Court File and Parties

COURT FILE NO.: FS-23-33639 DATE: 20230320 ONTARIO SUPERIOR COURT OF JUSTICE SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Suleiman Junaidu Sadiq, Applicant (Moving Party) AND: Maryam Lawal Musa, Respondent (Responding Party)

BEFORE: Kristjanson J.

COUNSEL: David Tobin, Counsel for the Applicant Murray Teitel, Counsel for the Respondent

HEARD: At Toronto by videoconference March 7, 2023

Endorsement

Kristjanson, J.

[1] This is a motion for interim shared parenting time brought by the applicant father. The parties were married in 2019. They have a 17-month-old child, AB. The parties separated on November 5, 2022 but lived separate and apart in their home until December 31, 2022, when the father was charged with assault. The mother unilaterally relocated with the child to Richmond Hill, closer to her work and the child’s daycare. The mother then withheld AB from all contact with his father. Limited daytime parenting was reestablished only after two urgent court attendances. The mother resists any overnight time with the father. At present, on an informal basis, the father parents AB from 9:30 a.m. to 5:30 p.m. on Mondays and Thursdays.

[2] There are three main issues:

(a) What is the effect of the family violence allegations in setting the parenting time schedule, and does it mean that there should be no overnight parenting time?

(b) What is the effect of breastfeeding in setting overnight parenting time? Does the mother’s religious freedom, as a Sunni Muslim, require that she be able to breastfeed every night so that the father should not have overnight parenting time?

(c) Is a shared parenting time schedule in the best interests of the child?

Background Facts

[3] The parties are parents of a 17-month-old child, AB, born in September 2021. The mother took maternity leave until September 2022, when she returned to work and AB started daycare. The parents separated November 5, 2022 but continued to live under the same roof until December 31, 2022. Until then, AB was cared for by both the father and the mother daily. The father worked at home, and participated in nearly all aspects of AB’s care, including bathing him, feeding him, putting him to sleep, changing his diapers, and comforting him when he cried. He looked after AB when he was too sick for daycare.

[4] AB began eating solids at 6 months. AB now attends at daycare for around 10 hours a day, five days a week, where he eats all manners of food and consumes liquids though a bottle. He continues to breastfeed at night. The father says that if the mother expresses milk, he will provide the milk in a bottle to AB.

[5] Following separation, the father attempted to negotiate a parenting plan through his lawyer. Despite multiple requests between November 21, 2022 and December 21, 2022, the mother refused to discuss a parenting plan for AB. The mother proposed a parenting schedule for the first time on December 23, 2022 in which she refused any overnights between AB and the father. Her lawyer wrote comparing the father’s role to that of the daycare, stating: “Father can mimic the daycare activities, morning routine, nap times, diaper changes, play time, afternoon snack, etc. that take place at the daycare and mother can then have [AB] at 6:00 p.m. to do the night time routine, including breastfeeding. and throughout the night” (emphasis added).

[6] On December 27, the father’s lawyer advised that the father would bring an urgent motion to establish a parenting schedule, and stated that the father did not agree to AB being relocated before a parenting schedule was established.

[7] The mother called the police in the early hours of December 31, 2022. The mother alleged that the father hit her leg with the door as he was closing it. The father was charged with four counts of assault, three of them historical (more than a year before AB’s birth, in August and September 2020).

[8] After charges were laid the mother unilaterally relocated with AB to Richmond Hill, contrary to the father’s express wishes and without a court order. The mother withheld AB from any contact with the father. It was only after urgent court intervention, a To Be Spoken To Court appearance on January 9, 2023 and an urgent case conference on January 17, that the mother facilitated limited parenting time between the father and AB, and then only during the daytime. She argues that AB’s breastfeeding, her religious beliefs, and the family violence, mean there should be no overnight parenting time.

[9] The father seeks a regular parenting schedule where AB will be able to spend meaningful time with each parent but not be away from either parent for extended periods.

[10] I find that the father should have significant parenting time, including overnights. I make an order graduating to shared parenting, which I find to be in AB’s best interests and one that reflects the status quo before the mother relocated to Richmond Hill.

Issues

[11] The only issue is what interim parenting schedule and ancillary terms are in AB's best interests. The father seeks a graduated schedule providing him with overnights with AB, stepping up to a shared parenting schedule, where neither party is away from AB more than three nights. He relies on the history of care, his ability and willingness, and AB’s best interests in maintaining a strong bond with both parents.

