COURT FILE NO.: FC-22-1354

DATE: 2022/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashley Rockey

Applicant

– and –

Stanley James Hubert Rockey

Respondent

Francois Kasenda Kabemba for the Applicant

Nicole Bolick for the Respondent

HEARD: October 18, 2022, continuation December 13, 19, 2022

motion re primary residence of children

SOMJI J

Overview

[1] The Respondent father brought an urgent motion on October 18, 2022, for the parties four children ages 12, 10, 9, and 6 to return to the matrimonial home and for primary residence of the children to be with him. The father also seeks sole decision-making responsibility and for the mother’s parenting time to be supervised. The mother brings a countermotion to have the children reside primarily with her, for the father to have parenting time on the weekends, and for retroactive and ongoing child support.

[2] The urgent motion arose because the mother left the matrimonial home with the children on June 29, 2022. At the time of the motion hearing of October 18, 2022, the father had not seen his children since June 29, 2022, and had telephone contact with the children on only four occasions. The mother did not notify the father of where the children were residing and unilaterally changed the children’s school without notifying the father. However, the new school is in the same catchment area as the previous school and a 2-3 minute drive from the former matrimonial home.

[3] The facts are contested. The mother claims she denied the father contact with the children following her departure because she has concerns about the father’s abuse of her and the children. The father requested the mother to consent to disclosure from the Children’s Aid Society (“CAS”) which has been involved with this family since 2013 but the mother refused. Given the mother’s allegations of abuse, I requested the CAS records to determine if there was any evidence, including from the children, to substantiate the mother’s allegations. The urgent motion was adjourned to allow the court to obtain the CAS records, and upon receipt, the parties were requested to schedule a date before me for continuation of the urgent motion hearing.

[4] Given the father had not seen his children for over four months, I ordered that the father have daily virtual parenting time with the children from 7 to 7:30 pm and an in-person supervised visit on Saturdays for two hours. The Draft Order prepared by the father’s counsel specified a time for the supervised visit was not approved by the mother’s counsel and therefore the Interim Interim Order was not issued. However, my endorsement ordering supervised parenting time for two hours on Saturday was in effect: Endorsement Somji J October 18, 2022. I have since learned that several terms of the interim Order were not complied with and the father did not see his children for any of the nine Saturday visits.

[5] The parties have now received the CAS records. A continuation date was scheduled for December 13, 2022, but counsel for the mother was not available: Endorsements Somji J December 6 and 7, 2022. Consequently, the matter was adjourned from December 13 to December 19, 2022. Given the father had still not physically seen his children for what was now approaching a six month period, I ordered that the father have two supervised in-person visits, one on December 14, 2022, and one over-night on December 16, 2022: Endorsement Somji J December 13, 2022. Those visits have been complied with.

[6] For the continuation of the motion hearing, I ordered both parties to provide materials outlining any issues with the parenting time that had been ordered on a temporary basis, any relevant information that has emerged from the 914 pages of CAS records and its impact on the position of the parties, and what specific relief the parties are seeking at this time on the motion. I also asked counsel to provide me their submissions on a Christmas holiday parenting schedule.

[7] The issues on this motion are what decision-making responsibility structure, primary residence, and parenting schedule is in the best interests of the children, and whether retroactive and ongoing child support should be ordered.

[8] Upon review of the materials filed including the updated affidavits and submissions of counsel, I find that it is in the best interests of the children that the father have primary decision-making for the children, that the primary residence of the children be with him, and that the parents have parenting time with the children on a week on/week off basis going forward. Parenting time will not be supervised for either parent, but each parent will have one overnight visit during the week when they don’t have the children. Child support going forward will be based on a set-off amount in accordance with the parties 2022 incomes. My decision on the mother’s request for retroactive child support for the period of June to December 2022 is reserved subject to further written submissions by counsel.

Analysis

Issue 1: What decision-making responsibility structure, primary residence, and parenting schedule is in the best interests of the children?

[9] Parenting time is to be determined in accordance with the child’s best interests. The best interests of the child factors are set out in s. 16(3) of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp), as am as follows:

Factors to be considered

(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.

[10] As stated in Phillips v Phillips, the list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child’s needs and the people around them: 2021 ONSC 2480 at para 47.

