COURT FILE NO.: 448/24
DATE: 2024-12-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jonathan Grant, Applicant
AND:
Lindsay Runciman, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Joseph Makari, Counsel for the Applicant
Catherine Haber, Counsel for the Respondent
HEARD: December 11, 2024
ENDORSEMENT
1 This bitterly contested motion was just more proof that this has quickly turned into a needlessly acrimonious file concerning two daughters ages 22 months and 6 months.
a. We’re at a very early stage.
b. The parties have already had a couple of Case Conferences, and a couple of temporary-temporary without prejudice orders.
c. They have a Settlement Conference scheduled for March 18, 2025.
d. Two other judges have already expressed their disapproval about how aggressively these parties are litigating.
e. After hearing submissions today, I conveyed this court’s disapproval even more strongly.
f. Both parties insist they are being child-focused. But having read their lengthy materials, they have both spent far more time criticizing one another than telling me important information about their children.
g. Each blames the other for the fact that police have had to be called about 10 times during the nine months they have been separated. And they both work for the police department! (The father is a constable; the mother is a dispatcher.)
h. Both parties have “cherry-picked” through previous endorsements, a CAS report, a police report, and the AFCC-Ontario Parenting Plan Guide – each trying to parse out snippets and quotations to justify the hard lines they have drawn with respect to a parenting schedule.
i. Ironically, they’re not as far apart as you might presume, given the volume and intensity of their materials.
j. And tragically, if they spent half as much on therapeutic intervention as they’re spending on hardball litigation, these children would live in happier homes (and there’d be money left over to fund multiple trips to Disney World.)
2 The background, briefly:
a. The parties started living together July 1, 2022
b. They were married June 3, 2023.
c. They separated in March 2024 (they disagree on the exact day in March, but for today’s purposes it doesn’t matter).
d. On the date of separation the oldest child Chloe was about 14 months old, and the mother was seven months pregnant with the younger child Scarlett.
e. Upon separation the mother moved from the jointly owned matrimonial home in Hamilton to her parents’ residence in Oakville. That’s where she and (now) both children reside.
f. Upon separation the father remained in their home until it was recently sold. He has now obtained rental accommodation in Burlington (closer to the mother’s residence, and closer to the Oakville police station where he works steady days).
g. The father alleges that upon separation the mother tried to minimize his involvement with Chloe, and after Scarlett was born the mother was needlessly restrictive with respect to his involvement with the newborn.
h. The mother denies restricting or interfering with the father’s involvement with either child.
i. Their lengthy affidavits told me a lot about the adult conflict: Who said what. Who made (or refused to respond to) proposals for parenting time. Who did what to provoke conflict.
j. It sounds like these children have been exposed to a lot of adult nonsense.
3 The father brought urgent motions. Justice Brown attempted to assist by giving them three urgent Case Conferences.
4 On June 4, 2024 Justice Brown granted a temporary without prejudice order pursuant to a consent signed by the parties. That order included the father having time with Chloe:
a. Each Tuesday from 4:30 p.m. until 8:00 a.m. on Wednesday morning;
b. Each Thursday from 4:30 p.m. until 8:00 a.m. on Friday morning;
c. Alternate weekends from Friday at 4:30 p.m. until Sunday at 5:00 p.m.
d. (The mother was subsequently ordered to pay $2,500.00 costs in relation to this attendance, which also dealt with financial and other issues.)
5 The parties then scheduled a long motion to deal with all temporary issues. But when they discovered that it would take too long for their long motion to be heard, they decided to adjourn the long motion, and proceed by way of a short motion dealing only with parenting issues. And on October 18, 2024 they consented to an order that pending the hearing of that short motion, the father would have parenting time with the youngest child as follows:
a. Every Tuesday and Thursday from 4:30 p.m. until 7:00 p.m.
b. On alternating Fridays from 4:30 p.m. to 7:00 p.m. and alternating Sundays from 2:30 p.m. until 5:00 p.m.
c. (Scarlett’s time was always within periods when Chloe was with the father.)
