Fennema v Fennema, 2025 ONSC 1471

Court File No.: FC-25-00000026-0000
Date: 2025-03-06
Superior Court of Justice – Ontario

RE: Laura Anne Fennema, Applicant
AND:
Trevor William Harry Fennema, Respondent
Carol Marie Fennema, Respondent
John Edward Fennema, Respondent

Before: T. Law
Counsel:
L. Bombardieri, Counsel, for the Applicant
C. Gill, Counsel, for the Respondent (Trevor Fennema)
E. Brown, Counsel, for the Respondent (Carol and John Fennema)
Heard: 2025-03-04

Endorsement

[1] On February 19, 2025, Laura Fennema (the “Applicant”) brought a motion for various urgent relief prior to the issuing of her Application. On the same day, Justice MacLeod determined that the motion would be scheduled for February 25, 2025. On February 23, 2025, two days before the argument of the motion, Trevor Fennema (the “Respondent”) served his cross-motion. Justice Krawchenko adjourned the Applicant’s motion and the Respondent’s cross-motion to a half-day motion on March 4, 2025. These are my reasons on these motions.

Urgency

[2] The Applicant brought this motion as an urgent motion. Although the Applicant sought relief with respect to various issues in her notice of motion, the issues that are most urgent, requiring an order today, are the children’s residential schedule, the Applicant’s request for exclusive possession of the matrimonial home, and the Respondent’s request for a nesting arrangement also in the matrimonial home.

[3] Rule 14(4.2) of the Family Law Rules, O. Reg. 114/99 provides that a motion may only be heard prior to a case conference if the court is of the opinion that there is a situation of urgency or hardship. On the basis of the evidence provided, I have no trouble concluding that the parenting time portions of this motion are urgent. However, the reason for the urgency is not as stated by the Applicant in her materials; rather, the motion is urgent because, as a result of the Applicant’s litigation strategy, the children have been removed from the matrimonial home where they have resided since their marriage. Except for one in-person visit (confirmed orally in court by Applicant’s counsel) on Saturday, March 1, 2025, the children have had no in-person parenting time with their father since February 17, 2025. They have missed ten days of school and have not attended at any of their scheduled activities. This state of affairs cannot continue. An order is required today to establish stability for the children and to ensure that they continue to have relationships with both parents.

[4] The balance of the issues raised by the Applicant are dismissed due to lack of urgency. Specifically, the issue of whether the Applicant should have sole-decision making, while important, is not urgent. Similarly, while the Applicant sought a restraining order vis-à-vis the Respondent, the Applicant currently has release conditions relating to criminal charges that prevent her from having contact with the Respondent except under certain specific circumstances; therefore while the issue of a restraining order may become important in the future, it is not urgent at this time. Finally, requests for payment of expenses and disclosure are not urgent in the present context.

Background

[5] The parties were married on September 19, 2014. They have four children: Madeleine Grace Fennema (born November 29, 2016), Spencer Louis Fennema (born June 5, 2018), William Edward Fennema (born June 5, 2018), and Genevieve Amelia Rose Fennema (born March 31, 2020).

[6] The parties’ matrimonial home is located on Green Acres Farm in Caledonia, Ontario. Green Acres Farm is owned by a corporation, 2209759 Ontario Inc., which is in turn owned by the Respondent’s parents, the Respondent, and the Applicant. The Respondent and Applicant are each minority shareholders to this numbered corporation. The Respondent’s parents have a financial interest in the operation of Green Acres Farm.

[7] The Respondent is primarily responsible for operating the farming business at Green Acres Farm, which includes crop farming and caring for the laying hens. The Applicant is not involved in the farming and animal-raising tasks associated with the operation of Green Acres Farm. The Respondent also works at a chicken processing plant at Lowbanks Farms.

[8] The Applicant is a Registered Nurse and a part-time nursing instructor. She works part-time hours at present.

[9] It is not contested that with four children, both parties relied on babysitters, nannies, and family to assist them with childcare, chores, and errands. It is not contested that of the two, the Applicant spent more of the time caring for the children while the children were very young. Although the Respondent suggests that he was equally involved in the caregiving, the evidence suggests that of the two, the Applicant is the parent who spent more time caring for the children prior to the separation. The Applicant claims the Respondent is disinterested in and unable to care for the children. The Respondent denies these claims.

