BACKGROUND

The parties began living together in November of 2017 and later married in September of 2019. They separated a short two years later in September of 2021. They had two children of the marriage, Nash and Violet, aged 4 and 2 respectively. The mother had two older children from a previous marriage. Nash was the subject of this particular motion.

The parties were previously before Justice Broad on an urgent motion to determine interim parenting time and exclusive possession of the matrimonial home. Following the motion, an equal interim parenting arrangement was ordered on a 2-2-3 basis. The father now sought to change the parenting schedule to a 2-2-5-5 arrangement, and have Nash enroll in Westmount Public School, within his residential jurisdiction. The mother argued that the schedule should remain the same, as the children had grown accustomed to it. The mother further sought that Nash attend Baden Public school in her residential jurisdiction.

The father’s position of a 2-2-5-5 schedule and Nash’s enrollment in Westmount Public School was recommended by the Office of the Children’s Lawyer (‘OCL’), in a report dated May 12, 2022. The mother disputed the OCL’s findings and argued that their report should not be relied on at an interim motion.

ANALYSIS

Justice D. Piccoli first acknowledged that the court should be cautious in relying on OCL recommendations on an interim basis. Generally, parties should be allowed an opportunity to conduct a full analysis and cross-examination on all aspects of the report, before it can be relied on to make a substantive order. Hence, it is generally preferable that the status quo be continued until trial, unless there is a “compelling reason” to change said arrangement in the best interests of the child.

That being said, Justice D. Piccoli highlighted that in circumstances where a parent may be engaging in potentially alienating behavior, parenting arrangements can be varied on an interim basis. As such, the court should not be so inflexible in refusing to rely on an OCL report on an interim basis regardless of the circumstances. In the case at bar, although Justice D. Piccoli did not give the OCL report the weight the father requested, he still considered it in coming to his ultimate decision. In allowing the OCL report to be admitted, he relied on a number of findings of fact, including but not limited to:

1. a. that this was to be Nash’s first year of school, and hence, there was no status quo;
2. b. that the children would still remain in each parent’s care on an equal basis;
3. c. that the court was only being asked to follow 2 of the 41 recommendations proffered by the OCL;
4. d. That neither party sought to cross-examine the OCL in advance of the motion.

Ultimately, Justice D. Piccoli held in favor of the father, and ordered that Nash attend Westmount Public School, in line with the OCL recommendations. In her argument for Baden Public School, the mother made particular note of the close-knit community of Baden and the support network she had fostered there. This was not how the father or Justice D. Piccoli interpreted the circumstances. The latter found the father’s description of Baden more accurate, whereby the mother had poisoned the community against the father and depicted him as “someone to watch out for”. This was consistent with the report from the OCL, that stated that when one parent denigrates the other and involves the police and child protection services, the community learns that the other parent is ‘bad’ or ‘dangerous’. Justice D. Piccoli was concerned that because of the mother’s actions, the father would not be treated as an equal parent at the school or in the community.

Given the contentious litigation before them, the court further ordered that the parenting schedule be amended to a 2-2-5-5 basis. As argued by the father, this would limit the exchanges between the parties and limit the children’s potential exposure to adult conflict, pursuant to their best interests.

CONCLUSION

Although the court may be hesitant to make substantive changes to a parenting arrangement on an interim basis, and even further, to rely on expert reports without them being properly scrutinized in cross-examination, circumstances may call for a different approach. The OCL is widely considered an independent, neutral third-party organization aimed at prioritizing the best interests of the child. Arguing against their recommendations is no small task. Especially in contentious litigation where each side routinely denigrates the other, the court will be more inclined to rely on more unbiased reports in coming to their ultimate determination.