Background
The parties were married in Iran in December 2014. The mother immigrated to Canada that same year and sponsored the father. The parties had a 4 ½-year-old son.
In 2022, the mother told the father she was going to move out of the matrimonial home and, one month later, did so. During this time, the parties were unable to agree on a parenting schedule. The mother submitted that the father refused to let her leave the home unless she agreed to a 50/50 schedule, which pushed her to go through the police and the Children’s Aid Society to safely vacate the home with the child. The mother also submitted that she suffered family violence by the father throughout the marriage, while the father alleged that it was the mother who was abusive.
Conflicting evidence was provided by both parties to prove that they were the child’s primary parent.
The father brought a motion seeking an order granting him temporary primary care of the child; or a temporary parenting schedule with equal parenting time for the parties and temporary sole decision-making responsibility for major decisions concerning the child.
The mother sought an order dismissing the father’s motion and granting her primary care of the child, granting the father temporary parenting time on alternate weekends, and granting her sole decision-making responsibility for important decisions affecting the child.
Issue
What temporary parenting schedule should be ordered? Who should be granted decision-making responsibility, and how?
Analysis
The court highlighted the purpose of a temporary motion: to provide a reasonably acceptable solution on an expeditious basis for a problem that would be resolved at subsequent conferences or via trial. Temporary orders were to maintain the status quo until trial unless there was material evidence that the child’s best interests required an immediate change.
The only relevant test was that of the best interests of the child, with primary consideration being given to the child’s physical, emotional, and psychological safety, security, and well-being, as per section 16(2) of the Divorce Act. The court further noted the difficulty in making a determination regarding parenting without the resources and evidence available in a trial to assess the parties’ credibility.
The court mentioned that Kaplanis v Kaplanis (2005) ONCA set out the principles in determining whether joint decision-making responsibility (known as “joint custody” at the time) was appropriate:
- There must be evidence of historical communication between the parents and appropriate communication between them.
- It can’t be ordered in the hope that it will improve their communication.
- Just because both parents are fit does not mean that joint custody should be ordered;
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
- No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
- The younger the child, the more important communication is.
Additionally, mutual trust and respect were basic elements needed for a joint decision-making responsibility order to work effectively. This signified that a reasonable measure of communication and cooperation between the parties had to be in place and needed to be achievable in the future.
The responsible financial support of the child was also listed as a significant aspect of being a parent. As such, should a parent fail in this regard, it would show an inability to prioritize the child’s interests. In turn, this would be a factor weighing against an order for joint decision-making responsibility.
The family’s dynamic was also a relevant factor, and the court found that the parties’ relationship was conflict-ridden, their communication poor, and neither party had anything positive to say about the other. There was also concern that the father would use joint decision-making responsibility as a tool to control the mother.
This, paired with the fact that the father’s materials mainly highlighted how he was victimized by the mother and, the fact that he did not provide child support to the mother after she left the matrimonial home, led the court to grant the mother with temporary decision-making responsibility.
The court considered the AFCC Parenting Guidelines prepared by the Ontario Chapter of the Association of Family and Conciliation Courts in determining the parenting schedule, and found that it would be challenging for the child to spend more than three nights away from either parent. An equal parenting time schedule was not appropriate as the high level of communication and coordination required by the parties to accommodate such a schedule were found not to be present here.
Conclusion
A two-week rotating parenting time schedule was ordered. Regarding decision-making, the parties were to consult and work with counsel to arrive at decisions on consent, but the mother had final say if the parties could not agree.