F.P. v. S.P., 2024 ONSC 1747

Court File No.: 157-23 Date: 2024-03-25 Superior Court of Justice - Ontario

Re: F.P., Applicant And S.P., Respondent

Before: The Honourable Madam Justice L. Bale

Counsel: Kenneth Younie, Counsel, for the Applicant Lucia Lam, Counsel, for the Respondent Marlene Vanderspeck, Counsel, OCL

Heard: March 20 and March 22, 2024

Endorsement

Overview

[1] This long motion was heard over the course of two days.

[2] Extensive materials were uploaded to Caselines and all materials were reviewed and considered by the court. Given the very detailed competing Affidavit materials filed, it is not possible to recount nor consider every area of dispute. The court’s failure to reference every allegation or argument advanced by the parties should not be construed as a failure to consider those positions.

[3] The Respondent mother seeks primary residence of the children, and exclusive possession of the matrimonial home. She requests that the Respondent father share parenting time with the children on alternating weekends and every Tuesday evening from after school until 7:00 p.m.

[4] The Applicant father seeks to maintain a schedule of equal parenting time with the children of the marriage, preferably pursuant to a week-about parenting schedule. He is opposed to the Respondent’s request for exclusive possession of the matrimonial home.

[5] The Office of the Children’s Lawyer supports the position of the Applicant mother. Detailed views and preferences of the children were not provided in the form of sworn evidence, and efforts are underway to have an OCL clinician assigned to the file. Generally, the court is advised that the children’s views are consistent with the mother’s motion. That is, that they wish to remain in the matrimonial home, residing primarily with the Respondent mother.

Background Facts

[6] The parties were married on July 22, 2006. They separated on May 19, 2022.

[7] There are six children of the marriage, namely: a. T. P. – age 16; b. Fr.P. – age 15; c. N.P.- age 14; d. Ra.P. – age 10; e. Ro.P. – age 7; and f. M.P.– age 3.

[8] The parties have been implementing a without prejudice alternating two-day nesting arrangement in the matrimonial home since September 2022.

