Superior Court of Justice – Ontario

Court File No.: FS-24-42330
Date: 2025-01-07

Between:
Weihai Xue, Applicant
and
Yunzhe Lu, Respondent

Before: M. Kraft
Counsel:

• Weihai Xue, in person
• Wen Chin (Celia) Hu, agent, for the Respondent
  Heard: January 7, 2025

Endorsement

Nature of Motion

1. Each party brought a motion seeking increased parenting time with their three children, D1, a daughter, age 13; D2, a son, age 12; and D3, a son, age 8.

2. Currently, the three children are living with the parties pursuant to an equal-time-sharing schedule, set out in Minutes of Settlement signed by them on May 18, 2024. Specifically, the children reside with the applicant (“father”) on Mondays, Wednesdays, and Fridays, and with the respondent (“mother”) on Tuesdays, Thursdays, and Saturdays overnight to Sunday evening. The resident parent picks them up from school and the children stay overnight with the parent at his/her house, when they are then dropped off at school the next morning.

3. This equal-time-sharing parenting schedule has been in place for the past 7 months. Both parents are of the view that the current parenting schedule is not in the children’s best interests.

4. The father seeks a parenting schedule where the children will reside with him during the school week from Sunday at 6:30 p.m. to Friday after school, and with the mother on all weekends, from Friday after school to Sundays at 6:30 p.m.

5. Similarly, the mother seeks a parenting schedule where the children will reside with her during the school week from Sunday nights to Saturday mornings, and with the father on all weekends, from Saturday lunchtime to Sunday evenings.

Issue to be Decided

6. The only issue for me to decide is whether there has been a material change in circumstances justifying a change to the current parenting schedule which has been in place since May 2024 and, if so, what parenting schedule is in the children’s best interests.

Brief Background

7. The parties were married on June 11, 2011. They separated 12 years later on July 1, 2023.

8. After separation, the parties lived separate and apart in the matrimonial home in Scarborough for a number of months.

9. The mother claims she moved out of the home on May 18, 2024. According to the father, she moved out on May 3, 2024. It is agreed that the mother moved into a condominium she owns which is 10 minutes away from the matrimonial home.

10. The parties executed the Minutes of Settlement detailing the current parenting schedule on May 18, 2024.

11. The mother is an educational assistant to early childhood educators with the Toronto District School Board. She also teaches TDSB Mandarin classes part time. She earns $66,000 a year.

12. The father is self-employed. He made oral submissions that he is a contractor and a mechanical consultant. He earns $24,000 a year.

13. The mother alleges having experienced family violence throughout the marriage, by way of psychological and verbal abuse. This is denied by the father.

14. It is agreed that the mother was the primary caregiver when the children were young. The father submits, however, that as the children grew older, he was the parent responsible for picking them up from school, since he worked from home, and responsible for their educational needs. The mother disagrees. She submits that she has always been the primary parent responsible for the children’s meal preparation, helping them with their cleanliness and grooming routines; doing the children’s laundry; arranging for the children’s extracurricular activities and appointments; taking the children to school, lessons and appointments; supervising their homework; and providing them with emotional support.

15. It is also agreed that the current parenting schedule is not in the children’s best interests. Both parents believe the children are struggling. Each parent believes he/she is better equipped to parent the children during the school week so the children have increased stability and predictability.

The Mother’s Position

16. The mother’s position is that the current equal-time-sharing parenting schedule has created the following issues for the children, demonstrating a material change in circumstances, and necessitating a change in the parenting schedule:

a) Since she was the children’s primary caregiver prior to and after the separation until May 18, 2024, the father is not equipped to meet the children’s needs and provide them with the level of care they need. Specifically, she argues that the father cannot help the children clean their rooms, assist them with their daily homework and projects, or maintain their routines during the school week;

b) The father has demonstrated that he does not support or encourage the mother’s relationship with the children. He regularly badgers her about trivial issues, such as claiming that the parties’ youngest son, who is 8 years old, is not safe sleeping on the top bunk of a bunk bed in the mother’s condominium;

c) The father has demonstrated an inability to follow the schedule by making last minute changes regularly such as arriving at school to pick up the children on the mother’s scheduled parenting days, when he is aware that she is on route to do so, causing confusion for the children;

d) The father is unable to place the children’s needs ahead of his own needs, demonstrated by his sharing information about the parties’ separation with the children. The mother argues that the father has shared emails with the parties’ oldest child and brought her to the mother’s condominium and told the child that he is hoping to “catch” the mother in a new relationship with a man, and in doing so has exposed the children to the parental conflict unnecessarily, causing the children distress, anxiety and depression;

e) The father refuses to agree to the mother’s suggestion to engage a therapist for the oldest daughter and has accused the mother of trying to “label” their daughter as having “special needs” in some effort to obtain additional governmental funding;

f) The father appears to be unable or unwilling to meet the oldest child’s health needs, which include ensuring that she carries an EpiPen with her for her peanut allergy, managing her digestive issues or addressing her depression; and

g) The father refuses to communicate effectively with the mother making co-parenting impossible.

