Court File and Parties
Date: 2024-12-09 Superior Court of Justice - Ontario
Re: Lynn Swiderski, Applicant And Benjamin Phelan, Respondent And Hayley Abma (OCL)
Before: Hood J.
Counsel: Emma Katz, for the Applicant Darlene Rites, for the Respondent Carina Chan, for the Office of the Childrens’ Lawyer
Heard: December 5, 2024
Endorsement
[1] This is a motion by the respondent (RF) to expand his parenting time with the two younger children Quinn and Sloan, aged 14 and 10. He also wants to remove any supervision associated with his parenting of Quinn and Sloan.
[2] As to the 17-year-old Oisin, any parenting is to be at the discretion of Oisin, as arranged between them.
[3] In his notice of motion, he was asking for alternating weekends with Quinn and Sloan from Friday after school to Monday morning drop off at school without any supervision or in the alternative a graduated parenting schedule with increased parenting over time and with a reduction in supervision. His alternative proposal arose following hearing from the OCL as to the children’s views and preferences.
[4] The applicant (AM) is opposed, at this time, to any overnights, but agrees that the RF’s parenting time with Quinn and Sloan should increase but wants supervision to stay in place. She agrees with the plan with respect to Oisin.
[5] The OCL was appointed on October 29, 2024 to represent the children. The OCL has interviewed the parties, has interviewed the children more than once and has interviewed some collaterals including those at school, the CAS family service worker, some of the supervisors involved and a family doctor. She has not heard from some of the other collaterals, including some of the RF’s medical professionals. The OCL has provided the children’s views and preferences.
[6] All the parties agree that in considering the parenting order I am only to consider the best interests of the children as articulated in s. 24 of the Children's Law Reform Act. Of course, they differ on how I am to determine what is in their best interests and while having to consider all of the factors which ones carry more weight, in the particular circumstances of this family and these children.
[7] The RF points out that the views and preferences of the children are but one factor and argues that they are not in the children’s best interests. He argues that their views are influenced by the AM and are not their real views and that the AM is trying to limit his parenting.
[8] The AM is supportive of the views and preferences as a framework and suggests that the parenting time for the RF be increased at a faster rate than proposed by the OCL. She does however want some form of supervision to remain in place at least until a further review in February 2025.
[9] The parties have also agreed that over the Christmas holidays that the RF will have parenting time on Monday December 23, 2024 and Monday December 30, 2024 for 6 hours from 1 pm to 7 pm. Where they differ is on supervision.
[10] In my view in a situation such as this where the RF has had a history of mental health episodes, and where there has been a previous diagnosis of schizophrenia more weight should be given to the preferences of the children. It is understandable that they are anxious and that it is more appropriate that a graduated schedule be implemented as suggested by the OCL.
[11] The suggestion by the RF that they should go immediately to alternating weekends or at the very least to alternating Saturday overnights with full Saturdays and Sundays is just too much too soon based upon the evidence before me and considering that the children want to increase the RF’s parenting time at a more gradual rate. That is in my view a significant change to what currently is in place. The children want to work their way to overnights rather than jumping right in.
[12] I also agree with the AM that there is insufficient clarity as to the RF’s current medical treatment and his plan for treatment going forward.
[13] The OCL indicated that the views of the children were clear and consistent regardless of which parent they were with. The OCL also indicated that the children, while aware of the conflict between their parents, were giving their own views and preferences and not merely repeating the views of the parents.
[14] The children want to have a relationship with the RF. They just want to get to what the RF wants at a slower pace than the RF. This is especially true for Sloan. It is understandable that Sloan, being younger, may have more reluctance than Quinn, in rapidly expanding the parenting time and on removing the supervision. As the RF’s time is with Quinn and Sloan together then until Sloan becomes more comfortable with the situation more deference should be given to him.
[15] As it is, the suggestion from the OCL as to the length of the parenting time with the RF is a compromise between what Sloan would prefer and what Quinn would be comfortable with.
[16] However, the AM feels that the parenting time can be increased more rapidly than suggested by the OCL. She has been the primary caregiver and because of this I am prepared to increase the time at a slightly faster rate than suggested by the OCL.
[17] For December the RF will have parenting time with Sloan and Quinn on December 14, 2024 for 4 hours with full supervision by one of the current supervisors. Because of the agreed holiday dates of December 23 and December 30, 2024 there will not be parenting time on the alternate Sunday of December 28, 2024.
[18] The holiday dates will be supervised by one of the current supervisors for the first and last hour with 4 hours being unsupervised.
[19] January 4, 2025 will be the first January date with January 18, 2025 being the next date. The parenting time will be for 5 hours with the first hour and the last 30 minutes being supervised by a current supervisor. On February 1 and 15, 2025 the parenting time will be for 5 hours with the current supervisors being on call and available to join the visit if either Quinn or Sloan request this by text or telephone call. On March 1, 2025 the parenting time will be for 6 hours and unsupervised.
[20] At that point the RF’s parenting time will be reviewed and a new schedule can be agreed upon or ordered by the court, otherwise the parenting time will continue as alternating Sundays of 6 hours and unsupervised. Perhaps by that time the OCL will have heard from other collaterals. As well the OCL will be in a better position to advise as to how the extended parenting time has worked and whether additional time is in Quinn and Sloan’s best interests including overnights with the RF.
[21] The transportation is to be shared between the RF and the AM with the RF picking up Quinn and Sloan at the start of the parenting time and the AM or her spouse picking them up at the end.
[22] As mentioned earlier the parenting time between the RF and Oisin is to take place as arranged between them.
[23] The OCL suggested a few other provisions. Neither the RF or AM took issue with them. Order to go that the RF shall have one weekly phone call with Quinn, with the timing of same and any additional calls to be agreed upon between Quinn and the RF. The children may contact the either parent at any time and neither party shall impose any restrictions on the children’s ability to contact or communicate with the other parent.
[24] Neither party shall speak negatively about the other party or speak about this court proceeding to the children or within earshot of the children.
[25] The parties did not submit Bills of Costs as required. However, they agreed before the motion was argued that if there was one successful party as between the RF and the AM that that party would be awarded costs fixed in the amount of $6,000 inclusive of disbursements and HST. There would be no costs for or against the OCL.
[26] In my view the AM was the successful party on this motion as between her and the RF. Accordingly, the RF is to pay costs to the AM, fixed in the amount of $6,000, inclusive of disbursements and HST, on or before January 9, 2025.
Justice K. Hood Released: December 9, 2024