Court File and Parties
Court File No.: FC1247/21 Date: 2023-11-07 Superior Court of Justice – Ontario
Re: Madeleine Patricia Daly Spencer, Applicant And: Jonathon Mark Spencer, Respondent
Before: T. Price J.
Counsel: Hilary Jenkins, Counsel for the Applicant William J. Doran, Counsel for the Respondent
Heard: October 11, 2023
Endorsement
[1] The parties appeared before me on October 11, 2023 on cross-motions which addressed two issues. I have already released a partial endorsement addressing the sale of the matrimonial home. This endorsement addresses parenting time.
[2] They are very much aware of the background findings made in this case by, originally, Justice Tobin, in his decision reported as Daly-Spencer v. Spencer, 2022 ONSC 1212, and, latterly, on the appeal from that decision to the Divisional Court, reported as Spencer v. Spencer, 2023 ONSC 1633.
[3] The parties’ three children are ages 7 (as of March XX, 2023), 6 (as of November YY, 2023), and 3 (as of December ZZ, 2023).
[4] While I will not repeat the evidence on which the earlier decisions were based, factual findings were made and legal principles applied in the previous proceedings which I am not in any position to overturn. They include the following:
Per Justice Tobin – Factual Findings
a. that “the children have a close and loving relationship with both” parties;
b. that the Applicant, Ms. Daly Spencer (now known as Ms. Daly Shiell, the name by which she will be identified in this endorsement], had been the parent primarily responsible for meeting the day-to-day needs of the children prior to December 2021;
c. that the Respondent, Mr. Spencer, “assumed a more involved day-to-day role during his three- month parental leave,” between November 29, 2021 and February 28, 2022;
d. that, following the parties’ separation on April 21, 2021, they “lived separate and apart in the matrimonial home”[^1]; and
e. that Ms. Daly Shiell had returned to work when Mr. Spencer was on his three-month parental leave.
Per Justice Tobin – Legal Principles
a. that “[i]n allocating parenting time, the court is to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, s. 16(6);”
b. that “[m]aximum parenting time does not necessarily mean equal parenting time…;” and
c. that, “[o]n motions for interim parenting orders, generally the status quo will be maintained, absent compelling reasons indicative of the necessity of a change to meet the children’s best interests…The court focuses on the short-term needs of the children, so possible disruptions are minimized. This is due to the limited and contradictory evidence untested by cross-examination. What the court must attempt to do is provide the children with certainty and stability in an environment that is safe and secure for them.”
[5] Justice Tobin reduced Mr. Spencer’s parenting time from that which he likely would have been having while the parties inhabited the same residence, albeit while separated, and refused to grant him overnight parenting time. He did so because of his findings about Mr. Spencer not having been vaccinated against Covid-19 and the risk to the children, in the view of Justice Tobin, that presented.
[6] The Divisional Court rejected Justice Tobin’s rationale, leaving open the primary question on the motion, which was the extent to which Mr. Spencer should have parenting time with the children in their best interests.
Per Divisional Court – Legal Principles
[7] In reaching the conclusions that it did, the Divisional Court specifically endorsed Justice Tobin’s comment that “the status quo with respect to parenting should ordinarily be maintained on an interim motion in the absence of compelling reasons that the children’s best interests require a change”, while also endorsing the legal principle set out by Justice Tobin that:
a. “The list of best interests factors” (set out in subsection 16(1) of the Divorce Act, R.S.C.1985, c. 3 (2nd Supp.) “is not a checklist to be tabulated”… instead “call[ing] for the court to take a holistic look at the child.”
[8] I read nothing in the decision of the Divisional Court which had it concluding that Justice Tobin’s findings of fact should be ignored or were contrary to the evidence. Thus, the Divisional Court did not comment negatively about Justice Tobin’s finding that, for purposes of the motion, Ms. Daly Shiell had been the parent primarily responsible for caring for the children’s needs on a day-to-day basis.
[9] That noted, there was substantial conflict in the parties’ evidence on the motion before me about the extent to which either of them assumed responsibility for the care of the children. However, even in conflict, assertions made by each party can be partially true, even in the face of contradictions by the other party.
