COURT FILE NO.: FC-21- 1054 DATE: 2023/08/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Branden McArthur, Applicant AND: Rexana Stickwood, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Nevada J Fenton, for the Applicant Bryan Delaney, for the Respondent
HEARD: June 8, 2023
ENDORSEMENT
[1] The Applicant father brought a motion seeking a variety of interim orders. The Respondent mother filed a cross-motion, also seeking interim relief. The parties were able reach an agreement with respect to a number of the issues just prior to the motions being heard. Further agreement was reached during the course of the hearing resulting in a number of orders made, as reflected in my endorsement of June 8, 2023. As a result, the issues were narrowed considerably. I reserved decision on those remaining issues and on the understanding that additional affidavit evidence would be provided to me with respect to the new daycare schedule for Isaac.
[2] By way of background, the parties dated briefly between late 2019 and early 2020. They never cohabitated. They have one child, Isaac Dennie Paul Stickwod, born January 30, 2021. Isaac has been living primarily with his mother, although the father has received incrementally increased parenting time since the separation. On a without prejudice basis to the father to bring a motion for further parenting time, the schedule that is currently in place was agreed to at a settlement conference in February 2022. The father has parenting time every Wednesday from 3 to 7 pm and every other Saturday from 8 am to Sunday at 5 pm. That parenting time was expanded to be from every other Friday from 4 pm to Sunday at 4 pm on consent at the conclusion of this hearing.
[3] The biggest disagreement that remains relates to whether the father's parenting time should be further expanded to include wrap-around weekends and a mid-week overnight. The father is seeking that both expansions occur within 6-7 months (from the date of the hearing). The mother will not agree to a mid-week overnight and submits the wrap-around weekend should commence when the child starts school. In addition, the parties disagree, to some degree, on the holiday schedule.
[4] The updated evidence I received indicates that Isaac began daycare on August 1, 2023. He will attend from Monday to Thursday from 7:30 am to 4:30 pm. This arrangement will continue until December 26, 2023 as the daycare provider is expecting a child and will be taking two months off at that time. The intention is to have Isaac return to daycare after the two month leave.
[5] The best interests of the child are paramount and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests.
[6] The CLRA also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: CLRA, s. 24(5). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.
[7] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being: Pereira at para 13, CLRA, s. 24(2).
[8] Other relevant considerations contained in the CLRA include:
Factors
24(3) Factors related to the circumstances of a child include,
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, 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 co-operate on issues affecting the child.
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[9] As set out by Justice Kraft, in White v. Kozun, 2021 ONSC 41 at para 174, no single criterion is paramount and “the weighing of each criterion will depend on the circumstances of the particular child.”
[10] The status quo will be maintained on an interim motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests (see: Chaput v. Chaput, 2021 ONSC 2809).
[11] However, the importance of the status quo may be diminished in cases where one party has imposed the status quo and the other party has not acquiesced (see L.M.B. v. F.J.D., 2020 ONCJ 239, at para. 31; Pereira at para. 38).
[12] It is important to note at the outset the father is seeking only an incremental increase in his parenting time at this stage. While the mother has raised a number of concerns in her affidavit (primarily with respect to the father’s ability to properly care for Isaac and the need for stability and predictability), these concerns do not loom so large that they would prevent the father from having parenting time. The mother has agreed to the current schedule. The only issue is whether the incremental changes sought are in Isaac’s best interests.
[13] I conclude that some change to the current parenting time schedule is warranted.
[14] At the hearing, the mother’s primary argument against allowing for a Sunday overnight every other weekend was that it would be too disruptive for Isaac as he is just starting daycare. However, the mother has agreed to allow for this additional overnight once Isaac starts school. Doing it at that time also has the potential to be disruptive. It is not clear to me that it will be any easier for Isaac then as it would be now.
[15] This is not a case where the father has acquiesced to the status quo. He has repeatedly sought more parenting time with Isaac. It is clear that he feels frustrated by the mother’s unwillingness to both allow for more parenting time.
[16] On the one hand, given the child’s age, stage of development and the need for stability, it would not be in his best interest to drastically change the parenting time schedule. On the other hand, it is important that the relationship between Isaac and the father develop and thrive.
[17] I find it would be in Isaac’s best interests to commence the additional weekend overnight in September. He will have had a month to adjust and settle into daycare. At the same time, not too much time will have passed such that an additional transition may prove difficult. This will have the advantage of the father playing a more meaningful role in Isaac’s life, while avoiding too great a disruption.
[18] There will be an interim order that the father will have parenting time with Isaac every other Friday from 4 pm to Monday at 7:30 am. The father will drop off Isaac at the daycare on Monday mornings. On the Mondays that Isaac is not at daycare, drop off shall be at the mother’s residence.
[19] The father also seeks an additional Wednesday overnight, commencing in January 2024. There is some evidence that Isaac struggles with transitions. The father says that it is worse on Wednesdays. Given that I have ordered changes to the weekend schedule commencing in September, some period of time is required to allow for Isaac to adjust to the changes. Any changes to the weekday schedule should not occur until January 3, 2024. Even then, it is my view that overnights on every Wednesday would not provide sufficient stability for Isaac. Rather, it would be in his best interests to have the Wednesday overnight visits every other week. On those weeks, the father will drop off Isaac at daycare on Thursdays at 7:30 am. On the Thursdays that Isaac is not at daycare, drop off shall be at the mother’s residence.
[20] The sole remaining issue is parenting time on holidays.
[21] Considering the parties’ positions, the agreement that has been reached with respect to a number of the holidays and keeping in mind the need for stability for Isaac and certainty for the parties, I order that Isaac will stay with the mother from Good Friday until 8 am on Easter Sunday and with his father from 8 am on Easter Sunday until Tuesday at 7:30 am. The father will drop off Isaac at the daycare on the Tuesday mornings. On the Tuesdays that Isaac is not at daycare, drop off shall be at the mother’s residence.
[22] The parties disagree about the parenting time schedule for both the long weekends and other holiday times in the summer. A decision on this issue will be easier to make once it is known how Isaac has adjusted to the changes that are being made now. If the parties do not have a trial date prior to the Victoria Day weekend and have not reached an agreement, they may schedule a 30 minute motion in front of me and I will make a decision.
[23] If the parties are unable to agree on the liability and/or quantum of costs for this motion by September 15, 2023, written submissions of no more than three pages, along with bills of costs and offers to settle, may be provided to me at 10 day intervals and I will make a decision.
Date: August 22, 2023 Released: August 22, 2023
COURT FILE NO.: FC-21- 1054 DATE: 2023/08/22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Branden McArthur, Applicant AND: Rexana Stickwood, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Nevada J. Fenton, for the Applicant Bryan Delaney, for the Respondent
ENDORSEMENT
Carter J.