Court File and Parties

COURT FILE NO: FS-23-0036277-0000 DATE: 20240815

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HILARY RILEY, Applicant AND: ANDREW RILEY, Respondent

BEFORE: Rhinelander, J.

COUNSEL: Heather Hansen/Haya Sakakini, for the Applicant Jaret Moldaver/Lindsay Konkol, for the Respondent

HEARD: July 18, 2024

Reasons on Motion for Parenting Time

[1] The Respondent father seeks both a summer and regular schedule permitting him to have unsupervised parenting time on a temporary and without prejudice basis, with a built-in timetable to review this Order.

[2] The Applicant is opposed to the Respondent having unsupervised and overnight parenting time and requests that the status quo continue in accordance with the consent order of Ramsay, J. on April 15, 2024.

[3] The Applicant brought a cross-motion seeking primary residence and sole decision-making responsibility for the children.

[4] The Respondent is opposed and argued the Applicant’s cross-motion be dismissed on its merits or dismissed for non-compliance with the Family Law Rules.

Issues:

[5] Whether it is in the best interests of the children to have unsupervised and overnight parenting time with the Respondent?

[6] Whether it is in the best interests of the children to have their primary residence with the Applicant, and the Applicant have sole decision-making responsibility for the children?

Background:

[7] The parties were married September 22, 2017, and separated in the spring of 2023. There are three children of the marriage, twins Colin and Cameron, who are almost five years old, and Liam who recently turned two.

[8] The parties separated after the Applicant discovered the Respondent had secured a second mortgage against the matrimonial home by forging her signature. This mortgage was initially obtained in the amount of $325,000 but was subsequently increased to over $600,000. The purpose was to cover gambling debts accrued by the Respondent. This was not the first time the Respondent secured a lien against the matrimonial home to offset debts accumulated due to his gambling addiction, however, it was the first time he had not informed the Applicant. The Respondent had removed the Applicant’s driver license and passport and secured the assistance of a female to impersonate the Applicant to obtain the second mortgage.

[9] After separation, the parties agreed to a parenting time schedule which became a consent order by Leiper, J. on June 28, 2023. This Order permitted the Respondent to have unsupervised parenting time with the children three evenings a week for 2.5 hours, and four hours on Sunday in the matrimonial home providing he did not attend the home or parent the children while under the influence of any substances. The Order provided the Respondent the opportunity to be part of the children’s evening and bedtime routines.

[10] Within a week of the Order having been issued, it was alleged the Respondent arrived at the matrimonial home in an intoxicated state. The Applicant observed and took a photograph of what appeared to be a firearm lying on the front passenger seat of the Respondent’s vehicle. The Respondent was arrested and charged with offences relating to unsafe storage and transportation of a firearm and five counts of possession of a prohibited device. He was held for a bail hearing.

[11] The Respondent was released on July 10, 2023, on a surety bail with conditions in the amount of $40,000 without deposit. The Respondent’s parents stepped forward to act as his civil jailers pending a determination of these charges. In addition to statutory terms, the other terms of his release require him to:

a. Reside with his sureties each night at their home in Toronto, or the cottage in Bracebridge; b. Remain in his residence at all times except for i) medical emergencies, ii) when in the direct and continuous presence of one or both sureties; and iii) while at the Metamorphosis Centre for the purpose of residential treatment; c. Not communicate with Hilary Riley except i) pursuant to a family court order made after today’s date; and ii) for purposes of making contact arrangements for, or having contact with your children through a mutually agreed upon third party; d. Not attend within 250 metres of 140 Fairlawn Avenue, Toronto; e. Not possess any weapon(s) as defined by the Criminal Code including but not limited to a pellet gun, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

[12] Due to the bail conditions, the Respondent was not permitted to exercise his parenting time in person pursuant to the Order in place at that time. The Respondent attended at a residential treatment program and had parenting time via Facetime calls. Upon returning home from the program, the parties were initially unable to agree on terms of parenting. Ultimately, an agreement was reached, and a new parenting order was in place effective September 12, 2023. This Order permitted the Respondent to see the children on Wednesdays and Thursdays after school until 6:30 p.m. The parenting time, on a temporary and without prejudice basis was supervised by his mother and/or father. The Respondent was residing with his parents at their cottage during this time. Additional parenting time was agreed to on either the Saturday or Sunday for five hours if the Applicant was at her parents’ cottage. Facetime calls were to continue with the children daily when he did not have in person parenting time.

