COURT FILE NO.: FC-24-210 DATE: 2024/12/16 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL LeCLAIR Applicant – and – SHANNA JOHNSON Respondent

Counsel: Martin Kenny, for the applicant Deanna Paolucci, for the respondent

HEARD: December 10, 2024

RULING ON MOTION

Corthorn J.

Background

[1] Mr. LeClair and Ms. Johnson began their relationship in August 2020; the parties cohabited from November 2020 until July 18, 2024.

[2] Mr. LeClair is 36 years old; Ms. Johnson is 35 years old. Ms. Johnson has two children from a prior relationship (“the boys”). Mr. LeClair and Ms. Johnson have one child—a daughter, Saphira Johnson-LeClair, born on June 3, 2022.

[3] Mr. LeClair submits, and Ms. Johnson acknowledges, that she suffers from mental health issues, and that those mental health issues contributed to the breakdown of the family unit. Ms. Johnson also acknowledges that a mental health crisis she experienced on July 18, 2024 led to (a) her removal from the parties’ home on that date; (b) the involvement of the police and paramedics in her removal from the home; (c) her hospitalization from July 18 to 22, 2024; and (d) a diagnosis of bipolar disorder.

[4] I turn briefly to the parties’ respective addresses as of the date on which the court heard Mr. LeClair’s motion. Exhibit ‘A’ to Mr. LeClair’s affidavit, sworn on November 29, 2024, is a Release Order for Ms. Johnson. That order was issued by the Ontario Court of Justice in Brockville on August 21, 2024. It relates to Ms. Johnson’s release following the laying of five charges against her; two of the charges stem from events alleged to have occurred on July 18, 2024, at the time of Ms. Johnson’s removal from the parties’ home.

[5] Based on the contents of the Release Order, it appears that Mr. LeClair continues to reside in the home the parties shared with Saphira and the boys until July 18, 2024.

[6] The first condition imposed on Ms. Johnson in the Release Order requires her to reside at a municipal address in Ottawa—namely, her mother’s residence. Ms. Johnson continues to live at that residence with Saphira and the boys.

[7] The drive from Brockville to Ottawa (or in the opposite direction) is estimated by Mr. LeClair’s counsel to be 1.25 hours. A drive of that duration is relevant to Saphira’s best interests when determining an interim parenting schedule.

[8] The third condition imposed in the Release Order is a no contact/no communication provision related to Mr. LeClair. The exceptions to that prohibition include that Ms. Johnson is permitted to communicate with Mr. LeClair, (a) “pursuant to a family court order” made after the date of the Release Order, and (b) in the presence of or through counsel.

[9] As of the date on which the court heard Mr. LeClair’s motion, the parties did not have an order related to the parenting schedule. Having an order addressing Mr. LeClair’s parenting time will permit the parties to communicate regarding Saphira, without risk to Ms. Johnson of breaching the relevant term of the Release Order.

[10] It is undisputed that between July 22, 2024 and August 4, 2024, the parenting schedule was as follows:

• July 22-25 - Saphira was in Ms. Johnson’s care;
• July 25-30 – Saphira was in Mr. LeClair’s care;
• July 30 to August 1 – Saphira was in Ms. Johnson’s care; and
• August 1 to 4 – Saphira was in Mr. LeClair’s care.

[11] On August 4, 2024, Mr. LeClair returned Saphira to Ms. Johnson’s care. When he did so, Mr. LeClair expected that, despite the lack of any formal parenting schedule at the time, he would continue to have parenting time with Saphira. Mr. LeClair has not had any parenting time with Saphira since August 4, 2024.

[12] Initially, Mr. LeClair communicated with Ms. Johnson’s mother in an effort to arrange parenting time with Saphira. Thereafter, Mr. LeClair personally or through his counsel communicated with Ms. Johnson’s counsel in an effort to secure parenting time for Mr. LeClair with Saphira. Those efforts proved fruitless, leading Mr. LeClair to bring the motion now before the court.

[13] In his notice of motion, Mr. LeClair proposes a schedule that would see his parenting time increase gradually over four weeks and result in a 2/2/3 schedule. In response, Ms. Johnson proposes a schedule that would see Mr. LeClair’s parenting time increase gradually over eight weeks and result in parenting time every second weekend, plus one night a week.

