Court File and Parties

COURT FILE NO.: FS-23-0045-0000 DATE: 2024 04 29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Jackson, Applicant AND: Jason De Moura, Respondent

BEFORE: Chozik J.

COUNSEL: M. Teixeria, counsel for the Applicant A. Gautam, counsel for the Respondent M. Pallett, counsel for the Office of the Children’s Lawyer

HEARD: April 24, 2024

Endorsement

[1] The Respondent (“father”) brings a motion for an equal / shared parenting schedule in respect of the parties’ two children, Olivia (12.5 years) and Dean (8 years). He proposes a week-about schedule, shared school breaks, summer holidays and statutory holidays. The Applicant (“mother”) opposes the motion and seeks to reduce the alternate weekends for parenting of Olivia to alternating Saturday nights and maintain an alternate weekend schedule for Dean.

[2] By way of background, the parties separated in November 2022, but remained in the same house until May 2023. In May 2023, the mother left the home with the children without advising the father where she was taking them. He came home to find them gone. It is not disputed that in the 340 days since then, the children have had parenting time with the father only 30 times. This is despite his persistent requests (through counsel) for more time with the children. The evidence before me suggests that there were times when the father did not even know where the children were.

[3] In October 2023, the mother (through counsel) proposed a gradual “step up approach” parenting plan to the father. This plan would have allowed the father only a few hours a week of parenting time with the children: Thursdays from after school until 7:30 pm and Saturdays from 10:00 am to 2:00 pm. The plan was not acceptable to the father, who saw no reason why parenting could not be shared equally. Since he had not seen the children since May 2023, he agreed to the plan with a view to expanding it.

[4] According to the father, despite their agreement, the mother did not follow through with his parenting time on October 21 and November 17, 2023.

[5] At a case conference on January 8, 2024, the parties entered a consent order that included a term that the children have parenting time with the father on alternating weekends, from Friday at 6 pm until Sunday at 6 pm. The involvement of the Office of the Children’s Lawyer (“OCL”) was requested. This motion was scheduled for hearing.

The Children’s Views and Preferences:

[6] The OCL has now met once with each parent, and with each child on three occasions. At this motion, counsel for the OCL advised that Olivia consistently expressed that she would like less parenting time with her father. Olivia suggested that her parenting time be on alternating Saturdays at 6 pm to Sundays at 6 pm and for it to be left up to her whether to go for an overnight visit on the Friday evening. Olivia would like a weeknight visit with her father for dinner, but does not wish for it to be overnight. The OCL submitted that Olivia is very mature for her age and that her views and preferences should be given a lot of weight by the court.

[7] The OCL is of the view that Olivia’s expressed views and preferences are the result of (a) her age and stage of development and (b) the dynamics of her relationship with the parties. The OCL does not think that the mother has said or done anything to influence Olivia in her views and preferences. To the contrary, the OCL took the position that these parties have, much to their credit, sheltered these children from their conflict. The OCL also advised that Olivia sometimes finds it challenging to be with her brother all the time on these overnights given his behavioural special needs.

[8] The OCL advised the court that Dean consistently expressed that he would like more time with his father. Given his age, Dean could not specify how he would like additional time to be structured. He too welcomed a weeknight visit with his father. The OCL expressed the view that given his behavioural special needs, Dean needs structure and routine and that a weeknight overnight with the father may be too disruptive for him. The OCL made no submissions about a week-about schedule for Dean.

Positions of the Parties:

[9] On this motion, the mother claims that she is the “primary parent” to the children and that the “status quo” must be maintained. She takes the position that the father bears the onus to satisfy the court that shared parenting time which is a departure from the “status quo” is in the children’s best interest. She submits that the father has not met his onus by failing to put forward a detailed “parenting plan”.

[10] The father takes the position that the post-separation “status quo” is the result of the mother’s unilateral actions. It should have no effect. The father submitted that the best interests of the child test is generally met by having a loving relationship with both parents. Such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Prior to separation, both children shared a normal and loving relationship with both the parents in this case. There are no attenuating circumstances that should curtail the time he gets to spend with his children as he is a loving and caring father and is not a danger to their physical or mental well-being.

The Law & Analysis:

[11] The test to be applied in determining a suitable parenting schedule is that of the best interests of the children. Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides that “[i]n determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[12] The factors related to the circumstances of the child are set out in s. 24(3) of the CLRA. These factors include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[13] I have considered these factors, and the evidence in this case. I reject the mother’s position that I should give effect to the post-separation “status quo”, reduce the father’s parenting time with Olivia and maintain alternating weekends in respect of Dean.

[14] I do not give any weight to the post-separation status quo in this case. In my view, the mother unilaterally created this status quo by withholding the children from their father without any legitimate justification. There is no evidence that the father is an inadequate parent. The parties cohabited post-separation in the family home from November 2022 until May 2023. He participated in caring for the children as was established between the parties during the marriage. He is a capable parent. Post-separation, he obtained housing that can accommodate the children and he is employed. The OCL confirmed that the father has a solid and positive relationship with Dean, and Olivia has a meaningful relationship with him too.