[13] On October 11, 2023, the Respondent was charged with failing to comply with his recognizance by attempting to contact the Applicant indirectly through her mother and the nanny. The Respondent was released on a Form 10 undertaking with conditions he does not contact the Applicant except pursuant to a Family Court Order for purposes of arranging contact with the children or through a mutually agreed upon third party, and that he not attend any place that he might reasonably expect the Applicant to be.

[14] On November 8, 2023, the Respondent’s bail was varied with the consent of the Crown to permit him to be outside of his residence without sureties while at, and while driving directly to and from, his place of employment in Toronto. The specific location was set out and identified in the bail variation. This variation corrected an earlier Order, that had an incorrect business address. This exception did not permit the Respondent to attend outside of his office for any purpose, in the absence of a surety, except to drive directly to and from home.

[15] The Respondent had requested additional parenting time throughout the fall after the September 12, 2023, Order had been consented to. This Order was subject to review if one of three factors occurred which included if the Respondent and his parents returned to their home in Toronto from the cottage. The Respondent sought and received leave to bring a parenting motion.

[16] On January 26, 2024, the Respondent was arrested in York Region and charged with operating a motor vehicle while impaired by alcohol (Impaired Driving), operating a motor vehicle with a blood/alcohol content over .80 mg/mL (Over 80), and fail to comply with a recognizance (FTC-R). The Respondent was held in custody for a bail hearing.

[17] On January 30, 2024, the Respondent plead guilty to the Over 80 and FTC-R. His sentence was suspended for the FTC-R and he was placed on probation for twelve months with conditions including that he not possess any weapons as defined by the Criminal Code, to attend and participate in counselling or rehabilitative programs as directed by the his probation officer, to sign necessary releases, and provide proof of his attendance. A forfeiture order was issued for the airsoft hand pistol, a weapon, to be disposed of as the Attorney General for the Province of Ontario directs or otherwise in accordance with the law. The Respondent received a $2,000 fine for the Over 80, a victim fine surcharge of $600, and a driving prohibition for a period of 15 months. The charge of Impaired Driving was withdrawn.

[18] On February 4, 2024, the parties instituted a parenting schedule that permitted the Respondent to have additional supervised parenting time on alternate Saturdays and Sundays. This was turned into a temporary without prejudice order by Ramsay, J. on April 15, 2024. All exchanges of the children are facilitated by the Applicant and the Respondent’s parents. Facetime calls continue daily with the children on days when he does not see them in person.

[19] The Respondent obtained a hair follicle test on May 30, 2024, and a psychological assessment in June.

Respondent’s Position:

[20] The Respondent has requested unsupervised and increased parenting time with overnights for the summer and equal parenting time after Labour Day. The Respondent claims the Applicant is interfering with his relationship with the children as she’s refused to facilitate any overnight parenting time and insists on minimal and supervised time with the children.

[21] The Respondent states prior to separation both parties were equally involved in the children’s care. They each contributed to the morning and evening routines of the children. For the most part the Respondent would prepare dinner and attend to domestic chores not fulfilled by the housekeeper. He worked from home for most of the pandemic and had a flexible work schedule that allowed him to assist with the children.

[22] The Respondent acknowledged his struggles and addiction to gambling which led to poor financial decisions and deceit from the Applicant who asked him to leave the matrimonial home. The Respondent slept elsewhere but attended regularly to spend time with the children. In early May 2023, the Applicant imposed restrictions on when he could attend the home and conditions on his parenting time. Initially the Respondent agreed to the terms. However, there were occasions when his parents weren’t available to attend with him and his parenting time was unsupervised.

[23] On these occasions, the parties exchanged verbal barbs in front of the children. This led to further disrespectful treatment between the parties and the Respondent’s frustrations and reactions to actions of the Applicant which included changing the locks and removing the children from the home. The Respondent acknowledged his behaviour was not always appropriate as he struggled with the marital breakdown and separation from his children.

[24] The Respondent alleges intimate partner violence perpetrated by the Applicant. He claims the Applicant engaged in name calling and disparaging comments in front of the children. He described an occasion where the Applicant punched him in the face and resulted in a black eye.

