DATE: May 13, 2021 COURT FILE NO.: D40753/20
ONTARIO COURT OF JUSTICE
B E T W E E N:
F.B. Applicant
AYESHA HUSSAIN, for the APPLICANT
- and -
C.H. Respondent
NATALIA DENCHIK, for the RESPONDENT
HEARD: MAY 11, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Introduction
[1] This was a motion brought by the applicant (the mother) for temporary parenting orders regarding the parties’ 4-year-old daughter (the child).
[2] The mother seeks temporary orders for primary residence of the child, to have sole decision-making responsibility and for a fixed schedule for day parenting time for the respondent (the father), with parenting terms and conditions.
[3] The father did not bring a cross-motion despite having been given the opportunity to do so. He opposes the mother’s motion.
[4] The mother filed two affidavits in support of her motion. The father filed his own affidavit and affidavits from his adult son and a community member.
[5] The sole issue on this motion is what parenting orders are in the child’s best interests.
Background Facts
[6] The mother is 48 years old. The father is 58 years old.
[7] The parties have adult children from different relationships.
[8] The parties lived together from November 2013 until March 2020.
[9] The parties had the one child together.
[10] The child has resided with the mother since March 2020.
[11] The father had regular parenting time with the child until June 2020, including overnights. Parenting time stopped for about 6 weeks. Then, the father had day parenting time with the child. Overnight parenting time resumed in the fall of 2020, until February 2021. The father has had no parenting time since March 2021.
[12] The mother issued her application on October 22, 2020. The father filed his Answer/Claim on January 18, 2021.
Positions and Evidence of the Parties
The Mother
[13] The mother claims that she has always been the child’s primary caregiver.
[14] The mother deposed that the father was verbally, psychologically and financially abusive to her during their relationship. She said that the father would often kick her and the child out of the family home – one time in the freezing rain, leaving them homeless for a day. She said that the father would force himself sexually on her in the presence of the child. She alleged that the father frequently became drunk and was verbally abusive and demeaning to her in the presence of the child. She said that he would remove the child from daycare to take the child to his clients’ homes. [^1]
[15] The mother says that the father lacks any respect for her and that their communication with each other is very poor.
[16] The mother deposed that the parties disagree on too many issues for a joint decision-making responsibility order to be in the child’s best interests. She says that she has always been the parent to make major decisions for the child and has made them responsibly. She seeks an order for sole decision-making responsibility for the child. She is agreeable to prior consultation provisions in the order.
[17] The mother states that any time she has agreed to overnight parenting time with the father, he refuses to follow their agreed-upon schedule – often overholding the child. He also refuses, she says, to adhere to the child’s bedtime routine, leaving the child exhausted the next day. She said that he does not follow medical direction. For instance, the child recently had a bad rash and was prescribed prescription medication. The father would not apply it and inserted Polysporin in the child’s vagina, causing her to return to the mother uncomfortable and in pain. The mother asked the father to stop doing this. He refused.
[18] The mother deposed that, contrary to their agreements, the father kept taking the child with him to his clients’ homes, despite her concern about the child being exposed to COVID-19. The father’s attitude, she says, is that she cannot tell him what to do with the child during his parenting time.
[19] The mother raised other concerns about the father’s care of the child, including leaving her in wet diapers for too long, drinking and smoking while caring for the child and not properly supervising the child.
[20] The mother says that she wants to work towards the father having overnight parenting time again but first wants to see if the father will comply with court orders and follow the child’s routine and medical recommendations. She proposed that the father have parenting time for full days on alternate Saturdays and Sundays and on every Wednesday for four hours.
[21] The mother seeks conditions that the father not:
a) smoke or consume alcohol in the presence of the child; b) remove the child from the Greater Toronto area without her prior consent or prior court order; c) take the child to the residences of his clients; d) work during his parenting time; e) disparage the mother to the child; f) discuss the litigation with the child; g) enroll the child in any program or activity without her written consent; or h) communicate with her, other than in writing, and limited to matters concerning the child.
The Father
[22] The father provided a different narrative.
[23] The father claimed that the parties equally parented the child when they cohabited. He claimed that they got along well until they separated. He deposed that he made the medical decisions for the child during the two years prior to their separation.
[24] The father agreed, in submissions, that the parties communicate poorly and that a joint decision-making responsibility order is not in the child’s best interests. His counsel described the animosity between the parties as overwhelming.
[25] The father did not bring a motion for sole decision-making responsibility. However, it appeared that he was seeking such an order during submissions.
[26] The father denied the mother’s allegations of abuse. He denied denigrating the mother to the child.
[27] The father states that he is very capable of looking after the child’s needs and denied any allegation that he does so improperly.
[28] The father’s adult son is 28 years old and lives with the father. He deposed that his father is an excellent parent, who made sure that he had everything he needed growing up. He observed how much the father loves the child and stated that the child and his father have a strong bond. He said that he misses his sister.
[29] One of the father’s clients also filed an affidavit in support of the father. He described the father as “an honest and upright person” who has a remarkable attitude towards his children. The father would often bring his children to work, he said, and was attentive to them.
