Court File and Parties

Court File No.: 325/22 Date: June 27, 2022 Superior Court of Justice – Ontario Family Court

Re: Molly Camack Grundy, Applicant And: Ronald Connor Bradshaw Dickie, Respondent

Before: Sah J.

Counsel: Eric Vallillee, for the Applicant Brenda Barr, for the Respondent

Heard: June 8, 2022

Ruling on Motion

Overview

[1] There are two motions before the court: the applicant’s Form 14B: Motion Form, dated March 23, 2022, and the respondent’s notice of motion, dated May 3, 2022.

[2] The issues to be determined include:

a. the applicant’s request for an interim restraining order;

b. both parties’ requests for exclusive possession of the matrimonial home or, in the alternative, the respondent’s request for a nesting order;

c. what parenting time schedule is in the children's best interest; and,

d. whether a decision-making order is required at this time.

[3] Eight affidavits were filed in support of the two motions. Each party filed a factum.

[4] At the conclusion of argument, I indicated that my decision was reserved and made an endorsement which provided, on an interim, interim without prejudice basis, the respondent parenting time with the children. The previous interim, interim restraining order and exclusive possession order remained in effect pending the release of my decision.

[5] In a little over two months, this file has come before six judges and appeared in court five times.

[6] At the end of March, the applicant brought an application and an urgent motion, in writing and without notice, substantively seeking:

a. interim decision-making,

b. primary residency of the children,

c. supervised parenting time with the respondent,

d. exclusive possession of the matrimonial home,

e. a retraining order,

f. child support, and

g. spousal support.

[7] The respondent was served with the applicant’s material, an order made without notice to him granting the applicant exclusive possession of the matrimonial home, and a restraining order prohibiting him from communicating or contacting the applicant or the children or coming within 250 meters of the matrimonial home. The respondent then brought a countermotion.

[8] On March 25, 2022, Aston J. granted the applicant exclusive possession of the matrimonial home, requiring the respondent to vacate the property forthwith. He also restrained the respondent from directly or indirectly contacting and communicating with the applicant or the children except through counsel. Further, the respondent was restrained from coming within 250 meters of the matrimonial home or any location where he knew or ought to have reasonably known the applicant or the children were located, except for court appearances.

[9] This matter returned before Price J. on March 29, 2022, at which time he ordered that the terms of Aston J.’s order continue on an interim without prejudice basis. Case conference and motion dates were set.

[10] Mitrow J. conducted a case conference on May 24, 2022. He maintained the restraining order as it related to the applicant but not to the children. He maintained the exclusive possession order. Mitrow J. adjourned the issues of interim child support and spousal support for argument on August 23, 2022, at 9:30 AM.

[11] Further, pending the adjournment and pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“DA”), Mitrow J. ordered, on an interim without prejudice basis, that the respondent have the eldest child in his care for the next two weekends from Friday at 5:00 PM to Sunday at 6:00 PM, and the youngest child in his care each Saturday and Sunday from 9:00 AM to 6:00 PM. The respondent’s parenting time was to occur at the residence of the paternal grandfather, but this did not prevent him from taking the children into the community. Further, the respondent was granted parenting time for the following two Wednesdays from noon to 6:00 PM with both children. As a condition of the adjournment, the respondent was to pay the applicant $800 to be credited to child or spousal support.

Procedural Duties of the Parties and Counsel

[12] I pause here to make the following observations.

[13] First, while issues of urgency, including issues dealing with the safety of a party and children, are often suitably addressed on a 14B Motion, an urgent motion does not open the door to request an extensive list of relief that should be appropriately pled in an application and subject to the standard track of cases in the Ontario Superior Court of Justice.

[14] Rule 14(10) of the Family Law Rules (“Rules”) specifically states that this type of motion is limited to procedural, uncomplicated, or unopposed matters. Apart from the exceptional circumstance, Form 14B motions should be used to seek a court date for a special appointment with the judge, leave to file material on consent, an adjournment with or without terms, or an order vacating a date.

[15] This court will not accept the use of this type of motion as a forum for affidavit wars to address every issue between the parties.

