COURT FILE NO.: FC-17-FS052360
DATE: 2022-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.L.W.
Applicant
– and –
N.P.
Respondent
Lorrie Stojni-Kassik, counsel for the Applicant
Brian Kelly, counsel for the Respondent
HEARD: November 23, 2022, at Kitchener
THE HONOURABLE JUSTICE M. BORDIN
REASONS FOR DECISION ON MOTIONS
Issues Raised by the Parties
[1] The Respondent Father and the Applicant Mother have both brought motions.
[2] The Respondent Father’s motion was first in time. The primary issue raised by the Respondent Father is whether the interim parenting schedule should be varied to a 2-2-3 schedule.
[3] The Applicant Mother seeks to have the 5-1-1-3-2-2 parenting schedule continue and requests an order for the involvement of the Office of the Children's Lawyer or, in the alternative, that the parties jointly retain Annette Katchaluba (“Katchaluba”) of By Peaceful Waters to conduct an updated voice of the child report.
[4] At the hearing, the Respondent Father advised that, if the court requires an updated voice of the child report before deciding whether to change the parenting schedule, he will withdraw his motion.
[5] On consent, at the conclusion of the hearing, the parties agreed to an order for further disclosure from the Respondent Father and a time within which questioning is to be completed. As a result of the consent with respect to further disclosure, the Applicant Mother conceded she would not proceed at this time with seeking the imputation of income to the Respondent Father or a determination of whether there are arrears of child support in accordance with an imputed income.
Materials Before the Court
[6] The Respondent Father filed four affidavits:
A form 35.1 affidavit sworn July 13, 2022;
A form 14A affidavit sworn July 13, 2022;
A form 14A affidavit sworn September 13, 2022; and
A form 14A affidavit sworn September 22, 2022.
[7] The Applicant Mother filed:
A form 14A affidavit sworn August 5, 2022; and
A form 14A affidavit sworn October 5, 2022.
[8] Both parties filed factums.
Factual Background
Children and Relationship
[9] The parties were married on October 27, 2012, separated on October 1, 2015, and remained living separate and apart within their matrimonial home until it was sold in February 2016.
[10] There are three children of the marriage, namely, L.R.T.P., born 2009, L.N.P., born 2012, and C.L.P., born 2014.
[11] The application was commenced by the Applicant Mother on April 21, 2017.
October 2, 2017 Order
[12] At a case conference on October 2, 2017, Nightingale J. made several temporary orders on consent, including:
The Respondent Father shall have unsupervised access to the children commencing Sunday, October 8, 2017 from 9:00 a.m. to 5:30 p.m. and on every Sunday thereafter.
Upon the Respondent Father providing a negative hair follicle test to the Applicant Mother, the Respondent Father’s access to the children shall be as follows:
(a) Each Wednesday from 5:00 p.m. to 7:30 p.m.;
(b) Alternate weekends from Friday after school or 4:00 p.m. if not a school day to Sunday at 7:30 p.m. inclusive of Monday to 7:30 p.m. if a statutory holiday; and
(c) Any and other access as the parties may agree.
[13] The Respondent Father provided a negative hair follicle test on November 6, 2018. The Respondent Father’s first weekend parenting period in accordance with the order occurred on or about December 21, 2018. Before that, the Respondent Father had parenting time with the children during the day on Sundays and holiday time as arranged between the parties.
Historical Parenting Time
[14] The parties have tendered conflicting evidence of the history of their parenting time before 2019.
[15] The Respondent Father asserts that the Applicant Mother had been putting up obstacles to his parenting time and the Applicant Mother unilaterally limited, altered or required supervision of his parenting time. The Respondent Father denies the Applicant Mother’s assertions that he did not seek parenting time with the children.
[16] The Applicant Mother asserts that she has always facilitated the Respondent Father’s parenting time and that he had a history of not pursing parenting time or missing parenting time.
