COURT FILE NO.: 23-0194
DATE: February 22, 2024
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer (Jenni) Marie Kirkland
Applicant
– and –
Bradley (Brad) John Kenneth Kirkland
Respondent
Hilary Warder, for the Applicant
Felicity Sattan, for the Respondent
Ruling on motion
ABRAMS, J
Introduction
[1] In the father’s motion, he requests shared parenting of the parties’ three children: C.I.K. (born in 2018), H.M.K. (born in 2020), and L.M.K. (born in 2023) (collectively “the children”). More particularly, shared parenting with C.I.K. and H.M.K. would commence immediately, while re-integration with L.M.K. would be on a graduated basis.
[2] In the mother’s cross-motion, she asks for primary residence of the children with the father to have parenting time with C.I.K. and H.M.K. on alternate weekends and on alternate Mondays overnight. With respect to L.M.K., parenting time would evolve on a graduated basis, which would ultimately be synchronized with C.I.K. and H.M.K.’s schedule. Further, the mother requests relief related to the payment of child support.
Brief Background
[3] The parties were married on May 2, 2009, and separated on May 3, 2023, when the father vacated the home, leaving the children in the mother’s primary care.
[4] C.I.K. and H.M.K. were born while the family was intact. L.M.K. was born three months after the parties separated.
[5] At this juncture, the children reside primarily with the mother. The father has parenting time with C.I.K. and H.M.K. on alternate weekends from Friday after school until Monday before school and, in the weeks in which he does not have weekend parenting time, on Monday overnight until Tuesday morning. The father has parenting time with L.M.K. every week on Wednesday afternoons and once on the same weekend that he has parenting time with C.I.K. and H.M.K. Further, he has additional parenting time with L.M.K. as agreed to by the parties. Recently, his parenting time with L.M.K. was expanded to include Mondays from 3:00 p.m. to 6:00 p.m.
[6] The mother is employed as a Rural Suburban Mail Carrier for Canada Post. However, she is currently on maternity leave. Her annual taxable income in 2022 was $90,549, based on full-time employment. Due to her parenting responsibilities, she transferred to a shorter and lower-paying route in October 2022, during the relationship. Accordingly, her annual income for 2023 was approximately $57,599.69. She also received some Employment Insurance payments and cost of living allowance payments at the end of 2023, which will marginally increase her 2023 taxable income.
[7] The father is self-employed doing eavestrough installation, repair, and cleaning under the name “Eastern Ontario Eavestrough”. He is currently paying Guideline child support of $1,480 per month premised on an annual income of $74,450.
Issues
[8] What parenting schedule should the court order on a temporary basis?
[9] What temporary child support order should follow?
Legal Framework
Best Interests
[10] This motion is governed by s. 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which states that a parenting order must be made only according to the best interests of the child.
[11] The factors concerning the child’s best interests are set out in ss. 16(2) and (3) of the Divorce Act as follows:
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(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.
Status Quo
[12] It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial: Niel v. Niel (1976), 1976 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.); Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 2793 (Ont. S.C.); Easton v. McAvoy, 2005 ONCJ 319; M.W. v. E.B., 2005 18315 (Ont. S.C.); and Horton v. Marsh, 2008 NSSC 224.
[13] In making an interim parenting order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.).
[14] To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, at para. 26.
[15] The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial: Copeland v. Perreault, 2007 ONCJ 217, at para. 49.
[16] It is generally not in the best interests of the children to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the Office of the Children’s Lawyer recommending an immediate change in residence; an indication that the children are doing poorly under a particular regime; serious mental health issues in connection with one of the parents; and drug or alcohol addiction on the part of one of the parents. As well, it must be demonstrable that one or more children of the marriage are doing very poorly as a result of the parenting regime: Shotton v. Switzer, 2014 ONSC 843.
[17] Status quo in a fresh separation entails a look at the status quo when the family was together: Howard v. Howard (1999), 1999 35009 (ON SC), 1 R.F.L. (5th) 375 (Ont. S.C.). In Kimpton, it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.
Analysis
[18] The parties agree on very little, save for the following:
a. The father vacated the matrimonial home on May 3, 2023, leaving C.I.K. and H.M.K. in the mother’s primary care.
b. L.M.K. was born approximately three months after the date of separation.
c. The father’s initial, informal parenting schedule with C.I.K. and H.M.K. was essentially the same as it is now.
d. The father’s parenting schedule with L.M.K. has increased over time.
e. The mother commenced this proceeding on or about August 14, 2023.
f. The children are doing well under the current parenting regime. Put another way, there is no evidence to suggest that they are doing poorly.
