Court File and Parties

Court File No.: 23-7 Date: 2023/01/18 Superior Court of Justice - Ontario

Re: Natalia Pegg, Applicant And: Matthew Gray, Respondent

Before: Somji J.

Counsel: Philip Burger, for the Applicant Katelyn Jechel, for the Respondent

Heard: January 12, 2023-Perth; Oral decision delivered January 13, 2023.

Endorsement on Urgent Motion Re Parenting Time

[1] This decision addresses an urgent motion by the Applicant mother brings for parenting time of the parties’ two children ages 6 and 3 1/2.

[2] The parties have been in a relationship since 2016. The relationship began to deteriorate in 2022 and by the summer, the parties were living separate and apart in the family residence in Smith Falls. The mother also commenced a new relationship at this time. At the end of 2022, the mother left the family residence following an altercation between the parties.

[3] The mother seeks a parenting schedule which has the children with her five nights a week in Perth where she has found temporary residence with two longstanding members of the community. The Respondent father would have parenting time on the weekends.

[4] The father supports parenting time for the mother. He takes the position that the motion is not urgent. He brings a cross-motion proposing a parenting a schedule that is more equitable between the parents and that more closely resembles the status quo of care since August 2022 which involves the children spending some weekdays with the mother, some weekdays and overnights with the maternal and paternal grandmothers, and time with him on the weekend and weeknights after work.

[5] The urgent motion was precipitated by events that occurred between December 29 and 31, 2022. There was a physical altercation between parties on December 31, 2022, which was, unfortunately witnessed by the children. The police were called. The mother was charged for assault on the father. A no contact order was put in place. The children have remained at the family residence with the father since that time.

[6] The maternal grandmother has filed an affidavit expressing concerns about her daughter’s ability to adequately care for the children in recent months due to increasingly erratic behaviours, neglect of the home and inattentiveness to the children, threats to bring false allegations against the father, and excessive use of medication and alcohol between December 29 and 31, 2022, that she witnessed. She also reports that on December 30, 2022, a civilian attended her home and reported that the Applicant mother had been driving at a high rate of speed, missed a stop sign, and nearly struck and fatally harmed the civilian and his dog.

Mother’s proposal for parenting time

[7] The mother is 24 years of age. She contributed to the family home from her ODSP payments which are a little less than $17,000/year and the Canada Child Tax Benefits. She has worked in the past as a PSW. She reports she was unable to leave the family residence in the summer of 2022 because of her limited financial means.

[8] Since the events of December 31, 2022, the mother has secured temporary residence at the home of John Fenick and his wife Laurie Anne Clavette. Mr. Fenick is 62 years of age. He was a former Mayor of Perth and has a background in social work. Mr. Fenick has filed an affidavit indicating that he and his wife are prepared to support the mother financially, provide her and the children with a temporary place to live, assist the mother in obtaining a vehicle, and also help her apply for subsidized housing so that she can live independently.

[9] The mother’s proposal is that she have parenting time with the children for five nights a week from Sunday at 4 pm to Friday at 6 pm. During this period the children would reside in Perth. The Applicant’s counsel takes the position that this parenting schedule properly reflects the mother’s role as the primary caregiver of the children and the status quo with respect to the parenting schedule which involved the mother largely taking care of the children during the weekdays while the father worked and him having care on the weekends.

Father’s proposal for parenting time

[10] The father is 29 years of age. He is self-employed. He works as an air traffic mechanic in Ottawa from 6 am to 5 pm Mondays to Fridays. He owns the family residence in Smith Falls.

[11] The father proposes a slightly different schedule where the mother would have the children from Tuesday after school until before school on Friday. This would result in the mother having 3 nights a week with the children and him having four nights. However, it is the father’s intention to have some of his parenting time occupied by the maternal and paternal grandmothers who have both, to date, cared for the children from Thursday to Saturday morning. The father would continue to care for the children on the weekends and at least one weeknight.

[12] Counsel for the father indicates that the father is amenable to a parenting schedule that would allow him to have the same amount of time he proposes but on different days if certain days of the week are important to the mother. I understand from submissions that both the maternal and paternal grandmothers are agreeable to assisting the father with picking up and dropping off the eldest child at school and to adjust their schedules to spend time with the children based on what the court orders.

Issue 1: Is this motion urgent?

[13] The test for urgent motions is set out in Rosen v Rosen, [2005] O.J. No. 62 (Ont. S.C.J.) and is contemplated for issues such as abduction, threats of harm, and dire financial circumstances. In this case, none of those situations apply, and I do not find the matter is urgent.