[16] Second, the parties and counsel are reminded of their obligation to help the court promote the primary objectives of the Rules. As this case moves forward, they can accomplish this by ensuring that each issue proceeds in ways that are appropriate to their importance and complexity, saving expense in time, and giving appropriate court resources to cases, while considering the need to give resources to other cases. This must be done in a fashion that ensures that the procedure is fair to each party. See r. 2(2)-(5) of the Rules.

Restraining Order

[17] The applicant seeks a continuation of the restraining order in place. The respondent takes the position that a restraining order is not necessary or required.

[18] The following legal principles have been considered.

[19] The court may make an interim or final restraining order against a spouse if the applicant has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody: ss. 46(1) and (2) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

[20] The court has the jurisdiction to restrain the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody, to restrain the respondent from coming within a specified distance of one or more locations, to specify exceptions to the foregoing, and to order any other provision that it considers appropriate: s. 46(3) of the FLA.

[21] The applicant bears the onus on a balance of probabilities to convince the court that an order is required: Gauthier v. Lewis, 2021 ONSC 7554, at para. 36.

[22] Further, in Gauthier the court stated the following:

33 In considering whether to grant such an Order the court must ensure that an appropriate balance is maintained between ensuring that victims of violence are protected while also ensuring that such orders, which can have criminal consequences and which are registered in CPIC, are only granted with good reason and where a clear case has been made out.

34 It is not sufficient to grant such an order on the basis that there would be no harm in granting the order.

35 A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.

37 The person's fear may be entirely subjective so long as it is legitimate. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed.

38 That stated, a restraining order is not a remedy for bad manners, poor communication and suspicion.

[Citations omitted.]

[23] In McCall v. Res, 2013 ONCJ 254, Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order. Spence J. noted the following: the fear must be reasonable; it may be entirely subjective so long as it is legitimate; and it may be equally for psychological safety as for physical safety.

[24] McDermott J. in PF v. SF, 2011 ONSC 154, stated at para. 33:

The strength of the evidence in support of the restraining order has to be considered in light of Callon v. Callon, [1999] O.J. No. 3108 (Ont. Div. Ct.) which was a motion for leave to appeal an order restraining a party from communicating to third parties about the moving party. The court considered the issue of an interim restraining order under s. 46 of the Family Law Act. In their brief reasons for judgment, the panel stated that the "purpose of Section 46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible." In other words, the reason for a restraining order is to provide the litigants with some element of order in the context of difficult and acrimonious litigation. This is particularly important where there is a child involved as in the present case. [Emphasis added.]

[25] The applicant deposed that the respondent set specific requirements and rules for her, instructing her what brand names to purchase from the grocery store and giving her specific directions regarding the food that she was to cook and how she was to cook it. She claims the respondent became angry if her cleaning did not meet his standards and he would often yell in front of their son. She views his conduct as controlling.

[26] The respondent deposed that he is responsible for most of the cooking, including breakfasts, dinners, and cooking on the weekend. As a result, he creates a grocery list. He denies that he is controlling.

[27] The applicant deposed that the respondent is interested in ninjas and martial arts, often showing off his moves, getting up into her face to demonstrate them without touching her.

[28] The respondent deposed that he is not trained in martial arts, boxing, wrestling, or ninjutsu. He admits to enjoying video games, some of those involving ninjas and superhuman moves. He admits to acting out the moves that he sees in video games but denies that this was intended to be a threat.

[29] The applicant claims to have felt threatened, shocked, and horrified after the respondent showed her a video online of people being beheaded in execution.

[30] The applicant claims the respondent was critical of her as a mother. After a miscarriage in September 2020, the respondent demanded that she still be social, see friends, and try to look happy for him despite escalating conflict at home behind the scenes. The respondent claims that he is concerned about the applicant’s mental health and the effects the pandemic, the miscarriage, and caring for two young children have had on her.

[31] Following the birth of the parties’ second child in November 2021, the applicant claims that the respondent became more irritated. He has screamed at her and told her to shut up. She alleged that he engages in verbal abuse: he screams at her, others (other drivers, for example), and the kids.