[17] These differences over the historical parenting time, as far back as ten years in the past, are not reflective of what has been occurring since 2019 and, in particular over the last two and a half years, are not particularly useful to determine the issues on this motion.
[18] The parenting time arrangements since early 2020 are not disputed.
Section 30 Assessment
[19] The Applicant Mother says that on May 7, 2019, the parties consented to an order seeking the involvement of the Office the Children's Lawyer (“OCL”), but the OCL declined involvement. As a result, an order issued at the settlement conference on October 24, 2019, which required that the parties retain Katchaluba to conduct an assessment pursuant to section 30 of the Children's Law Reform Act.
[20] The section 30 assessment conducted following the settlement conference was not committed to writing. Instead, Katchaluba assisted the parents in preparing a parenting plan (“Parenting Plan”).
Parenting Plan
[21] With the assistance of Katchaluba, the parties executed the detailed Parenting Plan dated “May 2020”. The Parenting Plan addresses numerous aspects of parenting and includes a detailed schedule setting out a graduated parenting time regime as follows:
Present - June 30, 2020
From April to June 30, 2020, the children will be with the Respondent Father each Wednesday at 9:00 a.m. until Thursday at 12:00 p.m. The children will be with the Respondent Father alternate weekends from Friday at 9:00 a.m. until Monday at 9:00 a.m. The children will be with the Applicant Mother all other times.
July and August 2020
The parties are to share the summer school break schedule equally, following a 2-2-3 schedule. The resident parent the first weekend that school is dismissed will begin the summer schedule. Exchanges will occur at 9:00 a.m.
September 2020 until January 2021
Week 1: The Respondent Father will have the children Wednesday after school or at 9:00 a.m. if there is no school until Thursday return to school or at 9:00 a.m. if there is no school. The Respondent Father will have the children alternate weekends from Friday after school or at 9:00 a.m. if there is no school until return to school Monday morning or at 9:00 a.m. if there is no school. The children will be with the Applicant Mother all other times.
Week 2: The Respondent Father will have the children Wednesday after school or at 9:00 a.m. if there is no school until Thursday at 7:30 p.m. The children will be with the Applicant Mother at all other times.
January 2021
Week 1: The Respondent Father will have the children Wednesday after school or at 9:00 a.m. if there is no school until Thursday return to school or at 9:30 a.m. if there is no school. The Respondent Father will have the children alternate weekends from Friday after school or 9:00 a.m. if there is no school until return to school Monday morning or at 9:00 a.m. if there is no school. The children will be with the Applicant Mother all other times.
Week 2: The Respondent Father will have the children Wednesday after school from 9:00 a.m. if there is no school until return to school Friday morning or at 9:00 a.m. if there is no school. The children will be with the Applicant Mother all other times.
[22] The schedule under the January 2021 heading has been in place since January 2021. It is effectively a 5-1-1-3-2-2 schedule and was a slight variation from the schedule in place between September 2020 and December 2020 (a 6-1-1-3-2-1). That schedule was a variation of the July and August schedule, which differed from the schedule in place before that.
[23] For July and August of 2020, 2021, and 2022, the parenting time has been a 2-2-3 schedule.
[24] The Parenting Plan sets out a detailed schedule for holidays and special events including birthdays, Mother’s Day, Father’s Day, Christmas school break, March Break, Easter, Thanksgiving, PA days, Halloween, and the various long weekends throughout the year.
[25] The Parenting Plan also sets out “Objective Factors”:
The parties agree that each phase will proceed with the following objective factors have been met [sic]:
a. there are no concerns noted by the children's teachers regarding their performance in school.
b. There are no concerns noted regarding access by the children's counsellors or family physicians.
c. The Respondent Father will provide three negative drug screens, once every four months: June 2020, October 2020, February 2021. The results will be shared with the Applicant Mother by the end of the month, within 24 hours of receiving them. The Respondent Father will attend Life Labs, 350 Conestoga BLVD suite C2, Cambridge, Ontario. The costs will be shared when a receipt is provided.
d. The Respondent Father continues to follow the recommendations of the professional he works with, including his counsellor and doctor.
e. The children’s views and preferences will be determined at the request of either parent.
