Court File and Parties
COURT FILE NO.: FS-23-00034582-0000 DATE: 2023-05-29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: T.R., Applicant – and – R.G., Respondent
Counsel: Sheila Gibb and Hilary Ingle, lawyers for the Applicant Harold Niman and Meysa Maleki, lawyers for the Respondent
HEARD: May 16, 2023
Reasons for Decision
DIAMOND J.:
Overview
[1] In my Endorsement dated May 9, 2023, I ruled upon the respondent’s request for production of various clinical notes and records. That decision was rendered in advance of two additional motions scheduled to proceed before me on May 16, 2023 on an urgent basis.
[2] One of those motions (the respondent’s motion seeking a section 30 assessment) was ultimately resolved by the parties subject to this Court’s disposition of the costs of that motion. The terms of the agreement between the parties settling the section 30 assessment are set out at paragraphs 1-6 of the draft Order uploaded to CaseLines on the morning of May 16, 2023.
[3] The balance of the May 16, 2023 attendance dealt with the applicant’s motion seeking a temporary and without prejudice parenting schedule, and specifically a 2-2-3 parenting schedule (with an interim “step up” schedule) commencing July 31, 2023.
[4] The relief was opposed by the respondent, who requested a longer “step-up” interim parenting schedule cumulating in the applicant having parenting time each Wednesday night and every other weekend from Friday to Sunday.
[5] At the conclusion of argument of the applicant’s motion, I took my decision under reserve.
Summary of Relevant Facts
[6] The applicant and the respondent met in Toronto in 2013. After moving in together, they were married on August 15, 2015.
[7] The parties have one daughter together (“N.”) born on November 24, 2017. N. is currently five years old attending full day senior kindergarten.
[8] The applicant was originally employed as a litigation lawyer in California, but subsequently became a medical doctor and is presently employed as an emergency room physician at various hospitals. The respondent is a stay-at-home mother with occasional work as an interior designer.
[9] In the summer of 2020, the parties and N. moved to Burlington, Ontario. They then moved back to Toronto in the summer of 2022.
[10] The applicant was born a biological male. In or around June 2022, the applicant came out to the respondent as a transgender woman.
[11] The applicant claims the parties separated in early December 2022, but the respondent takes the position that the parties in fact separated several months earlier. I need not decide that issue on this motion.
[12] The parties have continued to reside together in the Toronto matrimonial home. Both the applicant and the respondent take the position that their current living arrangements are quite uncomfortable, and will likely become untenable in the near future.
[13] The applicant wishes to move out of the matrimonial home. The parties have tried to agree upon a parenting schedule in advance of the applicant relocating to a new residence, but their efforts have proven unsuccessful (hence the applicant’s motion).
[14] During argument of the applicant’s motion, the Court’s expressed concern with the applicant’s position that no alternative residence had been secured as of yet, and the lack of such information could potentially impact the Court’s decision as to whether and how to implement an interim and without prejudice parenting schedule. Counsel for the applicant confirmed that any parenting schedule to be imposed by this Court would be conditional upon the applicant’s undertaking to secure a new residence containing at least two bedrooms and situated within a two-kilometer radius of the matrimonial home (and otherwise meeting N.’s general needs). As such, any parenting schedule to be ordered by this Court will include those specific terms.
[15] The evidence before this Court is that the applicant is spending at least two nights a week out of the matrimonial home (at a location unknown to the respondent). No doubt the current climate in the matrimonial home contributes to this reality. That said, the parties have implemented a makeshift parenting schedule for the last few months where the applicant has enjoyed parenting time with N. one morning per week, one evening per week, and one afternoon/evening on the weekend.
[16] Recently, the respondent agreed to N. having overnight parenting time with the applicant in the matrimonial home (i.e. the respondent agreed to vacate the matrimonial home and spend the night with her parents). The applicant has enjoyed the overnight parenting time and indicated that it went well.
N.
[17] The evidentiary record filed on this interim motion is somewhat lengthy, with sworn affidavits from both parties and various family members. Both parties properly acknowledge that N.’s best interests are what should drive this Court’s disposition of the applicant’s motion.
[18] The parties are understandably experiencing some stress dealing with the fallout of both the applicant’s gender transition, and their separation. However, this Court’s focus is squarely upon N., and what parenting schedule would most benefit her and her alone. As such, it is important to concentrate upon N.’s lens, and not how each party may see N. differently.
