Court File and Parties
COURT FILE NO.: FC-19-0267 DATE: 2022/05/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kelly Mae Jones, Applicant -and- Chris Widenmaier, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Cameron Croxall, for the Applicant Jonathan Solomon, for the Respondent
HEARD: May 18, 2022, by Video Conference
ENDORSEMENT on motion
[1] The Respondent Father brings a motion seeking expanded interim parenting time with the parties’ child, age 3.5 years, and that the parties use Our Family Wizard for communications.
[2] The Applicant Mother agrees to use Our Family Wizard, with each party being responsible for their own enrollment fees.
[3] The parties dispute the Father’s interim parenting time, including the level of supervision.
[4] The parties have one child, born in October of 2018. The child has primarily resided with the Mother since birth. The parties were involved in a brief dating relationship when the Mother became pregnant with the child. The parties never cohabitated.
[5] The Mother commenced this Application, seeking parenting orders and child support, in July of 2019. The Father initially denied paternity. His paternity was confirmed in November of 2019.
[6] The existing temporary order governing the Father’s parenting time was made on March 4, 2021, at which time the parties consented to the Father having access at the Rose Garden in Brockville, with the first visit being one hour, and thereafter visits to be up to 3 hours subject to the Rose Garden’s availability.
[7] The Father has been exercising parenting time at the Rose Garden since May 23, 2021, once a week, for one hour. The Rose Garden has not been able to accommodate longer visits.
[8] This matter is expected to proceed to trial in the fall of 2022. Several settlement conferences have been held, but the Father obtained leave to bring this motion by order of March 10, 2022.
[9] The affidavits of both parties included what appeared to me to be offers to settle (Father’s affidavit sworn March 2, 2022, para 22 and Ex F; and Mother’s affidavit sworn May 11, 2022, para 16 and Ex A), which would be improper, although neither objected to the other doing so. It is a concerning trend that parties are increasingly placing settlement discussions before the court. They need to stop doing so. I have disregarded these offers, except to the extent that the Mother’s counsel states that the Mother’s Ex A (paragraphs 3 to 9) represents her position on this motion. It is, again, unfortunate that this was not presented separately from putting settlement negotiations before me. In any event, I have not considered any aspect of the Mother’s Ex A except to the extent that it represents her position on the proper disposition for this motion.
[10] The issue for me to determine on this motion is whether the Father’s temporary parenting time under the March 4, 2021 order should be changed on a temporary basis, and if so, what interim parenting time is in the child’s best interests.
[11] For the reasons that follow, I find that it is in the child’s best interests for the Father’s interim parenting time to be expanded to be:
- The Father shall have temporary parenting time of one visit per week, with no requirement that such time be supervised;
- The exchanges for the Father’s temporary parenting time shall be done through the Rose Garden Exchange Centre in Brockville;
- On a temporary basis, the initial two visits shall be limited to a maximum of two hours in duration. Thereafter, the visits shall be extended to a maximum of three hours in duration, unless otherwise agreed in writing between the parties in advance.
[12] This is an Application under the Children’s Law Reform Act. The parties were not married.
[13] The sole criteria for the court to consider in determining parenting time is the best interests of the child (s.24). In determining the child’s best interests, the court is required to consider all circumstances of the child and, in doing so, give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being. The factors related to the circumstances of the child include those set out under s.24(3).
[14] The status quo will be generally be maintained on interim parenting orders pending trial in the absence of compelling reasons indicating a change is necessary to meet the child’s best interests: see for example, Papp v. Papp (1969), 1969 CanLII 219 (ON CA), [1970]1 O.R. 331 (Ont.C.A.); Grant v. Turgeon (2000), 2000 CanLII 22565 (ONSC); Kimpton v. Kimpton, 2002 CarswellOnt 5030; Eastern v. McAvoy, 2005 ONCJ 319; Chaput v. Chaput, 2021 ONSC 2809; Pereira v. Ramos, 2021 ONSC 1736. The purpose of an interim order is simply to provide a reasonable acceptable solution to a difficult problem until trial: Sypher v. Sypher (1986) 2. R.F.L. (3d) 413 (Ont.C.A.).
[15] There is a high test for varying interim parenting time orders on an interim basis. As Justice Kurz summarized in Thomas v. Wohleber, 2022 CarswellOnt 2211 (S.C.J.):
- There must be a “change in the circumstances of the child” since the time of the prior interim order.
- The change must be a material one; i.e. one that materially affects the child. That means that the change must be “substantially important”.
- The material change must raise “exceptional circumstances where immediate action is required”.
- The order that those materially changed circumstances compel the court to make must meet the best interests of the child.
[16] The Mother’s position reflects that she does not take issue that there has been a material change in circumstances of the child since the March 4, 2021, interim order was made. Prior to that order, the Father had not had contact with the child. The Father has now exercised supervised parenting time with the child for one hour a week, for approximately 12 months. The child is now familiar with the Father, and the Father has some parenting experience, although within a supervised setting. The Mother agrees that the child’s relationship with the Father is growing.