[11] While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision, not necessarily in the order that they are listed in the legislation, and sometimes collectively.

The history of care, the children’s needs, and the ability of the parents to care for the children - s. 16(3)(a), (d), and (h) Divorce Act

[12] The parents were married in August 2011 and separated on June 29, 2022. At that time, the left the matrimonial home with the parties four children. Problems had begun brewing between the couple in early spring. The mother first left the home without the children on May 22, 2022 and returned on June 5, 2022. She then left again on June 29, 2022.

[13] During the course of their marriage, the mother was primarily at home while the father worked full time. He is currently employed in construction.

[14] Although the mother was the primary caregiver, it is clear from the CAS Records filed that there were significant issues with the cleanliness of the home and the children’s hygiene during the period the mother was the primary caregiver for the children during the day.

[15] Furthermore, two CAS records from October 2022 indicate continued concerns about the cleanliness of the mother’s home and the children’s hygiene during the period of June to November 2022 when they have been exclusively in the care of the mother. The concerns were significant enough that the mother was requested to leave the temporary home and move to another secured shelter. The CAS records dated October 10 and 21, 2022, states as follows:

October 10, 2022:

Keri phoned CPW and mentioned that last night D.R. again intimidating other child and Ashley was doing nothing. She said they are thinking of removing Ashley and children from [place] as Ashley not supervising her children and cleaning her room. CPW mentioned about the yesterday’s meeting and the plan and Ashley’s promise to clean room by Monday and giving 1:1 attention to D.R. CPW also mentioned that children have their grandparents and dad and dad is always willing to take care of them and full access.

And on October 21, 2022:

Mother was asked to leave [place] Because she can’t maintain a clean and safe room for herself and kids. This is the second place that mom has been challenged to maintain. She is currently living at [place] and we are getting feedback that she is struggling to maintain this [place] placement.

[16] The father reports concerns about the mother’s mental health while he resided with her. These concerns relate to her being under the influence of marijuana while the children are in her care. The father reports that he would often come home from work to find the children locked in their room in soiled clothing and sometimes the children wore the same clothes for multiple days. This is consistent with some of the concerns identified by the CAS with respect to cleanliness as recently as October 2022. The CAS records also identified reports from the school about concerns with the children’s dress and hygiene at school.

[17] Both parents have confirmed that one child D.R. (age) has special needs and is medicated. The father supports his treatment and medication of the children. The father reports that the mother is not diligent in ensuring D.R. receives his daily medication, and he was often required to remind her. He does not know the current state of the child.

[18] The father reports that the parents received medical advice to test their youngest child T.R. for autism. The father supports testing and treatment, but mother has not allowed it.

[19] On motions for interim parenting orders, generally the status quo will be maintained absent compelling reasons requiring a change to meet the child’s best interests: Grant v Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 at para 15. The court’s responsibility is to focus on the short-term needs of the child and minimize possible disruptions. This is due to the limited and contradictory evidence untested by cross-examination. The court must attempt to provide the child with certainty and stability in an environment that is safe and secure for them: M.P.D.S. v J.M.S., 2022 ONSC 1212.

[20] In this case, prior to the mother’s departure, both parents had equal access to the children. While I agree that the mother was the primary stay home parent, the CAS records indicate that the parental care in this time was fraught with issues surrounding the children’s hygiene, supervision of the children, and cleanliness of the home which, while not the mother’s sole responsibility, would have been a greater responsibility given she was the stay at home parent. Those concerns are corroborated not only by the father’s affidavit, but also by the most recent CAS records from the fall of 2022 when th children were exclusively in the mother’s care. Based on the review of the materials filed, I find that there are both historical and present-day concerns about the mother’s ability to properly care for the four children. In these circumstances, I find that the status quo of the mother being the primary caregiver during the day in the period the parents were together should be given less weight.

[21] In addition, the mother has not been fully attentive to the children’s medical needs. She has not kept the father informed of the children’s health appointments. The father was finally able to see his children this past weekend after six months and used his parenting time to take them to a walk-in clinic after they reported they were not feeling well. He was informed by the medical staff that three of the children were under weight, one child had an ear infection, and a second had a chest infection.

[22] Finally, the most recent attendance records from Sawmill Creek School indicate that the children have missed 13 days of school in October and six days of school in November. The mother indicates that some of the absences are attributable to COVID. Given there are approximately 20 days of school in October, it seems an excessive amount.