Pre-separation Parenting
[19] The father contends that pre-separation, he was a capable parent from the time that C.I.K. and H.M.K. were born. Further, he asserts that he took paternity leave when H.M.K. was born and was jointly responsible for the children’s school and daycare pick-ups and drop-offs. Thus, he argues that the pre-separation status quo was shared parenting. I do not see it that way, for the following reasons.
[20] In her affidavit, sworn January 19, 2024, in paras. 19-39, the mother provides specific details in support of her claim for primary parenting during the pre-separation period.
[21] In his reply affidavit, sworn January 23, 2024, apart from a bald denial of the evidence proffered by the mother, the father does not address, in any meaningful way, the specific facts asserted by the mother. For example, the father does not address the mother’s evidence that:
a. She took maternity leave for a year when C.I.K. was born. Notably, there is no evidence that the father took paternity leave following C.I.K.’s birth.
b. During the winter of 2019, he began going on frequent snowmobiling trips for days at a time, leaving C.I.K. solely in the mother’s care.
c. In 2020, the mother became pregnant with H.M.K. When the COVID-19 Pandemic struck, Canada Post put all pregnant employees off work with full pay. Thus, she was at home full-time to care for C.I.K.
d. Following H.M.K.’s birth, the mother was on maternity leave for a year, as opposed to five weeks for the father. Further, the mother continued to be the primary parent notwithstanding the father’s five-week absence from work.
e. After the father commenced his business, there was a slowdown in work during the winter months, which allowed him time to pursue snowmobiling. Specifically, during the winter of 2023, the father spent 9 out of 13 weekends away from the family on snowmobiling excursions.
f. When C.I.K. started school in 2022, the mother reduced her work hours from 11 to 8 so she could put C.I.K. on the bus, take H.M.K. to daycare, go to work, pick H.M.K. up from daycare, and make it home in time to get C.I.K. off the bus.
[22] The father could have addressed the specifics of the mother’s evidence in his reply affidavit. He did not. Accordingly, the court is left with the mother’s uncontroverted evidence in support of her claim for primary parenting in the pre-separation period.
Post-separation Parenting
[23] The father contends that the mother, in an effort to restrict his parenting time, has attempted to create a false status quo. He has repeatedly made requests to expand his parenting time with the children since separation in May 2023. However, the mother has steadfastly refused his requests in an attempt to position herself as the primary parent. I see no merit in this submission, for the following reasons.
[24] There is no quarrel that in late May 2023, almost a full month after separating, the parties pursued mediation. Thereafter, the parenting schedule was somewhat fluid until August 8, 2023, when the mother advised the father through counsel that she wished to follow the original post-separation parenting schedule. To that end, the mother provided the father with a draft, interim, and without prejudice Separation Agreement that included a parenting schedule for all three children (although L.M.K. was not yet born).
[25] The father concedes that his counter to the proposed agreement was his refusal to see the children for approximately a month, insisting on an all or nothing approach in which he would not see the children at all if the mother did not agree to shared parenting. In oral submissions, counsel for the father argued that this unfortunate development was based on “bad legal advice” provided by prior counsel.
[26] Regardless of the reason for the father’s unilateral decision to totally absent himself from the children’s lives, the mother could have taken the position that there would be no resumption of parenting time unless ordered by the court. She did not. Rather, she graciously, in my view, agreed to reinstitute the parenting regime that is in place today. Moreover, following L.M.K.’s birth, the mother has voluntarily expanded the father’s parenting time with her on a trajectory that will, in time, be synchronized with C.I.K. and H.M.K.’s schedule.
Best Interests
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
[27] C.I.K. is five years old, and H.M.K. is three years old. The Association of Family and Conciliation Courts of Ontario’s Parenting Plan Guide (“the Guide”) for children ages three to five states, “[i]f both parents were employed outside the home at the time of separation and were equally involved in the child’s care, it may be appropriate to have an arrangement with roughly equal parenting time”.
[28] First, I do not agree that the father was equally involved in C.I.K. and H.M.K.’s care at the time of separation, for the reasons provided.
