Court File and Parties

ONTARIO Court File Number: FS-23-00038495-0000 Superior Court of Justice At: 361 University Avenue, 1st Floor, Toronto, ON M5G 1T3

CORRECTED ENDORSEMENT

Date: August 15th, 2024 FL/ Motion on Notice Justice: VELLA

Applicant: LARROSA ZAVALETA, LEONARDO ☒ Present Counsel: RAMIREZ CUELLAR, LESTER ☒ Present Email: lester@cuellarfamilylaw.com

Respondent: LARROSA ZAVALETA, SHAUNA ☒ Present Counsel: PILON, MAURICE WILLIAM ☒ Present Email: mpilon@pilonbarristers.com

☐ Order to go in accordance with minutes of settlement or consent filed. ☐ Factums are required on all motions (two days prior)

Endorsement – Parenting Motion

Introduction

[1] The Applicant Father seeks to change the temporary, without prejudice, consent order of Justice Maxwell dated February 14, 2024 (“Maxwell J. Order”). Her Honour also granted leave to the Father to bring this motion at the subsequent case conference heard on May 7, 2024.

[2] The Father seeks a graduated parenting schedule that would see progression from the current schedule to a 2-2-3 schedule over the course of 6 weeks.

[3] More specifically, commencing immediately, the child (“TRL”) would be in the Father’s care as follows: (a) Every other weekend from Friday pickup at daycare until Monday morning drop-off at daycare; (b) Every Tuesday and Thursday, with pickup at daycare until 7:30 p.m. drop-off at the Mother’s residence. This would reflect an increase in the current parenting time of one night every other weekend (Sunday overnight).

[4] Then commencing a couple of weeks later, the Father’s parenting time would be increased by an overnight every Thursday, with pickup Thursday after daycare and drop-off Friday morning at day care.

[5] Finally, commencing after one month of the expanded schedule referenced above, the Father’s parenting time would be further increased by an overnight every Tuesday as well. Therefore, within a six week span, TRL would stay with the Father every other weekend from Friday night through Monday drop-off at daycare, and every Tuesday and Thursday night pickup and drop-off at daycare.

[6] The Mother requests that this motion be dismissed. She does not put forward an alternative parenting plan other than the current one. Her primary submission is that the Father’s proposal is not in TRL’s best interests as it would be too disruptive to her schedule and time with her Mother and maternal great grandparents, particularly given TRL’s existing routine, young age, and stage of development.

Background

[7] The parties were married on May 27, 2017 and separated on August 31, 2023. On August 31, 2023 (after one earlier brief period of separation), the Respondent Mother left the matrimonial home with TRL without advance notice to the Father and moved into her grandmother’s home (“Mother’s residence”).

[8] Both parents work full time.

[9] The parties have one child together, TRL, born March 4, 2022. She was 18 months old at the date of separation and is about 28 months old at the date of this hearing.

[10] Prior to any orders being made, the Mother determined when and the location that the Father would have parenting time with TRL.

[11] Initially, the Mother provided limited access to TRL, comprised essentially of 4 hours each on Tuesdays and Thursdays (3:30 p.m. to 7:30 p.m.) and 3.5 hours on Sundays as of September 12, 2023. Alternating Sundays for 8.5 hours was added on September 24, 2023, but the Father’s parenting time had to occur at the Mother’s residence.

[12] The parties attended at Akazaki J. for an urgent case conference on December 7, 2023. Akazaki J. expanded the Father’s parenting schedule on a consent, temporary, and without prejudice, starting December 9, 2023, adding overnight visits on Saturday on alternating weekends (“Akazaki J. Order”). All pickups and drop-offs continued to be at the Mother’s residence.

[13] This, in turn, led to a further agreement by the parties to increasing the Father’s parenting time, again on a without prejudice and temporary basis, as reflected in the Maxwell J. Order, as follows: (a) Every other weekend from 5:00 p.m. on Friday from the Mother’s residence to drop off at the Mother’s residence on Sundays at 4:00 p.m.; (b) Every Tuesday and Thursday, pick up from daycare at 3:30 p.m. and drop off at Mother’s residence at 7:30 p.m.

[14] The Maxwell J. Order also provided for other ancillary parenting time arrangements such as the parties being listed as emergency contacts. The parties also consented to joint-decision making authority over TRL on the temporary and without prejudice basis.

[15] This arrangement has remained in place since February 14, 2024.

Summary of Submissions

[16] The Father submits that it was always his intention that his parenting time with TRL would be increased until it reached a shared parenting arrangement on a 50/50 basis in relatively short order. However, the Mother has not agreed to vary the current parenting arrangement and, hence, this motion.