[23] I find that the history of care, the children’s needs, and the ability of each parent to care for the children warrants an order in favour of the father with respect to decision-making and primary residence.

Each parent’s ability to communicate and cooperate with one another on matters affecting the children and to support the children’s relationship with the other spouse – s. 16(3)(c) and (i) Divorce Act;

[24] Upon review of the materials filed, including the text messages between the parents, I find the mother has not demonstrated since her departure from the matrimonial home an ability to effectively communicate and cooperate with the father in matters affecting the children.

[25] First, the mother unilaterally changed the children’s school from St. Bernard Catholic School where they have been attending since kindergarten to Sawmill Creek Elementary Public School without notifying yet alone consulting the father. While the new school is within the same catchment area, it came as a surprise to the father given that supports were in place at the children’s school, including IEPs, for the child with special needs. The father only became aware of the change in school upon receiving the mother’s Application on September 14, 2022.

[26] The mother explains that she changed schools because the new school offers more services for the children than St. Bernard. While that may be the case, the issue is not whether the new school is a better placement for the children, but the mother’s failure to consult with the father on such an important decision.

[27] Second, the mother has not kept the father abreast of any of the medical or dental appointments of the children. The mother claims she would tell the father at the end of the telephone calls with the children, but there is nothing in the materials provided indicating the father is being informed of medical visits. Furthermore, he did not know of two medical visits scheduled for December 22, 2022.

[28] Third, when the mother moved out, she did not inform the father of where the children were. While she may not have wished to disclose her specific address, she could have at least informed him that they were in a safe location. The first time he heard of where the children were was through a CAS worker. The mother suggests that was sufficient. It is not the role of CAS to inform parents of major decisions and events involving the children. It is the parent’s responsibility and the mother failed to do so in this instance.

[29] Fourth, on September 15, 2022, the father received a telephone call from the Ottawa Police that the mother was attempting to enter the matrimonial home to remove items from the house. She had not lived there since June 29, 2022 and failed to communicate with the father that she was planning on going to the home to retrieve items. The father informed the police the matter was before the court.

[30] Finally, on October 18, 2022, I ordered that the father have daily virtual parenting time with the children from 7 to 7:30 pm. The mother failed to comply with the terms of that Order suggesting she did not have Wi-Fi to facilitate such calls. However, if such was the case, it was incumbent upon her to bring the matter back before the court to address that condition or address with CAS or the shelter staff if there was a facility where she could attend with Wi-Fi to facilitate a facetime visit or virtual call. That order was made to facilitate the father “seeing” his children and not just talking with them. The father had not seen since June 29, 2022.

[31] There was also a condition on the endorsement of October 18, 2022, to allow for a two hour supervised visit. The mother would not agree to a fixed time. She explains the first few visits were missed because of COVID and then because she and the children were moving to a shelter. However, there is nothing in her text messages that suggest that she was willing to facilitate an alternate time and place for a visit. Based on my review of the mother’s text messages, I found the mother to be obstructionist and not acting in the best interests of the children to allow for an in-person visit with their father after so many months.

[32] It also took several weeks for the mother to sign the authorizations for the father to have access to the children’s school and medical records as per my endorsement of October 18, 2022.

[33] Finally, rather than focusing on the court’s order requiring her to facilitate the father’s visits with the children, the mother has attempted to obstruct the father’s access by requesting CAS to support her in this endeavour which CAS staff have refused to do. In their report dated October 3, 2022, the CAS Worker states as follows:

The mother has consistently required our support in preventing the father from having access do to her perception that the children are unsafe. We have not made this same conclusion. The focus of service remains on the mother’s ability to keep a safe and clean home for the children. We have receive a new concerns by the [ ] staff claiming the room she has is “shambles”.

[34] For all these reasons, I find that the mother has not demonstrated an ability to effectively communicate with the father in the children’s best interests nor a sincere willingness to support the father’s relationship with his children. These factors favour decision making responsibility and primary residence to be with the father. I also find the mother’s lack of cooperation in the past six months requires a parenting schedule that requires minimal reliance on the mother’s cooperation for in-person parenting time to take effect.