6 In the current motion, the parties seemed to be heading in opposite directions in relation to the older child Chloe.
a. Pursuant to the June 4, 2024 consent, the father basically has Chloe for 6 out of 14 overnights. He wants to keep what he’s got and add a Sunday overnight to his alternate weekends which would make it 7 out of 14 overnights. He wants equal time.
b. The mother emphasizes that the June 4, 2024 order was without prejudice, so there’s no presumption about any of the terms continuing. Her lawyer also suggests the mother signed the June 4, 2024 consent under duress, which raises a complicated issue, given the fact that the case had already been extensively case managed, and the mother has had the same lawyer throughout. I read a lot about mutual adult conflict. I’m not convinced about “duress”.
c. In any event, the mother now proposes that mid-week overnights be eliminated for the father, and that the Tuesday and Thursday return times should be 6:30 p.m. rather than 7:00 p.m. Her proposal would reduce the father to 2 overnights out of 14 in a two-week period. That is a very significant reduction to the pattern the child has become used to.
d. The mother’s materials make broad allegations of abusive and intimidating behaviour by the father during the relationship. The father denies these allegations.
e. The mother insists she was always the primary caregiver in relation to Chloe. The father insists he was always actively involved.
f. The mother says Chloe’s mid-week overnights with the father haven’t been going well, and that the child has reacted negatively to the inconsistency in her sleep routine. The father denies this. He says Chloe is doing well with the existing arrangement and points to independent observations (of a CAS worker, for example) confirming that Chloe appears to have a very positive and affectionate relationship with the father.
g. I am not persuaded that the mother has provided sufficient evidence to justify the limitations she is proposing in relation to the father’s time with Chloe. The materials are in conflict, and there is absolutely no doubt that as between the parties themselves, there are serious problems. But children’s issues must be determined based on the best interests of the children – and not based on resentment or mistrust between the parents.
h. My concern that the mother is being unnecessarily restrictive with respect to her proposal for future parenting time is reinforced by my observation that the mother has been too restrictive with respect to past parenting-time proposals (which led to motions and a costs order against her).
i. By the same token, the father seems preoccupied with mathematical equality. The extra overnight he is requesting on alternate Sundays would increase him from 6 out of 14 overnights to 7 out of 14 overnights in a two-week period. That’s a bit more time, but it’s not that much more quality time, given the fact that on the Monday morning the child would then have to get up a bit earlier because the father has to travel to work in the morning. In his materials, he actually proposes that the existing 8:00 a.m. return time be changed to 8:30 a.m. because Chloe has trouble waking up in the morning. That extra Sunday overnight is an adult-priority, not a child-priority.
j. From all of the evidence (voluminous, contradictory and untested, as it may be) I must conclude that the existing parenting-time arrangement in relation to Chloe is working out reasonably well for the child. The father’s slight tinkering to increase his time would not really benefit the child. The mother’s more dramatic request to decrease the father’s time would most likely negatively affect the child.
7 The competing proposals in relation to six-month-old Scarlett are more challenging, mainly because of her age. The main dispute appears to relate to the issue of when overnight parenting time will commence for Scarlett, and how quickly Scarlett’s schedule will fully align with her older sister.
a. The father wants at least one overnight to start immediately, and full alternate weekends by early in 2025.
b. The mother proposes a more gradual transition, with overnights delayed until May 2025 (at which point full weekends would be implemented, aligned with Chloe’s alternate weekends with the father).
8 So in relation to Scarlett, both parents acknowledge the father should have full alternate weekends no later than May 2025. But they’re spending thousands of dollars on lawyers to angrily debate what should happen during the handful of months between now and then.
