Court File and Parties
COURT FILE NO.: FS-16-5611-01 DATE: 2024-05-08
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Erinn Lindsay Catherine Gravelle Applicant
K. Seeley, for the Applicant
- and -
Peter Joseph Welch Respondent
U. Patola, for the Respondent
HEARD: by Zoom, April 4, 2024, at Kenora, Ontario
Mr. Justice S.J. Wojciechowski
Reasons On Motion
Introduction
[1] The Applicant, Erinn Lindsay Catherine Gravelle, and the Respondent, Peter Joseph Welch, have two children together, Huxley Gravelle-Welch born August 10, 2014 and August Gravelle-Welch born August 15, 2012 (“Huxley” and “August” individually, and “the Children” collectively).
[2] The Applicant and the Respondent were married in January 2012, separated on October 1, 2016 and a Divorce Order was issued on April 4, 2018 with an effective date being May 5, 2018.
[3] A final order made within the context of the divorce provided for a week on/week off schedule of parenting (“the Original Parenting Schedule”). This order of Justice Platana is dated December 15, 2017, and remained in effect for approximately six years until November 2, 2023, when a temporary order of Justice Warkentin suspended the Respondent’s parenting time (“the Suspended Parenting Schedule”).
[4] The Respondent now seeks to reinstate the Original Parenting Schedule.
[5] The Applicant does not object to a variation of the Suspended Parenting Schedule, and in fact has co-operated in facilitating some parenting time between the Respondent and the Children. However, the Applicant does not support a return to the Original Parenting Schedule due to issues which arose in the Fall of 2023 and which gave rise to the Suspended Parenting Schedule.
Overview
[6] The motion brought by the Respondent, Peter Joseph Welch (“the Father”) will be determined based on what is in the best interests of Huxley and August.
[7] To determine these bests interests, I will first review the situation of the parties following their separation and divorce. I will then provide a summary of the issues which resulted in the Suspended Parenting Schedule, followed by a review of circumstances leading to the current motion. I will then decide whether the Children should return to the Original Parenting Schedule in which one week is spent with their Father and then the next week with the Applicant, Erinn Lindsay Catherine Gravelle (“the Mother”).
[8] Finally, I have been asked to consider what would be in the best interests of the Children as far as a parenting schedule for July and August 2024.
The Original Parenting Schedule
[9] Pursuant to the final order of Platana J. dated December 15, 2017, the Father and the Mother were awarded joint custody of the Children, subject to a number of terms including the following:
- That the Children be registered in and attend Pope John Paul II School and when age appropriate, St. Thomas Aquinas High School in Kenora unless both the Mother and the Father agree in writing otherwise, or a Court orders otherwise;
- Neither the Father nor the Mother shall register the Children in any other school without the written consent of the other or a Court order;
- The Children shall reside equally with the Father and the Mother pursuant to a week about schedule except during the summer school holidays, Christmas school holidays and March Break; and
- In even numbered years, the Children shall reside with Mother for the first half of the summer school holiday period and with the Father for the second half, and in odd numbered years the times shall be the opposite.
[10] From my review of the evidence, the Original Parenting Schedule worked well for the Children, and was in their best interests for the six years it was in place.
Fall of 2023 and Changes to the Original Parenting Schedule
[11] Starting in September 2020, the Father’s evidence is that he noted some changes in Huxley’s behaviour which the Father attributed to Huxley’s school environment. Over the years, the Father discussed these concerns with the Mother, including the possibility of Huxley attending Evergreen Public School instead of St. John Paul II School which is part of the Kenora Catholic District School Board.
[12] Ultimately, there was no agreement between the Father and the Mother whether Huxley could attend Evergreen Public School. Instead, the Father unilaterally decided that while Huxley was in his care, Huxley would be home schooled instead of attending St. John Paul II School. While Huxley was in the care of the Mother, he attended St. John Paul II School.
[13] The Mother then brought an urgent motion to address the unilateral decision of the Father to pull Huxley out of St. John Paul II School and to homeschool Huxley during his weeks of parenting.
[14] The evidence of the Father in support of this motion is that:
At the time I thought I was doing what was best for Huxley; however, I now know that I should have gone through the proper channels like court to effect the change in Huxley’s school. I believe that my stance on homeschooling Huxley was misinterpreted by the Court, however, I feel Huxley has the right to have a public secular education, free of religious indoctrination.
[15] As a result of the stress associated with the Father responding to the urgent motion of the Mother, described in the following terms by the Father in his affidavit sworn March 14, 2024:
- not being able to file court documents on time;
- not having a lawyer;
- experiencing post-traumatic stress because he had to deal with the family issues involving the Children in court for a second time; and
- being investigated by the Kenora Rainy-River Districts Child & Family Services for allegedly withholding Huxley from school,
the Father had to seek medical treatment requiring hospitalization for mental health issues from October 26, 2023, to October 29, 2023, as well as during another period in November 2023.
[16] Relief sought in the Mother’s urgent motion was granted by Warkentin J. in a temporary order dated November 2, 2023.