Applicant’s Position:

[25] The Applicant’s position is parenting time should continue to be supervised, without overnight stays, until the Respondent proves his stability. She asserts that she has been the primary caretaker of the children and the parent responsible for their day-to-day needs. The Respondent was the primary breadwinner and had little involvement with childcare tasks.

[26] The Applicant argues when considering the best interests of the children, the court must give primary consideration to the children’s physical, emotional, and psychological safety, security, and wellbeing considering the factors enumerated in s.16(3). It is her position that the children living with her as their primary residence and giving her sole decision-making responsibility addresses the primary consideration and meets all the factors.

[27] The Applicant maintains after having the twins, the Respondent’s attitude toward her changed. He began to denigrate her and call her names. He became financially abusive and lied about the family finances. He stopped making payments on both mortgages and left the Applicant with significant legal fees to defend herself from the fraudulently obtained second mortgage. The matrimonial home was sold to offset the dire financial circumstances created by the Respondent.

[28] The Applicant expressed concerns regarding the Respondent’s access to firearms and unsafe storage practices he exercised in the matrimonial home. The Applicant has concerns for the safety of the children if parenting time is unsupervised. She does not understand on what basis the Respondent requires a firearm or replica firearm when in public. She believes it may be for his safety due to the large gambling debts he accrued and monies he may owe to non-traditional lending sources.

[29] She believes the Respondent is spiralling out of control and is concerned for the best interests of the children. The Applicant maintains the Respondent is “dangerous, abusive, and mentally unstable” and it is his “reckless conduct” that has “destroyed the family and jeopardized the safety” of her and the children. The Applicant states she is receptive to gradually increasing the Respondent’s parenting time providing “consistent and continuous trust and stability” are established before overnight stays commence.

Applicable Legal Principles:

Best Interests of the Child

[30] The governing test for determining decision-making responsibility, primary residence and parenting time is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s.24, as amended SO 2020, c.25, Sched 2, s.6 (“CLRA”).

[31] Section 16(1) of the Divorce Act provides the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s.16(2); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) ("CLRA").

[32] Contact may be restricted if it conflicts with the children’s best interests. It is important to remember that parenting time is not the right of the parent but that of the child and when considering parenting time, it should be with a child-focused approach.

[33] As set out by Pazaratz, J. in K.M. v. J.R., 2022 ONSC 111, at para 50, the court is required to look at and consider each child’s specific situation as follows:

a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. b. None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching. c. No single criterion is determinative. d. The weight to be given to each factor depends on the circumstances of the particular child. e. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480. W.H.C. v. W.C.M.C., 2021 ONCJ 308; Harry v. Moore, 2021 ONCJ 341. f. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454. g. The focus is on the child’s perspective. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young, 1993 34 (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264.

[34] In addition, the court is required to consider whether there has been any family violence, and if so, the impact of the violence on the children, and on the ability and willingness of any parties to care for and meet the needs of the children, when assessing the best interests of the children. V.M.W. v. J. Mc.-M., 2021 ONCJ 441.

[35] Section 16(4) sets out a further set of factors to consider when considering the impact of family violence. The definition of “family violence” in the Divorce Act is not limited to physical acts but also includes psychological and financial abuse. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

[36] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199; V.R. v. S.R., 2024 ONCJ 262.

[37] Courts allocating parenting time are required to consider that “a child should have as much time with each spouse as is consistent with the best interests of the child”: Knapp v Knapp, 2021 ONCA 305. It is important to acknowledge the starting point after separation is not equal parenting time, but rather what is in the best interests of the child.

Supervised Parenting Time

[38] Courts have long held that supervised access is not a long-term solution to parenting time and is only appropriate in specific situations which may include substance abuse concerns, child safety and protection, and/or where there has been a significant absence of a parent with the child. The burden of proof that parenting time should be supervised rests with the parent seeking the order. Young v. Young, 1993 34 (SCC).

[39] Supervised parenting is a temporary solution and is a great intrusion into the relationship between child and parent and reserved for the most extreme cases: Stec v Blair, 2021 ONSC 6212, paras. 22-24.

[40] To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”. See: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein.

[41] The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.

[42] Supervised parenting should not be imposed if its sole purpose is to provide comfort to the other parent. In circumstances where supervised parenting time is imposed, it is for a limited time, with the expectation or hopes that the parenting time will become unsupervised. Klymenko v. Klymenko, 2020 ONSC 5451; C.S. v. K.M., 2023 ONCJ 106.

