Court File and Parties
COURT FILE NO.: FS-20-18690 DATE: 20230504 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: KATHLEEN SHIPTON Applicant – and – AAMIR SALEEM SHIPTON Respondent
Counsel: Michael Tweyman, for the Applicant David Tobin and Christina Hinds, for the Respondent
HEARD: February 21, 22, 23, 24, March 1, and April 28, 2023
Supplementary Reasons for Judgment – Parenting Schedule
AKAZAKI, J.
1In my reasons for judgment of March 29, 2023, I invited counsel to make submissions on the calculation of support payments and parenting arrangements. On April 28, 2023, the court convened a supplementary sitting to hear trial submissions on the issue of parenting arrangements.
Preliminary Motion to Reopen the Trial
2The Respondent, to whom I will continue to refer as Aamir (and to the Applicant as Kathleen), brought a motion to reopen the trial to submit fresh evidence in the form of an affidavit. I did not see the affidavit, and I canvassed counsel’s submissions to determine whether the court should entertain the motion.
3Counsel for Kathleen described the affidavit as containing communications between counsel and evidence from Aamir of a prejudicial nature that would require a full motion with factums. Counsel for Aamir described the evidence as confirmatory of certain findings I made from the trial evidence regarding Kathleen’s conduct. He also stated that the evidence could be relevant to the parenting schedule order. As I advised counsel and the parties during the hearing, I declined to entertain the motion, with brief written reasons to follow.
4I am loath to create a secondary record based on the interaction of counsel. In my view, discussions between counsel should be considered a safe space and should not provide fodder for trial evidence. The testimony of the witnesses and the contents of the admitted documentary brief circumscribe the scope of evidence, and any post-trial interpretations by counsel should be reserved for argument. I would not reopen the trial to admit such information.
5The post-trial conduct of Kathleen Shipton, presumably in response to the ruling I made on the relocation issue, is not so readily excluded. Unlike in most civil disputes, fact-finding in family law cases is not exclusively forensic. It is not limited to an ex-post review of events that have stopped occurring some time before the service of originating process. However, natural justice dictates that the interlocutory process leading to trial created expectations of evidence being presented in a particular order. While it may be tempting for parties to keep hoovering pieces of information for supplementing the trial evidence, it is the formality and intensity of the trial experience that tests the probity of the information. The trial court is not a committee of inquiry leading to non-binding recommendations.
6The introduction of post-trial conduct also raises the spectre of the never-ending trial. Family law disputes involving the parenting of children entail discretionary remedies based on the totality of evidence about the family’s circumstances and the parents’ conduct. This is not a commercial or tort case in which a previously unavailable piece of evidence might dramatically change the complexion of the case, and counsel for Aamir did not suggest that the evidence of Kathleen’s post-trial conduct would be of that nature. There were too many interwoven facts, credibility assessments and other evidentiary elements to invite a reconsideration of this post-trial evidence in relation to what transpired prior to the trial. If I were to admit post-trial evidence of Kathleen’s conduct, she will be entitled to introduce evidence of other conduct, or perhaps that of Aamir, either to rebut the new evidence or to mitigate its effect.
7In contrast, if the unsuccessful party wished to introduce fresh evidence that satisfied the rule for fresh evidence in order to show that a trial judge’s finding was based on tainted evidence, some inadvertence, or failure to apply a statutory requirement, now would be an opportunity to introduce it in order to prevent the court from entering judgment on a per incuriam basis. That was not the basis for the proposed motion.
8Accordingly, I declined to hear the motion and proceeded to hear counsel’s submissions on the parenting schedule.
Parenting Schedule
9Following the result at trial, Aamir submitted a schedule commonly referred to in the family law bar as a “2-2-3” schedule. That allocation of time affords the parents with more-or-less equal parenting time. The child stays with each parent for two days, and the parents alternate periods of three days. Any actual inequality arises from circumstances, usually school schedules and after-school activities, but in principle both parents are equally involved in the child’s life. Aamir’s proposal reflected, in his view, a rebalanced allocation of parenting time more in keeping with the equal sharing of responsibilities just prior to Kathleen’s departure from the matrimonial home. It was only because Kathleen’s rebutted allegations of his unfitness that had put him in an unequal position throughout the litigation.