[32] The applicant admits that the respondent has not openly or explicitly threatened her with specific violence. She submits that the combination of his interest in guns, ninja moves, and beheading videos must all be taken into consideration and put into context. In particular, she claimed the respondent showed her these videos after becoming angry of her desire to not have sex. She claims this has occurred a few times in their relationship. In combination and in context, the applicant argues that this behaviour amounts to family violence.

[33] The applicant further alleges financial abuse. She deposed that the respondent told her last year that all the money was his, that the home they lived in was in his name, and that if she did not wish to have sex with him, for example, that he would leave her penniless and take everything, including their children.

[34] According to the applicant, she found tabs open on the family iPad showing the results of internet searches about gun purchases and obtaining a gun license. The applicant believes the respondent left those tabs open intentionally to scare her.

[35] She deposed that she is worried that he already has a gun or might obtain one. She fears that if she does not comply with his demands for sex and better housekeeping, he might use it.

[36] The respondent denies ever abusing or making threats against the applicant or the children. He deposed that he poses no threat to them.

[37] The respondent claims there are no allegations that he has ever been violent or negligent towards the applicant or the children. He believes there is no basis for her fears. The respondent claims he does not have a criminal record and he claims there is no history of abuse. He submits that he would never threaten or be violent towards the applicant or the children.

[38] He does not view his internet search regarding firearms to be an issue. As detailed below, he claims to be looking into firearms for sport shooting with his uncle.

[39] The respondent alleges that at one point, the applicant encouraged him to attend target practice with one of her family members, but he was unable to do so.

[40] Regarding the iPad search, the respondent claims to have been open with the applicant about this. He alleges that he was searching the Internet and then went to bed. He was not trying to hide or conceal his searches.

[41] The respondent denies having applied for a gun license, claiming he would need to take a course first. He believes there is a 12-month wait list to get approval. He registered for the course but because the applicant informed him that he could not see his children if he proceeded, he cancelled his enrollment. He explains that his involvement with guns is limited to recreational shooting. He often goes shooting with his uncle.

[42] The respondent admits to yelling and swearing during arguments with the applicant but denies making the threats she alleges.

[43] The applicant's friend, Ms. Szewczyk, deposed that she personally witnessed the respondent display signs of anger and aggression towards a cab driver and the applicant.

[44] While the initial restraining order applied to both the applicant and the children, at the case conference the restraining order was restricted to the applicant only.

[45] The parties agree that the ongoing nature of the requested restraining order relates to the applicant only.

[46] The applicant failed to establish, on a balance of probabilities, that she has reasonable and legitimate grounds to fear for her safety to warrant the continuation of the restraining order.

[47] On the record before me, the respondent's interest in guns was known to the applicant. She encouraged him to attend target practice. I accept that he was not attempting to conceal evidence regarding his interest in guns from the applicant. I cannot find that the applicant’s fear stemming from his gun interest is legitimate in the circumstances.

[48] His recent internet search on the family tablet was a poor decision; however, the applicant can not rely on a restraining order to forestall her perceived fear of possible harm. A restraining order can not be a remedy for the respondent’s poor decisions.

[49] Parents conducting research on adult issues on a family tablet should take great caution to ensure that tabs and screens are closed once they are not longer using the tablet. The respondent ought to have known better and should do better in the future.

[50] I am troubled that the respondent is viewing beheading videos and sharing these videos with the applicant. The applicant submits that she is threatened by the respondent showing her videos of public beheadings recorded in foreign countries during arguments, with him commenting to her that her behaviour was “driving him” to watch the videos. The applicant has subjective fears as they relate to these videos.

[51] While it is not necessary for the respondent to have committed the act of beheading to justify a restraining order, the record before me does not lead to a conclusion that the applicant has a legitimate fear of such an act being committed. This finding remains whether these videos are considered in isolation or in combination with other behaviour of the respondent.

[52] The applicant admits that the respondent has never come into physical contact with her with his ninja moves. While the act itself does not need to be committed to warrant a restraining order, I question the extent of the legitimacy of this fear.

[53] The applicant did not dispute that the respondent is not trained in martial arts, boxing, wrestling, or ninjutsu. The respondent admits to acting out the moves that he sees in video games. I cannot find the applicant has a legitimate fear of such violence against her.

