Court File and Parties

Court File No.: FS-21-22069 Date: 2022-11-18 Ontario Superior Court of Justice

Between: Naomi Pelkey, Applicant – and – Melvin Henley, Respondent

Counsel: Dawn Melville, for the Applicant Amy Johnson and Tristan Miller, for the Respondent

Heard: October 21, 2022

Ruling on Motion

Dubé J.

Introduction

[1] The respondent, Melvin Henley, brings a motion, the particulars of which are set out in paras. 1 to 7 of his Notice of Motion, seeking an order that can be summarized as follows:

1. That he vastly expands his current parenting time with the only child of the relationship, Alasdair Chester Melvin Pelkey, born July 11, 2021, including overnights and certain holidays;
2. That the parenting time shall take place at his home in Detroit, Michigan as much as possible;
3. That the parenting time exchanges shall take place at the child’s daycare;
4. That the applicant pump breastmilk and provide it to the respondent for this parenting time; and
5. An order pursuant to r. 24 of the Family Law Rules, O.Reg. 114/99 granting the respondent costs.

[2] The applicant’s position is that the court forgo any expansion to the respondent’s parenting time until Alasdair turns at least two years old, so as not to disrupt Alasdair’s well established breastfeeding routine, which occurs approximately every two hours, and his bedtime and other routines.

[3] At present, the child is 16 months old.

Background

[4] My review of the background evidence is limited to those facts that are significant to the central issues, or that provide context necessary to appreciate and determine the relevant issues.

[5] The applicant is employed as a communications and marketing coordinator for the Faculty of Engineering at the University of Windsor.

[6] The respondent is employed as a coalition manager with Community Economic Development Association of Michigan. He has been involved as a volunteer or in a paid position in summer camps, before and after school programs, boys and girl clubs and in a state facility for homeless and at-risk youth.

[7] The parties were involved in a relationship for approximately 18 months from September 2019 to March 2021. They lived together for a short period in 2020, but never married.

[8] The applicant is white, a Canadian citizen, not religious and currently resides in Windsor, Ontario. The respondent is African American, a practicing Christian and lives approximately 19 minutes away from the applicant in Detroit, Michigan.

[9] They have one child from the relationship, Alasdair Chester Melvin Pelkey, born July 11, 2021.

[10] When the child was five months old, the parties attended a case conference before Verbeem J. on December 21, 2021, that resulted in a consent order, which included the following:

1. Alasdair shall be in the respondent’s care every Tuesday from 4:00 p.m. to 6:00 p.m., Wednesday from 4:00 p.m. to 6:00 p.m., Thursday from 4:00 p.m. to 6:00 p.m. and Sunday from 8:30 a.m. to 10:30 a.m. but shall remain flexible.
2. Parenting time shall take place at the applicant’s home, with the applicant on a different floor, and shall be unsupervised and uninterrupted, except as requested by the respondent.
3. Neither party will remove the child from the Province of Ontario or State of Michigan without further written consent of the parties, or order of the court.
4. Jurisdiction of the child’s habitual residence is the Province of Ontario, until further notice.

[11] On March 15, 2022, when the child was eight months old, a contested motion was heard before Carroccia J. that resulted in the following order:

1. The respondent shall have parenting time on Monday and Friday from 4:00 p.m. until between 7:00 p.m. and 8:00 p.m., whenever the child goes to sleep, and on Saturday from 9:00 a.m. to 2:00 p.m.
2. The parenting time shall take place in the applicant’s home, with the applicant and any third party on a different floor and shall be unsupervised and uninterrupted except as required to breastfeed if requested by the respondent or as necessary to perform the child’s bedtime or bath time routine.
3. The respondent must adhere to the child’s schedule and routine while exercising parenting time.
4. The parties shall remain flexible with respect to this parenting schedule.
5. The respondent may take the child outdoors during parenting time.
6. The respondent shall not remove the child from the Province of Ontario.
7. The applicant will advise the respondent in writing through Our Family Wizard of any significant changes to the child’s schedule.

[12] The parties attended a settlement conference before Moore J. on June 29, 2022, when the child was almost twelve months old, that resulted in a consent order which included the following:

1. While the child continues breastfeeding, the current schedule of the respondent’s parenting time shall continue, but once the applicant returns to work, the respondent shall pick the child up at daycare or the maternal grandmother’s home.
2. To reduce conflict, the parenting time shall take place in the community while acknowledging that the respondent requires access to the applicant’s home to put the child to bed and for feedings.