The nature and strength of the children’s relationship with each spouse, siblings and grandparents – s. 16(3)(b) Divorce act

[35] The father reports that the paternal grandmother has a positive and healthy relationship with the children. She lives about an hour away and the father would like for the children to see her more. The mother alleges that she was told by a police officer that the paternal grandmother is on the sex offender registry. I requested that the mother provide proof from the police of this and to date, she has failed to do so.

[36] The father was a victim of sexual abuse as a child but reports that his mother never abused him and he is not aware of any such reports. The father has taken significant therapy to deal with his own issues. I do not find there is any evidentiary basis to limit the children’s relationship with the paternal grandmother.

[37] The maternal grandmother is also involved in the children’s lives and was in attendance in court during the motion hearing. It appears she also has a good relationship with the children.

[38] I find this factor favours both parents having parenting time to foster relationships between the children and their respective family members.

Children’s views and preferences – s. 16(3)(e) Divorce Act

[39] The children’s views are unknown at this time.

[40] I find that given the parents’ separation, the special needs of the children, the mother’s isolation of the children from the father this past six months, and continued concerns about the mother’s ability to properly care for the children, it would be in the best interests of the children to be able to express their views and preferences through the court with the assistance of a Voice of Child Report. Consequently, there will be an order for OCL involvement in this matter.

Parental plans for the children’s care s. 16(3)(g) Divorce Act

[41] The father lives at a rental property. He is alone on the lease. This was the matrimonial home and where the children were residing before the mother left. It is a three bedroom apartment. The boys have one room, and the daughter has her own room. The father is able to arrange for transportation of the children to school given he is a just a few minutes drive away from school and until such time as school bus transportation can be arranged if available. The father has supports from friends and family members to pick up the children from school.

[42] The mother is presently awaiting a four bedroom home from Ottawa Housing. She has been required to change home placements due to issues with cleanliness as discussed above. She indicates that she has informed Ottawa Housing that she is seeking accommodation in the catchment area of the children’s school. She does not seek to change the children’s school again. The mother presently resides at a secured shelter about 30 minutes from the children’s school. The children attend by bus. The mother does not drive. She has assistance from her mother with groceries and errands. The maternal grandmother lives in Kemptville and is not available to help with transportation of the children to and from their parenting time with the father although she was agreeable to do so for the Christmas holiday schedule.

[43] Both parents are agreeable to the children continuing to see their current medical doctor who is located in Manotick. The maternal grandmother is prepared to assist with transportation for those appointments.

[44] Until the mother has secured housing, it is difficult to assess her plan of care, including her ability to transport the children to school related activities, to see their friends in the school area, or for parenting time with the father. The father’s plan of care offers more security and consistency. Nonetheless, the mother has informed Ottawa Housing of her preference to have a home in the catchment area of the children’s school, and should such housing materialize, both parents will have a plan of care that supports the children residing in close proximity to school and within the community of the school. A copy of this decision should be provided to Ottawa Housing so they are aware of the court’s concerns in this regard and should it assist in the mother’s placement.

History of Family violence – S. 16(3)(j) Divorce Act

[45] The mother alleges that the father one, restrains D.R. with his hands and sits on him and makes fun of him; two, abuses T.R. but does not specify how; three, possibly molests B.R because B.R. showed signs of molestation; and four, is an alcoholic who drives while under the influence.

[46] I have reviewed the portions of the CAS records that were forwarded to me and it does not suggest in any way that the children are at risk of harm while in the care of the father. Most of the CAS involvement with this family has been with respect to concerns about the children’s hygiene, cleanliness of the home, and lack of attention to the special needs of the children.

[47] The only concern pertaining to physical abuse in the CAS disclosure was an incident when D.R. reported that the father grabbed him by his neck and threw him to the ground. The CAS report on this incident indicates that the father restrained D.R., diagnosed with ADHD, in a hugging motion to prevent him from hurting himself or others around him. CAS did not find this incident warranted any further intervention. The CAS report does not refer to any other incidents reported by the children. On the contrary, the CAS report dated October 3, 2022, supports the father’s access to the children.

[48] In addition, it is important to note that the father acknowledged in his own material that there had been once incident with D.R. when he restrained him and that was resolved. Furthermore, in the most recent CAS reports of October 2022, CAS indicates that D.R. has ADHD and has engaged in problematic behaviour with the other siblings and the mother has failed to do anything about it.