[19] N. has now been told about the applicant’s gender transition and the parties’ separation. These are two very significant changes in N.’s life. These recent developments follow several prior changes including the parties’ relocation from Burlington to Toronto and N. attending a new school.
[20] Both parties agree that N. is bright, happy and creative. N. loves both her parents, but the evidentiary record shows that the respondent was and remains N.’s primary caregiver.
[21] As an emergency room physician, the applicant is employed in hospitals as far as Coburg, Ontario. The COVID-19 pandemic regrettably served to create more physical distance between the applicant and N., despite the applicant’s best efforts to curb that distance as a loving parent.
[22] The parties’ respective recitations of the events giving rise to their separation, and their personal experience and observations about N., greatly differ in many areas. From this Court’s perspective, one particular area causes some concern. The respondent takes the position that N. is a highly sensitive child who displays symptoms of anxiety. The applicant takes a different, and in some ways opposite, view whereby she characterizes the respondent as someone who “paints N. as an anxious child who struggles with change”.
[23] The applicant states that such conclusions on the part of the respondent do not conform with the applicant’s observations. As set out in paragraph 24 of the applicant’s factum:
“R.G. specifically asserts that the ongoing cohabitation is ‘making N. anxious’. Further, as R.G. and her mother are quick to point out, N. has experienced a lot of change over the last couple of years: moving back to Toronto, starting school, her father’s transition, etc. Any number or all of these factors could be contributing to N.’s worry, and none of them have anything to do with parenting time with her father.”
[24] With respect, any parenting time with the applicant will pose yet another change to N.’s life, as she will be relocating once again (even if less than 2 kilometers away) after having recently readjusted to a new home, new city and new school. While that in and of itself certainly does not act as a bar to parenting time with the applicant, the Court must be mindful of N.’s needs and emotions in light of the situation in which she now finds herself.
[25] Further, there is independent evidence before this Court that N. does suffer from anxiety, and in this Court’s view, the applicant’s attempts to downplay such symptoms are likely based upon either (a) the applicant not being N.’s primary caregiver and perhaps not being in as good a position to observe such symptoms as the respondent, or (b) the applicant not wishing to accept N.’s symptoms as having been contributed to by the applicant’s gender transition and/or the parties’ separation.
[26] There are two sets of clinical notes and records dealing with N. before this Court. The first set is from her pediatrician, Dr. Alisa Rachlis (“Dr. Rachlis”). The second set is from Felica Melo (“Melo”), who provided counselling services to the applicant, the respondent and N. over a five month period between June-October, 2022.
[27] In Dr. Rachlis’ note dated April 13, 2022 (which is after the parties relocated to Toronto but before the applicant came out as a transgender woman), Dr. Rachlis noted “anxiety” in her impressions of N..
[28] On April 17, 2022, Dr. Rachlis referred N. to the clinical director physician at the Family Psychology Center. N. was described as a lovely four year old girl with “lots of anxiety and worries for her age”. Dr. Rachlis noted that the “patient and/or guardian) is aware of the clinical circumstances prompting this referral”. It is unclear whether Dr. Rachlis was referring solely to the respondent, or both N.’s parents, although it appears that the respondent was the one who attended Dr. Rachlis’ office with N. that day.
[29] On June 30, 2022 (a session which both parties attended with N.), Melo noted that N. “wishes not to feel so scared” and that N. has a hard time getting to bed “often crying until throwing up”. Melo further observed N. “chewing her hair when connecting” in that session, and discussed coping strategies with the parties for N.
[30] In at least one of the applicant’s affidavits, the applicant denied ever seeing N. chew her hair. It is unclear how or why the applicant gave sworn evidence that the applicant never observed N. chewing her hair when Melo both confirmed it happening, and explicitly addressed alternative coping scales for N., all in the applicant’s presence.
[31] Melo’s note dated August 2, 2022 (again, a session which both parties attended with N.) provides as follows:
“Today’s session began with N. and her parents attending the session. She began sharing her worries surrounding moving and uncertainty. Mother reported that her family is unsure as to where they will be moving and that there will be many moves prior to getting their final next home. N. drew as she discussed the parts of the home she would miss most such as her garden and began sharing the significance of the home for her.
Today the clinic introduced parents and the means to ANTS (Automatic Negative Thoughts) as a way for parents to help N. recognize her negative thoughts and to discuss them in a way that feels less intimidating. N. was very attentive to this and was excited to discuss the ANTS.”
