COURT FILE NO.: FS-25-108

DATE: 2026/04/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRETT CAMPBELL

Applicant

– and –

DEVYN NICOLE CROCKER

Respondent

William Abbott, for the Applicant

Kathleen Klein, for the Respondent

HEARD:

wilcox, j.

Introduction

1The parties were married, had two children and separated, but continued to share the matrimonial home. Family law proceedings were begun by the applicant father. A case conference was held and an order made by Stringer A.J. An alleged agreement was made but not followed through with by the respondent mother who made a complaint that the applicant had assaulted her, resulting in his being arrested, removed from the matrimonial home and charged. Lacking agreements or orders on parenting arrangements, self-help remedies were resorted to, followed by a series of motions by both sides and a temporary temporary order with respect to parenting. Some issues were resolved by agreement, but the issue of regular parenting time went to a long motion to be decided.

background

2The parties cohabited from July, 2017, were married on August 19, 2023, and separated on January 13, 2024. There are two children, Quinn Campbell, born July 5, 2019 and Lucas Campbell, born October 27, 2021. After separation, they continued living in the matrimonial home in North Bay until the Applicant was arrested on November 23, 2025. The matrimonial home was sold on December 17, 2025. Each has a new residence in North Bay. Both parties are self-employed. The Applicant owns City Center Collision. The Respondent is a photographer.

PLEADINGS

3The Applicant issued an Application on August 8, 2025. It sought orders for joint decision-making responsibility, parenting time, child support, the sale of the home and related relief. The proposed parenting time was “a consistent parenting schedule for the parties and the children that is in the children’s best interests, with a view to the children eventually enjoying a shared parenting schedule with the parties”. The Respondent’s Answer/Claim by Respondent dated September 4, 2025, sought orders for a divorce, the Respondent’s sole decision-making responsibility and primary residence of the children, restrictions on the Applicant’s parenting time, spousal support, child support, net family property equalization, exclusive possession of the matrimonial home and its contents and the sale of that home, plus related relief.

intervening events

Case Conference

4There was a series of intervening events between the exchange of pleadings and the long motion. A review of these assists in understanding.

5The matter was case conferenced with Associate Justice Stringer on October 14, 2025. She made orders for the exchange of Requests for Information and for the appraisal and sale of the matrimonial home.

Alleged Agreement

6The Applicant deposed that he and the Respondent agreed to a shared parenting regime in November, 2025, in conjunction with a settlement regarding the funds from the sale of the matrimonial home. In support of his contention, he produced copies of communications received from the Respondent. In one, a screenshot of an email of November 6, 2025, the Respondent’s lawyer responded to instructions about a settlement which, inferentially, included parenting time. On November 7, the Respondent sent to the Applicant another email asking that he have his lawyer email hers “ASAP” about the deal.

7More explicitly on point was an exchange of emails starting on November 11, 2025. The Respondent emailed her lawyer, the Applicant, and the Applicant’s lawyer about the urgency of having a separation agreement in place in view of the parties’ upcoming sale of the matrimonial home and moves to other accommodations. She stated that:

Brett and I have already agreed on the following:

The proceeds from the home will be split 50/50.

The children’s schedule will follow a 2-2-3¹ rotation for the time being, with a plan to revisit this arrangement in a few months to ensure it’s working well for everyone.

We have come to an agreement on everything on our own at this point and truly only need something to be written up and signed.

The only remaining items requiring clarification are child support and alimony. I’m hoping that by sending this message, the urgency of the situation is clear. Both Brett and I share the same concern for ensuring stability for our children and would greatly appreciate any guidance on what is needed to finalize this process.

8Subsequent emails between counsel on November 11 and 12 dealt with the impropriety of the Respondent communicating in this way. More importantly for present purposes, the Applicant’s counsel offered “to draft a partial separation agreement for parenting and property, and dealing with the issues of child support and spousal support later”. The Respondent’s counsel responded by email expressing appreciation for the Applicant’s counsel doing this drafting and stating that she “looked forward to seeing the first draft of the agreement dealing with the house proceeds and temp without prejudice parenting arrangements”.

9The Applicant further deposed that, on the afternoon of Friday, November 21, 2025, his counsel sent the draft separation agreement to the Respondent’s counsel. However, two days later, he was charged with allegedly assaulting the Respondent.

Criminal Charges and Release Conditions

10The Applicant was arrested on Sunday, November 23, 2025, on a charge of spousal assault contrary to s. 266 of the Criminal Code. He indicates that he has retained a criminal lawyer and intends to plead not guilty to this charge. It is his position that the Respondent concocted the allegation against him as a strategy in the family litigation. He denies assaulting her on November 23 or at any other time. He filed audio/video recordings which, he alleges, support him in this.

11He was released on an Undertaking on November 24, 2025. Conditions included that he not communicate with the Respondent or her father, Greg Crocker, save and except through counsel and not go to any place he knew them to live, work, go to school, frequent or happen to be.

12The non-communication condition was varied on January 19, 2026, to allow communication via legal counsel or for attendance at required proceedings in family court, pursuant to a valid family court order made after the date of variation, or through a mutually agreed upon third party for child access.