[26] The Applicant Mother led no evidence that there were any issues with items a. through d. in the Objective Factors. She relies on item e. to say that a new voice of the child report is necessary because she has asked for it.
Voice of the Child Report – Position of the parties
[27] There is a settlement conference scheduled for December 14, 2022. The Applicant Mother’s position is that Katchaluba should provide a further voice of the child report for the settlement conference and the issues raised in the motion should be addressed at the settlement conference, and then, if not resolved, the Respondent Father can bring back his motion to change parenting time. Counsel for the Applicant Mother advises that she has contacted Katchaluba who has advised that she can prepare the voice of the child report in advance of the settlement conference.
[28] The Applicant Mother says that the court has jurisdiction to address parenting time, but it is best to have Katchaluba interview the children again and clarify what she meant in her report.
[29] The Respondent Father takes the position that there is no need for a further interview with the children and that the voice of the child report prepared by Katchaluba is clear that the children do not want to be needlessly “bounced around”.
[30] Both parties hold Katchaluba in high regard. Like students of religious texts, they interpret her writings differently.
Voice of the Child Report – Facts and Analysis
[31] Katchaluba interviewed the children on December 19, 2020. She prepared a voice of the child report in August 2021 based on those interviews (the “VOC Report”). The Applicant Mother says the VOC Report was not in writing until August 2021 when the Respondent Father requested that the verbal report be put in writing.
[32] On December 22, 2020, the Respondent Father emailed the Applicant Mother and invited a conversation with the Applicant Mother about changing to a 2-3-3 schedule. The Respondent Father copied his email to Katchaluba. In response to that email on December 22, 2020, Katchaluba wrote:
Thanks for including me in this discussion. My suggestion about minimizing gaps is not to replace the current agreement you have about how the time is divided with the children. So the same time but possibly move the days in the week where dad doesn't have the weekend. In the absence of agreement you both are bound to follow the signed parenting plan.
[33] The Applicant Mother notes that this request was made by the Respondent Father before the change to the January 2021 schedule.
[34] It is clear from the email that Katchaluba had discussions with the parties following her interviews with the children and was suggesting the possibility of keeping the same amount of parenting time but changing how the time is divided up between the parties. This makes sense when one considers the views of the children obtained by Katchaluba three days earlier, as recorded in the VOC Report.
[35] In the VOC Report, Katchaluba writes:
It should be stated that this Voice of the Child Report is intended for assessment about whether the gradual schedule in the Section 30 assessment can proceed as outlined. Please note that this report does not speak to parenting schedules that are not outlined in the Section 30 assessment recommendations.
[36] And further:
It was agreed that prior to a progression of increased time in the parenting schedule, the children could be interviewed to hear their views and preferences.
[37] Below are the relevant portions of the interviews recorded in the VOC report.
[38] L.R.T.P. was 11 at the time of the interview.
[L.R.T.P.] spoke positively about the activities he does in each home and the connection that he has with both parents. He noted some differences between the residences, such as doing more chores and going to bed earlier at his father's home. He appreciates the help with homework that he receives at his mother's home. [L.R.T.P.] said that if his father helped him with homework more, then things at his father's home would be "perfect".
[L.R.T.P.] said that his sister does get upset at their father's residence at nighttime, as she likes to have someone staying with her at night. [C.L.P.] will come to sleep with [L.R.T.P.] in his bed, even though their father has asked her to come to him if she needs help at night. [L.R.T.P.] said that he feels sad that his sister is so emotional when she is away from their mother. He said that she will often want to make phone calls to their mother when at their father's home. [L.R.T.P.] stated that [C.L.P.] also missed their mother when she would go to work and their maternal grandparents would look after the children before school. When his grandparents would ask her what she wants for breakfast, she would say, "I want mommy".