[10] The parties separated on November 10, 2024 after a violent altercation. The Applicant called the police and was charged with assault and mischief. She is fighting the charges. Her undertaking includes restrictions in communicating and contacting the Respondent except through a mutually agreed upon third party regarding child custody. She is also prohibited from attending at the matrimonial home except to gather her personal belongings on one occasion. There are no other exceptions to the contact and attendance terms.

[11] After she was arrested, the Applicant moved to Oakville and resided with her parents, where she remains to this date. Since November 10, 2024, the Applicant has had parenting time with the children on Wednesdays after school to approximately 6:30 pm and on Saturdays from 9:30 am to 6:30 pm (the parties dispute the exact times of these visits). The Applicant says the schedule was imposed on her. The Respondent says that while the Applicant did not specifically agree to this schedule, he assumed she was in agreement because she did not provide any other suggestions. The Respondent also provided the Applicant with additional time outside of this schedule, including a week-long vacation to Mexico in January 2025. Again, the parties dispute the willingness of the Respondent to agree to additional visits. The children also had video calls with the Applicant, although, again, the parties dispute whether they were “lengthy” or “almost every day”.

[12] In any event, in February 2025, the Applicant retained counsel. On February 14, 2025, the Friday before the family day long weekend, the parties agreed that the Applicant would pick up the children on the next day, Saturday February 15, 2025 for the long weekend. The Respondent states that the agreement was for the Applicant to have the children until Monday, February 17, 2025, after which time they would be returned to him. The Applicant does not deny that this was the agreement made.

[13] The Applicant did not return the children on February 17, 2025. Rather, on February 17, 2025 at 5:17 pm, the Respondent received a message from the Applicant’s mother stating: “The children will not be returning home. Your lawyer has been advised.” The Respondent’s evidence is that upon receiving this message, he immediately attempted to reach his family lawyer. However, because it was a holiday weekend, he could not reach her. He then called the Ontario Provincial Police (“OPP”) in Haldimand for assistance. The Haldimand OPP arrested the Applicant for breach of her release conditions. The Respondent claims that at no time did he intend to have the Applicant charged and that instead, he was merely trying to seek assistance returning the children. The children ultimately remained with the Applicant.

[14] Letters were exchanged between counsel after November 17, 2024. During submissions, counsel disputed whether the other was amenable to working out different parenting arrangements. They referred to letters and emails that are not before the court. I do not find it is necessary for me to review those letters and emails. Rather, it is clear from the parties’ submissions and affidavits that the Applicant was adamant that the only parenting schedule she would accept was one that had the children in her primary care.

[15] It is concerning that at para.11 of her affidavit of February 25, 2025, the Applicant states:

The Respondent’s refusal to agree to a parenting schedule wherein the children are returned to my primary care, and his refusal to confirm he will not pick up the children from school and their activities is the reason that the children have not been to school and their swimming and skating lessons since February 17, 2025.

It appears that the Applicant believes she is justified in removing her children from their home, school, and community just because she is the primary caregiver to the children and the children belong with her. As stated by her counsel, the Applicant believes she did “nothing wrong” because she brought an urgent motion immediately after. I disagree. Whatever the Applicant’s dissatisfaction with the parenting schedule and the Respondent, she could have commenced an application and obtained an urgent conference before the court rather than doing what she did. The urgency of this motion was precipitated entirely because of the Applicant’s choice to not only take the children from the matrimonial home in Caledonia, but also to refuse reasonable parenting time to the Respondent.

[16] We are now left in a situation where the children have been forced to experience multiple disruptions in their lives within the span of months, first as a result of having their mother removed on November 10, 2024 due to criminal charges, and then by being removed from their matrimonial home on February 17, 2025. Now, the court is being asked to adjudicate a schedule on an urgent basis, which would have the children’s lives disrupted for a third time within 5 months. This is an unacceptable situation which would have been unnecessary had the Applicant proceeded simply with an urgent conference or motion.

[17] It should be noted that there is no evidence that any critical change or precipitating event occurred to justify the removal of the children from their matrimonial home or the Respondent’s care. While I appreciate the Applicant’s position is that there was no court order and that she has been the children’s primary caregiver, the children’s home has always been on Green Acres Farm and their community and school is in Caledonia, not Oakville. The Applicant concedes that her parent’s home in Oakville is 56 km from the matrimonial home. Finally, no evidence was provided of any imminent danger to the children while at the Respondent’s home.