[14] The parties physical separation occurred approximately two weeks ago. The children have remained in the care of the father at the family residence since that time, and there is no indication that they are in danger or not being properly cared for. The father has the support of both grandmothers to ensure the children’s continued transportation to and attendance at school and activities while he is at work.

[15] More importantly, there is no evidence that the father had any intention to withhold the children following the events of December 31, 2022. In fact, he reports that he did not hear from the mother until about 5 days after the incident on January 5, 2023, at which time he received a letter from her lawyer requesting that he one, implement a parenting schedule where the mother had the children five days a week; two, commence paying child support of $1250/month; and three, hand over the plates of one of his vehicles. It was entirely reasonable for the father to refrain from responding until such time as he obtained legal advice which, as he explains, he sought immediately. The father was served with an urgent motion four days later on January 9, 2023, by Mr. Fenik. Fortunately, following the filing of the motion, his counsel Ms. Jechel was able to come on board quickly, file a response, and appear on the urgent motion.

[16] Notwithstanding the no contact order, I find the mother could have made arrangements to contact or see the children through other family members including the maternal grandmother and work out a short term parenting schedule between the parties until such time as the father retained counsel and determined next steps based on the advice of his counsel and the change in living circumstances for everybody.

[17] In addition, I note that the mother has yet to file a family law Application with the court which is usually required before motions can be filed save in very rare and exceptional circumstances.

[18] Where a matter is not urgent, it will usually be scheduled first for a case conference followed by a motion hearing date. Having said this, both parties have filed affidavits setting out their respective positions on the parenting schedule and are agreeable to me deciding this singular issue at this time based on the affidavit evidence filed and submissions heard. Any order I impose at this time is an interim without prejudice order.

Issue 2: What parenting schedule is in the best interests of the children?

[19] Parenting time is to be determined in accordance with the child’s best interests. The best interests of the child factors are set out in Sections 24(1) and 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”) state as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

[20] Section 24(3) CLRA sets out the best interests factors to be considered. I have considered these below in arriving at my decision. While I have considered all the best interest factors, I have focused on the most pertinent factors that have informed my decision, not necessarily in the order that they are listed in the legislation, and sometimes collectively.

[21] As stated in Phillips v Phillips, 2021 ONSC 2480 at para 47, the list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the children’s needs and the people around them.

24(3)(a) - the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

[22] The children are very young. One child is in the primary grades and the second child is not yet in school. Both children require stability in care as well as emotional support as they undergo these transitions in their home life. While children are resilient, I agree with counsel for both parties that maintaining a parenting schedule that closely resembles what the children are accustomed to is an important factor for their stability.

[23] I would also add that while Mr. Fenick and his wife have generously opened their home up to the Applicant, this will be a new residence in another town and also a new set of relationships to which these young children will have to adjust.

[24] The current proposals by both parents will not disrupt the children’s school. I understand the eldest child’s school is close to the former family residence in Smith Falls. The mother will have to arrange for his transportation to school from Perth.

24(3)(d) - The history of care of the child and 24(3)(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;

[25] It is clear from the affidavits filed that both parents have been involved in the children’s care. While the mother argues that she was the primary caregiver because she was at home with the children, there is evidence that the father has been engaged with the children including in their extracurricular activities.

[26] On the contrary, the maternal grandmother has expressed concerns about her daughter’s ability to care for the children in recent months due to what she describes as long-term mental health issues and the mother’s preoccupation with a new relationship. The maternal grandmother observed in the last few months that the mother was not properly feeding the children, not keeping the home clean or keeping up with necessary chores like laundry, increasingly less attentive to the children and spending time on the phone with her boyfriend, and was leaving the children overnight at the grandmother’s place to go to her boyfriend’s house.

[27] It is also of concern that a civilian reported to the maternal grandmother that they observed the mother drinking and driving and that the grandmother had pleaded with her daughter not to drive on that evening because of her overconsumption of medication and alcohol.

[28] While the father may be absent during the weekdays because of work, the evidence suggests he is home on the weeknights and engaged with the children on the weekends. The father states that in recent months, which is corroborated in part by the maternal grandmother, it is the mother that has been the one absent on the weekends. The father has suspected, but not known, where she has been during these times.

24(3)(c) - each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

[29] Both parents support parenting time for the other parent.

24(3)(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

[30] It is not disputed that the children have good relationships with both their parents and grandparents. The children should be able to continue having meaningful time with other family members including the maternal and paternal grandparents where it can be accommodated within the parenting schedule. The father’s proposed schedule takes that into consideration and builds in time for some care and access by the grandmothers.

