NEWMARKET COURT FILE NO.: FC-20-1575-00
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.B.
Applicant
– and –
J.B.
Respondent
C. Baker, Counsel for the Applicant
M. Tweyman, Counsel for the Respondent
HEARD: July 21, 2022
AMENDED Ruling on motion and Cross-motion
A.J. HIMEL J.:
[1] On August 11, 2021, the parties attended before me for three motions, but failed to comply with the requirements set out in the Practice Directions. On that day I provided very clear directions as to next steps. On July 21, 2022, I reviewed these directions prior to the commencement of the motion and cross-motion, as the parties had not fully complied with my directions.
[2] The high conflict that I identified in August 2021 has continued and the children have received no counselling.
[3] The parties have continued the problematic pattern that I identified last year, being that they are using excessive court resources, at great financial and emotional cost to each of them. There have been multiple conferences/14B/urmo/motions since the commencement of this matter. For that reason, on August 11, 2021, I ordered that no further motions/urmos/14B would proceed without leave granted by Macpherson J. or by me.
[4] The relocation motion was anticipated to proceed in October 2021, and proceeded yesterday. As the cross-motion also relates to the parenting time schedule, it too proceeded.
[5] The parties attended before Macpherson J. for a Settlement Conference in spring 2022. They advised the court of the August 2022 motion in respect of the “property deal” although there is no reference to same in the Endorsement. The motions judge can determine whether leave was granted, and whether that motion can proceed.
[6] Macpherson J. directed the matter to trial. That trial will be heard in the November/December 2022 trial sittings. The parties seem intent on spending considerable legal fees and emotional energy on this litigation, rather than focusing on the children’s best interests and the need for them to have a conflict free relationship with each of the parents.
[7] The two motions before the court are as follows: (a) a motion brought by the mother for an order that she and the children may relocate from Mt Albert, Ontario to Orillia, Ontario (approximately 100 kilometres); and (b) a cross-motion brought by the father for an order for a parenting time schedule pursuant to the report issued by a clinical investigator who is an agent for the Office of the Children’s Lawyer (the “OCL”) dated December 2021 (except for summer 2022).
[8] Each party filed an affidavit in support of their motion and a reply, as well as a responding affidavit to the other party’s motion.
[9] At the commencement of the motion each party was sworn in to the court, as I had various questions in respect of the two potential plans. While my August 2021 Order required each party to produce two proposed parenting plans (relocation and no relocation), neither party complied with same.
[10] I confirm that the parties agree to the following next steps:
(a) the children will attend school on an in-person basis;
(b) the children will commence (and attend) counselling by September 15, 2022, either through York Hills or the Orillia public agency, or by retaining a private mental health professional (by 14B to my attention if the parties do not agree, details below). As per my August 11, 2021 Order, the father is to arrange and pay for counselling; and
(c) the matrimonial home will be sold forthwith.
Facts and Initial Analysis
[11] The facts as I find them are as set out below.
[12] The parties married on June 28, 2008 and separated on March 27, 2020 or August 25, 2020. The father vacated the home on November 3, 2020.
[13] The parties have three children, M.B. (born in 2010), R.B. (born in 2013) and B.B. (born in 2016).
[14] The mother has made allegations about the father’s use of alcohol and the hair test that he provided in April 2021. The test was negative. The court has not requested any further testing.
[15] The mother has raised various other concerns about the father and his parents. The Children’s Aid Society (“CAS”) and the police have been contacted repeatedly since separation. The mother has had various opportunities to express her concerns. The CAS has not verified any protection concerns about either party’s ability to care for the children. The CAS has verified risk of emotional harm due to post separation conflict several times. Yet the parties continue to engage in conflict rather than set aside their differences and put their children’s interests first.
[16] Shortly after the separation, the father was charged with sexual assault and assault of the mother. Following a trial in June 2022, the father was acquitted of all charges. The mother reiterates the history of family violence, which the father denies.
