Court File and Parties

COURT FILE NO.: FS-23-00036263-0000 DATE: 20240216

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DWIGHT WARREN GERLING Applicant – and – AMY CRYSTAL CULL GERLING Respondent

Counsel: Jaret Moldaver and Jesse Rosenberg, for the Applicant Robert Halpern and Jessica Brown, for the Respondent

HEARD: December 5, 2023

VELLA J.

Reasons for Decision

Introduction

[1] The Applicant (the “Father”) seeks equal parenting time with the two children of the marriage, aged nine and six (the “Children”), on a 2-2-5-5 basis. Under this proposal, every week, the Father would have the Children on Monday and Tuesday nights, and the Respondent (the “Mother”) would have the Children on Wednesday and Thursday nights. The weekends would alternate between the parties.

[2] The Mother seeks a division of parenting time with the Children spending six nights every two weeks with the Father, and the remaining eight nights with her (a 6/8 schedule). In addition, she seeks a mutual right of refusal, which would permit the non-custodial parent to look after the Children if the custodial parent could not for any reason. She also sought immediate relief regarding the then upcoming Christmas holiday schedule. Under the Mother’s proposal, the Father would have Monday and Thursday nights, and the Mother would have Tuesday and Wednesday nights. This would permit her to continue taking the Children to gymnastics, which occurs on Tuesdays after school.

[3] Briefly, the parties were married on June 29, 2013. They separated on September 22, 2021.

[4] The Children are attending elementary school at Lycée Français de Toronto.

[5] The parties have lived separate and apart under the same roof since the date of separation.

[6] The Father purchased a house for the Mother (of the Mother’s choice) in October 2022 for $2,850,000, so that they can live physically separate and apart. The new house has bedrooms for the Children and is in the catchment area for their current school. The new home is close to the matrimonial home as well. However, the Mother has not moved in that house, preferring to remain in the matrimonial home until a parenting order is made. She will move out of the matrimonial home upon the making of the requisite order setting out a parenting schedule and plan.

[7] While living separate and apart under the same roof, the parties have equal access to the Children during the week and alternate weekends with the Children.

[8] In light of the then pending Christmas holidays, I released a partial ruling on December 5, 2023 setting out a holiday schedule from December 22, 2023 to January 8, 2024. That schedule set out an equal parenting schedule, with an overlap on Christmas morning so that the family could spend Christmas morning together.

[9] There are no concerns expressed by either parent about the Children spending overnights with either of them.

[10] There are allegations of family violence in the nature of financial abuse/coercion and psychological abuse made by the Mother against the Father, which the Father vehemently denies.

[11] The Father has alleged incidents of physical assaults, typically in the form of throwing objects at or near him, which the Mother vehemently denies. The Mother also denies that she placed a GPS in the Father’s car to track him. She denies the Father’s allegations that she has psychological disorders arising from alleged abandonment by her father that cause her to be overprotective of the Children or enraged at the Father from time to time.

[12] The Father has surreptitiously audio recorded the Mother and has taken video recordings and photographs for use in this litigation.

[13] The Father objects to the number of exhibits attached to the Mother’s affidavit on the basis they exceed ten pages. However, as pointed out by the Mother, the Practice Direction stipulates that exhibits will not generally exceed ten pages.

[14] The Father, in turn, attached video and audio links to his affidavit. Given the respective lengths of these recordings, it is arguable that he would have exceeded ten pages if the associated transcripts of the recordings had been included along with his other exhibits.

[15] Given the importance of determining the best interests of the Children on the basis of a written evidentiary record, which includes cross allegations of family violence, the court is prepared to have the benefit of all the exhibits to the extent they are probative of the material issues and otherwise admissible. To the extent leave to exceed the number of pages is required, it is granted.

[16] The Father also objected to the late filing of Ms. Charvieux’ affidavit, served at 2:23 p.m. on November 21, 2023, contrary to the consent timetable indicating that these affidavits were to be served by November 20, 2023.

[17] I am allowing Ms. Charvieux’ affidavit, as it contains probative evidence on material issues and the one-day lateness did not cause prejudice to the Father (nor did he allege that it did).