[10] To illustrate my point, in her affidavit sworn July 31, 2023, Ms. Daly Shiell conceded that, while he was on parental leave, Mr. Spencer did care for the youngest child during the day for a certain period, while asserting that she also was home for part of that period and was involved in caring for the children when Mr. Spencer spent time in his home office.
[11] Mr. Spencer deposed that, because he worked from home, he was “available to assist the Applicant in parenting the children, including during her maternity leave with [the youngest child]” and that during the Covid-19 lockdown, he “worked from home and was involved in providing care for the children during the day, evening and night.”
[12] All of these assertions can be correct, to some extent, and are not necessarily contradictory or inconsistent. Each party provided their own perspective about the degree to which they were participating in the care of the children. What is missing is a quantification of parenting time.
[13] Justice Tobin did find that the children have a close relationship with each of the parties and that the Applicant was “primarily responsible for caring for the needs of the children prior to December 2021.” That finding does not exclude a co-incident finding that the Respondent also participated in caring for the children, as he has asserted.
[14] What I cannot do on a motion, based upon only the evidence of the parties in their affidavits, is lift the fog clouding the history of their post-separation cohabitation relationship to determine the precise extent to which either of them might have taken the lead in caring for the children at any point in time, or the extent to which they shared childcare duties.
[15] However, what does seem intuitively likely to me is the truth underlying Mr. Spencer’s assertion that, with three children under the age of seven years, both parties were “required to share in all household responsibilities” when it came to the children.
Mr. Spencer’s Position
[16] Mr. Spencer seeks an equal division of parenting time.
Ms. Daly Shiell’s Position
[17] Ms. Daly Shiell proposes that, as a baseline, Mr. Spencer have parenting time for four hours every Wednesday, and from Friday after school until Saturday at 7 p.m. every second weekend.
Analysis
[18] In his order, Justice Tobin granted Mr. Spencer 28 hours of parenting time bi-weekly, or 14 hours per week.
[19] On a bi-weekly basis, the amount of parenting time suggested for Mr. Spencer by Ms. Daly Shiell amounts to roughly 35 hours, or 17.5 hours per week. That amounts to less than one day per week.
[20] The proposal made by Ms. Daly Shiell is to increase Mr. Spencer’s parenting time by a mere 3.5 hours per week. Only one of those periods will include overnight hours.
[21] In support of her proposal, Ms. Daly Shiell points to what she says is Mr. Spencer’s tendency to violence towards her and the children, behaviour which, she asserts, has led to both police involvement and the involvement of the Children’s Aid Society of London and Middlesex.
[22] In response, Mr. Spencer provided evidence to the effect that numerous complaints have been made about him by Ms. Daly Shiell to both the Children’s Aid Society and the police, but none of them, until recently, had resulted in either a formal child protection proceeding or criminal charges.
[23] To that point, there was a suggestion in the materials that the police had formed an opinion early on that Ms. Daly Shiell was making complaints about Mr. Spencer in an effort to improve her position in this proceeding. Whether true or not, and while I cannot draw conclusions about who did what to or about whom and for what, if any, reason, on this motion, the absence of criminal charges, until recently, and child protection proceedings, is entitled to some weight.
[24] As to the recent criminal charge which was brought against Mr. Spencer for an alleged assault against Ms. Daly Shiell, a charge he denies and is defending, what I can, and must, now take into account is that the parties are now limited in the contact that they may have with one another. The limitation on their contact must be factored into any order that I make.
[25] In rejecting Justice Tobin’s imposition of the specific limitations on Mr. Spencer’s parenting time that he ordered, the Divisional Court emphasized the court’s obligation, under s. 16(2) of the Divorce Act, to give primary consideration to a child’s physical, emotional and psychological safety, security and well-being when determining what parenting order will be in that child’s best interests. The Divisional Court concluded that, by imposing Covid-related restrictions on Mr. Spencer’s parenting time and reducing it, Justice Tobin “significantly and unjustifiably sacrificed the children’s meaningful relationship with their father and thereby failed to maintain the primacy of [their] physical, emotional and psychological safety, security and well-being.”