[13] In his affidavit, sworn September 29, 2022, the respondent alleges that the applicant has consistently failed to abide by the terms of court orders, such as:

1. The applicant and/or her third party failed to remain on a different floor in her home during parenting time;
2. The applicant installed cameras in her home and therefore was monitoring or supervising his parenting time;
3. The applicant has failed to provide the respondent with the name of the daycare and pickups do not take place at the maternal grandmother’s residence. Instead, the applicant insists that pickups take place at her home or her work on Mondays and Fridays.
4. The applicant refuses to permit any access to her home.

[14] The respondent further complains that the applicant unreasonably demands strict adherence to the child’s exact nap schedule. For instance, during the respondent’s parenting time on Saturdays, the child feeds at 12:15 p.m. and is sometimes not immediately ready to nap, due to the excitement of the transition from the respondent to the applicant. The applicant states the nap should start at 12:30 p.m. and last one and a half to two hours. The applicant also uses feeding times as way to disrupt and interfere with the respondent’s parenting time with the child and insists that parenting time cannot last longer than four hours. Since the respondent has only limited time with the child in the community and has no family in Windsor, he is prevented from exposing Alasdair to his family, friends, coworkers, playdates etc. He also has no indoor, comfortable space in which to exercise parenting time, and is unable to engage in normal parental activities such as bathing the child, since parenting time is currently exercised in the community and not at the applicant’s home.

[15] The respondent is African American and Christian but is denied the opportunity to expose Alasdair to his culture and religion. For instance, the current parenting schedule prevents the respondent from fully celebrating American thanksgiving or Juneteenth in Detroit, a date that commemorates when the last slaves were freed in the United States, both of which are very important to him. Since Alasdair is a bi-racial child, it is important that he be exposed to and surrounded by other people of colour, which he is unable to experience through the applicant. The respondent is also unable to enjoy Easter and Christmas with Alasdair together with the respondent’s mother and foster sister who live in Chicago, and other family and friends in Metro Detroit.

[16] The respondent lives by himself in Detroit in his three-bedroom residence, including a fully equipped nursery, which will allow him to properly care for the child. The respondent deposed that he values the importance of schedule, predictability, and routine for Alasdair, and in fact welcomes the applicant to attend his home to breastfeed Alasdair if she wishes.

[17] The applicant opposes the proposed parenting time schedule, which may take place, at least in part, at the respondent’s new home in Detroit, which she is unfamiliar with. She installed cameras at her home because of safety concerns she had when the respondent was present in her home during parenting time. During exchanges, the respondent would regularly remove Alasdair’s jacket and shoes and leave them at the front door, even when the outside temperature was cold. He also forced the child to walk in his socks on cold pavement, without a jacket, to the respondent’s vehicle, which was usually parked at least two blocks away. Partially due to a rude and aggressive telephone call the respondent apparently made to the child’s pediatrician, Dr. Hammoud, the applicant has refused to provide the applicant with the name of the daycare that the child attends, for fear that the respondent’s conduct with staff will potentially jeopardize that service.

[18] The applicant complains that the respondent has never brought Alasdair back to her home for a nap during his parenting time and drops him off late, which disrupts his very established breastfeeding and bedtime routine that ought not to be disturbed during the first twenty-four months of his life. The respondent also rouses the child after breastfeeding which prevents Alasdair from being drowsy so he can nap, as well as belittles the applicant’s wish to keep Alasdair at home when he is sick and in no condition for a visitation. On occasion, the respondent has brought Alasdair back with soiled diapers and minor unexplained bumps and abrasions on his body. On one occasion, the respondent brought the child home with his skin bright red, apparently from being overheated. The applicant denies that she has ever attempted to alienate the respondent from her son but instead consistently offers ongoing contact between the two, even though he often cancels visitations last minute. She deposed that she wishes that Alasdair have a positive relationship with the respondent.

[19] Despite the above noted concerns, counsel for the applicant readily acknowledged during submissions that Alasdair’s safety is not an issue while under the respondent’s care during parenting time.

[20] The applicant has strong beliefs regarding the significant benefits of the breastfeeding relationship between mother and young child, as it not only provides food but also comfort. According to her research, the applicant’s position is that forcing a child to stop the breastfeeding routine every couple hours is not appropriate, even for occasional overnight stays with the respondent, as it is in the best interest of the child that both parents support or facilitate continued breastfeeding. The introduction of a bottle for feeding brings with it the risk of the rejection of the applicant’s breast and jeopardizing the benefits of the breastfeeding relationship. Breastfeeding Alasdair is particularly important since it appears that he has several allergies and is intolerant to many foods, such as milk and some vegetables. The plan is to eventually have a formal allergy test, but that will not happen until Alasdair is two years old. The child also has baby eczema, which has flared up when the respondent failed to wash Alasdair’s clothes in scent-free laundry soap.

