COURT FILE NO.: FS-23-0036-00 DATE: 2023-03-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.R. T. Henderson, for the Applicant Applicant

• and -

K.M. T. Millward, for the Respondent Respondent

HEARD: March 9, 2023, via ZOOM at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

Judgment on Motions

[1] Both parties bring motions seeking a temporary order for parenting in respect of a 10 year-old child JJKR, (the Child). The parties have agreed on some terms with respect to parenting the Child. It was contained in a consent order dated March 10, 2023.

Background

[2] This case presents as unique. The Respondent is the biological father of the Child. The Applicant was in a common law relationship with K.R., the biological mother of the Child, from 2014 until September 25, 2022. Tragically on that day K.R. was killed in a car accident.

[3] K.R. was not found until the next day. The Child was devastated by his mother’s death.

Circumstances and Position of the Applicant

[4] K.R. and the Applicant had one child together, E.R.. He is now six years old. The Child lived primarily with the Applicant and K.R. from 2014 until K.R.’s death. The Respondent commenced a court proceeding in regard to parenting time for the Child in November 2015. The parties settled, prepared a draft agreement but the agreement was never executed and no order was obtained. Nevertheless, the parties adhered to an informal parenting schedule that saw the Child with the Respondent for two nights every week, typically consecutive days mid-week.

[5] The Applicant has a strong bond with the Child. The Child has a strong bond with E.R.. The Child has a strong bond with an extended family on his mother’s side.

[6] Immediately following K.R.’s death, the Respondent unilaterally changed the Child’s primary residence. The Respondent has dictated parenting time for the Child to the Applicant on the basis that “You (the Applicant) have E.R. and I (the Respondent) have the Child”. The Child’s time with the Applicant and E.R. has been severely limited since October 1, 2022.

[7] The Applicant submits that it would be in the Child’s best interest to have a court order that his primary residence be with the Applicant. Further, parenting time should be as it was prior to K.R.’s death. That is, the Respondent should have mid-week overnight access and the Child should be with the Applicant at all other times. The Applicant should have the primary decision-making responsibilities for the Child.

[8] In the alternative, the Applicant proposes the Child should be subject to week-about parenting by both parties.

Circumstances and Position of the Respondent

[9] The Respondent and K.R. separated six months before the Child was born. As an infant, the Respondent’s parenting time with the Child was unreasonably restricted. K.R. lived with her family for the first three years of the Child’s life. After K.R. moved in with the Applicant and the Child was primarily resident with them, that couple tried to minimize the Respondent’s role in the Child’s life. The Respondent asserts K.R. was the primary caregiver to the Child prior to her death. With her passing, he assessed that the Child needed “some semblance of stability” and he decided to have the Child reside primarily with him.

[10] The Respondent commenced living with his current partner N.W. in 2017. The couple was married in August 2022. N.W. has a child from a previous relationship. The Respondent has a strong bond with the Child. The Child has developed a strong bond with N.W. and D.W.

[11] The Respondent has enrolled the Child in grief counselling which commenced in late November 2022.

[12] The Respondent submits it is in the Child’s best interest that the Child live primarily with him. The Applicant would have parenting time with the Child every second weekend from Friday to Monday as well as one day each week. The Respondent proposes that the Court designate him to be the primary decision-maker for the Child.

The Law

[13] Section 24(1) of the Children’s Law Reform Act R.S.O. 1990 c. C-12 as amended (CLRA) directs that this motion shall be determined in accordance with the best interests of the Child. Section 24(3) of the CLRA provides a non-exhaustive list of factors to be considered following the direction of Section 24(2) of the CLRA that the court shall consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[14] Section 1(1) of the Family Law Act R.S.O. 1990 c. F.3 as amended (FLA) provides that a parent includes a person who has “demonstrated a settled intention to treat a child as a child of his or her family”. Section 21(3) of the CLRA provides that “any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child”.

[15] In R.A. v. D.P. 2017 ONSC 4622, Woodley J., summarized the legal principles for determining custody between biological and non-biological parties at paras. 33 and 34:

Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman; Parkins v. Parkins; Giansante v. Di Chiara; and Branconnier v. Branconnier, 2006 BCSC 2020; Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).

Although a child's relationship by blood is a relevant consideration - there is no "parental right" to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61, [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

Disposition

[16] In reviewing the competing affidavit evidence of the parties in this matter, I have come to the conclusion that the best interests of the child demand an about-week parenting schedule, with sole decision-making responsibility resting with the Applicant.

[17] I find the Applicant is a parent of the Child within the meaning of the FLA.

[18] The Respondent is clear that he has made a number of assumptions in determining to rearrange what was a parenting pattern of the last seven of the Child’s ten years of life. He assumed K.R. was the primary care parent of the Child before she died. The Respondent assumed the Child needed “some semblance of stability” in the face of his mother’s death. In my view, both of these assumptions are erroneous. They were asserted without any evidentiary basis anywhere else in any of the material filed on this motion.

[19] In argument, the Applicant pointed to the alleged statement of the Respondent that with K.R. gone, each of the men would look after their respective biological children. The Respondent denies making this statement. However, throughout the Respondent’s affidavit material is a theme of complaint and criticism of the parenting decisions of the Applicant and K.R. He does not address how his significant departure from the status quo parenting arrangement would, or did, benefit the Child particularly in this incredibly difficult time for him. The Applicant too is critical of the Respondent’s decisions post September 2022. Nevertheless overall, I am confident that the Applicant will be more likely than the Respondent to foster a relationship with all persons who have an important place in the Child’s life.

