COURT FILE NO.: FS-21-154
DATE: 2022/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laura Alexandria Western
Applicant
– and –
Christopher Allen Reed
Respondent
Mr. S. DeGroot, for the Applicant
Mr. J. Rayner, for the Respondent
HEARD: at Brantford, Ontario, on February 4, 2022
THE HONOURABLE JUSTICE J. R. HENDERSON
ENDORSEMENT ON MOTION
[1] This is my decision on the parties’ motions for temporary orders relating to the parenting of their child, Jonathan Alexander Mackenzie Reed, born April 24, 2018.
[2] Both of the parties request orders regarding parenting time with Jonathan, decision-making responsibility for Jonathan, and whether Jonathan should be enrolled in daycare on a full-time basis.
[3] In his notice of motion, the respondent also asks for an order for the appointment of the Office of the Children’s Lawyer, but this request was not vigorously pursued and may not be necessary. Accordingly, I will not order the appointment of the Office of the Children’s Lawyer today, without prejudice to either party bringing that request back before the court at a future date.
[4] By way of background, I find that the parties were married in September 2019 and separated in November 2020. However, they lived separate and apart in the matrimonial home until it was sold in March 2021.
[5] Upon the parties’ physical separation, the applicant moved with Jonathan into her mother’s home in St. George, Ontario, where she continues to reside today. I accept that Jonathan is comfortable in that home and that the applicant intends to stay there for the foreseeable future.
[6] The respondent initially moved into a friend’s home for approximately one month, and then he moved into a short-term rental accommodation. In approximately June 2021 the respondent moved into a residence with his girlfriend, Jessica, and Jessica’s three children, who are eleven, seven, and three years old.
[7] Upon the completion of her maternity leave the applicant returned to full-time employment in marketing with Royal Canin. She has been working full-time from home during the COVID-19 pandemic.
[8] The respondent has been regularly employed as a truck driver, on a seasonal basis. Generally, the respondent works full-time from approximately April to November each year; he collects E.I. benefits for the rest of the year.
[9] Since they physically separated, the parties have generally shared parenting time with Jonathan on a 3-4-5-2 basis for a two-week cycle. This cycle gives the respondent six days with Jonathan in the two-week cycle, and it gives the applicant eight days with Jonathan in the two-week cycle.
[10] In her affidavit the applicant has described several problems and concerns about the parenting time regimen. She is particularly concerned about the respondent’s ability to care for Jonathan and the respondent’s instability. Therefore, the applicant requests a reduction in the amount of the respondent’s parenting time. The respondent requests that the current sharing of parenting time remain unchanged.
[11] The respondent submits that the parties have been able to jointly make decisions for Jonathan and that there have been no serious difficulties in this respect. He requests that joint decision-making responsibility continue. The applicant requests an order that she have sole decision-making responsibility.
[12] Regarding daycare, Jonathan was placed in full-time daycare in January 2019 when the applicant returned to work, and Jonathan remained in full-time daycare until the COVID-19 pandemic commenced in March 2020. Eventually, he was returned to full-time daycare in approximately May 2021.
[13] I find that the respondent unilaterally changed Jonathan’s attendance at daycare shortly after he moved in with his girlfriend in June 2021. At that time the respondent removed Jonathan from daycare during his parenting time as he felt that his girlfriend was available to care for Jonathan in their residence.
[14] In her notice of motion, the applicant requests an order that Jonathan be enrolled in full-time daycare at Paris Child Care. The respondent requests that Jonathan not be required to attend daycare during his parenting time.
ANALYSIS
[15] On the decision-making issue, the applicant acknowledges that the parties have been able to make decisions regarding Jonathan, except for the daycare problem, but she submits that the communications between the parties have been very difficult as the respondent has been abusive and derogatory toward her.
[16] Having reviewed the affidavit material, I accept the applicant’s submission that the parties do not communicate well. Many of the text messages and communications confirm that the respondent acts in a bullying and disparaging manner. I find that he has been extremely disrespectful and derogatory toward the applicant. Generally, the applicant has not responded in kind, but has attempted to communicate reasonably.
[17] Furthermore, it is clear that the respondent does not wish to engage in discussions about the issues with the applicant. In his texts he uses phrases such as “I control who watches my son…” and “you can’t force me…” and “there is nothing to discuss….” This approach does not generate co-operation.
[18] An example of the respondent’s controlling behaviour occurred after the applicant told the respondent that she would be bringing a motion to change the parenting time. In response, the respondent told her that he would be taking her Chevrolet Tahoe truck away from her. That vehicle had been in the applicant’s possession since the separation and the applicant anticipated that the ownership would be transferred into the applicant’s name. The respondent wrote “so since you want to try and take my kid from me… I’ll be taking that truck.” He subsequently took the truck back.
[19] In these circumstances, I find that it would be in Jonathan’s best interest if one of the parties had sole decision-making responsibility. An order to that effect would reduce the verbal abuse of one party by the other, and the obvious friction that occurs when an issue arises. In my view, the parties have been fortunate that they have not yet had to deal with any serious childcare issues, except for the daycare issue which they cannot resolve, as it is likely that they would not be able to co-operate if faced with a serious issue.