[21] According to the applicant, she would like that Alasdair be aware of religion, but it is ultimately up to him to make that decision and that religion should not be forced upon him. The applicant also asserts that she is just as capable as the respondent to instill in Alasdair the importance of his ethnicity and to foster his bi-racial reality. For instance, she has talked to her son about Juneteenth, and they have read books together about race and different cultures.

Analysis

[22] The governing principles when determining parenting time with a child are set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) which states the following:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[23] I continue the analysis by reciting several legal principles set out by McGee J. in Ferreira v. Ferreira, 2015 ONSC 3602, which include the following at paras. 25-32:

1. The test for determining parenting time is the best interest of the child.
2. The best interest of the child is always met by having a loving relationship with both parents.
3. It is the legal responsibility of a parent who has primary care of a child to support and foster a child’s relationship with the other parent.
4. Maximum involvement between parents and children is consistent with the child’s best interest following their parents’ separation and is supported by a large body of research on this issue.
5. The party who seeks to reduce normal access is required to provide a justification for taking such a position. The greater the restrictions sought, the more important it becomes to justify those restrictions.

[24] As indicated, while the applicant is critical of the respondent’s parenting skills and ability to properly care for Alasdair, she has no fear for the child’s safety while in his care. The applicant also deposed that she has no issue with respect to Alasdair attending Michigan provided that the respondent returns Alasdair to the applicant every couple of hours so he can breastfeed.

[25] Of course, as the applicant knows, it is impracticable for the respondent to bring Alasdair to his home in Detroit or expose his son to many other things in Michigan, given the small window that he is afforded due to the applicant’s strict breastfeeding schedule.

[26] The applicant is an impressive mother. She spent a considerable amount of time researching how to raise a healthy and happy child. This includes the importance of breastfeeding and a regularized routine for children, which she has implemented for Alasdair essentially from the date of his birth with the plan that it remains in place until he reaches at least the age of twenty-four months old: see Fiona Kelly, “Custody and Access Decision-Making and the Breast Feeding Child: Cavannah v. Johne, [2008] O.J. No. 5027 (Sup. Ct.)” (2009) 25:1 Canadian Journal of Family Law 133-153; Cavannah v. Johne, [2008] O.J. No. 5027 (S.C.) at paras. 17-19. The applicant is steadfast in protecting Alasdair from what she believes to be the dangers associated with efforts by the respondent to expand parenting time. She believes that to interfere with her ability to breastfeed Alasdair on a regular schedule at this early stage of his development will undermine the important building blocks for the future and the very foundation of his development.

[27] While again I applaud the applicant’s approach in raising Alasdair, what she fails to fully appreciate is that while routine, predictability, and breastfeeding is very important, of even greater importance for Alasdair at this early age is the development of a deeper, stronger and more comprehensive bond with his father. With respect to breastfeeding, this is but one of many factors to consider when deciding whether to expand parenting time and is weighed against the need to foster a loving relationship between the child and the respondent: see Holomey v. Hillis, 2020 ONSC 6299 (“Holomey”), at para. 17.

[28] The applicant asserts that by spending 14.5 hours of quality time per week with Alasdair, a reasonable balance in the circumstances has been struck between the respondent having maximum parenting time with his son and her ability to preserve the child’s established routine. I disagree. After deducting the time that Alasdair spends in daycare (although a good part of that is with his mother breastfeeding) or with his father during parenting time, the applicant has Alasdair under her care for approximately 116 hours per week. While I appreciate that much of this time is at night when Alasdair is sleeping, it only highlights the fact that the respondent has yet to experience many parts of parenting that are essential to create a strong bond between a parent and their child, including, for instance, when the child wakes up on occasion at night and is frightened or not feeling well and seeks comfort from a parent.

[29] In a case that involved a three-month-old child, the court in Lygouriatis v. Gohm, 2006 SKQB 448 at para. 7, adopted the views of Joan B. Kelly and Michael E. Lamb in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” (2000) 38:3 Family and Conciliation Courts Review 297-311, at 3-18:

The evening and overnight periods (like extended days with nap times) with non-residential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide. These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.