[17] There are no longer any conditions preventing the parties from communicating or having contact, which has made parenting exchanges and the sharing of information more difficult than in the past. On June 28, 2022, the father made a proposal that would eliminate the need for third parties to assist with transitions, being that he would pick up and drop off the children (now ages almost 12, 9 and 7) at the end of the matrimonial home driveway. He stated that he would remain in his car. The mother refused as she does not feel safe or comfortable with the proposal, and with a plan that does not involve the paternal grandparents continuing to be the intermediaries. The mother has refused to use the paternal aunt or a friend as an intermediary and has not suggested any of her support people who could have acted as intermediaries. As the paternal grandparents were not available, the father missed his parenting time that weekend.
[18] The OCL conducted an extensive investigation and produced a report on December 7, 2021. The OCL raised concerns about the mother’s approach to the children’s relationship with the father, and the father’s reluctance to accept that the daughters are suffering anxiety (along with other mental health issues).
[19] The OCL recommended a parenting time schedule (alternate weekends, mid-week evening, and holiday/vacation time), a limit on the distance that mother may move away from the father’s residence (60 kilometres), and counselling.
[20] The mother has been requesting the ability to relocate to Orillia since at least summer 2021, as this issue was before me on August 11, 2021.
[21] The father consents to an order that the mother relocate within 60 kilometres from Stouffville, as recommended by the OCL. That would enable the mother to move to Innisfil, which is only 35 minutes away from Orillia (and perhaps 40 to 60 minutes away from his home).
[22] The mother does not work. She has been on long-term disability payments since 2018. She and the children continue to reside in the matrimonial home in Mount Albert, approximately 20 minutes away from the father. The mother’s proposed move will increase the driving time to between one hour and 15 minutes and one hour and 30 minutes each way.
[23] The mother is the children’s primary caregiver. However, the mother seems to believe that it is her decision as to when the children see the father, who will do the driving, and what conditions may be imposed. That impression is wrong. As the primary care parent, it is her responsibility to facilitate the children’s relationship and time with the father and not to limit it.
[24] The mother has been diagnosed with an autoimmune disease and she suffers from severe migraines. The mother’s family and support system reside in Orillia. She states that she has no support system in/close to Mount Albert or Stouffville (where the father currently resides). She has health issues that, at times, interfere with her ability to function and her ability to drive.
[25] The father resides in or around Stouffville, and he works for his parents in Uxbridge. He previously resided in a one bedroom apartment, which was not the best arrangement for the overnight parenting time. I believe that he is currently residing with his parents, and he plans to secure better accommodations.
[26] The father’s parents have a home in Orillia and one in York Region. However, they will be relocating to Stouffville shortly.
[27] The children have not received the counselling that they require because of interference by the father, and his refusal to comply with my court Order respecting the duty to arrange and pay for counselling. The children’s psychiatrist and family doctor refuse to engage further to address these needs without a court order. I have dealt with that issue below.
[28] It is very important for the father to accept the challenges faced by the children, and to support their emotional needs. I recommend that he attend a program like Caring Dads (virtually or in-person). I also recommend that he continue to avoid drinking alcohol when the children are present as they have expressed concerns respecting same.
Issues and Analysis
The Law
PARENTING ORDERS UNDER THE DIVORCE ACT
[29] On March 1, 2021, the parenting provisions contained in the Divorce Act, RSC 1985, c.3 (2nd Supp). came into force and the amended provisions apply to the motion before me. These are the same as those contained in the Children’s Law Reform Act, R.S.O 1990 c. 12.
Best interests of the child
[30] In E.M.B. v. M.F.B., 2021 ONSC 4264, Mandhane, J. explains the judge’s role at paras. 62-63:
“When making a parenting order, I must stay laser-focused on the child’s best interests: 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.
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.”
[31] As stated by Mandhane J., “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.” (E.M.B. v. M.F.B, supra).
The Parenting Time Schedule and Details Respecting Same
[32] During the motion I asked various questions to determine where the parties agree and disagree in respect to the parenting time schedule.
[33] The parties agree to the fundamental terms of the temporary parenting plan, being that the children reside primarily with the mother, spend alternate weekends (Friday to Sunday or Monday), and one mid-week evening with the father (if he is opts to travel to the children) and have holiday/vacation time with each parent.
