Court File and Parties
COURT FILE NO.: FC-22-741 DATE: 20230223 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Ravisankar Sribalan Applicant – and – Jennifer Dickson Respondent
Counsel: C. Vergara, Counsel for the Applicant G. Tadman, Counsel for the Respondent
HEARD: February 16, 2023
RULING ON MOTION
MCDERMOT J.
[1] This was a motion and cross motion for a parenting order concerning the children of these parties, Lucas (4) and Connar (2).
[2] The parties separated in early 2022 but they have remained under the same roof in the matrimonial home located in Tottenham, Ontario. The Applicant says that they separated on March 11, 2022 and the Respondent says that the date of separation was January 25, 2022. For the purposes of this motion, nothing rests on the difference in the dates; either way, the parties have lived separate and apart under the same roof for some time, and both parties agree that it is becoming intolerable for this situation to continue. The police have been called on three occasions and there has been involvement by the local C.A.S.
[3] The major issue for these parties is the parenting situation once they physically separate. This disagreement and the risk of a parenting status quo which will govern until trial are most likely the major reasons why neither of these parties agree to move out of the home. And the parties are correct: an established status quo provides a party with litigation advantage at trial because the court can determine whether that parenting situation works for the children or not and it cannot be easily changed pending trial. As well, one of the best interests criteria reflects the status quo between the parties: see s. 16(3) (d) of the Divorce Act [1].
[4] Both parents propose differing parenting plans in the interim. The Applicant Father says that he has been an involved parent and that it would be in the best interests of the children that they remain in the home while care of the children is shared. He suggests that the parents go in and out of the home on a week about basis with the children remaining in the home in a “bird’s nest” arrangement. Alternatively, he suggests a nesting arrangement on a 2-2-3 basis. Alternatively, he suggests that he move out of the home and to his parents, leaving the Respondent in the home with the children shared on a 2-2-3 basis.
[5] The Respondent Mother says that this would cause too much instability to the children. She says that she has always been the primary caregiver of the children and that it would be best for them to live with her in the home. She asks for exclusive possession of the home and that she be granted primary care of the children subject to weekend and midweek parenting time to the Applicant Father.
[6] The issues between the parties are therefore as follows:
a. What temporary parenting arrangement is in the best interests of the children? b. Should the Respondent Mother have exclusive possession of the matrimonial home? c. What financial support arrangements should be made between the parties pending trial?
Determination
[7] For the reasons set out below, I have determined the following:
a. The parties shall share decision making and care of the children on a 2-2-3 basis; b. The Respondent Mother shall have exclusive possession of the matrimonial home; c. The Applicant Father shall pay differential child support of $487 per month as well as proportionately sharing the day care costs of the children; d. The parties shall share equally the costs of the matrimonial home.
Parenting Arrangements
[8] As stated, the major issue between the parties is whether they will share care of the children or whether the mother will have primary residence of the children.
[9] As also mentioned, the status quo is one of the aspects of this case that is driving this dispute. Because of the litigation advantage of a status quo, where all things are equal the court is hesitant at an early stage in the litigation to give a party a “leg up” by granting one party primary care. On an interim motion, if it cannot be clearly determined with whom it is best for the children to be with, then the court often gravitates towards some sort of shared care arrangement.
[10] That is always subject to the best interests of the children. If it is clearly best for the children to be in the care of one of the parents, the court must ignore litigation advantage and place those children where it is best for them to live.
[11] As the Applicant Father has requested a divorce, this case is governed by the Divorce Act which states that a parenting order must be made only according to the best interests of the child or children: see s. 16(1). The factors concerning the best interests are set out in s. 16(2) and (3) of the Divorce Act as follows:
(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.
[12] The above sections addressing best interests, including provisions regarding family violence, came into effect as part of revisions to the parenting sections of the Divorce Act on March 1, 2021. One of those amendments was to the “maximum contact” principle, related to the Applicant Father’s claim for shared care of the children. Under the former iteration of the Act, s. 16(10) provided that “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. That was changed in the March, 2021 amendments to read:
(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.
[13] There has been some suggestion that the new provision has tempered the maximum contact principle for the purposes of parenting orders. There are suggestions that case law decided under the earlier act which cite the “maximum contact principle” must be viewed with some suspicion because of the amendments to the Act. There are numerous pre-2020 cases which have relied upon maximum contact to order extensive time sharing: see for example Gonzalez v. Trobradovic, 2014 ONSC 2468, a case decided prior to the amendments, in which Price J. stated [at para. 80], “The principle of maximum contact is an important consideration under either legislative regimen when determining the best interests of children.” See also B.V. v. P.V., 2012 ONCA 262, a case which determined that “minimal access” was a breach of the now repealed maximum contact principle.
