Court File and Parties

Ontario Court of Justice

Date: July 18, 2019

Court File No.: D30644/19

Between:

Florin Gaviluta Applicant

— And —

Lilian Pricopciuc Respondent

Before: Justice Roselyn Zisman

Heard on: July 12, 2019

Reasons for Judgment released on: July 18, 2019

Counsel:

• Lisa Eisen, appearing on a limited scope retainer for the applicant
• Zahra Taseer, counsel for the respondent

Reasons for Judgment

Zisman, J.:

Introduction

[1] This is the return of the urgent motion brought by the Respondent (mother) seeking a temporary order for sole custody for the parties' son Odin Gavriluta born […], 2013 and an order that the Applicant (father) have access on the following schedule: Week 1 – from Monday after school or 3 p.m. to Tuesday at school or 9 a.m. and then from Friday after school or 3 p.m. to Monday morning or 9 a.m. and Week 2 – from Thursday after school or 3 p.m. to Friday at school or 9 a.m. All pick up and drop offs to be at the child's school, daycare or camp unless mutually agreed otherwise.

[2] On June 21st the court granted the mother's motion and made a temporary without prejudice order with respect to access in the terms requested by the mother. Although the father was present and made submissions he had not yet filed a responding affidavit.

[3] The motion was adjourned for either a return of the motion or a case conference.

[4] The father has now filed his responding affidavit and the mother filed her reply affidavit.

[5] At the outset of the motion both counsel advised that the parties had entered into a consent and wished to conference several issues. However, as the consent only dealt with some disclosure issues, communication issues and an agreement that the parties attend for parenting counselling with Families in Transition, I advised that the motion should proceed prior to any case conference as the main issue of contention namely, the parenting schedule had not been resolved.

[6] The father seeks an order for the status quo to be resumed. It is the father's position that the status quo as of the separation was an equal shared parenting regime on a 2-2-3 basis and that the mother unilaterally changed that arrangement in April 2019 and that the temporary without prejudice order made on June 21st that upheld the schedule in place since April 2019 did not create a new status quo.

[7] The issues to be determined are therefore:

1. What is the status quo with respect to parenting?
2. What temporary order should be made based on the status quo and in the best interests' of the child?

Brief Summary of the Relevant Facts

[8] The parties met in Romania and began to live together in 2001 and then moved to Canada in September 2004. The father is 42 years old and the mother is 43 years old.

[9] After their son was born on […], 2013 the mother stayed home on maternity leave and then in January 2015 returned to work. The mother worked as an Art Director/Designer since coming to Canada. She was laid off in July 2018.

[10] The mother is looking for full-time work but has been unsuccessful. She supports herself through some part-time contract work and Employment Insurance. Her total income is about $29,123.00.

[11] The father is employed as a Project Manager/Industrial Designer and earns about $90,000.00. In addition, the father works as the superintendent of the building where the parties had resided together and in exchange for his work he does not pay any rent. A benefit of approximately $24,000.00 a year.

[12] The parties separated in November 2017 but continued to live in the same apartment until the mother moved out at the end of October 2018.

[13] It is the mother's position that prior to the separation she was the child's primary caregiver and that the father only occasionally cared for their son. The mother deposes that she was the parent that met the day to day needs of the child and was the parent involved in the child's development and education. While they resided together the father spent a great deal of time on his own as he was heavily involved in his own activities and hobbies.

[14] Prior to the mother moving out as of April 2018, the parties began to spend one day of the week-end each with their son but at other times the mother took care of all of his needs.

[15] It is the mother's position that the father was adamant that if she did not agree to an equal parenting schedule that he would not let her take their son. She feared the father due to a history of control and abuse by the father. The mother left the home despite the fact that she had no job as she could no longer tolerate the situation and did not wish to expose their son to the father's abuse of her.

[16] The mother also deposes that she naively thought that after she moved out that the father's anger would subside and they could co-parent but that this did not occur. Instead the father refused to communicate with her, changed his email address several times and blocked her on other email addresses and for a time also blocked her on his cell phone.