[34] The mother now accepts that there will be pick up and drop off at school or in front of a parent’s home, without the need to involve an intermediary.
[35] While the mother previously objected to the paternal grandparents staying overnight (at their own home) and called the police (who attended at the home when the children were present due to the breach of my August 11, 2021 Order), she now understands that there will be no further restrictions on who can be present when the father cares for the children, or where they stay when in his care subject to my directions below.
[36] The parties disagree about the driving responsibility and about the relocation. I address these issues below.
RELOCATION ORDERS UNDER THE DIVORCE ACT
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
[37] My analysis of the additional factors set out in section 16.92(1) of the Divorce Act is detailed below.
[38] The reasons for the mother’s proposed relocation - section 16.92 (1)(a):
(a) the mother states that her medical condition causes severe migraines that come on with no notice. Dr. Gauvin provided a letter confirming that she requires emergency childcare on little notice, which supports her residing closer to supportive family members. The letter also states (and the mother confirms) that she is unable to drive when migraine attacks occur. The mother states that approximately two times per month she is unable to drive the children approximately 20 minutes away (for the cheerleading practices). The maternal grandparents and other family members can assist if she resides in Orillia. The children will benefit from other caregivers in the home, or if living close by. I agree;
(b) the mother also states that she suffers from long covid symptoms, such as fatigue, muscle pain… and which relate to her autoimmune issues. She is currently being treated for shingles which she attributes to prolonged and extreme stress and the court proceedings. The mother requires (or at least would benefit from) the opportunity to reside with the maternal grandparents until she can secure alternate housing. The children will benefit as well. I agree;
(c) the mother acknowledges that the matrimonial home needs to be sold. She states that she will be better able to purchase a suitable home in Orillia which is more affordable, after she stays with the maternal grandparents for a period of time. While the right to buy a home should not come before the children’s right to a good amount of time with the father, given that the mother’s income is limited to disability payments, affordability issues are appropriate to consider within the context of a proposed 100 kilometre move. While the father’s proposal, that she move to Innisfil, may provide a more affordable option than York Region, she does not believe that it is best for the children to move to a place where she has no support system, and the children have no connection. Her current plan will enable her to conserve her funds by living free of any costs rather than renting an apartment (where the children will need to share rooms). The grandparents’ home will provide a separate room for each child, and her longer term plan is to purchase a home that will provide this amount of space as well. That is a relevant consideration on the facts of this case; and
(d) the mother states that two daughters will have a more competitive cheerleading experience in Orillia. I give nominal weight to this reason for the move, other than to state that it is important to the children to live close to a cheerleading facility (such as the one in Uxbridge or Orillia). As set out below, I do accept the daughters’ views and preferences, as articulated to the mother, that they would like to compete in the “Worlds” competition.