[54] The purpose of an interim restraining order is to provide litigants with some element of order in the context of difficult and acrimonious litigation. In this case, although a restraining order is not appropriate, the parties could benefit from direction, as the record clearly indicates that litigation is acrimonious. I take the view that this can be accomplished in other ways, such as crafting parenting terms to ensure the applicant's concerns are addressed without imposing burdensome restrictions with criminal consequences.

[55] As such, the current restraining order in place shall be lifted.

Exclusive Possession or Nesting Arrangement

[56] The applicant requests that the exclusive possession order in her favour continue. The respondent requests that the exclusive possession order be lifted such that he be able to return to the home to engage in a nesting arrangement. In the alternative, the respondent requests that he be granted exclusive possession of the matrimonial home.

[57] I have considered the following legal principles.

[58] Both spouses have an equal right to possession of a matrimonial home: see FLA s. 19.

[59] Section 24 of the FLA allows the court to make a temporary or interim order to direct that one spouse be given exclusive possession of all or part of the matrimonial home for the period that the court directs.

[60] The FLA also sets out the criteria the court shall consider when determining whether to grant an order for exclusive possession. The relevant provisions at s. 24(3) include:

a. the best interests of the children affected;

b. any existing order relating to property and support;

c. the financial positions of the parties;

d. any written agreement between the parties;

e. the availability of other suitable and affordable accommodations; and

f. any violence committed by a spouse against the other spouse with the children.

[61] When considering the criteria and factors relevant to the determination of an order for exclusive possession, the children's best interests are paramount: Menchella v. Menchella, 2012 ONSC 6304, at para. 33. A primary care parent has only been granted exclusive possession in circumstances in which:

a. there is conflict in the home that is adversely affecting the child;

b. the stress in the home has become unbearable and leaving the home would be disruptive to the children;

c. it is not in the children's best interest for parents to continue living under the same roof; or

d. an order for exclusive possession is otherwise justified.

[62] In another decision of the same proceeding, Menchella v. Menchella, 2012 ONSC 1861, McGee J. provided an overview of the legislative intent behind the exclusive possession provisions of the FLA and gave context to the behaviour to be assessed:

15 An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.

16 The legislature clearly intended spouses and their children to be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from a marriage breakdown are determined. Section 24(4) speaks directly to maintaining a stable residence for children whose parents have separated. The statutory exception to continued possession of a home arises primarily in circumstances in which continued joint occupation is a potential or real threat to the safety or wellbeing of a child or a spouse.

Best Interest of the Children

[63] A fulsome best interest analysis is set out below. Here, I offer a general review of the evidence relative to this issue.

[64] The children are currently three and a half years old and eight months old. They have been in the applicant's primary care and control since March 2020 as the result of an order made on a without notice basis.

[65] Prior to this, the applicant claims that she was the primary caregiver and a stay-at-home mother. The respondent works full-time from the home. He claims that he takes an active role in caregiving when he's not working and is responsible for cooking the majority of the family meals.

[66] It is likely that the applicant has played a greater role in the children's care, but the respondent has played a large role in their lives that I do not underestimate. It is undisputed that the children have spent Wednesdays with the paternal grandparents.

[67] The respondent has concerns about the applicant's mental health. He believes she is suffering from depression. He claims that she is emotionally unavailable for the children at times. He states that the last couple of years have been challenging for her; a difficulty exacerbated by caring for two small children, weathering the pandemic, and being the primary caregiver to her parents.

[68] The applicant has concerns about the respondent’s caregiving ability. She claims he has yelled or sworn at her in front of the children and, at times, has directed his anger at the children. She claims that he has put his anger and preoccupation with work-related issues ahead of his children’s needs and that he often becomes frustrated while caring for them. The applicant submits that the respondent exposes the children to parental conflict, which is not in their best interest.

[69] The respondent denies this and files two third-party affidavits which speak to his active and appropriate role in the children's lives.

[70] At three and a half years old and eight months old, children require consistency and routine. On this highly contested record, it is difficult to assess all the factors to be considered in the best interest analysis. Both parents love and wish to have a strong relationship with the children. Each parent wishes to support the development of the children. The children have a strong relationship with their paternal grandparents. Despite their differences, both parents concede the other is a good parent, with some limitations. The history of care suggests that the children have been in the care of the applicant more so than the respondent.