[9] In her initial supporting Affidavit, the Respondent mother asserts, amongst other things, that: a. She is the children’s primary caregiver, and was throughout the parties’ marriage. In particular she asserts that: i. She was responsible for the children’s health-related appointments, school, social, and extracurricular activities; ii. She was responsible for meal preparation, morning and evening routines, homework, etc.; iii. She homeschooled the children (T.P., Fr.P. and N.P. up to and including grade 8, Ra.P. and Ro.P. to grades 5 and 2), until returning as a full-time supply teacher with the Niagara District School Board in January 2022; iv. Since separation she has continued to be responsible for the children’s haircuts, wardrobes, school forms, registration for schools, camps, and counselling; and v. The children are more closely bonded with her than with the father. b. The father struggles with, or has in past struggled with, depression and anxiety and addiction to THC. At times, she alleges he has experienced psychosis. He took a six-month mental health leave from work in 2022/2023. The children have frequently detected and commented upon his marijuana usage. c. The parties attempted a trial parenting schedule in or around April 2022, wherein the children spent time with the father at the paternal grandmother’s home from Thursday evening to Sunday evening. All children had difficulty adjusting to this schedule. d. A domestic occurrence took place on May 26, 2022 at an attempted parenting exchange, which involved police intervention. The Applicant father moved back into the home the following day and advised that he would not vacate the home again without an equal parenting schedule in place. e. In September 2022: i. The Applicant recorded an argument between the parties and posted it on YouTube; ii. A physical altercation took place between the parties, in which the Applicant struck the Respondent. The youngest child was present for the event. The incident was investigated by police, but charges were not laid. iii. A FACS investigation was commenced, and a safety plan was created whereby the parties agreed to a temporary without prejudice nesting arrangement, whereby each parent resides in the home with the children pursuant to a two-day alternating schedule. f. The parties have commenced preparations for the sale of the matrimonial home and anticipate that it will be sold on consent. g. The status quo parenting arrangement is not in the best interests of the children. In particular, the mother advises the court of the following: i. The children are distressed by the tension and conflict between the parties; ii. The father has difficulty controlling his anger; iii. The Applicant father discusses adult issues with the children and denigrates her in their presence; iv. The Applicant father targets or ridicules the oldest child, T.P., asserting she is ‘sinful, rebellious, wicked’, etc. because she does not agree with the father’s opinions. T.P. has disclosed thoughts of self-harm; v. There is conflict between the Applicant and Fr.P., and their arguments are ‘escalating’, including physical aggression and violence. Fr.P. has reported that the mother’s identification emoji on the father’s phone is a devil; vi. The children Ra.P. and Ro.P.; 1. have observed the father emptying the mother’s belongings from a dresser; 2. have been instructed to report back to the father regarding the mother, and has advised them that the older children are the mother’s ‘spies’; vii. the father transferred money into the bank accounts of T.P., Fr.P. and N.P. and then required them to withdraw cash from their bank accounts to assist with his legal fees; viii. the father has mood swings and engages in erratic behaviour. His discipline of the children is often harsh and inconsistent. The older children have expressed that they do not feel safe in his care; ix. the father has engaged in ‘pushing’ and ‘shaking’ behaviour with N.P.; x. the father undermines rules in the home set by the mother (e.g., bedtimes, boundaries, etc.); xi. the child M.P. is struggling with transitions; xii. the child Ro.P. is struggling with headaches, nausea, insomnia and emotional regulation; xiii. the father places undue reliance upon the older children to care for the younger children during his parenting time. He is angry with them when they cannot accommodate the shifts for their part-time employment around his parenting schedule. He has pressured them to withdraw from their extracurricular activities at school; and xiv. the father has prevented the children from contacting the mother during his parenting time by unplugging the telephone landline and blocking her as a contact on their devices. h. The mother also reports that the father has attempted to watch or record her actions in the matrimonial home, without her consent, through cameras in the home and has both blocked her car in and out of the driveway. i. The mother asserts that the father could relocate temporarily to reside with the paternal grandmother, who resides approximately 10 minutes away. The father resides there during his time when he is not in the matrimonial home. j. The parties currently contribute equally to the carrying costs of the matrimonial home. k. Medical records filed on behalf of the five oldest children reveal that they have all been formally diagnosed with Adjustment Disorder, with anxiety and mood symptoms. ‘Significant stressors’ are noted to relate to the parties’ separation. Counselling (behaviour intervention and modification) was recommended for all five children. l. The mother advises that the father does not accept the children’s mental health diagnoses and until recently refused to take them to their therapeutic sessions. m. The five oldest children are enrolled in school on a full-time basis. The youngest child, M.P., is enrolled in full-time day care but the father does not take the child on his scheduled parenting time. Ro.P. and Ra.P. attend before-school care, and Ro.P. regularly attends after school care, which is on-site at their school.