10Kathleen sought a slower increase in Aamir’s parenting time and opposed parity as a target. Kathleen has submitted a schedule that phases in more time, starting with parenting time for Aamir consisting of half a weekend (one overnight) and one mid-week overnight. This compares to the current arrangements, existing at the time of trial, whereby the daughter spent time with Aamir Tuesday and Wednesday evenings (5:00 p.m. to 8:00 p.m.), Fridays (10:00 a.m. to 6:00 p.m.), and alternating weekend dates over 24 hours (10:00 a.m. to 10:00 a.m.). In other words, Kathleen would like one overnight added to the current schedule, until the end of June. During the summer, July and August, each parent would have two blocks of four and five days, totaling nine days. Starting in September, when the child will start kindergarten, Kathleen has proposed that Aamir should have an additional weekday overnight and alternating weekends. Kathleen’s plan transitions from the status quo to roughly 60/40 in her favour.
11Kathleen’s argument for a phased-in and unequal parenting schedule consisted of three points:
a. Disturbing the status quo would be against the child’s best interests. b. Aamir lacks the capacity to care for the child during the day. c. The trial decision denying the request for relocation is under appeal, and it would be harmful to the child to see her father half the time and then move to Ireland, where she would not see him very often.
a. Status Quo
12As I held at paragraphs 102-07 of my trial decision on the relocation, Aamir fought throughout the litigation to gain greater time with his daughter after Kathleen’s groundless allegations of parental unfitness at an emergency motion started him off with a supervised access order. At trial, Kathleen used his disadvantage to stake a claim to the tactical position that she looked after the child a “vast majority” of the time, for the purpose of the burden of proof under s. 16.93 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
13Kathleen denied that she tactically created the status quo at the time of trial. I found this to be disingenuous, because she was still pushing that same envelope. At trial, as recorded in paragraph 91 of my decision, counsel and I performed the arithmetic together and found the ratio to be 77.4 to 22.6. In her submission on parenting, she claimed the status quo was “80%” in her favour. A large part of her case at trial consisted of painting Aamir as a source of danger to the child because of his alleged views on modern medicine and forcing veganism on the family. Kathleen’s whole trial strategy was focused on marshalling a chorus of opinion against Aamir and justifying the constriction of his parenting time during the litigation, in order to play the legal burdens for the relocation suit.
14Kathleen also kept referring back to the original supervision order against Aamir, and cited Aamir’s concession that Kathleen was the child’s primary caregiver. The child was less than a year old. This was not so much a concession but a fair description of the bond between mother and her nursing baby. Kathleen has kept raising this point-in-time concession at the emergency motion to score legal points. Her reliance on this “primary caregiver” label was essentially a proxy for the presumption of custodial advantage under the discredited “tender years” doctrine: See G.C. v. R.D.P., 2021 ONSC 4206, at para. 97. In Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 45, the Supreme Court of Canada cautioned against the use of such presumptions:
To the extent that the proposed presumption would give added weight to the arrangement imposed by the original custody order, it may diminish the weight accorded to the child's new needs and the ability of each parent to meet them.
15The above extract from Gordon described the obvious logic that children’s needs change depending on their stage of development and individual characteristics. In Hatab v. Abuhatab, 2022 ONSC 1560, at para. 64, this court held that because contact with both parents is the child’s right, the court has a duty to counter a parent’s unreasonable resistance to the other’s parenting time by increasing the opportunities for the child to enjoy the love and support of that other parent. In this instance, slowing the expansion of the child’s time with Aamir is not in the daughter’s best interests. To do so would perpetuate, not heal, the deprivation she experienced in the past two years.
16The emergency court order of September 25, 2020, reflected the court’s reluctance to permit unsupervised parenting time without “independent information … about the respondent’s ability to care for the infant, given the nature of the allegations before the court, the age of the child and the fact that the child is still nursing, and the dispute over whether the respondent had any parenting duties or sufficient experience parenting and calming or providing for the child.” At trial, Kathleen clung on to her position that Aamir was unfit to look after the child, even though the social workers during the months of supervision described his parenting in glowing terms. Even now, she refuses him parity on principle, even though there is no justification for denying the child equal time with her father.
