) ) Regan Daniel Cuthbert Applicant – v. –, 2023 ONSC 844

CITATION : Cuthbert v. Johnson, 2023 ONSC 844 COURT FILE NO.: 22-334 DATE: 2023/02/02 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Regan Daniel Cuthbert Applicant – and – Kaitlyn Elizabeth Johnson Respondent ) ) ) ) ) ) ) ) )) Gonen Snir for the Applicant Peter Sammon for the Respondent ) ) ) HEARD: February 1, 2023, Pembroke REASONS FOR DECISION ON URGENT MOTION SOMJI J [ 1 ] The Respondent mother brings an urgent motion for parenting time with her 18 month old daughter who she has not seen since December 7, 2022, a period of almost two months.

She seeks to restore her parenting time, move to a shared parenting schedule, and have make up time for the parenting she has missed. [ 2 ] The Applicant father supports parenting time for the mother but argues the transition to shared parenting should be gradual. The father has not proposed a transition

schedule to determine when that would be. His position is that the mother should have alternative weekends. [ 3 ] The issue to be decided is what parenting

schedule is in the best interests of the child? Brief facts and procedural history [ 4 ] The parents are in their late 20s. They were in a relationship between February 2016 and August or December 2021 (each parent claiming a different date) at which time they separated. Their child A.C. was born in July 2021. Although they separated in 2021, the mother continued to live at the same residence in the Private Military Quarters in Petawawa until she had the financial means to find a home.

The father is a member of the Canadian Armed Forces. [ 5 ] On May 23, 2022, there was an altercation that resulted in the mother being charged with assault. She entered into an undertaking not allowing her to communicate with the father or the child except with the approval of Family and Children Services of Renfrew County (FCS) or in accordance with a court order. As a result, the child remained in the home with the father with the mother having supervised and then later unsupervised parenting time during the days.

During this time there was no agreement or court order governing parenting time for the mother. [ 6 ] In August 2022, the Crown lifted the no contact against the child condition and diverted the criminal charge. The mother completed the requirements of the diversion program including attending a six week counselling program called the Direct Accountability Program. It is anticipated that the charges will be stayed following the entering of an undertaking to keep the peace commonly referred to as a s. 810 peace bond. The father indicates he is not seeking a no contact condition with the mother. Both parents

are comfortable with continuing to communicate directly via SMS about the child. They also do not require a third party for exchanges. [ 7 ] FCS also closed its file in October 2022 and reported it did not have any concerns about the mother’s parenting. [ 8 ] Not withstanding these developments, the mother’s parenting time did not increase to include overnights. In November, the mother sent a letter to the father via the daycare worker Ms. Alisha Rinas indicating she would like to move overnight visits and proposed a schedule.

The father wrote a letter refusing indicating that it was inappropriate for her to make such a request and that he would take it to a judge to illustrate what type of mother she has been to date. On December 5, 2022 the mother took the child for two nights in an attempt to commence a new parenting schedule. She set out the proposed

schedule in a letter and that the child would be returned to daycare on December 7 th for the father to commence his parenting time. The father points to that a similar event occurred between November 21 and 23 when the mother kept the child overnight. It is unclear what his response was at that time and what discussions followed. [ 9 ] The father was upset about what he characterizes as withholdings. He opposed the implementation of the mother’s “self- created parenting schedule” and wrote a letter to the mother via the daycare worker that he was not agreeable.

Counsel for the father also wrote to the mother that that the father was not agreeable to a 50/50 schedule. The mother promptly returned the child to daycare on December 7 th with the intention of the father starting his parenting time. The mother then retained counsel.

Even with counsel’s intervention, the mother has not seen her child since December 7, 2022, including over the Christmas break [ 10 ] The father indicates he was not opposed to parenting time for the mother but after the events of December 7, 2022, he was cautious about allowing the mother to have parenting time without a written agreement or court order.

He states his counsel has made offers to the mother for parenting time, but she refused. [ 11 ] Counsel for the mother argues that the parenting time offered was conditional on other terms the mother did not agree with and furthermore, fell far short of what she is seeking which is shared parenting. Counsel argues that the mother’s failure to accept the terms of the father’s proposed agreement do not warrant her being unable to see the child at all pending negotiations. I agree. One need not have a written agreement or Minutes of Settlement before arrangements can be made for a parent to see their child.