Parenting Time with no Agreement or Order

13There was no parenting agreement or order in place for a time after the Respondent’s arrest and removal from the matrimonial home. He alleged that the Applicant refused him parenting time and that his lawyer’s November 26, 2025, email to the Respondent’s lawyer about parenting time was not responded to. Consequently, he deposed, he took advantage of the scheduled school nutrition breaks to spend time with the children, thinking that that did not interfere with their instructional time. However, on November 27 and 28, 2025, the Respondent removed the children from school, preventing him from seeing them or from taking them out on the 27th for lunch, as previously arranged.

14Minutes of Settlement were entered into on November 29, 2025 for the Applicant to have parenting time on Sunday, November 30, 2025 from 9:00 a.m. to 12:00 p.m. at the home and in the presence of his mother, Lorraine Marier. He was not to ingest any intoxicating substances for at least three hours before nor during his parenting time. The Applicant said that he only agreed to such restrictive terms because the children had not been able to spend time with him for a week before then.

15Then, every day during the week from December 1 to December 5, 2025, the Applicant removed the children from school, on three days during nutrition breaks and on two days for longer periods. Indeed, on the Friday, he removed the children from school, kept them for the weekend, and returned them on Monday, December 8.

16The Applicant contended that the proposals put forward by the Respondent for his parenting time were unreasonable and that, as there was no parenting order in place, the Respondent had taken it upon herself to unilaterally withhold the children from him. So, he attended the children’s school on December 18, 2025, and kept them, as his lawyer told the Respondent’s lawyer he would, until December 25. That was, he thought, the only way that he was going to be afforded a reasonable amount of time to see the children.

Motions

Both sides brought motions returnable on December 5, 2025. The Applicant sought summary judgment on the parenting issues based on the alleged agreement between the parties. The Respondent sought to have the matter go to a case conference, and other relief.

17On December 4, 2025, Nadeau J. directed that the issues in these motions be scheduled for a case conference before leave was granted for them to be heard either as a long motion or for them to be placed on a short motions list if any remaining issues can be argued in sixty minutes or less. On December 5, Justice Nadeau endorsed that a case conference had been set for December 16, 2025.

18On December 9, the Respondent amended her Notice of Motion, making it returnable on December 16 immediately following the case conference. She sought, among other things, orders for Christmas parenting time and preventing the Applicant from making unilateral parenting time decisions and removing the children from school without her consent.

19At the December 16 case conference, Tysick J. identified the remaining issues as being the division of proceeds of sale of the matrimonial home, parenting time and questioning. Leave was granted for those issues to be heard in a long motion on a date to be scheduled through the trial coordinator.

20The Respondent then filed a Form 14B Motion dated December 19, 2025, without notice to the Applicant. She sought:

An order returning the children from the Applicant to her care, immediately.
An order for Christmas parenting time for the Applicant with conditions it be in the presence of the Applicant’s mother and that the Applicant shall not consume any intoxicating substances for at least three hours before nor during parenting time.
An order for parenting time after Christmas and up to the return of the motion.

21The Respondent alleged that the Applicant had picked the children up from school on December 18 and kept them in his care subsequently, advising that he would return them on December 25 at noon.

22Tysick J. refused, on December 22, 2025, to deal with the matter in chambers and ordered it be added to the short motions list on January 9, 2026, to set a timetable for the long motion and to hear submissions regarding an interim interim without prejudice parenting order. The matter was rescheduled from January 9 to January 12, 2026.

The January 12th, 2026 hearing

23At the January 12, 2026, hearing, Richard J. briefly reviewed the family and procedural history. She noted that the children had had no predictability in terms of when they could expect to be with either parent. Both the parties admitted to making unilateral decisions to keep the children in their care, as there was no order preventing them from doing so, and both agreed that the children would benefit from an interim interim order as they needed stability. Some of Richard J.’s remarks were oral and I do not have a transcript from that hearing. However, her written endorsement expressed deep concern for the well being of the children, given their parents’ level of conflict.

24Richard J. rejected the idea that the alleged agreement reached in November, 2025, should prevail over the provisions of the Divorce Act about making parenting orders, saying that an arrangement such as was agreed upon would only be ordered by the court if it aligned with the best interests of the children. She then proceeded to set out her findings with respect to the various factors:

[25]

a. I have already addressed the desperate need for stability in the lives of these two children, who are clearly, and sadly being exposed to their parents’ conflict;

b. With respect to the nature and strength of the children’s relationship with each parent, it is uncontested that the father has been involved in the children’s lives, and that the mother has been their primary parent;

c. The mother presented evidence that she is willing to support the children’s relationship with the father, despite her concerns;

d. Historically, the mother has been the primary caregiver, though I note that this does not mean that the father is not equally capable, should issues of IPV and substance use be proven unsubstantiated, or otherwise addressed in a manner satisfactory to the court;

e. Although there was some mention of the children’s views, the children do not have representation, and that information is untested. Given their young impressionable age, the court gives no weight to submissions relating to their views and preferences;

f. No evidence relating to the children’s cultural, linguistic, religious or spiritual upbringing was presented. The children are also not Indigenous;

g. With respect to caring for the children, the parents reside near one another, and both reside close to the children’s school.

h. There has been no order in place with respect to this family and, therefore, there are no issues at this time relating to respect of a court order that the court must consider;

i. The parties cannot communicate due to a non-communication order currently in place as a result of the father’s outstanding IPV charges;

j. With respect to family violence, the mother’s evidence alleges verbal and physical abuse from the father. There are no allegations of violence against the children, but according to the mother’s affidavit evidence, the children were present in the home when the acts of aggression against her occurred. The father denies these accusations and blames the mother for the charges in his affidavit evidence.

k. Criminal proceedings against either of these parties have already been addressed herein.