[18] The Father could have attached further exhibits and responded to Ms. Charvieux’ evidence in his Reply affidavit, sought a day extension to do so and/or asked for an adjournment of the motion to file further evidence.

[19] In terms of the evidentiary record, there are several problems relating to admissibility.

[20] First, the Mother quotes out-of-court statements from professionals who have ostensibly provided her with advice and opinions regarding parenting schedules appropriate for these Children. There was no opportunity for the Father to cross-examine these professionals absent affidavits from them. Accordingly, I am only permitting the third-party statements from Sharon Chayka, psychotherapist, and Victoria Bailey, a child/family therapist, for the fact that the Mother made inquiries and received advice. They are not admitted for the truth of the content of the advice itself.

[21] Second, the surreptitiously recorded audio recording attached as an exhibit to the Father’s affidavit is inadmissible on this motion. The Mother did not know she was being recorded on the Father’s smartphone. She also claims that it is a segment of a much longer event. I have listened to this recording, and it appears that the Father is making self-serving statements. The courts take a dim view of such recordings, in part, because they undermine the objective of fostering trust between parents. If one parent is concerned that they might be recorded, it will not promote the cooperation and give and take that is necessary to promote co-parenting decisions. This cannot be in the best interests of the Children. As noted by many courts, surreptitious recordings in family matters are strongly discouraged and will often reflect poorly on those who recorded them. Only in exceptional cases will such recordings be admitted into evidence after the adducing party demonstrates that the recordings are authentic, reliable, not out of context, and the probative value is not outweighed by the significant presumptive prejudice to the administration of justice. In this motion, the recording would also have to be relevant to a determination of the best interests of the Children in the parenting context.

[22] The video recordings adduced by the Father are not very probative. They purport to show the aftermath of an argument but are not corroborative of who caused the damage visible or what led to such actions. The Father has not been cross-examined, and the Mother has provided her own context, including her evidence that the event was only partially recorded. She was not cross-examined either. The photograph attached as an exhibit has little probative value for the same reason.

[23] Furthermore, while the Father attributes various psychological conditions/disturbances and psychiatric diagnoses to the Mother, he offers no supporting expert evidence. Accordingly, I accept psychological conditions attributed to the Mother only to the extent that she has admitted to any in her affidavits.

What parenting schedule is in the best interests of Rosalie and Dawsson?

[24] This is primarily a motion for an interim, temporary parenting schedule. It is brought at an early stage in the proceedings. No cross-examinations or questioning has occurred. The court must rely on a written record, in which there is diametrically opposed evidence regarding, in particular, the relative parenting roles of the Mother and Father prior to separation and post-separation, and the potential constraints imposed on the Father’s availability given his international business concerns and related travel. There are also allegations of family (intimate partner) violence which the Mother and Father bring against each other.

The Law

[25] The role of the court, recognizing the imperfections of the evidence given its form and the early stage of litigation, is to do its best to fashion a reasonable parenting plan in an expeditious way that is in the best interests of the children. The interim parenting plan is in place pending mutual agreement or a trial, when a more fulsome evidentiary record will be available and the evidence will be rigorously challenged: Ghafur v. Khan, 2021 ONSC 6577, at para. 42. The plan is intended to provide the children with stability and predictability on an interim basis. In the meantime, if there is a material change in circumstances that develops in the future, the temporary order may be varied.

[26] That said, it is fair to observe that a temporary order will create a status quo, and that may play into an ultimate determination of the best interests of the child at trial. Furthermore, the pre-existing state of affairs as relates to parenting roles, routines, and responsibilities will often be translated into a temporary order, providing it will be in the best interests of the child: H. v. A., 2022 ONSC 1560, 69 R.F.L. (8th) 18, at para. 33.

[27] In making this decision, the court considers only what is in the best interests of the child: Divorce Act, RSC 1985, c. 3 (2nd Supp), s. 16(1). The non-exhaustive list of factors set out in s. 16(3) and the issue of family violence set out in s. 16(4) of the Divorce Act will inform that determination. Primary consideration will be given to the child’s physical, emotional, and psychological safety, security and well-being (Divorce Act, s. 16(2)). The court will use a holistic approach and apply the factors to the particular circumstances of the child before it.