[17] The father denies that he was abusive in any way and it is his position that the mother is portraying him in this way to gain a strategic advantage in the litigation. It is his position that both parties were equally involved in their son's life prior to the separation.

[18] It is the father's position that after the separation the mother was quite willing for their son to share time with them equally. In August of 2018, it was the mother's prior counsel who sent him a draft separation agreement that provided for joint custody and a shared parenting schedule on a 2-2-3 basis. The agreement was never signed.

[19] The father deposes that from the summer of 2018 until April 2019 the parties followed that schedule except that at various times the mother would lash out and change the schedule. The mother deposes that the father was often late and did not follow the schedule.

[20] The mother deposes that the parties only began to follow the 2-2-3 schedule once she moved out in October 2018 and over the next 5 months she found the shared parenting to be very difficult due to the father's refusal to communicate with her and that the father's actions compromised their son's health and safety and put him at risk.

[21] On April 10th, 2019, the mother retained her current counsel who corresponded with the father advising him that the mother had already advised him her concerns about their son expressing that he wished to spend more time with the mother, that he was having nightmares, wetting his bed and showing signs of distress. The correspondence went on to state the mother was making an appointment with the doctor to obtain some guidance on how to deal with the issue and that the mother wanted to attend parenting mediation to resolve their outstanding issues. The father did not respond.

[22] The father admits that the mother had previously raised the issue of their son's anxiety and bedwetting but he did not see any such signs.

[23] On April 10th, the mother sent the father a text stating that she had already picked up their son from school despite this being his regular day in accordance with the parenting plan. The mother deposes that as the father would not communicate with her or discuss her concerns and in view of the child's wish to spend more time with her she changed the schedule in the child's best interests. The mother deposes that she was reluctant to go to court as she was afraid of the father's retaliation and was still hopeful that they could work things out.

[24] On the same day, according to the mother and her neighbour who witnessed the father's behaviour, the father attended at the mother's home, yelling and banging on her door. The child was inside and was afraid and crying. According to the mother, the father refused to leave and the police attended and then he left.

[25] The father admits that he attended at the mother's home. According to him, he spent 30 to 40 minutes trying to persuade the mother to allow the child to spend time with him in accordance with the schedule. When she would not relent he left.

[26] On April 22nd, the father retained counsel who confirmed the father wished the previous parenting schedule to resume and that he was agreeable to attending mediation and suggested three mediators.

[27] On May 1st, mother's counsel sent correspondence that the mother could not afford the cost of private mediation and suggested that the father pay for the mediation or attend for court based mediation. The father deposes that he became concerned that the mother was delaying and he lost confidence that mediation would resolve the issues.

[28] The father then commenced this litigation on his own behalf as he was no longer represented by his prior counsel.

[29] On May 28th the father requested an urgent motion date or early case conference by 14 B. The court rejected the request due to his affidavit of service being defective. The 14B also stated that opposition was expected. The father did not file another 14B with a completed affidavit of service or a consent from the mother's counsel.

[30] Although the father's request for an urgent motion was dismissed the endorsement provided that after the mother had been served with the Application and her Answer was filed, the parties could obtain an early case conference date.

[31] The mother's Answer was served on the father on June 20th at 12:41 p.m. The mother's counsel also agreed to a July 12th date for an early case conference.

[32] When the mother went to the school that day at 3:15 p.m. to pick up their son, she was advised that the father had already picked him up. The father then sent the mother a message advising that he had picked up their son and was keeping him until Friday and referred to the old schedule.

[33] On the next day June 21st, the mother served and filed her urgent motion.

Mother's Concerns and Father's Response

[34] The mother deposes that in the 5 months that the shared parenting schedule was in place between November 2018 and the beginning of April 2019 that in addition to the difficulties she encountered in communicating with the father, he did not properly care for their son and placed him in situations that placed his health and safety at risk.