26In addition, she expressed concerns about unilateral actions by the parents, especially by the father, with respect to parenting time.

27Ultimately, she made the following interim interim parenting order:

The children of the marriage, Quinn Millie Campbell, born July 5, 2019, and Lucas Scott Campbell, born October 27, 2021 (collectively, the “children”) shall have parenting time with their father:

b. On alternating weekends, commencing on January 16, 2026, from Fridays from after school until Sunday at 6 p.m.; and

c. Every Wednesday, commencing on Wednesday, January 21, 2026, from after school until 6:30 p.m.

The children shall have parenting time with the mother during the balance.

The father shall pick up the children at school at the end of the school day, and no earlier, unless agreed upon by the parties in writing.

Given the unresolved criminal proceedings involving the parents, through counsel, they shall arrange for drop-off to the mother’s via a third party, such that the third party will pick up the children from the father’s residence, or such that the father will drop off the children at the residence of a third party, where the mother will then pick them up, or other reasonable arrangement as agreed upon by the parents via counsel.

The father shall not consume any intoxicating substances at least three hours before exercising his parenting time, and/or during his parenting time.

Neither parent shall remove the children from school, or the regular class scheduled, unless:

a. Contacted by the school that the child is ill or requires a parent to pick them up for any other reason;

b. The child has a scheduled appointment, or

c. Both parents consent to the removal of the child from their class activities.

Both parents shall ensure that the children attend any and all extracurricular activities, unless the child is ill or the parents both agree in writing that the child can miss their extracurricular activity.

Both parents shall ensure that the children attend school, unless the child is ill, or has a scheduled appointment with a care provider.

The parents may communicate via Family Wizard, or another parenting app, and communication shall be strictly limited to issues about the children.

Neither parent shall speak negatively about the other parent, or his or her family, near or around the children, at any time.

Neither parent shall speak about the conflict, court proceedings, or anything related to financial or parenting issues, with the children. The parents shall take all steps necessary to shield the children from their conflict.

28That order was to remain in place until further order from the court or until Minutes of Settlement are filed on consent varying the current order.

29Of course, Richard J’s Order, being an interim order made without prejudice to the making of a further interim order, is not binding on me in dealing with the present motion. Nevertheless, her observations and reasons, the terms of her Order, and the parties’ performance under and reactions to those terms are of interest in considering what new order to make.

30Curiously, both Richard J. on January 16 and Tysick J. on February 17, 2026, made orders setting out the timetable for the long motion scheduled for March 6. Fortunately, the schedules are identical. Among other provisions, the parties were permitted to serve and file updated Notices of Motion and supporting materials.

31One result of all of this was a profusion of documents, including 18 affidavits, to be considered and cross-referenced in dealing with the long motion, which proved to be a major task.

long motion

Relief Sought

32The Applicant father’s Notice of Long Motion dated February 9, 2026, sought:

An Order granting the Applicant Father, Brett Campbell (“Brett”) summary judgment that the agreement that he and the Respondent Mother, Devyn Crocker (“Devyn”) in November 2025 is valid, binding, and enforceable;

In the alternative to paragraph 1, on a temporary and / or final basis, the children of the marriage, namely Quinn Campbell, born July 5, 2019 (“Quinn”, 6 years old) and Lucas Campbell, born October 27, 2021 (“Lucas”, 4 years old) shall reside with the parties on a “2-2-3” schedule;

In the alternative to paragraph 1, the net sale proceeds from the former matrimonial home municipally known as 23 Lovell Avenue, North Bay, Ontario P1A 3R7 that is currently being held in trust by the parties’ real estate lawyer shall be released equally to the parties.

33The Respondent’s Amended Amended Notice of Motion of February 9, 2026, sought detailed provisions regarding the parenting time, plus orders regarding the division of the proceeds of sale of the matrimonial home, child support, section 7 expenses, life insurance and related relief.

Minutes of Settlement

34The parties entered into Minutes of Settlement on February 20, 2026, finally resolving the property issues and providing for the equal sharing of section 7 expenses.

35Holiday parenting time and other parenting issues were resolved as follows, using the numbering from the Minutes:

a. Summers - The Applicant father shall have parenting time for a week in July and a week in August. He shall advise the Respondent mother of the weeks he would like by March 1 of each year, commencing in 2026. No reasonable request will be denied.

b. Christmas - The parties shall equally share Christmas break with the Respondent mother getting the children Christmas Eve at 10:00 AM until Boxing Day at 12:00 PM in even years; and the Applicant getting the children on the aforementioned schedule in odd years. The parties shall arrange a schedule between themselves that ensures the least amount of exchanges of the children during the holidays and that coincide with the regular schedule as much as possible.

c. Parents' birthdays - If requested by either parent, the children may go with each parent on the parents' birthdays from 12:00 noon (or after school if it is a weekday) until 7:00 PM.

The Applicant father shall pick up the Children at school at the end of the school day, and no earlier, unless agreed upon by the parties in writing.

