Court File and Parties
COURT FILE NO.: FS-23-0016 DATE: April 18, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JACLYN HUGHES, Applicant AND: SHAWN HUGHES, Respondent
BEFORE: Justice J.S. Richard
COUNSEL: Stephania Sikora, for the Applicant (Moving Party) Liam Sangster, for the Respondent
HEARD: April 14, 2023
Endorsement
Motion
[1] The parties participated in a case conference about 4 weeks prior to the hearing of this motion. At the case conference, an order was made requesting the involvement of the Office of the Children’s Lawyer (the “OCL”). Listing the matrimonial home for sale was also part of the consent order.
[2] The parties’ only child, K.H., is seven years old. There is no agreement or order in place governing K.H.’s care or schedule. At this time, the parties both continue to reside in the matrimonial home, and the OCL has not yet responded to the parties’ request for involvement.
[3] The mother brings a motion requesting an order for a nesting arrangement wherein she would have primary care of K.H. in the matrimonial home, with the father having parenting time every second weekend from Friday after school to Sunday at 6:00 p.m., and every second Wednesday from after school until bedtime, in the matrimonial home, with each party having exclusive possession during the time they have care of K.H.. The second part of the mother’s motion requests that each party pay the carrying costs of the matrimonial home on a pro-rata basis in accordance with their respective incomes until it is sold.
[4] The father opposes the mother’s motion, and but agrees that a nesting arrangement would be less disruptive for K.H., and therefore in his best interest. He takes the position, however, that the nesting arrangement should be structured such that the parents follow a shared parenting regime alternating on a week-about basis.
[5] This motion was heard as a “short motion” with only affidavit evidence before the court. Prior to the hearing of the motion, the matter was stood down in order to provide the parents, with their counsel, an opportunity to explore and discuss resolution options before the hearing of submissions. They were also offered the option to adjourn the matter to a date that would allow them to present viva voce evidence. The parties did not resolve, and they chose to move forward with this motion.
Background
[6] The parties began their relationship in 2011, and married in 2014. K.H. was born in 2015. He is now in the second grade.
[7] The mother’s affidavit evidence is that she is K.H.’s primary caregiver, and that she was practically his sole caregiver until she started working in 2020. She further explains that the maternal grandmother has been of great assistance in caring for K.H. since he was born, with the mother and K.H. often residing with the maternal grandparents when K.H. was very young.
[8] Because both parents work, K.H. goes to his maternal grandmother’s home across the road from the matrimonial home after school. The paternal grandfather also lives close to the matrimonial home.
[9] The parties are able to reside with their parents when they are not in the matrimonial home.
[10] The police and children’s aid services have been involved with the parties due to the conflict between the mother and the father.
[11] Both parties explain in their evidence that K.H. has been exhibiting aggressive and problematic behaviours at school recently.
K.H.’s best interest
[12] The mother filed three affidavits in support of her motion. Most of the mother’s two affidavits consist of minimizing the father’s alleged little to no involvement in K.H.’s life, and attempt to assassinate the father’s character with unhelpful and irrelevant allegations. Her position is supported by a third affidavit sworn by the maternal grandmother.
[13] The father’s single affidavit expresses concern for K.H.’s behaviours, and is focused on refuting the mother’s allegations against him, many of which are irrelevant to assessing K.H.’s current needs in the analysis of his best interest.
[14] During submissions, each party spent time discussing the maximum contact principle, with the mother positing that it no longer needs to be applied, and the father responding with caselaw supporting that the maximum contact can still be applied under the right circumstances.
[15] Section 16(6) of the Divorce Act states:
Parenting time consistent with best interests of child
16(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.
The single question to be answered by this court, then, is not whether or not an order should be made based on the maximum contact principle. Rather, the inquiry is: what is in K.H.’s best interest given the difficult circumstances he is living in as a result of his parents’ high level conflict?
[16] While contradicting affidavit evidence from heavily biased parents and grandparents is less than ideal in analyzing K.H.’s best interest, some facts could be ascertained in the midst of the ineffective mudslinging. This court, furthermore, bears a responsibility to alleviate the stressful and unwarranted circumstances K.H. is currently having to manage, by, at the very least, making an order on a temporary without prejudice basis until a fulsome examination can be completed.
[17] What is unequivocally clear from the evidence is that although K.H.’s parents love him, their inability to put their metaphorical weapons down is causing him to suffer, as would any child living in this warzone. Through no fault of their own, the parents are unable to afford buying the other’s interest in the matrimonial home. By continuing to live under the same roof, however, their conflict has been exacerbated by their apparent need to build their family law case, or to “protect themselves” legally, by recording the other in the home, one even wearing a bodycam around the house. This is what K.H. has been living with.
[18] In assessing the evidence in the context presented, as well as in light of the positions taken by the parents, I accept the father’s evidence that since separation, the mother has not been supportive of the father’s relationship with K.H.. I also take note of the father’s position that in a shared parenting regime, he would have no issue allowing K.H. to continue going to his maternal grandmother’s home after school and picking him up there, though he notes that his employer has already indicated that he can accommodate his work schedule so that he finishes in time to be with K.H. when the school day ends. Thus, the father is able to put his differences with the mother and her family aside in order to support K.H.’s relationships and routines.