[L.R.T.P.] likes the current schedule and said that it is "going good". He is aware that there is a plan for the parenting schedule to change after Christmas, allowing for the Thursday to become an overnight. [L.R.T.P.] said he is concerned that this is too long of a time away from his mother. [L.R.T.P.] said that he lived "his whole life" with his mother and has only been living with his father for a couple of years. [L.R.T.P.] said that when he is away from his father for five days, he is happy because he is with his mother but sad because he is away from his father and he misses the fun things they do together. [L.R.T.P.] loves both parents and misses both of them when he is at the other residence. He said that he thinks his mother knows that they enjoy their time with their father as much as they enjoy time with their mother. [L.R.T.P.] finds the pack up to go to the other home most challenging and described it as "painful' and feeling like a "ping-pong ball". He would prefer no further changes to the schedule. [Emphasis added]
[39] L.N.P. was 8 years and 11 months at the time of the interview.
He spoke positively about both homes, highlighting how he likes his new puppy at his mother's home and how he likes hearing his half-sister laugh at his father's home. [L.N.P.] described many activities that he enjoys doing with at each home with his parents. [L.N.P.] is aware that after Christmas he will have Thursday overnights with his father. He said that he would rather return to his mother's care on Thursdays at 7:30 pm because he likes to see his mother and changing the schedule would mean that he "barely sees her". He said that he feels sad not seeing his mother, especially at night because he likes to sleep with her. [L.N.P.] said that his father has only laid down with him "two times" to go to sleep and his mother has laid down with him "a million times". [L.N.P.] identified that if his father laid down with him "a million" times it would be better at his father's home. [L.N.P.] likes to have an adult with him and he believes the schedule would feel better if he could sleep with an adult in both homes. [L.N.P.] described that he feels happy with the schedule; however, just when he gets back to one house, he has to leave again. He expressed concern, through tears, that this was not good for his mother and that it makes him feel sad to not see his mother more. [L.N.P.] said that he likes to see his father as they have fun. [L.N.P.] does "not like it" when he is not at his father's home. [L.N.P.] is aware that each parent would like to see him more and worries that by sharing his thoughts his parents may feel mad. He feels it would help if he could have phone calls to the parent he is not with. [L.N.P.] said he would like the schedule to give two weekdays to each parent (Monday, Tuesday with his mother and Wednesday, Thursday with his father) and split weekends between his parents. [Emphasis added]
[40] C.L.P. was six years old at the time of the interview.
[C.L.P.] identified activities that she likes to do with both parents and described having positive experiences in both homes. She recalls feeling lonely at her father's home when he needed to rest his broken foot and she had to play by herself. However, she advised that she found lots of fun things to play, like barbies. [C.L.P.] said that it "feels weird" not to be the "smallest" now that her baby sister is born.
[C.L.P.] does not have good sleeps at her father's house because her mother is not there to sleep with her at night. [C.L.P.] does have a stuffed animal that glows at her father's home, which helps her fall asleep.
[C.L.P.] expressed her desire to have time with both of her parents. She said the hardest part for her is having to go back and forth between the homes, as this makes her feel like she is "banged around by a tennis racket". She indicated that she wants to have time with each parent but not too much time at each house as the days become too long to be away from her mother. [C.L.P.] said that it is harder for her to do five days with father than it is to have five days with her mother. [C.L.P.] said that seven days away from either parent is "too long". [Emphasis added]
[41] L.N.P.’s comment that adding an overnight on a Thursday (which would mean two nights in a row with his father mid-week) is too long a time away from his mother does not make sense considering his other comments and because the schedule also provided for three overnights in a row with his father. Similarly, L.N.P.’s comments that adding the Thursday overnight to the Respondent Father’s parenting time means he would rarely see his mother does not make sense considering his other comments about parenting time. In the same way, C.L.P.’s comments that it is harder for her to do five days with her father than her mother are troubling since the schedule did not provide for five days with her father.
[42] These comments by the children suggest parental influence in the views of the children.
