COURT FILE NO.: FC-17-1261-2

MOTION HEARD: 20220120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zelena Guevara van der Leeden, Applicant

AND:

Luc van der Leeden, Respondent

BEFORE: Associate Justice A. Kaufman

COUNSEL: Stephen Pender, Counsel for the Applicant Adrienne Curran, Counsel for the Respondent

REASONS FOR DECISION

[1] The respondent father brings a motion for a determination of urgency under Rule 14(4.2) of the Family Law Rules.[^1] The proposed motion is to enforce the parenting schedule set out in Justice MacEachern’s final order of October 30, 2020, for make-up time, for police enforcement, for in-person schooling and to order therapy for the children. This is a high conflict case. A case conference is currently scheduled before Justice Audet on February 8, 2022, to address the respondent’s separate allegations that the applicant is in contempt of court orders.

Events leading up to this motion

[2] The parties were engaged in litigation for three years, culminating with Justice MacEachern’s final order of October 30, 2020. Pursuant to that order, the parties had parenting time with their children Alexandra (8 y.o.) and Luca (9 y.o.) (“the van der Leeden children”) on a week about basis. The order also provided for a holiday schedule.

[3] The applicant mother is in a relationship with Mr. Jake Purdy. Mr. Purdy is also a separated parent and the father of two children (Coral and Jade). Mr. Purdy, like the applicant, has parenting time with his children on a week about basis. The applicant alleges that the van der Leeden and Purdy children’s parenting schedules have been aligned since November 2020 and that the four children have developed a close bond.

Misalignment of parenting schedule after Christmas break 2021

[4] Unfortunately for the applicant, the parties’ parenting schedule no longer aligned with the Purdy’s schedule after the Christmas holidays. Pursuant to Justice MacEachern’s final order, the applicant had parenting time with the Alexandra and Luca over the Christmas break this year, and the break was defined as the period stretching from “the last day of school before Christmas until the drop off for school on the first day of school in January”. Accordingly, the children should have been returned to the respondent father on January 10, 2022. To maintain the synchronization of the children’s schedules, the applicant proposed to return Alexandra and Luca to the respondent early (on January 2, 2022 instead of January 10, 2022) and that the children be returned to her on the January 11, 2022. The respondent refused.

[5] The applicant made other proposals, which provided the respondent with prolonged periods of parenting time (2 or 4 consecutive weeks) that ended with a return to her on a date that lined up with Mr. Purdy’s parenting time with his children. The respondent rejected these offers as well and demanded that the children be returned to him on January 10, 2022 as per Justice McEachern’s final order.

[6] Faced with the respondent’s refusals, the applicant advised that she would “tell the kids that they will stay here an extra week so they can continue on the same week rotation as Jade and Coral.”

Parties position on urgency

[7] The respondent argues that the motion is urgent because he and his wife have demanding jobs, with rigid schedules and they plan their affairs, and the children’s activities, in accordance with Justice MacEachern’s final order. The respondent says that Justice MacEachern’s order is clear and makes no reference to synchronizing the parties’ parenting time with the Purdy children’s schedule. The respondent contends that an urgent motion is needed to return the children to their normal schedule with a police enforcement clause to prevent future breaches.

[8] The applicant responds that Justice MacEachern’s final order had a dispute resolution clause that requires him to resolve disputes relating to the interpretation of the order by way of mediation / arbitration with Carol Bartels. She disputes that she is breaching the order because she offered the respondent significant make-up time.

Disposition

[9] I can understand why the applicant insists on synchronizing her children’s parenting schedule with the Purdy children’s. It fosters a strong relationship between her children and her stepchildren. A synchronized schedule likely also helps the applicant and Mr. Purdy plan activities on the weeks where they don’t have any children at home. However, Justice McEachern’s final order is clear that the children were to be returned to the respondent on the first day of school in January. It was foreseeable to anyone equipped with a calendar that the van der Leeden and Purdy children’s parenting schedule would cease to align after the Christmas break. If the applicant could not negotiate a change of schedule, it would have been incumbent upon her to bring a motion to change. Instead, faced with the respondent’s intransigeance, she resorted to self-help remedies. Justice MacEachern’s final order should have been followed until the parties reached an agreement, or until the order was changed.

[10] While the Court does not condone the applicant’s use of self-help remedies, it also does not find the motion to be urgent. The respondent rejected all the applicant’s offers that provided him with additional parenting time but reversed the parties’ parenting weeks. The respondent’s concern is therefore not with the amount of parenting time he has with his children but with its timing. He says that maintaining the court ordered schedule is necessary to plan “the children’s activities, schooling, childcare, attendance to extracurricular activities” but he provides no details about the negative consequences of reversing parenting weeks. Instead of bringing this motion, and in the absence of a motion to change, the respondent could have accepted the offer under protest and brought a contempt motion. Alternatively, he could have sought to amend his motion for contempt currently pending before the Court to add this breach. I fail to see how reversing the parties’ parenting weeks until this question was adjudicated in one way or another would result in the type of harm contemplated in cases like Rosen v. Rosen.[^2] This Court has repeatedly held that immediate access to the courts is restricted to real crises, such as abductions, harm to children, threats to personal security and the risk of financial ruin.

[11] The respondent’s motion is accordingly dismissed.

Return of children to the respondent

[12] After advising the parties that the motion would be dismissed, I asked the parties when the children would be returned to their father. The respondent has not seen them since December 13, 2021, except for two hours during Alexandra’s birthday on December 27, 2021.

[13] The applicant said she would consent to have the children return to their father tomorrow for a month. The respondent said he would be glad to have them tomorrow but suggested they return to their mother on “her week” which, of course, did not align with Mr. Purdy’s parenting time with his children.

[14] In light of the parties’ agreement that the respondent should have make-up parenting time starting tomorrow, I order that the children be returned to the respondent starting Friday January 21, 2022 until February 8, 2022 which is the date of the parties’ case conference before Justice Audet. If the parties have not resolved this dispute by then either on their own, through counsel, or through mediation / arbitration, they can raise the procedure for adjudicating this question with the Court at the case conference.

COSTS

[15] Although the motion was dismissed, I decline to order costs. I accept that the applicant has legitimate reasons for wanting to align her parenting time with Alexandra and Luca with Mr. Purdy’s parenting time with his children. However, it was her resort to self-help remedies that brought this motion about. When the respondent refused her proposed change, she overheld the children to achieve her goal of maintaining the synchronized parenting schedule contrary to the terms of the final order.

[16] While I have found that the respondent should not have brought an urgent motion in these circumstances, I am declining to award the applicant her costs so as to discourage resort to self-help remedies.

Associate A. Justice Kaufman

DATE: January 20, 2022

[^1]: Ont. Reg. 114/99. [^2]: 2005 ONSC 480 (Ont. Sup. Ct.).