[30] Compared to the applicant, the respondent has been denied but a sliver of the whole spectrum of the parenting experience with Alasdair. As a result, and while this is not a numbers game, the applicant’s time with Alasdair overwhelms that of the respondent and yet she still demands absolute adherence to the established routine which limits expanding additional time for the respondent to parent. Maximizing the respondent’s parenting time is not only something that he quite rightly deserves, but more importantly, it is in the best interest of Alasdair that this happens now. As aptly stated by George J. in Holomey, a case that involved a sixteen-month-old child, at paras. 20-21:

This says it all and highlights just how untenable the Applicant's position is. The reality is the Applicant needs to start, now, adjusting the way she thinks about this. The fact she breastfeeds the child cannot rule the day. Furthermore, the fact she thinks she is a better parent than the Respondent is not dispositive. For the sake of the child she must immediately begin to recognize the value in her having a full and loving relationship with her father, which cannot even start to grow and develop until the child spends more, and higher quality time, with him. While perhaps not as expansive as the Respondent suggests (and I do question the appropriateness of an interim, gradually increasing, schedule), there is simply no need to delay the start of this process. In fact, it is essential that it begin now, as I get the distinct impression that once the child is no longer breastfed the Applicant will simply advance yet another reason to limit the Respondent's time with her.

In other words, I agree with the Respondent that the child's best interests demand that her time with the Respondent be increased, right now, and that he have at least some overnight visits.

[31] In addition to the obvious benefits that are inherent in a full and loving relationship between father and son, it is the respondent more so than the applicant who is uniquely positioned to potentially enrich Alasdair’s life in other important areas, including his heritage. For instance, if given the opportunity, the respondent intends to introduce his son at an early age to not only American culture which, although similar, is distinct and separate from Canadian culture, but more importantly, African American culture: see s. 24(3)(f) of the CLRA. While I commend the applicant for reading books to Alasdair about his culture and teaching him the importance of certain dates, such as Juneteenth, there is simply no substitute for an African American parent to explore firsthand with a child, particularly a bi-racial child, the importance of culture and traditions especially among family and friends in their home country.

[32] Alasdair has not met nor developed a relationship with the respondent’s family in Michigan due, in part, to the rigid schedule that has kept him in close temporal and therefore physical proximity to his mother in Windsor. Again, while an established and regularized routine is very important for a young child, of equal or greater importance are the long-term benefits that arise from a healthy and loving relationship between a child and his extended family members. Only through physical contact with his extended family, including the respondent’s family, is it possible for Alasdair to develop and nurture at an early age those strong familial bonds that are often an invaluable source of love and support as he grows older.

[33] The time is now to begin transitioning Alasdair into a new and expanded routine that will involve greater parenting time, including overnights, with the respondent. This may cause short term disruption for Alasdair and his relationship with his mother, but it is necessary in order to forge a stronger bond between him and his father. As found by Papageorgiou J. in Di Iorio v. Tropea, 2021 ONSC 8575, at para. 43:

… It is the Child’s best interests to have a strong bond with the Father. Overnights are required for this. The fact that there might be some adjustment for the Child does not mean that it is not in her best interests. Children may also have trouble adjusting to breastfeeding, certain kinds of healthy foods, brushing their teeth, going to bed, and attending school etc. That does not mean that parents should not make them do so.

[34] To deny the respondent expanded parenting time and with that, Alasdair’s access to his father’s country, culture, religion, family and friends, is to undermine the very building blocks that the applicant has attempted to firmly put in place through her efforts at breastfeeding and an established and predictable routine. The applicant’s skepticism regarding the respondent’s lofty aspiration to enhance Alasdair’s life may be well founded, but only time will tell and there is nothing in the evidence to suggest that the respondent is not capable of doing all the things that he claims he will while Alasdair is under his care, especially in Michigan - and I will give him that opportunity. Once I do, I am confident that the applicant will do all that she possibly can to make the transition towards greater parenting time for the respondent as seamless as possible for her son.

[35] On the issue of breastfeeding, it is entirely up to the applicant to decide whether she will provide the respondent with her breast milk or other food while Alasdair is in his care. Further, while the respondent has welcomed the applicant to breastfeed at his home, this is entirely unworkable until the parties are able, if ever, to put aside their differences and provide Alasdair with a conflict-free environment. It is vitally important during exchanges and on all other occasion, that the two treat each other with respect and demonstrate to Alasdair how they are capable of providing a loving and healthy environment while co-parenting, which I know both of them are capable of doing. Finally, I find no compelling reason why the applicant should continue to withhold the name and address of Alasdair’s daycare from the respondent especially when, given their history of conflict, it is in the child’s best interest that exchanges take place as often as possible in a neutral location such as the daycare.