Neither parent shall remove the children from school, or the regular class scheduled, unless:

a. Contacted by the school that the child is ill or requires a parent to pick them up for any other reason;

b. The child has a scheduled appointment; or

c. Both parents consent to the removal of the child from their class activities.

Both parents shall ensure that the children attend any and all extracurricular activities, unless the child is ill or the parents both agree in writing that the child can miss their extracurricular activity.

Both parents shall ensure that the children attend school, unless the child is ill, or has a scheduled appointment with a care provider.

The parents may communicate via AppClose, Our Family Wizard or another parenting app, and communication shall be strictly limited to issues about the children.

Neither parent shall speak negatively about the other parent, or his or her family, near or around the children, at any time.

Neither parent shall speak about the conflict, court proceedings, or anything related to financial or parenting issues, with the children. The parents shall take all steps necessary to shield the children from their conflict.

Each party will be responsible for transporting the children to/from school during the party’s parenting time.

Whenever possible, exchanges shall occur at the school in time for the start or end of the school day. When exchanges do not align with school hours, the parties shall arrange for drop-off to the Respondent mother's via a third party, such that the third party will pick up the children from the Applicant father's residence, or such that the father will drop off the children at the residence of a mutually agreed upon third party, where the Respondent mother will then pick them up, or other reasonable arrangement as agreed upon by the parents. This provision is subject to any further variation of the terms of recognizance for the Applicant father's criminal matter, as well as the final disposition and/or resolution of the Applicant's criminal proceedings.

36The Minutes were turned into the Final Order of March 5, 2026.

37The Minutes confirmed that regular parenting time and “all other issues” pled for in the parties’ respective Notice of Motion and Amended Amended Notice of Motion” remained live issues for this hearing. Looking at the Applicant’s Notice of Long Motion again, that left the first two orders requested. The Respondent’s Confirmation said that the remaining issues to be adjudicated were with respect to parenting and child support. Specifically, with respect to parenting, she sought:

An order that the children of the marriage, Quinn Millie Campbell, born July 5, 2019, and Lucas Scott Campbell, born October 27, 2021 (collectively, the “Children”) shall have parenting time with the Applicant father, Brett Campbell:

a) On alternating weekends from Fridays from after school until Sunday at 6:00 p.m.; and

b) Every Wednesday from after school until 6:30 p.m.

The children shall have parenting time with the Respondent mother, Devyn Crocker, during the balance.

The Applicant father shall not consume any intoxicating substances at least 3 hours before exercising his parenting time, and/or during his parenting time.

The Respondent mother shall consult the Applicant father on all major decisions involving the children and shall have sole decision-making responsibility.

the applicant’s primary position

38The Applicant’s primary request is that the November agreement for 2-2-3 parenting time be enforced and he sought summary judgment to that end.

39Family Law Rule 16 provides for, on a motion for summary judgment, where there is no genuine issue requiring a trial of a claim, the making of an order accordingly.

40I will assume for the moment that there was an agreement, although that is contested.

41It has been held in the family law context that there are important policy reasons for enforcing agreements. ² In Zavarella v. Zaverella.³ The Ontario Court of Appeal held that:

…. Fairness and finality considerations, along with the need to encourage parties to settle their affairs with the confidence that their settlement will not be interfered with lightly, favour enforcement of the agreement. Agreements should not be interfered with, except in very narrowly circumscribed circumstances.

42In DiRaimo,⁴ the parties signed a separation agreement providing for the Respondent to have primary care of the children subject to the Applicant’s access. The Applicant then had the children in his care for weeks due to the Respondent’s medical issues. Afterwards, the Applicant refused to return the children to the Respondent, but for some access. The Respondent’s position in the consequent court proceeding under the Divorce Act was that the agreement should be given effect. The Applicant’s position was that the court could ignore the agreement in the best interests of the children.

43In his decision, McDermot J. said the following:

[18] The leading case regarding the consideration of a domestic contract in divorce proceedings is Miglin v. Miglin, 2003 24, 2003 SCC 24, [2003] 1 S.C.R. 303, which set out an analysis of addressing a spousal support provision in a domestic contract under the Divorce Act. Essentially, the problem is that the Divorce Act, unlike the FLA, is silent on the effect of domestic contracts in a divorce application.

[19] In Hearn v. Hearn, 2004 ABQB 75, Slatter J. applied the Miglin analysis to a custody agreement that had not been reduced to a court order. He suggested that, when Miglin was used to determine the enforceability of a custody agreement, the court should undertake a two-stage analysis using the best interests of the children as a substitute for whether the agreement met the support objectives of the Divorce Act.

Firstly, the court must determine:

a. Were there any circumstances concerning the negotiation of the agreement which would cause the court to discount it?

b. Does the substance of the agreement substantially comply with the best interests of the children? It is to be noted that, in determining this, parents who have negotiated an agreement are in the best place to determine the children’s best interests and the court should recognize the important of allowing parties to settle their own disputes.

Secondly, the court must determine:

a. Does the agreement still reflect the intentions of the parties? Have there been any unforeseen changes in circumstances which might undermine the parties’ agreement?

b. Assuming that there are such changes, is the agreement still in “substantial compliance with the best interests of the children?”

