticizing each other and winning the motion than on resolving this dispute. My findings are as follows:

(a) both parents can meet the children’s day to day needs;

(b) the status quo is that the family continues to reside in the same household. The status quo will change as the father will move out of the home now that a parenting time schedule is being ordered;

(c) I am not prepared to made credibility determinations in respect of who did what in respect of the children before separation (over 14 months ago), or more recently. The evidence before me has not been tested by way of cross-examination;

(d) even if it is true that the father has “stepped up his parenting” more recently (which he denies stating that he has always been actively involved), why is that bad (so long as the parent does not interfere with the other party’s relationship with the children)?

For some parents the marriage breakdown is a wake-up call. Post-separation it is important for each parent to be committed to ensuring that the children’s ongoing educational, medical, clothing, housing, food and other needs are met;

(e) given the challenges to find affordable housing in the GTA and York Region, the family is fortunate that the father was able to secure housing only 12 minutes away from the matrimonial home. Only one party needs to reside in the catchment area of a school;

(f) there is no issue with the children being home alone together or with the grandmother after school on the mother’s parenting time;

(g) the need to drop E. at the school bus at 7:15 a.m. requires M. and S. to wake up considerably earlier when they stay at the father’s home, which may be an issue for the younger children. It is appropriate to seek their views and preferences respecting same; and

(h) the father’s need to use before and after care (which he now states he no longer needs) would be a consideration, particularly since this would result in a much longer school day. Moreover, M. will be in grade eight next year. While she may be permitted to attend such a program, M. may be one of the only older children in a program designed for younger students. It is appropriate to seek the children’s views and preferences respecting same.

[30] Given the delay in having the motion heard, the availability of alternate housing for the father with the children and the tension in the home, it would have been in the children’s best interests for the parties to develop a without prejudice temporary parenting schedule that provides a “good” amount of time in each parent’s home.

[31] Since they were unable to do so, I have devised an order that recognizes both parties’ active involvement in the children’s lives and addresses the issues that arise because of E.’s early bus. If E. returns from school at 3:00 p.m. (rather than 3:40 p.m. as the father believes), I hope that the parents will agree that the father may pick her up at the matrimonial home after collecting M. and S., as their bus arrives at approximately 4:00 p.m.

Voice of the Child Report

[32] Kristjanson J. recently summarized the current state of the law in M. v. F., 2022 ONSC 505: [5]

[12] The obligation to consider the views and preferences of the child before parenting orders are made recognizes the agency of children and is based on the rights of the child. The United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Article 12 (“UNCRC”) specifically recognizes that children who are capable of forming their own views have the right to express those views in all matters affecting them, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial proceedings affecting them, either directly, or through a representative or an appropriate body. As Benotto, J.A. states in M. A.A. v. D.E. M. E. at para. 46:

The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests – which is engaged in all child-related matters – must incorporate the child’s view.

[33] The parties could have implemented the agreed-upon plan to obtain a VOCR shortly after the January 17, 2022, Case Conference or at least by March 2, 2022, whether or not the father agreed to move to his new residence. Either way, the parties could have agreed that the professional meet with the children before and after the move. Given the delay to have this motion heard, the VOCR could have been completed by now. Instead, the parties opted to leave this issue unresolved until today.

[34] The children’s views and preferences in respect of the regular schedule, before and after care, holidays, school breaks and summer will likely be addressed in the VOCR.

[35] The parties are encouraged to resolve the parenting time dispute at mediation (once the VOCR is delivered) or at the Settlement Conference in August 2022.

Next Steps

[36] In oral submissions the mother requested the opportunity to bring another motion on the parenting time schedule after the VOCR is delivered.

[37] The request is denied. The test to vary a temporary order is high, and with good reason. If the parties cannot resolve this issue on consent, a trial is warranted. Judicial resources are limited, as is the parties’ ability to pay ongoing legal fees. The children need the conflict between the parents to end. The trial can likely be heard in November 2022.