9 The following chart summarizes their positions in relation to the father’s time with Scarlett:
| MOTHER’S POSITION | FATHER’S POSITION | |
|---|---|---|
| Dec 2024 | Tues & Thurs 4:30-6:30 p.m. Alt weekends Fri 4:30-6:30 |
Tues & Thurs 4:30-7 p.m. Alt weekends Sat 2:30-Sun 5 |
| Jan 2025 | Tues & Thurs 4:30-6:30 p.m. Alt weekends Sat 10-2:30 |
Tues & Thurs 4:30-7 p.m. Alt weekends Fri 4:30-Sun 5 |
| Feb 2025 | Tues & Thurs 4:30-6:30 p.m. Alt weekends Sat 10-4 p.m. |
Tues 4:30- Wed 8:30 a.m. Thurs 4:30-Wed 8:30 a.m. Alt weekends Fri 4:30-Monday 8:30 a.m. (or Sunday 5 p.m.) |
| March 2025 | Tues & Thurs 4:30-6:30 p.m. Alt weekends Sat 10-4 p.m. + Sun 10-4 p.m. |
As above |
| April 2025 | As above | As above |
| May 2025 | Tues & Thurs 4:30-6:30 p.m. Alt weekends Fri 4:30 – Sun 6:30 |
As above |
10 The applicable law is set out in the Divorce Act which encourages a child-focused approach:
a. The emphasis is on parental responsibilities toward their children.
b. Parents are encouraged to focus on the tasks and responsibilities of parenting.
c. Children are recognized as individuals having lives and rights distinct from their parents, with the ability to influence their own destinies.
d. A deliberate effort is made to use language which is more child-focused and less provocative.
11 Parenting orders are fact specific. Each case turns on its own unique circumstances. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.); N.S. v. A.N.S. 2021 ONSC 5283 (SCJ). The court’s function is not to pronounce on what is in the best interest for all children in a general sense, but rather what is in the best interests of the child before the court. Deschenes v. Medwayosh, 2016 ONCJ 567 (OCJ); A.P. v. P.P., 2021 ONSC 6540 (SCJ).
12 There is no reason that a young child cannot have more than two parental figures in their life, to love, guide and nurture the child. Jacobs & Coulombe v. Blair & Amyotte, 2022 ONSC 3159 (SCJ).
13 Section 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order.
a. The ‘best interests’ test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child’s whose well-being is under consideration. De Souza v. De Souza, 2023 ONSC 2457 (SCJ).
b. Case by case consideration of the unique circumstances of each child is the hallmark of the process. Van de Perre v. Edwards, 2001 SCC 60 (SCC); O’Connor v. Duguay, 2023 ONSC 2374 (SCJ).
c. The analysis must remain centered on the rights of the child, from a child-centred perspective. The ‘rights’ of a parent are not a criterion. Young v. Young, 1993 CanLII 34 (SCC).
d. The focus is on the child, not the parent. S.S.L. v. M.A.B., 2022 ONSC 6326 (SCJ).
14 Section 16(2) says when considering best interests factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. Pierre v. Pierre, 2021 ONSC 5650 (SCJ); Churchill v. Elliot and Ward, 2024 ONSC 1907 (SCJ).
15 It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q. 2021 ONCJ 334 (OCJ); N.S. v. A.N.S. 2021 ONSC 5283 (SCJ).
16 Section 16(3) sets out a non-exhaustive list of factors related to the circumstances of the child, which the court must consider in determining the best interests of the child.
17 The court is required to undertake a broad analysis of each child’s specific situation.
a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ); J.T. v. E.J., 2022 ONSC 4596 (SCJ).
b. None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching. O’Connor v. Duguay, 2023 ONSC 2374 (SCJ).
c. No single criterion is determinative. The weight to be given to each factor depends on the circumstances of the particular child. Dayboll v. Binag, 2022 ONSC 6510 (SCJ).
d. 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 (OCJ); Harry v. Moore 2021 ONCJ 341 (OCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); Brownson v. Brownson, 2022 ONSC 5882 (SCJ).
e. 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 (SCJ).
f. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641 (ON CA); E.M. v. C.V. 2022 ONSC 7037 (SCJ).
g. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. (SCC). 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 CanLII 34 (SCC); E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).
h. The court’s unrelenting focus on the best interests of each particular child means that there can be no presumption in favour of any one type of parenting order. All things being equal, each child deserves to have a meaningful and consistent relationship with both parents. E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).