24(3)(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

[31] This court has no information on the children’s views, and it may be harder to determine given their very young age.

24(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

[32] No evidence has been presented on this issue. I do not understand either of the children to have any Indigenous heritage.

24(3)(g) any plans for the child’s care;

[33] Neither party has had an opportunity to set out a plan of care as Applications and Answers have not been filed.

[34] It is unclear what the mother’s long-term plan is. However, she has secured a temporary residence for her and the children and will have personal and financial support to assist her in the short term which will be of tremendous assistance as the parties proceed with this transition.

[35] The children have been residing in Smiths Falls. Their doctor and dentist are in Smiths Falls. The eldest child has been attending Lombardy Public School since prior to separation, which is a ten-minute drive from the family residence where the father lives. It is unclear if the mother intends to find accommodation in Perth rather than Smith Falls, and what impact that will have on transportation of the children to school, activities, appointments, and parenting exchanges. I understand, however, that the two communities are about 15 minutes apart and that the distance may not add to the children’s commute in any significant way.

24(3)(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

[36] Upon review of the affidavits filed, I have some concerns about the mother’s ability to communicate and cooperate with the father on matters affecting the children. First, the mother does not appear to have informed the father of her whereabouts on the weekends since the summer of 2022 which does not bode well for good communication practices. Second, the maternal grandmother reported that the mother had threatened to make false allegations to the police against the father which raises concerns about her willingness to cooperate with the father to ensure the best interests of the children.

24(3)(j) family violence.

[37] There was an altercation between the parties which resulted in criminal charges against the mother. There is insufficient information for the court to assess whether this should be a factor of any weight in determining an interim parenting schedule.

[38] There is no evidence of any violence by either parent towards any of the children.

[39] Upon consideration of the above factors, I find that the parenting schedule proposed by the father is in the best interests of the children. It is largely consistent with the status of quo of care since the summer of 2022, builds in time with the grandmothers to allow for continuity of the children’s routine, and ensures that both parents have equitable time with the children.

[40] I appreciate that now that the children will be in different homes and each parent will want as much time as possible with them, this may cut into the time the children spend with the grandmothers and other family members. Parents obviously have priority. However, given the children’s young age and the need for stability in this turbulent period, I find a parenting schedule that most closely remembers what they are accustomed while still ensuring equitable time with both parents is in the best interests of the children in the short term.

[41] In addition, I also appreciate that the no contact order may complicate matters and limit the parents’ ability to both be present during the children’s activities like ice skating, hockey, etc. The parties are encouraged to negotiate, through the assistance of a third party, how they can address this issue so that both of them can continue to fully engage with the children’s schooling and outside activities.

[42] This is an interim order. Once the mother has a better idea of her long-term residence, the parties have filed their plans of care, and the no contact order is lifted, the parties will be in a better position to revisit the parenting schedule.

[43] While I have indicated that I find the father’s proposed schedule is in the best interests of the children because it provides both parents equitable time with the children and allows for continuity of care by the grandparents, I find the father’s proposed schedule should be modified to better resemble the status quo routine. The children are used to going to their grandmother’s residences on Thursday, Fridays, and into Saturday morning. The mother also expressed some interest in having Sunday evenings with the children. Consequently, I find that the schedule that is presently in the best interests of the children is as follows: The mother will have the children from Sunday night at 6 pm until before school on Thursday morning. The father will have the children from before school Thursday morning until Sunday at 6 pm. This schedule will apply unless there is written agreement by the parties to modify the schedule including altering times for pick up and drop off on any given day.

[44] The parties will forward me a draft Order consistent with this decision for review and signature. If there are additional clauses the parties wish to include on consent, for example with respect to location of exchanges, transportation, attendance at particular activities, etc. they may do so, and I will include them in the interim Order. The draft Order should be sent to Perth Trial Coordination to my attention.

Costs

[45] The father is the successful party on the motion both with respect to the issue of urgency and the parenting schedule and therefore, presumptively entitled to costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions and forward it to the Trial Coordination to my attention by January 30, 2023, for a decision on costs.

Justice N. Somji Date: January 18, 2023

COURT FILE NO.: 23-7 DATE: 2023/01/16 ONTARIO SUPERIOR COURT OF JUSTICE RE: Natalia Pegg, Applicant AND: Matthew Gray, Respondent BEFORE: Somji J. COUNSEL: Philip Burger, for the Applicant Katelyn Jechel, for the Respondent

ENDORSEMENT ON URGENT MOTION RE PARENTING TIME Somji J. Released: January 18, 2023