[43] In their interviews, the children express concerns for how the schedule affects their mother. For example, notwithstanding he also says that he would like to change to a less disruptive schedule which would effectively result in more time with the Respondent Father, L.N.P.’s comments that short transitions are not good for his mother are suggestive of parental influence in the children’s views on matters of parenting time.
[44] The Applicant Mother puts her own spin on the words of the children set out in the VOC Report. The court is not persuaded by the Applicant Mother’s interpretation.
[45] C.L.P.’s comments about transitions, like L.N.P.’s and L.R.T.P.’s, are strongly suggestive of a desire to have fewer short transitions. Taken in context, none of the children express a desire for less time with the Respondent Father and more with the Applicant Mother.
[46] Notwithstanding the children’s apparent reticence in December 2020 to add one overnight to the Respondent Father’s parenting time, the children have been doing so for almost two years. None of the parties have provided evidence that any issues have arisen because of the addition of one overnight as of January 2021. Based on the evidence before the court, all three children have adapted well to the slight increase in time with the Respondent Father since January 2021.
[47] As for the comments on assisting the children with homework, reasonable parents differ on how much time a parent should devote to assisting children with homework. A child’s expression of wanting more assistance with homework by one parent is not decisive. The same can be said for the comments about sleeping in the same bed with the children who are now a month shy of 11 and 10 years old.
[48] The VOC Report by Katchaluba was invoiced to the Respondent Father at the cost of $960.50. The parties had previously shared the costs of working with Katchaluba. The Respondent Father asserts that the Applicant Mother owes him one-half of the cost of the last report prepared by Katchaluba. The Applicant Mother says she is not required to pay half the cost as the written report was requested by the Respondent Father. This issue was not pursued at the hearing by the Respondent Father and no order is made.
Requests by the Respondent Father to Change Parenting Time
[49] In his October 5, 2022 affidavit, the Respondent Father acknowledges the parties are bound by the Parenting Plan but attests he has repeatedly requested changes to the plan. His several requests to adjust the parenting schedule have been refused by the Applicant Mother and are set out in his July 13, 2022 affidavit.
[50] The Respondent Father references an email received from the Applicant Mother dated May 10, 2021 in which the Applicant Mother writes:
The summer is coming up and the schedule changes for them again. I am open to us re-addressing this and re-evaluating your concern, should there still be any, when it's been a full year of consistency for them starting in September.
[51] The parties attended mediation with Katchaluba on or about February 15, 2022. The mediation was not successful. On February 17, 2022, following the mediation, Katchaluba wrote:
… I discussed with counsel before leaving the meeting that there may be value in having the children's voices brought into the mediation process. …
I wondered if you both agree with this approach as well. If so, can you confirm? I can then arrange times with you both to interview the children.
[52] The Applicant Mother responded that she was willing to have the children interviewed. The Respondent Father declined. He takes the position that the children do not want to be interviewed and that they are embarrassed by the interviews.
Analysis
[53] The following sections of the Divorce Act are relevant to this motion:
16 …
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(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 cooperate, 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 cooperate 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.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses, …
17 (5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
[54] As noted by Chappel J. in McBennett v. Danis, 2021 ONSC 3610:
[93] The wide array of factors relevant to the best interests analysis under the Divorce Act allows for a uniquely tailored analysis of the parenting issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration. The factors that the court should focus on in carrying out the best interests assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case. The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). All parties bear the onus of demonstrating where the best interests of the child lie (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.)).
[55] Maximum parenting time or contact does not necessarily mean equal time; a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle: Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721 (C.A.), at para. 34.
[56] The Applicant Mother relies upon the following principle cited here from Southorn v. Ree, 2019 ONSC 1298:
[20] Therefore, nothing in all of this changes the essential rule regarding change in custody from an established status quo on an interim motion: the evidence, either garnered from the facts or garnered from the assessment or investigative report, must be compelling and immediate for there to be a change a long term status quo. If the assessment report does not contain evidence of the compelling facts necessary to change the status quo, that should put an end to the motion in the same manner as a party’s failure to provide that evidence. …
[57] And in Western v. Reed, 2022 ONSC 900:
[22] Generally, on a temporary basis the court should not adjust an established parenting time arrangement, even if there are minor difficulties with it, unless there is a compelling reason to do so. That is, it is not in the child’s best interest for an established parenting time arrangement to be changed on a temporary basis, only to be changed again at trial after a court has thoroughly reviewed all of the evidence.