[29] Second, while I do not find that the Guide is dispositive of the issue, I agree with the mother’s contention that the current parenting regime provides the father with parenting time equal to or exceeding what the Guide recommends, with respect to all three children.
[30] Third, the law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. [31] Then as now, the court is tasked with viewing what is in the best interests of the child, not the parents. The maximum contact principle was mandatory, but not absolute.
[32] The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the court could restrict contact: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.; Casselman v. Noonan, 2017 ONSC 3415.
[33] Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time, the court must 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.
[34] Our Court of Appeal, in upholding the decision of Chozik J., affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent “is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children” (emphasis added): Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, per Benotto J.A.
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.
[35] The limited record before the court at this stage suggests that C.I.K. and H.M.K. enjoy a loving and closely bonded relationship with the parties and their extended family. Further, L.M.K.’s attachments with the father and his family are developing at a reasonable pace and are on a suitable trajectory.
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.
[36] The father argues that the mother has repeatedly obstructed his parenting time and has refused to foster and encourage his relationship with the children. I do not agree, for the reasons provided.
The history of care of the child.
[37] For the reasons provided, I find that the mother was the primary parent to C.I.K. and H.M.K. in the pre-separation period. The same is true for all three children in the post-separation period.
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
[38] The children are ages five, three and five months. In the circumstances, they are too young to be able to express their views in any meaningful way.
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
[39] There is no evidence contained in the limited record to suggest that these factors cannot be adequately addressed by both parties under the current parenting regime.
Any plans for the child’s care.
[40] The parties have adjusted their work schedules in order to provide appropriate care for the children, which includes assistance from their respective families.
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.
[41] The parties are equally capable of caring for C.I.K. and H.M.K. With respect to L.M.K., the mother has voluntarily agreed to increase her parenting time with the father at a reasonable pace, and along a suitable trajectory.
Any family violence and its impact.
[42] On this issue, the parties’ evidence is limited to competing, untested affidavit evidence alone such that the court is unable to determine the veracity of the competing claims at this juncture. That said, on the limited record before the court, there is nothing that raises concerns about the parties being unable to meet the needs of the children or being unable to cooperate on issue affecting the children. Finally, there is no other litigation underway pertaining to the parties, criminal or civil.
Conclusions
[43] The mother was the primary parent when the family was intact during the pre-separation period.
[44] Save for a brief period of fluidity, the mother has maintained her position as the primary parent post-separation.
[45] The mother has not resorted to self-help remedies, nor has she used her position as the primary parent to obstruct the father’s parenting time. To the contrary, when the father unilaterally decided to remove himself entirely from C.I.K. and H.M.K.’s lives for a period of approximately one month in protest for the mother not agreeing to shared parenting, it was the mother who voluntarily reinstituted the parenting regime that is currently in place. Further, the mother voluntarily initiated parenting time between the father and L.M.K., which continues to expand.
[46] Having considered the best interest factors, I am not persuaded that maintaining the status quo would be contrary to the children’s best interests. Rather, absent compelling reasons, perhaps a report from the Office of the Children’s Lawyer or a private assessor, indicating that the children are doing poorly, which they are not, the cautious approach is to maintain the status quo until trial. Based on a more fulsome record, the court may at some point determine that shared parenting, or something close to it, is more in keeping with the children’s best interests. However, that is a question for another day.
[47] In the result, the father’s motion is dismissed, and the mother’s cross-motion is granted, specifically paras. 1-7 of her Notice of Motion, dated January 19, 2024.
[48] On a temporary and without prejudice basis, an order for child support shall issue based on the most recent and up to date financial disclosure, payable by the father to the mother. Child support shall be payable retroactively from the date of the application forward. The issue of retroactivity prior to the date of the application shall be adjourned to the trial, if necessary.
[49] Costs of the motion and cross-motion are hereby fixed in the amount of $13,500, all inclusive, payable by the father to the mother, which shall be paid out of the father’s share of the equity in the matrimonial home, as agreed.
The Honourable Mr. Justice B. W. Abrams
Released: February 22, 2024
COURT FILE NO.: 23-0194
DATE: February 22, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jennifer (Jenni) Marie Kirkland
Applicant
– and –
Bradley (Brad) John Kenneth Kirkland
Respondent
RULING ON motion
Abrams, J.
Released: February 22, 2024