COURT FILE NO.: FS-21-0162-00 DATE: 2023-07-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.J. Michael Cupello, for the Applicant Applicant

• and -

T.H. Christopher McInnis, for the Respondent Respondent

HEARD: July 6, 2023 at Thunder Bay, Ontario Acting Regional Senior Justice T. J. Nieckarz

Addendum to Trial Judgment re: Parenting Time

[1] I released my trial judgment on May 31, 2023. The Judgment deals with a few issues, but primarily the relocation of the children from Marathon to Espanola, ON. The Judgment approves the Respondent (Mother’s) relocation with the children to Espanola, ON.

[2] In the Reasons for Judgment, and at the request of the Applicant (Father), I did not determine parenting time. I gave the parties an opportunity to see if they could agree on parenting time. They have not. They appeared before me today by Zoom to make brief submissions. They filed their parenting plans prior to today. This is an Addendum to my Reasons for Trial Judgment located at J.J. v. T.H., 2023 ONSC 3294.

[3] The appropriate parenting time arrangements are difficult to determine in this situation because of the competing considerations such as:

a. The children are very young. Particularly with respect to A.J., her opportunity to spend time with her father and form a bond and attachment has been limited. Generally speaking, with younger children courts order shorter and more frequent parenting opportunities so that the children are not out of the care of a parent for any lengthy period of time.

b. The distance between Espanola and Marathon, combined with each party’s work schedule makes shorter, more frequent parenting time opportunities difficult. Winter road conditions, road closures (which happens often on the stretch of highway the parties must travel), work commitments, and childhood illness can scuttle planned parenting time.

[4] I was pleased to hear that despite their inability to reach terms of a parenting time order, the parties have significantly improved their communication with each other since the trial. This is an extremely positive step. Since the trial, the parties have adopted a more child focused approach to their communications with each other, and in scheduling and rescheduling parenting time. Such positive communication will be vital to navigating the inevitable challenges associated with long-distance parenting arrangements.

Regular Parenting Time:

[5] With respect to the issues in dispute, the primary issue is regular parenting time. The Father seeks a monthly schedule that has the children in his care for one week from Saturday to Saturday. The Father argues that this schedule will afford him meaningful parenting time, while accommodating exchanges on days when neither party is working. The children will not need to be on the road at night. It will result in minimal disruption to everyone.

[6] The Mother disagrees that this schedule is in the best interests of the children, primarily because it results in B.J. missing 32 days of school a year. As an educator, the Mother feels this is excessive. She notes that there will be the inevitable absences from school for illnesses also. The Mother notes that the Father did not put forward such a proposal or the evidence to support it at the trial. The Mother further argues that the Father’s evidence at trial was that the Mother’s then proposal of nine days’ parenting time every second month during the winter months resulted in too much missed time from school. His proposal results in a greater amount of missed school days.

[7] The Mother’s parenting plan provided for one, four-day period of parenting time each month, from Saturday at 12 p.m. until Tuesday at 4 p.m. with exchanges in Sault Ste. Marie. She argues that this plan minimizes the amount of school that is missed (two days a month) and minimizes the amount of time each party must take off work to facilitate the exchanges. The Father’s concern is that the first day and last day are largely consumed with travel, leaving little time to spend with the children or for them to settle into a routine at his home.

[8] At the hearing, and after hearing the Father’s concerns, the Mother was prepared to amend her proposal to:

a. Five days each month, if planned around a statutory holiday or PD day off school to minimize the amount of school missed. The exchange shall occur Saturday at noon in Sault Ste. Marie, with the children being returned to Sault Ste. Marie Wednesday at 4:00 p.m. (if the Monday is a holiday), or Friday at noon until Tuesday at 4:00 p.m. (if the Friday is a holiday).

b. Four days each month if the Father selects a weekend that is not attached to a PD Day or statutory holiday.

[9] Each party has valid concerns about the proposal of the other. Given the relocation of the children, there is no perfect solution. I find that the schedule that best addresses the interests of the children is a five day schedule each month. This will allow for meaningful time between the children and their father, and if arranged around a statutory holiday or PD Day, will still result in only two days of missed school each month for parenting time. The parties should work with B.J.’s teachers (and A.J.’s once she attends school) to ensure that schoolwork is attended to while absent. Particulars of the schedule will be set out below.