[32] In an email dated September 12, 2022, N.’s teacher refers to having noticed “some anxiety with N. transitioning to school”.
[33] Whether N.’s anxiety levels are as described by the respondent, this Court finds that N. is nevertheless suffering from anxiety to some degree. As the applicant stated, the continuous changes in N.’s young life are very likely contributing to N.’s symptoms.
[34] There is evidence before this Court that N. did ultimately adjust well to her relocation to Toronto and attendance at a new school. However, on the heels of that adjustment stand even bigger changes as described above.
[35] This Court must be sensitive to N.’s needs in fashioning the appropriate parenting schedule going forward so as to minimize any further adverse impact upon N.’s well-being and mental health.
Decision
[36] This Court is being asked to make an interim and without prejudice parenting schedule. Section 16(1) of the Divorce Act, R.S.C. 1985, c. 3 requires this Court to “take into consideration only the best interests” of N.
[37] While the default approach does not create a schedule with equal parenting time, it is clear that generous and meaningful parenting time with each parent should be encouraged to the extent possible and consistent with the child’s best interests.
[38] In V.K. v. T.S. 2011 ONSC 4305, Justice Chappell set out an extensive and helpful view of the legal principles to be considered and applied by the Court when fashioning an Order for parenting time:
“As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act. Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) of the Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.
Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is ‘the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.’ The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.
Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.”
[39] It is certainly not in N.’s best interests for her to have a limited relationship with the applicant moving forward. However, mindful of the respondent having been and remaining N.’s primary caregiver, and the current uncertainty surrounding the applicant’s new residence and fall work schedule, an immediate move to an equal parenting schedule does not presently serve N.’s best interests given her temperament.
[40] There is already quite a lot on N.’s proverbial plate. N. will now need to adjust to a lot of additional changes, and while equal parenting time could ultimately be ordered at trial (or perhaps another motion after the section 30 assessment is completed), I am persuaded that it is in N.’s best interests for the applicant to have parenting time on an interim basis with N. on 5 out of every 14 days, with a transition plan between now and when the new parenting schedule will commence to allow N. an opportunity to become accustomed to having consecutive overnight time with the applicant and adjust to be away from the respondent.
[41] Ideally, and after an appropriate step-up parenting schedule is completed (to assist N. with more changes on the way to a 5 out of 14 schedule), this Court would order the applicant to have parenting time with N. every Wednesday after school/camp to Thursday morning drop-off, and every other weekend from Friday after school/camp to Sunday at 5:00 pm. However, as discussed during the hearing of the applicant’s motions the applicant does not yet have a work schedule for the fall of 2023.
[42] Accordingly, I am making the following order on an interim and without prejudice basis:
a) The applicant shall have until September 1, 2023 to secure an alternative two-bedroom residence within a two-kilometer radius of the matrimonial home.
b) Subject to the applicant’s fall work schedule, the applicant shall have parenting time with N. pursuant to a 5 out of 14 parenting schedule commencing on September 4, 2023. While the specifics of the Court’s proposed parenting time are set out above, the parties may adjust same if needed to accommodate their personal schedules.
c) Until September 4, 2023, the following “step-up” parenting schedule shall be implemented:
- From now until July 16, 2023, N. shall be in the applicant’s care every Tuesday from pick-up after school/camp until 7:30 pm (ie, N.’s bedtime), and every Saturday from 10:00 am to Sunday at 12:00 pm.
- From July 17, 2023 until September 3, 2023, N. shall be in the applicant’s care every Tuesday from pick-up after school/camp until Wednesday morning drop-off, and every Saturday from 10:00 am to Sunday at 5:00 pm.
d) Until the applicant secures a new residence, the applicant’s parenting time shall take place at the matrimonial home and the respondent shall not be present during the applicant’s parenting time.
e) Either party may return this motion to the Court upon the delivery of the section 30 assessment (inclusive of the contents of the assessor’s file).
Costs
[43] As stated, the costs of the resolution of the respondent’s section 30 assessment motion are to be addressed as part of the costs of both motions. If the parties cannot agree upon the costs of one or both motions, they may serve and file written costs submissions (totaling no more than five pages including a Bill of Costs) pursuant to the following fixed schedule:
a) the respondent’s written costs submissions to be served and filed within 10 business days of the release of these Reasons for Decision; and
b) the applicant’s responding written costs submissions to be served and filed within 10 business days within the receipt of the respondent’s written costs submissions.