18 The Divorce Act imposes several important duties on parents, which are aimed at ensuring that their parenting remains focussed on the child's best interests; that children are safeguarded against unnecessary conflict; and that parenting issues are addressed in an orderly manner, with all relevant information being provided to the court. Section 7.1 requires them to keep the best interests of the child at the forefront of their minds at all times. M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).
19 In Barendregt v. Grebliunas, 2022 SCC 22 (SCC) the Supreme Court of Canada summarized the enormous challenge family courts face when dealing with children issues:
a. Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.
b. The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge’s discretion.
c. The Supreme Court noted that the parent who cares for the child on a daily basis is in a unique position to assess what is in their best interests.
20 In determining the best interests of a child, section 16(3)(j) mandates that the court must specifically consider whether there has been any family violence, and the impact of that violence on the child (and on the ability and willingness of any parties to care for and meet the needs of the child).
a. Section 2(1) sets out an expansive definition of what constitutes family violence.
b. Section 16(4) sets out an additional list of best interests factors which the court must consider related to family violence.
21 Section 16(5) sets out that past parental conduct is only relevant to the determination of a parenting order if it relates to the ability to meet the needs of the child. Ivory v. Ivory 2021 ONSC 5475 (SCJ).
22 Parental conduct, however meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. S.K. v. D.P.,2022 ONSC 2359 (SCJ); B.M. v. D.M. 2023 ONSC 2068 (SCJ).
23 However, misconduct which results in parents having a negative view or attitude toward one another may be relevant if it affects the emotional well-being of a child. S.S.L. v. M.A.B., 2022 ONSC 6326 (SCJ); B.M. v. D.M. 2023 ONSC 2068 (SCJ).
24 Few family court cases are free of painful memories and experiences. And it is entirely understandable that people in crisis – particularly immediately after separation – will perceive that family court is both an appropriate and welcome forum to tell the world what happened. What their ex did.
a. Sometimes judges need to know what happened. Indeed, usually we need to know at least some of the things that happened. We need to know enough facts to enable us to apply the law and ensure that children are protected.
b. But equally, sometimes we don’t need to know all of the things that happened. We only really need to receive information that will assist in deciding the issues that are before the court. Relevant evidence.
c. Without question, deciding what evidence to present can be a tough judgment call. Particularly in affidavits on early motions, where you might not be sure what’s going to be in dispute. You don’t want to leave out anything that might be important.
d. But sometimes people say things that couldn’t possibly matter or affect the outcome of the case. Irrelevant allegations. Which of course lead to irrelevant denials and counter-allegations. A vicious circle of pointless distraction which merely poisons opportunities for resolution and family repair.
e. Irrelevant allegations don’t just waste time and money. They waste and undermine precious opportunities for resolution and de-escalation. A lot of that is happening in this case.
25 Section 16(5) reflects the court’s endless struggle to discourage needlessly hurtful and destructive behaviour between parents who will still have to interact with one another long after the court case is over. In E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ) Justice Mandane offered some important guidance:
.... To be admissible, the past conduct must be directly and logically linked to the parenting order being sought.
.... Parents should not be forced to endure a public shaming to spend quality time with their child. Parents – and by extension, their children – are entitled to a degree of privacy when involved in a family dispute. They should not be subjected to an unrestrained attack on their character that is unrelated to the child’s best interests. This is because parenting does not require any special skills or qualities, and because many imperfect people make perfectly adequate parents.
In practice, this means that evidence of past conduct will only be admissible where, for example, the past conduct took place during parenting time, is inherently risky, affects the party’s capacity to make decisions, or relates to the care of child or another vulnerable person. Mere speculation is not enough, and courts should be careful not to make “reasonable inferences” that are not adequately supported by the evidence. Finally, the court should consider the specific terms of parenting order being sought when determining the relevance of the past conduct.