[17] The Father submits that it is in TRL’s best interests that she spend more time with him, rising to the level of 50/50 parenting time within a six week period of time. He submits that the transitions to date have been managed well by TRL, and TRL wishes to stay over nights with him on Tuesdays and Thursdays. He also submits that the Mother has artificially created a “status quo” that should not have any significant influence in determining TRL’s best interests.

[18] The Mother raises the following general concerns: (a) If the schedule is expanded to add Sunday overnight to the Father’s alternate weekends, she will not see TRL for four days (TRL goes to daycare) and three nights and this is too long; (b) If the schedule is expanded to add overnights to Tuesdays and Thursdays, this will be too disruptive for TRL given her young age; (c) Any expansion of time is not in TRL’s best interests because she is used to the existing schedule which is the status quo and any change at this time will be disruptive and destabilizing to TRL causing her distress; (d) The Father’s hours of employment would delay his drop-off and pickup of TRL from daycare which would be further disruptive to TRL’s daily routine; (e) She is, and was before separation, the primary caregiver; (f) The parents do not have good communication due to, she alleges, the Father’s anger towards her arising from her decision to separate from him.

[19] The Mother adduced non-party affidavits to support her position from her extended family that the status quo is in the best interests of TRL.

[20] The Father responds that he always had significant caregiving responsibility for TRL before separation, including caring for her from time to time at night in the Mother’s absence, TRL has a good relationship with him and his extended family and would benefit from increased time with him. He adduced affidavits from witnesses in support of his position. He also tendered an exhibit to support his position that he and the Mother communicate adequately with respect to TRL.

Analysis

Best interests of child and the factors set out in the CLRA and Case Law.

[21] The purpose of a temporary parenting order is to provide stability to the child pending a trial. The decision must necessarily be made on the basis of a written evidentiary record which will likely become more fulsome at trial.

[22] In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security and wellbeing (s. 24(2), Children’s Law Reform Act, RSO 1990 (CLRA); s. 16(2), Divorce Act, RSC 1985 (Divorce Act)).

[23] In determining the child’s best interests, the Court will consider all factors relating to the circumstances of the child as set out by s. 24(3) of the CLRA and s. 16(3) of the Divorce Act.

[24] The Court must ascertain a child’s best interests from the perspective of the child, rather than that of the parents (Gorden v. Goertz, [1996] 2 S.C.R. 27).

[25] No one factor listed in the statutory definition of a child’s best interests is given paramountcy over another. However, certain factors may be more influential than others in the particular circumstances of the child whose best interests is at issue.

[26] The status quo will generally be maintained unless there is cogent evidence that such a situation will not be in the best interests of the child. This is because the court is making a preliminary determination to create a stable and predictable situation for the child, pending a trial where a full evidentiary record will be available.

[27] Therefore, a motion to vary an existing interim or temporary parenting order generally requires the moving party to demonstrate that a material change in circumstances that affects or will likely affect the best interest of the child has occurred. This is irrespective of whether the order was made on consent or at a contested motion. However, there are two exceptions. The first is when the temporary parenting order was made expressly on a without prejudice basis. The second is when the temporary parenting order was made, expressly or implicitly, on a time limited basis; e.g.: the court has built into the order a review mechanism. (Kirichenko v. Kirichenko, 2021 ONSC 2833 at paras 12, 26 – 30).

[28] The reason for creating an exception to the material change of circumstances requirement where a temporary order is made “without prejudice” is to encourage parties to come to agreements at an early stage in the litigation regarding parenting matters without the fear of creating a status quo (Regina Musheyev v. Ronen Gilkarov, 2016 ONSC 4120 at paras 17-19).

[29] There is no doubt that the subject temporary parenting order was made on a without prejudice basis. Therefore, the Father need not demonstrate a material change in circumstances. However, I disagree that the child’s existing routine is an irrelevant consideration. It may take on less weight given that this order was made on a without prejudice basis, but if it impacts her best interests, her existing routine and ability to adapt to a new one are relevant considerations.

[30] Accordingly, I will proceed with an analysis of the evidence in order to determine whether a change to the existing schedule is in the best interests of TRL, and if so, what change is in her best interests.

[31] A common theme in the Mother’s evidentiary record is that the Father was verbally abusive towards the Mother, is angry at her because of the separation, and that he drank alcohol to excess sometimes when he was at her extended family events. Her witnesses support this theme. However, I do not find this evidence to be helpful for purposes of assessing what parenting schedule is in the best interests of TRL except to the extent it addresses the parents’ ability to communicate productively. There is no suggestion that the Father is consuming excessive quantities of alcohol when he is caring for TRL. There is also no suggestion, much less evidence, that the Father has an alcohol, or other substance, abuse disorder.