[15] In May 2023, instead of discussing a parenting schedule that would maintain the children’s relationship with the father, the mother left the home with them without telling him of their whereabouts. At this early stage, and on the evidence before me, there is no foundation for a claim of family violence that would justify such conduct. The mother’s removal of the children from their father shows indifference, if not contempt, to the children’s need to maintain a relationship with him. Such conduct gives rise to serious concerns about a parent’s willingness and ability to make decisions in their children’s best interests, and facilitate their relationship with the other parent.

[16] On the evidence before me, I find that there is no good reason why regular meaningful parenting time with the father was not established for these children until the case conference in January 2024. I find that the mother unilaterally deprived the children of their relationship with the father by withholding meaningful opportunities for him to parent. She did this at a time when children are particularly vulnerable because of separation. A status quo was created but it is not one I am prepared to give any meaningful weight to. It is not a legal status quo: Pereira v. Ramos, 2021 ONSC 1737, at para. 38. “Status quo” does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation: C.C. v. I.C., 2021 ONSC 6471, at para. 49.

[17] I am cautious about whether to give a lot of weight to Olivia’s desire to have less parenting time with her father. I accept that Olivia now feels less connected to her father than to her mother and wants to stay “home” with the mother. Had the mother not unreasonably withheld the children from the father, it is entirely possible Olivia would have come to feel “at home” in both residences.

[18] The mother claims that she was and continues to be the “primary caregiver” to the children. I do not find this to be persuasive. First, given the ages of these children, who is the primary caregiver is of diminished importance. Second, a parent who did not have primary parenting responsibilities during the marriage may be more than capable of taking on primary parenting responsibilities after separation. In a case like this, what matters more than who was the primary parent during the marriage is that a child develop a strong bond with both parents post-separation.

[19] Third, the evidence the mother relies on in support of her position that she is the primary caregiver is not compelling. I accept that she worked with the school and other professionals to put accommodations and protocols in place for Dean, who has special needs. This shows that the mother is an excellent advocate for Dean. Being the primary advocate, however, is not to be equated with being the primary caregiver. Nor does it mean that the father should not have equal parenting time or that he could or would not take a more active role in advocating or caring for his son if given the opportunity.

[20] Of the various factors I must consider, the one that gives me the most concern is the mother’s willingness and ability to facilitate the children’s relationship with their father. Her conduct to date establishes that she limited their contact with their father without justification. Such conduct is ordinarily harmful to the children’s ability to maintain a bond with a parent post-separation and build a new relationship with that parent in the new post-separation reality.

[21] As a result, I reject the mother’s request to declare her as the parent having primary care of these children.

[22] Despite the mother’s conduct, I am reluctantly prepared to give some weight to Olivia’s expressed views and preferences. It may be more harmful than good to do otherwise. I accept the OCL’s view that Olivia is a very intelligent and mature 12.5-year-old, and that her views were not consciously influenced by the mother. I am mindful that Olivia may be at an age and stage of development where children often want to have one home or “a home base”, while at the same time maintaining a close relationship with the non-primary resident parent. This can be accomplished if the parent who has the primary residence of the child supports the other and is careful to make sure he is not excluded or cut-out of the child’s day to day life.

[23] As observed in the Parenting Plan Guide published by the Association of Family and Conciliation Courts (AFCC-Ontario), children around Olivia’s age group (aged 10-12) may feel the need to become ‘allied’ with one parent and start resisting seeing the other parent. The support of a favoured parent for a strong relationship with the other parent is very important, and, unless there are serious issues of poor parenting, is usually in the long-term interests of the child (p. 25).

[24] In respect of children aged 10 to 12 years, the AFCC-O sets out at page 25 that children in this age group should generally have frequent contact with both parents. Where possible, this should include overnights or dinners during the school week and some weekends with each parent. Parents of children this age should allow them to express their views and feelings, recognizing that children this age want greater control. At the same time, parents should also make clear that the parents together will make the final decisions.

[25] The AFCC-O observes that some children in this age range will prefer having a “home base” with alternate weekends and one overnight during every week or two with the other parent. Children who express a preference for a “home base” model may do so because of practical concerns about school, extracurricular activities, peer relationships, or living arrangements in a blended family. The AFCC-O guide states that such a preference should not be confused with resistance to contact or alienation and should generally be respected. It appears to me that Olivia may fall into this later type of child aptly described in the AFCC-O.

[26] In respect of children ages 13 to 15, the AFCC-O guide observes at page 27 that parents should respect an adolescent’s stated preference for a “home base,” with alternating 3-day weekends and some mid-week time with the other parent. As children reach adolescence, their own social networks and outside activities are becoming important, and may be facilitated by having a “home base.” However, parents who are not the child’s “home base” may increase their contact and involvement by providing transport and attending their children’s athletic, performance and academic activities, and should not view the child’s assertion of independence and preference for spending more time in one home as a rejection.