26 Section 7.2 of the Divorce Act addresses the importance of the parties protecting children from conflict related to the ongoing court case. It sets out that a party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
27 A party’s failure to protect a child from conflict may be an important consideration in granting primary residence and decision-making responsibility to the other parent. Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201 (OCJ).
28 If parties are unable to safeguard children from conflict, the court must take matters into its own hands by uncovering and exposing the sources of the conflict and imposing terms targeted at eliminating those causes. M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ). As this court urged in K.M. v. J.R., 2022 ONSC 111:
a. Don’t wait for the blame game. There’s time for that later.
b. Just suspend the harmful behaviour immediately. Send parents to their separate corners at the first sign of trouble.
c. Create a rebuttable presumption that children should never be directly exposed to hostility between separated parents.
d. And if the parents don’t like the restrictions, place the onus on them to prove they are capable of interacting in a civilized and mature manner.
e. If necessity is the mother of invention, parental inconvenience is the catalyst for compromise.
29 Section 16(3)(i) of the Divorce Act requires the court to consider “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”.
30 Subject to concerns about family violence, each parent has a responsibility to support a child’s relationship with the other parent, and to take steps to ensure that the child has a positive attitude about that relationship. Moreira v. Garcia Dominguez 2012 ONCJ 128 (OCJ).
31 The obligation is not merely passive. A primary resident parent must not just accommodate the other parent’s time with the child – they must facilitate and encourage it. Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551 (SCJ).
32 If one parent does not facilitate a child's relationship with the other parent -- or undermines the child's relationship with the other parent -- it will be a relevant factor in determining the person's ability to act as a parent. This is a “best interests” factor pursuant to s.16(3)(c) s.24(3)(c). Leggatt v Leggatt, 2015 ONSC 4502 (SCJ); B.L.O. v. L.J.B. 2022 ONCJ 231 (OCJ)
33 The comparative ability or inclination to encourage a relationship with the other parent may become a more prominent – or even determinant – factor in crafting a parenting order, where the parents are otherwise equally qualified. Moreira v. Garcia Dominguez 2012 ONCJ 128 (OCJ).
34 Pursuant to section 16(6) of the Divorce Act courts allocating parenting time are required to adhere to the principle 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 (ON CA); O'Brien v. Chuluunbaatar 2021 ONCA 555 (ON CA).
a. This provision does not override the best interests analysis. Rather, it is part of the best interests analysis.
b. There is no presumption of equal time-sharing of children after parents separate. Bembenek v. Bembenek 2019 ONSC 4050 (SCJ); K.M. v. J.R., 2022 ONSC 111 (SCJ); B. v. W. 2022 ONSC 934 (SCJ); Bressi v. Skinulis et al, 2021 ONSC 4874 (SCJ). There is no presumption that having as much contact as possible with both parents will necessarily be in the best interests of the child. Barendregt v. Grebliunas, 2022 SCC 22 (SCC); Gewurtz v. McGroarty ONSC 2022 7148 (SCJ).
c. A child-focussed approach is required, with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child’s best interests. It may end up being equal time. It may end up being some other division of time. Each family is different, and the principle is a general guide set out to benefit children. Knapp v. Knapp, 2021 ONCA 305 (ON CA); R.F. v. J.W. 2021 ONCA 528 (ON CA).
d. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ).