[58] In the VOC Report, the children expressed a clear sentiment that the parenting schedule felt like being “banged around like a tennis racket”, makes them feel like just when they get back to one house, they have to leave again, and feeling like a “ping-pong ball”. This would be exacerbated by the period in week one where the children have two successive one-day turnarounds.
[59] Based on the view of the children as expressed in the VOC Report, there should have been an adjustment made to the parenting schedule to minimize short transitions before the January 2021 status quo was implemented.
[60] The Parenting Plan was not a final plan, as reinforced by the email from the Applicant Mother on May 10, 2021 that she was open to revisiting and re-evaluating the Respondent Father’s concerns about parenting time when there had been a full year of consistency for the children.
[61] The children have for three summers (a total of six months) enjoyed a 2-2-3 schedule. A change in the schedule to a schedule with less short transition times is consistent with the summer schedule.
[62] There is no evidence of any concerns with a 2-2-3 schedule that has been put before the court other than the Applicant Mother’s request that she wants further interviews of the children.
[63] The children are with the Respondent Father approximately 43 percent of the time, have their own bedrooms, clothes, shoes, jackets, necessities, etcetera, at his residence. This was not disputed by the Applicant Mother.
[64] The evidence is that the children are connected with each of their parents and want to spend time with each of them. The evidence before the court is that the children enjoy their time with both parents. There is no evidence before the court to suggest that both parents are not capable and caring, and functioning well under the current parenting plan. The only issue is that the Respondent Father wants to move to a 2-2-3 50/50 regime and the Applicant Mother resists that. There is no evidence of the Respondent Father undermining the Applicant Mother’s relationship with the children.
[65] Other than the dispute about whether to obtain another voice of the child report and the requested change to parenting time, there is no evidence of an inability of the parties to communicate and cooperate with one another on matters affecting the children.
[66] It is the Applicant Mother’s position and evidence that the children responded positively to the current schedule. The Applicant Mother notes that since January of 2021, L.R.T.P.’s grades have steadily improved. She attributes this to the lack of changes to the parenting time. It also corresponds to the expansion of parenting time with the Respondent Father.
[67] A parenting schedule of 2-2-3 would not be new to the children and eliminates a day-on day-off schedule which currently exists in the first week of the parenting schedule and is not in the best interests of the children. It would also make the parenting schedule consistent throughout the year.
[68] The Applicant Mother extensively references the Respondent Father’s historical drug use. The Respondent Father asserts that his drug use was in or about 2011, nearly 12 years ago, ended by 2015, and is no longer an issue in the present proceedings. The Applicant Mother speculates but leads no evidence that it continued past about 2015.
[69] The Respondent Father has sought help for his drug use, attended rehabilitation programs, and has been subject to multiple random drug tests at federally governed facilities, weekly urine tests, as well as urine tests conducted by his employer, and his test results have been negative on each occasion. Since October 2018, the Respondent Father has voluntarily completed eight hair follicle tests which were all negative. All test results were disclosed to the Applicant Mother. The Respondent Father asserts there has been no drug use since he attended the drug rehabilitation program and no "18-hour cocaine bender" alleged by the Applicant Mother.
[70] The Respondent Father provided the Applicant Mother with a signed authorization allowing the Applicant Mother to seek all his counsellor's notes from the rehabilitation program he attended and his past drug support groups and programs. The Respondent Father provided evidence of his continuing commitment to rehabilitation and continues to meet with a counsellor on a regular basis.