[20] For these reasons, I hereby order, on a temporary without prejudice basis, that the applicant shall have sole decision-making responsibility for Jonathan. Further, the applicant will be required to consult with the respondent on all major decisions, and the applicant will be required to keep the respondent informed of all decisions with respect to Jonathan.
[21] Regarding parenting time, I find that it is important for Jonathan to have a fulsome, meaningful relationship with both the applicant and the respondent. This means that he should have as much time with both of his parents as is possible in the circumstances. Moreover, it is in Jonathan’s best interests for that time to be exercised on a consistent basis.
[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.
[23] In the present case the applicant has raised concerns about the respondent’s stability, and the respondent’s ability to care for Jonathan, including the possibility that the respondent has been consuming alcohol and drugs while caring for Jonathan. In support of her submissions on these points the applicant has provided samples of the respondent’s posts to various social media in which he makes comments about his disputes with the applicant and about his parenting of Jonathan. Jonathan is occasionally present with the respondent in these social media posts. Further, in some of the posts, the respondent appears to be the under the influence of alcohol and/or drugs.
[24] In response, the respondent deposes that, although he does use alcohol and marijuana, he does not do so in the presence of Jonathan. He denies that he is under the influence in one of the posts. He acknowledges that, as shown in one video that he posted, he was swearing in front of some young children. He agrees that this conduct was inappropriate, but he says that it is out of character for him.
[25] In my view, on balance, it is appropriate to continue the current parenting arrangement. Jonathan appears to be comfortable with both of his parents, and he is familiar with the present parenting arrangement. Unless there is a compelling reason to change the arrangement, it is in Jonathan’s best interest to maintain the status quo in order to provide Jonathan with as much stability as possible.
[26] Moreover, I find that there are no serious concerns in this case about Jonathan’s safety. That is, there is no evidence that Jonathan has suffered any harm, or been put in any danger, while in the care of the respondent. I accept that the respondent may have made some mistakes in childcare, but he is now prepared to acknowledge those mistakes.
[27] Therefore, I find that, at this stage of the proceedings, it is in Jonathan’s best interest for the respondent to continue to have significant parenting time. There is no reason to change the status quo.
[28] Accordingly, it is ordered that Jonathan will primarily reside with the applicant, and that the respondent shall have parenting time in accordance with a two-week cycle. In the first week the respondent shall have parenting time from Saturday at 8:00 a.m. to Wednesday at 8:00 a.m. In the second week the respondent shall have parenting time from Sunday at 4:00 p.m. to Tuesday at 4:30 p.m. In addition, there will be a condition that the respondent is not to consume alcohol, marijuana, or any non-prescription drug during his parenting time with Jonathan.
[29] Regarding daycare, I accept the view that attendance at daycare is generally in the best interests of a child as it encourages the child to develop social skills at an early age. Further, I accept that the court should not make any changes to a child’s daily activities on a temporary basis, unless there is a compelling reason to do so, as discussed above.
[30] In this case, Jonathan is familiar with daycare and the daycare program provides stability for him. Daycare is part of his regular daily activities. Thus, I find that Jonathan should continue full-time at Paris Child Care.
[31] The respondent’s view that Jonathan should be removed from daycare because his girlfriend is available to care for Jonathan is not an acceptable reason to remove Jonathan from daycare. The respondent’s girlfriend and her children had only recently been introduced to Jonathan at the time at which the respondent attempted to force this position on the parties.
[32] However, I will allow an exception in this case if the respondent is not working, and he is willing and able to personally care for Jonathan. In those circumstances, I will allow the respondent to care for Jonathan instead of sending him to daycare.
[33] Accordingly, I order that Jonathan will remain in full-time daycare at Paris Child Care, but the respondent will be permitted to remove Jonathan from daycare for the days on which the respondent has parenting time, if the respondent is not working and is willing and able to care for Jonathan.
CONCLUSION
[34] In summary, I make the following orders on a temporary without prejudice basis:
The applicant shall have sole decision-making responsibility for Jonathan.
The applicant shall consult with the respondent on all major decisions regarding Jonathan, and the applicant will be required to keep the respondent informed of all decisions regarding Jonathan.
Jonathan will have his primary residence with the applicant.
The respondent shall have parenting time on a two-week cycle. In the first week the respondent shall have parenting time from Saturday at 8:00 a.m. to Wednesday at 8:00 a.m. In the second week the respondent shall have parenting time from Sunday at 4:00 p.m. to Tuesday at 4:30 p.m.
The respondent shall not consume alcohol, marijuana, or any non-prescription drug during his parenting time with Jonathan.
Jonathan shall remain enrolled in full-time daycare at Paris Child Care.
The respondent shall be permitted to remove Jonathan from daycare for the days on which the respondent has parenting time, if the respondent is not working and is willing and able to personally care for Jonathan during that time.
[35] If either party wishes to make submissions as to costs, I direct that the party seeking relief shall deliver written submissions, no longer than five pages, to the trial co-ordinator at Brantford within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this time frame, the parties will be deemed to have settled all of the costs issues as between themselves.
J. R. Henderson J.
Released: February 8, 2022
COURT FILE NO.: FS-21-154
DATE: 2022/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laura Alexandria Western
Applicant
-and-
Christopher Allen Reed
Respondent
ENDORSEMENT ON MOTION
J. R. Henderson J.
Released: February 8, 2022