[14] In summary, the parties agree that it is in Saphira’s best interests to have parenting time with Mr. LeClair on one or more weekdays and on weekends. The parties disagree about the pace at which Mr. LeClair’s parenting time is to increase.

The Issue

[15] The sole issue to be determined is an interim parenting schedule for Mr. LeClair that is in Saphira’s best interests.

The Law

[16] With the parties not having married, “the best interests of the child” are governed by s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). The primary consideration is “the child’s physical, emotional and psychological safety, security and well-being”: s. 24(2). The factors the court must consider regarding the circumstances of the child include those listed in s. 24(3)(a)-(k). In addition, the court must take into account factors related to family violence: s. 24(4)(a)-(h).

[17] In allocating 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”: s. 24(6).

[18] Ms. Johnson raises Saphira’s young age (now 2.5 years) and the extent to which Saphira continues to breast-feed. In response, Mr. LeClair relies on the decision of this court in Di Iorio v. Tropea, 2021 ONSC 8575. At para. 21, Papageorgiou J. says, “the antiquated ‘tender years’ principle no longer applies to determining the [parenting time] schedule for a young child” (citation omitted).

[19] In Di Iorio, the subject child was 17 months old. Justice Papageorgiou addresses the practicalities of breast-feeding. At paras. 22-25, he emphasizes that breast-feeding is only one factor amongst many factors for the court to consider. At para. 46, Papageorgiou J. notes that while the subject child continued to breast-feed, the mother could pump milk and provide the pumped milk for the father to use.

[20] How are these principles to be applied to the circumstances in which Mr. LeClair, Ms. Johnson, and Saphira find themselves at present?

Analysis

[21] The current geographic separation between what was the family’s home and the maternal grandmother’s home creates challenges in determining a parenting schedule that is in Saphira’s best interests.

[22] Where Mr. LeClair works is also a factor. Neither party addresses that factor in their respective affidavits. In her submissions, Ms. Johnson’s counsel informed the court that Mr. LeClair currently works in Gatineau and commutes two hours each way, Monday to Friday. In his reply submissions, Mr. LeClair’s counsel did not dispute the accuracy of that submission.

[23] Rulings or endorsements on motions of this kind often include a discussion of factors, taken from s. 24(3) of the CLRA, that apply to the matter before the court (as in the Di Iorio decision). It is also frequently the case that the affidavit evidence on motions of this kind contains little, if any, evidence addressing those factors. The affidavits filed by both Mr. LeClair and Ms. Johnson fall into that category.

[24] For example, neither party describes the home in which Mr. LeClair resides (and in which Ms. LeClair resided, with Saphira and the boys, as of the date of separation). Neither party addresses whether Mr. LeClair has a child seat for his vehicle or will be required to purchase one to facilitate safe and efficient exchanges. The order made at the conclusion of this ruling requires Mr. LeClair to purchase a child seat for his vehicle (i.e., if he has not already done so).

[25] Section 24(3)(c) of the CLRA requires the court to consider “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent”. The court is concerned that Ms. Johnson was obtuse when addressing her obligation to facilitate parenting time with Mr. LeClair. For example, Ms. Johnson relied on the terms of the Release Order as a reason she was not prepared to arrange parenting time for Mr. LeClair without first having an agreement in writing regarding a parenting schedule.

[26] Without making any finding, the court expresses concern that, from August 4, 2024 to the date of the motion, Ms. Johnson, personally, through her mother, or through her counsel, was disingenuous or deliberately obtuse in her approach to facilitating Mr. LeClair’s parenting time. A more co-operative approach is required from Ms. Johnson in the future, including to facilitate the parenting schedule ordered at the conclusion of this ruling.

[27] Ms. Johnson’s unwillingness to facilitate Mr. LeClair’s parenting time subsequent to August 4, 2024, is also relevant to her “ability and willingness […] to communicate and co-operate, in particular with [Mr. LeClair], on matters affecting the child”: s. 24(3)(i).