[43] Even in cases where a parent may be inexperienced and lack parenting skills, supervised access was not ordered. Parents learn to parent from experience, their partners, their parents, their friends, and their child. Kaja v. Mihalciuc, 2018 ONCJ 464; M.C. v. P.P., 2021 ONCJ 219.

Status Quo

[44] While there is no presumption in favor of decision-making to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo are important considerations at the interim custody stage. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[45] Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage -- the term “status quo” is not specifically mentioned in the legislation. However, Section 24(3)(d) lists “the history of care of the child” as a factor in determining best interests. See: Dayboll v. Binag, 2022 ONSC 6510; Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

[46] In most circumstances, an interim order is intended to stay in place until trial. An important principle to be applied on an interim motion to vary an interim order is maintaining the status quo pending trial. This is more significant when parties have consented to the current parenting agreement, and it has continued: Fatima v. Agha, 2024 ONSC 1441, Greve v. Brighton, 2011 ONSC 4996; Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.)

Criminal Charges

[47] It has been established that courts “must be vigilant of the risk that parents may engage the criminal process to achieve a strategic advantage in family law proceedings”. Courts must approach allegations of criminal wrongdoing cautiously and whether there are any clear concerns that impact the analysis regarding the best interests of the children. Relying on Chappel, J. in Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No.6120 at para. 29 “… this involves a careful consideration and weighing of all of the evidence and relevant factors … Allowing the existence of criminal charges in such circumstances to dictate the outcome of the motion runs the risk of allowing a party to invoke the criminal law system as a tool to gain an unfair advantage and hijack the Family Law proceedings”.

Analysis:

[48] Unlike other cases where parties have agreed to an interim order on consent, the Order itself contemplated a variation and review of the terms. All parties were aware that a variation would be sought after at least one factor initiating a review had been triggered, thereby affecting the status quo.

[49] This is important as it was clear when the agreement was consented to that the status quo may not be maintained pending trial, providing there are compelling reasons the Order should be varied to meet the children’s best interests.

[50] When considering the best interests of the children I must look at the factors enumerated in section 16 of the Divorce Act and section 24 of the Children’s Law Reform Act.

[51] The Applicant acknowledges the children should have a relationship with the Respondent, however, she has concerns for their safety and well-being due to the Respondent’s behaviour. The Applicant urges the Court to maintain the status quo as she is the primary caregiver and has provided the children with stability for the past year. She is not opposed to the Respondent having additional time with the children and unsupervised - just not now. If not now, then when is the question.

[52] Both parties allege substance abuse by the other. The Applicant claims the Respondent abuses prescription medication and alcohol. The Respondent states the Applicant abuses alcohol and is suicidal. The evidence relied upon for this motion has not been tested by cross-examination. To try and determine the truth on some level, I must look for evidence that corroborates or supports the positions of the parties while ensuring the best interests of the children are at the forefront.

[53] The Respondent has found himself before the courts within a six-month span on three separate sets of charges.

[54] The Respondent provided little to no detail regarding the circumstances surrounding the criminal charges he faces. It is his position he intends to defend himself but provided no context for this court to understand the allegations he faces. This makes it difficult to fully understand and assess the nature of the charges other than he has been charged with specific offences. For example, no information is provided regarding what the prohibited device(s) are in relation to the five counts. The court has no information whether the items are over-capacity magazines, brass knuckles, a knife that opens with centrifugal force, a replica handgun, or a combination of devices that are prohibited.

[55] In his affidavit, the Respondent was silent with respect to the allegation of the FTC-R other than he acknowledged sending a text to the nanny about their anniversary and the nanny showed the text to the Applicant. More information was revealed through the report prepared by Dr. Saunders, where the Respondent confessed to hoping for a reconciliation, he messaged the nanny and “suggested” she share the message with the Respondent, thereby, acknowledging the breach of his recognizance by attempting to contact the Applicant indirectly.

[56] The Applicant maintains the Respondent had a loaded firearm lying on the front passenger seat of the vehicle on July 6, 2023, and officers told her he had several rounds of ammunition throughout his office. Questions are raised regarding this information. If the Respondent was arrested at his home, it is unclear under what authority the police searched his office. If the firearm was loaded or there was ammunition readily available, why did the police fail to charge the Respondent with this offence? Failure to perform their duties could lead to disciplinary action for the officers. Instead, he is charged with unsafe storage and transportation of the firearm. The latter charges while less serious, are still of concern to the court. There is no information why the Respondent has a gun in his car and in plain view on the seat.