e. The most appropriate allocation of time in any given situation will depend on many factors including the child’s age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child’s best interests. The parenting schedule must accord with the child’s best interests. McBennett v Danis 2021 ONSC 3610 (SCJ); Morrison v. Harder 2021 ONSC 5107 (SCJ); Ammar v. Smith, 2021 ONSC 3204 (SCJ); W.C. v. W.C. 2022 ONCJ 254 (OCJ)
f. Frequent and meaningful parenting time is necessary for the formation and continued development of healthy attachments between young children and their parents. P.C.P. v. L.C.P., 2013 ONSC 2564 (SCJ); Bazinet v. Bazinet, 2020 ONSC 3187 (SCJ); Burley v. Bradley, 2019 ONCJ 624 (OCJ); Rajani v. Rajani, 2021 ONSC 4784 (SCJ); De Souza v. De Souza, 2023 ONSC 2457 (SCJ)
g. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479 (SCJ). But in high conflict situations, exchanges between parental households are frequently the source of intensified stress and anxiety for children. In those circumstances frequency of contact may have to give way to the need to reduce the number of exchanges – to reduce opportunities for the child to be exposed to unpleasantness, tension, alienation, schedule disruption and inconsistent parenting styles.
h. The allocation of time must address both quantitative and qualitative considerations. Parenting time entails more than simply one-on-one parent and child interaction. It includes parental responsibility and involvement with respect to all aspects of the child’s life – throughout the child’s schedule -- including school-related matters, extra-curricular activities, and other events. S.K. v. D.P., 2022 ONSC 2359 (SCJ); B.M. v. D.M. 2023 ONSC 2068 (SCJ)
i. While maximizing contact is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child’s best interests, it should not be ordered. McBennett v Danis 2021 ONSC 3610 (SCJ): Young v. Young, 1993 CanLII 34 (SCC); Gordon v. Goertz, 1996 CanLII 191 (SCC); B.V. v. P.V., 2012 ONCA 262 (ON CA.); Rigillo v. Rigillo, 2019 ONCA 548 (ON CA).
35 Without question, the young ages of these two children – 22 months and 6 months – are an important and complex dynamic:
a. The mother submits their vulnerability – particularly Scarlett’s need for stability and consistency -- mitigates in favour of the majority of their time being with her as a primary caregiver.
b. The father submits the critical developmental and emotional stages of the children are precisely the reason he should have more time. Equal time. He says these are precious and time-limited opportunities for parental involvement that can’t and shouldn’t be deferred.
36 There is no “tender years doctrine” precluding very young children from being equally parented by their fathers. Young v. Young; Karimi v. Kyron, 2022 ONSC 3252 (SCJ).
37 Young children with attachments to both parents need sufficient contact with both parents without prolonged separations to maintain a meaningful and close relationship with both: Wilson v. Wilson, 2015 ONSC 479 (SCJ); Morrison v. Harder 2021 ONSC 5107 (SCJ).
38 The right of a child to have meaningful contact with both parents, and to know and maintain (or form) an attachment to each parent is a fundamental right and should only be interfered with in the most extreme and unusual circumstances – generally, only in demonstrated circumstances of danger to the child’s physical or mental well-being. Ferreira v Ferreira, 2015 ONSC 3602 (SCJ); De Souza v. De Souza, 2023 ONSC 2457 (SCJ)
39 The biggest single issue fueling this litigation is overnight parenting time for the father.
a. He already has 6 out of 14 overnights with Chloe. He wants to increase it to 7. The mother wants to decrease it to 2 out of 14.
b. The father wants to start overnights with Scarlett immediately. The mother wants to defer overnights until May 2025.
40 There is increasing recognition that overnight parenting time is not only feasible but actually quite beneficial and important for young children. Rajani v. Rajani, 2021 ONSC 4784 (SCJ); Burley v. Bradley, 2019 ONCJ 624 (OCJ); H. v. A. 2022 ONSC 1560 (SCJ).
41 The subject matter of this interim dispute between these parents is not uncommon, although the level of animosity and aggressiveness is starting to border on the exceptional.
