COURT FILE NO.: FC-22-391
DATE: 2023-01-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shane Duhaney, Applicant
AND:
Clover Kerr, Respondent
BEFORE: Justice M. Tweedie
COUNSEL: Alisa Williams, Counsel for the Applicant
Nicole Matthews, Counsel for the Respondent
HEARD: December 15, 2022
ENDORSEMENT
[1] On December 15, 2022 I heard a long motion brought by the Applicant father seeking equal parenting time with the children G. D.-K. born in 2015 and M. D.-K. born in 2016.
BACKGROUND
[2] The parties were in a relationship from early 2015 until February 6, 2022. There are two children of the relationship, as noted above.
[3] On April 13, 2022 the Applicant, Mr. Duhaney, commenced these proceedings. It appears there was some difficulty in serving the Application on the Respondent, Ms. Kerr.
[4] Mr. Duhaney and Ms. Kerr were making arrangements for parenting time between themselves until mid-May, 2022. Since then Mr. Duhaney was denied time with the children despite his efforts to make arrangements to see them. On June 7, 2022 Mr. Duhaney sent an email to Ms. Kerr asking for responses to his many messages inquiring when he might see the children. Ms. Kerr’s response on June 8, 2022, was “when court is done I guess or when I get my certificatea [sic] then you can communicate with them. I would appreciate it if you or your lawyer stop contacting me tnx”.
[5] Mr. Duhaney brought a motion for parenting time in advance of a case conference, originally scheduled to take place on June 7, 2022. Ms. Kerr retained counsel and the motion was adjourned and ultimately scheduled to be heard on July 22, 2022.
[6] On July 22, 2022, prior to the motion being heard, the parties signed temporary minutes of settlement as follows:
Subject to the approval of this Honourable Court, the parties to the within action hereby agree, on a temporary basis, to the following:
The Respondent shall be deemed to have been served with the Application non pro tunc.
The children G. D.-K. born in 2015 and M. D.-K. born in 2016 shall be in the care of the applicant father, Shane Duhaney, as follows:
a. Week 1 on the Thursday between 9:00 a.m. and 9:15 a.m. until Monday at 7:00 p.m. Week 1 shall commence during the week of July 18th so the father will have the children in his care commencing immediately.
b. Week 2 on the Wednesday between 9:00 a.m. and 9:15 a.m. until Thursday at 7:00 p.m. Week 2 commences the week of July 25th.
c. The mother shall have the children in her care on the other dates/times not referenced above.
d. The parties may vary the times and dates of the time sharing on consent.
The father shall spend extra summer vacation time with the children from Monday August 8th between 9 and 9:15 a.m. until Sunday August 14th at 7:00 p.m.
The father shall be responsible for the transportation to and from the mother’s home unless the mother indicates that she is available to do some of the transportation.
When school is in session these times will change to reflect the father ensuring that the children arrive to school at the start of the school day.
The time sharing shall be reviewed at the case conference, which is scheduled for October 13, 2022 at noon.
[7] The temporary minutes of settlement are not marked without prejudice.
[8] Counsel requested I make an order based on those minutes of settlement. My endorsement from July 22, 2022 reads:
Order to go regarding parenting time in accordance with the Minutes of Settlement filed today. Adjourned to case conference October 13, 2022 at 12:00 p.m. to proceed virtually.
[9] The parties attended and participated in a case conference on October 13, 2022. Justice Chappel’s endorsement states that the case conference was held, opinions given, and motions may be brought.
[10] Mr. Duhaney then brought this motion. His Notice of Motion is dated November 10, 2022.
ISSUES
[11] At the motion, counsel for Ms. Kerr submitted that Mr. Duhaney must first establish that there had been a material change in circumstances since July 22, 2022, relying upon s.29(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, and case law which states that courts are to be cautious in varying temporary orders and prior to doing so, there must be a material change in circumstances such that the resulting situation for the children requires an immediate change in order to preserve the children’s best interests.
[12] Counsel for Mr. Duhaney submitted that Mr. Duhaney does not need to establish a material change in circumstances prior to being granted the relief he seeks. It was submitted that the review clause in the July 22, 2022, minutes of settlement and resulting order clearly demonstrated that Mr. Duhaney was not acquiescing to the time sharing set out therein, and that the intention of the parties was to re-visit the issue of parenting time at the case conference. Therefore, the test to be applied is as set out in the Children’s Law Reform Act, s.24
ANALYSIS
[13] I find that Mr. Duhaney is not required to demonstrate a material change in circumstances to establish entitlement to the relief he is seeking.
[14] The minutes of settlement contain a review clause. This suggests that the parties intended to address the urgent parenting issues, and that there would be further discussions regarding parenting time at the case conference.
[15] Further, looking at paragraph 6 of the minutes of settlement through an objective lens, while taking into consideration the provisions of the Family Law Rules, O Reg 114/99, as amended, also leads to the conclusion that the parenting arrangement would be revisited. One of the purposes of a case conference is to review the existing parenting regime, have discussions, obtain the opinion of the presiding Justice, and attempt to resolve the issues, at least on a temporary basis. In the usual course of procedure, this is to occur before any motions. Generally, upon separation, parents agree on a “good enough” parenting arrangement to provide some stability for the family and bridge the gap until the case conference. At the case conference, either party may advance whatever position they wish and are entitled to bring a motion if the issues are not resolved to their satisfaction at the case conference.
