Overview

[1] The Applicant father brings this motion for “equal parenting time” with the parties’ young children, “J” aged 3 and “S” aged 1. The respondent mother seeks leave to bring a cross motion to restrict the father’s parenting time to alternate weekends from Friday at 5:00 pm to Sunday at 5:00 pm, to be expanded after two months to include a regular weekday overnight from 5:00 pm on Wednesday to Thursday at 9:00 am. Until September of 2022, the children had been in the father’s care every weekend.

[2] I gave leave for both parents’ parenting plan proposals to be decided within this one motion because there has been no parenting plan in place since the parents’ abrupt separation in March 2022. The children’s time with their father has been withheld and inconsistently proscribed by the mother in a manner that has not been child focused.

[3] For the reasons set out below, the children shall alternate residences within a Week 1 and Week 2 schedule in which care shall be transferred between the parents’ residences on Sunday at 7:00 pm and Friday at 7:00 pm during Week 1; and Sunday at 7 pm and Tuesday at 7:00 p.m. on Week 2.

[4] Week 1 shall start with the children being with their father from Sunday December 18, 2022 at 7:00 pm, until Friday December 23 at 7:00 pm, then with their mother from 7:00 pm December 23rd until Sunday December 25th at 7:00 pm, then with their father from December 25th at 7 pm until Tuesday, December 27th at 7 pm. Week 2 shall conclude with the children being in their mother’s care from Tuesday December 27th until Sunday January 1, 2023. Week 1 and Week 2 shall then continue until further Order of the Court, or written agreement between the parents.

[5] Ms. Kelly also asks for a Christmas week with the children on Prince Edward Island from December 21st to December 27th, 2022.

[6] Ms. Kelly’s Christmas travel request is problematic for two reasons and could not be resolved during a break-out period granted to the parties for that purpose. First, this litigation was precipitated by her surreptitious removal of the children from Brampton to her mother’s residence in Charlottetown, PEI for a purported visit last February. But for Justice McSweeney’s Order of April 8, 2022, the children might never have returned to their home in Brampton. Ms. Kelly gave no relocation notice, made no proposal for a parenting schedule other than videoconferencing, nor was Mr. Bansal even aware that she considered their spousal relationship at an end until he was served with an Application from the Family Court of the Supreme Court of Prince Edward Island on March 9, 2022.

[7] It took Ms. Kelly some time to return to Ontario and longer to permit parenting time. But for one occasion, the children did not see their father from February 2022 until July 2022 when S was taken to the hospital.

[8] Second, there is presently no effective or timely communication between the parents. The request to take the children to their maternal family for Christmas was only received by way of a Notice of Motion served December 5th, three days before the hearing of this Motion.

[9] The two complications underscore a lack of cooperation between the parents at this early stage of their separation. They have not attended mediation, or otherwise developed manners of sharing child focused information and concerns. The parenting schedule has been ad hoc, with Ms. Kelly making unilateral changes. Every significant decision made to date, including financial decisions has had to have been moved forward by a Judge.

[10] In this environment, I find that it is premature on a short-served motion to take any step other than to immediately implement a regular parenting schedule. The children need time to adjust to the new routines and to spend more normalized time with their father than alternate weekends. Come January, the parents can meet with a mediator and work through the whole of the 2023 calendar to determine a schedule that best provides for the children’s engagement in each of their family’s traditions, celebrations, and culture.

Background

[11] I will not repeat the detailed background set out in Justice McSweeney’s decision of April 8th, 2022, the Case Conference endorsement of Justice Petersen dated July 13, 2022 or Justice LeMay’s reasons of November 1, 2022. The Prince Edward County Application has been dismissed, and Ontario has jurisdiction over the issues arising from the end of this four and a half-year common-law relationship.

[12] As of the date of this motion, Mr. Bansal has fully purchased Ms. Kelly’s interest in their jointly owned Brampton home and has been paying table child support based on his employment income as a City of Brampton truck driver. In May of this year Mr. Bansal’s mother travelled from India on a long-term Visa to resume any caregiving role that might assist the parents. She previously lived with the family from August 2020 to November 2021 to assist with the care of the older child when Ms. Kelly returned to work after the end of her first maternity leave.

[13] Prior to separation, Ms. Kelly worked fulltime in an administrative position, but for her periods of maternity leave. She was still on leave when she took the children to PEI in February of 2022, purportedly to visit with her mother. Since her return she has neither returned to employment, nor secured accommodation. She shows her address for service as her mother’s address in PEI.

