Background
This matter involved a motion regarding parenting time. The father sought “equal parenting time” with the parties’ two children, aged 3 and 1. Until September 2022, the children spent
every weekend with their father. The mother wished to restrict this parenting time to alternate weekends.
In February 2022, prior to the parties’ separation (in March 2022), the mother took the children to PEI to visit her mother. However, it was only after a court Order in April 2022, that she returned to Brampton.
The mother was now unemployed and did not have stable accommodation – the children had moved around between Airbnbs and hotels, and were now living in a shelter.
Meanwhile, the father was currently paying table child support and his mother had come from India in May 2022 to assist as a caregiver for the children. Nonetheless, the mother arbitrarily reduced the father’s parenting time, citing that she wished to spend time with the children during weekends and that she took issue with the fact that it would be the father’s mother caring for the children while he was at work during his parenting time.
Issues
What parenting schedule should be implemented?
Analysis
Considering the mother’s poor arguments for limiting the father’s parenting time, the court mentioned that perhaps the mother simply felt displaced by the paternal grandmother. The court highlighted that both grandmothers were “a valuable resource” to the parties and their children.
The mother’s submission that the children were unaccustomed to spending time with their father was not a valid argument either, in the Court’s eyes. The Court pointed out that the wrongful removal or withholding of a child does not alter the child’s best interests – it was,
after all, only because the mother took the children to PEI and kept them from the father, that they had gone for such a long period without seeing their father.
As usual, the court set out the factors listed under section 24(3) of the Children’s Law Reform Act when determining the best interests of a child. Where there is no family violence or “other just reason”, and where the children have been removed or withheld from a parent, there is a need for the accelerated return to a regular parenting scheduled. That is to say, such a situation does not provide a basis to delay the return to the left-behind parent, as the mother was suggesting the court order here.
Here, the deprivation of the children’s exposure to their Indian culture was also highlighted as a deficit caused by the mother’s move to PEI / removal of the children. It was found that the
mother’s allegations of family violence were unverified by the Children’s Aid Society, and the fact that the children’s grandmother would be the caregiver when the father was at work did not go against the father. In fact, his employment was to be viewed as a positive when assessing the children’s best interests as it allowed for stable housing and the financial means to provide for the kids. Additionally, having another family member present to support a parent’s care was also a positive.
Thus, the court found no child-focused reason to limit the father’s parenting time.
Conclusion
The court looked to the Association of Family and Conciliation Courts Ontario (AFCC-O) Guidelines to determine the parenting schedule. It noted that the Guide is not binding on the courts, but that it can assist the Court in understanding a child’s developmental stage and schedules.
Based on the Guide’s recommendations for children of the age of the parties’ kids here, the court decided a Week 1 and Week 2 schedule would be best, with the children alternating residences on Sunday and Friday evenings in Week 1, and Sunday and Tuesday evenings in Week 2. A videocall with the other parent once for every five-day period was also ordered.
The court provided its fact-specific reasons for going slightly beyond the Guide’s recommendations – namely the need to maximize time with the father after the wrongful removal and the goal to reduce the number of parenting exchanges as the mother could not drive and fewer exchanges would mean fewer opportunities for conflict between the parties.
The mother had a Christmas travel request to PEI that was not dealt with at this motion as the Court noted that the litigation had commenced in the first place due to her removal of the children to PEI in February. Moreover, there was a lack of cooperation between the parties, such that it was too soon to do anything further than implementing a regular parenting schedule at this motion.
The parties were advised to attend mediation in the new year, and the mother was instructed to secure housing within a reasonable distance from the father’s home by the end of February 2023 – failing which, the father’s proposal of having the children reside with him primarily would be considered.