[18] As a result of the new breach charges, the Applicant is now subject to additional release terms made by an order of the criminal court. These terms, made on February 18, 2025, include no contact provisions between the Applicant and the Respondent, and a prohibition from attending at the matrimonial home. Importantly, there is no exception to the condition prohibiting the Applicant from attending at the matrimonial home.

[19] As a result of the criminal charges, the local Children’s Aid Society has become involved. According to both parties, a worker visits with the children once per month, however, the agency has not chosen to take further intrusive steps. A letter from the Children’s Aid Society was provided to me on consent after the argument of the motion. The letter does not indicate that the children are in need of protection in accordance with child protection standards.

Law and Analysis

Issue #1: Exclusive Possession of the Matrimonial Home

[20] The Applicant seeks exclusive possession of the matrimonial home. Both spouses have an equal right to possession of a matrimonial home upon breakdown of the marriage. However, the court may nonetheless make a temporary order under s.24(2) of the Family Law Act, RSO 1990, c F.3 (the “FLA”), granting exclusive possession of the matrimonial home to one spouse and ordering a spouse to pay associated expenses. The criteria for the court’s consideration in determining whether to make an order for exclusive possession are found at s.24(3) of the FLA:

a. the best interests of the children affected;
b. any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
c. the financial position of both spouses;
d. any written agreement between the parties;
e. the availability of other suitable and affordable accommodation; and
f. any violence committed by a spouse against the other spouse or the children.

[21] In response to the Applicant’s request, the Respondent sought relief for an equal-time nesting arrangement, with each party moving in and out of the matrimonial home on a pre-determined schedule.

[22] In Naccarato v. Naccarato, 2017 ONSC 6641 at para. 5, the court stated:

It is axiomatic that any order for possession of the matrimonial home should focus on the children’s well-being and stability and remove them as much as possible from their parents’ conflict. Perpetuating a conflict-filled environment cannot be best for children. The court must be cautious that allegations of conflict are not made on specious grounds or purposed to misrepresent the facts so as to enable a party to “win”.

[23] Both the Applicant and the Respondent’s requests are predicated on the belief that it would be in the children’s best interests to return to their home if possible. I agree with both parties on this point. It is in the children’s best interests to return to the familiar surroundings of the matrimonial home. The parties have resided at the matrimonial home since they were married; the children have resided there for their entire lives. The children go to school in the area. They have extracurricular activities in Caledonia. Their paternal grandparents live 5.9 km from the home.

[24] However, there are several reasons why I would not make an order for exclusive possession or nesting on these facts.

[25] First, the Applicant’s current criminal release order prohibits her from attending at the matrimonial home. There are no exceptions to this condition. Therefore, even if all the other factors are satisfied, it is simply impossible to enforce any order which would permit the Applicant to be at the matrimonial home without first obtaining a variation of the current release order. This includes orders for exclusive possession or nesting.

[26] Applicant’s counsel pointed me to Kelly v. Kelly in support of her client’s request that the court make a parenting order, to be held in abeyance until the criminal conditions are changed. In Kelly, the court recognized that it has no jurisdiction to supersede a criminal release condition, however made the order in anticipation of the criminal conditions being varied.

[27] In this case, I have no evidence that a variation of the Applicant’s release terms has been requested and no evidence as to whether a variation would be accomplished on consent. I similarly have no evidence as to when a hearing would occur, should there be no consent. Meanwhile, the children remain living in Oakville, away from their home, school, and community. It cannot be in the children’s best interests to be placed in further limbo while the parties sort out another step in the litigation. I will not make an order that is anticipatory and dependent on an entirely separate court process. In addition, I have concerns that such an order would be a collateral attack on the criminal release order and undertaking, and therefore improper. See Wilson v. The Queen, [1983] 2 S.C.R. 594 at p. 599, and R. v. Oliveira, 2009 ONCA 219 at para. 25.

[28] Second, even without the criminal conditions, I would not order exclusive possession on these facts. The matrimonial home is located on Green Acres Farms, an operating farm managed by the Respondent. According to the Respondent, he attends to all the planting and harvesting with occasional assistance from employees. He also cares for the 200 laying hens, which are an integral part to the family business. The Respondent’s parents have a financial interest in Green Acre Farms as their retirement funds are apparently tied to this venture. The continued operation of the farm is critical to the family’s financial well-being.