[71] The respondent requests that he be permitted to return to the home. If the court does not find that suitable, the respondent requests that he have exclusive possession of the matrimonial home, as he has concerns about the applicant’s ability to care for the children without assistance, noting her struggles prior to separation.

[72] I accept that there is tension in the home. The conflict described in the material before me suggests that such conflict is between the parties.

[73] In my view, it is in the children's best interests for their parents to physically separate. Living in the same home has the potential to create an atmosphere of conflict. It would be unfair and inappropriate to potentially expose the children to ongoing conflict.

Existing Order

[74] There is no existing order relating to property.

[75] Mitrow J. ordered that the respondent pay the sum of $800.00 to be credited to child or spousal support.

[76] Mitrow J. also adjourned the issues of interim child and spousal support to August 23, 2022. There are no existing orders for ongoing support.

Written Agreement

[77] There is no written agreement between the parties.

Financial Positions of the Parties

[78] The applicant is not employed. She has no source of full-time income. The youngest child was born prematurely in November 2021. She claims to have become a stay-at-home mother per the respondent’s request.

[79] The respondent is employed on a full-time basis. The applicant deposes that he works from home for a software development company as a project manager. The respondent deposed that his income is approximately $111,165.84, based on his February and March 2022 pay stubs.

[80] The financial positions of the parties favor the applicant having exclusive possession.

Availability of Other Suitable and Affordable Accommodation

[81] The respondent believes the applicant can reside with her parents, who live in apartments approximately 450 meters from the matrimonial home.

[82] The applicant denies that this is a possibility. She states that her parents live in a 600 square foot apartment, her father has dementia, and her mother is his caregiver. She believes that if she moved in with her parents it would cause her father a lot of stress. She alleges the respondent can live at his father's home, indicating it has three guest bedrooms and four bathrooms.

[83] The applicant claims that she would have nowhere else to live if she had to leave the matrimonial home.

[84] The respondent deposes that he no longer has the option of living with his father and stepmother, nor does he have the option to spend his parenting time at their residence. He has been staying at an Airbnb at a cost of approximately $88 per day. He maintains that this is not an economically feasible option.

[85] Of the two parties, the respondent is in a better position to secure and maintain alternate accommodation.

[86] In submissions, counsel suggested that the home will likely need to be sold. It may be likely that the respondent’s requirement to obtain alternate accommodation will be short-lived.

Violence

[87] The applicant submits that the respondent has demonstrated a lengthy history of insidious coercive control. She has felt threatened by beheading videos and allusions to firearms at a time when marital conflict was increasing. She claims he is critical of her parenting and cleaning and that he has threatened to take the children away. She claims he swears in front of the children and expresses frustration with raising two young children.

[88] The respondent submits that the applicant was physically aggressive with him. The applicant concedes that she smacked him on the head on one occasion. In her factum, she admits that fault lies with both parties when considering violence committed by a spouse against the other.

[89] There is no suggestion in the material that either parent has been violent toward the children.

Nesting Orders

[90] The respondent describes the matrimonial home as a four-level home. The basement was described to be split in half. The respondent’s office and the laundry facilities are located on one half and the other is a self-contained apartment with a separate entrance. The basement apartment has a dining area, a kitchen, a full bathroom, laundry room, and bedroom.

[91] The respondent deposed that he and the applicant can reside at the home without interacting with one another or sharing the same space. He proposes that the person having care of the children remain in the main area of the home, leaving the other parent to occupy the basement apartment.

[92] The respondent is prepared to reside in the basement exclusively, allowing the applicant to remain in the upstairs living area.

[93] The respondent deposed that the applicant could have exclusive possession of the main area of the home between 9:00 AM and 5:00 PM Monday to Saturday to have time with the children. Alternatively, he could drop the children off at her residence at 8:30 AM and she could drop them back off to his care at 5:00 PM.