[57] The Respondent could easily have resolved these issues by including the allegations regarding the charges in his affidavit without compromising any potential defence.

[58] Firearms are clearly a concern of the court, especially in circumstances where a gun owner fails to follow safe storage practices and does not comply with regulations and the law. The Respondent’s recent interactions with the law and possessing weapons in public is a very serious concern of the court.

[59] The Respondent argued the charges do not relate to any harm or threats of harm and he poses no danger to the Applicant and/or the children. However, the charges are very serious, and this is reflected by the form of his judicial interim release. A house arrest condition is one of the strictest terms imposed and is usually ordered when the court is concerned for the safety of the public or to curtail the likelihood of the offence being repeated. Hence, the Respondent is not permitted outside his home without the supervision of his parents.

[60] The Respondent was given an opportunity to continue his employment and his bail was varied to permit him to drive directly to and from work and while at work in the absence of being supervised by his parents. Unfortunately, the Respondent took advantage of the bail variation and his parents trust which resulted in the third set of charges on January 26, 2024.

[61] Despite these charges being resolved and no longer before the courts, no information was provided regarding the circumstances other than he is subject to a probation order for a failure to comply with a release order. Fortunately, the Respondent included as exhibits copies of the disposition which established, he was also convicted of Over 80 and the FTC-R was related to his possessing a weapon, which was subsequently forfeited. It is clear to this court additional charges could have been laid, including a further breach of his bail as the Respondent was arrested in York Region. This is not where his office is located, nor was it a direct route to his office from his parents’ home.

[62] It is hoped the Respondent understands he is fortunate to have been provided a judicial interim release regarding the first two sets of charges and that the Crown did not seek to revoke these earlier releases after his arrest and convictions in January.

[63] I have concerns regarding the Respondent and his efforts to shift blame. This is evident through his discussions with Dr. Saunders and his explanations set out in his affidavit. The Respondent needs to recognize his circumstances have been created by his own behaviour. This is not the first time the Respondent has failed to appreciate or acknowledge his own responsibility for the circumstances he finds himself in. The Respondent sent text messages to the Applicant in April/May 2023 blaming her that his employment may be affected if he is charged with Fraud. The risk that he may be charged with fraud was a direct result of his choices.

[64] In these proceedings, the Respondent was quick to point the finger at the Applicant and her family for contacting police, seemingly to gain an advantage in the family proceedings. Contrary to the Respondent’s assertions, I do not accept the Applicant is using the criminal justice system to curry favour in the family courts. The circumstances here are different than those set out in Batsinda v. Batsinda, 2013 ONSC 7899 and other cases relied upon by the Respondent. It is unfortunate that as recently as June, the Respondent has failed to take ownership of his actions and still looks to cast blame elsewhere instead of looking inward to examine his own actions. Instead, he maintains the Applicant “was/is looking for any opportunity to have me arrested”.

[65] Although I have identified some concerns, I also recognize the Respondent has taken steps to address other issues the Court may have based on past events. The Respondent had consented to supervised parenting time for the past year without overnights. He has obtained a crib and beds and created space for the children to spend overnights. He has stopped drinking and attended counselling for gambling. He obtained a Substance Abuse (alcohol and drug) Hair Follicle test on May 30, 2024, that covers a 120-day period. The test was negative for all substances except amphetamines. The Respondent is currently prescribed Adderall for ADHD which he has taken since he was a child, Cipralex for depression, and Alprazolam for anxiety. In addition to the above test, the Respondent attended for a psychological assessment regarding his mental health and ability to parent the children from a mental health perspective. Lastly, the Respondent advised he no longer has a firearm license or certificate.

[66] While I am troubled by the Respondent’s criminal antecedents, this does not mean he cannot be a good parent to his children when they are with him. Having considered all the factors and the criteria set out in s.16, it is in the best interests of the children to have both parents in their lives and for the children to have additional time with their father including overnight stays.

[67] I must now decide what is an appropriate schedule and whether the parenting time should be supervised.