[12] In her factum, the mother states: “The Mother opposes 50/50 parenting time because she alleges (and he “vehemently” denies) that he is a pathological wife-beater, wife-abuser and humiliator, and if given an equal role in parenting, he will pass these traits on to AB and will otherwise be a toxic influence upon AB or perhaps even physically harm him.”

[13] The mother’s other reasons for opposing a shared parenting schedule or any overnights at this time relate to breastfeeding. She is breastfeeding AB, and intends to do so until he is 24 months of age, or at least until she herself can feed him a bottle without the child wanting the breast. She also asserts a religious right to breastfeed.

[14] The mother proposes an interim parenting schedule giving the father three 8-hour days, two during the week when the son is at daycare, and one on the weekend.

Legal Framework

[15] The parenting time order is to be made in the best interests of AB: the only test is the best interests of the child. I must look at the issue from AB’s perspective, not from the perspective of the parents. Section 16(2) of the Divorce Act provides that primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being. A child should have as much time with each parent as is consistent with the best interests of the child (Divorce Act, s. 16(6)). And as the Supreme Court held in Barendregt v. Grebliunas, 2022 SCC 22 at para. 146, the Divorce Act recognizes that findings of family violence are a critical consideration in the analysis of the best interests of the child.

[16] This is a one-hour temporary parenting time motion. As stated by Kraft J. in Shokoufimogiman v. Bozorgi, 2022 ONSC 5057 at para. 32: “A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change…”

Analysis

[17] The three main issues raised are the child’s best interests and family violence, the desirability of breastfeeding/religious aspects of breastfeeding as it relates to overnight time with the father, and the terms of the parenting time order.

Family Violence

[18] Charges were laid against the father after the mother called police on December 31, 2022. The father was charged with the alleged assault on December 31, 2022, and three historical charges relating to conduct in August and September 2020, before AB’s birth. The allegations leading to the historical charges were not reported to police at the time. The criminal matter is proceeding, and no conviction has been entered. The mother’s affidavit evidence describes the incidents leading to the charges (including an attempted choking), stating the father has a violent and hair-trigger temper. She submits that the father has been emotionally, physically, and financially abusive to the mother.

[19] The father denies all allegations of family violence. This is not a family with a history of CAS or police involvement.

[20] The Divorce Act, ss. 16(3)- (4), provides that the court must consider, among other factors, the nature, seriousness and frequency of the violence and when it occurred; whether the violence was directed toward the child or the child is directly or indirectly exposed; and the physical, emotional and psychological harm or risk of harm to the child. The court must also consider the effect of family violence on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

[21] The existence of criminal charges does not determine the issues of temporary parenting time. Where there are concerns of the strength of evidence relating to the alleged violence, the court should exercise caution: Batsinda v. Batsinda, 2013 ONSC 7869 at para. 29; Ishkanian v. Ishkanian, 2020 ONSC 3605 at paras. 64-67.

[22] It is particularly difficult to deal with allegations of family violence based only on conflicting affidavit evidence on a one-hour parenting motion. The issue of conflicting affidavits regarding allegations of family violence was addressed by Justice R.S. Jain in Pereira v. Ramos, 2021 ONSC 1207, where she ordered shared parenting. Jain J. held that she was not making any findings about the party’s credibility with respect to the allegations, but was considering the effect of any family violence on the ability and willingness of the party to care for and meet the needs of the child. The same applies here. Justice Jain held at para. 25:

The court must consider factors relating to family violence when making a parenting order as set out in s. 16 (3) (j) and (4) of the Act. In a motion, because of conflicting affidavits, it can be difficult for the court to determine credibility in regard to allegations of family violence. However, in this motion I am not making any findings regarding the party’s credibility with respect to their allegations of family violence. To be clear, I am not deciding or making findings of fact regarding each party’s versions of the family violence that has occurred. Instead, I am considering the “impact” of any family violence on the “ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.”

[23] The evidence includes affidavits of the parties and of the mother’s family and a friend. The conflicting allegations in the affidavits have not been tested by cross-examination, and caution is required before making factual findings on disputed matters.