[32] Furthermore, even if there was verbal abuse during their cohabitation, the parties now live separate and apart. I do not find, on the basis of the evidentiary record before me, that any alleged past verbal abuse is currently adversely impacting TRL or the Father’s ability to properly care for TRL, including not exposing her to domestic conflict.

[33] In this case TRL’s relationship with her maternal great grandmother is a fact specific consideration of some importance in this matter. TRL is used to a home environment in which her great grandmother is physically and psychologically present during the week while she attends daycare. Furthermore, TRL is about two houses away from her maternal grandparent’s home and her maternal aunt’s family lives with the maternal grandparents.

[34] Based on the evidence, I am satisfied that the Mother had primary caregiving responsibilities prior to separation. For example, the Mother picked up and dropped off TRL to her parents’ home during the 2, and then 3, days a week she worked at the office once she returned to work. I accept the undisputed evidence that the Father did not participate in the pickup and drop-off because of his work schedule. Furthermore, on the days that the Mother worked remotely from home (3 and then 2 days a week), she cared full time during the day for TRL while the Father worked. At nights, the Mother generally took the lead in parenting tasks, but the Father also was present and participated. On some occasions (9 times over the course of one year according to the Mother), the Father cared for TRL solely when the Mother either had to work late or went on a social activity.

[35] On the other hand, the Father took a parental leave for 6 weeks when TRL was discharged from hospital after she was hospitalized for several weeks at the Intensive neo natal unit arising from her premature birth.

[36] Stepping back from the dispute between the parents, I observe that there are no concerns expressed about the Father’s present ability to care for TRL overnights, nor about the Father’s ability to pick up TRL from daycare. While he may have taken less responsibility for TRL’s care during the first 18 months of life, he has since demonstrated a willingness and ability to care for TRL. While TRL is still young, she is no longer an infant. Furthermore, it is apparent that TRL has adjusted well to the incremental increases in parenting time with the Father as demonstrated by the affidavits filed.

[37] The concerns expressed by the Mother and her witnesses are the disruption that would occur to TRL by the Father’s proposed schedule and the difficulty that the parties have communicating.

[38] The latter issue, in my view, is largely addressed by the parties’ consent to having joint decision making authority over TRL, reflected in the Maxwell J. Order. The affidavits filed on behalf of the Mother do not reveal any new difficulties in communication that have arisen since that Order.

[39] I accept the evidence of the Mother and her witnesses that TRL has adjusted well to daycare, likes her friends and teachers at daycare, and has fallen into a routine of attending at 9:00 a.m. and being picked up at around 3:00 p.m. This schedule will align with junior kindergarten when TRL begins in about one year’s time.

[40] I requested submissions on the AFCC Guidelines, but neither party referenced same in their facta. Nonetheless, I have considered the AFCC Guidelines.

[41] In my view, there are two primary issues. First, would keeping TRL apart from the Mother for an extra overnight on alternative weekends be too long, disruptive, and therefore not in her best interests, particularly given her young age of two and one half years old, when balanced against the benefit she would derive from spending that additional overnight with her Father?

[42] Second, regarding expanding the Tuesday and Thursday visits to overnights, would causing TRL to move back and forth during the week to the parents’ respective homes be unduly disruptive and destabilizing to her, again when measured against the benefit she would derive from spend additional time with her Father?

[43] This type of dilemma is sometimes resolved by a week about schedule, but neither party suggested this, and TRL is too young to have one week apart from each parent at a time.

[44] The Mother’s sister, Ms. De Graauw, deposed that, based on her observations and experience as an elementary school teacher of 10 years, when disruption and instability to young children’s schedules and caregiving occur post separation, the children suffer. This anecdotal evidence does not assist me in determining what parenting schedule is in the best interests of TRL.

[45] On the other hand, the maternal great grandmother’s affidavit (Sheila Radford) is compelling for her day-to-day observations of TRL who, as stated lives at the maternal grandparents’ home when not in the care of her Father.

[46] Sheila Radford has had the benefit of observing TRL’s routines and reactions when returning home from the Father. She deposed that TRL gets upset easily when her routine is disrupted “like it is so often when returning from her father’s care over the weekend”.

[47] I am mindful of the potential that Mrs. Radford may be biased in favour of the Mother. However, I am not persuaded, based on the untested affidavit evidence that she would compromise her perception of the best interests of her great granddaughter.

