Lerners’ Weekly Family Caselaw Review #4
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law Group presents one of the most interesting cases from the week of October 5, 2020:
In H.P. v. L.V., 2020 ONSC 6023, Pazaratz J. took an unfriendly view of the parties’ insistence on an urgent motion to decide between their “remarkably similar” parenting time proposals. Both parties filed affidavits “advanc[ing] serious allegations” about the other’s “behaviour and parenting”. The issue in the parenting schedule necessitating determination? One overnight every two weeks: “Why did we need so many expensive, destructive affidavits – why did I need to hear all the hurtful allegations that people will remember forever – if the only thing in dispute is a single overnight every two weeks?”
While there is little doubt that Pazaratz J. was vexed by the case before him, his comments seem directed at the family law bar and at parents in litigation more generally:
“But – as happens on many of these early motions - even though the parents have presented dramatically different recollections of the past, their proposals for future timesharing arrangements are remarkably similar. So similar that it really raises a question about whether the parents needed to say so many bad things about one another if so little was in dispute. [emphasis in original]”
Pazaratz J.’s message? Perhaps think twice before bringing these motions. But, when they are necessary, focus your materials on the discrete question before the motions Judge:
“[t]he only thing that matters in this senseless tug of war is the best interests of the children. And I heard nothing within the litany of mutual complaints which would favour one parent’s position over the other’s.
- If six overnights is fine, why would seven overnights be unthinkable?
- If seven overnights is fine, why would six overnights be unthinkable?
- In either scenario, the experience for the children is going to be very similar.
- This dispute isn’t really about what’s best for the children.
- It’s about winning and losing, and what each parent feels is best for them.
- We need to take the “winning” and “losing” out of family court.
- That’s what’s best for the children. [emphasis in original]”
On parenting issues specifically, there is likely no perfect schedule: “Each parent’s proposal entails benefits and drawbacks. That’s inevitable.”
On the facts of this case, the parties agreed on “generous timesharing… with no controls or restrictions on either parent’s involvement with the children.” As Pazaratz J. candidly concluded, “truthfully, no matter which of those options I select, I have confidence that the children will be fine.” But His Honour’s determination of the motion was not a “coin toss”, rather he “carefully considered all of the practicalities of each proposal, from the children’s perspective [emphasis added]”, a reminder of how these motions will be decided (and from whose perspective) and a guide for those of us drafting materials on future parenting motions.
“…It’s not the “one day” that’s going to ruin these children’s lives… It’s the senseless, bitter dispute about the one day that’s going to ruin these children’s lives.”
About the Lerners Family Law Group
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