[14] Ms. Kelly deposes that she has found it difficult to re-establish herself in housing and to return to work in Ontario. Justice LeMay’s October 31, 2022 decision noted that the children had moved around between Airbnbs and hotel rooms since their return to Ontario and as of the date of his decision, were living in a Peel Family Shelter. His Order provides for an immediate sale of the Brampton home and notes that voluntary child support is in pay. I was advised during this motion that child support is not an issue that I must determine.

[15] Despite her housing instability, and the children’s familiarity with the former matrimonial home in which they have their own rooms, Ms. Kelly arbitrarily reduced the father’s parenting time from every weekend to alternate weekends in September 2022. Her reasons for doing so are unclear. Her cited reason is that she also wishes to have weekend time with the children, but as pointed out by the father, the children are in her care all week. No issue is taken with the father’s care, but for an assertion that because he works, it will be the paternal grandmother who cares for the children during the day, a concern that cannot apply to the weekends when Mr. Bansal is home.

[16] It is perhaps the case that Ms. Kelly feels displaced by her former mother-in-law, but as I explained during the hearing, each grandmother is a valuable resource to the parents and a source of attachment for the children. Mr. Bansal’s mother has much to offer as a day-to-day caregiver. She is a 61-year-old retired teacher with a Bachelor’s in Education and a Double Master’s Degree in the Arts. Ms. Kelly’s mother also has much to offer the children. She is a keen advocate for her daughter and has a home in PEI that can be a place of respite and holiday for the children once their routines in Ontario have had time to settle. So long as the paternal and maternal grandmothers see their respective roles as supporting both parents, their efforts will be complementary and without doubt, the children will thrive within a larger circle of care.

Removal of the Children Does Not Create a Status Quo

[17] Ms. Kelly’s submissions rely heavily on a view that the children are unaccustomed to spending time with their father, and that any contact should start modestly and be expanded slowly.

[18] I place no weight on this submission.

[19] In the same manner that a wrongful removal or withholding of a child does not alter the child’s habitual residence pursuant to section 22(3) of the Children’s Law Reform Act; a wrongful removal or withholding does not alter a child’s best interests as set out in section 24 of the CLRA.

[20] 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, see section 24(2.) The factors to be considered are set out in section 24(3) CLRA:

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,

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

l) 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

m) 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.

[21] In the absence of family violence, or other just reason, the removal or withholding of children from the left-behind parent speaks to the need for an accelerated return to a normative parenting schedule, not a delayed return. The parenting deficits created by the removal of a supportive, previously stable relationship must be ameliorated, not extended.

[22] Such deficits are real for J and S. In addition to having been deprived of their father’s love, care, and guardianship, they have been removed from their Indian culture and extended community for almost a year. They have not been to the temple, they have not been able to enjoy their cultural foods, music, and teachings, and even upon their return to Ontario, the mother did not permit J and S to celebrate Dhiwali with their father and grandmother.

[23] Here, there is no prior judicial finding of family violence and no basis on the record before me to make such a finding. I have reviewed the Peel Children’s Aid Society records created from January to March 2021 which set out details of each parents’ interviews, observation visits to the home and the Society’s decision in March of 2021 that neither Ms. Kelly’s allegations of partner violence nor exposure to adult conflict could be verified. The observational notes speak to a strong bond between father and daughter (J was not yet born.)

[24] Neither does the mother provide a child focused reason for having limited the children’s parenting time with their father since her return to Ontario or why she asks that I continue to limit the father’s time to alternate weekends for a further two months. Ms. Kelly’s only stated reasons repeat her concerns that the father works, and the paternal grandmother would be caring for the children during the day instead of her. She also restates her experience of intimate partner abuse.

[25] In my view, a parent’s employment is a positive when assessing best interests. Financial provision for children is as much a care giving responsibility as is physical and emotional care. Stable employment allows for housing stability and the financial means to provide the necessities of life, and potentially, educational enhancements.

[26] Having a grandparent or other close family member available to support a parent’s care is also a positive. It does not place Ms. Kelly in a good light to misstate the paternal grandmother’s age by a decade in her affidavit sworn December 2, 2022, or to diminish her abilities as a caregiver given her prior contribution to the family while the couple were together.