[28] Regarding “the history of the care of the child” (i.e., s. 24(3)(d)), the court agrees with Ms. Johnson that the ‘status quo’ to be considered is that which existed as of the date of separation. Ms. Johnson’s uncontradicted evidence is that prior to the date of separation, she was working part-time (five to ten hours per week); Mr. LeClair was working full-time and engaging in personal pursuits after-hours. To the extent that the court is in a position to assess the ‘status quo’ for the purpose of this motion, the court finds that, prior to the date of separation, Ms. Johnson was the primary caregiver to Saphira.

[29] Mr. LeClair asks the court to consider that as a result of Ms. Johnson’s history with mental health challenges, “it is not inconceivable that Mr. LeClair was sharing parenting equally” with Ms. Johnson. The burden of proof in matters of this kind is far above consideration of what is “not inconceivable”.

[30] Both parties allege that the other has, at one time or another, engaged in violence towards the opposite party, towards Saphira, and towards third parties. Neither party has been convicted of a criminal offence. The court does not consider family violence (ss. 24(3)(j), 24(3)(k) and 24(6)) to be a significant factor for the purpose of the interim order made at the conclusion of this ruling.

[31] There is some evidence of concern on Ms. Johnson’s part that Mr. LeClair has, on at least one occasion, left Saphira inside the family home without supervision. Mr. LeClair did not file a reply affidavit and Ms. Johnson has not been cross-examined on her affidavit. Leaving a two-year old unsupervised in a home is a matter of concern (see s. 24(3)(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”). For the purpose of this motion, that concern does not rise to the level of impacting the court’s decision regarding Mr. LeClair’s parenting time.

[32] There is no evidence that the Children’s Aid Society (or its Brockville equivalent) has expressed any concern about Mr. LeClair’s ability to care for and parent Saphira.

[33] I start with weeknight parenting time and then address weekend parenting time.

a) Weeknight Parenting Time

[34] To the extent possible based on the available evidence, I consider s. 24(3)(a): “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability”.

[35] It would not be in Saphira’s best interests to be commuting with Mr. LeClair on a weeknight—regardless of the exchange location (i.e., in Ottawa or at a midpoint between Ottawa and Brockville). Requiring Mr. LeClair to commute with Saphira on a weeknight would add at least an hour to his total commuting time that day. It is also not in Saphira’s best interests for portions of the weeknight parenting time be spent commuting. It is more meaningful for Saphira to spend time with her father other than in a car seat and driving on a highway.

[36] The court recognizes that Mr. LeClair did not choose the current distance between his home and where Ms. Johnson is living. The latter location is dictated by the terms of the Release Order. On an interim basis, Mr. LeClair will have to put on his thinking cap and be creative to find ways to make his weeknight parenting time with Saphira, in the Ottawa area, interesting for her and meaningful for both of them.

[37] The parenting schedule ordered at the conclusion of this ruling begins with two weeknights after work and is reduced to one weeknight after work (the latter as the amount of the weekend parenting time increases).

[38] In the parenting schedule ordered, the weeknight parenting time is scheduled to commence “after work”. The order requires Mr. LeClair to identify a fixed time of day for the start of his weeknight parenting time. It is incumbent on Mr. LeClair to choose a time of day that he knows he will be able to meet.

[39] It is incumbent on Ms. Johnson to remain flexible and understand that there may occasionally be circumstances beyond Mr. LeClair’s control that prevent him from arriving at the hour of day he selects. With Mr. LeClair working in Gatineau, he is likely to encounter traffic jams and other unpredictable events that make travel from his place of work to the pickup location problematic.

b) Weekend Parenting Time

[40] The weekend parenting schedule proposed by Mr. LeClair would see his parenting time rapidly increase; that proposed by Ms. Johnson would see Mr. LeClair’s weekend parenting time increase very gradually.

[41] The parenting schedule ordered provides for an increase of Mr. LeClair’s parenting time at a reasonable pace, requires both parties to facilitate exchanges (i.e., pick up and drop off, at times, at the mid-point location of the Staples in Kemptville proposed by Ms. Johnson), and avoids having Saphira travel to and from her father’s home on any two consecutive weekend days (as was proposed by Mr. LeClair).