[10] The Father argues that if the parenting time is less than a full week, the exchange location should be Wawa, which requires the Mother to drive for approximately two hours longer than the current meeting point of Sault Ste. Marie, and for the Father to drive approximately two hours less. He argues this will give him greater parenting time.

[11] I did indicate in my decision that Sault Ste. Marie could continue to be the exchange point. The Mother is correct that a change of location was not argued at trial. Having said this, I note that it does result in the Father driving approximately 200 km round-trip further than the Mother. The impact on his parenting time is minimal but it does result in the Father doing a disproportionate share of the driving. While I am not going to require it as a term of the order given the lack of evidence, I would urge the parties to consider a more equitable meeting point (i.e. Pancake Bay/Bachewana Bay during the season when the gas station/location is open to facilitate exchanges). Otherwise, the meeting point shall be Sault Ste. Marie.

Holiday Parenting Time:

[12] For the most part the parties agree on holiday parenting time. There are two issues they do not agree on:

a. The parenting schedule for A.J. for summer 2023; and

b. March Break.

[13] For the summer of 2023, the Father seeks to have A.J. on the same 14-day rotating schedule as B.J. The Mother argues that given A.J. has just recently started weekend parenting time with the Father, the progression to a full 14-day period is too much. She argues that for this summer only, A.J. should be in the care of her father for seven of each 14-day rotation. She is prepared to do the extra driving to exchange A.J. in Marathon. She is content for both children to be on the same rotation for summer in 2024. I agree with the position of the Mother. A more gradual progression than that proposed by the Father is appropriate taking into consideration A.J.’s age and the parenting arrangements to date.

[14] With respect to how the summer rotation will progress, the parties suggest the following:

a. Mother: two-14-day rotations for the Father, followed by one additional week.

b. Father: one-21-day rotation and one 14-day rotation to avoid the necessity of an extra road trip.

[15] I agree with the position of the Father. The children will be spending a considerable amount of time on the highway as it is. The parties should endeavour to minimize the number of trips the children must take. The Mother’s proposal also may not always result in the Father having a preferential share of the summer holidays, which my order was premised on. As an aside, while the children are too young now, the parties should consider having one-five-week period during the summer months. I suggest this occur the summer following A.J.’s grade 1 year, but I leave this to the parties to determine based on their respective schedules and the interests of the children at that time.

[16] With respect to the March Break, I agree with the Mother that it should be alternated. The Mother’s position as a teacher gives her limited ability to take time off work during the school year for a winter/spring break with the children. If the Mother is not planning on travelling during the March Break, she should consider notifying the Father so that his five-day parenting time can occur while the children are not in school. She is not required to do this, but this will partially alleviate her concern with respect to missed school time.

Order:

[17] In light of the foregoing, and taking into consideration those items of the parenting plans proposed that the parties do consent to, it is ordered that the Father’s parenting time with the children, B.J. and A.J. shall be as follows:

Regular Parenting Time:

a. One weekend per month, consisting of five days as follows:

i. Unless the parties agree otherwise and provided there are PD Days or statutory/school holidays in a given month, parenting time shall be arranged to coincide with PD Days or statutory/school holidays to minimize the time the children are absent from school.

ii. If parenting time falls on a weekend with a Monday school or statutory holiday, or if there is no holiday, then parenting time shall commence at noon on Saturday and continue until 4:00 p.m. on Wednesday.

iii. If parenting time falls on a weekend with a Friday school or statutory holiday, then parenting time shall commence at noon on Friday and continue until 4:00 p.m. on Tuesday.

b. In January / February, to minimize the time the children and the parents spend on the highway in winter conditions, the Father shall have the option of having the children in his care from Saturday at 12:00 p.m. to Sunday at 12:00 p.m. of the following week instead of having two separate monthly periods of parenting time. To the extent possible, this shall be arranged around PD Days/Statutory holidays.

c. At all reasonable times when the Father is in the District of Sudbury, on 48 hours’ notice to the Mother.

d. Regular parenting time shall be suspended during the following months:

• March if the Father has the children for the March Break;
• July and August given the summer parenting schedule; and
• December given the Christmas parenting schedule.

e. The Father shall provide a minimum 14 days’ written notice of the weekends he wishes to schedule for his parenting time. [Note: Ideally the parties should consider reviewing the calendar at the beginning of the school year and tentatively select the weekends, which the Father will confirm 14 days’ in advance].

f. If the regular parenting time cannot be adhered to because of illness, weather conditions, road closures or otherwise, the Father shall be entitled to make-up time on 7 days’ notice to the Mother.