[10] In his initial supporting/responding Affidavit, the Applicant father asserts, amongst other things, that: a. Generally, he acknowledges that he worked outside of the home and the Respondent remained home with the children during the day (including homeschooling) during a large part of the marriage. However, there were periods of time where the mother also worked outside of the home and the parties were equal caregivers to the children outside of his hours of employment. The father remained home with the parties’ three children (at the time) from May to October 2010. b. The father was diagnosed with depression and anxiety in or around November 2021. He attempted to treat his symptoms with cannabis rather than anti-depressants. He stopped taking both in or around November 2022. c. In March 2022 the mother advised the children that the father was a drug addict. The mother called the police, requested that the father be removed from the home. The police did not note signs of impairment, but cautioned him regarding the use of marijuana and driving. d. The mother says other ‘horrible’ things to the children about him, including that he would steal their money. e. In April 2022 the mother again called the police to report mental health concerns relating to the father (i.e., false allegations of suicidal ideation). The police did not observe any abnormal behaviour and no action was taken to police other than to suggest the parties spend the night apart. f. In May 2022 police were involved again. The father advises that this occurred as a result of the mother’s unilateral efforts to change the temporary parenting schedule that they had negotiated. The father asserts that the children were afraid to oppose their mother’s views and refused to go with him. He moved back into the home the following day. g. The father denies having erratic mood swings, involving the children in conflict, denigrating the Respondent mother in the presence of the children, or asking the children to spy on her/report back to him. He denies discussing any financial aspects of the litigation with the children. He denies reactivating an indoor security camera, and denies watching her through a webcam in the bedroom. h. He explained that the icon for the Respondent mother’s contact information is a ‘masquerade’ face rather than a devil. He only unplugged the home phone when the mother was calling incessantly (at one point 16 times in two days). i. The father acknowledges asking the children to withdraw funds from their joint accounts with him, for his “lawyer”, but not specifically his “family lawyer”. j. The father acknowledges blocking the mother’s vehicle in the driveway on two occasions – when she improperly removed items from the home without his consent and he wanted to speak to her about it. He asserts that she routinely blocks his van in the driveway so that he cannot access it during her nesting days. k. He acknowledges being upset that T.P. was vaccinated without his consent and without opportunity for discussion with her. l. The father denies the mother’s recall of the September 2022 physical altercation between them. He asserts that she has been actively attempting to provoke him into conduct that would compel criminal charges and have him removed from the home (i.e., including physical acts of her own of pushing, elbowing, etc.). m. He acknowledges posting a video to YouTube relating to an argument they had in September 2022, but that it could only be viewed by those who received the link (i.e. viewed seven times by the people he had sent it to: their parents, pastor, counsellor, etc.) n. In October 2022 the mother made false allegations to police that he was driving while under the influence. Again, no charges were laid. o. The father also asserts: i. The mother has attempted to instigate conflict with him and align the children with her. ii. She has proactively campaigned with the children to have them assert a preference to reside with her. iii. The mother has disparaged the father to T.P. in text message exchanges, including texting that “he is not mentally well”, suggesting T.P. “make a scene” if she smells marijuana, and reminding T.P. to “delete messages”. He attached text messages in support of these claims. iv. The mother has suggested that they should fear their father sexually, and should not sleep in his bed. v. The mother returned the Christmas gifts he provided to the children in December 2022. When questioned, the mother asserted that the children had pushed away the gifts “in disgust”. vi. In October 2023 the mother became enraged when Fr.P. signed the book “Jurassic Park” out of the school library. She ripped up the book. The father attaches text messages/photographs in support of this assertion. vii. In December 2023 a physical altercation took place between Fr.P. and the father. The other children reported this to the Respondent mother, who again called the police. The father believes that the telephone call to police was unwarranted. viii. The mother made false background allegations about him to the children’s health practitioner during their mental health assessments. He urges caution in accepting the diagnoses for the children as a result of the false information provided. ix. His parenting style has not changed post-separation. Rather, the Respondent mother is capitalizing upon his chore and discipline strategies to gain favour with the children. x. The children adore their “Oma” (paternal grandmother), and the mother is making effort to undermine that bond. p. The father believes that a change in the parenting schedule and ‘nesting’ arrangement is not the answer to the apparent conflict. Rather, he asserts that lengthening the parties’ respective nesting periods will better serve the best interests of the children. q. The father is very concerned that if the mother is given greater parenting time, she will use that opportunity to marginalize him from the children. r. The father is concerned that if the mother is granted exclusive possession of the matrimonial home, she will not cooperate with the completion of renovations and the timely listing for sale of the property and will gain a litigation advantage in relation to all issues.

[11] The parents’ respective allegations are further disputed in responding/reply Affidavits. I pause here to note that both parties spent too much time in their secondary Affidavit materials reasserting that they ‘stand by’ their initial narratives, going into great detail in an effort to disprove rather inconsequential matters, or otherwise deflect the focus back to the shortfalls of the other.

[12] The parents present highly conflicting narratives. Most of the factual discrepancy contained within the Affidavit materials filed cannot be determined fairly in the absence of viva voce evidence and cross-examination. I agree with counsel for the Applicant father that issues of credibility, where such disparate narratives present themselves, are far better left for trial. If resolution is not reached in short order, it is this court’s opinion that the matter should proceed quickly to trial.

[13] High conflict parenting situations never improve by lingering in family court.

Law and Analysis

[14] Notwithstanding the limits on this court’s ability to make confident findings of fact and credibility on the strength of Affidavit materials alone, both parties should be aware that this court’s preliminary impression is that: a. They are both involving the children in adult-conflict, b. They are both engaging in marginalizing behaviours; and c. They are both contributing to a risk of serious emotional harm to their children by their post-separation conduct.

Issue #1: Exclusive Possession of the Matrimonial Home

[15] Section 24 of the Family Law Act governs the Applicant’s request for exclusive possession of the matrimonial home. The relevant provisions are as follows:

Order for possession of matrimonial home

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

Temporary or interim order

(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

Best interests of child

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained.

Offence

(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,

(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both.

Arrest without warrant

(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession.