[16] However, in some circumstances, such as this, the normal course of proceeding contemplated by the Family Law Rules cannot be followed. Motions are, on occasion, required in advance of case conferences if there is urgency or hardship, and the best interests of the children require intervention in advance of the case conference. Once the urgent issues are addressed by way of motion (or resolution in advance of the motion as was the case here), the matter reverts to the normal track for proceeding – a case conference.
[17] Turning to this family: if Ms. Kerr had agreed to the existing parenting time without Mr. Duhaney having to bring his motion prior to a case conference, then that agreed-upon parenting time would have been reviewed at the case conference, and Mr. Duhaney would have had a right to bring a motion if the issue was not resolved satisfactorily to him. Here, Ms. Kerr’s refusal to provide parenting time resulted in Mr. Duhaney’s urgent motion. The minutes of settlement reached on June 22, 2022, resulted in the parties being able to remove themselves from the more adversarial features of family litigation (motions) and focus again on the more conciliatory features (the case conference) during which it was agreed the parenting arrangements would once again be reviewed. Mr. Duhaney should not be denied the process set out in the Family Law Rules because Ms. Kerr’s actions required him to bring a motion outside the normal course of proceedings.
[18] Having established that Mr. Duhaney is not required to show a material change in circumstances, the court must consider what parenting arrangement is in the best interests of the children.
[19] Section 24 of the Children’s Law Reform Act states that in making a parenting order the court shall only take into account the best interests of the child, that the primary consideration shall be given to the child’s physical, emotional and psychological safety, and sets out a number of factors that are to be included in the court’s consideration.
[20] Section 24(6) of the Children’s Law Reform Act articulates the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This principle does not require equal time with each parent.
[21] Mr. Duhaney seeks an order for parenting time on a week about basis, or, in the alternative, an order that extends his current parenting time to allow him to return the children to school the next morning instead of returning them to the care of the mother at 7:00 p.m. This would give him two extra overnights in a two-week period. Mr. Duhaney states that at the time of separation the parents shared parenting responsibility equally, while relying on the assistance of family, which included his mother. Mr. Duhaney states that the best interests of the children require a continuation of equal parenting.
[22] Ms. Kerr states that the parenting time proposed by the father will result in the father having to rely on his mother to provide care, the children transitioning too often, and the children being denied time with extended family and opportunities to participate in extracurricular activities. While she points out that the parties relied on family to assist in parenting, she does not appear to deny that the parents shared parenting prior to separation.
[23] Both parents make allegations of the other’s parenting and behaviours during and following the relationship and implied that those behaviours would negatively impact the well-being of the children while in the other parents’ care. I am placing little weight on these allegations. If proven to be true, they would establish at most that each parent likely has demonstrated poor judgment and an inability to appropriately interact with the other at times. The allegations would not establish that either parent is unable to appropriately parent the children. I also note that each parent agreed to the current schedule, which is an almost equal time-sharing regime. If either parent had serious concerns about the children in the care of the other parent, minutes of settlement would not have been reached on June 22, 2022, and each party would have taken much stronger positions on this motion.
[24] Unfortunately, the parents put much effort into making and responding to allegations but provide very little information about the children and how they are responding to the current parenting arrangements. There was an absence of any evidence that the existing time sharing is having a negative effect on the children, or that an increase in parenting time as requested by Mr. Duhaney would be detrimental to them.
[25] I find that a schedule in which the children spend overnight with their father instead of retuning to the care of the mother in the evening will benefit the children and will allow them to spend as much time with each parent as is in their best interests. It allows the father to return the children to school, results in fewer exchanges between the parents, and reduces potential for conflict between the parents in the presence of the children. It allows the children to have a regular bedtime routine for two extra evenings instead of having their evenings disrupted by a trip back to Ms. Kerr’s home only to have to go to bed.
ORDER
[26] The children G. D.-K. born in 2015 and M. D.-K. born in 2016 shall be in the care of the applicant father, Shane Duhaney, as follows:
a. Week 1 on the Thursday between 9:00 a.m. and 9:15 a.m. until Tuesday at start of school.
b. Week 2 on the Wednesday between 9:00 a.m. and 9:15 a.m. until Friday at start of school.
c. The mother shall have the children in her care on the other dates/times not referenced above.
d. The parties may vary the times and dates of the time sharing on consent.
[27] The father shall be responsible for the transportation to and from the mother’s home and school unless the mother indicates that she is available to do some of the transportation.
COSTS
[28] The parties are directed to have meaningful discussions regarding costs in an effort to resolve the issue. If they are unable to resolve the issue of costs, any party seeking costs shall serve and file written submissions, no more than three pages double spaced (with case law hyperlinked), plus a detailed Bill of Costs and copies of any Offers to Settle by January 20, 2023. Any responding submissions (no more than three pages, double spaced and with case law hyperlinked) shall be served and filed by January 27, 2023. Reply submissions, if any, shall be served and filed by February 1, 2023.
________________________________
Tweedie, J.
Date: January 6, 2023