That the mother was not willing to agree to every alternative weekend was no reason to not permit or facilitate a visit in the past two months. [ 12 ] Having said this, I understand from the father that it was not his intent to deprive the mother from access during the holiday period. His paternal family had not yet met the child whereas they did meet the maternal family last Christmas. He was away for a period over Christmas in St. Catherine’s, Ontario.

Negotiations for parenting time had commenced in December, and says that upon his return, he did contact counsel to reinstitute parenting time for the mother. [ 13 ] On January 23, 2023, the mother brought an urgent motion for parenting time. Justice London-Weinstein granted the motion based on the pleadings before her which indicated that the mother had not seen her child since December 7, 2022.

The matter was then set down for a motion before me on February 1, 2023. . [ 14 ] Counsel for the father argues that urgency should not have been granted because one, Justice London-Weinstein did not have all the information necessary to make the decision and two, certain procedural steps were not followed. Counsel for the mother indicates he followed the directions provided him by Trial Coordination. The Notice of Motion and materials were served on the opposing counsel. A date was set for January 31, 2023, for the hearing on urgency.

The presiding judge had at her time both the mother’s affidavit dated January 23, 2023. The father’s affidavit dated January 26, 2023, setting out the father’s position on the motion was electronically filed with the court January 27, 2023. [ 15 ] On January 31, 2023, Justice London-Weinstein found the lapse in time since the mother saw her 17-month old child warranted an urgent motion and ordered it proceed as such. She also set out timelines for filing of materials. The issue of urgency was argued and determined.

Having reviewed the materials, I do not find there is any basis upon which the father should be entitled to relitigate the issue, and I decline to do so. Issue: What parenting

schedule is in the best interests of the child? [ 16 ] Parenting time is to be determined in accordance with the child’s best interests. The best interests of the child factors are set out in sections 24(1) and 24(2) of the Children’s Law Reform Act , R.S.O. 1990, c.C.12 , as am (“ CLRA ”) state as follows: Best interests of the child 24

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25 , Sched. 1, s. 6 . Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25 , Sched. 1, s. 6 . [ 17 ] Section 24(3) CLRA sets out the best interests factors to be considered. I have considered these below in arriving at my decision. While I have considered all the best interest factors, I have focused on the most pertinent factors that have informed my decision, not necessarily in the order that they are listed in the legislation, and sometimes collectively.

24(3)(a) - the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; [ 18 ] The child is a toddler in her primary years. She requires stability in her routine and attentive care. [ 19 ] Both parents should be entitled to meaningful time with the child to allow them to continue bonding with her. The status quo has not allowed for the mother to have overnights because of the no contact order and more recently because the parents seemed unable to negotiate an agreeable parenting schedule.

I note the child has also recently changed daycares. 24(3)(d) - the history of care of the child and 24(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; [ 20 ] The mother was home full time on maternity leave with the child until May 2022 after which time she had to leave the home as a result of the assault charge.

At that stage, the status quo changed, and the father became the primary caregiver. [ 21 ] While the father makes some remarks in his letter of December 7, 2022, to the daycare worker around the mother’s parenting ability, I note that FCS has observed the child in the care of both parents and has not identified any concerns with either parent. [ 22 ] I find both parents are willing and able to care for the child. 24(3)(c) - each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and 24(3)(

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; [ 23 ] The father identifies the mother’s withholding of the child on November 21 to 23, 2022, and again on December 5 to 7, as factors to be considered.

While I agree that the father was the primary caregiver at the time, it was clear from the evidence that the mother’s intent was not a malicious attempt to withhold the child from the father but an attempt to reinstate overnights and more equitable parenting time after months of not having an overnight with her baby and upon all conditions on her being lifted (no contact, CAS involvement over). [ 24 ] The father’s lack of cooperation to ensure the mother sees the child after the events of December 7 th is concerning. The child is very young.

Regardless of the pending negotiations, considerably stronger efforts should have been made to ensure the mother could see the child. However, the father also explained that the withholding from December 7 th onward was not malicious. He had travel plans to introduce his child to his family in St. Catherine’s and upon his return he did contact counsel to see if parenting could be facilitated for the mother. I accept his explanation is sincere. What is difficult to reconcile is if that is the case, why was the mother’s offer to have the child for any overnights in January not facilitated?