Order regarding conduct

25.1 In making any order under this Part, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly.

[16] With respect to the mandatory considerations under s. 24(3), the best interests of the children and allegations of family violence are necessarily areas of heightened focus in this case. The Applicant father agrees that he has alternative suitable accommodation available to him and the children close by, at the home of the paternal grandmother. The remaining factors (e.g., financial circumstances, etc.) are neutral factors as between the parties at this time.

[17] Conflict between the parties is cited as the primary basis for the mother’s request for exclusive possession of the home, and the OCL’s support for this position. Prolonged exposure to parental conflict is never in the best interests of children.

[18] In this case, in the context of a request for exclusive possession, the court must consider the extent to which the conflict between the parties is being caused or inflamed by their continued shared occupancy of the matrimonial home, albeit at separate times under the status quo nesting arrangement. I highlight this issue, because I am also cognizant that some of the conflict between the parties may more realistically be ascribed to conflict relating to the parenting schedule and different styles of parenting, or more generally, the natural disruptive and emotional effects of separation itself.

[19] The father does not connect the conflict between them to their shared ‘nesting’ occupancy of the matrimonial home. In essence, he suggests that the parties are already residing separately, just in the same space at different times; that it is not the location that is causing the conflict between them. There is likely some truth to this proposition.

[20] However, in this case, I do find some evidence that the conflict they are experiencing is connected to the sharing of accommodations, albeit at different times. While their shared use of the matrimonial home is not necessarily causing the conflict between them, I do accept that, to some extent, it is exacerbating it. Without being in a perfect position to ascertain the truth or degree of truth relating to some of the parties’ concerns, I do find some merit to the argument that the stress of sharing space is contributing to an already conflictual relationship. For example: a. Reasonable or not, the mother has, at times, believed that the father was attempting to watch or record her through camera equipment in the home; b. Both parties have expressed that their shared use of the driveway has allowed the other party to prevent them from coming and going, or using their vehicles, as they desire, restricting their freedom of movement; c. The mother believes that the sometimes ‘dramatic’ packing-up up of a parents’ belongings at the end of each parenting period can have a symbolic meaning and charged effect, which plays with the children’s emotions; d. The simple retrieval of a forgotten item at the home has resulted in conflict including yelling and videorecording; e. There has been criticism of menu selection and food disposal, that would not otherwise be noticed by the other party; and f. The father and paternal grandmother reorganized the home and packed up family belongings without the mother’s input. The mother’s belongings were allegedly ‘dumped’ from a dresser drawer. Other household items were put in a garbage bag.

[21] I accept that the sharing of space, even in shifts, is adding an additional layer of toxicity to an already difficult relationship.

[22] A person’s home is their private refuge; a place where they should feel safe to relax and be themselves; a place where their routines and belongings should be free from intrusion or scrutiny by others. Both parties should be able to freely enjoy their personal space. More importantly, the children should be free to relax and enjoy their private space without a feeling of pervasive sense of tension and surveillance.

[23] The father acknowledges that an incident of pushing and yelling occurred between himself and the child Fr.P. in the matrimonial home in December 2023. This act qualifies as an act of family violence, as defined under the Divorce Act. Generally, I accept that the children would prefer to share this space with the Respondent mother, who has historically been the homemaker they connect with this space.

[24] I find that despite their desire to bring peace to the family through a nesting arrangement, the initial tensions surrounding the parties’ separation have not abated. Prolonged exposure to conflict is harmful to children. I conclude that the temporary without prejudice agreement reached between the parties in September 2022 is not working in the best interests of the children and requires change.

[25] In weighing the applicable factors under s. 24(3) of the Family Law Act, I find that justice is best served, in the specific circumstances of this case, by granting the mother exclusive possession of the matrimonial home.

[26] I am alert to the father’s concern that this order may provide the mother with litigation advantage as it relates to both parenting and property issues. To be clear, in reaching this conclusion I have relied upon the representations made by the mother that a realtor has been retained and that the home will be listed for sale in short order. Efforts to unreasonably delay or frustrate the sale of the home will not be condoned.

Issue #2: Appropriate Parenting Schedule

[27] All six children presently share time equally with both parents. This status quo arrangement has been in place for approximately 18 months and compels considerable deference.

[28] Counsel agree that the court must exercise caution before making any changes to this arrangement on interim motion. The basic principle of maintaining the status quo is “extraordinarily important in family law cases”: Davis v. Nusca, at para. 8. The status quo relates more so to the continuity of care than the location of care: Davis at para. 9. In short, existing parenting arrangements should generally be maintained unless compelling reasons necessitate a change in the best interests of the children.

