This was a motion and cross-motion for a parenting order for children aged 4 and 2.

Background

The parties separated in 2022 but were still living under the same roof. This situation was becoming intolerable, but the parties were hesitant to physically separate, as this would create a parenting status quo that would be in place until trial, and subsequently provide a litigation advantage to one party over the other.

The father proposed a nesting arrangement whereby the children remained in the matrimonial home and the parents took turns caring for the children, or a shared 2-2-3 schedule where the mother resided in the home with the children, and he moved out to his parent’s residence.

The mother submitted that the lack of stability for the children in the father’s proposals was an issue and that it would be best for her to be granted exclusive possession of the home and primary care of the children.

Issues

What temporary parenting arrangement would be in the best interests of the children?

Should the mother be granted exclusive possession of the home?

What financial support arrangements should be made pending trial?

Analysis

The Court noted that it considers the litigation advantage that is unintentionally awarded to a party in setting a status quo for parenting. As such, it generally orders a shared care arrangement, subject to the best interests of the children involved.

The AFCC Ontario Parenting Plan Guide was referenced – it noted that toddlers required “predictable and consistent routines”, and that the schedule that was followed prior to separation would dictate the parenting arrangement post-separation.

Here, the parties disagreed as to what the parenting arrangement was prior to separation. After considering both parties’ evidence, the Court found that, though the mother likely spent more time with the children overall, both parents had been equally involved. When determining the status quo, it was not a matter of calculating the amount of time each party had spent with the children.

Regarding the father’s proposed nesting arrangement: the Court found that it was not an economically viable option for the mother as she had no alternative accommodation. The criteria for exclusive possession set out in section 24(3) of the Family Law Act was outlined. The Court found that, as per the children’s best interests, and considering the mother’s reduced financial resources when compared to the father, it was best for the mother to be awarded possession of the home.

The father’s higher income also played a factor in the support arrangements the Court ordered. He had an obligation, per Contino v. Leonelli-Contion (2005) SCC, to pay a larger portion of the shared care of the children due to the significant difference in the parties’ incomes ($92,00 vs. $58,000).

Conclusion

The parties were awarded joint decision-making and care of the children on a 2-2-3 basis, with the mother getting exclusive possession of the home. The costs of the matrimonial home would be shared equally by the parties.

The father was to pay differential child support to the mother in the amount of $487 per month, and the parties would share the children’s day care costs proportionate to their income.