Court File No. FS-20-1492-1 SUPERIOR COURT OF JUSTICE FAMILY COURT
B E T W E E N:
CHRISTOPHER JOHNSTON Applicant
- and -
JOSEE BIGRAS Respondent
R E A S O N S F O R D E C I S I O N
BEFORE THE HONOURABLE JUSTICE P. ROGER on May 23, 2023, at OTTAWA, Ontario
APPEARANCES:
M. D. Blais Counsel for the Applicant M. M. Nylund Counsel for the Respondent
SUPERIOR COURT OF JUSTICE FAMILY COURT
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR DECISION 1
Legend [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled Phonetically.
Transcript Ordered:. . . . . . . . . . . . . June 19, 2023 Transcript Completed:. . . . . . . . . . . . June 12, 2023 Transcript Approved by Roger, J.:. . . . . . . June 19, 2023 Ordering Party Notified: . . . . . . . . . . June 20, 2023
TUESDAY, MAY 23, 2023
R E A S O N S F O R D E C I S I O N
Transcribed verbatim as spoken on the record for purposes of judicial review and can be checked for accuracy by listening to the Liberty DCR audio recording 0411_MR58_20230523_093356 10_ROGERP.dcr
ROGER, J. (Orally):
Background facts
The parties were together for approximately nine years. They separated in January 2017. Their ongoing interactions are governed by a separation agreement dated November 24, 2017, a partially accepted offer to settle dated October 19, 2022, and a consent order dated May 16, 2023, which consent order was agreed to by the parties just prior to this trial starting on May 16th, 2023.
The applicant works as a financial advisor and the respondent as a teacher. Each is a loving and capable parent. Each does his or her best for their children.
Together they have three daughters; the eldest is eleven, the middle daughter is nine, and the youngest is seven.
The applicant remarried. His wife works for the federal government and is now on maternity leave. She plans to return to work in September 2023.
The applicant and his wife have a 16-month-old daughter. The parties’ three daughters and the applicant’s young daughter have a close and loving relationship.
The respondent is in a more recent relationship. Both the applicant’s wife and the respondent’s spouse are positively involved with the children.
The parties share joint decision-making responsibility for the children since separation. As well, since separation, parenting time has been shared equally on a 2-2-5-5 schedule. The children are with the applicant every Monday to Wednesday, with the respondent every Wednesday to Friday, and the parties alternate caring for the children from Friday to Monday.
The children are described by all who testified as intelligent, loving, and healthy little girls. They do well in school, have friends, and have no special needs. The eldest, since about two years, experiences some issues with anxiety and self-confidence, and has been followed by a social worker.
Issues
The parties settled some issues just prior to trial. This is reflected in the consent order of May 16, 2023, which provides that the issues for trial are:
- What is the commencement date for the alternative weekly schedule?
- Whether there should be notice of each party’s understanding of the Christmas school holiday by September 1st of each year?
- What should be the March break schedule?
Analysis
The parties were divorced. Consequently, the Divorce Act is applicable. Their separation agreement of November 24th, 2017 was never made an order and the parties agree that the applicant is not required to initially establish a material change of circumstances for the Court to address the parties parenting schedule.
Section 16 of the Divorce Act provides that the Court shall take into consideration only the best interests of the child in making a parenting or a contact order. Primary consideration shall be given to the children’s physical, emotional and psychological safety, security and well-being when considering the circumstances of the child, including the factors enumerated at Section 16(3) of the Divorce Act.
The father argues that this is a high conflict case and that over the last few years the parties have experienced a significant amount of conflict resulting from their required frequent interactions. He argues that the 2-2-5-5 parenting schedule and the occasional uncertainty surrounding holidays cause unpleasant and difficult communications between the parties, which he says negatively impact the children who occasionally feel stuck in the middle of their parents’ disagreements.
The father suggests that a week-about schedule would limit the parties’ interactions, which would limit conflict. He also suggests that more precision about the holidays and advance notice of the holiday schedule would additionally assist to limit conflict.
The mother argues that the current parenting schedule works well for the children, and that a week-about schedule is not in their best interests. She argues that this is not a high conflict matter. She says that the parties do not argue, rather they negotiate when one of them seeks an exception to the agreement.
She agrees that this can occasionally make the children feel caught in the middle of their parents’ issues but argues that the solution lies not in changing the parenting schedule, but in following the agreed upon schedule.
Parenting schedule
I deal firstly with the question of when should an alternating weekly schedule start. Considering the evidence, I find that what is in the best interests of the children is that an alternating weekly schedule not start at this time. I arrive at this conclusion for the following reasons.
When I consider the factors outlined at Sections 16(3) of the Divorce Act and the evidence, I find that some are neutral, but that on balance these factors currently favour the 2-2-5-5 schedule, at least during the children’s school year.