Holiday Parenting Time:

g. Unless the parties agree otherwise, the Father shall not select the Mother’s Day weekend for his parenting time, but shall be entitled to the Father’s Day weekend with the children.

h. The Father shall have the choice of Thanksgiving weekend each year.

i. The Father shall have the children in his care during the Christmas school break for 10 days as follows:

i. In odd-numbered years starting in 2023, for the first 10 days of the break, commencing the day after the last day of school, and which shall include Christmas Eve and Christmas Day.

ii. In even-numbered years starting in 2024, the Mother shall have Christmas Eve to Boxing Day with the children. The Father shall have the children from December 27th to January 5th regardless of when school starts in January.

iii. If winter driving conditions, road closures, or illness prevents the Father from having the children for Christmas Day in his year, the rotation shall change so that the Father then has the children for the first 10 days of the Christmas Break in the following year.

j. Alternating March Break, with the children being in the care of the Mother in odd-numbered years and the Father in even numbered years from the last day of school until noon on the Sunday before school starts, provided that the parties shall:

i. Give consideration to the Father’s monthly parenting time taking place during the Mother’s March Break only if she does not have scheduled travel or other plans with the children;

ii. Be flexible with respect to start and return dates for March Break parenting to accommodate any travel plans; and

iii. Be flexible to accommodate driving conditions.

k. Each summer school break for 5 weeks as follows:

i. Commencing in 2024, one two-week period and one three-week period, which shall be separated by the Mother having one two-week period with the children.

ii. The parties shall notify each other of their preference of weeks no later than April 1st of each year, failing which, or if they cannot agree as to the weeks:

A. The Father shall have the children for the first two weeks of the break starting on the Sunday after the last day of school and ending two weeks later on Sunday. If the parties cannot agree, the exchange time shall be 12:00 p.m. noon. The Mother shall then have two weeks, followed by the Father’s three weeks with the children. The children will spend the remainder of the summer, including the Labour Day weekend with the Mother.

iii. In 2023, the Father shall have B.J. in his care for two two-week periods, and A.J. for two one-week periods (one in July and one in August). The Mother shall either bring A.J. to Marathon for the start of her one-week periods with the Father (if B.J. is already there) or pick-up A.J. from Marathon at the conclusion of her one-week period with the Father.

l. Easter weekend in odd-numbered years for five days, with the Mother having Easter weekend in even-numbered years.

m. Such further and other times as the parties agree from time to time, including important family events, alternating Halloween, and birthdays (parties and children).

[18] Each party and their family members shall have reasonable video calls, telephone or text communication with the children while they are in the care of the other. These conversations shall be respected as private.

[19] If either party plans a vacation with the children, the travelling party shall provide the other with a detailed itinerary 14 days prior to the vacation beginning, or as soon as possible if the vacation is more spontaneous, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip. Each party shall sign any travel consent documents required by the other in a timely fashion.

[20] Exchanges for parenting time shall occur in Sault Ste. Marie unless the parties agree otherwise.

[21] Communication between the parties shall through AppClose unless the parties agree otherwise.

[22] Such further and other terms as the parties agree to incorporate into the Order, including agreed upon terms with respect to joint decision-making and statutory terms such as day to day decision-making by the parent who has care of the child at the time.

[23] With respect to costs, if despite paragraph 79 of the Reasons for Trial Judgment either party seeks costs, written submissions shall be delivered as follows.

a. By the party claiming costs, within 30 days of release of this decision, limited to 5 pages, double-spaced, minimum 12-point font, not including attachments (bill of costs, offers, relevant correspondence, and caselaw). If there are no costs submissions received by the court within 30 days then costs shall be deemed to be settled, with no extensions granted absent extraordinary circumstances.

b. By the responding party, within 30 days of receipt of the claiming party’s submissions, subject to the same page restrictions.

c. Any reply submissions shall be delivered within 14 days of receipt of responding submissions, and shall be limited to 2 pages.

“Original signed by” The Honourable Justice T.J. Nieckarz, Acting R.S.J.

Released: July 7, 2023