Court File and Parties

COURT FILE NO.: FS-23-12-00 DATE: 2023-06-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.B. Applicant

Counsel for Applicant: Beth Allison White

- and -

L.B. Respondent

Counsel for Respondent: Morgan Fletcher

HEARD: June 12, 2023, via ZOOM at Kenora, Ontario

BEFORE: Mr. Justice W. D. Newton

Decision On Motion

Overview

[1] There are two motions before me. The father [^1] brings a motion for temporary joint decision making and shared parenting. The mother brings a motion for sole decision making and primary parenting with parenting time for the father limited to three hours every Wednesday and alternate Saturday and Sunday daytime parenting. She also seeks an order for the sale of the matrimonial home.

The Facts

[2] The parties began living together in August 2012 and were married on August 30, 2014. They have four children: a son, 6; twin sons, 4; and a daughter, 2.

[3] The parties separated in October 2002 with the mother moving out of the matrimonial home on November 9, 2002.

[4] Both parents are employed.

[5] Currently, parenting is shared on a 2/2/5/5 schedule although there is a dispute about whether this was agreed or imposed unilaterally.

[6] The mother announced her attention by correspondence from counsel dated May 17, 2023, to care for the children full-time for July and August as she has that time off work and advised that she will be determining the children’s parenting schedule beginning June 30, 2023, for the summer months and/or until a motion with regard to interim parenting time can be heard. Her counsel offered dates for that motion in August and September.

[7] That prompted the motion by the father which was shortly followed by a motion from the mother.

[8] The mother filed a 25 page, 101 paragraph, affidavit with over 40 exhibits, many of which were copies of text messages and other communications between the parties. Because of her maternity leaves, which combined total about 3 ½ years, she says that she was the primary caregiver. She claims that the father has mental health and substance abuse issues and cites, as examples, her version of interactions with the father. She relies on what she describes as violence or abusive behaviour to the children and an incident of the violence to her.

[9] She also deposes that the father unilaterally imposed a 2/2/3 parenting schedule and then imposed a 2/2/5/5. The message from the father on February 17, 2023, reads:

I’ve added the 2 – 2 – 5 – 5 schedule continuing on through March and April. This frequency appears to be best for our children and us as parents as well, so it’s my recommendation to continue as such until further notice.

If you’d like to change to a 7/7 schedule please let me know at your earliest opportunity but I feel that is too long for her children not see the other parent. it’s also a long stretch of time for us to as parents to not see our children.

[10] The father has filed affidavits denying mental health issues. An exhibit is a letter from his doctor dated May 5, 2023, stating that there never been any mental health concerns until the father’s “grief reaction” to his separation. Another exhibit is a letter confirming that the father had 10 counselling sessions from November 2022 to February 2023 regarding the marital breakup. CAS documents produced disclose no concern. The father denies any violence and deposes that the incident that the wife reports was a fall in a vehicle when he touched her foot and she slipped.

[11] The father counsel points to text messages between the parties that suggest the parenting schedule was not imposed but agreed upon.

[12] There is a text message from the mother dated December 29 enclosing a calendar. While I cannot read what is written on the calendar the message from the mother is: “Please let me know what you think of this schedule for January.”

[13] The reply from the father is: “We just finished talking about five days being too long as a single parent did we not discuss short turnovers; I must’ve misinterpreted?”

[14] The mother replied: “Yes, we talked about a 2 – 2 – 3 schedule. We also talked about the 2 – 2 – 5 schedule. I thought we agreed on the 2 – 2 – 5. I like having the kids for a five day stretch and I thought you said you do to?”

[15] The father replied: “2 – 2 – 3 please. 5 days is exhausting doing this alone, by that time you are well out of groceries and I don’t plan on taking four kids to the grocery store at one time.”

[16] Records from collateral sources such as daycare and school indicate that the children are doing well.

Positions of the Parties

[17] Counsel for the father notes that the parties have been in a shared parenting schedule since December 2022.

[18] Counsel for the father reviewed the facts from a “best interests” perspective.

[19] With respect to the children’s needs she noted that the children vary in age from 2 to 6 years old and that until separation, they had lived in the matrimonial home for their entire lives and continue to live there during the father’s parenting time. The children attend school and/or daycare on a regular basis and have since the parties separated. No concerns were expressed from school or daycare.

[20] Counsel for the father submits that children have close bonds with both parents and that the father is involved in all aspects of the children’s lives, including extracurricular activities such as skating and soccer.