[27] Neither can I place great weight on Ms. Kelly’s assertion of intimate partner violence as it relates to parenting. The children have had regular parenting time with their father since last July without incident. Her earlier assertion through counsel that parenting should be supervised was quickly abandoned once she was required to follow through in its organization. Most concerningly, Ms. Kelly changed the schedule for parenting every weekend to alternate weekends in September 2022 for her own purposes, not out of any concerns with the father’s caregiving or the children’s bond with their father.

[28] I am left to conclude that since separation, Ms. Kelly has gatekept the children’s time with the father for her own purposes, and not for child focused reasons.

Parenting Schedule Decision

[29] Neither parent has provided objective, child focused evidence to assist me in this decision. Counsels appeared unaware of the AFCC Guidelines, or any other context in which I could place J and S’s current developmental needs. Neither of the parents are engaged in any parenting education or mediation that could signal willingness on the part of one or both of them to build a solution based on their children’s needs rather than their own.

[30] To the contrary, each parent appears to seek an Order that would meet his or her own needs. For example, in his Notice of Motion, the father asks only for “equal parenting time” which is an aspirational concept, not a parenting plan proposal. When questioned in submissions, his counsel was only able to develop the requested Order to alternating weeks, or whatever the Court would propose.

[31] The mother’s proposal is that the children remain in her sole ambit, wherever that might take her, only seeing the father on alternate weekends. Her proposal would have the children continue to not see their father for 24 to 26 days per month, 12 days at a time.

[32] Ms. Kelly asserts that she is prepared to expand that schedule to include a weeknight overnight in two months, a proposal that I approach with caution, because she hints in her December 2, 2022 affidavit that “I have only been approved for rentals in Hamilton and St. Catherine’s.” A move to either of those areas would frustrate any weeknight overnight given the necessary travel time, the father’s work schedule and the fact that the mother does not drive.

[33] I find that neither of the parent’s proposals is in the children’s best interests or is consistent with their present developmental needs.

[34] As I wrote in Melbourne v. Melbourne, 2022 ONSC 2299, since expanded upon by Justice Shore in Czyzewski v. Fabro, 2022 CarswellOnt 11981, the parenting plan guide produced by the Association of Family and Conciliation Courts — Ontario ("AFCC-O") is of great assistance in determining parenting schedules that are in a child's best interests, particularly when clinical evidence of a specific child’s age and stage of development is unavailable. Here, I have no assistance from the Office of the Children’s Lawyer or for example, a section 30 Children’s Law Reform Act assessment.

[35] While not binding on the courts, the Guide contains helpful information in understanding a child's developmental stage and schedules. It is often relied upon for the proposition that young children under the age of 36 months should not be away from either parent for more than two to three nights. As the children move into the next developmental stage, that time away from a parent can be expanded.

[36] When considering the evidence as a whole, particularly the age and stage of J, who will be four in March 2023 and S, who is only 15 months I take judicial notice of the AFCC recommendation that children of their age should have regular, frequent contact with each parent and not be away from either parent for very long. J and S need the time to develop a strong attachment to each of their parents and to thrive within each of their homes: their mother’s home and their father’s home.

[37] To ensure that the children are not away from either parent for an extended period of time, I find that the schedule that is presently in their best interests is a Week 1 and Week 2 schedule that caps the time away from a parent to five days, twice a month, with the balance of transitions every two days.

[38] My finding stretches the AFCC recommendation for children of 1 to 3 years of age, but I find that it is appropriate to do so here because:

a. This schedule best maximizes the additional periods of time the children need with their father, given their long absence from him, while respecting their attachment to their mother.

b. It reduces the number of transitions necessary for more frequent transitions (every two to three days.) This is important because the mother does not hold a driver’s license and cannot contribute to the children’s transportation between homes. All of the transportation will fall on the father (or his designate) who is working fulltime.

c. The reduction in the number of transitions will also limit potential conflict points for the parents, because the children are not yet in daycare or activities that would provide neutral pick up and drop offs. Although neither parent references any transitional conflict, it remains a potential concern now that the children will be more frequently moving between their parents’ homes.

d. J will be 4 years of age in March and is observed in the March 2021 CAS notes as well bonded to her father, forthcoming and somewhat advanced. She is closer to the next developmental stage and hopefully, will be a protective factor for her brother.

