Court File and Parties
COURT FILE NO.: FS-21-0104 DATE: 2022 01 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: C.A.L. v. R.J.L.
BEFORE: MANDHANE J
COUNSEL: James Peluch for the Applicant Sean Plat for the Respondent
HEARD: January 11, 2022 via Zoom
ENDORSEMENT
[1] The only issues on this motion relates to parenting time for the Father and whether to order a s. 30 assessment of the three children of the marriage.
[2] For reasons that follow, I find that the parties shall maintain the 2/2/3 schedule on a temporary, without prejudice basis. There shall be no additional conditions on the Father’s parenting time.
[3] I refuse to order a s. 30 assessment at this time.
Overview
[4] The parties were married on May 6, 2006 and separated in the Fall of 2020. They have three children: K., J. and B. The children are generally healthy, though Kingston has a diagnosed learning disability and has associated needs.
[5] The parties’ living situation is less than ideal and, hopefully, temporary. The Mother lives in the upper portion of the house, while the Father lives in the “in-law” suite in the basement. While this may have once been in the children’s best interests in terms of adjusting to the new family reality, it has long run its course. Their close quarters are now causing new issues.
[6] The parties both have full time jobs. The Mother is currently working from home and available to take care of the children. She occasionally relies on her parents to help.
[7] The Father works two days per week in Guelph and up to three days per week in London. He rarely stays in London overnight. When he is unable to care for the children during his parenting time, they are cared for by the paternal grandmother. No one has any issues with the care that “nanna” provides. While the Father travelled a lot prior to separation, he doesn’t anymore and doesn’t expect to in the foreseeable future.
[8] The parties are deeply distrustful of one another. For example, the house is equipped with a home security system that both parties have used to monitor the other person’s whereabouts post-separation. The Father admits to monitoring the Mother’s location immediately after separation when he suspected infidelity, while the Mother relies on a chart that lists the precise times that the Father is outside of the home based on door sensor data.
[9] The Mother brings this motion seeking a s. 30 assessment of the children because she suspects the Father is speaking poorly about her to the children, taking samples of the children’s hair for DNA testing, and exposing them to “psychological abuse” by monitoring them through the home security system. She “wonders about the long-term impact” on the children.
Parenting Time
[10] Subsection 16.1(1) of Divorce Act allows me to order for parenting time. “Parenting time” is defined as time that a child spends in the care of either parent, whether the child is physically with that person during that entire time.
[11] My powers under s. 16 are broad and purposive. I can allocate parenting time between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that I consider appropriate to secure the child’s best interests: Divorce Act, ss. 16, 16.1, 16.2.
[12] When making a parenting order, I 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 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.
[13] 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).
[14] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the Divorce Act. The legislation 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.
[15] To date, the parents have worked cooperatively to follow the advice of their parenting coordinator. They have adopted a 2/2/3 parenting schedule. This allows the children to maintain a strong bond with both parents.
[16] The parties are generally agreeable to continuing with this parenting schedule and formalizing it through a temporary, without prejudice order. However, the Mother asks me to also give her the right of first refusal when the Father is unable to care for the children for over five hours, and an order that the Father provide a travel itinerary when he is away overnight.
[17] The Mother asks me to allow her the opportunity to care for the children when the Father is away for more than five hours. She says that she is working from home and available to care of them. She wonders why they should be cared for by a grandparent rather than their mother.
[18] Here, it is not in the children’s best interests to order a first right of refusal for either parent. For the most part, both parents are available to care for the children during their parenting time. The Father has made arrangements with his employer to ensure minimal impact on his parenting time. There are also no concerns with the care the children receive by their paternal grandmother. It is clearly in their best interests to develop healthy relationships with all their extended family members.
[19] Moreover, I find that it is necessary to the children’s long-term emotional well-being for the parents to begin to establish and maintain clear boundaries between their households. It is well-established that children are negatively harmed by parental conflict during and after separation. Given the parties’ living situation, their propensity to monitor each other’s activities and their close living quarters, it is imperative that that the parents begin to disentangle their lives and allow the children to develop independent relationships with each of them (and their families). In relation to Kingston, it is important that the parents have a consistent and predictable parenting schedule.
[20] Here, I am concerned that the Mother may misuse an order for the right of first refusal to monitor the Father’s whereabouts and activities during his parenting time. The Father should not have to report to the Mother each time he is away for longer than five hours, nor should he have to provide her with his travel itinerary for an overnight business trip. It is sufficient that he be reachable on his cellular phone in case of emergencies.
[21] Finally, an order for a right of first refusal would require more (rather than less) communication between the parties. This has the potential to further exacerbate their difficult relationship and is not in the children’s best interests.
Section 30 Assessment
[22] The Mother seeks a s. 30 assessment of the children because she suspects the Father is speaking poorly about her to the children, taking samples of the children’s hair for DNA testing, and exposing them to “psychological abuse” by monitoring them through the home security system.
[23] The Respondent/Father opposes the orders sought. He says that there is no evidentiary basis for ordering a s. 30 assessment, that the credibility issues can be determined at trial and that such an assessment is not in the children’s best interests nor proportionate to the litigation.
[24] While the Father admits speaking poorly of the Mother within earshot of the children immediately after separation, he denies speaking poorly of her anymore. He denies the other allegations altogether and says that he is worried about putting the children in the middle of the dispute through a section 30 assessment.
[25] Indeed, the Mother offers scant evidence in support of her suspicions. For example, she admits that child welfare agencies have investigated and found no protection concerns, and that there have been no complaints to police.