[21] As to the willingness to support the relationship, the shared parenting arrangement acknowledges the importance that the mother has in the children’s lives. At the case conference in April 2023, the parties consented to a nighttime telephone call at 6:30 PM between the parent without parenting time and the children and the father deposed that he is doing everything possible to facilitate those calls. His motion was brought only because the mother was threatening to unilaterally limit his parenting time.

[22] The history of care demonstrates that this case is appropriate for shared parenting and decision-making responsibilities. This is what has been happening since November 2022.

[23] Counsel for the father submits that each party has the demonstrated ability to care for the children. And, as demonstrated, for the most part, the parents are able to communicate effectively with respect to child -related matters.

[24] Counsel for the father submits that the status quo should not be interfered with on a temporary basis absent evidence that the status quo is harmful to the children.

[25] Counsel for the mother submits that the mother’s allegations as to the father’s mental health and substance abuse issues render him an unfit parent and that the father has had little role in parenting pre-separation. She describes the husband’s behaviour as “gas lighting” and submits that the best interests of the children are that the mother be the sole decision-maker and responsible for principal parenting.

The Law

[26] The Divorce Act provides as follows:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including;

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

(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;

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

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

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(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.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[27] Status quo parenting arrangements should not be disrupted at an interim stage in the absence of evidence that the status quo is harmful to the child or necessary to meet the children’s best interests. See for example Kimpton v. Kimpton, 2002 ONSC 2793 [^2], McEachern v. McEachern, 1994 ONSC 7379 [^3], F.I. v. S.P.P., 2010 ONCJ 473 [^4] and Grant v. Turgeon, 2000 ONSC 22565 [^5].

Analysis and Disposition

Decision Making and Parenting Time

[28] This is a motion for temporary orders regarding decision-making and parenting time. As such, the status quo is important.

[29] I am satisfied, having reviewed the text messages, that the father did not unilaterally impose a parenting schedule. I find that the parties did discuss a parenting schedule and that, initially, the mother preferred a 2/2/5/5 schedule and the father’s initial preference was a 2/2/3. After about a month, he went with the 2/2/5/5 schedule which was the mother’s preference. I see no convincing evidence that that this was done unilaterally as the mother alleges. Indeed, it was the mother’s unilateral action in stating that she would decide parenting time starting June 30 which prompted the father’s motion.

[30] I am not satisfied that any of the “best interests” factors favour a disruption of the status quo.

[31] I am satisfied that the children’s needs, and in particular the need for stability, are being satisfied by the shared parenting in place at present.

[32] I am satisfied that the children have strong relationships with each parent and that each parent is capable of caring for and meeting the needs of the children. Indeed, the history of care since November 2022 demonstrates that they can.

[33] Although some of the communication put before me demonstrates issues with communication, I am satisfied that with respect to parenting issues the parties can effectively communicate for that purpose.

[34] With respect to the allegations of violence and harm to the children I have reviewed the CAS records. No issues are noted. I find, as the CAS found, there are no concerns. With respect to the mother’s fall in the vehicle the parties disagree as to what caused the fall. I cannot make a determination as to what happened on affidavit evidence and do not make any finding. There is nothing to suggest that the safety of the children is compromised.

[35] Accordingly, the father’s motion is granted and the mother’s motion is denied. The parties shall have joint decision-making and shared parenting continuing on the current 2/2/5/5 schedule. Subject to the need for further submissions, the draft order submitted by the father shall issue.

Child Support

[36] What follows from the shared parenting, and this is not disputed, is that the father shall pay child support in the amount of $500.00 per month, being off-setting child support in accordance with the Federal Child Support Guidelines, based on the father’s annual income of $92,999.24 and the mother’s annual income of $69,904.21, commencing June 1, 2023 and continuing on the first day of each month that follows.

Sale of Matrimonial Home

[37] The parties agree that, before a sale is ordered, the father will have an opportunity to see if he can purchase the matrimonial home. The father is to arrange an appraisal within two weeks at a time when both parties can be present. Thereafter, he will have two weeks to determine whether he can obtain financing and purchase the mother’s interest in the property.

Costs

[38] If costs are sought, then the party seeking costs shall submit their costs submissions limited to three pages plus costs outline within 21 days with the other party responding within 14 days thereafter, again limited to three pages plus costs outline.

[39] If no cost submissions are received within 21 days, then costs will be deemed settled.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released June 14, 2023

Footnotes

[^1]: Non-specific identifiers will be used to protect the privacy of the parties and their children. [^2]: Kimpton v. Kimpton, 2002 ONSC 2793. [^3]: McEachern v. McEachern, 1994 ONSC 7379. [^4]: F.I. v. S.P.P., 2010 ONCJ 473. [^5]: Grant v. Turgeon, 2000 ONSC 22565.