[20] In all of this, Hearn confirms that separation agreements cannot just be ignored by the court, especially shortly after they have been negotiated. Parties negotiating a separation agreement concerning their children are presumed to know what is in their children’s best interests, and it is important to confirm that fact that parties should have the autonomy to contract as to their children and as to their matrimonial separation. It is also important to affirm a negotiated settlement unless it is clearly not in the best interests of the children; without doing so, parties will litigate rather than negotiate in order to obtain the protection of a final court order which can only be changed through s. 17 of the Divorce Act.

[21] This case has been adopted by at least one Ontario court in Chin Pang v. Chin Pang, 2013 ONSC 2564 (although that particular case considered a proposed change to a consent order, which would require a “material change in circumstances” under s. 17(5) of the Divorce Act, while the Hearn analysis is applicable to agreements not reduced to court orders).

44With respect to 1(b), he added at paragraph 28:

However, even if the parties thought the custodial arrangement in the separation agreement to be in the children’s best interests, this is not the same as enforcing a bad deal that a party may have made, for example on property; in that case, the party is generally stuck with that bad deal assuming proper financial disclosure and negotiation and that the agreement is not unconscionable. If the parties make a patently bad agreement concerning the children, it is not the parties who are stuck with the result; it is the children. The court will not approve an agreement which is clearly outside the range of the children’s best interests because it is the duty of the court to ensure that the children’s needs for stability and care will continue to be met.

45He also found that the there was no reason that the Hearn analysis could not be applied to the interim care of children. ⁵ He went through the analysis and found that the agreement was not within that range and, therefore, held that it did not bind the court. Although it was not necessary to consider part two of the analysis, he also found that there had been changes in the situation which made it even less appropriate, therefore, giving it little or no weight in determining the result of the motion on the basis of the best interest analysis.⁶

46Shaw v. Gauthier⁷ was another case in which one party sought to enforce a parenting agreement which the other said no longer met the children’s best interests. The court stated that the applicable legal principles included:

Parenting orders must be made only in accordance with the best interests of the children, pursuant to the Divorce Act’s provisions and,
Parenting agreements are not binding on the court, but are to be given appropriate weight as reflective of what the parents consider to be in a child’s best interest at the time of the relevant agreement.

47Ultimately, an assessment of the best interests of the children is required both to determine whether to enforce the alleged agreement and, if not, to determine what order to make otherwise.

RESPONDENT’S POSITION:

48The Respondent, in her Answer/Claim by Respondent, sought sole decision-making responsibility and primary residence of the children subject to, if the Applicant obtained an order for it, such parenting time as the court deemed appropriate. She claimed to be the primary caregiver of the children. She alleged that the Applicant was not an involved parent and could not be relied upon to care for the children, such that her parents would have to stay at the home to care for them if she was away. She also alleged that his family members that his Application said that he had the support of included ones who had been or are involved in drug use and sale, alcohol abuse and pedophilia. Also, she wrote, the Applicant’s ongoing drug use is concerning to her and that there were multiple instances, as recently as February 4, 2025, when he had left drugs, including “a mushroom infused chocolate bar”, where they were accessible by the children. Regardless, the parties cohabited for nearly two years post-separation and it was the Applicant who had to begin court proceedings he said, because the Respondent would not engage in resolution discussions.

49Her Form 35.1 of the same date as her Answer says that she was not aware of any violence or abuse that the court should consider with respect to parenting time, and that the Applicant’s parenting time should be every other weekend and Wednesday after school.

50The Respondent then found a home that she wanted to purchase for which she would need a separation agreement in place, apparently because she would need funds from the sale of the matrimonial home. That is the point when she authored the email of November 11, 2025, to the Applicant and to both parties’ counsel confirming that the matrimonial home’s proceeds of sale would be split 50/50 and “the children’s schedule will follow a 2-2-3 rotation for the time being, with a plan to revisit this arrangement in a few months to ensure it's working well for everyone”. She added that “both Brett and I share the same concern for ensuring stability for our children …”, and that the only remaining issues were child support and spousal support. Ultimately, that agreement was not signed. The Respondent alleged that she had not received the draft before November 23, 2025, and that “the circumstances significantly changed on November 23, 2025 when the Applicant assaulted” her.

51The Minutes of Settlement of November 29, 2025 providing for the Applicant to have one occasion of parenting time required it to be at the home of and under the supervision of Lorraine Marier and that he not ingest intoxicating substances at least three hours before nor during parenting time.

52In her Affidavits of December 1, 9 and 19, 2025, and January 7, 2026, the Respondent said that, at her suggestion, and to minimize conflict, she had proposed that one of them would leave the house each night once the children were in bed. She later extended it to each day. Such a schedule, she said, was in place for about one week prior to the November 23, 2025, charge.

53She also expanded on her allegation of his leaving drugs which looked like candy where the children could reach them. She returned to her earlier allegations about his drug use and with respect to his family members and she minimized the degree to which he had acted in a parenting role.

54The Respondent’s position then was that she was open to frequent time parenting time for the Applicant over the Christmas holidays, overseen by his mother, Lorraine Marier with whom he was living. Evenings were out because, she said, Ms. Marier drank excessively then. A further condition was that the Applicant not ingest any intoxicating substances at least three hours before, nor during parenting time. Her stated experience was that he enjoyed being intoxicated on holidays. In addition, she was proposing Wednesdays after school and Sundays from 9:00 a.m. to 12:00 p.m., again in Ms. Marier’s company and subject to the condition regarding substance use.