The Father’s Position

17. The father’s position is that the material change in circumstances is that the children are not doing well with the equal-time sharing schedule and that he should be the primary parent to look after the children during the school week because he is better equipped than the mother to do so for the following reasons:

a) Since he is self-employed and was never an employee, he was always the parent at home, who picked up the children from school and cared for them. He continues to not be working and is, therefore, readily available to retrieve the children from school, drive them to their activities and appointments and be reached during the school day when needed;

b) Now that the children are not pre-school aged, he is the parent who is better equipped to help them with their educational and academic needs. He argues that he is the parent who teaches them about safety;

c) He is the parent who would not save money on groceries but, rather, spends money at Costco for nutritious groceries and prepares the meals for the children, including their lunches. He knows better than the mother what the children’s food preferences are and the mother may not purchase nutritional food because she needs to save money to pay off the mortgage on her condominium;

d) He does the children’s laundry but expects the children to put their clothing away and clean their room because they are old enough to assist with household chores and look after their own belongings;

e) He believes he can provide the children with much better guidance than the mother can, because the mother keeps the children out too late and doesn’t follow the sleep routines he believes are essential to meet the children’s best interests and the mother does not believe that time management is essential, as he does; and

f) The matrimonial home, where he lives, has separate bedrooms and bathrooms for the children which is better for the children than the mother’s two-bedroom condominium.

The Law

18. Given that the parties are married, the Divorce Act is the applicable statute. The test to determine a parenting schedule for the children is the best interests of the children. Section 16(3) of the Divorce Act sets out the best interests factors the court is to consider.

19. The court must also give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being in determining the best interests of a child: s.16(2).

20. While there is no presumption of equal parenting time in the Divorce Act, parenting time shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of a child: s.16(6).

21. In this case, it cannot be ignored that the parties reached Minutes of Settlement that set out their parenting plan. S.16.6(2) of the Divorce Act defines a “parenting plan” as a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

22. In this case, the Minutes of Settlement, signed by the parties 8 months ago, on May 18, 2024, clearly set out a parenting schedule they voluntarily agreed to. The Court of Appeal recently emphasized that “it is always preferable and in the best interests of children that the parenting plans be developed by the parents: Knapp v. Knapp, 2021 ONCA 305, para 17.

23. Both parents acknowledge that they voluntarily agreed to the equal time-sharing schedule in May of 2024 but they also both are of the view that the schedule they agreed to is no longer working well for the children and, therefore, is not in the children’s best interests.

24. To determine a request to change a parenting time order or agreement, the court must embark upon a two-stage inquiry. Gordon v. Goertz.

25. The first step: There must be a material change in circumstances since the last order was made.

a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., 2011 SCC 64.

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485.

f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

26. The second step:

a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones; Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young.

d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v. Rigillio, 2019 ONCA 548.

e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

Application of the Law to the Facts

27. I find that there has been a material change in circumstances justifying a change in the current temporary parenting schedule. The material change in circumstances is that the children are not adjusting well to the back and forth of the schedule to which the parents agreed. Further, the parents have demonstrated that they cannot work well together and communicate effectively to make the agreed upon parenting schedule work.

28. I am satisfied that both parents have demonstrated a material change in circumstances justifying a change in the parenting schedule. I must now embark on a fresh inquiry into the best interests of the children.

29. I am not persuaded by either party’s arguments that she/he is better suited than the other to be a primary parent to the three children. As stated above, parental preferences do not play a role in this analysis.

30. Rather, I find that the father’s position demonstrates that he minimizes the role the mother is to play in the children’s lives. The father has admitted to discussing the separation with the children, particularly, the oldest daughter. In his oral submissions, he explained to the Court that he told D1, “a storm is coming, you better get mentally prepared”, at the time that the mother moved out of the matrimonial home. The father expressed that he told D1 this so she would be prepared for the parties’ separation. The father appeared to have no insight into how making a statement such as this, or showing D1 the emails between the parties and counsel would have a negative impact on D1. In admitting to this conduct, I find that the father has demonstrated an inability to place the children’s needs and best interests ahead of his own. This cannot continue.

31. Similarly, the mother insists that the father is unable to meet the children’s needs and she gave an example that the father admitted to the court that in his judgment the daughter, D1, does not need to carry an EpiPen despite her allergies to peanuts. While the father did make that comment, he also indicated that if the doctor believes D1 must carry an EpiPen for her allergies he is happy to adhere to that protocol.

32. I am not persuaded that the father is not looking after the children’s basic needs as the mother suggests. He does their laundry and also expects the children to put their clothing away and clean up their own rooms. That is age appropriate even if the mother does not agree. Similarly, the father is aware of the children’s food preferences and able to prepare their meals.