[26] The Mother’s evidence regarding the Father subjecting the children to DNA testing is based on the hearsay statements of the children and is not particular probative. The father denies the allegations.
[27] Overall, the children are healthy and happy. They are involved in school and extracurricular activities. The youngest child struggles with separation anxiety when leaving the care of her Mother, which is developmentally normal given her young age (4 years). The middle child craves personal privacy, especially online. While the eldest child has a diagnosed learning disability, there is no evidence that this is linked to the Father’s behaviour. He is at times defiant and argumentative, all of which is developmentally normal for his age. The Mother has not sought any sort of diagnoses for the other children.
[28] I note that, in general, assessment should not be ordered routinely given their expense and intrusive nature: Ryan v. Scott, [2013] O.J. No. 3301 at para. 16. Assessments are not fishing expeditions. The party seeking an assessment bears the onus of justifying the request and establishing that it is likely to provide evidence that pertains to the welfare of the children that would not be discoverable otherwise. The party must establish there is a need for the type of information that only an expert can provide. Glance v. Glance, 2000 CanLII 20393 (ON SC) at para 10; Baillie v. Baillie, 2012 ONSC 3728 at para 42.
[29] Each case must be determined on its own facts, with a weighing of the benefits and potential harms of such an assessment: Glick v Cale, 2013 ONSC 893 at paras. 40-46. Applying the criteria set out by Justice Kiteley in Glick, I note the following:
a. The parents were both involved in the care of the children before and after separation and there are no allegations of neglect or abuse of the children;
b. The parents were able to work with a parenting coordinator to establish a consistent parenting schedule for the children post-separation;
c. The parents have an unhealthy relationship that is exacerbated by their close living quarters and their monitoring of one another’s movements;
d. There are no clinical or pathological concerns in relation to the children or parents;
e. The assessment is likely to be intrusive and time-consuming, and the youngest child may have difficultly participating effectively;
f. The parents have a combined income greater than $250,000, and an assessment would cost approximately $25,000;
g. The parents are agreeable to alternatives to an assessment, including involving the OCL; and
h. The children have attended three sessions of counselling, but the Father refused to provide his consent to further therapy sessions.
[30] In my view, weighing the factors above, this is not an appropriate case for a s. 30 assessment. Foremost, the issues between the parties clearly arise from the parties’ dysfunctional relationship post-separation. The court does not require an expert assessment to fully canvas those issues at trial.
[31] Moreover, I am concerned that ordering an assessment will be overly intrusive and put the children at the very center of their parents’ dispute. This will not be lost on the two older children and may very well be harmful to their continued bonding with both parents.
[32] Finally, there is an obviously less intrusive option available on consent, namely, ordering involvement of the OCL. This will allow the children’s views and preferences to be before the Court.
Order
[33] The parents shall work cooperatively to make parenting arrangements with the children’s best interests at heart. The parents recognize that the children’s best interests shall be paramount in relation to any dispute, conflict, or concern regarding the parenting of the children.
[34] The parents shall recognize the children’s need for a positive, ongoing, and stable relationships with both parents. The parents shall make every effort to actively foster and facilitate the children’s positive relationships with the other parent and with members of the other parent’s extended family.
[35] The parties shall maintain the 2/2/3 schedule on a temporary, without prejudice basis. This schedule shall apply to all three children:
a. Week One: The children reside with:
i. the Father from Monday at 4:30 PM until Wednesday at 4:30 PM;
ii. the Mother from Wednesday at 4:30 PM until Friday at 4:30 PM; and
iii. the Father from Friday at 4:30 PM until Monday at 4:30 PM of Week Two.
b. Week Two: the children reside with
i. the Mother from Monday at 4:30 PM until Wednesday at 4:30 PM,
ii. the Father from Wednesday at 4:30 PM until Friday at 4:30 PM, and
iii. the Mother from Friday at 4:30 PM until Monday at 4:30 PM of Week One.
[36] The parties shall use Our Family Wizard for all communications, which shall be limited to matters related to the children.
[37] The parents shall communicate with one another in a reasonable and cordial manner. The parents shall actively and on a timely basis advise their extended family to maintain this same standard and to refrain from criticizing the other parent or their extended family in front of the children.
[38] The parents shall refrain from any manner of conflict, or criticism or disparagement of the other parent or their extended family, whether direct or indirect, including and especially when the children are present or nearby.
[39] The parents shall respect each other’s privacy and shall not engage the children in any discussions or questioning about the other parent’s personal life or activities. The parents shall refrain from any form of interference, direct or indirect, into the life, activities or routines of the other parent.
[40] The Father shall provide his consent for the children’s continued therapeutic counselling. The Father shall have the authority to speak directly to, and receive information directly from, all professionals working with the children, including but not limited to physicians, healthcare professionals, teachers, coaches, etc.
[41] On consent, the parties involve the OCL in this matter. The parties shall send any related documentation to my judicial assistant, Karen Bunbury, on or before February 1, 2022 at Karen.Bunbury@ontario.ca.
[42] The Mother was unsuccessful on her motion. The Father is entitled to costs on a partial indemnity basis in the amount of $7500, all inclusive.
MANDHANE J
DATE: January 14, 2022
COURT FILE NO.: FS-21-0104
DATE: 2022 01 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: C.A.L. v. R.J.L.
ENDORSEMENT
MANDHANE J
DATE: January 14, 2022