[30] The father was very critical of the mother. He alleged that she:
a) is trying to alienate him from the child; b) is motivated by revenge because he refused to marry her; c) dictates terms of parenting to him; d) has unjustifiably withheld the child from him; e) speaks negatively to the child about him; f) has tried to undermine his business by demeaning him to his customers; g) has interfered in his relationships with other women; h) has a harsh and punitive parenting style; and i) has violated Covid-19 health precautions – putting the child and him at risk of harm.
[31] The mother denied each of these allegations.
[32] The father’s position on parenting time was a moving target on this motion. This was unfair to the mother as it did not allow her to specifically address the father’s changing parenting time requests in her evidence.
[33] The father did not bring a notice of motion seeking specific parenting time.
[34] Paragraph 31 of the father’s affidavit reads as follows:
I am seeking a court Order to have quality parenting time within my daughter, plus making up for losing the last 11 months of parenting time with the child, namely I would have the child Sunday evening until Friday evening and if the court says the mother’s OK, then she can have weekends, she says she has no time to see the child during the week, I’ve got lots of free time because of covid19 business loss.
[35] Near the close of submissions, the father’s counsel indicated that the father was seeking parenting time on alternate weekends from Friday at 3 p.m. until either Monday morning or Sunday evening. He also seeks parenting time with the child two evenings each week, including one overnight.
[36] Counsel for the father then said that the father was seeking equal parenting time.
[37] The father seeks virtual parenting time with the child every other day.
[38] The father asked, for the first time in submissions, that the parties share transportation responsibilities for the child. He also asked that the case be referred to the Office of the Children’s Lawyer.
Legal Considerations
[39] Justice Roselyn Zisman recently set out the test to apply for temporary parenting orders in paragraphs 26 to 30 of Munroe v. Graham, 2021 ONCJ 253 as follows:
[26] Any proceeding with respect to children 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), as amended, of the Children's Law Reform Act.
[27] 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, the issues will be resolved at a trial. See: Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean, 2014 ONSC 7332 at para. 11.
[28] The status quo should be maintained until trial unless there is material evidence that the child’s best interests requires an immediate change. See: above and cases cited therein
[29] I have considered the case law and the factors set out in section 24, as amended, of the Children's Law Reform Act. Despite the change in the legislation, the test for a parenting order or contact order as outlined in previous case law with respect to custody and access remains relevant.
[30] The challenge on a temporary motion is to make such an important decision based on affidavit materials that have not been tested by cross-examination and on an incomplete record. A temporary order can have and frequently does have long term implications.
[40] Subsection 24 (2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining her best interests.
[41] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her. See: Phillips v. Phillips, 2021 ONSC 2480.
[42] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
33. 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
[43] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.
[44] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This was recently interpreted by the Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305 as follows:
(3) Maximum contact
[30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.
[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:
16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[32] The current provision of Divorce Act, is more direct:
16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.
[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
[45] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.
[46] The court has taken all these factors into consideration in determining what parenting orders are in the child’s best interests.
Discussion
[47] It is not contested that the mother has been the child’s primary caregiver since at least March 2020. The court finds that it is in the child’s best interests, on a temporary basis, to remain in her primary care.
[48] The mother has made all the major decisions for the child since at least March 2020 in a responsible manner.
[49] The parties agreed that the conflict and poor communication between them means that a joint decision-making responsibility order is not in the child’s best interests. The court agrees. The allegations the parties have made against the other reveal that there is not even the modicum of trust required for a joint decision-making responsibility order to be in the child’s best interests.
[50] The father did not bring a motion for temporary decision-making responsibility. He only opposed the mother’s request. This leads to the question of whether any temporary order should be made regarding decision-making responsibility.
[51] The court finds that it is in the child’s best interests to make a temporary decision-making responsibility order in favour of the mother for the following reasons:
a) The parties disagree on fundamental parenting issues such as daycare, health treatment and the child’s sleep schedule. Decisions need to be made about these issues. b) The father did not deny that he frequently removed the child from daycare to go to work with him over the mother’s objections. c) The father still feels that he should be able to take the child to his clients’ homes despite the health risks of doing so. d) The father did not deny that he disregarded the mother’s requests to comply with the child’s sleep schedule. The mother attached texts from the father confirming that the child was staying up very late at night and sleeping in very late the next morning. The father was dismissive of her requests to maintain a consistent sleep schedule for the child. e) The father did not deny that he sometimes overheld the child, contrary to his agreements with the mother. This led to conflict and instability for the child. f) The father did not deny that the mother gave him prescription medication for the child’s rash and that he refused to administer it. He did not deny inserting Polysporin into the child’s vagina. g) The father’s attitude is that he is an excellent parent and the mother cannot tell him what to do – even if what she is asking is best for the child. h) These actions give the court concern about the father’s parenting judgment. i) The court finds, at this stage, that the mother is the parent better able to provide for the child’s physical, emotional and psychological safety, security and well-being.
[52] The father provided no corroborative evidence for any of his allegations against the mother. She denied them all.