[29] The Respondent mother and OCL assert that those compelling circumstances exist, the father asserts that they do not.

[30] All counsel made very able and compelling arguments as to the best interests factors this court must consider under s. 16(3) of the Divorce Act. They acknowledge that 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”: Divorce Act, s. 6.

[31] With respect to the best interests of the children, I make the following observations: a. All six children have very different needs, given the large spread in their ages and stages of development. For example, M.P. is three years of age, has a bedtime of 6:15 p.m., and is not yet old enough to attend school. T.P., by contrast, is sixteen years of age, has a part-time job, and will (presumably) start her last year of high school in September. b. The material before this court suggests that the nature and strength of the children’s relationships with each parent, siblings, and extended family members is unique. At this stage, it appears that: i. The relationship between the three oldest (adolescent) children and the Applicant father is strained. Numerous instances of conflict between each of them are alleged within the Affidavit materials. ii. Within the materials, the same concerns do not present themselves, or at least to the same degree, with respect to the relationship between the Applicant father and the three youngest children. iii. All six children enjoy a strong bond with the Respondent mother. iv. All six children are closely bonded with each other. v. The children previously enjoyed a comfortable bond with their paternal grandmother. c. I have concerns about the Respondent mother’s willingness and ability to support the development and maintenance of the children’s relationship with the Applicant father. I stress that I also share similar concerns with respect to the Applicant father, but in the context of this motion, that is, a request for a significant reduction of the father’s parenting time with the children only, it is the mother’s behaviour in this area which compels closer scrutiny. There are many allegations of marginalizing tactics contained within the father’s Affidavit, all of which are denied by the mother. Again, without benefit of viva voce evidence and cross-examination, it is very difficult to make definitive findings on these issues. However, I do find independent corroboration of some of the father’s concerns regarding marginalizing tactics within the Exhibits filed. For example: i. The mother’s text communications to the child T.P. include such statements as: 1. (RE: meeting with FACS worker): “T.P.… we need to see and show what it will be like for you guys if dad moves out and you live with him 50% of the time. We’ll talk more this weekend, but you do have rights in all of this”; 2. (RE: going with the Respondent father): “If you smell marijuana make a scene”; 3. (RE: Respondent father): “he is not mentally well and we all know that. If the blind lead the blind, they will both fall into a pit”; and 4. “T.P., I hope you’re remembering to delete these messages”. ii. In an email dated December 2022 the mother confirmed that she returned/exchanged Christmas gifts given to the children by the father and described that when the children opened one such gift, (a boardgame) “they pushed it away in disgust”. iii. The mother advises that she received an email from the child Ra.P. (age 9 at the time) entitled: “mareyawana” after being told by the child that she wanted to send an email to her father about how she feels about the separation. Notwithstanding that the email is addressed to the father and was purportedly sent by Ra.P. to the father, it states: “ Dad is over reacting a lot. Most of the time he over react on punishment and he rises he’s voice a lot. I feel like he are trying to make us break away from the old rules”. I find it interesting that the child would purportedly want to write a letter to her father, but then address him in the third person. I am highly suspicious of the circumstances in which the child felt compelled to send this email. d. I accept that historically the Respondent mother has been the children’s primary caregiver, and that the children may continue to view her as such. e. In general, I accept the Office of the Children’s Lawyer’s assertion that, collectively the children would prefer to spend more time in the care of the mother. Although not confirmed by the OCL, the Affidavit material filed suggests that the older children hold stronger views in this regard than the younger children. I have some preliminary concerns about the independence of their views. I have no information as to the individual nature, strength, or consistency of their views. I also have some concern that the voices of the older children may be unduly influential in the views and preferences of the younger children. f. Both parties share common cultural, linguistic, religious and spiritual beliefs. g. Both parents plan to continue to reside in the close proximity to the children’s schools, activities, church, and social networks. h. Both parents are capable of meeting the basic needs of the children. For example, I accept that both parents are attentive to and participate in the children’s medical and educational care, notwithstanding that they may not always share the same views. However, I do accept the representation of the Respondent mother that she continues to play ‘quarterback’ for the family, organizing the children’s day to day needs, etc., and that she continues to provide more nuanced care as the children’s historic primary caregiver. i. For obvious reasons, I have some preliminary concerns about both parties’ ability to communicate and cooperate effectively on matters affecting their children. They have both drawn their children into adult issues and adult conflict. j. I have concerns about the possibility of escalating conflict between the Applicant father and the three oldest children, and in particular with respect to the incident of family violence which occurred between the father and Fr.P.. The act of reciprocal pushing, while in a state of anger, must be taken seriously. To a lesser extent, I am also concerned by Fr.P.’s description of the mother’s physical reaction to his possession of a library book (Jurassic Park). The destruction of property while in a state of anger, may also rise to the definition of family violence under the Divorce Act.