Suspended Parenting Schedule and Subsequent Events
[17] The temporary order of November 2, 2023, issued by Warkentin J. required the Children to live with the Mother, and that the Father’s parenting time with the Children be suspended.
[18] After November 2, 2023, the Father did not have any parenting time with the Children until he retained legal counsel in early December 2023. During this period of time, the Mother also did not allow parenting time between the Children and the Father’s parents and the Father’s new common-law partner, Joy Parsons, despite requests for the same.
[19] On December 4, 2023, the Father’s file with Kenora Rainy-River Districts Child & Family Services was closed.
[20] The Father had supervised parenting time with the Children through the Kenora Supervised Access Centre between January 19, 2024 and February 5, 2024. The notes taken during these supervised parenting sessions are positive.
[21] Finally, the Father acknowledges having bi-polar disorder, and admits that it is his responsibility to ensure he continues to take appropriate steps in order to manage his condition, including taking prescribed medication and practicing a broad list of preventative measures.
[22] Four medical reports filed in support of the Father’s efforts to address his mental health issues status reflect the following:
- Dr. Matthew Jack Crookall’s note dated December 21, 2023 which confirms that the Father has been adherent with prescribed treatment since being discharged from hospital on November 28, 2023 and that the Father’s symptoms are in remission;
- Dr. Kerry Anderson’s note dated January 11, 2024 which confirms the Father is stable with respect to his bi-polar disorder, and that he appears to be proactively engaging in strategies to manage his mental health and self care including adhering to his medication regime, attending medical appointments and counselling sessions, and engaging in physical activity;
- Dr. Laura Noack’s note dated February 3, 2024 states that the Father is stable, and agrees with Dr. Anderson’s comments in her note of January 11, 2024; and
- Note dated February 5, 2024 from social worker, Daniel Smith, confirms attendances at mental health therapy sessions, and that the Father is exploring strategies to help him moderate his responses and maintain his personal wellness.
[23] As of the date this motion was heard, the Father had parenting time with the Children during evenings, with only four overnight weekend visits since the November 2, 2023, temporary order of Warkentin J.
Position of the Father
[24] The Father relies upon his affidavit evidence and the reports from various health care professionals and a social worker to attest to his positive mental health status.
[25] He acknowledges that his unilateral decision in the Fall of 2023 to pull Huxley from St. John Paul II School and home school him during his parenting time was wrong.
[26] In addition, the Father’s new family consists of a new common-law partner, Joy Parsons, with whom he has a new daughter, River Lily Eden Welch (“River”), who was born on January 3, 2022. The affidavit evidence filed by the Father and Joy Parsons attests to the close relationships which exist between the Children and River, as well as a home and family environment which supports the Children and fully integrates them into the Father’s new family.
[27] Based upon the Father’s present mental health status, and his professed acknowledgment that he should not have withheld Huxley from school, he is seeking a return to the week on/week off parenting schedule which was reflected in the Original Parenting Plan.
Position of the Mother
[28] The Mother’s affidavit evidence addresses the challenges which faced Huxley when the Father decided that home schooling was preferrable to in person attendance at St. John Paul II School.
[29] Both the Mother and the Father referenced struggles which Huxley faced prior to Grade 3. To their credit, and because it was in the best interests of Huxley, both the Mother and the Father sought assistance by consenting to various assessments being undertaken to identify the source of Huxley’s struggles. This included visits with a child psychologist at Lake of the Woods Hospital in October 2021 and January 2022 who identified parental conflict and separation as being at the root of Huxley’s disruptive behaviour at school.
[30] Attached to the Mother’s affidavit materials are two report cards from St. John Paul II School. One is dated November 14, 2023 and reveals that Huxley was experiencing challenges during the first half of his Grade 4 year. As well, in a number of areas, “Needs Improvement” was noted for learning skills and work habits. This addressed the time period when Huxley was home schooled by the Father.
[31] The second report card is dated February 14, 2024 and reflects the time period when Huxley was residing full time with the Mother and the parenting time with the Father was restricted. The assessment in the February 2024 report card reflects a marked improvement in Huxley’s performance in Grade 4.
[32] The Mother asserts that the discussions between the Father and Huxley with respect to the Father’s opinions regarding the religious aspect of the education offered at St. John Paul II School have not been helpful for Huxley, instilling conflicting views in Huxley which he has had to process and work through at a young age.
[33] The Father would rather Huxley not attend the same school as August and be moved from the Catholic school system to the public school system. As such, in response to the Father’s request to return to the Original Parenting Plan, the Mother is seeking a further temporary order which schedules parenting time between the Father and the Children to straddle the weekends for the months of April, May and June 2024 so as to minimally disrupt the weekly school schedule for the Children.
[34] In addition, the Mother is proposing a summer parenting schedule which provides two 2 week periods with the Children instead of one 4 week period of time.
Decision
[35] In assessing what is in the best interests of the Children, I am governed by the provisions of section 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[36] According to section 16(3), a court shall consider a number of factors relating to the circumstances of the child and determining his or her best interests, including the child's age and stage of development, the nature and strength of the child's relationship with each spouse and each of the child's siblings, the history of care of the child, and the ability and willingness of each person to care for and meet the needs of the child.