17The schedule proposed by Aamir will indeed result in a change from the status quo, but not so much that it requires a lengthy transition to equal parenting. Apart from general trend of Canadian law toward this type of arrangement, equal parenting reinforces values of gender equality and shared responsibility. The skewed juridical status quo that Kathleen won in September 2020 on the basis of her untested allegations must now be fully righted.
b. Aamir’s Availability
18The only evidence at trial regarding Aamir’s availability to look after his daughter was the fact that his employer is flexible and sympathetic. Aamir works from his home office. If he looks after his daughter during the day, he is able to devote himself to his employment during evenings. Kathleen did not count his equal availability in his favour, when he was off work due on disability leave and available to look after their daughter as much as she was.
19If Aamir proves unable to follow the schedule he himself put forward, Kathleen would be entitled to bring a motion for a change order. The schedule takes into account the fact that the daughter will be entering junior kindergarten in September 2023, a fact on which the parties agreed. Kathleen’s counsel did not strenuously argue this point, and I would not give any weight to it.
c. Kathleen’s Appeal
20Kathleen’s counsel submitted that the appeal of the trial decision on relocation should be a factor in determining the appropriate parenting schedule. The written submission bears reciting, because of what Kathleen is asking the trial judge to do in order to award a parenting schedule that reflects her status quo argument:
Kathleen has appealed the order prohibiting relocating the child to Ireland. Given the issues at stake, it is hoped that the transcript can be produced by early May and the appeal perfected by the end of May, to be heard within 2-3 months. Therefore, a phased schedule makes the most sense, as it provides increased parenting time immediately but allows any second expansionary phase can only take effect once the appeal is dealt with.
In the event the court sees fit to order an immediate and substantial change from the existing status quo, Kathleen asks that the order be stayed pending appeal. It would not be in the child’s best interests to have potentially two significant changes in a matter of months i.e. a move to a 50/50 schedule and then a move to Ireland if the appeal is allowed.
21Kathleen’s reliance on the appeal in her submission regarding the trial judge’s remedy requires me to craft the remedy based on the possibility that the underlying decision was made in error. Although her request for a stay of any equal parenting schedule involves a similar consideration of the contingency of a decision under appeal, it requires a different analysis.
22Kathleen’s first argument, that the contingency caused by the appeal warrants a phased-in post-trial parenting schedule, essentially defers equal time for Aamir without satisfying the requisite elements of a stay order. It is essentially a procedural narrative that continues to set Aamir up as a source of harm. Only, now, the harm is the separation from Aamir after the daughter becomes accustomed to being with him more often, and it is not the exposure to his parenting.
23Aamir’s take on the contingency was not to deny the uncertainty caused by the filing of an appeal, but rather to consider the effect of such uncertainty on his relationship with his daughter. His position was that, in case the appellate court were to overturn the trial decision and authorize the relocation to Ireland in the near future, the trial court should afford him as much time as possible to solidify his relationship with his daughter in order to mitigate the effect of the relocation in eliminating him as a daily presence in her life. This was the natural human reaction of any person whose child could be relocated against the parent’s wishes, by authority of the state.
24I do not have to choose between these positions. I also do not need to rely on any presumption that the trial judgment was correct (although that seems to be part of the analysis in the stay request). As the trial judge, my function is to make an order that conforms with my findings of fact from the trial evidence and applies the legal principles outlined in my reasons. My parenting order should not be influenced by the possibility that, several months from now, an appellate court could reverse it. It has to be the parenting schedule order for a child residing in Toronto, Ontario. It cannot be the parenting schedule for a child who might be relocated by a higher court. Neither of the proposed schedules would be applicable to a relocation to Ireland, if the Court of Appeal were to grant the appeal. Under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the appellate court can frame an interim remedy that disentangles the child from her relationship with Aamir while causing the least harm.