[26] I take from the decision of the Divisional Court that, absent the restrictions imposed by Justice Tobin in relation to Mr. Spencer’s unvaccinated status with respect to Covid-19, the appropriate order to be made is one which maintains the children’s “meaningful relationship with their father” while also giving primacy to their physical, emotional and psychological safety, security and well-being.
[27] In other words, as I understand the decision of the Divisional Court, the appropriate order to be made in this case is one which gives primacy to the children’s physical, emotional and psychological safety security and well-being by providing them with greater time with Mr. Spencer, with whom they have been found to have a close and loving relationship.
[28] To achieve that result, as I see it, the order that is to be made must take into account the fact that, in the different periods prior to the order made by Justice Tobin, the children were being cared for in the matrimonial home, primarily by Ms. Daly Shiell but, latterly, with increased involvement by Mr. Spencer during the three months of his parental leave.
[29] What I do not take from the decision of the Divisional Court, and what I cannot do in the absence of uncontradicted evidence that the parties cared equally for the children, either before or in the period after their separation, but prior to December 1, 2021, is agree with Mr. Spencer that he is absolutely entitled to equal parenting time with Ms. Daly Shiell in order to achieve a result which, in his view, gives practical effect to the primacy of the children’s physical, emotional and psychological safety, security and well-being.
[30] To that point, I note that the Divisional Court did not disturb Justice Tobin’s comment, based on precedent, that, while the court is to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests, “maximum parenting time does not necessarily mean equal parenting time.”
[31] Given that Ms. Daly Shiell, in her materials, makes clear that she is no longer opposed to the children having overnight parenting time with Mr. Spencer, the real issue is the extent to which he should be afforded additional time, and when it is to be made available to him.
[32] Mr. Spencer has deposed that he continues to work from home and has flexible work hours which allow him to be available to meet the children’s needs, a task he labelled his “highest priority.”
[33] In my view, the result which balances equally the factors set out in s. 16 of the Divorce Act, particularly those set out in s. 16(2), is one which affords Mr. Spencer a greater period of overnight parenting time on alternating weekends plus a mixture of school week overnight and non-overnight parenting time.
[34] Such an order will allow Mr. Spencer to have time with the children both while they are attending school, thereby allowing him to participate in their evening activities, including homework time, while also granting him weekend time when he can enjoy the children apart from periods when schoolwork must be addressed.
Interim Order – Regular Parenting Time
[35] Having regard to the principles that I have considered herein, I make the following order with respect to Mr. Spencer’s interim regular (non-holiday) parenting time in this matter:
- Commencing Friday, November 10, 2023, the children shall be in the care of Mr. Spencer:
a. every second weekend from Friday at 3:30 p.m. or after school, whichever later occurs, until Sunday at 7:30 p.m.;
b. in the week following his weekend parenting the children, on Tuesday and Thursday from 3:30 p.m. or after school, whichever later occurs, to 7:30 p.m.; and
c. in the week preceding his weekend parenting the children, on Tuesday from 3:30 p.m. or after school, whichever later occurs, until the commencement of school the next day, on Wednesday.
At all other times, the children shall be in the care of Ms. Daly Shiell.
Exchanges of the older children shall take place at the school, where possible, and at the daycare for the youngest child, if possible. Where not possible in either case, exchanges shall take place through a third-party intermediary, who shall be Mr. Spencer’s mother, if she agrees, failing which it shall be the Merrymount Supervised Exchange Program, if available at the time of the mandated exchange, or as otherwise agreed upon by the parties through their legal counsel. The use of a third party shall only be necessary for so long as restrictions are placed on Mr. Spencer’s contact with Ms. Daly Shiell through a criminal release order.
[36] By my calculation, this order affords Mr. Spencer approximately 38 hours of parenting time per week, averaged over two weeks. It includes both weekend time with the children and a mixture of mid-week non-overnight and overnight parenting time, while respecting Justice Tobin’s finding that Ms. Daly Shiell was, for most of the children’s lives prior to December 2021, their primary caregiver. It also is based on my inability to make a finding on the evidence before me as to the extent to which either of the parties cared for the children once the Respondent commenced his parental leave which, I must note, was only for a limited period in the post-separation period.
