Court File and Parties

Court File No.: 19-0145 Date: August 17, 2023 Ontario Superior Court of Justice

Between: Jay Imre McDevitt, Applicant And: Jennie Marie McDevitt, Respondent

Counsel: Holly Agnew, for the Applicant Tessa Morris, for the Respondent

Ruling on motion

Before: Abrams, J.

Introduction

[1] The Applicant brings his motion requesting changes to the status quo parenting schedule set out in the parties Amending Agreement, dated November 2, 2018 (“the Agreement”). Specifically, the Applicant proposes a week-about schedule (“Plan A”), or alternatively two overnights on Wednesday and Thursday (“Plan B”). Further, the Applicant requests a formalized holiday schedule whereby the parties would share time with the children on an equal basis.

[2] The Respondent brings her cross-motion suggesting a more modest change by adding an overnight from after school on Wednesday to Thursday morning, when the Applicant would be responsible for dropping the children off at school. The Respondent agrees that a formal holiday schedule would be beneficial, which would include summer vacation. Moreover, the Respondent requests that the Applicant be ordered to pay child support at the Guideline amount, and that the parties share s. 7 expenses on a pro rata basis.

Brief Background

[3] The parties are the parents of Delilah Nadinia Lyn McDevitt, born February 19, 2010, Rowan Lani Elyse McDevitt, born October 13, 2011, and Lilith Brandy Marie McDevitt, born August 22, 2014.

[4] The parties agree that the proposed changes to the parenting schedule relate only to Rowan and Lilith (“the children”).

[5] Under the terms of the Agreement, the children reside primarily with the Respondent and have specified parenting time with the Applicant during the school year, as follows:

a. In week one, Monday evening and Tuesday evening from 3:00 p.m. – 7:15 p.m. and Friday from 3:00 p.m. to Sunday at 7:15 p.m.

b. In week two, Wednesday evening and Thursday evening from 3:00 p.m. – 7:15 p.m.

During the summer, March break and Christmas school holiday period:

a. In week one, each Monday from 3:00 p.m. to Wednesday at 8:00 a.m. and each Friday at 3:00 p.m. to Sunday at 7:15 p.m.

b. In week two, Wednesday from 3:00 p.m. to Friday at 8:00 a.m.

[6] Although the Agreement provides that holiday periods “shall be shared”, the Applicant contends that he has not always received an equal portion of vacation time.

[7] Notably, when the parties signed the Agreement, the Applicant lived just north of Kingston in Inverary, while the Respondent resided in Newboro, where she continues to live. In those circumstances, their residences were approximately 36 kilometers, or 30 minutes apart.

[8] In May of 2019, the Applicant moved to Almonte, where he currently resides with his new partner, Ms. Stephanie Verk (“Ms. Verk”). The parties’ residences are now approximately 80 kilometers, or 60 minutes apart.

[9] The children attend school in Westport, which is approximately ten kilometers from the Respondent’s home. They take the bus to and from school.

[10] The Applicant contends that the week-night visits are no longer tenable due to the distance between the parties’ respective residences. Put simply, no sooner does he arrive home from picking the children up, then he must turn around and drive them back to the Respondent’s residence.

[11] In December 2022, Rowan began spending additional overnights with the Applicant during the week. Lilith chose not to. The parties agree, for different reasons, that this arrangement is unsustainable.

[12] In these circumstances, the parties request a Temporary Order varying the parenting schedule under the Agreement.

Issues

[13] The central issue to be decided on this motion and cross-motion is whether the current status quo, parenting schedule should be disturbed on a temporary basis in advance of a trial? If so, what Temporary Order would be in the children’s best interests?

Legal Framework

Parenting Time

[14] The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz, [1996] 2 S.C.R. 27. This even applied when the child was reluctant to see a parent.

[15] Then as now, the Court is tasked with viewing what is in the best interests of the child, not the parents. The maximum contact principle was mandatory, but not absolute. The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the Court could restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See also: Casselman v. Noonan, 2017 ONSC 3415.

[16] Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time the Court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[17] Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children: Knapp v. Knapp, 2021 ONCA, per Benotto J.A.

Status-Quo

[18] The status quo – and avoiding reckless creation of a new status quo - are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras. 16 and 17.

[19] It is a long standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.); M.W. v. E.B. and the Minister of Citizenship and Immigration; and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

[20] In making an interim order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994), 5 RFL (4th) 115.

[21] To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para. 26.

[22] It is generally not in the best interests of the child to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the OCL recommending an immediate change in residence.

Parties Positions

[23] The parties agree that the Applicant’s unilateral decision to move from Inverary to Almonte constitutes a material change in circumstances such that the Court should go on to consider what Temporary Order is in the children’s best interests, pending a trial on the merits.