25I can see no merit to the submission that I should refuse Aamir equal parenting time when he is ready, willing and able to take up that responsibility, on the basis that the trial decision denying relocation could be reversed on appeal. Subject to the comments below regarding my narrow jurisdiction to consider the appeal for the purposes of a stay request, the possibility of reversal on appeal cannot be used as grounds for the trial judge to hedge the court’s bets and tailor the remedy based on a potential for error. I also agree with the submission made on behalf of Aamir that the possibility of my judgment being overturned should afford the child the opportunity to experience equal parenting before she is removed to Ireland. Indeed, Kathleen seems oblivious to the strained sincerity of her characterization of an expansion of time with Aamir as disruptive, when her plan of escape from Aamir’s orbit would take the child to a completely unfamiliar location and eliminate the father as a significant person in her daily life.
26Kathleen is correct that I have the jurisdiction under rule 38 of the Family Law Rules, O. Reg. 114/99, by reference to rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to grant a stay pending appeal. The legal test is analogous to that of an interlocutory injunction, namely the requirement to show that (1) the appeal raises a serious issue, (2) compliance with the order would cause irreparable harm, and (3) the balance of convenience favours a stay. The first “serious issue” element has been overlaid with an additional requirement that the applicant must demonstrate a “strong case in favour of a stay”: Tovmasyan v. Petrosian, 2022 ONCA 583, at para. 6.
27The fact that I have jurisdiction to hear a request for a stay does not make it a sound move for Kathleen in this case. A motion to the Court of Appeal would have allowed that court to consider the grounds of appeal and better apply the “serious issue” test against the presumption of the correctness of the lower court decision under appeal. The Court of Appeal would also bring fresh eyes to the case.
28When the stay is sought from the trial judge, the question is akin to asking the Court of Appeal to grant leave to appeal one of its own decisions to the Supreme Court of Canada. Yes, s. 37 of the Supreme Court Act, R.S.C. 1985, c. S-26, permits it, but the instances in which the Court of Appeal would exercise that jurisdiction are exceedingly rare. Unlike the s. 37 situation, I was not presented with a list of the errors I am said to have committed. I can foresee a trial judge granting a stay in exceptional cases where the applicant can establish probability of irreparable harm of an incorrect decision, where the original decision turned on an extricable point of unsettled law. Since I was not directed to any such issue, I am not able to grant a stay. In case I am wrong in foreclosing the availability of a stay on this first element, I will consider the second and third elements of the test.
29Kathleen’s submission on the issue of irreparable harm, that it would not be in the child’s best interests to be subject to significant change in parenting routine before a move to Ireland, appears to rely on change of routine itself as harm. Children’s routines do change. Attending school in September will do that. Gaining a stepmother at the end of May will do that. Changes of routine, in themselves, are not harmful. Resilience must not only be presumed. It must be taught and learned. Spending more time with a father is not a cause of harm, even if there is potential for an appellate court to change that routine: Talsky v. Talsky (No. 2). I prefer the submission made on behalf of Aamir, that the possibility of the appellate court allowing Kathleen to take the daughter permanently to Ireland militates in an order for according him maximum parenting time.
30The idea that the daughter spending more time with her father would be upsetting to the child prior to a relocation betrays a recognition that the relocation, and not the bond with the father, is the source of emotional jeopardy to the child. The argument reconstituted the position she took in the pre-litigation text messages with Aamir of September 3 and 4, 2020, in which she refused to allow Aamir access to their daughter until she found out from her lawyers whether the relocation process in Ontario “as this is where [the daughter] is,” and until a court order established his level of access.
31The subtext of the request for a stay is similar to the solipsism undermining Kathleen’s thinking from the outset: Aamir and their daughter should not get too attached to each other, in case the court allows the relocation. Or: If Kathleen’s life is on hold, then so should theirs.
32I cannot conclude that a stay of expanded parenting time for Aamir could cause irreparable harm to child or to either of the parties. Given this fact, the balance of convenience favours expansion of Aamir’s parenting time to parity as soon as practicable. The request for a stay is therefore denied. The real issues are the choice of parenting schedule, and the timing of implementation.
33Both parties referred to the Parenting Plan Guide published by the Association of Family and Conciliation Courts. The guide describes a 2-2-3 schedule as the appropriate arrangement for a child age three to five. Kathleen’s counsel points out that this assumes a child already accustomed to equal parenting, and that a phased-in approach is appropriate in the best interests of the child.