Why was there insistence on another third party provider? Why was the father now insisting on the use of an access center? [ 25 ] Despite the above-noted issues, I am satisfied based on the review of the affidavits that both parents support parenting time with the other going forward. The issue is how much. [ 26 ] It is clear that there are communication issues. Part of it has been exacerbated by the no contact conditions. At this stage I understand that the parties are able and willing to continue communicate through SMS. They also do not require a third party for exchanges.

While there has been progress in communications, I find that both parents would benefit from taking parenting and communication courses for co-parenting. I will not order it at this time but encourage both parents to consider it. 24(3)(

b) the nature and strength each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; [ 27 ] The child has now met relatives of both the maternal and paternal families. The mother reports she had frequent visits with the child in Ottawa. She and the child stayed with her mother for over a month during her maternity leave. The father has also recently introduced the child to his side of the family. Both parents appear to support contact with the extended family. 24(3)(

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; [ 28 ] The child is too young to ascertain her views in any meaningful way. 24(3)(

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; [ 29 ] No evidence has been presented on this issue. I do not understand the child to have any Indigenous heritage. 24(3)(

g) any plans for the child’s care; [ 30 ] The father works five days a week and is able to accommodate his work

schedule for parenting time. His plan is to continue to reside where he is and for the child to continue at her new daycare. [ 31 ] The mother has been living with her new partner in a five-bedroom home in Petawawa since July 2022. Her partner works full time at Garrison Petawawa. I note that the mother would have been in this home while FCS was involved in the matter, and they would thereby have likely had an opportunity to visit the home. The mother works in retail 30 to 35 hours a week, making $18/hour. Her employer is also prepared to accommodate her

schedule around her parenting time. The mother is agreeable to using the same daycare as the father. [ 32 ] Both parents have viable plans of care.

24(3)(

j) family violence. [ 33 ] Counsel for the father highlights that there has been family violence in the presence of the child. On May 22, 2022, the parties had an altercation. The mother went to the Military Police (“MP”) on the suggestion of a friend because the father had physically restrained her during the argument. She also stayed the night at a friend’s house. However, at 1:30 am, the MPs came and arrested her for assault alleging that she had “pushed” the father during the incident.

This resulted in a criminal charge which has now been resolved through diversion. [ 34 ] Counsel for the father also highlights a text message from the daycare worker informing the mother had used vulgar language on August 2 nd when informed there was switch to homogenized milk. Counsel argues the mother has had issues with aggression which the court should consider. [ 35 ] Because of the criminal charges, the FCS were involved for a short period of time but closed their file identifying no protection concerns on the part of any parent.

The father indicates he was unaware that FCS closed it its file but does acknowledge he was in contact with them for determining the mother’s parenting visits. [ 36 ] In a closing letter dated October 11, 2022, FCS reports “…there are no identified child protection concerns and Alex is believed to be safe in the care of both her parents”. “…It is important moving forward that you both maintain open communication with respect to your daughter’s needs to ensure that they are being met in a timely and effective way.

It is important for children to have relationships with both parents, and we encourage you to create and foster an environment for her in which she feels supported and encouraged in both relationships.” [ 37 ] Upon review of the materials filed, I find the family violence described does not warrant restricting the mother’s parenting time. The mother has taken responsibility for the events of May 22, 2022. She has undergone a 6-week counselling program.

FCS has closed its file and has not identified any protection concerns. [ 38 ] Finally, it is unclear why the mother became upset with the daycare worker upon hearing about a switch to homogenized milk, but the event must be taken into the context that the mother has likely been emotionally frustrated since May 2022 in not being able to have more parenting time with her baby and now young toddler. Other than this text, there does not appear to have any other issues and the daycare provider Ms.

Rinas was for a very helpful intermediary for the parties’ exchange even up to December 2022 when the father terminated her services. I put little weight on this text. [ 39 ] Upon consideration of the above-noted factors, I find it is in the best interests of the child that the parents have equal parenting time. I agree with the father that the transition to a shared parenting

schedule should be gradual. However, I disagree that shared parenting should be left to start at some indefinite date in the future. A

schedule is set out below with the mother having increased overnights over a short transition period so that the child can get accustomed to the parenting schedule. [ 40 ] While the mother requests extended make up time, I do not find it is in the best interests of the child to order a large tract of time with the mother and limited time with the father. Frequent visits and shorter gaps between visits is considered preferable with a child this young for their emotional development and bond with the parents. It is in the best interests of the child to transition to a routine schedule.