[27] I do not think it is in the best interests of a 12.5-year-old to have to decide how much time to have with a parent. A child this age, regardless of her intelligence and maturity, needs adults to make such decisions for her. At the same time, the child must feel that there is some respect for her autonomy and that she has some say in her schedule. I also accept and recognize that Dean requires predictability and stability in his schedule and routines.

[28] To this end, I am prepared to impose a parenting schedule that would respect Olivia’s wish to have the option of deciding whether to sleep over at her father’s home on Friday nights. I am of the view that spending at least one weeknight visit and alternating weekends overnight is in her best interests and necessary to ensure that she is able to rebuild the relationship with her father. In light of the order I am making for Dean, I am of the view that Olivia should also have the option of staying with the father on those Sunday or Monday nights when Dean stays overnight with him.

[29] In respect of Dean, I am of the view that a parenting schedule that would address his expressed desire for more time with his father while maintaining a weeknight routine would in his best interests. To this end, the alternating weekend schedule shall be expanded to include Sunday nights to Mondays drop off at school on alternating weeks. If the Monday is a statutory holiday, the overnight shall be extended to Tuesday morning drop off at school for both Olivia and Dean.

[30] The mother objected to the expansion of the father’s parenting time to the Monday morning drop off at school because the father has not explained how he will make sure that Dean gets to school. With respect, there is no reason to micromanage such decisions. The father is a competent adult who has his children’s best interests front and centre in his mind. Part of facilitating a relationship with the father must include that the mother will share the information she has about the children’s needs, but leave the father to make his own decisions about how to parent the children day to day while they are in his care.

Conclusion:

[31] Having considered the various factors, and the views and preferences of these children, I find that on a temporary without prejudice basis the following parenting schedule is in their best interests:

a. Dean shall have parenting time with his father alternating weekends from Friday at 5:30 pm until Monday mornings at drop off at school. If the Monday is a holiday or non-school day, the father’s parenting time shall be extended until Tuesday morning at school drop off.

b. Olivia shall have parenting time with the father on the same alternating weekends as Dean from Friday at 5:30 pm until Monday mornings at drop off at school. If the Monday is a holiday or non-school day, the father’s parenting time shall be extended until Tuesday morning at school drop off. Olivia shall have the option of staying overnight with the father on those Friday and Sunday nights.

c. Olivia shall have weeknight parenting time with the father each week from 5:30 pm to 8:30 pm. The day of the week shall be agreed upon by the parties in writing within 3 days of this order. The weeknight may be changed from time to time or permanently on consent upon adequate notice (at least 3 days) to accommodate Dean’s and Olivia’s schedule.

d. Dean shall have weeknight parenting time with the father on alternating weeks from 5:30 to 8:30 pm. This weeknight may be the same one as Olivia’s or a different one. The day of the week shall be agreed upon by the parties in writing within 3 days of this order. The weeknight may be changed from time to time or permanently on consent upon adequate notice (at least 3 days) to accommodate Dean’s and Olivia’s schedule.

e. There shall be immediate make-up time if any of the father’s parenting time is missed without advanced written consent. Such make-up time will not be any later than within 30 days of the regularly scheduled time.

f. The father may attend at any of the children’s extracurricular activities, medical or other appointments and may be responsible for transporting or accommodating them to their activities and appointments.

g. The father may contact any of the schools, teachers or professionals involved with the children. The mother shall provide a list of these to the father forthwith and update him immediately if there are any changes.

h. If the parties require slight modification or clarification of these terms, they may return before me for directions by scheduling a virtual appearance through the trial coordinator.

[32] This is a temporary without prejudice order. I anticipate that there would be a further expansion of the father’s parenting time, as the children have an opportunity to get used to a new routine and continue to grow in their relationship with him.

[33] There was insufficient time to discuss holidays and school breaks at the hearing of this regular motion. The expectation of this court, however, is that these would be divided roughly equally in respect of Dean, subject to the various activities he participates in and that Olivia’s views and preferences in how to spend her school breaks and holidays will be considered by the parents while emphasizing the need for her to have meaningful parenting time with the father.

[34] The father’s motion is allowed, in part.

Costs:

[35] In terms of costs, I find that the father is the more successful party on this motion. I rejected the submissions and position taken by the mother. Since the separation, she has unilaterally withheld the children and refused reasonable parenting time to the father.

[36] At the same time, the mother’s offer to settle dated April 23, 2024 is more in line with what I ordered than the order sought by the father of a week-about schedule. The father had not put forward any formal offers but it is clear from the correspondence in evidence before me that he made considerable effort to settle the issue of parenting without resorting to court action.

[37] I find that this motion was necessitated by the mother’s unreasonable conduct since she left the matrimonial home. As a result, I am of the view that she should be liable for the father’s costs, despite her offer to settle made the night before the hearing of this motion. I am satisfied that costs of $7,500 Costs inclusive of HST and disbursements are fair, reasonable and proportionate in the circumstances. These costs shall be paid by the mother to the father forthwith.

Chozik J. Date: April 29, 2024