[32] This court’s preliminary observations should in no way be construed as findings that are binding upon a subsequent trier of fact. A trial judge, with the benefit of viva voce evidence and effective cross-examinations may certainly come to very different conclusions. However, these are some of the best interests observations and considerations that assist this court in determining whether there are compelling reasons to make changes to the existing status quo parenting arrangement.

[33] Balancing the views and preferences of the children in this case has proven somewhat problematic. It is not lost on this court that the Respondent mother’s motion was brought on the heels of an OCL disclosure meeting held in February 2024 and that the OCL supports the mother’s request for a change in the parenting schedule. However, as a preliminary matter on this motion, I agreed with counsel for the Applicant father that, absent his consent (which he did not provide), counsel for the OCL could not provide evidence as to the views and preferences of the children, while at the same time acting as their advocate: see Strobridge v. Strobridge.

[34] In this case, OCL counsel participated in the motion and made legal submissions to the court, advanced on behalf of the children as permitted under s. 89 of the Courts of Justice Act, but was not permitted to give evidence of the children’s views and preferences from counsel table. Both parents made statements as to the sentiments of the children within their respective Affidavit materials, which the parents and the OCL were entitled to rely upon, to be weighed and assessed as the court saw fit.

[35] The Applicant father was entirely within his right to oppose the OCL request to provide evidence to the court relating to the children’s views and preferences of the children in the absence of an Affidavit by a clinician. He was under no obligation to accept the OCL’s draft Agreed Statement of Fact, as requested. I stress that I draw no adverse inference against the father for opposing this request, and the court has no knowledge of what was contained within the draft Agreed Statement of Fact.

[36] I also pause here to stress that the views and preferences of the children are only one of the enumerated best interests factors that this court must consider, to the extent that they can be ascertained. I note that: a. At this stage, as noted above, the court only as a very general and underdeveloped understanding of the children’s ‘collective’ viewpoint. b. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as they seek to determine the child’s best interests: see R.G. v. K.G., 2017 ONCA 1000. In this case, the children are at very different ages and stages of development. c. Finally, I remind all parties that the wishes of children and the best interests of children are not always synonymous, and there is no presumption in favour of following those wishes.

[37] In this case, I accept that there is a palpable undercurrent of conflict and tension in the family unit. I believe this to be due in part to (a) the mother’s/older children’s discontent with the parenting arrangement, and (b) the rather chaotic nature of the status quo arrangement of two days on/two days off. It is difficult to plan and coordinate the interests of six individual children when there is no week to week parenting plan to rely upon. In the circumstances, I accept that the chronic state of stress that this family is experiencing is a compelling circumstance in which the existing parenting arrangement must be reviewed in an effort to better serve the physical, emotional and psychological safety, security and well-being of the children.

[38] There is a general reluctance in family courts to order parenting schedules which separate siblings. There are, however, exceptions to this general view, especially when such separations are for shorter intervals and are required to address competing needs and circumstances of siblings.

