COURT FILE NO.: FC-23-1690 DATE: 2024/09/03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Marc Seguin Applicant – and – Natalija Marjanovic Respondent
Counsel: Paul Fitzgerald for the Applicant Stephen Codas, for the Respondent
HEARD: August 27, 2024, oral decision given August 30, 2024
ENDORSEMENT ON MOTION ON PARENTING TIME
SOMJI J.
[1] The parties are two educated professionals. They married in 2010 and separated in February 2019. They have two young children with whom they have forged strong relationships. The parties are considerate of one another and have been able to co-parent their children since separation through consensus and under the terms of an Interim Separation Agreement signed on June 7, 2019 (“Agreement”).
[2] Ms. Marjanovic (the mother) is employed by the Canadian Dept. of Foreign Affairs. In 2019, she was offered a posting in Miami. To support the development of the mother’s career, Mr. Seguin (the father) consented to the children residing with her there for four years. The parties worked out terms so that the father could exercise generous parenting time with the children which he did, in fact, do over the four years. The children have now returned to Ottawa. While the father has been able to exercise parenting time with the children on holidays including a month in the summer, he seeks an order for increased parenting time with the children during the school year (“children”).
[3] Ms. Marjanovic does not necessarily oppose the father having increased parenting time, but argues that the children are not accustomed to a school routine at their father’s home and furthermore, both children have indicated in a private parenting plan assessment their reluctance to live with the father during the school week. She argues that a 50/50 shared parenting arrangement is not presently in the children’s best interest and any change in the parenting schedule, if granted, should be a on a limited and graduated basis.
[4] The parties share decision-making pursuant to the Agreement and have resolved issues around child support, including building in terms for changes in the parenting arrangement.
[5] The only issue to be decided is what parenting schedule is in the children’s best interest?
Analysis
[6] The primary consideration in determining a parenting plan which includes primary residence, decision-making responsibility, and parenting time for the father, is the best interests of the children: s. 16 and 16.1 Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am.
[7] Section 16(3) Divorce Act sets out the following best interest factors:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
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 spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
c. each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
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 cooperate, 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 cooperate 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.
[8] While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision and not necessarily in the order they are listed in the legislation.
[9] In arriving at my decision, I have also considered the Voice of Child Report dated August 7, 2024, prepared by Chantal Bourgeois.
the history of care of the child;
[10] Both parents were involved in the children’s care until the mother went to Florida for her posting. While the father continued to have regular and meaningful contact with the children while they were away, it is inevitable that in those circumstances and at that distance, the mother would become the children’s primary caregiver attending to the children’s daily needs. This status quo, however, was not the result of an uncaring father who was not interested in his children. On the contrary, it was the result of a considerate and caring father who was trying to find a way to both support the career of his former spouse and maintain a meaningful relationship with his children. In short, the father’s choice to support the mother relocation to a posting in Miami should not be held against him.
[11] The Agreement indicated that upon returning to Ottawa, the parents would review the parenting arrangement to maximize the time the children spent in the care of both parents and in accordance with their best interests. Upon the children’s return to Ottawa, the mother only agreed to the father having parenting time on alternate weekends during the school year claiming the children are not accustomed to a school routine with him. Consequently, the children see their father every 12 days during the school year. While the father did not agree with the schedule imposed, he was cautious about causing conflict. After a year, he felt he had no choice but to bring a motion to increase his parenting time during the school year.
[12] In this regard, I am mindful that the children are returning to elementary school either this week or next. Hence, a timely decision is necessary so that the children have an understanding of what their school routine will be like for this upcoming academic year.
the children’s need for stability and future plans of care
[13] The children are currently 9 and 11 years of age. While they have been back from Florida for only one year, they appear to be socially well adjusted. They have resumed their various activities in music, dance, and sports, supported by both parents.
[14] Both parents are able to provide comfortable homes for their children with the children each having their own rooms. The mother lives in Rockcliffe where she has since settled in a property that she previously owned. The father relocated to a new build family home in Orleans in the east end of Ottawa. The father is interested in the arts. In his spare time, he engages in photography and plays music. He has a music studio in his basement where the children can play and practice music, a privilege these young children have perhaps not yet learned to appreciate.
[15] The father has a new partner. She does not live with the father. He has introduced the children to his partner and they are adjusting to her being part of his life. He intends to increase the children’s exposure to his new partner and her children gradually.
[16] Both children are still in elementary school entering grades 5 and 6. Upon return to Ottawa, the mother enrolled the children at Ashbury College which is a private school in Rockcliffe and in close proximity to her home. The mother did not discuss this decision with the father. However, the father has not objected to their attendance at the school. The mother is agreeable to paying the fees. The parents report the children are academically strong and are doing well in school. The father is engaged with their school activities.
[17] Both parents have well paying jobs. They can financially meet the children’s needs and can afford to provide the children with opportunities to support their continued growth and development. While the children are more accustomed to their mother taking them to extracurricular activities during the school year, the father is more than willing to be a full participant. He spends holidays with them doing activities without any issue.
[18] As corroborated in the VOC Report, both parents are able to meet the children’s emotional, physical, and financial needs.
the nature and strength of the child's relationship with each spouse, siblings and other family members
[19] The parents support the other parent having a relationship with the children. The father confirms in his affidavit that the respondent is a good mother, and the children are lucky to have her as their mother. The mother equally supports the father’s relationship with the children. While she has made some decisions without the father’s consent such as which school they would attend, she has made sure that the father has generous parenting time with the children. For example, the father just completed a month holiday time with the children in August.