[94] A nesting order may be in a child’s best interests where it minimizes the disruption to the child. This can be achieved by keeping the child in the matrimonial home while rotating the parents in and out to maintain the continuity of the parents’ involvement with the child. A nesting order is not in a child’s best interests where it creates opportunities for conflict or perpetuates conflict between the parents. Where the parties have lived in the same home with little interaction and little conflict, a nesting order may be appropriate: Grandy v. Grandy, 2012 NSSC 316, 320 N.S.R. (2d) 385, at paras. 33, 35; see also Chaudhry v. Meh, 2019 ONSC 6101, at para. 11.

[95] Nesting orders are not common, and the primary consideration is the best interest of the children.

A Nesting Order is not Appropriate where the Parents’ Physical Separation is in the Children’s Best Interests

[96] A nesting order is inappropriate in the circumstances of this case. The parties must be physically separated. The separation described by the respondent’s proposed nesting order leaves open the potential for tension and conflict.

[97] Under section 7.1 of the DA, the parties have a duty to exercise responsibility or contact in a manner that is consistent with the best interests of the children. Under section 7.2 of the DA, the parties, to the best of their ability, have a duty to protect their children from conflict arising from the proceedings.

[98] I take the view that the parties cannot live up to this duty unless they are living separately.

[99] I have considered the factors reviewed above. I have placed weight on:

a. the respondent’s superior financial position;

b. the need for the children to maintain a level of consistency and routine, given their young ages. While I acknowledge that the home may be sold and the consistency and routine may need to change, disruption should be minimized until such time as a long-term plan can be put into place for this family;

c. the ongoing conflict between the parties and the potential for that conflict to continue if they share the matrimonial home, even on a short-term basis; and

d. the applicant's history of care and her ability to provide future care.

[100] I conclude that the applicant shall have exclusive possession of the matrimonial home, without prejudice to either party’s right to bring a motion for its sale.

Parenting Time

[101] I will review the best interests factors as set out in sections 16(3)(a)-(k) of the DA in turn.

Needs, given age and stage of development

[102] The children are very young. They require full-time care. Their age and stages of development are important to consider.

Nature and strength of relationship with each party

[103] The applicant deposed she is closely bonded with the children. She claims that the respondent’s participation with the children is minimal.

[104] The respondent claims to be actively involved with the children. He takes the eldest child to library programs. The respondent deposed that he is involved with the eldest child's nighttime routine. He provided details about his responsibility of making family dinners and breakfasts during the week, and lunches on weekends.

Each party's willingness to support the development and maintenance of the children's relationship with the other

[105] The applicant deposed that the respondent is not a “total villain”. She claims he has anger issues and an inability to understand the inappropriateness of his actions. She feels that, if he “got help”, he would be a decent father.

[106] The applicant deposed that she is worried about the respondent losing control of his anger when with the children. She also fears that he may take off with the children to punish her.

[107] The respondent deposed that the applicant is a good mother who loves their children. He expresses concern about her mental health.

[108] The applicant deposed that she has been the primary caregiver of both children. She claims they rely on her for everything.

[109] The children spend time at their parental grandparents’ home from 11:00 AM to 3:00 PM on Wednesdays. The applicant claims they are in her care day and night, and throughout the weekends.

[110] The respondent deposed that he was involved with the care of the children in the early morning, prior to working remotely from his old home office located in the basement.

[111] The respondent deposed that he made dinner during the weekday while caring for the children. He describes the nighttime routine involved the applicant putting the youngest child down while he prepared the eldest for bed. He described the children's bedtime routine in detail.

[112] The respondent’s father and stepmother, in their affidavit evidence, described him as an excellent father who has a great relationship with the children. He spends time playing with, reading to, going for walks with, and preparing meals for the eldest child and has fed, changed the diapers of, and been very patient with the younger child. He was observed to be caring for both children alone while he had parenting time in their home. He was observed to be a hands-on father.

[113] The respondent deposed he has been an active and engaged father for both children since they were born. He was off work for nine months after the birth of the first child and took three months paternity leave when the second child was born. He claims to have shared childcare and household responsibilities during this time. The applicant claims this is untrue and that she was the one who got up with the older child every night. The applicant claims the respondent was unemployed after the first child's birth.