[35] The mother outlines the following instances:

a) January 14, 2019: the father dropped off their son at school when he was clearly ill and the teacher contacted the mother. The mother picked up their son and took him to the doctor. The father did not respond to the mother's messages to get more information about the child's symptoms;

b) February 15, 2019: the father dropped off their son in front of her home. He did not ring the bell or stay with the child until she opened the door. The mother was not expecting the child to be dropped off as it was a professional development day and the father had not confirmed if he was dropping him off or when. The mother was in the shower and when she came out she heard frantic knocking and crying. When she opened the door the child was crying and the father was nowhere to be seen. The father does not deny leaving his son alone but explains that due to the conflict between the parties he did not want to see the mother but parked one house away and could see the child. If so, he does not explain why he would leave a 5 year old child crying on the doorstep;

c) March 9-10, 2019: the father took his son to ski at Horseshoe Valley Ski resort. He left the child in the car while he went to buy the ski lift tickets as his son did not want to leave the car. He deposes that he could at all times see the car and even provided a photo of the distance between the ticket booth and his car. It took longer to buy the tickets than the father anticipated and the child left the car. The mother was told about the incident by her son who said that he was scared and started to cry so he left the car and tried to find his father and that after he looked for some time he found his father. He told the mother that he was very scared and very worried that his father left him alone. The father does not express any concern about the safety risk posed to the child by leaving him alone in the car;

d) Leaving son alone: the mother deposes that her son has told her that the father leaves him alone with a walkie talkie while he attends to matters in the building or does repairs as part of his duties as a superintendent. The mother deposes that her son is afraid and leaves the apartment and goes looking for the father. The father denies this and deposes that if it is necessary for his to attend to urgent matters while their son is in his care he takes their son with him; and

e) March-April 2019: the mother deposes that their son became increasingly anxious and distressed and the family doctor recommended counselling. The mother contacted the father as he has extended medical benefits that would cover the cost but the father did not respond.

[36] The father deposes that he and the mother have different parenting styles. The father deposes that the mother is overprotective and her anxiety causes their son to become more anxious whereas his parenting style is driven by encouraging independence in his son.

[37] The child has been exposed to conflict between his parents that resulted in several attendances by the police.

[38] On December 18, 2018 the mother attempted to gain entry to the apartment and when she found her key did not work as the father had changed the locks, she pushed the door with such force that she broke the door frame and entered the apartment. According to the father, the child was inside crying and upset. The father yelled at her to leave and threw her coat at her and she was hit on the jaw with a phone. The mother deposes that the door was loose and damaged prior to the incident and the father deposes that he did not intend for the phone to hit the mother. The police were called and advised the mother that she had no legal right to enter the apartment. Regardless of the excuses or the exact nature of the incident, neither parent acted appropriately.

[39] The police were also involved in the April 10th, 2019 incident when the father attended at the mother's home and was yelling and banging on the door.

[40] Both parties relate various other incidents of arguments and conflict regarding financial issues and alleged refusals to provide financial documents, the child's documents or issues around travel consents.

Applicable Legal Principles

[41] Any proceeding with respect to custody or of access to child is determined with respect to the best interests of the particular child before the court in accordance with the factors set out in section 24 (2) to (4) of the Children's Law Reform Act.

[42] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not resolved at a trial.[1] However, the materials are often hastily prepared, incomplete and untested.

[43] The status quo should be maintained until trial unless there is material evidence that the child's best interests require an immediate change.[2]

[44] It is also well established that especially for young children frequency of contact is important to maintain a close bond with both parents and where parents reside in relatively close proximity a court has more options to create a parenting plan that ensures meaningful contact with both parents.

[45] I have considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations.

[46] I have also considered that a temporary order can have and frequently does have long term implications.

Discussion

What is the Status Quo?

[47] It is the mother's position that she was the primary parent prior to the separation. It is her position that although there was a shared parenting arrangement for about 5 months this was never legally agreed upon and she changed the schedule marginally in the beginning of April 2019 as she felt it was not in the child's best interests.

[48] The father relies on the fact that the parties agreed and maintained a shared parenting schedule for 5 months prior to the mother's unilaterally changing the schedule in April 2019 to gain a litigation advantage.

[49] Neither counsel took the position that the June 27th without prejudice order created a precedent or a new status quo.