[28] Furthermore, no factor under s. 16(3) is more important than the others, but some factors may be irrelevant or less weighty to the specific facts of the case at bar: Cote v. Parsons, 2021 ONSC 3719, at para. 130.

[29] As stated in Barendregt v. Grebliunis, 2022 SCC 22, 469 D.L.R. (4th), at para. 97, the inquiry for determining the best interests of a child “is ‘highly contextual’ because of the ‘multitude of facts that may impinge on the child’s best interest’”. As such, determining a child’s best interests “is always a fact-specific and highly discretionary determination”: Barendregt, at para. 100.

[30] It is trite law that the interests of the parents are not considered except insofar as they are relevant to a determination of the best interests of the children: R.A.K. v. M.Z., 2023 ONCJ 476, at paras. 60, 61, citing Gordon v. Goertz, [1996] 2 S.C.R. 27 and Young v. Young, [1993] 4 S.C.R. 3. A parent’s logistical capability of engaging in a particular schedule is one such example.

[31] The existence of family violence between spouses will inevitably have an adverse impact on the children and is relevant to a determination of a parent’s ability to parent or co-parent in a manner that focuses solely on the best interests of the children: Barendregt, at paras 142-43, 146; R.A.K., at para. 66.

[32] The courts will often favour a shared parenting arrangement where it is not clear on the interim motion with whom it is in the best interests of the children to be with. The courts will consider what the caregiving arrangement was prior to separation and while living separate but apart prior to the motion. Furthermore, in examining the pre-separation and post-separation parenting practices and children’s routines, the court will not simply take a mathematical approach to quantification of the time spent by each parent with the children but will take a qualitative view of the time spent: Sribalan v. Dickson, 2023 ONSC 1254.

[33] The parties relied on the below excerpts (though each relied on different excerpts) from the AFCC-Ontario Parenting Plan Guide, January 2020, Bala et al (AFCC-O). The courts draw on the AFCC-O, which provides suggestions and frameworks for formulating parenting arrangements that meet the needs of the children in specific age ranges. In McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, the court specifically recognized the value of the AFCC-O.

[34] The AFCC-O Guidelines state for six- to nine-year-olds, in part, as follows, at p. 22:

At this age, children generally should have very significant involvement with both parents… If both parents have had a substantially equal role in parenting, and separation occurs when a child is in this stage of development, it will normally be appropriate for them to have roughly equal parenting time with their children of this age, provided this is logistically feasible for them. This will normally involve children spending 2 to 7 nights in a two-week cycle with each parent.

For children in this age group, an equal parenting time schedule could be based on 2 to 7 nights in a row with each parent, for example, a 2-2-3 or a 5-5-2-2- or a 3-4-4-3 arrangement. For some children and parents, transitions can be challenging, and alternate weeks may be more beneficial for children in this age group. [Emphasis added.]

[35] The AFCC-O Guidelines for this age group also state, in part, the following, at p. 23: “If separation occurs when a child is in this age range and one parent has had a smaller role in parenting, it is normally preferable for the other parent to provide most of the care initially after separation, but the children will benefit from significant involvement with the other parent.”

[36] The AFCC-O Guidelines do not set out any hard and fast rules but rather provide general principles, which are intended to be applied and adapted to fact specific scenarios as recognized under the heading, Age Appropriate Plans and Schedules, at p. 12: “Canadian law does not start with a presumption that there will be equal parenting time. Rather both research and Canadian law support individualized plans for children based on the needs of each child in the family and the circumstances of the parents.”

[37] The parties have placed various cases before me that support their respective parenting plans. While this jurisprudence is helpful, no case is determinative of the case before me, as it requires a fact-driven analysis.

Analysis of the Evidence

[38] The Father asserts that he has always been heavily and equally involved in parenting the Children and that this has not changed post-separation except to the extent that the Mother interferes with his ability to fully participate in this role.

[39] The Mother disagrees. She asserts that she has always been the primary caregiver, as a stay-at-home mother who gave up a legal career to allow the Father to expand his businesses. The Mother asserts that their spousal relationship was a “traditional” one, in which she was solely in charge of household affairs and management, including managing the Father’s rental property, and primarily in charge of caring for the Children. The Father does not dispute the characterization of the spousal relationship, though he disputes the characterization of the parental roles.