[39] I would urge the parties to review the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) to assist parents and their professional advisors in developing child-focused and realistic parenting plans. Of particular use to this family, would be the suggested age-appropriate plans and schedules, for children who fall into the following categories (toddlers/preschoolers, early school-aged children, later school-aged children, early adolescents, and late adolescents). This family has a child in each and every category. I highlight some of the considerations: a. Toddlers/preschoolers: The child M.P. falls roughly between these two groups. Predictable and consistent routines and schedules are highlighted. Resistance at exchanges is not atypical. Long separations from either parent are not recommended. Even at this age, children will be stressed by tension and argument between caregivers. I find that the existing schedule is too chaotic for M.P.. The constantly-changing days of the week that M.P. is in each parent’s care limits their respective ability to provide consistent structure and routine to his days. I find that the schedule proposed by the Respondent mother calls for periods of time that are far too long for M.P. to go without contact and bonding opportunity with his father. Likewise, I find that the week-about schedule proposed by the father would not be in M.P.’s best interests as it is too long between contact with each of his caregivers. b. Early school-aged children: Ro.P. falls in this age and stage of development. She has likely established a better understanding of calendars and time, and the ability to consult a calendar could be helpful to her in understanding transitions between her homes. The current, complex, schedule may be confusing to her as there is no consistency in the days of the week that she will be in each parent’s care. I accept that at her current age and stage of development, that Ro.P. may be particularly stressed by parental conflict which I believe may be exacerbated by the existing arrangement. I expect that Ro.P. has likely grown accustomed to the equal parenting arrangement, and I conclude that she should continue to have significant involvement with both of her parents. I find that the mother’s proposed parenting falls short of this objective. However, given the regular short intervals of parenting time that Ro.P. has grown accustomed to with both parents, I find that the father’s proposed week-about schedule would also be too significant a disruption for Ro.P. at this time. c. Later school-aged children: Ra.P. is a child of this age group. There are a wide variety of parenting schedules that could meet her needs, but it remains important that she have frequent contact with both parents. At this age and stage of development Ra.P. may be particularly vulnerable to efforts by parents to undermine her relationship with the other. d. Early adolescents: both N.P. and Fr.P. are early adolescents. They are developing their critical decision-making skills but continue to require the guidance of their parents. At this age, they can tolerate longer absences from each parent, but parents and courts should be respectful of stated preferences for a home base. e. Late adolescents: T.P. has entered the final stage of childhood. At this age, T.P.’s input into the appropriate parenting plan is increasingly important. However, she continues to have need for consistency, support and meaningful time with each of her parents.

[40] In the very unique and specific circumstances of this family, I am not satisfied that there is a ‘one size fits all’ parenting plan that would adequately suit the individual needs and bests interests of all six children.

[41] With respect to M.P., Ro.P., and Ra.P., I conclude that it is in their best interests to continue to benefit from an almost-equal parenting schedule with both parents. I find that a minor ‘tweaking’ to the schedule will provide more consistency and predictability, and will assist in reducing some of the conflict between the parties. However, on the record before me, I do not accept that there are compelling reasons to significantly reduce the children’s parenting time with the Applicant father as requested. The children are bonded with the father. That important connection would be placed at risk if their time with him was significantly curtailed, as proposed.

[42] With respect to N.P., Fr.P., and T.P., I see a pattern of resistance emerging. They appear to have expressed an alignment with their mother. At their ages, if N.P., Fr.P., and T.P. do not feel that they have been heard, they may grow increasingly resentful of and resistant to their parenting time with the Applicant father. The incident of yelling and pushing between the father and Fr.P. is concerning. Stress and tension is evident. A change to the existing schedule is warranted. I glean from all of the circumstances that these three adolescents generally prefer to reside primarily in their mother’s care. I find that it is in their individual best interests to impose a schedule wherein they reside in the primary care of the Respondent mother, with regular scheduled parenting time with their father. The children will have the option of spending additional time with the Applicant father on the days the younger children are in his care, if they so request. This will enable them to spend additional time with their siblings each week if that is their preference. I note that the parenting schedule I have ordered has them not seeing their younger siblings on Wednesdays only, if they opt not to spend extended weekday time with their father. For clarity, it is not this court’s intention that the older three children must travel together en bloc. They may make different decisions, which meet their own individual schedules, activities, and preferences, as they see fit each week and as discussed with their parents. Both parents are encouraged to be flexible and supportive of their individual preferences on these days.

[43] For all children, a weekend return into the care of the Respondent mother on Sunday evenings will provide the children with an opportunity to reset and organize themselves for the upcoming school week, with the mother’s assistance. The basis of the parenting schedule ordered below is otherwise self-explanatory.

[44] The mother’s exclusive possession of the home and the new parenting schedule will commence on April 1, 2024 to permit the father opportunity to prepare his alternate accommodations, and to permit the Office of the Children’s Lawyer to advise the children for these upcoming changes.