Having more frequent contact with their parents during the school year better meets the children’s current needs.
The 2-2-5-5 schedule allows the children to be with both parents during school weeks. This is in the best interests of the children because both parents help differently with the children’s homework. The 2-2-5-5 parenting schedule better allows the children to get help from both parents during school weeks. This better assists the children with their homework and school studies, and as well with any stress and anxiety related to school, including homework and school testing.
The children are close to both parents and enjoy an excellent relationship with both parents.
However, at this time, they communicate slightly more easily with their mother, particularly the oldest daughter who recently experienced some issues with anxiety. Frequently seeing their mother during more stressful periods, such as during school, will be better for the children’s need for stability.
The parties live near one another and near the children’s school. It is therefore easy for the children to transition from home to home, and to go to school from either of the parties’ home.
I was provided no evidence that the long standing 2-2-5-5 parenting schedule does not work for the children. No one testified that the children find it – find this schedule difficult or that the children have complained about the existing schedule. To the contrary, both parties testified that the children have expressed some concern about changing the schedule.
The 2-2-5-5 parenting schedule also facilitates frequent contacts between the children and their 16-month-old sister, at least during the school year.
Both parties are equally willing to support the development and maintenance of the children’s relationship with the other party.
The 2-2-5-5- parenting schedule represents the status quo and, as indicated above, there is little evidence that it is not currently working. That the children occasionally feel that they are stuck in the middle of their parents’ issues would probably not be assisted by a change to a week-about schedule because items could still be forgotten and, more importantly, because most issues between the parties arise not so much from the parenting schedule, but more so from either parent seeking some sort of change or modification to the existing schedule.
In that regard, this case is not a high conflict case. The parents have been able to resolve most of their issues. Indeed, the parents are usually able to communicate and to find solution for most of their problems.
Absent from most typical high conflict cases are a high level of conflict and high level of distrust, so frequently observed in such cases.
Changing to a week-about schedule will disrupt a long-standing schedule that is working. Changing to a week-about risks stressing out the girls about how this will impact their schoolwork, while not significantly impacting or improving the parties’ communications.
Rather, what will more probably be helpful for the parties is for them to follow their agreement and Court orders. Agreed upon changes to their Christmas and March break schedule will also have more of an impact at reducing the occasional tension between the parties.
To the extent that the children’s views and preferences can be ascertained, these favour the status quo. Indeed, the daughters have generally expressed to both parents some concern about changing the schedule. Attributing minimal weight to this factor, because the evidence if from others, it nonetheless favours the status quo.
As indicated initially, some of the other factors are fairly neutral, but the mother, as a francophone schoolteacher, is slightly more able to assist with the girls’ schoolwork, such that the children being with both parents during school weeks is currently in their best interests.
This is particularly apparent when I consider the recent unexplained history of anxiety experienced by their eldest daughter.
Moreover, the schedule for the summer 2023 has already been agreed upon. Starting a week-about parenting schedule in September or shortly before near or at the same time as the children will be returning to school, to a new school for the eldest who will be going into Grade 7, is, at best, risky. Similarly, currently, the children need both parents during the school weeks, and it is not in their best interests to change the schedule either before or during this upcoming school year.
Starting in the summer 2024, the parties have agreed to an alternating weekly schedule during the summers. Whether or not that should continue in September 2024 or after, I am not able to assess on the evidence before me. I have no way of knowing how the children will be doing in more than a year from now. By then, the girls will be older, and the parties should carefully listen to their daughter’s views and preferences, and if it’s required, or if they cannot agree, jointly obtain a voice of the children’s report, and do so privately if required.
The facts of this case are different from those of the cases relied upon by the applicant. For example, the mentioned decision of B.C. v. A.G.G. 2021 ONSC 5019 involved what was a high conflict case. As well, in that decision, the children’s need for stability and consistency was assessed differently. Here, there is little evidence that the need for stability would require a schedule involving slightly less exchanges. The evidence here is rather that it is easy for the girls to transition from home to home. The homes are near one another, as is their school, and as is the new school for the eldest starting in September. It would be conjecture, on the facts of this case, to assume that the need for stability would favour a week-about.
A week-about schedule could reduce required communications between the parents, which the parents might appreciate. However, it is a leap, on the evidence presented, to assume that this would reduce any anxiety or otherwise assist the girls.
On balance, what is in the girls’ best interests currently is to continue with the 2-2-5-5 parenting schedule during the school year. This can be reviewed by the parties in the future, nearer or during the summer 2024, when the parties agreed to have an alternating weekly schedule during the summers.
