Recent court decision: New Divorce Act provisions

Pereira v Ramos 2021 ONSC 1737: We are now beginning to see a steady stream of cases in which either the revised CLRA or Divorce Act is being applied. In this case, the father (applicant) brought a motion in the fall of 2020 to increase his time with the children to a shared parenting arrangement who were, at that time, 11, 8 and 3 years old. The mother (respondent) opposed that motion, preferring that the ongoing arrangement, in which the children lived primarily with her and saw their father on alternate weekends, remained in place.

Justice Jain first determined that, as section 35.5 of the revised Divorce Act sets out, she could use the amended language and provisions because, although the case was started before they came into effect, it was being finally disposed of after implementation. In making this determination, she noted:

In my view, these changes are very welcome to the family court and it is my hope they will do exactly what they were intended to do, which is to help reduce parental conflict in the best interests of children.

She considers the intended interpretation of the “maximum contact” provision as it now appears in the Divorce Act:

It is important to note that above all else, this principle is subject to the ‘primary consideration’ that the court must consider a child’s physical, emotional and psychological safety, security and well-being. This is especially significant in cases of family violence. Lastly, none of the above creates a presumption of equal time because if the contact conflicts with the best interests of the child, the court may impose restrictions. [emphasis mine]

Justice Jain explores the history of the family:

• While the children had lived primarily with the mother since the parents separated, there was no order or agreement setting out a parenting schedule, and this arrangement was not on consent
• Both parents described the family law matter as high conflict or acrimonious
• Police were called to the family home at least twice; once the mother was arrested and removed from the home, although charges were not laid and once the father was removed from the home and charged, but the charges were resolved through a peace bond
• The parents had, more recently, been able to communicate reasonably well

She also considers the issue of family violence, given the two police involvements, and decides:

I am not making any findings regarding the party’s credibility with respect to their allegations of family violence. To be clear, I am not deciding or making findings of fact regarding each party’s version of the family violence that has occurred. Instead, I am considering the ‘impact’ of any family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child. [emphasis mine]

She concludes that the presence of family violence does not, on its own, preclude her from making a shared parenting order, if she believes such an order would be in the children’s best interests, noting that

There have been no serious conflicts during exchanges and the parents have worked out some changes to the parenting schedules peacefully and cooperatively. Neither parent has alleged that the pattern of conflict or family violence between these parties was “coercive and controlling” or that any member of the family caused another member of the family to “fear for their own safety or that of another person.” [emphasis mine]

After listing a number of reasons, Justice Jain says: “it is my view, that the parental conflict and family violence that has occurred between the parents is not of the nature, seriousness or frequency that would negatively impact a shared or equal parenting time order.”

She then ordered a shared parenting time arrangement, with the children to spend alternating weeks with each parent. Exchanges of the children are to take place at school or daycare related locations or, when the children are not attending school, at the home of the receiving parent at 9:00 am or as otherwise arranged by the parents. If school returns to learning from home, then the parent where the children are spending their overnight that day is responsible for facilitating the at-home schooling.

Justice Jain declined to make an order for decision-making responsibility, because neither parent raised the issue in their pleadings, but did set out that whichever parent the children are with “shall make non-major, day-to-day decisions for the children.”