[45] I am certainly alert that in 2021, when the parents attempted to implement an alternate schedule, a police event occurred in relation to non-compliance. The Respondent mother, as primary caregiver to the adolescent children, must understand that she will be charged with the important responsibility of ensuring that they regularly attend the (minimum) court-ordered parenting time with father. The mother must communicate her support for the prescribed schedule with her words and her actions. If any of the children do not follow this court’s temporary parenting schedule, it will be open to the trial judge to conclude that one or both of the parents is unwilling to or incapable of promoting the importance of an ongoing relationship with other. Put simply, a failure to follow court-ordered terms could be a very significant factor in the final parenting schedule ordered. If further contact issues emerge, the parties should seriously consider joint counselling sessions between the children and the Applicant father, with a qualified therapist, to ensure that this important relationship is both preserved and strengthened.

[46] I stress that the parenting schedule ordered by this court, is ordered on a temporary basis only. Both parties should be very aware that the eyes of the court are upon them. Both parties have vast room for improvement in their post-separation conduct to date. Both parents have very clearly involved the children in age-inappropriate discussions and have unfairly drawn them into their personal conflict. Their actions suggest that they are entrenched in the conflict, unable to see their own role, and are overly-focused on finding fault and casting blame on the other. I urge both parents to make effort to see the bigger picture: that they are putting their children at extreme risk of life-long mental health struggles if they persist in this conduct.

[47] The issues of communication between the parties and other incidents of parenting are not before the court. However, the court strongly urges all parties and their counsel to immediately establish written ground rules, which may be incorporated into a Temporary Order of the court by way of consent basket motion, which devises an effective plan for communicating important information about the children. In particular, the parents will need to devise a manner of effectively communicating the schedules of T.P., Fr.P., and N.P. for weekday evenings each week so that there is no miscommunication regarding where they will be sleeping on these evenings.

[48] Likewise, the parties are urged to negotiate reasonable terms of attendance by the Applicant father on the property of the matrimonial home to effect child-focused parenting exchanges, to retrieve or return children’s items and belongings as need may arise, and to repair, prepare, and inspect the matrimonial home as may be necessary to facilitate the future sale.

[49] The parties are urged to make effort to resolve the issue of costs of these motions.

Order to Issue

[50] On the basis of the above, there shall be a Temporary Order to go as follows:

1. Commencing April 1, 2024, the Respondent mother shall have exclusive possession of the matrimonial home.
2. Commencing April 1, 2024, the children of the marriage, namely T.P., Fr.P., N.P., Ra.P., Ro.P., and M.P. shall reside with the parties as follows: a. The children shall be in the care of the Applicant father as follows: i. On alternating weekends from after school on Friday (school bell time or 3:30 p.m. when school is not in session) until Sunday evening at 6:00 p.m., at which time he will deliver the children to the mother’s residence. ii. The children Ra.P., Ro.P., and M.P., will be in the care of the Applicant father every Tuesday evening from after school/daycare (or 3:30 p.m. when school is not in session) until Thursday morning at 9:00 a.m. (return to school/daycare). iii. The children T.P., Fr.P., and N.P., will be in the care of the Applicant father every Tuesday evening from after school (or 3:30 p.m. when school is not in session) until 8:00 p.m. T.P., Fr.P., and N.P. shall be permitted to remain in the care of the Applicant father until Thursday morning (return to school), in their own discretion. In the event these children opt not to remain in the extended care of the father on weekdays, the Applicant father shall return the children to the mother’s residence at the end of his prescribed parenting time. b. The children shall be in the care of the Respondent mother at all other times.
3. Each party shall facilitate the children’s attendance at scheduled extracurricular activities and school events on their own parenting time, and shall remain responsible for the care of those children during the events.
4. Each party shall be entitled to attend at the children’s scheduled extracurricular activities and school events, regardless of the parenting schedule, but shall not interfere with the parenting of the other party.
5. The Respondent mother will encourage the older children not to schedule employment shifts on Tuesday evenings, to the extent that they have influence over their scheduled hours.
6. Where possible, parenting exchanges shall take place at the children’s school/daycare at the natural start/end time of the school day. When school is not in session, each party shall be responsible for delivering the children to the residence of the other party at the end of their parenting time. The ‘delivering’ parent may attend on the property of the other, but shall remain in their vehicle at parenting exchanges.
7. If costs are an issue: a. The party seeking costs shall serve and file written cost submissions, not exceeding three pages in length, plus a bill of costs and any applicable Offer(s) to Settle, by April 5, 2024; and b. Any party responding to a request for costs shall serve and file responding cost submissions, not exceeding three pages in length, plus a bill of costs and any applicable Offer(s) to Settle by April 15, 2024.

Released: March 25, 2024 Bale J.