Costs

[38] The principles guiding the court’s exercise of its discretion pursuant to the Family Law Rules are well-established. The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; [6] and (4) to ensure that cases are dealt with justly. [7]

[39] Family law litigants must act in a reasonable and cost-effective way: they should, and will, be held accountable for the positions they take in their litigation. [8] As observed by the Court of Appeal in Beaver v. Hill, 2018 ONCA 840, [9] reasonableness and proportionality frame the exercise of the court’s discretion: the amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”: Boucher v. Public Accountants Council for the Province of Ontario. [10]

[40] At the conclusion of the motion, I advised the parties that I was not inclined to order costs, unless there are relevant Offers to Settle, as there was divided success. I note that:

(a) my order is neither a 5/14 nor a 6 or 7/14 overnight schedule. It is 5 overnights (school year) plus evening including dinner, and 7/14 overnights (summer);

(b) the VOCR issue was not resolved until today (although agreed-to in principle on February 28, 2022);

(c) the mother served an Offer to Settle on February 27, 2022, that a VOCR be conducted, and the parenting motion (then scheduled for March 2, 2022) adjourned pending receipt of the report;

(d) the mother served a second offer on April 23, 2022, that a VOCR be conducted and that the father have care of the children 5/14 overnights. This offer was made four days before the motion. Previously, she proposed that the father have care of the children 4/14 overnights;

(e) the father served an Offer to Settle dated March 8, 2022, that provides for a 6/14 overnight schedule and a VOCR. The March 8, 2022 offer also deals with section 7 expenses, no child support and his use of before and after care. The terms are not severable;

(f) on April 20, 2022, the father prepared revised partial Minutes of Settlement relating to the matter of the motion and other related issues. However, while the father proposed a without prejudice parenting time schedule of 5/14 overnights, the proposed agreement also dealt with no table amount of child support, section 7 expenses, property and other issues. The terms are not severable, nor is this a Family Law Rule 18 Offer to Settle; and

(g) the father served a second Offer to Settle on April 25, 2022, that he have care of the children on 6/14 overnights, a VOCR be completed, and the motion be adjourned until after the VOCR is produced. The terms are not severable.

[41] It is unfortunate that the parties collectively incurred legal fees of almost $30,000 to argue about the temporary parenting time schedule, whether the children should be in the father’s care for 4, 5, 6 or 7 overnights in a 14 night period and the VOCR issue. The money could have been better spent meeting the children’s current and future needs.

[42] I am not prepared to award either party costs, given their unreasonable behaviour. An award of costs will likely further inflame the situation. They have each expended a similar amount of legal fees, and neither should be rewarded with a costs order.

Child Support

[43] The issue of child support was not before me at the motion. However, it was raised by the mother in her materials, and addressed by the father in his draft interim Minutes of Settlement and one Offer to Settle. Perhaps my comments below can assist the parties to resolve this issue.

[44] It is helpful in cases such as this to think creatively about child support given the amount of time the children will be residing in each home.

[45] It is important to consider the cost/benefit analysis of litigating this issue.

[46] If the parties agree to forgo the payment of the table amount of child support, they are expected to share more expenses (such as all clothing, school lunches, cell phones, allowance, and expenses that may not qualify as section 7 expenses) than if the table amount is being paid. In such a scenario the parties may wish to devise a plan to meet quarterly or otherwise to address these expenses.

Order to Go as Follows:

Commencing May 13, 2022 the father shall have care of the children on alternate weekends (pick up at the school buses and/or the mother’s home (as agreed)) and drop off on Monday at the school buses.
The children to be returned by the father to the mother’s home on Mother’s day at 10:00 a.m.
The children to be taken by the mother to the father’s home on Father’s day at 10:00 a.m. (if that is not his weekend).
Commencing Wednesday May 4, 2022, the father shall have care of the children every Wednesday, as per paragraph 1 above.
Commencing Thursday May 5, 2022, the father shall have care of the children after school/camp (as per paragraph 1 above) with a return to the mother’s home at 8:30 p.m. during the school year or to camp on Friday morning.
Each parent may have two weeks (non-consecutive) parenting time during the summer. They are to advise each other of their preferred weeks by June 1, and they are they to align the weeks with the start or end of their usual weekend.
On consent, there shall be a VOCR completed by with Dr. Shely Polak.
On consent, there shall be a mediation with Herschel Fogelman (to take place before the Settlement Conference).
The parties are directed to review the AFCC Ontario Parenting Guide (www.afccontario.ca), the High Conflict Tip Sheet, the BIFF communication protocol and the For Kids’ Sake Protocol.
No costs are payable by either party.