Mr. Spencer’s Motion for Holiday Parenting Time
[37] Mr. Spencer, in his Notice of Motion, also sought an order addressing parenting time during several yearly holiday periods. He particularly focused on two periods in which he felt that he had been deprived of parenting time since the parties physically separated: Christmas and summer holidays.
[38] Ms. Daly Shiell provided little evidence about these requests.
[39] Given that the summer holiday has just passed, I do not propose to address that request in this endorsement.
[40] I will, however, address Christmas 2023, March Break 2024 and Easter 2024. I do not propose to address other periods of time, so that, unless the parties can agree, their regular schedule shall govern, unless either party obtains an order to the contrary on further motion.
[41] The trial is scheduled for the sittings commencing January 8, 2024. If the parties do not proceed to trial before Easter 2024, which I address in this endorsement, the balance of Mr. Spencer’s additional requests for holiday parenting time, including during the summer of 2024, can be brought back before the court on a new motion after March 15, 2024.
[42] As to Christmas 2023, I note from Ms. Daly Shiell’s affidavit sworn July 31, 2023 that the parties had agreed upon the division of time over Christmas Day/Boxing Day in 2022, but that their agreement floundered on the issue of whether the Christmas holiday period was to supersede the regular parenting schedule. As a result, according to Ms. Daly Shiell, her time with the children was truncated because of the scheduling conflict.
Interim Partial Order – Holiday Parenting Time; Costs Submissions
[43] Accordingly, I make the following additions to my regular parenting time order:
- Subject to any agreement between the parties to the contrary, in writing, for the period between December 24, 2023 and January 2, 2024, the children shall be:
a. in the care of Ms. Daly Shiell from December 24, 2023 at noon until December 25, 2023 at noon;
b. in the care of Mr. Spencer from December 25, 2023 at noon until December 26, 2023 at noon;
c. in the care of Ms. Daly Shiell from December 26, 2023 at noon until December 29, 2023 at noon;
d. in the care of Mr. Spencer from December 29, 2023 at noon until January 1, 2024 at noon; and
e. in the care of Ms. Daly Shiell from January 1, 2024 at noon until January 2, 2024, at noon,
at which time the regular parenting schedule shall resume. This schedule supersedes the regular parenting schedule.
Subject to any agreement between the parties to the contrary, in writing, the children shall be in the care of Mr. Spencer for the first half of the 2024 March school break and in the care of Ms. Daly Shiell for the second half thereof, with the parenting time to change at noon on the day mid-way between the start and end dates of the March school break, the court’s intention being that the parties divide the children’s school break time equally between them.
Subject to any agreement between the parties to the contrary, in writing, the children shall be in the care of Ms. Daly Shiell from the end of school on the day before Good Friday 2024, until noon hour on Easter Sunday 2024, and in the care of Mr. Spencer from noon hour on Easter Sunday 2024 until they return to school on the Tuesday following Easter Monday 2024.
The remaining requests by Mr. Spencer for holiday parenting time, including during the summer of 2024, are dismissed, without prejudice to being revived on a new motion should the trial in this matter not be heard, or the matter settled, by March 15, 2024.
The parties are strongly urged to settle the issue of costs. If they cannot, they may direct written submissions on costs to me, through the Family Court Judicial Assistants at London, by November 25, 2023. Submissions shall not exceed 3 pages, double-spaced, in 12-point Times New Roman font, and be accompanied by a Bill of Costs.
Each party shall advise specifically what they have invoiced or intend to invoice their client for this motion.
If no written submissions are received from either party by 4:30 p.m. on November 25, 2023, there shall be no order as to costs, and neither party shall be awarded costs of these motions before me.
Justice T. Price
Date: November 7, 2023
[^1]: This situation ended on March 1, 2022, following the release of Justice Tobin’s endorsement, when Ms. Daly Shiell left the matrimonial home with the children and moved in with her mother.