COURT FILE NO.: FS-21-035
DATE: 20220623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KENDRA ECKERT, Applicant/Responding Party
AND:
DARREL ECKERT, Respondent/Moving Party
BEFORE: Tranquilli J.
COUNSEL: Andrea Clarke, for the Applicant/Responding Party Alexandra Barthos, for the Respondent/Moving Party
HEARD: June 15, 2022
ENDORSEMENT
[1] The respondent father moves for an interim order expanding his parenting time of the child Zaden to a week-about shared parenting schedule with the applicant.
[2] The parties married on December 31, 2013. Their child, Zaden, was born August 28, 2015. He will turn seven years old this summer. The parties separated March 12, 2021. Both parties reside in Blyth and Zaden attends a local public school. The respondent had limited weekly parenting time on a privately negotiated basis until October 2021, when the court ordered expanded parenting time on an alternate weekend schedule, with a midweek evening visit.
Background
[3] The parties’ separation was acrimonious. The applicant remained in the matrimonial home with the child after separation. Huron Perth Children’s Aid Society were involved, apparently due to high conflict between the parties.
[4] The parties invited the court to begin its analysis of this motion with a review of the details of the history of the separation and parenting proceedings. I declined to do so. While the history is always important context, these motions are not an invitation to relitigate issues already addressed.
[5] I recognize there were conflicting accounts as to whether the Society required the respondent’s parenting time to be supervised. Society correspondence confirmed this was not the case. The Society confirmed by correspondence in May and August 2021 that its’ involvement was voluntary to assist in managing the parental conflict and that there were no protection concerns.
[6] For reasons I do not need to explore, the respondent initially agreed to his parenting time being once weekly on Sunday afternoons in the background of the matrimonial home, under the observation of members of the applicant’s extended family as well as video cameras installed by the applicant. The applicant refused the respondent’s request to expanded parenting time on several occasions.
[7] The respondent therefore brought an urgent motion to be heard before the case conference regarding his parenting time.
[8] By order of October 14, 2021, Justice Heeney concluded Zaden’s parenting time with his father “is wholly inadequate and not in the best interests of the child.” Justice Heeney ordered a transition to expanded parenting time for the respondent on an interim interim without prejudice basis, resulting in alternate weekends with midweek access one evening per week after school. He was not prepared to consider the respondent’s request for week-about parenting time but stated the respondent could pursue that claim after the case conference was held. The case conference was held on March 9, 2022, and the settlement conference on June 8, 2022.
The Motion
[9] The respondent’s motion initially sought relief regarding the sale of the matrimonial home, week-about parenting time, shared decision-making, variation of interim child support in consequence of a variation to the parenting schedule and potential relocation by the applicant. To their credit, the parties agreed to terms for the sale of the matrimonial home. Only the issue of week-about parenting time went forward for argument on the motion, in anticipation that child support could be addressed thereafter. I note the parties did not address decision-making in argument and I reserve that issue along with the issues of child support and relocation to future disposition if the parties cannot reach agreement on those issues.
Positions of the Parties
[10] The respondent submits he has had regular parenting time with Zaden without incident since the interim order of October 2021. The applicant has not raised any concerns with Zaden’s safety while he has been in his father’s care and does not have a reasonable explanation for her refusal to an increase in parenting time. He is employed full-time, Monday to Friday. His employer is willing to provide flexible work hours and the respondent submitted a plan that addresses before and after school care for Zaden through a program at the elementary school. The respondent has a back up plan for assistance from his older adult children in the event the program is canceled and also has the support from the child’s paternal grandparents and his current partner’s daughter, who has earned the babysitting course.
[11] The applicant submits the respondent has not met the test for variation of parenting time. Even assuming the respondent is correct that no concerns have arise from his expanded parenting time to date, the applicant contends this is not the test for a change to the status quo. There is no material change in circumstances to justify expansion and this should be reserved to trial. The applicant was always the primary caregiver Zaden and Zaden has lived in the matrimonial home to this point in his life. Zaden now must endure the sale of the only home he has known. This change in conjunction with a sudden shift to week-about parenting is too disruptive and undermines his needs for stability and consistency.
Analysis
[12] I am not persuaded there is a status quo or that the respondent must meet an evidentiary threshold to seek variation of parenting time.
[13] There is no evidence of acquiescence by the respondent to the parenting schedule. Justice Heeney’s order did not foreclose the possibility of variation. He expressly noted the respondent’s desire for week-about parenting and reserved that issue to be determined after the case conference, if necessary. His interim interim without prejudice order provided for expanded parenting time pending the progress of the matter and further order, if necessary, following the case conference. The form and content of his order neither set a status quo nor otherwise foreclosed on the possibility of further variation to the parenting order. This is not an interim motion seeking to vary a final order such as on a motion to change; that is where there must be scrutiny as to whether there is a material or other substantial change in circumstances that warrants interim variation before a trial.
[14] My approach to this motion is informed by the recent amendments to the Divorce Act and the Children’s Law Reform Act. Children should spend as much time as possible with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6), Children’s Law Reform Act, s. 24(6). Best interests of the child give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: CLRA s. 24(2).