[40] At the date of marriage, the Father had 4 companies, which he has now grown to 13 companies. The Father’s business is international in scope and requires him to travel to southeast Asia and the United States to develop and maintain client relationships. His main company, DG Global, is the largest shipper of containerized agricultural goods in Canada, and he has grown his business into a multi-million dollar one. The Father is the sole owner of this business and has employees and thus, he contends, has a certain amount of autonomy over his work schedule and the planning of his business trips.

[41] The Mother alleges that she has been the victim of family violence consisting of financial abusive control and coercion by the Father, and emotional and verbal abuse aimed at deflating her self-esteem and self-worth. She points out that the surreptitious recordings and “photographic surveillance” of her “domestic activities” made after separation and now being used against her by the Father in this litigation reflect incidents in which the Father deliberately provoked her.

[42] She further alleges that in 2018, the Father kicked open a locked bathroom door to get to her, and he has thrown objects directly at her, such as his smartphone and television remote.

[43] The Father retorts that in fact, he has been the victim of family violence, as the Mother threw objects at him and verbally berated him. He states that the Mother has a volatile temper and is unable to regulate her emotions.

[44] They both allege that some of these verbal incidents have been in front of the Children or could be heard by the Children.

[45] When faced with a written evidentiary record that has not been challenged by cross-examination or questioning, the court must examine the whole of the record with a view to determining what likely happened based on a preponderance of the evidence. The court will examine any internal consistencies and the amount of detail, or lack thereof, and the documentary and third-party evidence that tends to confirm or refute the plausibility of a party’s version of events in determining what is likely the truth. The courts will examine the respective versions of events to see which is most in harmony with the surrounding circumstances presented by the entire evidentiary record. The court can accept all, some, or none of a witness’ evidence and similarly all, some, or none of a party’s version of the material events.

[46] In reading the Father’s affidavits, I was struck by the lack of particularity in his description of his parenting roles prior to and post-separation. There was also a lack of confirmatory or corroboratory evidence. This was in contrast to the Mother’s detailed explanation of the day-to-day roles she performed for the Children and the substantial body of evidence in the form of documentary evidence and third-party affidavits that supported her description.

[47] The Father deposed generally that during the marriage, they shared equally or fully shared in the responsibility of caring for the Children. They shared domestic chores. Each consistently made meals for the Children, shuttled them to and from school and to their appointments or activities. Both conducted the Children’s morning and bedtime routines and continue to do this post-separation while living in the matrimonial home together.

[48] He deposed that since they have been living separate and apart in the matrimonial home for more than two years, he has had “equal access” to the Children at all times during the week and on alternate weekends with the Children.

[49] The Father deposed that post-separation, he has readied the Children for school and conducted their morning routines, but the Mother interferes when he wants to drive them to school or cook them meals. She causes conflict in front of the Children, causing him to back off and acquiesce to her demands.

[50] Furthermore, he and the Mother have divided the shuttling responsibilities for the Children’s extracurricular activities. He takes them to soccer, and she takes them to gymnastics. The Mother also takes them to tennis on Thursdays.

[51] He deposed that there are no special needs, issues, or concerns with respect to the two Children.

[52] The Father admitted that “on occasion”, he must be awake later than usual in the evening or earlier than usual in the morning to communicate with business contacts in Asia, but he has appropriate management personnel in place to ensure he can be present when the Children require him. He stated that if he cannot pick up the Children for any reason, he can arrange for someone else to do so, as many working parents do.

[53] The Father denies that he has to spend more than five days out of town on business trips and that in any event, he can organize his schedule such that this travel will not interfere with the 2-2-5-5 parenting schedule he proposes.

