What does a typical divorce case look like as it goes through the courts? The recent Ontario Superior Court of Justice trial decision by Justice Parayeski in DeAngelis v. Zanin is a good case study to provide litigants with helpful context about judicial decision-making in family law matters.

The parties were married in 2004, had one child (age 6 at trial), and separated in 2010. Although the parties were able to resolve many of their issues (and were commended for doing so by the trial judge), they required the court’s intervention to reach a final resolution. Justice Parayeski addressed the outstanding issues under the broad headings that are often seen in family law disputes.

Custody

The parents agreed (prior to trial) that the mother would have sole custody of the child, but the father asked to be provided with “written notice regarding major decisions relating to the child”. Although Justice Parayeski noted that the parents had difficulty communicating even about issues relating to the child, he found that “[the father’s request] phrased in that way, is most unusual”. He therefore declined to make the order sought by the father, and no further explanation was provided by the judge on this issue.

Section 16(5) of the Divorce Act provides that, unless the court orders otherwise, “a parent who is granted access to a child has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.” Section 20(5) of Ontario’s Children’s Law Reform Act contains a similar provision (as does the legislation of most provinces that frame parental rights in terms of “custody” and “access”).

In light of the legislative background, there would likely be no issue if the father had asked to be “notified” about decisions relating to the child, instead of asking that the mother provide him with “notice” about these decisions. It is possible that Justice Parayeski was concerned that the order sought by the father could be misinterpreted as requiring the mother to inform the father in advance of making any decisions about the child’s welfare. While custodial parents are certainly encouraged to keep access parents informed about upcoming major decisions, a custodial parent would not breach the access parent’s rights to information by informing the access parent of a decision after it has already been made and executed.

An order requiring the mother to provide “notice” to the father might also result in ambiguity about the father’s role in making decisions regarding incidents of custody. It is important to remember that a parent who is awarded sole custody has the right to make all major decisions affecting the child, without having to discuss these decisions with the access parent in advance.

In certain circumstances, courts do order that the custodial parent must consult with the access parent prior to making major decisions, but if the parties are unable to agree, the custodial parent is still empowered to make the final decision (see for example: Lamont-Daneault v. Daneault, 2003 MBCA 111, at para 74, LaPalme v. Hedden, 2012 ONSC 6758 at para 97, and McArton v. Young, 2010 ONSC 3962, at para 24).

In McArton, the mother was awarded interim sole custody, but was ordered to advise the father in writing prior to making major decisions, in order to receive the father’s “input” on these decisions. In DeAngelis, Justice Parayeski apparently did not consider it necessary to order the mother to consult with the father prior to making decisions.

Access

The parties had agreed to a general access framework, but were unable to finalize the particulars of the father’s parenting time. The outstanding issues included:

• Extending weekend access: The mother requested that the father return the child on Sunday nights after his weekend parenting time, and the father requested that the child remain in his care until drop off at school on Monday mornings. The judge agreed with the father, and noted that the additional overnight with the father would be beneficial for the child.

Courts will typically allow parents to extend weekend parenting time into Monday morning (even for relatively young children), unless there are legitimate concerns, ideally supported by reliable evidence, that such an arrangement is disruptive to the child. For example, if the parent often fails to deliver the child to school in a timely fashion, or the parent delivers the child without homework being done, without lunch, without adequate sleep, etc, extending parenting time may not be appropriate (see for example: Cunningham v. Cunningham, 2013 MBQB 50).

• Mid-week access: The father requested that his mid-week parenting time be extended from an evening to an overnight. The mother disagreed with an overnight, and requested that the father’s mid-week parenting time end earlier, to allow her to prepare the child for bed. Justice Parayeski Justice noted that the status quo before trial was a mid-week visit with the father from 6:15 p.m. to 8:30 p.m. He found that the father’s request to increase the time was ‘too much, too soon’, especially in light of his order that weekend parenting time be extended, and that the mother’s request to decrease the time had more to do with her need for control than with the child’s best interests. Accordingly, Justice Parayeski ordered the mid-week visit to remain the same.

This decision provides a good illustration of the significance of status quo in parenting. Generally speaking, courts are reluctant to make drastic changes to children’s schedules in the absence of strong evidence that an established routine is not in the children’s best interests (for ex: where there are concerns about the children’s well being or safety or a party’s parenting ability).

Although it is certainly possible to make changes to any parenting schedule, even when the schedule is mostly “working”, courts prefer changes to be gradual, to allow children time to adjust. In light of the courts’ tendency to use the status quo as a starting point, it is particularly important for access parents to insist that an acceptable parenting schedule is established as soon as possible after separation (while keeping in mind that the children’s best interests are paramount in determining what schedule is appropriate).

• Pick up and drop off and missed access visits: The mother claimed that the father was often late to pick the child up, and asked to be given the right to declare an access visit “abandoned” if the father was late by 30 minutes or more. Justice Parayeski agreed that the mother and child should not be kept waiting, but also noted that the father worked out of town and could not control factors such as traffic. Although Justice Parayeski noted that the father should call and explain any delays to the mother and the child, he declined to make an order on the issue.

The mother also requested that the father provide 48 hours’ notice of any missed access visits. The father asked notice to be only 8 hours. Justice Parayeski ordered that the father provide 24 hours’ notice. To provide further incentive to the father, Justice Parayeski ordered that missed visits would only be rescheduled when 24 hours’ notice is provided.