[24] Aspects of the mother’s affidavit are improper and inadmissible. The affidavit comments directly about the credibility of the father. The mother states of the father that “he is knowingly not telling the truth”, and that his denial of assaults “indicates that he does not intend to come to terms with the fact that he is a serious wife-beater and seek treatment”. The mother also offers hearsay evidence, for example, things that her mother-in-law allegedly told her about the father's alleged assaultive tendencies. Credibility assessments, gratuitous editorial commentary and this kind of hearsay are not proper evidence, and I strike these comments, which are in the highlighted version put into evidence by the father.

[25] The affidavits of the mother's mother, two sisters and friend, none of whom live in Toronto, all relate to September 2020 phone calls. They contain double and triple hearsay. The deponents fail to express their belief in the truth of information that they have received from third parties. This evidence is in some cases inadmissible, and in other cases can be given little weight. When these relatives and friend are reciting the other half of a conversation to which the mother has directly deposed the hearsay problem is somewhat attenuated, but there are concerns about oath-helping, and that the statements about family violence hinge solely on the mother’s reports in telephone conversations. I find that these affidavits are not helpful on this one-hour motion.

[26] AB should not be deprived of meaningful overnight and shared parenting time based on the evidence before me. The father denies all allegations of family violence. The mother has made no allegations that family violence has been directed toward AB. The mother has conceded that the father is able to care for AB for extended periods of time, in part by accepting he is competent to parent for full days, just not overnight. The nature, seriousness and frequency of the family violence alleged is typical of many family court proceedings. Three of the incidents pre-date AB’s birth. And the parties are now separated. The alleged family violence regarding the mother should not be an issue now that they do not live together and have minimal contact: A.P. v. P.P., 2021 ONSC 6540.

[27] In Ranjani v. Ranjani, 2021 ONSC 4784 at para 17, Justice Glustein considered allegations of family violence against the father, holding in para. 51 that “[the mother’s] counsel submits that the court should be “cautious” and not grant overnight parenting given the serious allegations of family violence. However, I find that the court must be just as “cautious” not to deprive children of parenting from both parents unless satisfied that the presumption in favour of increased contact with the parent is rebutted on the evidence before the court.” The same comments apply here.

[28] I am satisfied that there is not a risk to AB experiencing physical, emotional, or psychological harm when he is being cared for by the father. I do not find that the family violence alleged would affect the ability and willingness of the father to care for and meet AB’s needs, considering the totality of the evidence before me.

Overnight Parenting Time vs. Night-time Breastfeeding

[29] The biggest issue in oral argument was the mother’s argument that AB should breastfeed at night; he is restless, presently waking six times a night and only soothed with the breast, not a bottle. She intends to breastfeed until AB is 24 months of age, or at least until she herself can feed him a bottle without the child wanting the breast. She also asserted a right as a Sunni Muslim to breastfeed until the child reaches the age of 2 ½.

[30] While acknowledging that AB eats solid foods and drinks milk and juice in the daytime, the mother is of the view that AB should breastfeed every night, and to require AB to take a bottle from his father, would, in her words, turn heaven into hell. She states dramatically:

The nighttime breastfeeding is heaven and happiness for AB…Why any father would want to replace his son's joy with inconsolable crying, distress, fear, and wanting to be with his mother at her breast, and only being able to put the baby back to sleep by traumatizing and exhausting him, is only explained by that father putting his own ego, willingness to hurt the child, desire to hurt the mother and thinking that paying child support is anathema, ahead of the child's interests.

[31] The nature of the mother’s arguments on the importance of breastfeeding, and why the father should not have overnight parenting as a result, are shown by the following (sequential) headings in her factum:

• Why Overnight Parenting by the Father Would Be the Worst Thing that Could Happen to [AB]
• Currently, Every Night for [AB] is Spent in Breastfeeding Bliss
• The Torture that Would Be Inflicted on [AB] if the Father's Request for Overnight Parenting were Granted
• What the Father Fails to Understand
• In short, the Father's plan is to replace nightly heaven with nightly hell for his son.

[32] There is simply no reason for a parent to use such inflammatory language, when the court is assessing the best interests of a child. AB is 17 months. This mother and father must co-parent for decades. Such poisonous positioning at the outset of litigation has the potential to haunt and distort the proceedings, and potentially the child’s life trajectory. The tenor of the mother’s position demonstrates that the mother does not understand and appreciate the role of the father in their son’s life. Yet AB needs, and deserves, a strong bond with his father – who the mother accuses of torturing his son, and planning “nightly hell” for his son. My sincere hope is that the mother can move beyond demonization of the father, for the sake of the son’s long-term stability and happiness.

