Drodge v. Gajadhar, 2025 ONSC 244

COURT FILE NO.: FS-24-45477
DATE: 2025-01-13
CORRECTION DATE: 2025-01-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Olivia Rachel Ann Drodge, Applicant
AND: Rommel Rajendra Gajadhar, Respondent
BEFORE: M. Kraft
COUNSEL: Kat Kumkat and Jennifer Long, for the Applicant
Michelle Sample, for the Respondent
HEARD: January 6, 2025

Corrected Endorsement

Nature of Motion

[1] Each party brought a parenting time motion, both of which were heard as a long motion, as directed by Nakonechny, J. on December 19, 2024.

[2] The applicant mother (“Olivia”) seeks primary residence of the parties’ two children, L1, a son, age 6, and L2, a daughter, age 3, and a temporary parenting schedule where the respondent father (“Rommel”) will have supervised parenting time on Saturdays, from 1-5 p.m. at Brayden Supervision Centre, and any additional time as agreed upon. During her submissions, Olivia’s counsel, in answer to a question from the court, indicated that Olivia is also agreeable for Rommel’s parenting time to be supervised by an agreeable third-party. Olivia also seeks sole decision-making responsibility for the children. She acknowledges that the only decision that needs to be made for the children right now is therapy for L1.

[3] Rommel seeks to continue the parenting time status quo, which is an equal-time-sharing parenting schedule. The current parenting schedule was made by Des Rosiers, J., on November 15, 2024, and was intended to be a short-term, temporary order in place for 7 days. That order has the children residing with the parents as follows:

i. with Olivia on Monday, after school/daycare to Tuesday morning, drop off at school/daycare;
ii. with Rommel, Tuesday, after school/daycare to Wednesday morning, drop off at school/daycare;
iii. with Olivia on Wednesday, after school/daycare to Thursday morning, drop off at school/daycare;
iv. with Rommel on Thursday, after school/daycare to Friday morning, drop off at school/daycare; and
v. alternate weekends with each parent from Friday, after school/daycare to Monday morning, pick up and drop off at school/daycare.

Issue to be Decided

[4] The only issue for me to decide is whether it is in the children’s best interests to change the temporary parenting schedule so that they reside primarily with Olivia and for Rommel to have supervised parenting time on Saturdays, from 1:00 to 5:00 p.m., and at such other agreeable times.

Brief Background

[5] The parties were married on January 7, 2023. They separated on September 15, 2024. They began cohabiting on April 1, 2018.

[6] There are two children of their marriage, L1, age 6, and L2, age 3.

[7] L1 is in Senior Kindergarten and L2 is in full-time daycare.

[8] Olivia describes a relationship of coercive and controlling behaviour and physical and emotional abuse by Rommel toward her. According to Olivia, Rommel’s abusive behaviour began to emerge when they started living together in the Spring of 2018. Olivia’s affidavits describe her:

i. being subjected to screaming, being called disparaging names regularly in front of the children and subjected to financial control by Rommel;
ii. being subjected to controlling behaviour, by Rommel micromanaging her and the children, such as controlling how much toilet paper Olivia and children used, not allowing Olivia to use the car (other than on one occasion); and
iii. being subjected to financial control, by Rommel berating her for spending any money.

[9] In August of 2024, Olivia began to seek help from the Women’s College Sexual Assault and Domestic Violence Clinic to assist her in managing her relationship with Rommel. Through this support, Olivia describes gaining the courage to separate. She told Rommel she wished to separate on September 15, 2024.

[10] After Olivia told Rommel she wanted to separate, she swears that he became hostile and overly aggressive with her which caused third parties to contact the CAS as well as police. As a result of this escalating behaviour, Olivia brought an urgent motion before this court, returnable on October 10, 2024, seeking to have it heard before a case conference. She sought exclusive possession of the matrimonial home, primary parenting, and an order that Rommel’s parenting time be supervised.

[11] The court directed the parties to attend To Be Spoken To Court (“TBST”). On October 21, 2024, the parties had a TBST attendance before Sharma, J., who did not schedule Olivia’s urgent motion but, instead, scheduled an urgent case conference for November 21, 2024.

[12] In the four weeks between the TBST attendance and the case conference, Olivia describes Rommel engaging in further escalating behaviour by involving L1 in the parties’ dispute and behaving toward her in an intimidating way.