[29] The Applicant’s plan is that she and the children move back into the matrimonial home. She says that the Respondent could be prohibited from entering the home, but be allowed to work on the land around the home. She says that the Respondent’s parents or workers from his parent’s farm (Fenwood Farms, located 5.9 km from the home), could be hired to care for the chickens. The difficulty with this plan is that in order to work the land, the Respondent would require access to his equipment and tools that are stored in the shed and garage, both of which are within 50 and 100 feet of the actual house. This by itself creates a situation where conflict could easily arise between the parties in front of the children. The police have already been called by these parties twice in four months. There is a high degree of conflict between the parties and multiple allegations against each other. The court should not make an order that would facilitate further opportunities for conflict between the parties.

[30] When the potential for conflict is added to the fact that the Respondent’s parents are unable to assist on the farm, it appears the Applicant’s claim for exclusive possession is unworkable. While I agree that a business venture does not take priority over the best interests of children, on a practical level, the Respondent needs to be able to conduct his business to ensure the continued financial stability of this family. An exclusive possession order in favour of the Applicant puts this at risk.

[31] While I appreciate the Applicant’s argument is that it would be difficult for her to find suitable housing given her limited means, the issue of support can be canvassed at an urgent conference in the near future. I highly encourage the parties to exchange financial disclosure and resolve the financial issues as soon as possible.

[32] For the reasons stated above, the Respondent’s request for a nesting order is also dismissed.

Issue #2: Parenting Schedule in the Children’s Best Interests

[33] Having disposed of the requests for exclusive possession of the matrimonial home and nesting, I now turn to the issue of the parenting schedule that is in the best interests of the children.

[34] Section 16.1(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp.) sets out the jurisdiction of the court to make an interim parenting order, pending the determination of the application. According to s. 16(1) of the Divorce Act, the court shall take into consideration only the best interests of the child when making such an order.

[35] The factors to be considered are set out at ss. 16(3) and 16(4) of the Divorce Act, however, pursuant to s. 16(2), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[36] Finally, section 16(6) of the Divorce Act states that the court should give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. This “maximum contact principle” is only significant to the extent that it is in the child’s best interests: see Barendregt v. Grebliunas, 2022 SCC 22, paras. 134-145.

[37] The following are some of the key principles that have emerged when considering the best interests of the child:

a. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, para. 28.
b. The court must ascertain the child’s best interest from the perspective of the children rather than that of the parents: Gordon v. Goertz, para. 3.
c. Not one factor in the statutory definition of a child’s best interest is given statutory pre-eminence: Wilson v. Wilson, 2015 ONSC 479, para. 62.
d. The best interest analysis is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs, and the people around the child: Phillips v. Phillips, 2021 ONSC 2480, para. 47.
e. A starting point to assess a child’s best interests when making a parenting time or decision-making order is to ensure that a child will be physically and emotionally safe: I.A. v. M.Z., 2016 ONCJ 615, para. 60.
f. The court’s unrelenting focus on the best interests of each particular child means that there can be no presumption in favour of any 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, para. 71.
g. A custodial parent must not just accommodate access, they must facilitate it: Scrivo v. Scrivo, 2012 ONSC 2727; J.V.A. v. J.L.M., 2012 ONSC 3994.
h. The person seeking supervised access bears the burden of establishing that supervision is necessary: Klymenko v. Klymenko, 2020 ONSC 5451, para. 23.
i. Findings of family violence are a critical consideration in the best interests analysis. Children who are exposed to family violence are at risk of emotional and behavioural problems through their lives. Harm can result from direct or indirect exposure to domestic conflicts: Barendregt, at paras. 143 and 146.
j. A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply cannot be entrusted with custodial authority they would likely abuse: Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113.

[38] The above factors must also be considered in light of the fact that this is an interim motion at a very early stage of these proceedings. Parenting determinations at temporary motions are particularly challenging particularly where there is conflicting evidence on critical issues presented to the court by way of affidavit evidence, untested by cross-examination: see Grover v. Grover, 2023 ONSC 3607, para. 11.

[39] As a result, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process – quite often at a trial. Brown v. Brown; Neilipovitz v. Neilipovitz, 2014 ONSC 3889.