[33] The mother’s highlighting of the benefits of breastfeeding ignores that AB has much to gain from a loving relationship with his father, including overnights.

[34] The mother has provided an opinion from Dr. Jack Newman, a paediatrician and director of the International Breastfeeding Centre. He is qualified as an expert on breastfeeding, and I admit the evidence as relevant and necessary and otherwise meeting the test in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at paras. 19, 23-24.

[35] Dr. Newman’s evidence is that at AB’s age, nighttime breastfeeding is primarily for comfort and reassurance, not nutrition. Dr. Newman’s evidence is that both Health Canada and the Canadian Paediatric Society recommend weaning from the bottle by 9 to 12 months, and avoiding bottles at nighttime. Finally, his evidence is that “the mother's plan of gradual introduction of the bottle at night is unlikely to work, resulting only in constant crying on the part of the baby.” This evidence is consistent with the ability of the father to parent the child at night, although rather than providing the child with expressed milk in a bottle, at this age, other comfort might be preferable. It also demonstrates that the mother’s alternate plan – that she will attempt to gradually introduce the child to a bottle while continuing to breast feed and the father could have overnights when this is done– is not in the child’s best interests, and will result in continued and significant distress to the child.

[36] Although I admit the evidence, I find that the instructing letter seeking the opinion was improper. The lawyer provided several factual assumptions for the basis of Dr. Newman’s opinion which were not established in evidence, and which the lawyer did not attempt to establish. For example, the instructions to the expert state that AB has adenoids, AB’s family doctor recommends 13 hours of sleep and he only gets 12, that “the father has never been involved in dealing with the child at night,” and that the respondent mother “believes that if Mr. Sadiq were to have the child overnight, AB would be inconsolable and would end up falling asleep again out of exhaustion, and that the lack of nighttime nutrition and disturbed sleep would affect his development and daytime learning.” It was inappropriate for the lawyer to provide information like this (including the “belief” of the mother in a litany of long-term life impacts on the child were the father to have overnights) with no attempt to prove the facts supporting the assumptions set out in lawyer’s letter. Unproven facts can undermine the foundation of the opinion, but in this case Dr. Newman’s opinion was not dependent on these unproven facts.

[37] The case of Pelkey v. Henley, 2022 ONSC 6477 is instructive given the similarity in the position of the mother in that case. The mother in Pelkey asked that the court not expand the father’s parenting time until the child turned two, to avoid disrupting the child’s breastfeeding routine. Justice Dubé rejected this position, holding at para. 27:

[W]hat she fails to fully appreciate is that while routine, predictability, and breastfeeding is very important, of even greater importance for [the child] at this early age is the development of a deeper, stronger and more comprehensive bond with his father. With respect to breastfeeding, this is but one of many factors to consider when deciding whether to expand parenting time and is weighed against the need to foster a loving relationship between the child and the respondent

[38] Dubé J. went on the state at para. 28 that overnight parenting is one of “many parts of parenting that are essential to create a strong bond between a parent and their child…” Justice Dubé found that evening and overnight periods are “especially important” for infants and toddlers as it provides “crucial social interactions and nurturing activities” such as bathing, bedtime rituals and comfort in the middle of the night.

[39] That a child may have to adjust to overnight visits, and the lack of breastfeeding, does not mean that it is not in the child’s best interests. As Justice Papageorgiou held in Di Iorio v. Tropea, 2021 ONSC 8575 at para 43, regarding a 17-month-old child:

It is in the Child’s best interests to have a strong bond with the Father. Overnights are required for this. The fact that there might be some adjustment for the Child does not mean that it is not in her best interests. Children may also have trouble adjusting to breastfeeding, certain kinds of healthy foods, brushing their teeth, going to bed, and attending school etc. That does not mean that parents should not make them do so.

[40] I also rely on the AFCC-O Parenting Plan Guide, which summarizes basic social science knowledge, and offers valuable guidance about formulating parenting arrangements in a child’s best interests, appropriate for various ages and stages: Czyzewski v. Fabro, 2022 ONSC 4881; Bansal v. Kelly, 2022 ONSC 7049 at para 34; McBennett v. Davis, 2021 ONSC 3610 at para. 92; H. v. A, 2022 ONSC 1560.

