In the wake of a messy separation, the reality of the couple’s parenting roles during the marriage can easily become obscured by the noise of the ensuing conflict.

A judge’s job in these cases is to cut through that noise, and settle on a parenting schedule that reflects the status quo in happier – or at least reasonably calmer – times.

And that’s just what an Ontario Superior Court judge did in her recent decision in the case of D. v D., in which I acted for the father of the two-year-old girl at its heart.

Facts

The parties separated in July 2019 after three years of marriage when the father was charged with two counts of assault and a further count of assault with a weapon against the mother.

Following an urgent motion brought by the mother, the father was granted supervised access for a few hours three days a week. His supervised access was gradually increased over the next few months to include an overnight stay at weekends, before he reached an agreement with the Crown that would see his criminal charges withdrawn in the spring of 2020, so long as he completes a counselling course.

Following a hard-fought motion complicated by the mountain of written material generated by the parties, the judge ordered a shared parenting schedule for the child’s care in line with the maximum contact principle, in a ruling containing a series of notable holdings:

Parenting Time

During a relationship breakdown, people jockey for position and make allegations against each other.

While the mother argued for a more gradual increase from the father’s existing limited access, our position was that her actions since separation were designed to create a false status quo portraying her as the primary parent.

Acknowledging that the existing parenting schedule was the product of three consent orders, the judge noted that the father was previously constrained by his outstanding criminal charges and that their pending resolution had cleared the way for substantive changes.

In addition, the bad behaviour exhibited by both sides in the case “in no way detracts from them both being loving and caring parents,” the judge wrote.

“Both have been integrally involved in C.D.’s care. The fact that C.D. has been n the mother’s care significantly more since the criminal charges arose should not be a deciding factor in this case, particularly given the now known status of the criminal charges,” the judge wrote, granting the father unsupervised access two nights per week, as well as alternate weekends.

“It is in C.D.’s best interests and in accordance with the maximum contact principle that her father resume the significant role he had in her life and must continue to have. If there prove to be issues with that, they can be dealt with at trial,” the judge added.

I think the end result should be very encouraging to both men and women. The sooner post-separation you can get to parenting plans that reflect the marital reality, the sooner you can avoid these kinds of fights.

Sur-reply

During argument, the mother sought an order preventing the father from relying on certain portions of his affidavit, claiming they were inadmissible under Rule 14(2) of the Family Law Rules as sur-reply to her own earlier reply affidavit.

Despite finding the passages were properly characterized as sur-reply, the judge declined to exclude them after concluding that they were “relevant and necessary” for the court’s consideration and that the father should be allowed to respond to the “new and serious allegations” contained in the mother’s affidavit.

While I don’t necessarily agree – with respect – that the paragraphs were in fact sur-reply, the motion judge’s approach shows that when parenting issues are being decided, the court will take a more relaxed approach to the receipt of material, even if it offends Rule 14(2).

Voice Recordings

Surreptitiously obtained voice recordings are a common feature of high-conflict family law cases, and this one was no exception.

My client objected to the mother’s introduction of voice recordings made by the mother, at least one of which she admitted under questioning to have shortened or edited while secretly gathering evidence in anticipation of their separation.

Referring to an influential 2006 decision in Hameed v. Hameed in which Ontario Court Justice Stanley Sherr highlighted the reliability problems with surreptitiously recorded phone calls and discouraged their use in family law cases, the motion judge in our case expressed doubts about admitting the mother’s evidence.

“Combining the public policy and reliability concerns with the mother’s own admissions that she edited the recording and was secretly accumulating evidence for a separation, the admissibility of the recordings is problematic,” she wrote. “However, given the child-related issues at stake, I listened to the recordings. On their face, they raise concerns about the father’s behaviour towards the mother, but it is impossible to give much weight to the recordings given the problems with their reliability as outlined above.”

This approach reflects a trend for judges to receive this type of evidence when deciding parenting issues, but dealing with it on the basis of reduced weight.