[50] Based on the affidavits filed on this motion, I find that prior to the separation the mother was the primary parent. The father in his affidavit did not specifically respond to or deny the mother's primary role in the care of the child. I also find that the mother appears to be the parent who has been more attuned to the child's emotional needs.

[51] I find that although there was a 5 month period of shared parenting, this was more akin to a without prejudice order as neither party gave up any legal rights and there was no court order or agreement signed.

[52] I find that based on the history that the mother's assertion that the father would not permit her to leave with the child unless she agreed to a shared parenting arrangement is credible. I also find credible the mother's assertion that the father told her that he wanted shared parenting and that he would not pay child support.

[53] The father states that he did not pay support when the mother moved out as he thought that as they shared custody they each paid for their son's expenses while he was in their respective care.

[54] Although the father now deposes that he understands his child support obligation, since this litigation commenced he has not paid the mother any support despite her being unemployed.

[55] The father further refused to engage in mediation when the mother's counsel requested he pay the cost or agree to attend court based mediation where the cost of would be geared to income.

[56] Based on the father's behaviour to date, it does support the mother's position that he appears to be motivated by financial considerations.

[57] I further find that the mother did not change the shared parenting schedule to gain a tactical advantage. If the mother had wished to gain any litigation advantage she could have immediately commenced a court proceeding when the parties separated as there was no agreement in place and she was in a strong position to claim she was the primary parent and to claim child support. Instead, the mother was prepared to try the shared parenting plan but almost immediately there were issues of concerns as to the viability of the arrangement given the lack of communication between the parties and her concerns about the father's parenting.

[58] The mother did not commence court proceedings but attempted to speak to the father about her concerns regarding the child's heightened anxiety but the father ignored her. The mother's counsel wrote to the father's counsel suggesting parenting mediation but the father instead commenced this litigation. He offers no logical explanation as to why he would not agree to the mediation which may have resolved the parenting issues.

[59] Given the father's lack of communication and refusal to enter into mediation, the mother could have commenced court proceedings but instead she marginally changed the schedule in the hope that spending a few extra days a week with her would allay the child's anxiety. According to the mother, the child has adjusted to the schedule.

[60] Despite the father commencing this court proceeding and obtaining an early case conference, on June 26th the father attended at the school and removed the child on the basis that this was his day on the 2-2-3 day schedule that had now not been in place since early April.

[61] Although it is understandable that the father was upset that the mother had unilaterally changed the schedule in April, this was the reason he commenced court proceedings. His actions in then taking the child and trying to revert to the prior schedule was his attempt to gain a tactical advantage and would have created chaos in the child's life as each parent would then be rushing to the school to remove the child. It is the father's actions that required the mother to bring the urgent motion on June 27th so a court ordered schedule could be put into place.

[62] I find that the actual status quo should be based on the pre-separation situation before either the 2-2-3 schedule or the schedule the mother implemented in April 2019.

[63] Despite this status quo, namely a finding that the mother was the primary parent, the court can still consider the circumstances since the separation if there is a determination that it is in the child's best interests to do so.

What Temporary Order is Consistent with the Status Quo and the Child's Best Interests?

[64] I find that the father's actions in leaving a 5 year old child alone in a car at a busy ski resort and leaving him alone on the mother's doorstep show a serious lack of judgement. I find that given these incidents I have concerns that he is also leaving the child alone in the apartment when he attends to his duties as a superintendent.

[65] I find that the father diminishes the mother's valid concerns about the impact of the parties' conflict on his son or he simply does not understand the impact.

[66] For example, the father deposes that, contrary to the mother's assertion that their son started to show signs of aggression and distraction at school in October 2018, he has exhibited these issues since commencing kindergarten in September 2017. However, both parties depose that their relationship was problematic, albeit for different reasons, a few years before they separated, it is therefore quite probable that the effects of the child's exposure to the tension and stress in the home would impact the child not just at the time of the physical separation but throughout his school career.