[41] Much of the mother’s argument focuses on the fact that the baby prefers the breast from her at night and refuses the bottle from her at night when she is sleeping with the baby. The AFCC-O Parenting Plan Guide specifically recognizes, even for children in the 0 to 9 month range, that:

Many mothers want to follow the recommendations of the World Health Organization for breastfeeding for infants (exclusively for the first six months, and with the introduction of other foods through the next 18 months). However, parenting time with the other parent can be accommodated even if a child is breastfeeding with the mother. The non-breastfeeding parent can feed an infant expressed milk from a bottle, particularly after nursing routines are established. While infants may be resistant to bottle feedings by a mother who can breastfeed (and they can recognize their mothers by sight and smell), almost all infants adjust to also taking a bottle of expressed breast milk or formula from another regular caregiver. If parents have different views regarding this topic, a consultation with the child’s pediatrician or a lactation specialist may be of assistance.

[42] To the extent that the mother’s evidence is that the baby does not want to take a bottle from her, this is consistent with the statement in the Parenting Guide that infants may be resistant to bottle-feeding by the mother. This is also consistent with Dr. Newman’s evidence, that for a breastfeeding mother to gradually attempt to gradually introduce a bottle to a breastfeeding child while continuing to breastfeed will result only in the child’s considerable distress (“constant crying”).

[43] That said, there is a recognition in the AFCC-O Guidelines that “almost all infants adjust to taking a bottle of expressed breast milk…from another regular caregiver.” The mother’s proposal – that AB should stay only with her at night until she can get AB to take a bottle from her without fussing – is not a proposal consistent with the Parenting Guide, Dr. Newman’s evidence, or the jurisprudence, given the importance of overnights at this age.

[44] There is no intrusion on the religious freedom of either the mother or the child. The issue is the best interests of the child. Any religious freedom asserted by the mother must be consistent with the best interests of the child. A parent’s religious rights or preferences do not supersede the obligation of a family court to make a parenting decision under the Divorce Act based only the best interests of the child: Young v Young, [1993] 4 SCR 3.

[45] An order for overnight parenting with the father does not intrude on the religious rights of the mother or child. The mother relies on the evidence of Imam Yusuf Badat, an imam conducting services in religious teaching, Islamic jurisprudence, and a resident imam in Toronto for the last 20 years. As an expert in Sunni Islamic law, his affidavits address the issue of breastfeeding and Sunni Islamic law. I accept his qualifications as an expert in Sunni Islamic law. I admit the evidence, which was filed with an acknowledgement of expert duty, as necessary and helpful to the court in understanding Sunni Islamic law and breastfeeding, and meeting the White Burgess test.

[46] Imam Badat’s original affidavit evidence was that under Sunni Islamic law, there is a requirement for “mothers to breast feed their children for up to 2.5 years”. In an affidavit dated March 3, 2023, in response to issues raised by Justice Black querying the mother’s compliance given that the child was eating food, the Imam clarified:

3. In Islam, the fact that a child is partially consuming non-breastmilk and partially breastfeeding prior to reaching the age of 2.5 years does not mean the commandment of breastfeeding is not being obeyed or that, in the words of the judge, it constitutes only "partial adherence" to the command.
4. Breastfeeding is not an all-or-nothing proposition until the child is up to 2.5 years. The injunction is not to keep any other food than breastmilk out of the baby's diet for 2.5 years. The commandment is to permit the baby to continue to breastfeed if he or she wants to, up until the age of 2.5 years.
5. When I wrote that Islamic law"... requires mothers to breastfeed their children for up to 2.5 years", I meant in the sense clarified in the preceding two paragraphs. Because the mother is continuing to breastfeed the child at night (as I assumed for the purpose of my report, based on the letter of instruction), her observance of that commandment is not nullified or decreased by the fact that she also gives him other foods.

[47] The mother may breastfeed during her parenting time. There is no restriction on her religious freedom. She may keep breastfeeding when AB is in her care, up to the age of 2.5 years if the child wants to. The mother may express milk, and the father will provide the milk to the baby at nighttime if the parties wish.

[48] The mother’s desire to continue breastfeeding (meaning that the father cannot have overnights) is but one factor in the best interests’ analysis. In the circumstances here, the importance of bonding with the father, taken together with other factors, means that it is in the child’s best interests to have overnight parenting time with the father.