[17] It is not clear to me that the material change raises exceptional circumstances where immediate action is required. To the extent that the parties are unable to resolve the issues in this proceeding, it needs to move to trial. The court has had the capacity to hear a trial on this matter much earlier than the fall of 2022, but the Father has not pressed the matter to trial because he wants to develop a relationship with the child before he goes to trial. It is notable that in the Father’s Answer, he is seeking primary residence of the child, which would be difficult to accomplish if his relationship with the child is limited. But unrealistic pleadings do not justify convoluting and extending the court process by permitting repeated variations of interim parenting orders until a party gets closer to the end result to which they strive. This matter should have moved to trial faster that it has, and the Father’s delay in moving it forward should not justify an interim variation.
[18] As Justice Kurz wrote in Radojevic v Radojevic, 2020 ONSC 5868, and which he cited again in Thomas v. Wohleber:
“The test for a variation of an interim parenting order cannot be so loose as to amount to a simple reconsideration of a child’s best interests. It cannot leave it “open to deep pocketed and litigious parents to continuously litigate without having to bother to go to trial”. Nor can it allow parents to “jockey for different arrangements going into trial, in the hopes of effecting and then relying on a more advantageous status quo”. Such a standard would conscript the affected children into a drum and major corps for their parents' never-ending Civil War re-enactment.”
[19] Mother’s position, however, reflects that she does not dispute that the child’s best interests are met by moving the Father’s parenting time outside of the Rose Garden’s supervision. The Mother has proposed a graduated parenting time schedule that is supervised by the Father’s mother. The Mother’s proposed schedule provides more time to the Father than the order I make. The reason my order provides for less time is because I do not have any evidence before me that the Father’s mother consents to being involved to the extent proposed by the Mother. For this reason, I am not prepared to make the order sought by the Mother, as it requires the paternal grandmother’s extensive involvement and cooperation, which is not confirmed.
[20] The Mother argues that some supervision, and particularly by the paternal grandparents, is in the child’s best interests because the Mother is comfortable with the paternal grandmother as a supervisor, the Father has little parenting experience, and the child is very young.
[21] The Father opposes his parenting time being supervised by the paternal grandmother. He argues that he should not have any restrictions on his parenting when the child is in his care. He argues that the notes from the Rose Garden demonstrate that there is a basis to be concerned about his ability to care for the child.
[22] But the Father’s position ignores that he has had a very limited relationship with the child, in an artificial environment. The extent of his relationship with the 3.5 year-old child is weekly supervised one-hour visits for the last twelve months. He has not had the child in his care for more than one hour, or for any unsupervised time.
[23] I agree that it is in the child’s best interests for the Father’s parenting time to be moved outside of the Rose Garden, so that the child can have a more natural parenting visit with the Father. I am not prepared to order a significant change in the duration of the visits, however, because the child is still very young, has a limited relationship with the Father, and the Father also has limited experience parenting the child.
[24] I do not find that the child’s best interests require supervision, particularly given the visits will continue to be, on an interim basis, fairly time-limited. The limited duration of the visits address, in my view, the concerns about the child’s comfort level with the Father, the child’s comfort being away from the Mother (the primary parent) and the Father’s parenting ability. The duration of the visit is also intended to support a more naturalized parenting visit between the child and the Father, by allowing for some small activities and possibly a meal.
For the above reasons, I make the following orders:
Pursuant to the Family Law Act:
On consent, the parties shall communicate via “Our Family Wizard” for matters concerning the child. Each party shall bear their own cost for enrolling in Our Family Wizard.
The Respondent Father’s temporary parenting time with the child pursuant to the interim order of Justice Johnston dated March 4, 2021 is changed to be:
a. The Father shall have temporary parenting time of one visit per week, with no requirement that such time be supervised;
b. The exchanges for the Father’s temporary parenting time shall be done through the Rose Garden Exchange Centre in Brockville;
c. On a temporary basis, the initial two visits shall be limited to a maximum of two hours in duration. Thereafter, the visits shall be extended to a maximum of three hours in duration, unless otherwise agreed in writing between the parties in advance.
The exchanges for parenting time shall occur at Rose Garden exchange centre, in Brockville, Ontario.
The Respondent shall ensure that the Applicant has telephone contact information for himself during the parenting time, but phone calls shall only occur for emergency purposes only.
Costs
[25] If the parties are unable to agree on the costs of this motion, the Applicant may file submissions concerning costs on or before June 10, 2022. The Respondent may file submissions concerning costs on or before June 17, 2022. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern
Date: May 27, 2022
COURT FILE NO.: FC-19-0267 DATE: 2022/05/27
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Kelly Mae Jones, Applicant -and- Chris Widenmaier, Respondent
COUNSEL: Cameron Croxall, for the Applicant Jonathan Solomon, for the Respondent
ENDORSEMENT on motion
Justice P. MacEachern
Released: May 27, 2022