[49] The mother relies on a letter from a Social Worker of St. Bernard School dated June 21, 2022, to support her allegations of abuse. The letter from the Social Worker is addressed to Ottawa Housing. It states the parties are separated but share the same home and this has resulted in a high level of verbal conflict between them. The letter states that the mother reports a high degree of abuse. The letter goes on to recommend that it would be in the best interests of the children and mother to secure alternative housing as soon as possible.

[50] I do not find that this letter is supportive of the mother’s allegations. It is a letter to Ottawa Housing to support the support the mother’s application for housing. The Social Worker is only reporting what the mother has indicated to her, and there is no indication that she has taken any steps to speak with the father or verify the allegations of abuse. Furthermore, counsel for the father spoke to the Ottawa Catholic School Board and a representative confirmed that the letter provided by the Social Worker was not intended for court use and the author did not intend or authorize it for this purpose.

[51] The mother alleges the father is an alcoholic and she wants him to test for alcohol before each visit (letter to counsel dated November 14, 2022). However, this is inconsistent with her position that the father be responsible for transportation of the children to and from parenting time because she does not drive. CAS has been involved with this family since 2013 and have not indicated the father has any issues with sobriety or that there have been concerns with him drinking while the children were ever in his care.

[52] Finally, the mother refers to the father’s own victimization in the hands of an abusive father in his childhood. The father has acknowledged he was the victim of child abuse but that he has undergone therapy to deal with his issues. In the absence of further evidence, his own victimization is not grounds to deny him parenting time.

Conclusion re Parenting

[53] I find that on balance, the best interest factors favor the father having, on an interim basis, sole decision-making responsibility of the children. This does not mean that the father will not have an obligation to consult with the mother on significant issues such as schooling and health. However, should the parties not be able to reach an agreement upon reasonable consultation, the father will have the final say on all issues.

[54] Based on the best interest factors, I find that it is in the best interests of the children to have primary residence with the father and that there be shared parenting time on a week on/week off basis. The children will be picked up after school on Fridays and will reside with each parent for a full week.

[55] The father has requested that the mother’s parenting time be supervised. The CAS records and the father’s own affidavits suggest continued concerns with respect to the mother’s ability to adequately parent the children, particularly with respect to cleanliness and supervision. However, the recent CAS records do not state that the children are at risk of harm when with the mother. For this reason, I will not order the mother’s parenting time to be supervised. CAS is involved with this family and can continue to monitor the mother’s progress on these issues.

[56] I also decline to order a police enforcement clause at this time. Given that pick ups and drop offs for parenting time will be at the school and consequently, the mother’s cooperation is not necessary to facilitate the father’s visits with the children, I do not find such a clause is necessary. In the past week when the parental visits were organized for pick up from school, the mother did cooperate and the visits did occur.

Parenting schedule effective January 6, 2023

[57] Following the Christmas holiday schedule set out below, the parenting schedule will commence January 6, 2023. The father have a full week of parenting time commencing Friday January 6^th (week 1) followed by the mother having a full week of parenting time commencing June 13, 2023 (week 2). The schedule will continue thereafter on a week on/week off basis.

[58] In addition, on the weeks where the children are in their care, the other parent will have an overnight on Tuesday after school until Wednesday morning. Pick up and drop off will be at the school. This will allow each parent to remain engaged with the children and their school activities and homework. It will also allow the children who have been accustomed to being only with their mother these past six months to see their mother mid-week and gradually transition to the week on/week off schedule.

[59] Except for the Christmas schedule discussed below, all pick ups and drop offs will be done at Sawmill Elementary School unless agreed upon by the parties.

[60] The parents are encouraged to work out a schedule for future school holidays and summer vacations.

2022 Holiday season parenting schedule

[61] The mother made plans to have the children attend the home of the maternal grandparents on December 23, 2022. For this reason, I am inclined to respect those arrangements for this holiday season. I also understand the father has the week between Christmas and New Year off, and the schedule below will allow him to have more quality time with the children

[62] Having said this, the father should have an opportunity to see the children and have a celebratory evening at least once before Christmas. Therefore, the father will pick up the children on Wednesday December 21^st after school and they will remain with him overnight until Thursday December 22^nd.