[14] The amendments do not mean, however, that meaningful and extensive parenting time to both parties has lost importance. I note, for example, that s. 16(3) (c) of the Divorce Act states that one of the major factors in best interests is “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”; that used to be part of s. 16(10) of the former legislation. That has been raised by Mr. Sribalan when he speaks of his wife’s hesitancy in giving him parenting time during cohabitation (something denied by Ms. Dickson).
[15] Outside of that change, the only difference between the former s. 16(10) and s. 16(6) of the amended Divorce Act is the change of the word “contact” to “time” in the amended legislation. On that point, Knapp v. Knapp, 2021 ONCA 305 confirms that any report of the maximum contact principle’s death is greatly exaggerated. Relying on the amended s. 16(6) of the Divorce Act, Benotto J.A. stated that the revised provision was “more direct” than s. 16(10) and stated [at para. 34]:
The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
[16] According to Justice Benotto, the maximum contact principle remains alive and well and is to be applied in the making of parenting orders under the revised Divorce Act. She confirms in this statement, however, that s. 16(6) does not create the presumption of a shared care arrangement. The principle remains, however, that the court should, if possible, for the sake of the children ensure that both parents have as meaningful and extensive time sharing with the children as is possible.
[17] Another major factor, however, remains the care arrangements for the children during cohabitation. That, effectively addresses the “history of the care of the child”, set out in s. 16(3) (d) of the Divorce Act.
[18] These are very young children. One of them is 2 years of age. Some might say that a child of this age needs the stability of only one home rather than shared care. The AFCC Ontario Parenting Plan Guide [2], at p. 18, states about toddlers:
Toddlers need predictable and consistent routines and clear structures that help them develop a sense of limits to help them feel safe and secure. While they need to be closely supervised and have little sense of danger, they should have opportunities for exploration.
[19] Even with the need for predictable and consistent routines, however, the prior care arrangements between the parents dictates the parenting plan necessary after separation [at p. 19]:
If parents have fully shared in the caretaking arrangements before the child has reached this age and the child has an easy temperament, parenting time can be shared equally as long as the separations from each parent are not too long (no more than two to three days or two nights for example). If there are older siblings, they are often part of the security system for toddlers and they should normally be on the same parenting schedule.
[20] Therefore, it is important to determine what the caregiving arrangement was prior to separation and then, while under the same roof, prior to the hearing of this motion.
[21] The evidence of both parties differs substantially on this point. Ms. Dickson says that she took 18 months of maternity leave, from October, 2018 to November, 2019, and then from April 2020, only returning to work in April, 2021. She says that during this time, she was the primary caregiver of both children. She notes that she continues to work from home for most of the time and can care for the children better than the father, who manages an LCBO store in Nobleton and has to work outside the home. She says that she has been largely responsible to transport the parties’ son, who has health issues to hospital.
[22] The Applicant Father strongly disagrees. He has filed letters from the doctor and the day care centre [3] which state that he was equally involved in visits to the doctor and in pickups and drop-offs at the day care centre. He says that if he did not spend equal time with the children, it was only because the Respondent Mother would not allow the children to do so, offering them incentives to stay with her to go to Chuck E. Cheese and other “fun” activities. He says that he has been an equal caregiver throughout and has been as responsible for care to the children as is she.
[23] I accept that, based upon the Applicant’s work schedule, the Respondent’s maternity leave and the fact that she works from home, Ms. Dickson has probably spent more overall time with the children than has the Applicant Father. Even though Mr. Sribalan has been very involved with his children, he works full time at a responsible position and in 2021, worked 35 Saturdays of 52 that year as shown by the calendar of his work schedule provided in the Respondent Mother’s affidavit. A former day care provider filed an affidavit indicating that, unlike the situation concerning the present-day care provider, Ms. Dickson did most of the pickups and drop-offs in 2020.
[24] That being said, Mr. Sribalan does have some control over his own schedule as indicated by the letter from his employer. He has been involved in the care of the children and the text messages confirm this. The parties are, in fact, quite civil considering that tensions are high from living under the same roof for so very long; the parties appear able to make decisions concerning the children together.