Views and preferences

[114] No evidence was tendered relating to this factor. The children are too young for their views and preferences to be considered.

Cultural, linguistic, religious and other spiritual upbringing, and heritage

[115] No evidence was tendered relating to this factor.

Plans for the children's care

[116] Neither party proposed a specific plan for the children.

[117] The record before me implies that the applicant wishes for the status quo to continue as much as possible. She wishes to remain in the home with the children in her primary care. She wishes there to be designated parenting time to the respondent to occur mainly on weekends, with one overnight during the week.

[118] The respondent proposes that the parties alternate weekend parenting time from Friday at 5:00 PM to Sunday at 5:00 PM. He proposes that the children be in his care Sundays to Thursdays from 5:00 PM to 9:00 AM the following day.

[119] His proposed schedule coincides with his work schedule, having the children in his care during non-working hours.

Ability and willingness to care for and meet the needs of the children

[120] The material before me supports that both parties have the willingness to care for the needs of the children.

[121] I have concerns with respect to the respondent’s ability to meet the needs of the children during working hours.

Ability and willingness of each party to communicate and cooperate with the other

[122] The applicant fears the respondent. The tension and conflict prior to separation has likely led to poor communication following separation.

[123] That communication did not improve after the restraining order made on a without notice basis.

[124] Neither party addressed the issue of communication in their material. When dealing with young children, ongoing and up-to-date communication is essential. Information pertaining to the children’s eating, sleeping, and health; their developmental changes; and milestones all need to be shared.

[125] The parties have a duty to protect the children from any conflict arising from the separation. They should avoid arguments or any tension in the presence of the children.

[126] I lifted the restraining order, but I acknowledge the applicant’s fear of the respondent. Therefore, an order will be made regarding how the parties are to communicate.

Family violence

[127] It is difficult to make a finding regarding family violence on a very heavily contested record.

[128] I have considered the definition of family violence in s. 2 of the DA. I accepted that the applicant feels threatened by the respondent. The act of showing her beheading videos has caused her to fear for her safety.

[129] The purposefully broad definition of family violence in the DA recognizes that conduct need not constitute a criminal offence to be considered family violence.

[130] Section 16(4) of the DA sets out various factors the court is required to consider to assess the impact of family violence on the best interests of children.

[131] The respondent’s behaviour is troubling. The frequency of the alleged sharing of beheading videos was not specified. The respondent did not directly address the allegations surrounding the beheading videos in his material. He did not offer an explanation or commentary. I accept that the applicant felt compromised and potentially psychologically harmed by witnessing these videos.

[132] I accept the respondent’s explanation and evidence regarding his ninja moves.

[133] On this contested record, I cannot make a finding of family violence. Nonetheless, I am troubled by the allegations of coercive and controlling behaviour. Similarly, though the financial threat the respondent made to the applicant is not, in isolation, sufficient to constitute family violence, I find it concerning.

[134] I have considered the applicant’s submissions regarding the respondent’s interest in guns. This interest predates their separation and the applicant encouraged him to attend a shooting range in the past. Further, he has taken steps to address concerns raised by the applicant by cancelling his gun course registration. I take this to be an acknowledgment that would improve his ability to care for and meet the needs of the children.

Any civil or criminal proceeding relevant to the safety, security, and well-being of the child.

[135] No evidence was tendered relating to this factor.

The Parenting Arrangement Must Prioritize Routine and Stability for the Children while Providing Regular Overnight Time for Both Parents

[136] I am satisfied that both parents have been involved in aspects of care for both children prior to separating.

[137] It is appropriate for the parenting arrangement to include regular overnights with both parents.

[138] The respondent should be given the opportunity to participate in all elements of the children's care; however, I must consider his work schedule when determining his ability to meet the needs of the children. His work schedule is secondary to the children’s need for routine and stability.

[139] In crafting a parenting order, I must also consider how to protect the children from any potential conflict between their parents.

[140] The respondent’s parenting time shall occur:

a. Every other weekend from Friday at 5PM to Saturday at 5PM, and on alternating weekends from Saturday at 5PM to Monday at 9AM.

b. Every Wednesday from 5PM to Thursday at 9AM.