[54] A good portion of his affidavit evidence is devoted to portraying the Mother as having mental health challenges and being unstable, such as suffering from paranoia, self-identifying as a victim, and viewing people as either all good or all bad (suggestive of borderline personality disorder). He claims that the Mother shifts between emotional extremes, and her temper has led to her throwing, smashing, and breaking objects on kitchen countertops and floors and against the walls, while he remains calm, composed, and child focused, and “cordially” attempts to diffuse her outbursts. He recounts a “tirade on the night of October 3, 2021” with particularity. He took a photograph of the damage attributed to her, a video showing that damage, and a second video of him cleaning up “the dangerous mess”.

[55] On the other hand, the Mother has detailed specifically what she has done as a parent. This includes the various tasks she has undertaken in relation the Children’s school and education, such as driving them to school each morning and picking them up at the end of the day, liaising with the Children’s teachers, enrolling them in extracurricular activities, setting up play dates and attending parent-teacher meetings. She also added, more generally, that she has been responsible for all of the Children’s medical appointments, with the exception of a couple of isolated incidents in which the Father took the Children.

[56] The Mother states that she has made almost all of the meals, as the Father was regularly arriving late at night from work and often after dinner. She wakes up the Children every morning at 6:30 a.m. and feeds them breakfast while the Father sleeps. The Father will see the Children off before they go to school.

[57] The Mother also deposed that in fact, the eldest child has some learning challenges that have required her to engage tutors and develop study plans with the school.

[58] The Mother also detailed allegations of financial control, coercion, and verbalized abuse causing her emotional distress, citing examples for all.

[59] In his Reply affidavit, the Father does not contradict the Mother’s description of the specific tasks she is solely responsible for, except to attach text exchanges on October 10 and 13, 2023 to show that he was willing and able to pick up the Children from school when asked. He also attached two photographs he took of a birthday party for Dawsson to contradict the evidence of Ms. Erard, who deposed that she did not see him at this birthday party.

[60] The Mother produced a detailed chart that shows her version of the Father’s work schedule. It details, by date and occasion, when the Father was late coming home from work, and several overnight business trips, including some that were two or more weeks long. She produced a text message from the Father in which he states that it makes more sense to spend two weeks on trips to Asia so he can see various clients all on the same trip, which he tends to take at least once a year.

[61] The Mother produced several emails and text messages that tended to confirm her version of events. The emails included interactions she had with the school regarding the Children over the years.

[62] The Mother also adduced affidavits from four witnesses who tended to confirm her version of the respective parents’ roles in the day-to-day lives of the Children based on their involvement with the Children and/or the family in a professional or personal capacity.

[63] Estelle Charvieux is a teacher at the Children’s school, Lycée Français de Toronto. She has taught Dawsson for two years in a row – junior and senior kindergarten (2021-2022 and 2022-2023). She also tutored Dawsson and Rosalie in the summer of 2022. She deposed that she has had extensive contact with the Mother, including during parent teacher interviews, about Dawsson in particular and his progress.

[64] She deposed that based on her daily observation, Dawsson has an “extremely close bond” with the Mother. She has witnessed that virtually every morning after drop off at school, he would draw a picture of his mother, or of the two of them together, before class started. Notably it was the Mother whom she saw drop off Dawsson at school for these two years.

[65] She was also aware from the Mother that Rosalie was having some academic challenges in French immersion, and so she agreed to tutor Rosalie (and Dawsson) to prepare her for grade three, on the recommendation of Rosalie’s grade two teacher. During the tutoring sessions, she interacted with the Mother.

[66] Furthermore, Ms. Charvieux confirmed that it was the Mother who volunteered for school events, attended Dawsson’s school activities and trips, and made cupcakes for the class to celebrate Dawsson’s birthday. The Mother was the parent delegate for Dawsson’s senior kindergarten class, at the request of Ms. Charvieux. Ms. Charvieux’ affidavit featured emails as exhibits confirming her evidence about the Mother’s involvement in Dawsson and Rosalie’s school-related matters on a day-to-day basis.

[67] Larry Cull is the maternal grandfather. The upshot of his affidavit is that he has spent much time at the matrimonial home, as he lives close by in a rental owned by the Father. He often had dinner with the Children, almost always in the absence of the Father, who routinely worked late. He observed that the Mother cooked the meals and would bathe and put the Children to bed on her own on these occasions. On occasion, when he lived overseas, he would also fly over to stay with the Mother and the Children when the Father was on long business trips. Based on his observations, the Mother did most of the day-to-day child rearing activities while the Father worked.