[71] The Applicant Mother proffers no evidence that there has been ongoing drug use or that it has any impact on the exercise of parenting time or decision-making responsibility and did not draw the court’s attention to any such evidence.
Office of the Children’s Lawyer
[72] There was no cogent evidence led that the views and preferences of the children have changed.
[73] There was no basis in the evidence to request the involvement of the OCL and that relief requested in the Applicant Mother’s notice of motion is dismissed.
Conclusion
[74] Based on the view of the children as expressed in the VOC Report, there should have been an adjustment made to the parenting schedule to minimize short transitions before the January 2021 status quo was implemented. This was ignored or not implemented by the parties.
[75] Based on the conduct of the parties to date in responding to the last VOC report, it is not at all clear that a further VOC Report would provide any assistance to the parties or the court. On the evidence before the court, there is no need for a further interview of the children.
[76] Further, the Applicant Mother seeks another voice of the child report but has not shared the costs of the VOC Report.
[77] The court is aware that the status quo should not be easily varied on an interim motion. However, the principle that it is preferable not to disrupt a status quo parenting arrangement on an interim motion is not absolute.
[78] The court has significant concerns about the inordinately slow pace at which this application has progressed. The application was commenced five and a half years ago. An order for questioning was made by an earlier court. The parties have not yet availed themselves of the questioning but wish to do so now. On consent, they have been ordered to complete questioning, if any, by the end of February 2023. The last time a court order on parenting time was made was in October 2017. More than five years later, there is no trial scheduling conference or trial in sight.
[79] The Applicant Mother essentially suggests a “wait and see” approach to the issues on this motion. The Applicant Mother’s suggestions for next steps indicates that this application may continue to proceed in a leisurely fashion.
[80] Given the VOC Report, it is the court’s view that it was in the best interests of the children two years ago to modify the parenting schedule to decrease the number of short transitions for the children and that remains the case today. The status quo is not in the best interests of the children.
[81] Considering the Divorce Act factors and the applicable legal principles, and in the unique circumstances of this case, the court finds that it is in the best interests of the children to minimize the short transitions between homes and to provide the children with more consistency throughout the year, and that the appropriate way to do so is to vary the parenting time to a 2-2-3 schedule.
Order
[82] Commencing immediately, there shall be a temporary order varying the parenting plan as follows:
- Week 1:
a. Parent One shall have the children, L.R.T.P., L.N.P. and C.L.P., in their care from Monday after school or at 9:00 a.m. if there is no school until their return to school on Wednesday morning or at 9:00 a.m. if there is no school.
b. Parent Two shall have the children in their care from Wednesday after school or at 9:00 a.m. if there is no school until their return to school on Friday morning or at 9:00 a.m. if there is no school.
c. Parent One shall have the children in their care from Friday after school or 9:00 a.m. if there is no school until their return to school Monday morning or at 9:00 a.m. if there is no school.
- Week 2:
a. Parent Two shall have the children in their care from Monday after school or at 9:00 a.m. if there is no school until their return to school on Wednesday morning or at 9:00 a.m. if there is no school.
b. Parent One shall have the children in their care from Wednesday after school or at 9:00 a.m. if there is no school until their return to school on Friday morning or at 9:00 a.m. if there is no school.
c. Parent Two shall have the children in their care from Friday after school or 9:00 a.m. if there is no school until their return to school Monday morning or at 9:00 a.m. if there is no school.
Costs
[83] The parties are encouraged to resolve the issue of costs of the motions between themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:
The Respondent Father shall serve his bill of costs and submissions, if any, by Wednesday, December 14, 2022; and
The Applicant Mother shall serve her bill of costs and submissions, if any, by no later than Friday, December 23, 2022.
[84] All submissions are to be filed with the court with a copy also emailed to the judicial assistants at St.Catharines.SCJJA@ontario.ca, by Friday, December 23, 2022.
[85] If no submissions or written consent to an extension are received by the court by December 23, 2022, the matter of costs will be deemed to have been settled.
M. Bordin, J.
Released: 2022-12-05