Conclusion

[36] In conclusion, I have decided that the best interest of Alasdair requires the respondent to have greater parenting time. Although its implementation will be more gradual and less expansive than the schedule proposed by the respondent, the near-term goal is that Alasdair spend alternate weekends with each parent. With that in mind, and for the reasons outlined above, I make the following orders on a temporary and without prejudice basis:

1. Commencing November 21, 2022, the child Alasdair Chester Melvin Pelkey, born July 11, 2021, shall be in the respondent Melvin Henley’s care every alternating week as follows: i. Week 1: Monday from 4:00 p.m. to 7:00 p.m., Friday from 3:30 p.m. to 7:00 p.m. and Saturday from 9:45 a.m. to 5:45 p.m.; ii. Week 2: Monday from 4:00 p.m. to 7:00 p.m., Wednesday from 4:30 p.m. to 7:00 p.m., and Friday from 3:30 p.m. to 7:00 p.m. At all other times the child shall be in the care of the applicant.

2. Commencing January 2, 2023, the child Alasdair Chester Melvin Pelkey, born July 11, 2021, shall be in the respondent Melvin Henley’s care every alternating week as follows (subject to subparagraph 7(i)(b) regarding January 2, 2023): i. Week 1: Monday from 4:00 p.m. to 7:00 p.m., Wednesday from 4:30 p.m. to 7:00 p.m., and Friday from 3:30 p.m. until Saturday at 5:45 p.m. ii. Week 2: Monday from 4:00 p.m. to 7:00 p.m., Wednesday from 4:30 p.m. until 7:00 p.m., Friday from 3:30 p.m. until 7:00 p.m. At all other times the child shall be in the care of the applicant.

3. Commencing April 3, 2023, the child Alasdair Chester Melvin Pelkey, born July 11, 2021, shall be in the respondent Melvin Henley’s care every alternating week as follows: i. Week 1: Monday from 4:00 p.m. until 7:30 p.m., Wednesday from 4:30 p.m. to 7:30 p.m., and Friday from 3:30 p.m. until Sunday at 5:45 p.m. ii. Week 2: Wednesday from 4:30 p.m. until 7:30 p.m. At all other times the child shall be in the care of the applicant.

4. Commencing June 26, 2023, the child Alasdair Chester Melvin Pelkey, born July 11, 2021, shall be in the respondent Melvin Henley’s care every alternating week as follows: i. Week 1: Monday from 4:00 p.m. until Tuesday morning at daycare, and Friday from 3:30 p.m. until Monday morning at daycare (or 8:30 a.m. if no daycare). ii. Week 2: Wednesday from 4:30 p.m. until Thursday morning at daycare (or 8:30 a.m. if no daycare). At all other times the child shall be in the care of the applicant.

5. That the parenting time exchanges shall take place at the child’s daycare whenever possible. Otherwise, the respondent shall pick up the child from the applicant’s residence or work, or any other place agreed to in writing by the parties. The applicant is to provide the name and address of the child’s daycare to the respondent forthwith and take all steps necessary authorizing the daycare to release the child directly to the respondent during exchanges.

6. That the child, Alasdair Chester Melvin Pelkey, born July 11, 2021, may travel between the Province of Ontario and the State of Michigan while in the company of the respondent and that parenting time shall take place at the respondent’s home at 251 West Grand Blvd. in Detroit, Michigan as much as possible. Upon reasonable notice, the applicant shall provide the respondent with her written consent, if necessary, for the child to cross the border while in the company of the respondent during his parenting time.