[68] Alix Erard was an assistant teacher at the Children’s school. From January 2021 to August 2021 (pre-separation), she provided in-home French and other academic support to Rosalie. Ms. Erard’s contact was entirely with the Mother. She deposed that during the time she tutored Rosalie at home during COVID, she did not see the Father very often. Generally, he did not join them for lunch either. Once school opened again, she was charged with having the parents sign a COVID protocol acknowledgement each morning. In this capacity, she saw the Mother drop off Dawsson at school every morning.

[69] Katherine Stefanski is a friend of the Mother. Their children go to the same school and are also friends. Dr. Stefanski deposed that she and the Mother have organized many events for the respective families and their children. She also observed that the Mother is very involved in the Children’s schooling and has planned and hosted many birthdays and other celebrations for the Children.

[70] What is noticeable about these affidavits, aside from the details explaining how the Mother is involved in the school, extracurricular activities, play dates, and daily routines at home, including dinners, is the lack of mention of the Father. The only exception was Mr. Cull, who deposed that it was common for him to have dinner with the Mother and the Children on weekdays while the Father was at work.

[71] Ms. Charvieux’ affidavit was particularly persuasive. She is a professional and had substantial contact with the Mother and the Children in the school and education context. Her credibility and reliability were not attacked by the Father.

[72] The Mother points out that she has been taking the Children to gymnastics on Tuesdays, which the Father’s proposed schedule would disrupt.

[73] The Mother’s plan provides for a right of first refusal to allow a parent to take over parenting responsibilities for the other parent in the event that the parent charged with care cannot look after the Children. It also provides that both parents can attend any of the Children’s extracurricular events. At the motion, the Father agreed in principle with the right of first refusal, providing it was mutual and only required him to use “best efforts” to provide one month’s notice of an inability to look after the Children during one’s parenting time. The Mother also points out that when she was planning a holiday in Mexico with the Children and another family, she invited the Father to come, and he did. They have already been sharing some important holidays such as this past Christmas in the morning.

[74] On the other hand, the Father’s affidavit consists of bald assertions about his parenting role and is not supported by third-party evidence and very little documentary evidence. As stated, his exhibits focused on the Mother’s behaviour, and in his Reply affidavit, he put in a schedule of his business travel, which he says is more accurate than the Mother’s version. That said, his schedule shows some overseas trips which were more than five days long between 2020 and 2023, including out-of-country business trips to third-party organized conferences and seminars, which are obligations he does not have control over. However, given that the parties jointly agreed on the right of first refusal, I do not see the Father’s annual long-haul business trips being a barrier to either of the proposed schedules. I did note that based on the Father’s version of his out-of-country trips, some of them fell on Mondays and Tuesdays and others on Wednesdays and Thursdays. I have not made any findings with respect to the allegations of family violence except that these allegations do not have a material impact on assessing the competing parenting schedules, one of which results in 50/50 equal time and the other which results in a 60/40 time allocation in favour of the Mother.

[75] The Father’s attacks against the third-party witnesses are not persuasive. For example, he describes Mr. Cull as an “absentee father” for the Mother during her childhood, and as such, he should not be trusted to be truthful or reliable. This is not a persuasive attack. That said, I recognize that the maternal grandfather may not be entirely impartial given the Mother is his daughter.

[76] Furthermore, much of the Father’s details focused on events that he says calls into question the Mother’s stability and mental health. For example, he describes in detail two specific events that allegedly occurred on October 3, 2021 and January 2020. He later deposes that the Mother’s mood has improved recently somewhat since she has been taking medication for depression and anxiety. If the Father is truly concerned about the mental health of the Mother, why is he proposing equal parenting time, as opposed to more restricted or even supervised parenting time? It seems that the attack on her mental health is not germane to his position as to what parenting plan is in the best interests of the Children.

[77] For these reasons, I find that the Mother’s version of parenting roles and responsibilities, as relates to the best interests of the Children, is more harmonious with the third-party and documentary evidence adduced than the Father’s version.

Conclusion

[78] There is no doubt that both parents love their Children and want what is in their best interests.