33. The court is, however, concerned that the father will not agree to therapy for D1 when she has expressed to the mother that she feels depressed and when the father’s own motion materials acknowledge that D1 is depressed, but he blames the depression on the mother’s behaviours. Given that D1 has expressed that she is depressed, it is in her best interests that the parents consult with D1’s family doctor and obtain his/her recommendations for a therapist for D1 and engage that therapist as soon as possible.

34. The evidence before me has not been tested. The written records are diametrically opposed. Each party believes the other parent is at fault. Each parent believes that he/she can meet the children’s needs and best interests better than the other.

35. These children deserve to live in a conflict-free environment. They did not ask for this separation. While it is clear that the current parenting schedule is not working, I am not persuaded that the children’s best interests will be met by one parent becoming the primary parent during the school week and the other parent being relegated to a weekend-only parent.

36. These children require stability and consistency. They are also entitled to spend as much time as possible with each parent, insofar as it is in their best interests to do so.

37. The parents must stop trying to demonstrate that he/she is better suited than the other parent to look after the children. The children need both parents. The children also need both parents to stop fighting. The literature supports that children with divorced parents can adjust well if the conflict between the parents is reduced. Both parents have qualities and strengths from which the children can benefit.

38. The agreed to parenting schedule, namely, the status quo, has the children changing their residence every day of the week except Saturdays. I have no doubt that the current schedule is unsettling for the three children, given that they wake up in a different parent’s home each day and sleep in a different parent’s home each night. It was not, in my view, designed in a child-focused manner, particularly for during the school year.

39. Accordingly, the current parenting schedule shall change and a new equal-time-sharing parenting schedule shall be put in its place, one which will create fewer transitions for the children and will allow the children to settle into one home during the school week, and have quality weekend time with both parents. All parenting exchanges will happen at school and the Sunday parenting exchange will be eliminated.

40. The views and preferences of the older two children have not yet been ascertained by the Court. This information is important, given their ages, 13 and 12. The parties are encouraged to consent to a Voice of the Child Report to be conducted by the OCL or another skilled professional so the Court has the benefit of this evidence.

Order

41. This court makes the following temporary parenting order:

a) The children shall reside with the parents pursuant to the following temporary parenting schedule. During Week 1, commencing on January 10, 2025, and alternating weekly thereafter:

i) The children shall reside with the respondent mother from Friday, after school to Wednesday morning, when she will drop off the children at school;

ii) The children shall reside with the applicant father from Wednesday, after school to Thursday morning, when the father shall drop off the children at school;

iii) The children shall reside with the respondent mother from Thursday, after school to Friday morning, when she will drop the children off at school.

b) During Week 2, commencing on January 17, 2025, and alternating weekly thereafter:

i) The children shall reside with the applicant father from Friday, after school to Wednesday morning, when he will drop off the children at school;

ii) The children shall reside with the respondent mother from Wednesday after school to Thursday morning, when the mother shall drop off the children at school;

iii) The children shall reside with the applicant father from Thursday, after school to Friday morning, when he shall drop the children off at school.

c) The residential parent shall arrange for pick-up and drop-off at the children’s school without interference from the other parent. The residential parent may decide whether the children are able to walk home from school on their own, subject to the rules of the school, during his/her parenting time.

d) All communication between the parents shall take place on a co-parenting application called AppClose. The parents shall subscribe to this app immediately and only communicate pertinent information about the children. The parents shall not denigrate the other parent in any communication between them. The parents shall not text or email one another unless in the case of an emergency. The parents shall respond to each other’s messages on AppClose within 24 hours of receiving a message, except in the case of an emergency when an earlier response may be necessary.

e) Neither parent shall ask the children to act as a messenger for him/her. If a parent seeks a change to the parenting schedule he/she shall make that request to the other parent before discussing the change with the children.

f) The children shall be permitted to contact the non-residential parent when they each wish to do so, without interference by the residential parent.

g) The residential parent shall be responsible to take the children to their activities and after school programs.

h) Neither parent shall enter the other parent’s home without the consent of the other parent.

i) The parties shall immediately reach out to D1’s family doctor and ask for a referral to three therapists. The parties shall engage one of three therapists recommended for D1 based on which therapist can commence services first.

j) The parties shall immediately ask D1’s family doctor whether it is recommended that D1 carry an EpiPen with her daily and follow the doctor’s recommendation in this regard.

k) If the applicant does not consent to the respondent’s draft order to seek the involvement of the Office of the Children’s Lawyer, the respondent has leave to bring a motion for this relief, only after the case conference has taken place on March 21, 2025.

l) There shall be no order as to decision-making responsibility at this time.

m) There shall be no costs of this motion. Each party shall bear his or her own costs.

Justice Kraft
Date: January 7, 2025