Court File and Parties

COURT FILE NO.: FS 23-037 DATE: 2023/10/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gabrielle Christine Thompson, Applicant AND: John Darrell Richardson, Respondent

BEFORE: M.G. Ellies R.S.J.

COUNSEL: A. Lake, for the Applicant M. Young, for the Respondent

HEARD: October 6, 2023

Endorsement

[1] Mr. Richardson moves for a temporary parenting time order that accommodates his two-week on/two-week off work schedule. Ms. Thompson opposes the request for three reasons: (1) that she is the primary caregiver for the children; (2) that young children such as theirs should not be apart from a parent for longer than seven days at a time; and (3) that she and Mr. Richardson have had disagreements about the children's healthcare. In my view, none of these reasons are sufficient to defeat Mr. Richardson's request.

[2] The parties began cohabiting in October 2008. They separated in September 2021, but lived in the same house until December 2022. They now live in separate residences, but in the same small community. They have three children: N., who is 11 years old; P., who will soon be 7 years old; and E., who is 5 years old. The two oldest children have special needs.

[3] Mr. Richardson worked outside of the home throughout the parties’ relationship. His employment schedule varied as he worked for different employers and at different worksites. Sometimes he would be away from home for weeks or even months at a time. Although Ms. Thompson was also employed outside of the home at first, she stopped full-time work when N. was born in 2012. She returned to work during the summer months, but did not return to full-time work until November 2013. She stopped work again in January 2015 and finally returned to full-time work in September 2017, although she was off on maternity leave for the birth of the youngest child from July 2018 until October 2019.

[4] Ms. Thompson submits that, because of Mr. Richardson's work schedule, she became the primary caregiver for the children. I accept that submission. However, it is important to bear in mind that, although he was away from home for long periods of time, Mr. Richardson was also at home for long periods of time, as well. In addition to the weeks he would regularly have off, Mr. Richardson was laid off, sometimes for months at a time. For example, he was laid off from November 2019 to February 2020 and from December 2020 to February or March 2021. Thus, Mr. Richardson has spent long periods of time with the children in the past, as he is proposing to do in the future.

[5] Ms. Thompson alleges that, while he was home, Mr. Richardson would spend most of his time drinking and playing computer games. I find this hard to believe. Ms. Thompson seems to recognize that this would make Mr. Richardson a bad parent and seems to suggest that he behaved like this throughout their relationship. And yet, she chose to have not one, but three children with him in a period spanning six years. That behaviour by Ms. Thompson is inconsistent with her present allegations.

[6] Ms. Thompson makes other allegations against Mr. Richardson, including sexual abuse and excessive discipline of the children. Mr. Richardson denies he ever struggled with alcohol abuse or dependency, but admits that he did abstain completely for over a year when he was still hopeful that he and Ms. Thompson could reconcile. He admits that he did engage in the disciplinary events mentioned by Ms. Thompson, but explains them and states that he has educated himself and is now practicing different parenting techniques. In any event, Ms. Thompson does not suggest that Mr. Richardson should not have any parenting time, only that he should have less.

[7] Ms. Thompson relies on what she alleges is “recognized independent research” that children between the ages of 3 and 9 years old should not normally be separated from a parent for longer than 7 days at a time: https://afccontario.ca/parenting-plan-guide-and-template/. This view was accepted by the court in M. (S.) v. Y. (S.), 2022 ONSC 6446, at para. 33.

[8] With respect, I would require some expert evidence before reaching this conclusion. However, even if I did accept it, it would be of no assistance to Ms. Thompson. She proposes that Mr. Richardson have parenting time for only 7 of his 14 days off. If I acceded to that request, because of his two-week rotation, Mr. Richardson would have parenting time for only about one week per month. The children would be away from him for the other three weeks, which is even longer than the two weeks they would be away from Ms. Thompson if I accede to Mr. Richardson's request for parenting time for most or all of his two weeks off. Ms. Thompson's position can only be justified if I conclude that, as between the parents, the children are better off with Ms. Thompson, which brings me to the final basis upon which Ms. Thompson opposes Mr. Richardson's request.

[9] As I mentioned, the two oldest children have special needs. Ms. Thompson alleges that she and Mr. Richardson have had disagreements over how those needs should be met. Ms. Thompson alleges that Mr. Richardson has prevented her from following the recommendations of some of the medical specialists overseeing the care of the children. She deposes that he is distrustful of medical professionals and resistant to treatments involving drugs, in general. Mr. Richardson admits he prefers that non-chemical alternatives be tried first, but deposes that he is fully involved in the children's medical care and in improving his skills as a parent.