[19] I further note that despite police and child and family services involvement, neither parent presented evidence of the other being unable to meet K.H.’s physical, emotional and psychological safety, security or well-being. In addition, according to the evidence presented by the father, he has overheard K.H. asking to see him on more than one occasion. The mother may have played a more primary role during K.H.’s first years, but the evidence shows that the father is not a part-time or uninterested father. Rather, he is hands-on, aware and involved with K.H.’s school, concerned and action-oriented about K.H.’s recent behaviours, and overall has a good relationship with him. The mother’s own evidence states that the father wanted to attend the parent-teacher interview as he “said he wanted to speak to the teacher about our son’s struggles.” He is very much a part of K.H.’s life, and there is no basis in the evidence as to why K.H.’s best interest will be better served if he spends more time with his mother than with his father.
[20] The father’s evidence suggests that while he certainly disagrees with the mother, he is supportive of her relationship with K.H.. The mother’s evidence does not suggest the same. Between the end of December 2022 to March 2023, for example, the father had no parenting time, and explains that this is what brought him to consult a lawyer. In her evidence, the mother explains that she never actually refused the parenting time, but that there was no parenting time during this period because the father just never communicated that he wanted some.
[21] While the evidence is clear that the parties did not have a good relationship, the mother blaming the father for their relationship troubles in great detail in her affidavit is unhelpful to say the least, and the court will not punish or reward a parent based on who was a better partner in a marriage. What is important is the fact that both are good parents. Both are able to provide K.H. with what he needs, both were an important part of his life prior to separation, and both continue to be an important part of his life now.
[22] Accordingly, a parenting regime must be ordered so that more peace can be invited into K.H.’s life. I note the mother’s concern about K.H. possibly finding it too long to go without seeing a parent for seven days. Accordingly, in this period of transition for K.H., and until a final order is made, the parents shall implement a four-day rotation in the shared parenting regime.
Carrying costs of the matrimonial home
[23] While in her Notice of Motion the mother asks that the carrying costs of the matrimonial home be shared between the parties on a pro rata basis based on their respective incomes, until such time as it is sold, since the parties will be spending equal amounts of time in it, there is no reason to dive into a cost-sharing structure as they are both responsible for their joint asset, and both benefiting from it.
[24] If there is a disparity between the parties’ income, and one of them requires assistance, then support should be requested. If one party ends up paying for part of the other’s share of the matrimonial home to address any financial shortcomings, then the overpayment can be credited towards the support owed. Surely, with a parenting regime being put in place, and with both parties being represented, this can be sorted without additional court assistance.
Order
[25] Accordingly, I make the following temporary, without prejudice, order:
Pending the sale of the matrimonial home, the parties shall follow a “nesting arrangement,” such that they shall each have exclusive possession of the matrimonial home when they are caring for their child, K.H. (“K.H.”).
The Applicant mother, Jaclyn Hughes, and the Respondent father, Shawn Hughes, shall have shared parenting time of K.H. on the following terms: a. K.H. shall reside in the matrimonial home on a full-time basis; b. Each parent shall alternate caring for, and having day-to-day control of, K.H. every four days; c. If the parents are unable to agree on the implementation of the schedule, the father shall reside in the matrimonial home commencing Thursday, April 20, 2023 at noon, until Sunday, April 23, 2023 at noon, and the mother shall then reside in the matrimonial home from Sunday, April 23, 2023 at noon until Wednesday, April 26, 2023 at noon, and so on; d. This schedule shall remain in place throughout the holidays and the summer months; e. In the event that the matrimonial home is sold, and the parties are unable to agree on a different schedule, this schedule shall remain in place, with K.H. residing with each parent on a four-day rotating basis in their respective homes; and f. This schedule may be altered by written agreement between the parents.
Neither parent shall relocate K.H. from his current school zone, or change his school, without the consent of the other parent.
The parent with whom K.H. is residing shall have exclusive responsibility for ordinary day-to-day decisions relating to K.H..
The parent with whom K.H. is residing shall offer and encourage K.H. at least one opportunity per day to call or Facetime (or other video mechanism) with the other parent. If K.H. wishes to speak with that parent, the parent making the offer shall facilitate the call.
The parent with whom K.H. is not residing shall not call or Facetime K.H. when he is with the other parent.
Each parent shall be entitled to all of K.H.’s school, medical, and dental records, as well as school photos and calendars.
The parent with whom K.H. is residing shall be responsible for bringing him to his medical or dental appointments, extra-curricular activities, or sports-related activities, scheduled during that time.
The parents shall both be able to attend K.H.’s school activities, sports, or extra-curricular activities, so long as they do not enter into, or display, any kind of conflict at the event.
Neither party shall rely on K.H. to modify the schedule, and they shall communicate with one another directly about requests to make adjustment requests.
Neither parent shall speak negatively about the other parent, or his or her respective family, near or in front of K.H. at any time.
Neither parent shall discuss these court proceedings with K.H. at any time.
Neither parent shall discuss adult issues, including issues relating to the conflict between the parents, near or with K.H., at any time.
K.H. shall continue to be enrolled in counseling.
This order shall remain in place until it is replaced by another order or by executed minutes of settlement between the parents.
No costs shall be payable on this motion.
Justice J.S. Richard Date: April 18, 2023