7. That the respondent shall have parenting time with the child, Alasdair Chester Melvin Pelkey, born July 11, 2021, during the holidays, as follows: i. From December 24, 2022 to January 2, 2023, the regular schedule is suspended and the child Alasdair Chester Melvin Pelkey, born July 11, 2021, shall be in the respondent Melvin Henley’s, care: a. Commencing Saturday, December 24, 2022 from 9:30 a.m. to 5:45 p.m., Monday, December 26, 2022 from 9:45 a.m. to 5:45 p.m., Wednesday, December 28, 2022 from 4:30 p.m. to 7:00 p.m. and Friday December 30, 2022 from 3:30 p.m. to 7:00 p.m.; b. On Monday, January 2, 2023 from 9:45 a.m. to 5:45 p.m. At all other times the child shall be in the care of the applicant. ii. Christmas and New Year’s:

   1. Except for 2022, in even years, the applicant shall have parenting time with the child from 12:00 p.m. on December 24 until 12:00 p.m. on December 25, and with the respondent from 12:00 p.m. on December 25 until 12:00 p.m. on December 26.
   2. In odd years, the respondent shall have parenting time with the child from 12:00 p.m. on December 24 until 12:00 p.m. on December 25, and with the applicant from 12:00 p.m. on December 25 until 12:00 p.m. on December 26.
   3. Except for 2022-2023, in even years, the respondent shall have parenting time with the child from 12:00 p.m. on New Year’s Eve until 12:00 p.m. on New Year’s Day;
   4. In odd years, the applicant shall have parenting time with the child from 12:00 p.m. on New Year’s Eve until 12:00 p.m. on New Year’s Day. iii. During the 2023-2024 Christmas/New Year holiday and thereafter:
   5. With the exception of the special days outlined above, the balance of the time from December 24 to January 1 is to be divided equally. iv. During the 2023 Easter holiday and thereafter:
   6. Commencing on Friday, April 7, 2023, the current schedule shall be varied whereas the respondent shall have parenting time with the child on Saturday, April 8, 2023 from 12:00 noon to 7:30 p.m. The balance of the weekend the child shall be in the care of the applicant. The current schedule will commence again on Monday, April 10, 2023.
   7. In even years, the child shall have parenting time with the respondent from 5:00 p.m. on Thursday to 5:00 p.m. on Saturday and then the applicant from Saturday at 5:00 p.m. to Monday at 5:00 p.m. and then the schedule will commence again.
   8. Except for 2023, in odd years, the schedule shall be reversed. v. During the 2023 Canadian Thanksgiving holiday and thereafter:
   9. The applicant shall have the child for the Canadian Thanksgiving holiday, from Sunday October 8, 2023 at 4:30 p.m. until the current schedule commences again on Wednesday October 11, 2023 and for every Thanksgiving thereafter using this same schedule, namely from Sunday at 4:30 p.m. until the current schedule commences again on Wednesday. vi. During the 2023 American Thanksgiving holiday and thereafter:
   10. The respondent shall have the child for the American Thanksgiving holiday, from Wednesday November 22, 2023 at 4:30 p.m. until Friday November 24, 2023 morning at daycare (or 8:30 a.m. if no daycare) and for every Thanksgiving thereafter using this same schedule, namely from Wednesday at 4:30 p.m. to Friday morning at daycare (or 8:30 a.m. if no daycare). If the weekend immediately after the Thursday holiday is the respondent’s weekend, then the child shall be with the applicant from Friday morning until Sunday at 9:45 a.m. and then with the respondent from Sunday at 9:45 a.m. to Monday morning at daycare (or 8:30 a.m. if no daycare)

[37] Even if the other applicant is scheduled to have the child pursuant to the current schedule, the child shall be with the respondent on Juneteenth from 3:30 p.m. until 8:00 p.m.

[38] Even if the other parent is scheduled to have the child pursuant to the current schedule, the child shall be with the applicant on Mother’s Day and with the respondent on Father’s Day from 9:45 a.m. until 7:30 p.m.

[39] The parent who does not have parenting time on Alasdair’s birthday shall be entitled to contact the child by Zoom or FaceTime. Similarly, the parent who does not have parenting time on Halloween shall be entitled to contact the child by Zoom or FaceTime.

[40] Even if the other parent is scheduled to have the child pursuant to the current schedule, the child shall be entitled to spend three hours with the applicant on her birthday each year and three hours with the respondent on his birthday each year. If the parties are unable to agree, the timing shall be from 4:00 p.m. until 7:00 p.m.

[41] Any part of this order may be varied with the written consent of both parties.

Costs

[42] The issue of costs can be addressed in writing. If the parties do not reach an agreement as to costs, then the applicant’s written submissions consisting of no more than five pages in length, exclusive of the bill of costs, are to be filed within 30 days of the date of the release of this decision. The respondent’s submissions consisting of no more than five pages are to be filed within 15 days thereafter and the applicant’s reply consisting of no more than three pages are to be filed within 15 days thereafter.

Original signed by Justice Brian D. Dubé

Brian D. Dubé Justice

Released: November 18, 2022