55In her Form 35.1 Affidavit of December 8, 2025, the Respondent stated that she had realized in therapy that what she had experienced in the relationship rose to the level of violence/abuse and that it affects the Applicant’s ability to act as a parent. Examples given included name-calling, questioning her, following her car, returning to sleeping in their marital bed, and the alleged assault on November 23, 2025.

56Her January 7, 2026, Affidavit opposed shared parenting and proposed that the Applicant have parenting time each second weekend with mid-week visits but said that, if there was to be shared parenting, it should be on a 2-2-3 schedule.

57Richard J.’s Temporary Order was made on January 12, 2026. The Respondent said in her February 9, 2026, Affidavit that, following the making of that Order, the children’s lives seemed to be going well. Her stated position was that the schedule ordered by Justice Richard should continue. The children, she said, still had a difficult time with the transition when they came back from the Applicant’s. So, she opined, the fewer transitions between houses, the better for them.

58The Respondent’s Affidavit of February 18, 2026, pleads and relies on her Affidavits of December 1, 9, and 19, 2025, and January 7, and February 9, 2026, “unless otherwise amended by this Affidavit”. She then deposed for the first time that she had discovered the Applicant under the influence of drugs while caring for the children and before he assaulted her and was charged. She said that Justice Richard’s Order had been mostly abided by and seemed to be working well for the children. She stated that she was still leery of the Applicant’s ability to parent but that she recognized that in the shorter periods he has them, and under the condition that he not consume intoxicating substances three hours before and/or during parenting time, the children are at less risk. She maintained that the current schedule with the current conditions was working.

59In that Affidavit, she noted that the parties were in the process of entering into Minutes of Settlement dealing with some of the outstanding issues, including holiday parenting time.⁸

60So, the Respondent’s position has shifted over time. Prior to the aborted agreement, she minimized the Applicant’s involvement in parenting and emphasized the dangers that he posted. Regardless, she clearly had been content to cohabit with him for nearly two years following the separation and to leave him with the care of the children overnight at times while she stayed at her boyfriend’s. Then, when it appeared that she needed the Agreement in order to obtain funding for a house, she said that she and the Applicant shared the same concern for ensuring stability for the children and agreed to a 2-2-3 schedule, albeit with a plan to review its efficacy after a few months. The Agreement was not signed. She attributed this to the alleged assault, which might be so, but she obviously was able to obtain a new home somehow even without the funding it would have provided. After the failure to achieve that Agreement and then the Applicant’s arrest for the alleged assault on her, she returned to and expanded her negative depiction of the Applicant and to opposing shared parenting. These shifts in her position appear to be tactical and undermine her credibility. Indeed, she alternatively proposes that, if there is to be shared parenting, it should be on a 2-2-3 schedule despite having said that frequent exchanges were a problem for the children and the fewer the better. Her agreeing in the Minutes of Settlement to the Applicant having extended holiday parenting time without any mention of substance use or supervision is also inconsistent with her stated position on the motion. She does acknowledge that, apart from the transitions, the children’s lives have gone well under Richard J.’s January 12, 2026 Order.

parenting order

61The Divorce Act provides in s. 16.1 that the court may make an interim parenting order in respect of the decision-making responsibility for and parenting time of the children, pending the determination of the Application. Section 16 requires that, in doing so, the court shall take into consideration only the best interests of the children. In determining their best interests, the court shall consider all factors related to the circumstances of the children, including those listed at (3)(a) through (k). When doing so, the court shall give primary consideration to the children’s physical, emotional and psychological safety, security and well being.

Section 16(3)(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.

62The children are quite young, being six and three years old. Many of their needs go without saying. The parents indicate that they have no special needs. Section 16(6) of the Divorce Act recognizes the principle that a child should have as much time with a parent as is consistent with the best interests of the child.

63The need for stability is explicitly recognized in the Divorce Act. It appears that, prior to separation, the children had a reasonably stable situation, given that family life is busy and both parents worked outside the home. Fortunately, their work schedules, the Applicant in the day and the Respondent more so in evenings and on weekends, generally provided for the presence for the children of one parent or the other. The parents maintained this after separation in January, 2024 until late November 2025 by continuing to live in the matrimonial home and coordinate their parenting, despite growing strains between them. The situation became unstable for the children after the Respondent’s November 23, 2025, removal from the home as the alleged 2-2-3 agreement was not followed through with, there was no agreement nor order in place, and each employed self-help remedies. Richard J. in her January 12, 2026, endorsement following the hearing for a temporary temporary order expressed her concern for the well being of the children, given the level of conflict between the parties and the lack of predictability of when they could expect to be with either parent. I echo those comments. Richard J. also noted that the parties saw the benefit of stability for the children. Obviously, having a schedule in place, whether by order or by agreement, contributes to stability.

Section 16(3)

(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.

