r v. Mensher, 2013 ONSC 2433

CITATION : Fraizinger v. Mensher, 2013, ONSC 2433 COURT FILE NO.: 04449-09 DATE: 2013-4-23 SUPERIOR COURT OF JUSTICE – ONTARIO RE: S. Fraizinger, Applicant/Mother and D. Mensher, Respondent/Father BEFORE: Ricchetti, J. COUNSEL: M. Sager, Counsel, for the Mother W. Humphrey Counsel, for the Father HEARD: April 19, 2013 ENDORSEMENT THE MOTION [ 1 ] This is the second time the parties have come before this court to deal with parenting scheduling issues. [ 2 ] This matter first came before the court on October 20, 2010. The parties had resolved matters and a final order was made on consent of the parties. The consent order provided a detailed parenting

schedule for Madeline Mensher (d.o.b. February 23, 2003). The October 20, 2010 Order provided for mediation to resolve any further disputes, failing which the parties would proceed to binding arbitration or commence a court application. [ 3 ] The matter came back before me on December 19, 2012. Issues arose with the parenting

schedule in the October 20, 2010 Order. The parties had not proceeded to mediation because of a dispute. Nevertheless, rather than to permit uncertainty with respect to Madeline’s time with her parents, I dealt with the motion. Written reasons were issued on December 27, 2012. The December 27, 2012 Order specified a revised and detailed parenting schedule. The December 27, 2012 Order was issued and entered. [ 4 ] Both parties seek clarification of my order.

Clarification on Consent [ 5 ] The “School Year” in the December 27, 2012 Order will be defined as that set out in the School Year Calendar of the Bluewater District School Board or by the “School Year Calendar” of any other School Board where Madeline is enrolled as a student. [ 6 ] The “Summer School Break” in the December 27, 2012 Order shall be defined by the School Year Calendar of the Bluewater District School Board or by the School Year Calendar of any other School Board where Madeline is enrolled as a student. The Summer School Break

schedule shall run from the Sunday at 7 pm immediately following the last day of school and will continue until the Labour Day at 7 pm immediately before the first day of school in September. [ 7 ] The definition of Professional Activity days (PA) shall be the Professional Activity Days on the School Year Calendar of the Bluewater District School Board or any other School Board where Madeline is enrolled as a student.

The parties are to alternate PA days such that the Father shall have parenting time with Madeline on the first PA day of the school year and alternating PA days thereafter and the Mother shall have parenting time with Madeline on the second PA day and alternating PA days thereafter. This is to be repeated each year commencing at the beginning of the school year. Clarification Required but not agreed [ 8 ] It is terribly frustrating that the parties require this court to micromanage their parenting schedule.

It is cases such as this that put an incredible and unnecessary strain on the judicial system and cause lengthy delays for other cases. [ 9 ] Madeline is very young and this incredible “tug of war” between the parties is not in her best interest. But this fact does not appear to matter much to these parties.

[ 10 ] Equally important, there is absolutely no give and take between these parties. As a result, they will simply have to live with the terms of a very rigid parenting

schedule set by this court. How they will deal with unforeseen circumstances which require flexibility or a variation to meet Madeline’s needs is beyond me. Micromanaging a parenting

schedule is not a service this court can provide to these parties. [ 11 ] The parties and their relationship with Madeline will no doubt suffer because of this. No doubt parenting time will fall on days when the scheduled parent cannot provide quality parenting time with Madeline. It is truly unfortunate that parents when behave this way. [ 12 ] Let me go on to deal with the contested clarification issues. Statutory Holidays [ 13 ] The parties cannot agree on what are “statutory holidays”. [ 14 ] The Statutory Holidays in my December 27, 2012 Order shall mean the following (which come from the Retail Business Holidays Act ): (

a) New Year’s Day, (

b) Good Friday, (

c) Victoria Day, (

d) Canada Day, (

e) Labour Day, (

f) Thanksgiving Day, (

g) Christmas Day, (

h) Easter Sunday, [ 15 ] Pursuant to the December 27, 2012 Order Father is to have parenting time with Madeline on New Year’s Day each year . My order does not state that the Father is to have parenting time with Madeline only on New Year’s Day in 2012. It is every year.

I did this because the Mother has Madeline for the School Christmas Holidays. [ 16 ] The Mother has parenting time with Madeline at Christmas. [ 17 ] The statutory holidays which during the Summer School Break shall not be considered but the parenting time shall be with the parent that has Madeline during that two week period. [ 18 ] Easter Monday is NOT a statutory holiday. [ 19 ] Labour Day is a statutory holiday but is within the School Summer Break (as set out below). [ 20 ] That leaves Thanksgiving, Family Day, Good Friday, Victoria Day and Easter Sunday which shall be the “Remaining Statutory Holidays” in the December 27, 2012 Order.

The Four Week Cycle during the Summer School Break [ 21 ] The Mother wants the four week cycle to continue uninterrupted but be superseded by the Summer School Break parenting time. [ 22 ] The Father wants the four week cycle to be suspended during the Summer School Break and to resume during the School Year. [ 23 ] I agree with the Father. The four week cycle is to be suspended during the Summer School Break parenting time.

This suspension of the four week cycle is to commence on the first Sunday at 7 pm of the Summer School Break. [ 24 ] In 2013, this will be the commencement of the Mother’s Summer School Break two week parenting time. This will be followed by the Father’s two week parenting time.

The parties will continue to alternate in this manner until Labour Day at 7pm of the Summer School Break. [ 25 ] If the last parenting time during the Summer School Break is not a full two week period, it shall be divided into two equal portions with the party who was to have the next full two week parenting period having the first partial parenting period and the other parent having the second partial parenting period. [ 26 ] In 2014 the Father shall have the first two week parenting time during the Summer School Break.

The parties shall alternate who gets the first two week parenting time during the Summer School Break. [ 27 ] The exchange of parenting time during the Summer School Break shall be at 7 pm on Sundays (except on the last day which

shall be on Labour Day at 7 pm). [ 28 ] Commencing on Labour Day at 7 pm at the end of the Summer School Break parenting time, the four week cycle shall resume exactly where it had been suspended. For example, if the four week cycle was interrupted by the Summer School Break 3 days into a parent’s 5 day parenting time, that parent will have the remaining 2 days upon the resumption of the School year. The four week cycle will then continue as set out in the December 27, 2012 Order. [ 29 ] The four week cycle will continue uninterrupted from year to year (save and except for the Summer School Break each year).

It does not start anew each January. Costs [ 30 ] Both parties seek costs. Neither party deserves costs. Given the circumstances and the divided success, no costs are awarded to either party. Ricchetti, J. Date: April 23, 2013