[24] The Applicant argues that there should be week-about parenting to reduce the number of exchanges and the amount of travel between the parties’ residences. He contends that whether the Court orders Plan A or Plan B, he can pick-up and deliver the children to and from school in Westport, to his home in Almonte, as easily as they can take the bus from the Respondent’s residence.

[25] The Respondent asserts that the Applicant’s plan to ferry the children to and from school from his home in Almonte daily is simply and practically untenable. The children would be travelling an hour or more each way, and perhaps longer during inclement weather. The Respondent is; however, prepared to add an overnight on Wednesday, even though Lilith is against it.

[26] The Office of the Children’s Lawyer (“OCL”) has engaged in the matter. In the affidavit filed by clinician Darlene Lynn Bennett (“Ms. Bennett”), she contends that the current parenting schedule should be formalized for the children. In other words, the status quo should be maintained. Notably, Ms. Bennett has concluded that the children’s decisions are independent and of sufficient strength and consistency to give weight to their views and preferences.

Analysis

[27] I would dismiss the Applicant’s motion and grant the Respondent’s cross-motion, for the following reasons.

[28] The Applicant’s contention that he can easily transport the children to and from school in Westport to his home in Almonte is impractical and unsustainable. His overly simplistic comparison of the length of their bus route versus his drive time fails to consider the vicissitudes of travelling in the winter, partially during dark periods, between Westport and Almonte. Put another way, while the comparison on paper seems simple enough, reality would suggest otherwise.

[29] Lilith is resolute in her position that she does not wish to change the status quo. She reports having a strained relationship with Ms. Verk. She reports Ms. Verk raising her voice “at them”, which I infer to mean she and Rowan. Moreover, Ms. Verk refers to Delilah as “abusive”, which I find would be difficult and perhaps damaging for a child to hear said about their sibling.

[30] Rowan has similarly raised concerns regarding Ms. Verk’s conduct towards her. Specifically, Rowan reports Ms. Verk making negative comments about the Respondent, which she finds “awful” and “hurt differently than if her parents had said it”. Further, she is made to feel uncomfortable when Ms. Verk yells at her father. Accordingly, Rowan is “undecided as to whether she wants to increase her weekday overnights with the Applicant”. She reports that “two overnights during the week are too much right now”. She also doesn’t feel as though she has her own “space” in the Applicant’s home.

[31] To recall, it is generally not in the best interests of the child to disturb a status quo on a temporary basis pending trial without compelling reasons, which usually include an assessment report from a private assessor or the OCL recommending an immediate change in residence. In the current circumstances, the OCL is recommending no change to the status quo.

[32] Further, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda, supra, at para. 26.

[33] Based on the record before me, I find the opposite to be true: The evidence clearly and unequivocally establishes that the best interests of the children would not be served by substantial changes to the weekday, overnight schedule spent in a home they find to be chaotic and filled with negative outbursts regarding them, their siblings, their mother, and their father.

[34] The Applicant asserts that: “We were dismayed to hear that the children reported that they do not like her [Ms. Verk], especially when their behaviour around her suggests the exact opposite”. In my view, children can often be resilient, malleable survivors. They can endure harsh and uncomfortable treatment by a new partner, simply to please their parent. Although it may be difficult for him to hear in the context of a new relationship, the Applicant should seriously consider the concerns the children are reporting through the OCL clinician.

Conclusions

[35] The Respondent deposes that it is difficult to think about implementing a new parenting schedule that does not reflect what Lilith is comfortable doing, for the purpose of keeping the children on the same schedule. Nonetheless, she is prepared to accede to the additional overnight from Wednesday until Thursday.

[36] The Court is prepared to order the relief set out in paragraph 2 of the Respondent’s cross-motion on an interim, interim basis for a period of six months to be assessed on a date to be set by the Trial Coordinator in consultation with counsel.

[37] The balance of the parenting/parenting time relief set out in paragraphs 1,3,4,5,6,7 and 8 of the Respondent’s cross-motion shall issue on a temporary basis.

[38] The Applicant should be paying child support at the Guideline amount, which I find to be $892.00 per month based on his estimated income for 2022 of $45,240.00. The start date is fixed as March 1, 2023.

[39] All section 7 expenses shall be shared on a pro rata basis of 57% for the Respondent and 43% for the Applicant.

[40] If the parties are unable to agree on the issue of costs, written submission of no more than four pages, double spaced, one side of the page, 12-point font or larger, shall be filed within 30 days, including a bill of costs and any offers to settle.

The Honourable Mr. Justice B. W. Abrams Released: August 17, 2023