• Holiday schedule: Justice Parayeski reviewed the parties’ proposals for holiday access during Easter, statutory holidays, March Break, and the summer vacation. In each instance, he found the father’s proposals to be more reasonable, and ordered holiday access as requested by the father.

Access is the right of the child, and not the right of the parent. Unless there are specific concerns about prolonged/consecutive parenting time, or practical difficulties such as serious scheduling issues, courts are often prepared to order generous holiday parenting time to access parents. Absent specific and cogent reasons to limit time, there is an increasing tendency by the courts to order generous parenting time for access parents, even in cases involving very young children (see also: the “maximum contact principle” in section 16(10) of the Divorce Act) 

• Overnight visits: The mother requested the father’s overnight visits to take place at the father’s parents’ or sister’s home. The father advised that he secured a furnished apartment and asked for overnight access to take place there. He suggested that the mother should visit his apartment to satisfy herself that it was suitable for the child, and the parties would return to court if they couldn’t agree after her visit. The judge found the father’s suggestion to be more reasonable than the mother’s, and ordered accordingly.

Life Insurance

The mother requested that the father maintain a life insurance police of $300,000 to secure his child support obligations. The father requested that the mother be obliged to maintain a similar policy on her life. Justice Parayeski ordered both parents to maintain similar life insurance policies. He noted that:

[11]      While the father’s request is out of the ordinary inasmuch as it is usually the support payor who is obliged to carry life insurance, the rationale behind that request is compelling.  In the event that the mother should die before the child no longer requires support, it is probable that he would live with the father full-time.  Without the mother being insured, the full support obligation would rest on the father, just as that burden would rest upon the mother should the father die before his child support obligation ends.  I see no manifest why reason life insurance should not be carried by both parents for so long as the child remains dependent.  The amount suggested by the mother is reasonable.

Property Division and sale of the Matrimonial Home

In this case, the mother and child continued to live in the parties’ jointly owned matrimonial home. The mother sought an order allowing her to buy out the father’s equity in the home. The father argued that the home should be listed for sale, and that the mother could make an offer on the home, to be considered against other offers made in the open market.

Justice Parayeski acknowledged that a spouse cannot be forced to sell his/her equity in a matrimonial home to the other spouse without his/her consent. However, he found that the father previously consented to an order that allowed the mother to buy his interest in the home, and the father did not take any steps to set that order aside. As a result, Justice Parayeski ordered that the wife could buy the husband’s equity in the home at fair market value.

The parties were not able to agree on the fair market value of the home. Each party provided an expert appraisal report, but there was an $83,000 discrepancy between the values provided by the two experts. Justice Parayeski preferred the mother’s expert because. The mother’s expert considered properties that were more similar to the matrimonial home in terms of amenities;

• The father’s expert did adjust the value of comparable properties to account for differences between those properties and the matrimonial home, but his adjustments were general, rather than specific;
• In making adjustments for the value of comparable properties, the father’s expert did not take into consideration case-specific factors that may affect the adjustment, such as the neighborhood where the matrimonial home and comparable properties were located.

Justice Parayeski’s comments illustrate the types of factors that courts will consider when assessing expert reports. Litigants who are dealing with valuation issues should keep these factors in mind when assessing the strength of their own expert reports, and any expert reports provided by the other party.

The parties in this case ran into further difficulty because their expert reports were outdated, and neither party provided evidence about the current value of the home. Justice Parayeski calculated the present value of the home based on an appreciation formula that was presented by the mother’s expert during his testimony at trial.

This outcome should serve as a reminder to litigants that it is crucial to provide the judge with sufficient evidence to enable him/her to make decisions. Prior to attending any court appearance, litigants should ensure that the court has access complete and up-to-date evidence about every outstanding issue. If such evidence is not available, the court may have to make a decision based on incomplete information, to the detriment of either or both parties.

Other Issues

As a final issue, the parties were not able to agree on the division of household contents. The majority of household contents remained in the matrimonial home when the father moved out.  The mother suggested that she should keep all the contents in the home, and that the father should be credited with $4,000 for his 50% share of the value. The father argued that the household contents were more valuable than $8,000, and noted that it cost him significantly more than $4,000 to furnish his new home.

The father made a proposal for division of contents, and Justice Parayeski found it to be reasonable: the mother was ordered to create an inventory of the disputed household contents and divide it into two lists with equal total values. The father would then select one of the lists, and each party would keep the items from his or her list.

Conclusion

Justice Parayeski’s decision in DeAngelis exemplifies a very important point that all family litigants would do well to remember: in family law disputes, reasonableness wins the day. This is especially true in cases involving children.

Judges are often required to make decisions that will have a significant impact on children’s day-to-day lives, and their futures.  In the vast majority of cases, judges are asked to make these decisions without knowing the children in question, and without the benefit of neutral third-party evidence.

In the face of conflicting evidence from the parties, judges try to create solutions that are reasonable. Litigants who can demonstrate to a judge that they are willing to put the need of children first, to work with the other parent, and to compromise (unless there are valid and demonstrable reasons to insist on a position), will often receive the orders they are seeking, or orders that are quite close. This is what happened for the father in this case; whenever he presented reasonable proposals, Justice Parayeski ordered in his favour.