[79] It is not contested that both parents trust each other to generally care for the Children and look after them overnight.

[80] There is no suggestion that the siblings should be separated for purposes of parenting time.

[81] The issue is what schedule is in the best interests of these Children based on the factors under s. 16 of the Divorce Act and taking a holistic approach fine tuned to the particular circumstances of each child.

[82] The preponderance of evidence on the record before me leads me to conclude that the Mother has been the primary caregiver for these Children since birth, and that this has not changed substantially since separation. The Father has concentrated on the development of a successful business enterprise that requires him to deal with customers in Asia and the United States, via videoconference and in-person visits. The Father’s past history shows that he has had to make trips that are more than five consecutive days long and that he works very hard, often late into the night. While he may have some control over his schedule, the past history shows that he has spent long hours developing and maintaining his enterprise.

[83] Furthermore, the youngest child has a particularly strong attachment to the Mother. This attachment should not be disrupted more than is required by his best interests, which also require that he have substantial time with the Father.

[84] The Father submits that the Mother’s proposed schedule will alter the status quo. However, so will his. The Children’s status quo will be changed upon the Mother’s pending move out of the matrimonial home. The Children will no longer have “equal access” to the parents in person as they did. The Children will continue to go to school during the weekdays. On some weeknights and on the weekends, they will have to transition between homes. The Children will have the possibility of seeing both parents at the same time at extracurricular events and possibly on certain special days.

[85] I also do not find that the additional two transitions required by the Mother’s proposed schedule will be detrimental to the Children at their ages and respective stages of development. If anything, requiring the Children to stay with the Father on Tuesdays will alter the status quo in terms of the fact that the Mother has always taken them to gymnastics and tennis on Tuesdays and Thursdays. While this is not a sufficient reason on its own, it is relevant to an overall determination of what is in the best interests of the Children and will promote stability and consistency in their routine as relates to their weekly extracurricular activities. The Children will have to adjust to their Father taking them to school on the days they are in his care. Neither party submitted that this type of change would be detrimental to the Children.

[86] Furthermore, Dawsson in particular, but also Rosalie, will benefit from spending a larger proportionate share of time with the Mother at this particular stage in their young lives based on the evidence. The proportionate share of time (approximately 60/40 split) reflects the maximum amount of contact with each parent that is consistent with the best interests of these Children: Divorce Act, s. 16(6); Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at para. 3; Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721.

[87] The Father has deposed that he has flexibility over his business and his work-related travel schedule while the Mother continues to be a stay-at-home parent. Accordingly, the Mother’s schedule should be logistically feasible for both parents.

[88] In light of my findings, I do not need to decide on the veracity of the family violence allegations. I note that neither the police nor the children’s aid society have been called in response to any reports of family violence. There is no evidence suggesting that either of the parties’ proposed parenting schedules have been driven by allegations of family violence, save for the Father’s observation that his proposal would eliminate the need for direct contact with the Mother during transitions, as the pick ups and drop offs would be at the school to reduce opportunities for tensions to arise. On the other hand, neither parent has raised concerns about them being at the Children’s extracurricular activities at the same time or sharing important holidays (as reflected by my partial ruling in which both parents wished to share Christmas morning as a “family” unit).

[89] Turning to the specifically referenced relevant factors under s. 16(3) of the Divorce Act, I consider the following:

a) the ages of these Children (six and nine), their stage of development (particularly Dawsson) and the need for stability; b) the special educational needs of the eldest; c) the nature and strength of each child’s relationship with each parent and the maternal grandparent (the Mother has demonstrated that the Children are more closely bonded with her due to her role as the primary parent); d) the Mother’s primary role in caring for the day-to-day needs of the Children pre- and post-separation (while recognizing that the Father is playing an increasingly substantial role in those day-to-day needs); e) the Mother’s demonstrated willingness to support the development and maintenance of the Children’s relationship with the Father; f) the respective plans for care of the Children, with the Mother’s ability to provide direct care on a more consistent and predictable basis than the Father (who indicated that if business interfered, he would rely on others as all working parents do); g) the ability and willingness of each parent to care for and meet the needs of the Children (both are willing, but the Mother is more experienced in the educational needs of Rosalie and more able to deal with the attachment needs of Dawsson, as demonstrated by her efforts in successfully transitioning Dawsson to sleeping in his own bed alone); and h) the ability and willingness of each parent to communicate and cooperate, in particular with one another, on matters affecting the Children (both are able and willing, as demonstrated in the evidence).