42 Typically, on an interim motion the court is presented with hastily prepared, conflicting affidavits which are incomplete and untested. The facts are often still evolving. As a result, a temporary order is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. Coe v. Tope, 2014 ONSC 4002 (SCJ); Munroe v. Graham, 2021 ONCJ 253 (SCJ); Nicholson v. Nicholson, 2021 ONSC 7045 (SCJ); Sadiq v Musa, 2023 ONSC 1811 (SCJ);Grover v Grover, 2023 ONSC 3607 (SCJ); Churchill v. Elliot and Ward, 2024 ONSC 1907 (SCJ)
a. While the incomplete nature of the evidence on a motion mitigates in favour of a caution, the court must also be mindful of intense adult emotions and childhood anxieties which can become heightened during the agonizing post-separation period.
b. Even an orderly separation can be emotionally devastating for a child.
c. And a mother or father consumed by anger and fear are likely to be less than perfect both as parents and litigants.
d. At the motion stage everyone desperately needs answers, structure and reassurance from the court that even if the temporary regime isn’t perfect, at least it will address their priorities and preserve relationships.
e. Hopefully, an interim order will at least result in a temporary pause to the hostility.
43 In this case, the mother and father are each convinced that their plan will be good for the children while the opposing plan will be bad for the children. But in reality, consideration of parenting plans need not be limited to a binary choice.
a. Without minimizing the importance of the work judges do in crafting parenting orders, in most cases there is no single “correct” answer to deciding the details of children’s lives. Quite often, any number of options might have equal merit. But judges have to pick one.
b. In reality what judges decide may be less important than how parents react to the decision.
c. If parents act in good faith and sincerely try to make a court order succeed – then it will succeed.
d. If parents undermine or subvert a court order because they didn’t get what they want – then it will fail.
e. In theory, court cases are about achieving the best possible result for children.
f. But for high conflict parents, their own litigation success takes priority over their children’s success.
44 Here, the real issue is not “6 overnights out of 14” vs. “7 overnights out of 14”.
45 The real issue is not “6:30 p.m. return time” vs. “7:00 p.m. return time.”
46 The real issue is not overnights starting in December vs. January vs. February vs. March.
47 Resolving specific details like this are obviously necessary.
48 But the details aren’t nearly as important as the amount of fighting the parents are doing over those details.
49 If these two parents were capable of behaving in a respectful, mature, child-focused, encouraging manner, then both of these children would thrive and be happy in any of the proposals under consideration.
a. I am not dismissing or trivializing the sensitive analysis which needs to be applied for all children – especially children as young as Scarlett.
b. But the materials suggest that both of these parties are pretty evenly matched in terms of their parenting skills and their relationship with each child.
c. They may be terrible litigants. But they’re pretty good people.
d. And all the money they’re spending to try to convince me otherwise simply isn’t working.
50 Each party referred to Association of Family and Conciliation Courts (AFCC-Ontario) Parenting Plan Guide in relation to both children.
a. The father says the mother won’t give him as much time with Chloe as AFCC recommends.
b. The mother says the father is asking for more time with Scarlett than AFCC recommends.
c. The Guidelines are often a helpful tool. But less so when two parents simultaneously accept and dispute different sections of the same document, for their own strategic purposes.
51 I have explained why I don’t believe any change to Chloe’s schedule is appropriate at this time.
52 With respect to Scarlett, the parties agree it is appropriate to work toward implementation of overnights. I am mindful of the child’s age. I find that overnights should commence soon, but not quite as soon as the father proposes.
53 Finally, one of the more difficult challenges on this file is not the exact parenting schedule, but rather the location for parenting exchanges.
a. The mother wants exchanges at her parents’ residence where she and the children are currently staying.
b. The father says there’s too much conflict when he attends that residence. He particularly wants to avoid any contact with the maternal grandfather, who he says has been aggressive with him.
c. The mother says she’ll keep her father away during exchanges.
d. The father proposes a public place for exchanges. In his motion he mentions a GO carpool parking lot, which sounds like a pretty awful setting to exchange young children, particularly in winter.