34There is little guidance in the case law about specific parenting schedules. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.2 simply allows the court to allocate parenting time in accordance with a schedule. Counsel for Aamir referred to the case law favouring presumption of equal time, and Kathleen’s counsel referred to other case law applying the “maximum contact principle” from the child’s perspective of avoiding sharp transitions. As I stated in the second sentence of my trial reasons, the daughter is well-adjusted despite the divorce and despite an initial history of very limited time with her father. There is no evidence of the fragility of some children in these cases who exhibit behavioral deficits resulting from marital breakup of the parents. I nevertheless agree that there is no reason to impose any form of undue stress on the child by transforming the current restrictive 23-77 split (as described by Kathleen, in her position at trial regarding the words “vast majority”) into a 50-50 split. It is a transition that is easily managed.
35In my view, Aamir’s wedding at the end of May provides a fortuitous moment to introduce a new routine, as it is often the case when a parent of a young child remarries. For the little girl, her father’s wedding will be an exciting time. There will be family and friends. The wedding celebrations will be an emotional correlative that ties in the celebrations with a new routine with her father. Despite the animosity between the parties, it is also a time when their daughter will need Kathleen. Kathleen’s preparation of her daughter for the excitement of the wedding week will also be an opportunity for the mother to process this important time in her daughter’s life.
36I will therefore make a hybrid parenting schedule order combining the two schedules by adopting an accelerated reworking of Kathleen’s proposal for the period up to May 27, 2023. From May 27 to June 4, 2023, the schedule is to be determined in accordance with the daughter’s presence at the wedding events, to which Kathleen has agreed. After June 4, 2023, Aamir’s 2-2-3 schedule will become the regular schedule.
37On the issue of holiday schedules, the parties were also able to agree. Kathleen agreed to the schedule proposed by Aamir, provided Aamir agreed to the schedule regarding the holiday travel to Ireland that I had ordered. Given that the scheduling of the Ireland holidays will depend on factors that are hard to slot into the regular schedule and the holiday schedule, I will order that those intervals can be superimposed on the regular and holiday schedules without Kathleen having to provide make-up time. During the hearing, I canvassed this with Aamir’s counsel and he indicated that his client would not seek make-up time for the Ireland trips.
38Kathleen will therefore be permitted to travel with the child to Ireland up to three times a year, for blocks of up to 10 days during the winter, 14 days during the summer, and up to 7 days during the spring. Kathleen will provide travel plans for Ireland 45 days prior to the date of departure, and Aamir will provide a notarized travel consent within 10 days of said date of departure. As stated above, these Ireland travel dates will be superimposed on the regular and holiday calendar and there shall be no make-up time for Aamir if his parenting time is affected.
39In all other respects, the parties shall abide by the schedule appended hereto as “Parenting Schedule,” appended to these supplementary reasons.
Support Submissions
40Counsel for the Applicant is hereby directed to serve and file written submissions regarding the support calculations of up to 10 pages, double-spaced, with a letter directing the submission to my attention, on or by 14 days following the release of this endorsement. Counsel for the Respondent shall provide his submissions in the same manner and following the same page count requirements, on or by 14 days after the filing of the Applicant’s support quantum submissions. In order to assist in the preparation of such submissions, counsel for Aamir is hereby directed forthwith to send Kathleen’s counsel a copy of Aamir’s 2022 income tax return, as well as the T4 and other income-related attachments thereto.
Akazaki, J. Released: May 4, 2023
Parenting Schedule (Appended)
(Substitute the name of the child for “the child” in the final order”)
Effective immediately and until May 26, 2023, Aamir shall have parenting time with the child as follows:
i. May 6, 2023, at 10:00 a.m. to May 7, 2023 at 4:00 p.m.; ii. May 9 from 4:30 p.m. to May 10, 2023, at 12:00 p.m.; iii. May 14, 2023, at 10.00am to May 15, 2023, at 12:00 p.m.; iv. May 17 from 4:30 p.m. to May 19, 2023, at 12:00 p.m.; and v. May 21, 2023, at 10.00am to May 23, 2023, at 12:00 p.m.
The child shall be permitted to attend all events for Aamir’s wedding. During that interval, the child will reside with Aamir as follows:
i. May 27, 2023 at 10:00 a.m. until May 27, 2023 at 9:00 p.m.; ii. May 29, 2023 at 9:00 a.m. until May 31, 2023 at 8 p.m.; iii. June 1, 2023 at 10:00 a.m. until June 2, 2023 at 10:00 a.m.; and iv. June 3, 2023 at 10:00 a.m. until June 4, 2023 at 8: p.m.