[90] In my view, the Mother’s plan is in the best interests of the Children on an interim and temporary basis. The factors under s. 16(3)(e), (f), and (k) of the Act were not applicable in this analysis, and the family violence factor under s. 16(3)(j) did not play a weighty role in this analysis.

[91] It is not in the best interests of the Children to be away from the Mother, the primary parent, for as many as five consecutive nights. Rather, a more modest transition is appropriate, while still reflecting that the Father will have a shared parenting arrangement with 40 percent of the time with the Children.

[92] The Mother’s plan is also consistent with the AFCC-O recommendations based on the findings of fact I have made. Under this temporary schedule, the Father will have substantial time with the Children and can establish the logistical plausibility of this or a different parenting schedule by the time of a trial.

Matrimonial Home

[93] On consent, the Father shall have exclusive possession of the matrimonial home.

Disposition and Orders

[94] The following orders are issued:

(a) On a final basis, the Father shall have exclusive possession of the matrimonial home;

(b) On a temporary basis, commencing on February 16, 2024, the parties shall share parenting time with the Children, namely Rosalie Ivy Julia Gerling, born November 28, 2014 (“Rosalie”) and Dawsson Michael Richard Gerling, born April 21, 2017 (“Dawsson”) (collectively, the “Children”) based on the following schedule:

Week 1

(i) The Children shall reside with the Father from Monday pick-up at school (or at 4:00 p.m. if there is no school) until drop off at school on Tuesday morning (or 8:30 a.m. if there is no school);

(ii) The Children shall reside with the Mother from Tuesday pick-up at school (or 8:30 a.m. if there is no school) until drop off at school on Friday morning (or at 4:00 p.m. if there is no school); and

(iii) The Children shall reside with the Father from pick up at school on Friday (or at 4:00 p.m. if there is no school) until drop off at school on Monday morning (or 8:30 a.m. if there is no school);

Week 2

(i) The Children shall reside with the Father from Monday pick-up at school (or 4:00 p.m. if there is no school), until on Tuesday morning (or 8:30 a.m. if there is no school);

(ii) The Children shall reside with the Mother from Tuesday pick-up at school (or 8:30 a.m. if there is no school) until drop off at school on Wednesday morning (or 4:00 p.m. if there is no school);

(iii) The Children shall reside with the Father from Wednesday pick-up at school (or 4:00 p.m. if there is no school) until drop off at school on Thursday morning (or 8:30 a.m. if there is no school); and

(iv) The Children shall reside with the Mother from Thursday pick up at school (or 8:30 a.m. if there is no school) until drop off at school on Monday morning (or 4:00 p.m. if there is no school).

(c) For any transitions that do not take place at school, the incoming parent shall pick the Children up from the other parent’s home at the time set out above.

(d) In the event that either parent is unable to pick the Children up from school on his or her assigned weeknight, he or she shall immediately notify the other parent and permit that parent the option of collecting the Children on their assigned date and caring for them until the other is able to take over. Otherwise, on non-school days (from Fridays to Sundays), the parties will employ a six hour right of first refusal, meaning that if either party cannot take care of the Children for a minimum of six consecutive hours, the other party shall be offered the right to take care of the Children during the period.

(e) In the event that either parent is required to travel and/or be absent on their respective allocated days and/or weekends, they shall notify the other parent at least one month in advance and will give the other parent the right of first refusal to cover the absentee parent during his or her time away. There shall be no make up time.

(f) The parties shall communicate through Our Family Wizard for all issues related to the Children.

[95] If the parties cannot agree on costs, then the Respondent shall deliver her costs outline and written submissions within five days from the release of this decision, and the Applicant shall deliver his costs outline and written submissions within five days thereafter. The written submissions shall not exceed three typed, double-spaced pages each.

Justice S. Vella Released: February 16, 2024