[20] The VOC Report confirms based on the children’s interviews that they have strong bonds with both parents and enjoy spending time with both parents.
[21] In addition, the children appear to have close relationships with their extended families. The father supports the children’s participation in the Orthodox Christian faith with which the children identify as well as the children spending time with their maternal grandparents and family, including in Beamsville, Ontario.
the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
[22] While there have been some challenges in joint decision-making, i.e. choice of school, I have no doubts that these parents will comply with any court order imposed. I also find they are both committed to doing what is in their best interests of their children and will make best efforts to cooperate in matters affecting their children.
the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
[23] Both children were interviewed by Chantal Bourgeois. They expressed their love for their parents and that they enjoy time with them. Their relationship with either parent is not an issue.
[24] With respect to the parenting schedule, however, both children expressed reservations about having to spend time at their father’s home during the school year for several reasons: first, the father’s home is far from their current school, and they do not like the idea of having to drive to and from school; second, they are not accustomed to a school routine with their father including doing homework with him.
[25] In her report, Ms. Bourgeois states that when discussing options of increasing her time with her father in different forms, the youngest child squirmed and was resistant to the idea of having to drive from Orleans to school in Rockcliffe. Later however, she stated that she does not really know how it would feel to go to school from her father’s home.
[26] When asked similar questions about staying at her father’s during the school week or part of an extended weekend, the eldest child said she would not like that and it would make her mad if a judge imposed that on her.
[27] I note, the children’s comments to Ms. Bourgeois were made with the children never having even tried a regular school routine at their father’s place.
[28] It is expected that the children would be anxious about a school routine that revolves around their father’s home given for most of their schooling years both in Florida and upon their return to Ottawa, their school routine has revolved around their mother.
[29] However, both these children were able to manage the transition of leaving all their friends and school in Florida to commence a new life here in Canada in a new school, in a new neighbourhood, and with new friends. They are thriving academically and are socially well adjusted. While I accept that they are reluctant to transition to a different school routine with their father, I am not persuaded based on the pleadings as well as Ms. Bourgeois’ report, that there is any risk of emotional harm to them should they transition to a new school routine with more time with their father on a graduated basis.
[30] Furthermore, I agree with the father’s counsel that the distance of 25 minutes by car between the father’s home and the new school should not be a determinative factor. While it is not what the children prefer – what child would not like to roll out of bed and be able to cross the street to get to school – this should not undermine the father’s parenting time with the children. In addition, the father has flexible work hours and is able to drive them to and from school. Unlike many children, they will not be required to go on a school bus.
[31] Furthermore, the father did not have an opportunity to provide input into the choice of school. While the mother suggests that it was always known she would likely reside in Rockcliffe and have the children attend Ashbury College upon her return to Canada, she had an obligation as a joint decision-maker to consult with the father about choice of school upon her return. Many things change over four years. The father was not bound to reside in Rockcliffe, one of the most expensive neighbourhoods in Ottawa, for an indefinite duration awaiting the mother’s return. In addition, upon returning, the mother could just as easily have moved to a home in Orleans to allow both parents to be in close proximity to one another which, I might add, makes exchanges for the children significantly more convenient. It would have also permitted them to attend a school in the catchment area close to both parents homes. The mother chose not to do so. For the sake of maintaining the children’s stability and avoiding conflict, the father is not seeking to move the children to a public school in close proximity to his home. However, the mother’s choice and location of school should not deprive him of the opportunity to have the children experience parenting time with him as part of their daily school routine.
[32] The mother also suggests that the father does not help the children with their homework particularly French homework. The children reported to Ms. Bourgeois that he will speak to them in French and then gets frustrated when they do not understand. I accept this is true and the father will also have to adjust to meeting the children’s needs with respect to schooling which includes ensuring he is available for them to do homework.
[33] In addition, both parents have now seen Ms. Bourgeois’ report and are aware of the children’s concerns. They have also reviewed each other’s pleadings which refer to grievances between the parties including trust issues around parenting. Both parents are highly educated, and I have full confidence that they will take the necessary steps to adjust their behaviours with their children and with each other to minimize conflict and best meet the needs of their children.
Conclusion
[34] Upon consideration of the best interest factors, I find it is in the children’s best interests to have parenting time with the father during the school year. The father has been fully engaged with his children since their birth and to the full extent possible given their distance over four years. The children’s experience with their father while in his care has been positive. The children are still very young and there is nothing to suggest that they cannot transition to a new school routine in their father’s care.
[35] Having said this, I am mindful of the children’s views and concerns and for this reason, I find that the transition to the father’s care should be gradual. I find that an immediate change to a week on week off schedule would be a difficult adjustment for the children. I find that the father’s proposal to have an extra two weeknights during his weekend parenting time is reasonable. The mother suggests that any parenting time that is added should be before his weekend commences as the children appear to want to be home Sunday evening. The father takes no issue with that request.
[36] There will be a Temporary Order that the father’s parenting time will be during the children’s school year from Wednesday after school to Sunday evening every alternate week with a view toward moving ultimately to a shared parenting schedule during the school year.
Costs
[37] The father is the successful party on the motion and is presumptively entitled to costs on the singular issue of the parenting schedule. The parties were able to resolve all other issues. I do not find anything in the circumstances of this motion that would warrant anything but partial indemnity costs. I would encourage the parties to resolve the issue of costs, and if unable to do so, they may file brief written submissions for my consideration. The submissions can be forwarded to my judicial assistant and should be sent in by September 19, 2024.
Somji J.