[39] The impact of the relocation, the amount of parenting time, the reasonableness of the proposal - section 16.92(1) (b), (c) and (f):
(a) the father’s parenting time will be impacted by the mother’s move to Orillia. His alternate weekend parenting time will end on Sunday evenings (at between 6:00 p.m. and 7:00 p.m.) because of the distance between the homes (approximately a 1 hour and 15 minutes to 1 hour and 30 minutes drive). That is correct, however, since my Order provides that the father pick up the children directly from school on alternate Fridays, he will have some added time on Fridays. The mother agrees to an additional 24 hours when there is a statutory holiday on the father’s weekends;
(b) the father states that the move to Orillia will impede his ability to have the mid-week evening time (until 8:30 p.m.) that was recommended by the OCL. That is not necessarily true. The father admits that the paternal grandparents (his employers) are willing to be flexible to enable him to pick up the children from school on alternate Fridays, and to spend time with them one evening per week if the mother relocates to Innisfil. While it may be inconvenient to the father, if he is able to travel 40 or 60 minutes one weekday per week to spend time with the children, there is no reason he could not travel 1 hour and 15 minutes or 1 hour and 30 minutes to do so (every week or every other week). Moreover, the father can move to Orillia (or closer to there) which would facilitate the mid-week time (and the alternate weekends);
(c) the father states that the mother’s pattern and history of interfering with his time and his relationship with the children will be worse if she can move to Orillia. I do have concerns about the mother’s pattern of behaviour (including calls to police and the CAS), however, once the mother relocates to a community where she feels supported and settles into the maternal grandparents’ home (or her own home), the pressure from this issue may resolve. Moreover, my Order will decrease the interaction between the parties as the pick ups will be at school (or in front of the mother’s home if there is no school) at the commencement of his parenting time, and the mother (or her designate (she cites 17 support people)) will pick up the children in front of the father’s home at the end of his parenting time. The daughters will not be attending cheerleading on the alternate Sundays if this interferes with the father’s parenting time;
(d) the father is concerned that M.B. (age almost 12) has started to object to spending time with the father and staying overnight. He believes that this problem will increase if she moves to Orillia. Given that M.B. expressed a desire to move to Orillia to be closer to her extended family and given that she wishes to have greater opportunities for global cheerleading competitions (which are only offered in Orillia according to the mother), ignoring her wishes may negatively impact on the father/daughter relationship. The child’s hesitation about overnights relates, at least in part, to the father’s prior accommodations. I also note that this “new” problem may have been prevented if the child had actually received the counselling that I ordered (to be arranged and paid for by the father, which he failed to do). Concerns about M.B. and R.B. (who both have diagnosed mental health issues), are best addressed through counselling, not by preventing a move of 1 hour and 15 minutes or 1 hour and 30 minutes away;
(e) the father’s counter-proposal, that the mother and children move to Innisfil, is not reasonable. They have no connection to Innisfil, the drive to cheerleading will be twice as long as it is now (and takes place four times per week), the mother will not be close enough to her family to receive emergency childcare or driving, and the mother will lose her current cheerleading driving assistance (which she receives twice per month from other children’s parents). Neither party has any support system in Innisfil. I decline to accept the OCL’s recommendation about the 60 kilometre limitation as it is not in the children’s best interests. The strength of the children’s relationship with the father will not be meaningfully impacted by a further 30 minutes in the car on alternate weekends; and
(f) the father’s objection to the relocation because of the daughters’ IEPs is also not reasonable. Whether the children move to Innisfil or to Orillia, the new school or school board will be expected to provide the children with whatever supports they need.
[40] Compliance with notice provisions, agreements and the likelihood of future compliance - section 16.92(1) (d), (e) and (g):
(a) the mother states that aside from the recent refusal to change the use of intermediaries to exchange the children in early July 2022, the children have been spending time with the father, including calls. I do note that there have been no leave requests for a contempt motion or other urgent parenting relief for many months; and
(b) I am making a temporary Order. If the mother does not comply with the parenting time schedule, and with the requirement to share in the driving equally, she can expect that a trial judge (or a judge on a Motion to Change) may well order her to return to the jurisdiction where the father resides.
[41] The mother seeks an order for temporary sole decision-making. While the parties have struggled in their attempts to make major decisions, I am not prepared to make a decision-making order. I am providing clear orders in respect of school and counselling. Given the mother’s disinclination to re-enroll the children in in-person school once she had the OCL report, and the need for the children to be at in-person school, judicial oversight is required. Given the father’s lack of follow through on the counselling, judicial oversight is required. If there is a school or counselling issue, it can be directed to me by a 14B on notice for directions. Any response by the other party shall be served and filed within three days. There shall be a 14A limit of three pages double spaced font 12, with no right of reply.
[42] The parties must change the trajectory of their family’s path moving forward. To that end, I strongly encourage them to attend for a few hours of virtual Zoom mediation, on the issues of their communication and co-parenting. This subsidized service has no waiting list and can be arranged right away. The service is available through York Hills Family Mediation.