[42] There is some evidence to assist the court regarding the factor set out in s. 24(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”. It is important that Saphira maintain her relationship with the boys and with her maternal grandmother, with whom Saphira has been residing since August 2024. It would be disruptive to Saphira’s relationship with the boys for her to transition to a 2/2/3 schedule as proposed by Mr. LeClair.

[43] The parenting scheduled ordered provides for Mr. LeClair’s weekend parenting time to gradually increase to include every second weekend from Friday after work until Sunday at 4:30 p.m.

c) Method of Communication

[44] The parties must identify a method of communication that is satisfactory to both of them for use regarding exchanges. One suggestion is the use of Family Wizard. The court notes that Mr. LeClair has, in the past, been able to communicate without incident with the maternal grandmother.

[45] The order issued and entered pursuant to this Ruling will create the type of order referred to in the third condition of the Release Order. As a result, communication between Ms. Johnson and Mr. LeClair to facilitate Mr. LeClair’s parenting time and as may otherwise be required related to Saphira should not be of concern to Ms. Johnson regarding the terms of the Release Order.

The Evidence

[46] I have already addressed the lack of evidence regarding the factors listed in s. 24 of the CLRA. I have additional concerns about the quality of the evidence before the court:

• Both Mr. LeClair and Ms. Johnson refer extensively to negotiations regarding Mr. LeClair’s parenting time. It appears that neither of them considered the extent to which their negotiations are subject to settlement privilege;
• Paragraph 26 of Mr. LeClair’s affidavit is argument and includes conclusory statements. As a result that paragraph is not considered by the court;
• Ms. Johnson’s affidavit includes opinion evidence, including about bipolar disorder, that she is not in a position to provide. Ms. Johnson may be in a position to express her beliefs about the disorder and what it means for her and her family. She does not, however, express her evidence in the form of a belief. Nor does she set out the grounds to support her beliefs;
• Ms. Johnson’s affidavit is replete with hearsay evidence, including her recitation of conversations and communication between Ms. Johnson’s counsel and Mr. LeClair. It is problematic for counsel to be both the source of information for a party affiant and to appear as counsel on the motion.

[47] The quality of the evidence before the court is a factor in the court’s decision to adjourn Mr. LeClair’s motion and require Mr. LeClair to continue the motion before the court on the earliest date available in April or May 2025.

[48] By April or May, Mr. LeClair will have had several full weekends with Saphira. The parties will be in a position to present the court with evidence as to how Saphira is faring with the parenting schedule; whether the parties are able to communicate so as to facilitate Mr. LeClair’s parenting time; and what changes, if any, may be required to the parenting schedule. The parties will also be in a position to look to the summer months and any summer vacation plans that either of them wish to make with Saphira.

Disposition

[49] For the reasons set out above, the court makes the following order:

1. On a temporary and without prejudice basis, the applicant father shall have parenting time with Saphira LeClair-Johnson (DOB: June 3, 2022 and “the child”) on the following schedule and terms:

   1. Week 1 - Commencing on December 16, 2024
      • On two nights of the week, other than Friday night, from after work (on the days of the week and at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until 7:30 p.m.; both exchanges shall be at the Freshco Barrhaven; and the applicant father shall remain within the City of Ottawa during this parenting time;
      • On Saturday, December 21, 2024 at 10:00 a.m. until 4:00 p.m.; both exchanges shall be at the Staples in Kemptville;
   2. Week 2 - Commencing on December 23, 2024
      • On Wednesday, December 25, 2024 at 1:00 p.m. until 5:00 p.m.; both exchanges shall be at the Staples in Kemptville;
      • On Saturday, December 28, 2024 at 10:00 a.m. until 7:00 p.m.; both exchanges shall be at the Staples in Kemptville;
   3. Week 3 - Commencing on December 30, 2024
      • On one night of the week, other than Friday night, from after work (on the day of the week and at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until 7:30 p.m.; both exchanges shall be at the Freshco Barrhaven; and the applicant father shall remain within the City of Ottawa during this parenting time;
      • From Friday, January 3, 2025 after work (at a time to be designated by the applicant father) until Saturday, January 4, 2025 at 2:00 p.m.; both exchanges shall be at the Staples in Kemptville;
   4. Weeks 4 and 5 - Commencing on January 6, 2025 and on January 13, 2025, respectively
      • On two nights of the week, other than Friday night, from after work (on the days of the week and at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until 7:30 p.m.; both exchanges shall be at the Freshco Barrhaven; and the applicant father shall remain within the City of Ottawa during this parenting time;
      • From Friday, January 10, 2025 until Saturday, January 11, 2025 at 7:00 p.m.; both exchanges shall be at the Staples in Kemptville;
      • From Friday, January 17, 2025 until Saturday, January 18, 2025 at 7:00 p.m.; both exchanges shall be at the Staples in Kemptville;
   5. Weeks 6 and 7 - Commencing on January 20, 2025 and on January 27, 2025, respectively
      • On one night of the week, other than Friday night, from after work (on the day of the week and at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until 7:30 p.m.; both exchanges shall be at the Freshco Barrhaven; and the applicant father shall remain within the City of Ottawa during this parenting time;
      • From Friday, January 24, 2025 until Sunday, January 26, 2025 at 2:00 p.m.; both exchanges shall be at the Staples in Kemptville;
      • From Friday, January 31, 2025 until Sunday, February 2, 2025 at 2:00 p.m.; both exchanges shall be at the Staples in Kemptville;
   6. Week 8 (commencing on February 3, 2025) and every week thereafter
      • On one night of the week, other than Friday night, from after work (on the day of the week and at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until 7:30 p.m.; both exchanges shall be at the Freshco Barrhaven; and the applicant father shall remain within the City of Ottawa during this parenting time;
   7. Week 9 (commencing on February 10, 2025) and every other week thereafter
      • From Friday, February 14, 2025 from after work (at a fixed time of day to be designated by the applicant father pursuant to paragraph 4, below) until Sunday, February 16, 2025 at 4:30 p.m.; both exchanges shall be at the Staples in Kemptville.

2. The parties shall, no later than Thursday, December 19, 2024, agree upon a method of communication to use regarding the applicant father’s parenting time with the child and as may otherwise be required regarding the child (i.e., for parenting updates and to make parenting decisions). The method of communication shall, no later than 3:00 p.m. on Friday, December 20, 2024, be reduced to writing (whether in the form of an agreement signed by the parties or confirmed in a letter authored by one of the parties’ counsel). The document in which the agreement is reduced to writing shall be Appendix ‘A’ to this order.

3. The applicant father shall, prior to exercising any parenting time pursuant to the schedule set out in paragraph (1), above, equip the vehicle in which he intends to travel with the child with a child seat.

4. To provide certainty for the parties and to minimize the potential for conflict between them, the applicant father shall, at least 24 hours prior to exercising his first weeknight parenting time, inform the respondent mother of,

   a) the day of the week the applicant father chooses for weekday parenting time during any week in which he has a single weeknight of parenting time (i.e., Weeks 3, 6, 7, 8 and every week thereafter); b) the days of the week the applicant father chooses for weekday parenting time during any week in which he has two weeknights of parenting time (i.e., Weeks 1, 4, and 5); c) the time of day at which the weeknight pickup shall happen at the Freshco in Barrhaven; and d) the time of day at which pick up shall happen at the Freshco in Barrhaven when then applicant father’s weekend parenting time commences on Fridays (i.e., Week 3 and each week as provided thereafter in this order).

5. On the consent of the parties, the respondent mother shall, no later than 3:00 p.m. on Friday, December 20, 2024, serve and file her Answer and supporting materials.

6. The applicant father’s motion for interim relief is adjourned and shall, unless the parties resolve the issue of the parenting schedule beyond March 31, 2025, continue on the earliest date available in April or May 2025. The applicant father shall take the steps necessary to schedule the continuation of his motion on the April or May 2025 date.

[50] Unless the parties agree upon costs for the motion on December 10, 2024, those costs of are reserved to the judge presiding when the motion continues on the April or May 2025 date described in paragraph 48, item (6).

Madam Justice Sylvia Corthorn Released: December 16, 2024

COURT FILE NO.: FC-24-210 DATE: 2024/12/16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MICHAEL LeCLAIR Applicant – and – SHANNA JOHNSON Respondent RULING on motion Madam Justice Sylvia Corthorn Released: December 16, 2024