64I find it convenient to deal with these three together. As noted above, the children lived in the household with both parents before and after separation. They were in the care of one or the other at times. As is typical of a traditional relationship, which this somewhat resembled, the Applicant was out during the day earning a living to support the family. In 2024, that was $72,000. The Respondent’s work as a photographer left her available for the children during the days. Nevertheless, her 2024 income of $48,000 was substantial, being two thirds of his. Although it was not argued, that suggests that she was working a considerable part of the time, during which the children would have been in the care of someone else. That would likely have been the Applicant, although the Respondent says that her family were called upon at times. Indeed, her parents, sister and maternal grandmother all appear to be involved, as does the Applicant’s mother and, to some extent, other members of his family.

65The Applicant does not question the Respondent’s parenting of the children up to around the November 23, 2025, date of his arrest. He does question some aspects of her behaviour from that time:

She began spending time away from the matrimonial home with her boyfriend who she subsequently had around the home, exposing the children to him. The Applicant knows little about him and, while accepting the Respondent’s moving on to a new relationship, questions the wisdom of this as it might affect the children. He too, has a new relationship and the children have met her, but there was no further information on point.

He alleges that he could not get the Respondent to engage in the process of resolving the issues that arose from their separation. Indeed, he says he had to commence court proceedings in order to do so.

He found her unresponsive to his efforts to obtain parenting time, or that she wanted to restrict it to an extent that he, at least, found unreasonable.

66The Respondent, on the other hand, has gone to considerable lengths to minimize the Applicant’s role in parenting up to his removal from the home and to criticize his behaviour. She has spoken of his drug use, of his leaving drugs for the children to find them, of his failure to properly parent the children in the past, of his arrangements to have parenting time when there was no order or agreement in place, and of his alleged assault of her.

67As an aside, it should be acknowledged that both provided counterarguments to the other’s concerns. It is beyond the ability of the court on a written record to resolve their differences on these points.

68Nevertheless, the Respondent has agreed to the Applicant having some parenting time. She agreed in the Minutes of Settlement of November 29, 2025, to three hours at his mother’s residence on November 30, 2025. She agreed in the Minutes of Settlement of February 25, 2026, to his having holiday parenting time. Finally, her position on this motion favours some parenting time, but not necessarily as much as he would like.

Section 16(3)(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.

69The children are quite young and are not represented in these proceedings. There is no material evidence of their views and preferences.

Section 16(3)(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

70No evidence relating to the children’s cultural, linguistic, religious and spiritual upbringing and heritage was proffered.

Section 16(3)(g) Any plans for the child’s care.

71Little information was provided by either about plans for the children’s care. The Applicant’s focus was on obtaining parenting time and the Respondent’s was on limiting it to less than he sought and imposing conditions on it. Both said that the children were in Sunset Park Public School which, I take judicial notice of, is in the same end of the City of North Bay as was the matrimonial home and is the Applicant’s business and his mother’s residence where he has been residing. The Respondent acknowledged in her first Form 35.1 Affidavit that the need might arise to change schools if her catchment area changed. Indeed, since then, she has moved to another part of the city but her subsequent Form 35.1 only refers to Sunset Park Public School, with no mention of whether her new residence is outside of its catchment area. The Applicant had put his plans to buy a new residence on hold when the agreement to 2-2-3 parenting time and to a division of the proceeds of sale of the matrimonial home fell through. So, he appears to have some flexibility in this regard. In the interim, he has set up a bedroom for the children at his mother’s residence.

72The Applicant has shown a willingness to involve the Respondent’s mother and grandmother in the children’s lives. He filed copies of emails with them demonstrating this, even when it appeared that the Applicant was keeping the children from them.

Section 16(3)(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.

73Both appear to have the ability to parent. Their willingness to do so might be inferred from their positions and efforts in these proceedings.

74There is dispute about the extent of the Applicant’s involvement in parenting prior to his arrest. He denied that it was as limited as she contends. While I cannot entirely resolve that dispute on the written record, I do note that the children would have been in his care at times such as when she was out working and were when she would leave with him overnight post-separation. Further, she opined that things were going well under Richard J.’s January 12, 2026 order.

75The Applicant contends that the Respondent has misrepresented the situation with respect to drugs, that he has never made drugs accessible to the children and that he does not abuse drugs. He has made some efforts to demonstrate that.

76The CAS wrote to the Applicant on January 9, 2026, stating that they had received a referral regarding the children being at risk due to potential substance use, had investigated and had found the concerns not to be verified as there was no evidence that he was using illicit substances and, so, there is no risk to the children.

77The Applicant also produced a Life Labs report on his liver panel test dated December 11, 2025. The associated interpretation says that it is a normal liver panel and there is no laboratory evidence suggesting liver injury, chronic alcohol misuse or drug-related liver stress. The Respondent questioned the veracity and value of the report. Neither provided authoritative information or opinion about it. On its face, it looks positive but the court is without the tools to assess its full significance.

78I have no concern for this factor so long as both parents prioritize the children’s interests.

Section 16(3)(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.

79Obviously, the parties had the ability and willingness to communicate and cooperate with one another on matters affecting the children, even post-separation. However, once legal proceedings began, the case went down the well-worn path of adversarial proceedings where the best interests of the children can get lost in the competition to “win”.

80Here, it is instructive to look at how the law changed with respect to parenting orders in recent years. The previous and well known terminology of “custody” and “access” was replaced by “decision-making responsibility” and “parenting time”. This, no doubt, was an effort to get away from the destructive idea that children were possessions to be fought over, with one parent having them and the other only visiting. The new terminology emphasizes instead the idea that children are their parents’ responsibility to make decisions for and to parent.