At all other times the children shall remain in the care of the applicant unless the parties agree otherwise.

[141] This schedule provides significant parenting time for the respondent during non-work hours to allow him actively to parent the children. I decline to implement the daily exchanges that he suggests, as limiting the number of exchanges serves to minimize contact between the parties and to reduce the disruptions to the children’s schedules.

[142] In addition, each party will have the children in their exclusive care for two non-consecutive weeks in the months of July and August 2022. Parenting time during those weeks shall commence and end on Friday at 5PM. Each party is to advise the other of their selected week by July 4, with the applicant having first choice of her selected weeks.

[143] The parties are to communicate through a communication book or a parenting app. If the parties agree, they may communicate by email. They may not communicate by text message unless there is an emergency.

[144] The parties shall learn and use the BIFF method of communication: they will maintain respectful communications that are to be Brief, Informative, Friendly, and, when necessary, Firm.

[145] Parenting time exchanges can be a source of conflict. It is important for the exchanges to go smoothly for the benefit of the children. Communication during the exchanges should be limited and respectful. The exchanges should occur at the matrimonial home.

Decision-Making

[146] The applicant’s request for interim sole decision-making responsibility for the children is rooted in the eldest child's future enrollment in kindergarten.

[147] Further, she claims to be the parent to take the children to all their appointments with the pediatrician and dentist. She deposed that she will need to make those arrangements without having to go through the respondent.

[148] The respondent deposed that until recently, he drove the applicant and the children to all medical appointments. He would then care for the child not involved in the appointment. After the applicant got her driver’s licence, he would remain home with the child who did not have an appointment.

[149] The eldest child will not be attending kindergarten until September 2023. There is no evidence that any other educational, religious, physical or mental health, or extracurricular decision needs to be made imminently.

[150] The parties have been unable to communicate due to the restraining order in place since March 2022. Therefore, I am unable to determine the extent to which they can or should communicate on important issues involving the children.

[151] A decision-making order would be premature at this stage and in these circumstances.

Orders

[152] For the reasons set out above, a temporary order shall issue as follows:

Under the FLA:

1. The restraining order shall be lifted forthwith.

2. The applicant shall have exclusive possession of the matrimonial home, without prejudice to either party’s right to bring a motion for its sale.

Under the DA:

3. The respondent’s parenting time shall occur:

a. Every other weekend from Friday at 5PM to Saturday at 5PM, and on alternating weekends from Saturday at 5PM to Monday at 9AM; and

b. Every Wednesday from 5PM to Thursday at 9AM.

4. At all other times the children shall remain in the care of the applicant unless the parties agree otherwise.

5. Each party shall have the children in their care for two non-consecutive weeks in the summer (July and August 2022). Parenting time during those weeks shall commence and end on Friday at 5PM. Each party shall advise the other of their selected week by July 4, with the applicant having first choice of her selected weeks.

6. Parenting time exchanges shall occur at the matrimonial home. Communication during the exchanges shall be limited and respectful.

7. The parties shall exchange information about the children and communicate using a communication book or a parenting app. If the parties agree, they may communicate by email, but they may not communicate by text message unless there is an emergency.

8. The parties shall learn and use the BIFF method of communication and shall maintain respectful communications which shall be brief, informative, friendly and, when necessary, firm.

9. The applicant’s request for decision-making shall be dismissed without prejudice.

Costs

[153] In keeping with my direction at para. 16 above, the parties are encouraged to settle costs.

[154] If they cannot do so and a party seeks costs, they shall submit written cost submissions of no more than two pages, exclusive of any Bills of Costs or Offers to Settle, by July 11, 2022. The responding party shall file submissions of no more than two pages, exclusive of any Bills of Costs or Offers to Settle, by July 25, 2022.

[155] Reply cost submissions shall be filed no later than August 8, 2022 and shall be no longer than one page.

[156] Cost submissions should comply with rr. 24(12.1) and (12.2) of the Family Law Rules. Submissions shall be double spaced, using 12-point font.

[157] If cost submissions are not received under the timeline set out above, costs shall be deemed settled.

“Justice Kiran Sah”

Justice Kiran Sah

Date: June 27, 2022