Shared Parenting

[49] The AFCC-O Guide provides that when both parents were actively involved in the child’s care before separation, shared parenting (including regular overnights with both parents) for a child between 9 - 18 months may be appropriate:

If the parents only separate when the child is in this age range, and both parents have had consistent, good quality involvement in all aspects of care of the child before separation, it may be appropriate for a shared parenting arrangement to continue with regular overnights with both parents. The child should see each parent every two to three days.

[50] AB is 17 months old. Until 2 ½ months ago, he was cared for by both parties daily. The father participated in all aspects of AB’s care. Parenting time between AB and the father will occur in the home that AB lived in from birth to December 31, 2022. AB is comfortable and familiar with these surroundings. I find that it is in AB’s best interests to have a strong bond with his father, including overnight time. The mother may continue to breastfeed at night when the child is with her, and may provide the father with expressed milk for nighttime feedings.

[51] The father has been requesting a return to the status quo – equal parenting time – since shortly after charges were laid. Yet the mother has failed to recognize the importance of the father to AB. The status quo to be considered is the status quo during the relationship, when both parents were involved in the child’s life, before the mother removed AB from the home: Bloom v Bloom, 2017 ONSC 1568 at paras. 34-40; Arbitman v. Lee, 2021 ONSC 315 at para. 39.

[52] The mother took maternity leave for 12 months. Since the father works from home he was present with the child at home since birth. The mother returned to work, and AB started daycare, in September 2022. The father would drive the mother to work and AB to daycare, and would look after AB when he was too sick to go to daycare. I find that the father was an active and engaged father, taking part (as working parents do, regardless of gender) in feeding, bathing, diapering, play and comforting activities, since AB’s birth.

[53] Both parents love AB. Each party has an ability and willingness to parent AB. Each party did so during the marriage and wants to do so now. The status quo was one in which AB’s needs were met by both parents, differently. I accept that each was an involved parent, jointly parenting AB, with different skills and abilities.

[54] The mother does not deny that the father loves their son, and states that she wants them to have a relationship with each other. Yet I find that the mother (assuming complete control over AB’s schedule leading to withholding any visits, removing him from his home in Toronto, relocating to Richmond Hill, and offering no overnights) cannot be said to support the father’s role in AB’s life. My hope is that each parent will appreciate and support the important role of the other parent in AB’s life as they adjust to the new reality.

[55] AB needs the stability and consistency of an equal, shared parenting arrangement with each of his loving and committed parents. I accept the father’s proposal for a graduated schedule to restore overnights to the father.

[56] The mother is open to the father having large blocks of daytime parenting time (which reveals that she accepts that the father can parent the child despite her evidence) but proposes that any overnights be done after she is able to have AB take a bottle at night instead of the breast, or at 24 months. Restoring the status quo that prevailed before the parties’ separation should not be delayed. It is not in AB’s interests that the disruption of his relationship with his father be permitted to continue for that amount of time.

[57] For these reasons, I find that it is in AB’s best interests to implement the schedule proposed by the father.

[58] The only reason for a graduated schedule, which I accept, is that AB has been deprived of regular, overnight contact with his father for 2.5 months. But this results from the mother’s unjustified self-help actions, and her unilateral imposition of major changes in AB’s life, without consideration of the importance of his father’s role in AB’s life. This raises serious questions about the mother’s parenting role and judgment: Phillips v. Phillips, 2021 ONSC 2480 at paras. 61-64.

[59] Finally, since the father has been deprived of overnights since December. I make orders about the transition, including that the mother provided detailed notes on Our Family Wizard before the first overnight, about AB’s bedtime, bathing and feeding schedules, so AB’s schedule is stable and predictable. I also make ancillary orders about soothing objects, copies of documents, emergencies and communications.

[60] Since the mother unilaterally removed AB from his home in Toronto, I order that unless a transition is at daycare, it is to be done in Toronto, not in Richmond Hill, and the mother will be responsible for bringing AB to Toronto for all transitions, whether pick-up or drop-off.

[61] This schedule addresses regular parenting time only. I suggest that the parties negotiate a holiday schedule soon.

