Issues around child custody and access can be one of the most contentious and emotionally difficult aspects of a divorce or separation involving children. Even once an order establishes parenting rights, the issue can still pop up again years after the fact, as seen in a recent case before the Ontario Superior Court of Justice.
The parties were married on September 1, 2001 and separated just under ten years later, on June 3, 2011. They had four children, born in 2001, 2003, 2005, and 2011. Since their separation they have lived in close proximity to one another.
A final consent order, which formalized their parenting plan, was made on July 26, 2013. The parents had joint custody, though the father’s time was limited to alternating weekends from Friday through Monday.
The mother filed a motion requesting a variation in child support in July 2017. In response to this the father requested an adjustment to the parenting schedule, seeking equal parenting time with the children. The following summer he had parenting time with the children every other week from Friday until Tuesday.
A Voice of the Child Report (“the report”) was released on September 10, 2018. The oldest three children stated they wanted to have equal parenting time with each parent, while the youngest agreed but was more hesitant than his older siblings.
The mother rejected the request, stating three concerns.
- The children spend a lot of time with their paternal grandparents during their time with the father
- The father has missed access visits in the past
- The father’s work schedule precludes week-long parenting because the children will not be able to get to their activities
The mother also stressed that the youngest child has ADD and does not adjust well to change. Additionally, she stated the report did not accurately reflect the children’s views. The father, meanwhile, argued the grandparents to not provide a caregiving role to the children, and said his work schedule is flexible enough to allow him to get the children to their activities.
The issues before the court were whether there had been a material change in circumstances since the order, and whether the father established, on balance of probabilities, that there is no genuine issue, of material fact, for trial with respect to his proposed parenting arrangement.
The court’s analysis
The court found that at the time of the original order, the children were considerably younger, and their views and preferences were not factored into the parenting arrangement. The court stated, “The children’s maturation over five years, and the ability to now ascertain their views and preferences which support a significant change in the parenting arrangement, constitute a material change in circumstances.”
In regards to whether the decision was appropriate for summary judgment, the court looked at the three oldest children separately from the youngest. The court found the older children provided independent and neutral statements in the report. The court found no need to proceed to trial with respect for a parenting plan for the older children, writing,
“A week about basis will give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with their best interests. Based on all of the evidences before me I am satisfied that I have sufficient information to make a determination of the parenting arrangement in a summary way that is both just and will reduce the legal costs to both parties.”
However, the youngest child’s age and ADD made a decision around his parenting time more complicated. The court believed there may be a triable issue with respect to the youngest child’s parenting time, and ordered a trial. Meanwhile, a summary judgement was issued in regards to the older children, providing the father with parenting access every other week.
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