54 This is where the parents are both going to have to grow up. And quickly.
a. These children are too young for us to consistently be able to select neutral exchange locations which would not be disruptive for the children (like a school or daycare). The mother’s proposal that exchanges occur primarily at her residence makes a lot of sense for the children. But only if there can be absolute assurance that there’s going to no more nonsense during exchanges (and no more police calls).
b. If these parents are incapable of behaving themselves for the approximately 60 seconds it should take to facilitate a parenting exchange, then we’re going to have to do it the hard way.
c. As stated, the matrimonial home just sold. The net proceeds are being held in trust, approximately $179,000.00. I’m sure both of these parties have their own plans for their share of the money. But if they continue to expose the children to immature and confrontational behaviour during parenting exchanges, then the next court order will likely require the parents to equally share the cost of institutional supervision of all exchanges (either at a facility or by having an agency supervisor attend the mother’s home for each exchange).
d. $179,000.00 will buy a lot of adult-babysitting if that’s really what these parents want to force us to do.
e. (If the parents complain they’d rather not spend their hard-earned dollars needlessly, that’s pretty much how taxpayers feel when relentless litigators waste judicial, police and CAS resources.)
55 Temporary order:
56 In relation to the child Chloe, the father shall have parenting time:
a. Each Tuesday from 4:30 p.m. until 8:30 a.m. on Wednesday morning;
b. Each Thursday from 4:30 p.m. until 8:30 a.m. on Friday morning;
c. Alternate weekends from Friday at 4:30 p.m. until Sunday at 5:00 p.m.
57 In relation to the child Scarlett, the father shall have parenting time:
a. Every Tuesday and Thursday from 4:30 p.m. until 7:00 p.m.
b. Alternating Sundays (to coincide with Chloe’s alternate weekends with the father) from 10:00 a.m. until 5:00 p.m.
c. Commencing February 1, 2025 the alternate weekends with Scarlett shall be expanded to be from Saturday at 3:00 p.m. until Sunday at 5:00 p.m.
d. Commencing April 1, 2025 Scarlett’s alternate weekends will be the same as Chloe: Friday at 4:30 p.m. until Sunday at 5:00 p.m.
58 Exchanges shall take place at a neutral setting like a daycare facility, if the child would otherwise be at that facility. Otherwise exchanges shall take place at the mother’s residence. The mother shall ensure that the maternal grandfather is not present and does not involve himself in any exchanges. Both parties shall ensure that exchanges are brief, civil and uneventful.
59 In the event that any future problems arise in relation to parenting exchanges, the matter may be returned to court by motion on short notice, preferably to my attention (although I am not seized). In the event that either party brings a motion alleging problems with respect to exchanges at the mother’s residence, both parties shall include in their materials a comprehensive proposal for the utilization of institutional supervision of exchanges, with the cost to be presumptively shared equally between the parties. In that event, the parenting schedule may have to be changed to accommodate the availability of institutional supervisors.
60 At the close of submissions, I suggested to the parties that their money and energy would be much better spent pursuing less adversarial and more therapeutic solutions. These are very young children, and at the rate things are escalating, the parents are going to run out of money, and the court system is going to run out of patience.
a. Ultimately, if both parents continue to approach this as a war without surrender, they’ll likely be facing a very expensive and intrusive s.30 parenting assessment.
b. But in the meantime, these children would be much better served if the parents jointly retained a parenting co-ordinator (there are many types) to try to resolve entirely predictable and legitimate issues in a less hurtful and more sensitive manner.
61 I would urge the parties to resolve the issue of costs, particularly having regard to Rules 24(6) (“divided success”) and 24(4) (“successful party who has behaved unreasonably”).
62 If costs need to be addressed, written submissions (no more than two pages long, excluding offers, with hyperlinks to case law) are to be served and filed on the following deadlines:
a. Father’s submissions by January 10, 2025.
b. Mother’s submissions by January 20, 2025.
c. Father’s reply submissions by January 31, 2025.
d. (If father did not initially seek costs, mother may reply to father’s submissions by February 7, 2025.)
Justice Alex Pazaratz
Date: December 16, 2024