If at some point in the future the parties agree to a week-about schedule, they should consider eliminating paragraph 17 of the order of May 16, 2023, as 10 days might be too short a period and cause difficulties for the parties. The parties should then address the possibility of two or three consecutive weeks occurring at Christmas or March break, and address this by switching a week as required either at some point before or after the scheduled event.
Notice of Christmas school holiday
As per their separation agreement and as per the order of May 16th, 2023, the parties have agreed to equally share the children’s Christmas school breaks. As well, during the trial, the parties agreed that a fixed transition date would be preferable. In this regard, the applicant’s proposal of dividing the Christmas break on the eighth day was agreed to by the respondent.
I agree with the respondent that a set Christmas schedule reduces the need for an early notice of each party’s understanding of the Christmas break. Nonetheless, some early notice seems in the best interests of the children as early notice will facilitate any required negotiation or resolution between the parties. This could be important to facilitate the purchase of any required airplane tickets, likely for six or seven people for the respondent when visiting his wife’s parents in Winnipeg.
I therefore agree that a notice by September 1 of each year is reasonable, not too onerous, and in the children’s best interests as it will confirm the schedule at some time early enough while allowing for any required discussion to occur at an early enough time to purchase or make arrangements or purchase required plane tickets.
March break
As the trial progressed, March break became less of an issue and the parties eventually agreed that given the age of the children next March, March break should alternate each year from 4:00 p.m. on the Friday or last day of school, to 4:00 p.m. on the Monday or first day of school. This is in the best interests of the children considering their age and need for stability.
Conclusion
Consequently, the following is ordered:
The terms set out in the separation agreement of November 24, 2017 (the agreement), shall continue in full force and effect subject to the partial final order of May 16, 2023, and subject to the changes set out below. I note that this is a term on consent as both parties were seeking it in their proposed draft order.
An alternating weekly schedule shall not start at this time. The parties shall continue to have equal parenting time, and during the existing school year and upcoming 2023-2024 school year, subject to Christmas and March break, shall continue to have equal parenting time as per the existing 2-2-5-5 parenting schedule. This may be reviewed prior to the start of the 2024-2025 school year, and if the parties cannot agree, a voice of the children’s report should be obtained.
In regard to the sharing of the Christmas and March school breaks, paragraph 17 of the partial final order of May 16, 2023 is hereby revoked.
On consent, paragraph 14 of the partial final order of May 16, 2023 is modified to read as follows:
The parties shall share the children’s Christmas school break which begins when school ends on the last day of school before the Christmas school holidays and ends on the first day of school in January after the school break. The Christmas school break shall be divided between the parties in two parts. The first part of the break shall end at 4:00 p.m. on the eighth day of Christmas school break (which shall always be the transition day) at which time the children shall transition to the care of the other parent for the remainder of the Christmas school break. In even numbered years, the children will be with the applicant for the first part and with the respondent for the second part, and in odd numbered years, the children shall be with the respondent for the first part and with the applicant during the second part.
Both parties shall confirm their understanding of the Christmas parenting schedule in writing on or before September 1st of each year commencing in 2023.
On consent, the parties shall alternate the March break each year from 4:00 p.m. on the Friday or last day of school, until the children’s return to school on the Monday or first day of school after the March break, and the children will be with the applicant on even numbered years, and with the respondent in odd numbered years.
On consent, for purposes of calculating time with a parent during Christmas and March breaks, the parties shall count from 4:00 p.m. on the Friday or last day of school to 4:00 p.m. to the Monday or first day of school.
If either parent is travelling with the children during March break, he or she shall give the other parent written notice of the travel plans by January 31st.
There shall be no costs for the trial of this matter.
... END OF EXCERPTS OF PROCEEDINGS
FORM 3
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Christopher Johnston v. Josee Bigras in the Ontario Court of Justice, held at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411_MR58_20230523_093356 10_ROGERP.dcr which has been certified by Katya Kukchanka in Form 1.
June 20, 2023 Date Linda A. Lebeau (ACT #8097321162) Rockland, Ontario (Canada) Authorized Court Transcriptionist (ACT) Secretary
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Name of Judicial Official: Roger, J. Date submitted ( mm/dd/yyyy ): 06/12/23 In the matter of: Johnston v. Bigras - May. 23. 23 Transcript ordered by: Counsel Date transcript ordered (mm/dd/yyy): 05/24/23 The attached transcript(s) submitted for judicial approval is/are from the: Superior Court Ontario Court The transcript(s) contains: Reasons for Judgment Reasons for Sentence Charge to the Jury Ruling(s) Number of rulings: Proceeding Type: Civil Family Criminal Event Type: Continuation of Hearing Appeal Court Timelines as per the CTSP Manual Return of the transcript is requested by (mm/dd/yyyy): 06/15/23
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