[20] Turning to a specific consideration of the factors set out in Section 24(3) of the CLRA:

(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

[21] There is no concern that the Child’s needs are not being met. I do see stability as an important issue in these circumstances. Objectively, stability would not include significantly changing where the Child lived day to day without meaningful input from a person who was involved in the day to day parenting of the Child for the majority of his life.

[22] In my view, the promotion of stability for the Child would not be met by the parenting arrangement proposed by the Respondent. It would be achieved by an arrangement where contact between the two households was maximized.

(b) The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

[23] The Child has many important relationships with many people. The Respondent’s proposal ignores the Child’s bonds with E.R. and K.R.’s extended family. It promotes the relationship of himself, W.R. and D.R. with the Child over others. I see the Applicant’s alternate proposal of week-about parenting as much more conducive to fostering the Child’s relationships with all people who are important to him.

(c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

[24] I am concerned by the unilateral nature of the Respondent’s actions since the death of K.R. In my view, the Applicant is much more willing to support the development and maintenance of the relationship with the Respondent than the other way around.

[25] That being said, the Respondent has also pointed to instances where the Applicant and the Applicant’s family members have openly undermined the Respondent’s ability to parent, even in front of the Child. Fostering an environment of animosity and dysfunction is deeply harmful to a child. Both parties must work together to support the Child’s positive relationship with the other parent. Overall I see the Applicant as being more focused on the needs of the Child as opposed to the Respondent who has made some decisions which have not fostered the Child’s relationships with all the people who are important to him.

(d) The history of care of the child;

[26] Historically the Applicant has been much more responsible for the care of the Child than was the Respondent. As noted above, the Respondent unilaterally and unreasonably altered the status quo parenting situation for the Child following the death of K.R.

(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

[27] The parties have agreed to seek the assistance of the Office of the Children’s Lawyer in this regard. Given the particularly unique set of circumstances of this case, and the number of persons who are involved with the Child’s life, I think the intervention of the OCL at a minimum with a Voice of the Child report would be of great assistance to the Court if the matter does not resolve short of a trial.

(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

[28] This is not a significant factor in this matter.

(g) Any plans for the child’s care;

[29] Neither party submitted formal plans on this motion.

(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;

[30] I am confident both Applicant and Respondent are well able to care for and meet the needs of the Child when he is in their care.

(i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

[31] In my view, given the events post September 2022, the Applicant is much more able to communicate and co-operate with the Respondent in respect of matters involving 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 co-operate on issues affecting the child; and

[32] This is not a factor in this matter.

(k) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[33] This is not a factor in this matter.

[34] Considering all these factors, I assess the alternative position put forward by the Applicant for a week-about parenting arrangement as being in the best interests of the Child on a temporary basis. I had considered returning the Child to living primarily with the Applicant. However, I am concerned that this might cause more problems than it will solve long term. It was not in the best interests of the Child to alter his primary residence upon the death of his mother. However, it happened. Five months have gone by. I want to try and create an atmosphere where the heat is turned down in this litigation. To that end this order will designate the Applicant to be the primary decision maker for the Child for the period covered by this order. I do this because I do not expect, on the material before me, that there will be any controversial or difficult decisions for the Applicant to make for the Child in the near term. Also, I do not want to create any more occasions for conflict than are necessary.

[35] I am going to put this order in place for the period March 20, 2023, to September 1, 2023. Three months of school and two months of summer. Enough time I hope to allow these parties to help the Child continue to adapt to the very significant loss that he has recently experienced. If the parties do not come to some final agreement with regard to parenting the Child, the next step in this process will be a case conference that is to be completed sometime in the period June 19, 2023, to July 28, 2023. The purpose of the conference is to canvass how the new arrangement is working and to continue it or to set a plan for ultimate adjudication of this dispute.

[36] Accordingly, order to go disposing of the balance of both motions as follows:

1. Commencing March 20, 2023, the Applicant shall parent the Child from after school on March 20, 2023, until Monday March 27, 2023, at 8:00 am.
2. The Respondent shall parent the Child from after school on March 27, 2023, until Monday April 3 at 8:00 am.
3. Thereafter, the Applicant and Respondent shall parent on a week about schedule in accordance with the time format set out in the preceding two paragraphs.
4. This arrangement shall continue until September 5, 2023, unless changed as mutually agreed or altered by Court order with an attendance on or after September 5, 2023.
5. Commencing March 20, 2023, the Applicant shall have sole decision-making responsibilities for the Child until changed by mutual agreement or further Court order on or after September 5, 2023.

[37] In my view, the Applicant has been successful on his motion and I was not prepared to order the proposal put forward by the Respondent in his motion. Although there were two motions, I have adjudicated them together for practical reasons. The Applicant is entitled to one set of costs for these motions on a partial indemnity basis payable forthwith by the Respondent. I would expect the range of costs requested to be in the order of $2,500 to $4,000.00 inclusive of disbursements and HST given the materials filed and the complexity of the matters at issue. If the parties cannot agree on costs the Applicant will serve and file on Caselines a brief of no more than two pages regarding costs on or before March 27, 2023. The Respondent will serve and file on Caselines a reply brief of no more than two pages regarding costs on or before April 3, 2023. If no submission is received by March 27, 2023, by 5 pm, the matter of costs will be deemed to have been resolved.

[38] If an additional formal temporary order is necessary to implement this ruling a draft order may be submitted to my judicial assistant as the parties did for the consent order recently obtained in this matter.

[39] I thank both counsel for their professional approach to this difficult and unique matter.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: March 15, 2023