The mother’s pick up times from daycare are flexible to allow her to spend more time with the child during the day if her work shifts can be changed. [ 41 ] Finally, the father has expressed frustration with the mother’s failure to pay for childcare costs and to financially support the child either through sharing of tax credits or child support. On the other hand, the mother is of limited financial means and has only been in a stable home since July 2022. Her mother is also providing her financial assistance. Going forward, it is expected that the mother will have to contribute to the childcare costs.

She may also be entitled to child support. If not resolved these matters can be addressed at the case conference. [ 42 ] There will be an temporary Order that: 1) The mother shall have parenting time with the child on Saturday February 4, 2023, at 10 am until Sunday February 5, 2023, at 4 pm. 2) The mother shall have parenting time with the child on Wednesday February 8, 2023.

The mother shall pick up the child from daycare anytime between 9 am and 4 pm on February 8, 2023, and will drop the child off at daycare the following morning February 9, 2023, between 8 and 9 am. 3) The mother shall have parenting time with the child on Saturday February 11, 2023, at 10 am until Sunday February 12, at 4 pm. 4) The mother shall have parenting time with the child on Wednesday February 15, 2023.

The mother shall pick up the child from daycare anytime between 9 am and 4 pm and will drop the child off at daycare the following morning February 16 between 8 and 9 am. 5) The mother shall have parenting time with the child on Saturday February 18, 2023, at 10 am until Sunday February 19, at 4 pm. 6) The mother shall have parenting time with the child on Wednesday February 22, 2023.

The mother shall pick up the child from daycare anytime between 9 am and 4 pm on February 22, 2023, and will drop the child off at daycare the following morning February 23, 2023, between 8 and 9 am. 7) The mother shall have parenting time with the child on Saturday February 25, 2023, at 10 am until Tuesday February 27 at 9 am. The mother shall drop of the child at daycare between 8 and 9 am.

8) The mother shall have parenting time with the child on Saturday March 4, 2023, at 10 am until Tuesday March 7 at 9 am. The mother shall drop of the child at daycare between 8 and 9 am. 9) Thereafter, the parties shall have a week about parenting

schedule from Saturday to Saturday. The mother’s week will commence on March 11 at 10 am until the following Saturday March 17 th at 10 am. 10) During the week the parent does not have the child, they will have an over night on the Wednesday of the week. The parents may pick up the child at any time form day care and drop the child off the following day by 9 am. 11) The mother shall be responsible for transportation for exchanges up to March 11, 2023.

Thereafter, during the shared parenting schedule, the party entering into the parenting time will pick up the child from the other parent’s home. 12) The father will inform the daycare provider of the new arrangement by end of day February 6, 2023, and sign any necessary consents to allow the mother to pick up the child. 13) The father shall provide the mother with a copy of the child’s health and immunization record so that she has it in the event of an emergency. 14) Both parents will immediately inform the other parent of any medical issue or emergency that arises while the child is in their care. [ 43 ] Counsel shall prepare a copy of a draft Order consistent with this decision for my review and signature.

Should the parties wish to ad any other conditions they agree on, they may include them in the draft Order for my review. [ 44 ] The finalizing of the Order should not obstruct the commencement of the mother’s parenting time which is to begin Saturday February 4, 2023. Costs [ 45 ] The mother is the successful party on the motion both with respect to the issue of urgency and the parenting

schedule and therefore, presumptively entitled to costs. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions and forward it to the Trial Coordination to my attention by February 23, 2023 for a decision on costs. Somji J. Released: February 2, 2023 CITATION : Cuthbert v. Johnson, 2023 ONSC 844 COURT FILE NO.: 22-334 DATE: 2023/02/02 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

Regan Daniel Cuthbert Applicant – and – Kaitlyn Elizabeth Johnson Respondent REASONS FOR DECISION ON URGENT MOTION Somji J Released: February 2, 2023