81Richard J.’s January 12, 2026, endorsement said that the parties cannot communicate due to the Applicant’s Release Order on his assault charge. However, as noted above, that Order was varied to permit some communication.

82At this point, unfortunately, there is little to suggest that the parties could deviate from their positions to communicate and cooperate. I hope that they prove me wrong.

Section 16(3)(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

83As noted above, the Applicant was charged in November 23, 2025, with assault on the Respondent.

84The Answer makes no mention of any violence. The Respondent’s Form 35.1 Affidavit of the same September 4, 2025, date says that she is not aware of any.

85Her December 1, 2025, Affidavit refers to a November 8, 2025, incident when the Applicant “became aggressive towards” her, precipitating an agreement not to be in the house at the same time. There was no indication that he was physically aggressive.

86Her updated Form 35.1 Affidavit of December 8, 2025, refers to the November 23 assault. Otherwise, the Applicant’s alleged “violence/abuse” involved name calling, questioning her, his unwelcome presence and his following her.

87The police’s Domestic Violence Risk Management (DVRM) Report, completed on the basis of an interview with the Respondent following the Applicant’s arrest includes:

Medical treatment was not required.
There were no injuries.
The children were not exposed to violence, assaulted nor threatened.
The Applicant’s criminal history was a 2017 impaired operation.
The Respondent did not say there was a history of domestic violence.
There were no firearms nor other weapons.
The Applicant gave an exculpatory statement.
No investigative follow-up was required.
The Applicant did not have a history of unstable intimate relations.
The Applicant had not previously assaulted the Respondent, a previous partner, nor his children.
The Applicant had never threatened to harm or kill anyone.
The Applicant had not endorsed attitudes that supported or condoned intimate partner violence.
The Applicant was not known to have violated any relevant orders.
There was no prior occurrence involving assault against other persons, aside from an altercation in a bar.
The Respondent stated the concern that the Applicant would assault her again and had exhibited jealousy over her new boyfriend.
The Applicant had not drank since his impaired conviction, but used drugs.
The Applicant was suspected to be narcisstic.

88The Respondent deposed in her December 9, 2025, Affidavit that her boyfriend stayed with her after the alleged assault because she feared being alone in the house. Nothing was said there about the children.

89Her December 19, 2025, Affidavit dealt with the Applicant’s ability to care for the children but said nothing about any violence.

90In her January 7, 2026, Affidavit in responding to the Applicant’s allegations that her relationship with her mother and grandmother had deteriorated, the Respondent said “my family members know about my ex-husband’s historic and repeated domestic violence and current criminal charges.” This is the first allegation of domestic violence before November 23, 2025, and conflicts with the information she gave to the police as recorded in the DVRM report. She stated that her concern related to the domestic violence allegedly perpetrated against her by the Applicant while the children were home. Again, the concern was not about violence against the children, and the DVRM report recorded that the children were present but did not see nor hear the violence.

91The Respondent’s February 18, 2026, Affidavit’s only reference to domestic violence was to respond to the Applicant’s contention that he had evidence in his favour regarding the November 23, 2025, events, nothing regarding the children. Indeed, it mentions the Minutes of Settlement, ultimately dated February 25, 2026, providing, among other things, for the Applicant to have some holiday parenting time which includes two weeks in the summer. Those contain no restrictions or conditions with respect to violence or supervision.

92Overall, even if the allegation of spousal assault proves to be true, there is no suggestion of any ongoing impact on the Applicant’s ability to care for and meet the needs of the children.

child support

93The Respondent sought child support, based on the parties’ 2024 incomes. The Applicant resisted dealing with child support at this time as he is seeking better income information from the Respondent. He noted that she is self-employed with the ability to earn unreported income and that he has served a Request for Information, which had not been responded to, seeking her mortgage application. The implication is that that application would reveal what income she revealed in order to qualify for a mortgage, which seems to be a reasonable idea, especially in view of the previously noted variability over time in her information regarding the parenting time issue.

Consequently, I shall make an interim without prejudice order that set off child support based on the 2024 incomes be paid by the Applicant to the Respondent for the two children, commencing May 1, 2026, subject to revision once more current income information becomes available.

conclusion

94Applying the law to the facts, I find that the following Temporary Order is in the best interests of the children:

The Respondent mother shall have decision-making responsibility for the children and shall consult with the Applicant father in exercising that responsibility.
Parenting time shall be on a 2-2-3 schedule commencing on the second Monday following the date of this decision, when the Applicant father shall have two days of parenting time, followed by the Respondent mother having two days of parenting time, and so on thereafter.
This order shall be read and implemented together with the Order of March 5, 2026.
On a without prejudice basis, the Applicant shall pay to the Respondent, commencing May 1, 2026, set-off monthly support for the two children in an amount to be determined by counsel based on the parties’ 2024 incomes, subject to revision once more current income information becomes available.
On consent, if the parties are unable to agree on costs, their respective costs submissions, limited to three pages, double-spaced plus Bills of Costs, shall be served and filed within fourteen days of the release of this decision.

Wilcox, J.

Released: April 14, 2026

[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Campbell v. Crocker, 2026 ONSC 2221