Starting June 4, 2023, the parties shall adhere to the following parenting schedule for the care of the child, unless the parties agree to exceptions in writing:
Regular Residential Schedule
a. The child will be: i. With Aamir from 7:00 p.m. on Sunday until Tuesday drop-off at school; ii. With Kathleen from Tuesday after school until Thursday drop-off at school; iii. With Aamir from Thursday after school until 7:00 p.m. on the Sunday beginning week 2; iv. With Kathleen from 7:00 p.m. on the Sunday until Tuesday drop-off at school; v. With Aamir from Tuesday of week 2 after school until Thursday drop-off at school; vi. With Kathleen from Thursday of week 2 after school until 7:00 p.m. on the following Sunday; and vii. If there is a long weekend, then the child’s parenting time will be extended by 24 hours with the parent with whom the child resides that weekend.
(During days when the child is not in school, exchanges will occur at 7:00 p.m.)
Holiday Schedule
a. If the child would not ordinarily be with a parent on his or her birthday, then she shall be with a parent on his or her birthday from the evening before until 8:00 p.m. on the parent’s birthday; b. Regardless of the schedule, the non-resident parent shall have time with the child on her birthday for a minimum of two hours, the time to be arranged; c. The child will be with Aamir on Father’s Day from 9:00 a.m. until 8:00 p.m. and with Kathleen on Mother’s Day from 9:00 a.m. until 8:00 p.m.; d. Christmas Holiday Break: Commencing in 2023, the child shall be with Aamir in even numbered years, and Kathleen in odd numbered years, from December 24th at 6:00 p.m. to December 26th at 10:00 a.m. The non-resident parent may have a video call with the child on December 25th, with the time to be arranged. The rest of the winter break will be shared evenly by the parties; e. New Year’s Eve: Commencing in 2023, in even numbered years the child shall be with Kathleen from December 30th at 4:00 p.m. to January 1st at 12:00 p.m. and with Aamir from January 1st at 12:00 p.m. to January 2nd at 12:00 p.m., and in odd numbered years with Aamir from December 30th at 4:00 p.m. to January 1st at 12:00 p.m. and with Kathleen from January 1st at 12:00 p.m. to January 2nd at 12:00 p.m.; f. Halloween will alternate annually with the child being with Aamir in odd numbered years and Kathleen in even numbered years; g. The child shall celebrate British Bonfire Night with Aamir from November 5th at 4:00 p.m. to the next morning at 10:00 a.m.; h. The child will celebrate Eid with Aamir from the evening before until 8:00 p.m. on Eid.; i. The child will celebrate St. Patrick’s Day with Kathleen from the evening before until 8:00 p.m. on St. Patrick’s Day; j. In the Summer the child will have two non-consecutive week vacations with each of Aamir and Kathleen. If either Kathleen or Aamir want to take the child away for more than a week, a longer period may be discussed having regard to the child’s age and the appropriateness of a longer period without the other parent; and k. If either Aamir’s parents or Kathleen’s parents travel to Canada for a vacation to see the child, we will be flexible about allowing the child to have extra time with her grandparents.
Permission to Travel with the Child to Ireland
Subject to the following, the parents may not travel outside of Canada with the child unless the travelling parent obtains the consent in writing of the other parent:
a. Kathleen shall be entitled to travel to Ireland with the child up to 3 times per year – during the Winter Vacation (up to 10 days), during the summer vacation (up to 14 days) and/or during the March/April break (up to 7 days); b. Kathleen shall advise Aamir about any travel plans 45 days before any proposed travel and provide a full itinerary 15 days before. Aamir shall provide a notarized travel consent within 10 days of any travel; and c. provided Kathleen complies with the notice provision in “b” above, her entitlement to travel with the child shall take priority over the Regular Residential Schedule, which will resume the day after the child arrives back in Canada.
Timeliness
The parties shall be prompt in carrying out the transfer of custody. “Prompt” means no longer than fifteen minutes after the appointed time.