[67] The father's refusal to communicate with the mother has resulted in the mother not being aware of the nature of the child's illness when he simply dropped the child off at school. His refusal to reply to the mother's request that he use his medical benefits to cover the cost of counselling for their son has resulted in their son not being in counselling.

[68] I find that given these concerns, that the status quo favours an order that the child remain in the primary care of mother and that she be the parent who has the final decision making authority.

[69] Although with the passage of time and the consent order the parties agreed to regarding communication and parenting education it may be that the parties will be able to co-parent and jointly make decisions in the future. However, I find that at present time they are unable to do so.

[70] I find that the mother is the parent who has been the parent that has sought out professional assistance for their son and if counselling is still being recommended then there should be no impediment to her making the necessary arrangements without the necessity of obtaining the father's consent which to date has not been forthcoming.

[71] Also given some of the problems the child is exhibiting in school, the mother should be able to follow up with any suggestions or assessments recommended by the school or the child's doctor without the necessity of obtaining the father's consent as he does not appear to appreciate the seriousness of the issues and continues to blame the mother for being overprotective.

[72] I expect the mother to consult with the father regarding any issues pertaining to their son, but if they do not agree then she will have final decision making ability.

[73] I find that the present schedule provides the father with significant parenting time to continue their relationship and strengthen their bond while maintaining his primary home with the mother.

[74] However, although not specifically requested by the mother's counsel, based on the affidavit materials and my findings about the father's care of the child, I find that it is necessary for the well-being and safety of the child that there be an order in place that the father not leave child alone while he is in his care.

Other Issues Raised at the Case Conference

[75] After hearing submissions on the motion, I advised counsel that given the time of day and my wish to further review the extensive motion materials that I would reserve my decision. Both counsel requested that a case conference be held regarding some of the other issues namely, summer access, travel outside of Canada and child support.

[76] As a result of the discussion at the case conference, both counsel were optimistic that they would be able to reach an agreement. Unfortunately, as the father needed to leave to pick up their son, an agreement on these other issues could not be reached.

[77] Any agreement should be submitted by 14B so there is a court order in place.

[78] If counsel and the parties are unable to reach an agreement on the issue of summer access, travel outside of Canada and child support, an early motion date should be obtained from the trial coordinator. Any motion will be limited to oral submissions of 15 minutes on behalf of each party and 5 minutes for any reply. The parties can rely on the affidavits and financial statements already filed and any further affidavit are limited to 5 pages in length in view of the discrete issues.

Order

[79] There will be temporary order on the motion as follows:

1. The Respondent mother shall have custody of the child Odin Gaviluta born […], 2013.

2. The Applicant father shall have access to the child on the following terms and schedule:

• Week 1 – from Monday after school or 3 p.m. to Tuesday at school or 9 a.m. and then from Friday after school or 3 p.m. to Monday morning or 9 a.m.; and
• Week 2 – from Thursday after school or 3 p.m. to Friday at school or 9 a.m.

All pick up and drop offs to be at the child's school, daycare or camp unless mutually agreed otherwise.

The Respondent shall not leave the child alone in a car, his home or elsewhere unless he is present or another adult is present.

3. The Applicant mother shall consult with the Respondent father regarding any major decisions regarding the child such as medical, education, counselling and extra-curricular activities. If the parties do not agree the Respondent mother shall be permitted to make the final decision without the consent of the Applicant.

4. If the parties reach an agreement on any other issues a 14B can be submitted.

5. If counsel and the parties are unable to reach an agreement on the issue of summer access, travel outside of Canada and child support, an early motion date should be obtained from the trial coordinator. Any motion will be limited to oral submissions of 15 minutes on behalf of each party and 5 minutes for any reply. The parties can rely on the affidavits and financial statements already filed and any further affidavit are limited to 5 pages in length in view of the discrete issues.

[80] As the successful party, the Respondent is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Respondent shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Applicant shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Respondent's costs submissions. All submissions to be filed with the trial co-ordinator.

Released: July 18, 2019

Signed: Justice Roselyn Zisman

Footnotes

[1] Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean, 2014 ONSC 7332 at para. 11

[2] See above and cases cited therein