[53] The mother’s allegations against the father, if true, constitute family violence as defined in subsections 18 (1) and 18 (2) of the Act [^2]. At this point, this evidence is untested and there is no independent corroboration of the allegations. However, given the tone of the father’s texts and unilateral conduct, the court is not dismissing the real possibility that there is a power imbalance between the parties and that the father has engaged in family violence against the mother. It is in the child’s best interests to structure a parenting order to minimize the parties’ contact with one another and protect the child from adult conflict.
[54] There is no evidence to support the father’s claims, at this stage, of parental alienation by the mother. The child has a positive relationship with the father. It is unlikely that they would have this positive relationship if the child was being alienated from him. The mother has proposed multiple parenting plans to the father. She has expressed legitimate concerns about the father and was justified in seeking conditions regarding his overnight parenting time. She was prepared at this motion to move towards overnight parenting time if the father followed court orders and kept the child safe; these are reasonable expectations.
[55] There was no independent corroboration of several of the mother’s concerns about the father’s parenting of the child (such as alcohol use and smoking in front of the child, demeaning her to the child and lack of supervision of the child). The father denies doing any of this. At this stage, these concerns can be addressed through parenting terms in the order.
[56] There is no question that the father loves the child and the child loves the father. There is no evidence that the father would ever deliberately harm the child.
[57] The child has a positive relationship with her 28-year old half-sibling who swore the affidavit for this motion. The court did not receive any evidence regarding the nature of the child’s relationships with other family members.
[58] The father’s witnesses observed parenting strengths in the father.
[59] The court will order temporary parenting time for the father that will gradually increase. This is to give the father the opportunity to show the court that he will comply with the court order, have safe, positive and responsible parenting time with the child and treat the mother in a respectful manner. If he does not do this, then the mother may return the matter to court before the increases in parenting time take place.
[60] The parenting time order will start with full day visits on alternate weekends, as suggested by the mother. After three of these weekend visits, the parenting time shall increase so that the father has one overnight on alternate weekends. After four further weekend visits, the parenting time shall increase to two overnights on the alternate weekends. The Wednesday parenting time proposed by the mother will take place weekly.
[61] The court will also order that the father have virtual parenting time with the child twice each week at times to be agreed upon by the mother.
[62] The court finds that the temporary conditions for parenting time sought by the mother, as set out in paragraph 21 above, are in the child’s best interests, with some modifications.
[63] The father has always transported the child for parenting time. No evidence was led to indicate why this arrangement should be changed.
[64] In submissions, the father asked that the case be referred to the Office of the Children’s Lawyer. Again, no notice of motion was brought. The request was opposed by the mother. At this time, the court will not make this order. The child is only four years old. Appointing the Office of the Children’s Lawyer will significantly delay the case. Third party involvement with a family can be intrusive and stressful. The father did not meet the onus of showing that the benefits of making this referral would exceed the detriments.
Conclusion
[65] A temporary order shall go as follows:
a) The mother will have sole decision-making responsibility for the child. b) The mother will consult with the father before making any non-emergency major decisions for the child. c) The child’s primary residence will be with the mother. d) The father shall have parenting time with the child as follows: 1. Starting on Saturday, May 22 and Sunday May 23, 2021, every other Saturday and Sunday from 9 a.m. to 5 p.m. 2. Starting on Saturday, July 3, 2021, alternate weekends from Saturday at 10 a.m. until Sunday at 5 p.m. 3. Starting on Friday, August 27, 2021, alternate weekends from Friday at 10 a.m. until Sunday at 5 p.m. 4. Every Wednesday from 3 p.m. until 7 p.m. 5. Virtual parenting time twice each week at times to be agreed upon by the mother. e) The father shall transport the child for the parenting time exchanges. f) The father shall not remove the child from the Greater Toronto area without the prior written consent of the mother or prior court order. g) The father shall not consume alcohol while exercising his parenting time with the child. h) The father shall not smoke in the presence of the child or smoke indoors when he is exercising his parenting time. i) The father shall follow any medical direction given to him by the mother for the child. He shall give the child any prescribed or other medication that the mother asks him to give to the child. j) The father shall follow the child’s sleep routines to be set out by the mother. k) The father shall use his best efforts to not work during his parenting time. l) The father shall not take the child to work – specifically to the homes of any of his clients. m) The father shall not enroll the child in any program or activity without the mother’s prior written consent. n) The parties shall not discuss the litigation with the child. o) The parties shall not discuss the other parent in a derogatory manner in the child’s presence. p) Communication between the parties shall be in writing, limited to issues regarding the child and be respectful. q) The father’s request to refer this matter to the Office of the Children’s Lawyer is dismissed.
[66] If either party seeks costs, they shall serve and file written submissions by May 27, 2021. The other party will then have until June 10, 2021 to serve and file their written response (not to make their own costs request). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.
[67] The matter will return to court on August 4, 2021 at 10:45 a.m. for a case conference. Updated briefs are required.
Released: May 13, 2021 Justice S.B. Sherr
[^1]: The father has a business cleaning aquariums. [^2]: The definition of family violence in subsection 18 (1) of the Act reads as follows:
“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;
Subsection 18 (2) of the Act amplifies this definition and reads as follows:
“Family violence”
(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