[63] The father will take two of the children who have medical appointments at 10:30 am to see their family doctor on Thursday December 22, 2022. Following the appointment, the father will drop them off at school. The other two children will be taken to school in the morning for their 8:00 am start on Thursday December 22, 2022.

[64] The mother is entitled to attend the medical visit should she wish to, and I understand the maternal grandmother is prepared to take her to it. If she does not attend, the father will provide a brief written summary to the mother of the outcome of the medical visit by end of day Thursday.

[65] The mother shall pick up the children after school at 2:30 pm on Thursday Dec 22, 2022. They will remain in her care until Boxing Day December 26,2022, at 5 pm. The mother is permitted to take the children to her parents’ place in Kemptville, Ontario for this period.

[66] The mother, with the assistance of the maternal grandmother, will drop off the children at the father’s residence by 5 pm on December 26, 2022.

[67] The father will have parenting time with the children from December 26, 2022, until January 2, 2023 at 5 pm. The father will drop off the children at the Walmart entrance of Bayshore Mall by 5 pm.

[68] The father will have a virtual parenting time with the children on Christmas Day for 1 hr between 11:00 am and 12:00 pm. The call will be initiated by the mother with the assistance of the maternal grandmother.

[69] The mother will have virtual parenting time with the children on New Years Day between 11 am and 12:00 pm. The father will initiate the call to the mother, and if she cannot receive video due to Wi-Fi issues, the call will be by phone.

Issue 2: Should there be an order for retroactive and ongoing child support, and if so, in what amounts?

[70] The mother seeks retroactive child support from the date of her departure in June 2022 as well as ongoing child support.

[71] The father earns approximately $48,000/year. The mother has been Ontario Works earning approximately $400/month and also receives the Child Tax Benefit for all for children amounting to approximately $2500/month.

[72] The father expressed concerns that he received a notice from the Canada Revenue Agency with respect to his 2021 tax return that there was a change in the parties’ marital status and a change to the qualified children effective December 2021. The father does not understand why the mother would have done this given the parties do not dispute the separation date of June 29, 2022. If the mother’s call was made to affect receipt of the Child Tax Benefit, it is of concern given no determination had been made about the primary residence of the children at that time.

[73] Given that I have ordered equal parenting time, child support will be paid on a set-off basis commencing January 1, 2023, and in accordance with the parties’ incomes. Counsel for the parties is asked to determine that amount based on the income of the parties and include it in the draft Order to be provided to me.

[74] The mother seeks retroactive child support on the grounds that she has been the sole caregiver since her departure from the residence on June 29, 2022. On the other hand, the children’s residential situation was created by the mother’s own departure and unwillingness to share parenting time with the father. While she was certainly entitled to leave the matrimonial home, I do not find there were grounds to warrant withholding the children from the father or that this was in the children’s bet interests. The mother’s counsel indicates that the mother should not be punished for her decision to leave the matrimonial home and child support should be paid in accordance with the fact that the children were exclusively with her for these past six months.

[75] I find the analysis for retroactive child support is not that simplistic. Consideration has to be given that the parenting schedule which defines the child support payable was of the mom’s own creation. Had she been agreeable to a shared parenting schedule, the child support amount payable by the father would likely have been signficiantly less than what she presently claims.

[76] Counsel for the parties now have the benefit of my reasons for decision which may impact their position on retroactive child support. If the parties are not able to resolve the issue of retroactive child support, they may each provide a three page written submission of their positions on the issue of retroactive child support, cite the relevant jurisprudence in support of their position, and forward it to my assistant by January 13, 2023. I will make a decision accordingly.

[77] Finally, the mother maintains that there are still some belongings she needs to retrieve from the home. The father indicates he notified the mother in early October 2022 that the items are ready for pick up and that she retrieved the times she wanted on/around November 5, 2022 under police and third party supervision. Counsel for the father suggests that this issue can be further addressed at the January 9, 2023, case conference. I agree.

ORDER

[78] There will be an Interim Order pursuant to the Divorce Act that:

1. The father shall have sole decision-making of the children D.R. (born March 2012), B.R. (born May 2013), T.R. (born January 2016) and D.R. (August 2010 (“children”). He will reasonably consult with the Applicant mother for all matters relating to the children’s school and health, but if the parties cannot reach an agreement, he will have the final say.