[39] Order to issue that commencing Sunday December 18, 2022 with Mr. Bansal having Week 1, the children shall alternate residences between their parent’s home within a Week 1 and Week 2 schedule as follows:

Week One: Sundays at 7:00 pm and Friday at 7:00 pm.
Week Two: Sunday at 7 pm, Tuesday at 7:00 pm.

[40] Further Order to issue that the children will have a videocall with their other parent on the second day of their five-day period with each parent. For the father’s five-day period, the children shall videocall their mother at 7 pm on Tuesdays (which will be alternate Tuesdays corresponding with his alternate five-day parenting periods) and for the mother’s five-day period, the children shall videocall their father at 7 pm on Thursdays (which will be alternate Thursdays corresponding with her alternate five-day parenting periods.) I place the transition time at 7:00 pm to try to avoid the worst of GTA traffic while providing for winddown time for young children prior to bed.

[41] By way of example, the children will be in their father’s care from Sunday December 18, 2022 at 7:00 pm, until Friday December 23 at 7:00 pm; then with their mother from 7:00 pm December 23rd until Sunday December 25th at 7:00 pm, then with their father from December 25th at 7 pm until Tuesday, December 27th at 7 pm., then with their mother from December 27th at 7 pm until Sunday, January 1, 2023 at 7 pm. Week 1 and Week 2 shall then continue until further Order of the Court, or written agreement between the parents.

[42] Further Order to issue that the parents are required to complete an Intake with Peel Family Mediation Services. It recommended that they engage in parenting mediation to align their household routines for the children, to check the transition time of 7:00 pm and whether it should be changed, and to develop a holiday and vacation schedule for 2023.

[43] I make no further Order for 2022 Christmas parenting time but to provide that the children shall have a video call with their father on Sunday December 25, 2022 at 9:00 am or at whatever other time that morning on which they agree.

The Mother’s Lack of Clarity Around Housing

[44] This decision is premised on the mother residing in the Brampton area, the situation represented in the October 31, 2022 motion before Justice LeMay as to why the sale of the jointly owned home should proceed immediately. Ms. Kelly is now in possession of $100,000, pursuant to Minutes signed November 10, 2022 that resolve Mr. Bansal’s purchase of Ms. Kelly’s interest in the home.

[45] Ms. Kelly does not indicate in her materials that she is under any disability or inability to return to the workforce in the Brampton area where she was previously employed, but for securing childcare which is a joint parental responsibility.

[46] At the same time, Ms. Kelly has not filed an updated Form 35.1 Parenting Affidavit which sets out her plan to reside within a reasonable distance of Mr. Bansal so that the children’s travel time between homes is minimized. She may be waiting on this decision before committing as to where she will reside. As above, she hints at moving a one-to-two-hour drive away from the father’s residence. She lists her address for service as her mother’s residence in PEI.

[47] Ms. Kelly’s choice of residence is hers alone, but it is only one factor in determining J and S’s residence. Their need for stability, regular contact with each parent and the other listed criteria in section 24(3) of the CLRA, such as protection of their cultural, linguistic, religious, and spiritual upbringing and heritage has guided this parenting decision, as it will future parenting decisions.

[48] The Settlement Conference shall proceed on the previously scheduled date of March 20, 2023 at 11:00 am. Each parent is to update his or her Financial Statement and file a fresh Form 35.1 Parenting Affidavit. Should Ms. Kelly not have secured housing within a reasonable distance of Mr. Bansal’s residence by the end of February 2023, the Court will have occasion at the March Settlement Conference to consider his proposal to have the children reside primarily with him.

Costs Submissions

[49] Subject to a viewing of the parents’ Offers to Settle, it appears from the materials filed that success on this motion was divided. I may be spoken to through my judicial assistant at Cindy.Martins@ontario.ca if the parties cannot resolve the issue of costs, or if one party submits that he or she was more successful that the other party, or if one party served an Offer to Settle that invokes Rule 18(14) or otherwise engages Rule 24 of the Family Law Rules.

McGee J.

Date: December 13, 2022

COURT FILE NO.: FS-22-33-00

DATE: 2022 12 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AKASHDEEP BANSAL

Applicant

and –

HAYLEE ROBYN MARIA KELLY

Respondent

ENDORSEMENT

McGee J.

Released: December 13, 2022

Bansal v. Kelly, 2022 ONSC 7049

Case Summary

Overview

Background

Removal of the Children Does Not Create a Status Quo

Parenting Schedule Decision

The Mother’s Lack of Clarity Around Housing

Costs Submissions

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1