[68] In alignment with the Arizona Guide recommendations and the AFCC, a schedule that permits the children to have two consecutive overnights every other week, and an additional three-to six-hour period would be appropriate for children between the ages of 2 to 5. Therefore, the Respondent shall have parenting time with the children on alternate weekends and one mid-week period after school until 6:30 p.m. On days when the children do not have school, the mid-week period will commence at 12:00 p.m.

[69] The Respondent is currently subject to a house arrest condition. He is permitted to be on the property including the yard of his parents’ home but is not allowed to leave the property unless in their direct company except for medical emergencies or to go directly to and from work. The Respondent does not currently have a driver license and must rely on public transportation or his parents for the exceptions to house arrest. The Respondent shall be permitted to have unsupervised parenting time with the children during the day between the hours of 6:30 a.m. and 6:30 p.m. Overnight parenting time shall be supervised by one of his parents. This does not mean they have to always be in the same room, but at least one of his parents must be present in the house between the hours of 6:30 p.m. and 6:30 a.m. Therefore, overnight parenting time must be supervised. This term may be reviewed if the Respondent’s bail conditions change, or his criminal charges have been completed.

[70] If parenting time occurs at the cottage, one of his parents must always be present on the cottage premises. There must be an adult available with a valid driver license who is not under the influence of drugs or alcohol in the event of an emergency.

[71] The Respondent shall be permitted to have parenting time with the children from Friday, August 23, 2024, at 10:00 a.m. until Monday, August 26, 2024, at 12:00 p.m. at the cottage. If the Respondent exercises his parenting time in Toronto, the children shall be transitioned to the Applicant on Sunday, August 25, 2024, by 6:30 p.m. This is to permit a mini vacation with the children and avoid the traffic congestion referred to in his affidavit of a Sunday return.

[72] The Respondent shall have alternate weekend parenting time commencing Friday, September 6, 2024, with pickups after school on Fridays and drop-offs Sundays at 6:30 p.m.

[73] The Respondent shall have parenting time each Wednesday from after school until 6:30 p.m.

[74] The Respondent shall be provided with first right of refusal to have parenting time with the children on P.A. days if the Applicant is working.

[75] If the Respondent’s bail is varied, the Respondent shall be permitted to attend school events where the Applicant may also be in attendance. The parties shall keep a respectful distance between each other and be respectful and not engage in any disparaging contact to one another. This does not include parent/teacher interviews. If the Respondent’s bail is not varied, the parties will attend school events that occur during their respective parenting time.

[76] The parties shall rotate parent-teacher interviews and the Applicant shall attend the first interview following this Order. The Respondent may receive feedback or arrange a virtual or phone interview if available.

[77] The parties shall continue to facilitate Facetime calls with the children each evening when in the other parent’s care. The Respondent’s parents or a mutually agreed upon third party will facilitate the Facetime calls between the children and the Applicant.

[78] Courts are aware of the impact family violence may have on children. In making my decision, I am cognizant of the allegations of family violence made by both parties. Having transitions of the children by a mutually agreeable third party will assist in ensuring no conflict is exhibited in front of the children.

[79] Based on the Respondent’s lack of awareness of his own behaviour, and the concerns expressed by the Applicant, I am not prepared to order the parties to communicate directly with one another through a parenting application at this time. I would suggest, however, that the Applicant give some thought to moving towards using an app to exchange communications solely about the children that include information regarding school, events, health, and eventually transitions and exchanges regarding the children.

[80] The Applicant seeks sole decision-making responsibility and primary residence of the children. She claims to be the primary caregiver and can provide the children with consistency and stability the children need and that she has consistently made all the decisions for the children. Further, because the parties are unable to communicate effectively, it would be in the children’s best interests.

[81] At this point, it is premature to grant the Applicant’s motion as requested and it is dismissed. The parties shall continue to have joint decision-making responsibility. There are no immediate concerns regarding decision-making that have been raised on this motion. There is no evidence before me that urgent decisions need to be made and the parties are unable to agree. In terms of education, in the absence of any evidence, it is presumed the twins attend school within the catchment area where they reside. Liam is cared for by a nanny during the work week. If there are any health concerns that arise, the parties shall follow the advice of the treating physician, dentist, or other medical practitioner. To prevent situations that arose last year, the parties shall not enroll the children in extra-curricular activities that occur during the other parent’s time. This means that should a parent wish to enroll the children in a weekend activity, both parties must agree and commit to taking the children to the activity.