[25] A status quo regarding shared care is not necessarily based only upon equal time sharing between the parties, and the court need not enter into an exact mathematical calculation of how much time is spent by each parent. The involvement of each of the parents in the children’s care, their activities, schooling and medical care is also crucial to a determination as to a status quo. Where one parent is equally involved with the children even though he or she may not spend exactly equal time with the children, the court may determine that there has been a shared care status quo. As stated by Pazaratz J. in Izyuk v. Bilousov, 2011 ONSC 6451 [at para. 351]
Indeed, by the end of his cross-examination Mr. Drouillard acknowledged that in every respect – and at every stage of the child’s life – both parents have been equally competent; equally attached, equally bonded to the child, equally able to care for him, equally connected, and equally capable of assuming custody. In the social worker’s view, while the Applicant may be regarded as the historical “primary caregiver” based purely on “quantity of time”, in every respect both parties are equally skilled, equally loving, equally reliable – they are equal in what they can offer this child in the future.
[26] It is, in other words, a wholistic approach in determining what the status quo has been. It is not measured solely by the amount of time spent with the children; it necessarily involves a parent’s overall involvement with the children.
[27] By this measure, it appears that Mr. Sribilan has been equally involved with the children as was Ms. Dickson. There are numerous text messages where the parties were discussing care of the children and necessary decisions involved concerning the children. Other than one incident where the Respondent was taking the parties’ son to the hospital because of his asthma, the texts were usually respectful. The Applicant Father was involved in taking the children to the doctor and the day care. Although a former day care provider indicated that in 2020 the Respondent Mother was the one who dropped the children off at day care, this was during her maternity leave which ultimately ended at best nearly 10 months prior to separation. The Applicant Father has some control over his hours and he indicates that he is able to drop the children off at day care and school and pick them up there as well. And although he did work more Saturdays than not in 2021, twelve of those Saturdays were in January, February and March of 2021, when the Respondent Mother was still on maternity leave; he worked less Saturdays per month when she was back at work indicating increased involvement with the children after the Respondent’s maternity leave ended. And it appears that the fact that the Respondent works from home does not affect whether the children go to day care or school during the week.
[28] I appears to me that, as imperfect as the evidence is on an interim motion, the father of the children was sufficiently involved with them prior to separation, and prior to hearing the motion, to warrant an order sharing care of the children. This maintains his care of the children and his relationship with them, important in the throes of a separation between the parties and important to the children under s. 16(3) (b) and (c) of the Divorce Act. The parties appear to be able to cooperate with one another to coparent the children for the most part. He says that he can reside with the children at the home through a nesting arrangement or at his parents in Brampton, one half hour away from the matrimonial home. In my view, and temporarily, it is in the best interests of the children that they reside in the care of both parents.
[29] In my view, and based upon the AFCC Parenting Plan Guide, I do not believe that a week about arrangement is in the children’s best interests. Shorter periods of time are warranted, which can be achieved through a 2-2-3 arrangement. The parties shall pick up and deliver the children at either the school or the day care provider.
Possession of Home
[30] I am not going to order a nesting arrangement as requested by the Applicant. The Respondent has deposed that she does not have alternative accommodations. The Applicant Father has suggested that she live with her boyfriend, but Ms. Dickson responds that she does not have a boyfriend and even if she did, it is presumptuous to assume that she could or would move in with him. Her only other alternative, her grandmother, resides in Oakville which is a good distance from the matrimonial home and her home is fully occupied by student renters. Finally, she largely works from home, and she would have to find a new work station in any home to which she is made to move.
[31] Again, I return to litigation advantage. To take advantage of the Respondent’s situation, where she has no alternative accommodation and has less income than that of the Applicant, would be unfair and would put the Respondent at a disadvantage at maintaining a nesting arrangement under the circumstances. Both parties acknowledged during argument that there was insufficient income to rent an apartment for the use of both parties during their respective “off times” in a nesting arrangement. The Applicant Father has substantially more income than the Respondent and apparently has funds from the sale of a home that he owned with his parents. To order a parenting arrangement which cannot be maintained economically by one of the parties where the other has family with whom he can live is again unfair. I decline to order a nesting arrangement by the parties.
[32] The Applicant has said that he is willing to live with his parents in Brampton. The Respondent requests exclusive possession of the home and intends upon purchasing the Applicant’s interest in the home if she can.
[33] The criteria for exclusive possession are set out in s. 24(3) of the Family Law Act [4]:
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
[34] It is, in my view, in the children’s best interests that they spend their parenting time with the Respondent in the matrimonial home pursuant to the shared arrangement that I am ordering. As well, as discussed above, the financial positions of the spouses militate against a nesting arrangement, and in turn, support an order for exclusive possession in favour of the Respondent Mother, who has no other place to live and substantially fewer financial resources than those possessed by the Applicant Father. Again, under s. 24(3)(e), I am taking the Respondent Mother at her word that she does not have any alternative accommodation and the home is near the child’s school and the day care. Finally, both parents acknowledge that it is becoming increasingly difficult to share the matrimonial home and to continue to do so is untenable.