[40] In this case, the parties filed evidence that conflicts on almost every major issue. However, I find that the following evidence is of particular importance in my consideration of what order is in the children’s current best interests:

a. The Applicant spent a significant amount of time caring for the children prior to the separation. It was not seriously disputed that she was the primary caregiver, albeit she (like most people who have four children) needed the help of babysitters and a nanny. The children deserve a strong relationship with their mother.

b. The Respondent had a pre-existing relationship with his four children. While the Applicant says he is an incapable and disinterested parent, he nevertheless was able to parent the children without major incident between November 14, 2024 to February 15, 2025. The children deserve a strong relationship with their father.

c. Both parties claim that the other engages in inappropriate parenting practices, including inappropriate discipline of the children. This issue cannot be determined without a trial or further persuasive evidence.

d. Both parties claim that the other is violent or abusive. Again, both deny the other’s allegations. This issue cannot be determined without a trial or further persuasive evidence, however, I agree that minimizing any potential for conflict between the parties is in the children’s best interests.

e. Although the Respondent denies abusive or controlling conduct, on the evidence available, his restriction on the Applicant’s parenting time immediately post-separation is troubling. While he did provide the Applicant with some additional parenting time outside the very limited Wednesday and Saturday schedule, there appears to be no reason to restrict parenting time between the children and their mother to daytime access only on a regular basis. I have been provided no reason to suggest that the Applicant should not have overnight access with her children.

f. It is extremely troubling that the Applicant decided to uproot the children from their home and community on February 17, 2025. The explanations provided by the Applicant reflect poorly on her judgment and puts into doubt her willingness to facilitate contact between the children and their father. Even if the Applicant’s claim that the Respondent resorted in self-help by having her criminally charged is true, it is not a sufficient reason for her to then engage in self-help of her own. The children have been through a significant amount of instability since November 14, 2024; what the Applicant did further exacerbated this instability.

g. Other than exclusive possession of the matrimonial home, the Applicant provided no alternative plan for the children in Oakville. She says that her father will not permit the children to reside there on a permanent basis.

h. During the motion, Applicant’s counsel indicated that her alternate plan would be to have the children remain in her care while she locates a home in Caledonia. However, no evidence was provided as to the availability of housing in Caledonia, the time it would take for her to rent a residence, and the plan for the children in the interim.

i. If there was a serious risk of physical, emotional, or psychological harm for the children to be with their father, the Children’s Aid Society would have become involved more intrusively prior to today.

j. None of the evidence provided rises to the level of requiring the Respondent’s access to be supervised.

[41] As a result of the foregoing, the order that is in the best interests of the children at this very temporary stage is one that will see them return to the home they have lived in for their entire lives, which is the matrimonial home on Green Acres Farms. In addition, the order that is in the best interests of the children will include significant time with the Applicant, despite her ill-conceived actions on February 17, 2025.

[42] Should the Applicant obtain housing in Caledonia, then the parenting terms may be reconsidered. There shall be no unilateral changes to the parenting schedule without the parties’ consent or further court order.

Conclusion

[43] Therefore, I order as follows:

a. The Applicant’s motion for exclusive possession of the matrimonial home is dismissed. The Respondent’s motion for nesting is dismissed.

b. The children are to be returned to Green Acre Farms immediately. They shall reside primarily with the Respondent.

c. The Applicant shall have parenting time with the children as follows:
i. Week 1: Wednesday after school to 6:30 pm, and Friday after school to Sunday at 6:30 pm,
ii. Week 2: Wednesday after school to 6:30 pm, and Friday after school to Saturday at 6:30 pm.

d. Neither party shall speak to the children about the other party, this litigation, or the criminal charges. They shall ensure that these matters are also not discussed by others in front of the children.

e. Both parties shall ensure that the children attend at their extracurricular activities during their parenting time.

f. Neither party shall attend the school when it is not their parenting time, except for the purposes of participating in parent-teacher interviews or special school events (school concerts, holiday assemblies, etc.)

g. The parties shall communicate with each other via Our Family Wizard. All communications shall focus solely on the children’s needs and parenting time.

h. Parties may submit cost submission of no more than 3 pages, 12-point font, double spaced. The cost submissions must include a bill of costs and any offers exchanged. The Applicant shall serve and file her bill of costs by March 28, 2025 and the Respondent shall serve and file his bill of costs by April 4, 2025.

T. Law
Date: March 6, 2025