Costs:

[82] If the parties are unable to agree on costs, they shall serve and file their written submissions not to exceed three pages double spaced 12-point font, any offers to settle, and a bill of costs no later than Monday, September 9, 2024.

Conclusion and Order:

[83] The following is ordered on a temporary and without prejudice basis and replaces the Order of April 15, 2024 of Justice Ramsay. It is in effect as of its release date:

a. The Respondent shall not consume any alcohol or non-prescribed medication 12 hours prior to the commencement of his parenting time and during his parenting time. b. The Respondent shall be permitted to have parenting time with the children from Friday, August 23, 2024, at 10:00 a.m. until Monday, August 26, 2024, at 12:00 p.m. at the cottage. If the Respondent exercises his parenting time in Toronto, the children shall be transitioned to the Applicant on Sunday, August 25, 2024, by 6:30 p.m. c. The Respondent shall have alternate weekend parenting time commencing Friday, September 6, 2024, with pickups after school on Fridays and drop-offs Sundays at 6:30 p.m. d. The Respondent shall be permitted to have unsupervised parenting time with the children during the day between the hours of 6:30 a.m. and 6:30 p.m. while on the premises of 270 St. Leonards Avenue, Toronto, Ontario. e. The Respondent shall be permitted to have unsupervised parenting time with the children during the day between the hours of 6:30 a.m. and 6:30 p.m. while on the premises of 1430 Browning Island, Bracebridge providing his mother or father are always present on the premises. f. All overnight parenting time shall be supervised by one of his parents. g. The Respondent shall be provided with first right of refusal to have parenting time with the children on P.A. days if the Applicant is working. h. Commencing September 4, 2024, the Respondent shall have parenting time on Wednesdays from after school until 6:30 p.m. i. Subject to any other court orders, the Respondent may be permitted to attend school events where the Applicant may also be in attendance. The parties shall keep a respectful distance between each other and be respectful and not engage in any disparaging contact with one another. j. The parties shall rotate parent-teacher interviews and the Applicant shall attend the first interview following this Order. The Respondent may receive feedback or arrange a virtual or phone interview if available. k. The parties shall ensure that the children have a Facetime call with the other parent on days when they do not have in-person parenting time. The calls shall be up to 15 minutes between after school and 7:00 p.m., unless the parties agree otherwise in advance and in writing. If the call is on a day when the children are not in school, the party will advise the mutually agreed upon third-party or the Respondent’s parents when the call will occur in advance. The calls must be facilitated except on the rare occasion when it is not possible to facilitate a call due to travel, special events, illness, and other similar occasions. If a call is unable to be facilitated, an explanation shall be provided in writing within 24 hours through the agreed upon method of communication. l. The overnight supervised parenting term may be reviewed if the Respondent’s bail conditions change, or his criminal charges have been resolved. m. Neither parent shall denigrate or criticize the other parent in front of the children, or within earshot of the children. n. The Respondent shall not have inappropriate non-child focused conversations with the children or within earshot of the children. o. If the parties are unable to agree to a holiday schedule in writing, the following shall be in place for 2024/2025: i. Winter School Break – the regular schedule shall continue with the following exceptions set out below. ii. Christmas Day – the Respondent shall have parenting time with the children from 12:00 p.m. until Thursday, December 26, 2024, at 6:30 p.m. iii. New Years Day - the Respondent shall have parenting time with the children from 12:00 p.m. until Thursday, January 2, 2025, at 6:30 p.m. iv. The children’s birthdays shall follow the regular schedule. v. March Break 2025 - The regular schedule shall continue. vi. Mother's/Father's Day – the children shall be with the honoured parent from Saturday at 4:00 p.m. to return to the regular schedule on Sunday evening at 6:30 p.m. if the children are not otherwise scheduled to reside with the honoured parent. Regular schedule will resume at that time. vii. Long Weekends (Truth and Reconciliation Day, Thanksgiving, Family Day, Victoria Day, Canada Day, and Civic Day) shall fall in accordance with the regular schedule. If it is the Respondent’s weekend in accordance with the regular schedule it shall be extended to a return on Monday by 12:00 p.m. viii. Halloween – shall follow the regular schedule unless the parties agree otherwise. The parent who has the children for Halloween shall be responsible for the costumes. ix. Parents’ Birthdays – shall follow the regular schedule.

Rhinelander J. Date: August 19, 2024