Other Issues

[62] The parties filed over 400 pages of affidavits, articles and cases on this one-hour motion. Indeed, the mother filed a list of 16 more cases and articles the morning of the motion. Justice Black made an order on February 14th that the record for the substantive motion was fixed, and no further or additional materials were to be filed before the return of the motion. Despite that order, the mother filed a sur-reply affidavit, an updating affidavit, and a supplementary affidavit of Imam Badat. Justice Black’s order was clear. I do not admit the sur-reply or updating affidavits of the mother. I admit the supplementary affidavit of Imam Badat, which responds to the comments of Justice Black, clarifies Sunni Islam teachings, and helps the court in understanding the evidence.

Costs

[63] The father is entirely successful and so is presumptively entitled to costs. I encourage the parties to come to an agreement on costs. If unable to do so, then the applicant may make written costs submissions (5 pages plus Costs Outline and Offers to Settle) by March 28. The mother may make responding costs submissions (5 pages plus Costs Outline and Offers to Settle) by April 5, 2023. Submissions are to be sent through the Family Portal with a request that they be brought to my attention.

ORDER

[64] THIS COURT ORDERS THAT:

1. On interim, without prejudice basis, the Applicant shall have parenting time with the child, AB, born in September 2021 (“child”) as follows: a. Commencing Wednesday March 22 and until April 4, 2023: i. Every Wednesday from pick up at daycare at 5:00 p.m. until drop off at daycare on Thursday at 9:00 a.m.; and ii. Every Saturday from 12:00 p.m. until Sunday at 5:00 p.m. Exchanges will be facilitated using a third party chosen by the Respondent, Maryam Lawal Musa (“the Respondent”), which may include Renew Supervision. All exchanges are to take place in the City of Toronto, at an agreed upon location, with the mother responsible for drop-off and pick-up in the City of Toronto unless the parties agree otherwise in writing. b. Commencing April 5, 2023 and until April 25, 2023: i. Every Wednesday from pick up at daycare at 5:00 p.m. until drop off at daycare on Thursday at 9:00 a.m.; and ii. Every Friday from pick up at daycare at 5:00 p.m. until drop off at daycare on Monday at 9:00 a.m. c. Commencing April 26, 2023 and continuing thereafter, the parties shall follow a 2/2/3 parenting schedule as set out below: i. Monday at 9:00 am (or drop off at daycare) until Wednesday at 9:00 am (or drop off at daycare) with the Respondent; ii. Wednesday at 9:00 am (or drop off at daycare) until Friday at 9:00 am (or drop off at daycare) with the Applicant; iii. Friday at 9:00 am (or drop off at daycare) until Monday at 9:00 am (or drop off at daycare) with the Respondent; iv. Monday from 9:00 am (or drop off at daycare) until Wednesday at 9:00 am (or drop off at daycare) with the Applicant; v. Wednesday at 9:00 am (or drop off at daycare) until Friday at 9:00 am (or drop off at daycare) with the Respondent; vi. Friday at 9:00 am (or drop off at daycare) until Monday at 9:00 am (or drop off at daycare) with the Applicant. vii. If the daycare is closed, then so long as there is a no contact or restraining order, exchanges will be facilitated using a third party chosen by the Respondent, which may include Renew Supervision. All exchanges are to take place in the City of Toronto, at an agreed upon location, with the mother responsible for drop-off and pick-up in the City of Toronto unless the parties agree otherwise in writing.

2. All communications between the parents shall be through Our Family Wizard, in writing only except in the case of emergency. All communications shall be child-focused, respectful, and shall only contain pertinent information about AB. Neither party shall disparage the other in these communications.

3. By March 21 at 3 p.m., the mother shall advise the father in writing on Our Family Wizard of all bedtime, bath time, soothing and feeding routines that she has put in place for AB. The father shall follow the same bedtime, bath time, soothing and feeding routines with AB (except for breastfeeding) when he has parenting time, so AB has stability and predictability in his schedule.

4. The mother shall ensure that AB takes any soothing toys or objects with him when he has parenting time with the father, particularly for overnight parenting time, and the soothing toys or objects shall travel back and forth for overnight parenting time.

5. If AB becomes ill while in the care of either parent, the resident parent shall advise the other parent of AB’s symptoms and the parties shall decide which of them is able to take AB to his treating physician, if necessary.

6. If AB requires emergency medical treatment while in the care of either parent, the resident parent shall contact the other parent immediately by telephone to advise him/her of the emergency and location of the hospital.

7. The mother shall provide the father with copies of AB’s health card, birth certificate and passport.

Kristjanson J.