[15] In Zaden’s circumstances, I find it is in his best interests to vary parenting time and move to a week-about parenting schedule on an interim without prejudice basis. Eight months have passed since the initial parenting time order. I can find no reason why parenting time should not be expanded.
[16] Our governing legislation promotes a parenting schedule that allows the child to enjoy as much time as possible with each parent. I cannot find a concrete reason why Zaden should not have more time with his father. The applicant’s affidavit raises no concerns about Zaden’s well-being while in his father’s care. There is no evidence that he has experienced any difficulty with this arrangement. Distance is not a factor; both parents continue to reside in Blyth and can facilitate his ongoing attendance to the school he knows. His father has a plan to address before and after school care and he deposes he has a flexible work schedule.
[17] The sale of the matrimonial home was not raised as an impediment to parenting time in terms of the mother’s eventual new residence. The court was led to believe that her intention is to remain in Blyth. In the absence of any submissions to the contrary, I presume that it is mother’s intention to relocate from the matrimonial home to a new home within or near Blyth so it that will have no impact on the child’s ability to enjoy as much time as possible with each parent and to continue to regularly attend the school he attended this year and to enjoy his other daily activities. The applicant will otherwise be expected to give notice to the respondent of any intention to relocate.
[18] I acknowledge the applicant’s concerns about the disruptions Zaden faces in the immediate future with moving from the matrimonial home and in adjusting to a new schedule. But this cannot be the reason for holding back on expanding parenting time. Zaden’s previous life and his relationship with his parents was already disrupted through their separation. In this context, the sale of the home is not extraordinary event. Now is the time for the parties to attempt to settle into an arrangement that allows their child to thrive in an environment where he can enjoy a relationship with and the support of both his parents and their extended families.
[19] An order shall therefore go, varying paragraph 1 of the interim, interim, without prejudice order of Justice Heeney, dated October 14, 2021, to provide that the applicant and respondent shall have parenting time on a week-about basis.
[20] The parties recently had a settlement conference where I understand that this motion was the sole focus. I think it would be productive for the parties to have a further settlement conference in the fall 2022 at which time the remaining issues can be reviewed, and the progress of the new parenting schedule assessed.
[21] The respondent did not submit a draft order or otherwise propose dates or days and times upon which week-about parenting would commence. I have therefore proposed a start date and time for the parenting schedule, which is, of course, subject to amendment on the parties’ consent or by further order of the court.
[22] The parties also suggested during argument that the court could fashion a summer parenting schedule if I was not inclined to order the week-about parenting. A summer schedule was not addressed in the motion materials, and I therefore decline to do so. The court cannot fashion a schedule without the relevant information from the parties.
[23] The involvement of the Children’s Lawyer was raised a few times in argument. If the parties cannot temper their positions, it may be that an OCL order is warranted. I encourage the parties to avoid this if possible. OCL resources are strained and there is no guarantee that the services will be offered even if the court so orders.
Order
[24] I recognize this order may not align with the parties’ summer plans and regular activities and that my selected day of the week and time for exchanges may also not be convenient. Those particulars were not provided in argument given the positions taken. I encourage the parents to collaborate on a schedule that may more effectively accommodate their responsibilities and Zaden’s interests and activities within the parameters of my order.
[25] An order shall issue as follows
On an interim without prejudice basis, week-about parenting shall commence the week beginning Sunday, July 10, 2022 at 10:00 am, beginning with the child having parenting time with the respondent, and the child then having parenting time with the applicant beginning Sunday, July 17, 2022 at 10:00 am, and shall continue from the Sunday to Sunday thereafter at that time or at such other day and/or time as the parties may agree to or the court may order.
The parties shall arrange a further settlement conference with the trial coordinator to be held after September 15, 2022.
Costs
[26] I invited cost submissions at the close of argument and heard general estimates on the quantum in issue. I heard about global estimates, but neither had exchanged bills of costs, nor were any offers to settle available to submit to the court. I encourage counsel to be ready to do so in the future. This is expected by the rules and promotes the efficiency of the court process.
[27] As the parties were not ready with cost submissions at the hearing, I will receive submissions, but with the caveat that I encourage the parties to resolve costs. They resolved a significant issue on this motion regarding sale of the home; only parenting time was argued. These parties have already suffered much to date through this procedural conflict. Financial resources should be directed towards raising Zaden and maintaining their lifestyle rather than unnecessary litigation.
[28] Zaden’s parents need to navigate a new relationship where they can constructively communicate, work through differences, reach compromise, and support Zaden as he grows and develops and becomes confident in voicing his own views and preferences. A costs order should not be seen as another means to visit vengeance on the former partner.
[29] If the parties cannot resolve costs, the respondent shall deliver his cost submission by July 8, 2022 and the applicant her cost submission by July 13, 2022. There is no reply without leave. Cost submissions are limited to a maximum of two pages, double-spaced, excluding any offers to settle or cost outlines/bills of costs. If the parties resolve costs, I ask that they confirm this with the judicial secretary.
Justice K. Tranquilli
Date: June 23, 2022