2. The children’s primary residence shall be with the Respondent Father.

3. The following parenting schedule will apply from now until January 6, 2023:

a. The mother shall pick up the children after school at 2:30 pm on Thursday December 22, 2022. They will remain in her care until Boxing Day December 26^, 2022, at 5 pm. The mother is permitted to take the children out of town to her parents’ place in Kemptville, Ontario for this period.

b. The mother, with the assistance of the maternal grandmother, will drop off the children at the father’s residence by 5 pm on December 26, 2022.

c. The father will have parenting time with the children from December 26, 2022, until January 2, 2023 at 5 pm. The father will drop off the children at the Walmart entrance of Bayshore Mall by 5 pm.

d. The father will have a virtual parenting time with the children on Christmas Day for 1 hr between 11:00 am and 12:00 pm. The call will be initiated by the mother with the assistance of the maternal grandmother.

e. The mother will have virtual parenting time with the children on New Years Day between 11 am and 12:00 pm. The father will initiate the call to the mother, and if she cannot receive video due to Wi-Fi issues, the call will be by phone.

4. Commencing January 6, 2023, the parents shall have equal parenting time with the children on a week on/week off basis.

5. The parenting schedule shall begin with the father having the children for one week commencing on Friday January 6, 2023 at 2:30 pm when he picks the children up from school (week one). The children will remain in his care for one week. The mother will pick up the children after school on January 13, 2023, at 2:30 pm after school (week two). The children will remain in her care for one week. The parenting time will alternate thereafter on a weekly basis.

6. The parties will exchange the children at Sawmill Creek Elementary School. The week of parenting time will begin when one party picks up the children after school on Friday. The week of parenting time will end when the party drops off the children at school on Friday morning.

7. On the weeks when the children are in their care, the other parent will have an overnight on Tuesday after school until Wednesday morning. Pick up and drop off will be at the school.

8. The parties will facilitate video calls between the children and the other party during their parenting time at the child’s request. The call will be for a minimum of 15 minutes with consideration to be given to the children’s ages, attention span, and developmental needs.

9. Should a child and/or the children not have school on the date of exchange, due to the school being closed or the child being sick, the parties will exchange the children at Sawmill Creek Elementary School except where there is a written agreement by both parents for the exchange to take place at a different venue.

10. There will be no change in the parenting schedule due to one or more children being sick unless the parties agree in writing.

11. The children shall continue to attend Sawmill Creek Elementary School. Once the children age out of Sawmill Creek Elementary School, they will attend the feeder high school within their school board.

12. The parties shall forthwith provide all necessary consents for the other party to access and obtain all information regarding the children’s health and education within 48 hours of the request for the consent.

13. The parties shall inform the other party of the date, time, and location of any and all appointments the children have with doctors, teachers, or any other professionals who are involved in any of the children’s lives within 24 hours of scheduling the appointment.

14. Both parties shall follow the recommendations of the children’s physicians and other treatment professionals with respect to the administration of medication and assessment or attendance for any therapeutic programs.

15. Effective January 1, 2023, child support will be paid on a set-off basis and in accordance with the parties’ incomes.

16. There will be a request for a Voice of the Child Report. Both parents will sign the necessary intake forms.

17. The mother shall provide the father with a legible photocopy of the children’s health cards by December 26, 2022.

18. Effective January 6, 2023, the parties will subscribe to and communicate through Our Family Wizard and each party will bear their own costs for the program/service.

19. This Interim Order vacates the terms and conditions of the previous interim orders issued.

20. This matter is returnable for a scheduled case conference on January 9, 2023.

[79] Counsel shall provide me with a draft Order by end of day Wednesday December 21, 2022, that is consistent with this decision and terms ordered.

Costs

[80] Father is the successful party on the motion and entitled to costs. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The father shall file his submissions by January 13, 2023, the mother by January 27, 2023, and the father will have until February 3, 2023 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: December 20, 2022

COURT FILE NO.: FC-22-1354

DATE: 2022/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashley Rockey

Applicant

– and –

Stanley James Hubert Rockey

Respondent

MOTION RE PRIMARY RESIDENCE OF CHILDREN

Somji J.

Released: December 20, 2022