[35] Therefore, although the issue of whether the possession should be “exclusive” was not argued, it is without a doubt that the parties cannot continue to reside under the same roof. There shall be an order for exclusive possession of the home in favour of the Respondent Mother as requested.
Financial Issues
[36] The Respondent Mother will be living in the home. There is a mortgage that must be paid as well as utilities, taxes, insurance and other expenses concerning the home.
[37] The Applicant will be at his parents’ home in Brampton. He has not indicated that he will be paying rent at the home or what share of the expenses he will be bearing.
[38] The Applicant’s income is substantially higher than that of the Respondent. According to his financial statement sworn February 1, 2023, he will be making $92,809 per annum and he made about $87,000 in 2021, the last year for which he has filed a tax return. The Respondent’s income is substantially less; she makes $58,905 according to her financial statement sworn January 17, 2023.
[39] Based upon this, the Applicant’s obligation to pay base child support for two children under the Child Support Guidelines [5] is $1,384 per month while the Respondent’s monthly obligation is $897 per month. The Applicant should therefore pay differential child support of $487 per month.
[40] The parties shall bear the cost of child care proportionate to income. According to the Applicant’s Divorcemate calculation attached to his February 10, 2023 affidavit, he should pay about 66% of those costs, leaving the Respondent with 34% of the costs. That is the only s. 7 expense that I have any evidence of in this motion.
[41] There is no request for spousal support in the Respondent’s Notice of Cross-Motion.
[42] As well, the Applicant’s costs are minimal while the Respondent has the costs of the matrimonial home. Taking into account his greater income, I am going to order that he bear one half of the costs of the matrimonial home, including the mortgage, taxes, insurance and utilities (heat and hydro). Those costs will address his obligation to pay a greater portion of the shared care of the children as required by Contino v. Leonelli-Contino, 2005 SCC 63.
Order
[43] Therefore, there shall be a temporary order to go as follows:
a. The Applicant and the Respondent shall share care of the children on a 2-2-3 rotating schedule as set out in paragraph 3 of the Applicant’s Notice of Motion;
b. The parties shall share decision-making concerning major decisions for the children. Day to day decisions shall be with the party with whom the children are residing with at the time of the decision.
c. Commencing March 1, 2023, the Respondent Mother shall have exclusive possession of the matrimonial home located at 9 Webb Trail, Tottenham, ON.
d. Commencing March 1, 2023, the Applicant shall pay the Respondent differential child support in the amount of $487 per month based upon the following factors:
i. The Applicant’s income is $92,809 per annum and he would pay child support for two children of $1,384 per month;
ii. The Respondent’s income is $58,905 per annum and she would pay child support of $897 per month;
iii. Care of the children is shared; and
iv. Differential child support is $487 per month.
e. Support deduction order to issue.
f. Commencing March 1, 2023, the Applicant and the Respondent shall equally divide the expenses of the matrimonial home being the mortgage, utilities, taxes and insurance.
g. Commencing March 1, 2023, the Applicant and the Respondent shall pay the child care costs of the children proportionate to their respective incomes with the Applicant paying 66% and the Respondent paying 34% of those expenses.
[44] The success of the parties appears to be divided. If necessary, the parties shall have leave to make submissions as to costs on a 10-day turnaround, the Applicant first and then the Respondent. Costs submissions to be no more than 4 pages in length not including offers to settle and Bills of Costs for the motion
Justice J.P.L. McDermot Released: February 23, 2023
Footnotes
[1] R.S.C. 1985, c. 3 (2nd Supp.)
[2] AFCC Ontario (2020)
[3] Ms. Dickson took great exception to the letter from the YMCA day care being entered as she has been unable to obtain the day care logs to prove that she drops the children off at day care most of the time. She says that the letter contains inaccurate information and that the day care logs would prove that she picked up and dropped off the children at the day care most often. Counsel discussed adjourning the motion so that she could obtain this evidence, and she elected to proceed with argument. I accept the letter for what it is, third party hearsay evidence which is permitted by r. 14 of the Family Law Rules, O. Reg. 114/99, but which is inherently unreliable as being hearsay evidence only.
[4] R.S.O. 1990, c. F.3
[5] SOR/97-175