[37] In addition, section 16(6) dictates that in determining parenting time, the court shall 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.
[38] With respect to a parenting schedule, section 16.1 of the Divorce Act will be considered. Section 16.1 provides the court with wide discretion in crafting a parenting order which meets the best interests of the Children.
[39] The evidence which was filed in support of this motion suggests that the Father is being successfully treated for his bipolar condition. The affidavit evidence also supports the fact that the Father, who is currently on parental leave providing primary care to his new daughter, River, has been exercising a parenting role on a full time basis without any issues. The evidence filed by the Father, his common law partner, Joy Parsons, as well as the Mother all suggests that the Father's mental health issues are being adequately treated. There was no evidence provided by the Mother which suggested otherwise.
[40] The situation with the children before the Fall of 2023 was such that there were no concerns regarding the Original Parenting Schedule. Both the Father and the Mother had created environments for the Children which supported their needs, growth and development. This included a degree of cooperation when it came to Huxley's well-being and the attempts of both the Mother and Father to determine what supports could be provided to him in order to assist with the struggles he was experiencing. This situation was only disrupted when the Father took it upon himself to remove Huxley from his regular school environment during those times when Huxley was being parented by the Father. The impact upon Huxley can be seen in the report cards which were filed by the Mother, and clearly the decision of the Father in this regard did more harm than good.
[41] In other words, the Father’s actions to homeschool Huxley for the sole purpose of reducing Huxley’s exposure to the learning environment of St. John Paul II School was not in the best interests of Huxley.
[42] At that time, the Father was governed by the order of Platana J. dated December 15, 2017. This was a final order which provided that the Children would attend a school operated by the Kenora Catholic School Board. While the affidavit evidence filed by the Father describes his current views of the impact of the Catholic school board’s education on Huxley, a court order is a court order and the Father was not free to unilaterally decide it no longer applied.
[43] It now appears that the Father understands what he did was wrong, and that he should have brought this matter back before a judge if he wished to change the school at which Huxley was attending.
[44] If the Father wishes to change the school environment in which Huxley is learning, he must recognize that this decision must involve both himself and the Mother. Despite the fact that the Father felt it was in the best interests of Huxley to home school him every other week during his parenting time, the decision to do so was misguided in its approach. To be clear, this is not to say that an education in the Catholic school board versus the public school board is preferable. But there are many factors which will impact upon this decision, each of which need to be weighed with the best interests of Huxley. Any future decisions in this regard will necessarily consider the stability which has been provided to Huxley within his current school environment and which has improved his academic performance as well as supported his ability to socialize with others.
[45] The best interests of the Children were being met before the Fall of 2023 by the Original Parenting Schedule which had the Children reside with one parent one week and then the other parent the next week. I am therefore prepared on a temporary basis to vacate the order of Warkentin J. dated November 2, 2023.
[46] I am only prepared to do so on a temporary basis to gauge the willingness of the Father to comply with the previous order and the agreement with the Mother for the Children’s schooling. Again, if the Father wishes to bring an application to vary the final order of Platana J. dated December 15, 2017, with respect to the school board providing education to the Children, he may do so. But he cannot unilaterally make changes, and the Children's current education plan must remain in place until further order of this court or the Mother provides her consent to changes proposed by the Father.
[47] In addition, in order to ensure that the best interests of the Children are served, I order that the summer parenting plan be varied on a temporary basis in accordance with the proposal of the Mother. The Children will spend 2 weeks with the Father on two separate occasions during the summer and two weeks with the Mother on another two occasions. This will provide a break for the Father and the Children and ease everyone back into the routine which was previously in place.
[48] In summary, the following temporary order shall issue:
- The temporary order of Warkentin J. dated November 2, 2023 is vacated;
- Huxley and August shall reside equally with the parties pursuant to a week about schedule except during the summer school holidays, Christmas school holidays and March break when the week about schedule shall be suspended. The Children shall be exchanged on Wednesdays at 3:20 p.m. each week commencing Wednesday, May 15, 2024.
- The Father shall have parenting time during the summer months from Monday, July 8, 2024 commencing at 6:00 p.m. to Monday, July 22, 2024 at 6:00 p.m., and then again commencing Monday, August 5, 2024 at 6:00 p.m. until Monday, August 19, 2024 at 6:00 p.m.
- The Mother shall have parenting time during the summer months commencing Monday, July 22, 2024, at 6:00 p.m. to Monday, August 5, 2024, at 6:00 p.m., and then again commencing Monday, August 19, 2024, at 6:00 p.m. to Wednesday, September 4, 2024, at 3:20 p.m.
[49] If the parties are unable to agree to costs, then any party seeking costs may deliver written costs’ submissions limited to 6 pages plus a costs’ outline within 10 days of the release of this decision. The responding party shall deliver its costs submissions within 5 days thereafter, subject to the same restrictions.
“originally signed by”
The Hon. Mr. Justice S.J. Wojciechowski