Court File and Parties

COURT FILE NO.: FS-17-417086-1 DATE: 20230419 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Douglas McKenzie, Applicant AND: Malgorzata McKenzie, Respondent

BEFORE: Faieta, J.

COUNSEL: Serena Lein, Counsel, for the Applicant Malgorzata McKenzie, on her own behalf

HEARD: April 18, 2023

Endorsement

[1] Each party brings a motion for the imposition of a summer parenting time schedule.

[2] The parties have two children, Lena Anna McKenzie, age 13 and Alastair Robert McKenzie, age 11.

[3] The parties have been separated since 2017.

[4] A Final Order was issued by Moore J. dated July 31, 2018 following a trial. Paragraphs 31 and 32 of the Order speak to summer parenting time. It states:

Paragraph 31. The regular residential schedule shall continue in the summer subject to the following: each parent shall have two non-consecutive weeks during the summer; which weeks shall be determined by January 31 of each year. In even numbered years, the Father shall have first choice of his two weeks and in odd-numbered years, the Mother shall have her first choice.

Paragraph 32. The Mother shall be at liberty to take the children to Poland at her own expense twice per year during Christmas break or summer and if she requires more than the allotted time at Christmas or summer, makeup days equal to the additional days taken by the Mother shall be given to the Father during a period at the Father’s choosing. No trip to Poland, however shall be longer than three weeks at a time. If the Mother intends to take the children to Poland, she shall give the Father no less than 60 days of notice in writing. The Father shall then have 30 days from that notification to select his makeup time and advise the Mother in writing.

[5] On April 12, 2019 the Respondent filed a Motion to Change. Amongst other things, she seeks to vary the parenting schedule arising from her move to Belgium where her employer is based. She seeks to change the summer parenting time provisions so that the children will reside with her for six consecutive weeks of their eight weeks of summer vacation. This request is opposed by the Applicant. On a without prejudice basis his Response to the Motion to Change filed May 15, 2019 proposes summer holidays 2/4/1/1/1 starting with the Applicant father and affording 4 weeks to the Respondent.

[6] The trial of this motion to change is scheduled to commence on November 27, 2023.

[7] Last year, the parties agreed on a summer parenting schedule that did not comply with the Final Order. On February 9, 2022, O’Brien J. granted a consent Order which states:

3. The Summer parenting time for 2022 shall be as follows: a) The Applicant will have parenting time with the children from the last week of June (per the regular schedule) until July 5. b) The Respondent shall have parenting time with the children from July 5 until July 9; c) The Applicant shall have parenting time with the children from July 9 until August 9, except that the Respondent shall have parenting time with Alastair only from July 30 until August 5. Lena will be at overnight camp during this time. d) The Respondent shall have parenting time with the children from August 9 until September 4; and e) The Applicant’s regular week with the children will start on September 4.

4. It is understood and agreed that the Respondent will be travelling to Europe with the children during her parenting time in August.

[8] For 2023, the parents have been unable to agree on a summer parenting schedule.

[9] The Applicant father would like the children to attend an overnight camp in Ontario. Lena would be in camp three weeks from July 22 until August 11. Alastair would be in camp two weeks from July 28 until August 9.

[10] Specifically, the Applicant father seeks an order that the children have summer parenting time as follows:

(i) Applicant/Father, shall have summer parenting time with Lena from June 30th to July 14th; Respondent Mother from July 14th to July 17th; (ii) Applicant/Father shall have summer parenting time with Ali from June 30th to July 10th; Respondent/Mother shall have parenting time with Ali from July 10th to July 17th; (iii) Applicant/Father shall have summer parenting time with Lena from July 17th to July 22nd; Lena shall attend summer camp from July 22 to August 11; (iv) Applicant/Father shall have summer parenting time with Ali from July 17th to July 28th Ali shall attend summer camp from July 28 to August 9th; (v) Applicant/Father shall have summer parenting time with Ali from August 9th to August 14th; Respondent/Mother shall have summer parenting time with Ali from August 14th until September 4th; (vi) Applicant/Father shall have summer parenting time with Lena from August 11th to August 14th; Respondent/Mother shall have summer parenting time with Lena from August 14th until September 4th; (vii) Both children are to return to Applicant/Father by September 4th at which time the regular, week about schedule resumes pursuant to the Final Order of Justice Moore 31, 2018.

[11] The Respondent mother would like the children to attend an overnight camp in Poland for the two week period from August 19-31 or a ten day period from August 5-18.

[12] The Respondent mother’s notice of motion seeks the following summer parenting schedule:

Option A: If the children are with the Respondent mother over the Canada Day Long Weekend a. The mother shall have the children in her care from June 30 to July 4; b. The father shall have the children in his care from July 4 to August 7 c. The children shall be in the mother’s care from August 7 until September 5.

Option B: If the children are with the Applicant father over the Canada Day Long Weekend a. The father shall have the children in his care from June 30 to August 3; b. The children shall be in the mother’s care from August 3 until September 5.

[13] Unlike the situation before Justice O’Brien in 2022 whose Order was based on the consent of the parties, on the motions before me each parent’s request for summer parenting time is disputed.

[14] Without explicitly saying so, the relief that each party requests amounts to an interim variation of Justice Moore’s final order. The test for an interim variation of a final parenting order was described in Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694, at para. 126, by Kurz J as follows:

1. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue;
2. The parenting issue must be an important one;
3. The circumstances arising since the final order must be urgent or pressing; and,
4. The moving party must then prove that the remedy sought is in the child’s best interests.

[15] On a without prejudice basis, I find that the parties have failed to demonstrate strong prima facie proof that there is a material change in circumstances regarding a parenting issue.

[16] Unless the parties come to an agreement in interim, any change to the summer schedule shall, if any, be made at trial which will commence in November 2023.

[17] In the meantime, the provisions of the Final Order govern.

[18] The regular residential schedule (week on, week off) shall continue during the summer. This is an odd numbered year, and as a consequence the Respondent mother has first choice of two non-consecutive weeks. Paragraph 32 of the Final Order entitles the Respondent mother to request that the children travel to Poland for up to three weeks with the requirement that make up time be provided to the Applicant.

[19] Reading paragraph 31 and 32 together, I direct that the summer schedule shall be determined as follows:

1. The Respondent mother has first choice of two non-consecutive weeks. She shall notify the Applicant father of the weeks selected by April 21, 2023.
2. The Applicant father shall notify the Respondent mother of his choice of two non-consecutive weeks by April 24, 2023.
3. By April 27, 2023, the Respondent mother shall notify the Applicant father of which three weeks (or up to three weeks) that she wishes the children to spend in Poland. To clarify, the children’s time out of the Respondent father’s care shall be no more than three weeks.
4. By April 30, 2023, the Applicant father shall notify the Respondent mother of which makeup days he has selected during the summer of 2023.

[20] Should the parties decide to come to an agreement on the terms for a summer parenting schedule that does not comply with the Final Order then they may submit the resulting consent Order for my review and approval by way of Form 14B motion.

[21] There shall be no order as to costs.

Faieta, J. Date: April 19, 2023