[10] It is not abnormal for parents to have differing philosophies on what their children require for health care, even when they are not separated. But those are decision-making, not parenting time, issues. Had the evidence risen to the appropriate level, I would have made an order requiring Mr. Richardson to adhere to any recommendations made by the treating medical practitioners while the children are in his care. However, it does not rise to that level.

[11] Ms. Thompson admits that Mr. Richardson has recently consented to having the two oldest children assessed for autism and that the assessments are scheduled to take place this month. In those circumstances, I do not see the need for such an order. Nonetheless, if circumstances change materially, Ms. Thompson may bring a motion to change my order to add any necessary terms. A motion to change may be necessary, in any event, as Mr. Richardson is trying to find a new job in which his work schedule would permit week-about parenting time.

[12] At present, Ms. Thompson is allowing Mr. Richardson to parent the children for as many as six days at a time. Mr. Richardson candidly deposes that the oldest child, N., has a hard time spending that much time with him. He also deposes that he has tried to arrange counselling for N., but that Ms. Thompson is not cooperating. Ms. Thompson admits that she was giving N. (an 11-year-old child) a choice as to whether she wanted to spend the same amount of time with her father as were her siblings. Fortunately, it appears that Nadeau J. ordered that Ms. Thompson not give N. such decision-making power at a case conference in which he exercised the court's parens patriae jurisdiction and that the children are now all spending the same amount of time with Mr. Richardson, even though it is only six days every third week.

[13] Given his candour on the issue, I trust that if Mr. Richardson is granted parenting time in accordance with his request, he will not force N. to spend the entire time with him if he believes it is not in her best interests.

[14] For the foregoing reasons, I believe that it is in the children's best interests that they spend as much time as they can with each parent. Of the two proposals put forward by Mr. Richardson, I prefer the one in which Ms. Thompson gets to spend time with the children during what would otherwise be his parenting time.

[15] Mr. Richardson also seeks an order that he paid full Guidelines support for the three children in the amount of $2,450 until May 1, 2024, at which point he seeks to pay the set-off amount set out in s. 9 of the Guidelines. I do not understand Ms. Thompson to be opposed to this request, at least with respect to quantum. However, I would prefer to wait to see how the parenting time unfolds before making any such order. In any event, before an order for child support can be made under s. 9, the court requires evidence about the conditions, means, and needs of the spouses and the children: Contino v. Leonelli-Contino, 2005 SCC 63. I have not been taken to any such evidence in the motion.

[16] Finally, Mr. Richardson asks for an order that the parties communicate using “AppClose”. I have no idea what that is. However, the request does not appear to be opposed and there is some basis for an order regarding communication in the evidence which, sadly, includes copies of dozens of messages passing between the parties and their children. There are good policy reasons not to even admit such evidence, let alone rely on it: either the production of the message violates at least one person’s expectation of privacy, or it represents self-serving evidence on both sides. If the situation is the former, then allowing the messages into evidence will have a chilling effect on the already-challenged ability of the parties to communicate in their children's best interests. If the situation is the latter, the messages have little to no value as evidence. In either case, I fail to see why they should be admitted in most cases. My assumption about the use of AppClose is that neither party will have any expectation of privacy while using it, which at least alleviates that concern, even if it does little to increase the evidentiary value of the communications.

[17] For the foregoing reasons, a temporary order will issue that: (1) Mr. Richardson shall have parenting time with the children from the Thursday he is off work until the Wednesday before he returns to work, commencing October 12, 2023. Ms. Thompson shall have the children from Tuesday overnight to Wednesday during the middle of Mr. Richardson's parenting time. (2) The exchanges shall take place either at the children’s school or at the daycare. (3) Mr. Richardson shall pay support for the children (whose full names and dates of birth shall be set out in the order) in the amount of $2,450 per month, commencing on October 1, 2023, which is the Guidelines amount for a payor earning $137,700 per year. (4) The parties shall communicate via AppClose.

[18] If the parties cannot agree on costs, they may make brief written submissions, limited to five typewritten pages exclusive of attachments, as follows: (1) On behalf of Mr. Richardson, within 10 days of the release of these reasons: and (2) On behalf of Ms. Thompson, within 20 day of the release of these reasons.

M.G. Ellies R.S.J. Date: October 13, 2023