[43] The parties would also benefit from parenting programs such as Two Homes One Family… These programs are offered in-person and virtually through Family Service Association, Jewish Child and Family Services, Catholic Family Services and York Hills. There is no need to be of any particular religion. I recommend that they enrol in at least one or two programs each, and that they advise the other of the ones they are attending (as it may be best if they attend the same program, although not necessarily together).
[44] The parties can expect that Macpherson J. will ask for an update about the parties’ follow through with the above recommendations.
Disposition and Next Steps
[45] The mother is permitted to move with the children to Orillia. She may reside with the maternal grandparents or secure alternate accommodations so long as that residence is no further away than the driving distance between Stouffville and the maternal grandparents’ home.
[46] The children will be enrolled for in-person education at Orchard Park School in Orillia.
[47] The children will attend counselling with the frequency, duration, and program-type as directed by the mental health professional. The counselling will end when the mental health professional terminates their involvement, the parties agree, or the court orders the termination. Any issue with the choice of mental health professional/program will be directed to me by 14B (on an urgent basis).
[48] Unless publicly funded programs can start by September 15, 2022, the father will pay for privately funded counselling. He may take no steps to impede or interfere with same.
[49] Unless ordered by the court, there shall be no restriction on either party’s parenting, including where they may each parent the children and in the presence of whomever either of them chooses, except as follows. If the CAS makes a request, in writing, that there be some temporary restriction in place that affects either party’s parenting, they are expected to comply with same and the matter may be returned to the court.
[50] Pending further Order of the court, or agreement of the parties, the father’s parenting time shall be as follows:
- As per the recommendations made by the OCL, except that:
(a) the alternate weekends shall continue as per the current schedule, except as amended below. Irrespective of the schedule, the father will have the children in his care from Friday August 25, 2022 (at the time he requests) to Monday August 29, 2022 (at 6:00 p.m. to 7:00 p.m. or earlier at his request). The mother may relocate on or after August 31, 2022 and the children will be in her care for Labour Day weekend. The father may have his first mid-week evening visit the week of September 7, 2022, on a day of the week agreed to by the parties. His alternate weekends (Friday after school to Sunday at 6:00 – 7:00 p.m.) shall commence on Friday September 9, 2022;
(b) the father will pick up the children at school or in front of the mother’s home on alternate Fridays after school (or later at her home if he advises the mother 24 hours in advance, except in urgent circumstances);
(c) the mother or her designate will pick up the children in front of the father’s home on alternate Sundays between 6:00 p.m. or 7:00 p.m. (with the mother advising the father with an anticipated time/the identity of the driver 24 hours in advance, except in urgent circumstances);
(d) the father’s parenting time shall be extended by 24 hours when there is a PA day (if he is not working) and/or a statutory holiday that attaches to his alternate weekends (except for Easter and Thanksgiving);
(e) the father may have parenting time in Orillia one mid-week evening per week (on a specific day once the cheerleading schedule has been provided to avoid a conflict), on 24 hours’ notice to the mother;
(f) for Christmas winter break 2022, the father shall have the children from December 25 (2:00 p.m.) to December 28 (2:00 p.m.), from January 1 (2:00 p.m.) to January 5 (2:00 p.m.). The children will be in the mother’s care for the balance of the school break. The father’s usual weekend will recommence on Friday January 13, 2023. Transportation as above;
(g) for March Break 2023, the children shall be exchanged on the Wednesday in the middle of the break between 6:00 p.m. and 7:00 p.m. (with the parent picking up at the start of their time). This shall be aligned with the usual weekends. Transportation as above;
(h) Thanksgiving and Easter, shared as per the OCL, but it will not affect the alternate weekend schedule as these are shared. Transportation as above;
(i) there has been divided success. Costs adjourned to the trial judge as per the parties’ position on costs; and
(j) the parties will complete the TSEF form in advance of the TSC in October 2022. They shall also serve and file a Trial Record Index, and proposed exhibit indexes, as well as timelines for the delivery of affidavits.
[51] Either party may prepare a formal order, approved as to form and content for my review. In the circumstances of the Covid-19 emergency, this Ruling is deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing before me.
Justice A. Himel
Date: July 22, 2022