[48] I am also influenced by the young age of TRL, her stage of development, and the routine that she has become used to. As stated above, while clear and cogent evidence is not required to alter the “status quo” when the parenting schedule is the result of a without prejudice temporary order, the existing routine is a relevant factor in determining TRL’s best interests. It is noteworthy that the existing routine developed for TRL was through the consent of the parties. In my view, any change in parenting schedule must be gradual in these circumstances. Thus far, in TRL’s young life, it has been demonstrated that she is able to adapt to gradual and modest changes to her routine.

[49] It is also important that TRL spend as much time with her Father as is in her best interests.

[50] Also of particular relevance is the lack of an evidentiary basis suggesting that the Father cannot properly care for TRL during this expanded parenting schedule. To the contrary, the evidence before me demonstrates that the Father can properly care for TRL overnights and during the late afternoon/evening parenting time and is willing and able to do so.

[51] One other relevant consideration is the fact that the Father is not currently paying Table child support in accordance with his reported income. He is underpaying on the basis of alleged undue hardship as he is paying child support with respect to a child from another relationship. However, child support is the entitlement of the child, and not at the discretion of the payor. The courts will look at a parent’s noncompliance with child support obligations as an indicator that the parent is prioritizing their own financial interests over the best interests of the child.

[52] In my view, it is in the best interests of TRL that she spend more time with her Father but on a more graduated basis than proposed by him. The current schedule with the following modifications adding one midweek overnight is in the best interests of TRL: (a) The Father will have overnight care of TRL on alternating Tuesdays of the week she is staying with him on the following weekend; and (b) Overnight care on alternating Thursdays of the following week, when TRL is staying with the Mother on the following weekend. (c) Pickups by Father will be from daycare, and drop-offs will be at daycare the following morning. To be clear, this means that the Father will have one mid-week overnight with TRL, but on alternating Tuesdays and Thursdays, thereby minimizing the number of consecutive evenings away from the Mother. This will be less disruptive to TRL’s current routine than that proposed by the Father, which would effectively see TRL alternating every other weeknight, overnight, and will allow her to become use to the Father dropping her off at daycare and going to bed and waking up in the Father’s home once during the week. This gradual progression reflects an increase in overnight parenting time which is appropriate given TRL’s age, stage of development, current routine, relationship with her maternal great grandmother, need for stability and predictability. It is also generally consistent with the parenting guidelines set out in the AFCC-O Guide.

[53] However, this determination is made based on the current evidentiary record with a particular focus on TRL’s young age, current stage of development, need for stability and predictability in her routine and the current status quo, while recognizing that it is in her best interests to spend as much time with her Father as is in her best interests.

[54] I have not been asked to make any rulings with respect to a holiday schedule. Perhaps this can be discussed at the forthcoming Settlement Conference which is scheduled for October 22, 2024.

Order

[55] Accordingly, I make the Father’s parenting schedule, on a temporary basis, on alternate weeks, commencing when the Father has his next weekend parenting time, as follows: Week One: Pickup of TRL on Friday from daycare between 3:15 and 3:45 p.m. and drop-off at 7:30 p.m. on Sunday at Mother’s Residence; pickup of TRL on Tuesday from daycare between 3:15 and 3:45 p.m. and drop-off at Mother’s Residence at 7:30 p.m.; pickup of TRL on Thursday from daycare between 3:15 and 3:45 p.m., and drop-off Friday morning at daycare between 8:00 and 8:30 a.m. Week Two: Pickup of TRL on Tuesday from daycare between 3:15 and 3:45 p.m. and drop-off at day care on Wednesday morning between 8:00 and 8:30 a.m.; pickup of TRL on Thursday after day care between 3:15 and 3:45 p.m. and drop-off at Mother’s Residence at 7:30 p.m. If TRL is not in daycare for pickup, the exchange will be conducted at the Father’s residence, and if she is not in daycare for drop-off, the exchange will be conducted at the Mother’s residence.

[56] The parties may alter this parenting schedule on a consent basis, without the need for a further parenting order. Indeed, the parties are encouraged to continue to review TRL’s progress and make such alterations in the parenting schedule as are in TRL’s best interests. The parties may wish to avail themselves of mediation services to assist them in this regard.

[57] If the parties cannot agree upon costs, as they are urged to do, the Applicant shall provide his cost outline and submissions within 5 business days, and the Respondent shall provide her cost outline and submissions within 5 days thereafter. The respective cost submissions shall not exceed 3 pages, double spaced. The documents shall be provided to my judicial assistant: maria.kolliopoulos@ontario.ca.

Justice S. Vella Corrected Date: September 13, 2024