[13] On November 12, 2024, Olivia alleges that during dinner Rommel became angry and while attempting to grab a plate from her, grabbed her index and middle fingers on her left hand and proceeded to crush her hand, resulting in her having visible bruising and swelling the following day. She called the police to the home on November 12, 2024. The police did not lay any charges.

[14] The following morning, Olivia contacted the police again because her hand was visibly bruised and swollen. The police attended at the home and transported Olivia to the hospital to have her hand examined. Olivia attached the records from being seen at the Emergency Room on November 13, 2024, which confirms that she told the doctor, Dr. Fairbairn, that Rommel had gripped her hand, applying pressure on her two fingers as she attempted to pull away causing injuries. Dr. Fairbairn’s notes state:

i. Olivia told him “the abuse has been going on for years, there are 2 children and CAS was involved in the summer.”
ii. “Left hand shows some redness and swelling over the palmar surface of 2nd MCP. There is tenderness over the left 2/3 MCP. ROM is lightly decreased in these joints, limited by pain.”
iii. “left hand injury/sprain/strain….will ask SW [social worker] to see given complex home situation/IPV.”
iv. “Seen by SW and discharged.”

[15] Olivia deposes that when she met with the crisis social worker at the hospital, they discussed a safety plan (which she had already discussed with the Women’s College clinic) and she decided to implement it immediately. As a result, on November 13, 2024, Olivia picked up L1 from school, L2 from daycare early, and with her parents, they checked into a hotel close to the matrimonial home. These actions were taken by her without notice to Rommel. She was in contact with her lawyers when she executed her safety plan and they were preparing her case conference brief for the November 21, 2024 case conference and updating it which they served on Rommel the following day on November 14, 2024. It is agreed that Olivia’s counsel did not advise Rommel’s counsel that she had taken the children from school and/or that they were safe. She also notified the Toronto Police Service (“TPS”) that she was initiating her safety plan and staying at a hotel near to the matrimonial home.

[16] When Rommel returned to the matrimonial home from work, he found Olivia and children gone. In addition to their clothing being gone, Rommel could not find the children’s passports or Nexus cards. He immediately reached out to Olivia to find out where she and the children were. No response was received. Rommel’s counsel then wrote to Olivia’s counsel asking for confirmation that she would be returning the children to the matrimonial home. Olivia’s counsel did not respond to his counsel. Rommel describes being terrified not knowing where the children were and worried that Olivia had abducted them. He and his counsel began drafting an urgent motion immediately seeking the return of the children.

[17] In the late evening of November 13, 2024, the TPS attended at the hotel where Olivia and children were staying to do a wellness check. The police contacted Rommel after having completed a wellness check to advise him that the children were safe, but they did not disclose the location of the children.

[18] On November 14, 2024, Rommel served an urgent motion seeking the immediate return of the children to the matrimonial home, temporary sole-decision-making responsibility, and temporary exclusive possession of the home.

[19] The urgent motion was returnable on November 15, 2024 before Justice Des Rosiers, at which she made the following temporary order:

i. The children were to be returned to the father on November 16, 2024 at noon. The father was to have parenting time until Monday morning when he was to return the children to school/daycare.
ii. The father was to have parenting time on Wednesday, after school to Thursday morning, with pick up and drop off to take place at school/daycare.
iii. Thereafter, until further agreement of the parties or court order, the father was to have parenting time on alternate weekends and two nights a week: Tuesdays to Wednesday and Thursday to Friday. All other times the children were to be with the mother.
iv. The children’s passports and Nexus cards were to be delivered to the father’s counsel.
v. The father was granted temporary exclusive possession of the matrimonial home until the case conference on November 21, 2024.
vi. The order was to expire in 7 days.

[20] The parties attended the urgent case conference as scheduled on November 21, 2024 before Vella, J. On consent, the parties agreed to retain Howard Hurwitz to conduct a s.30 parenting assessment. The temporary order of Des Rosiers, J. was to be extended unless the parties agreed otherwise. Vella, J. scheduled a long motion to be heard on January 8, 2025, so that both parties’ parenting motions could be heard.

[21] For the past two months, since November 15, 2024, the children have been switching back and forth daily between the parents, other than alternating weekends, spending equal time with the parents.

[22] On December 19, 2024, Nakonechny, J. made an order adjusting the timetable for the delivery of each party’s motion materials confirming that the parties’ two parenting motions would be heard as a long motion on January 8, 2025.

Mother’s Position

[23] Olivia takes the position that the children are suffering emotional and physical distress and harm by the current schedule based on the following:

i. She submits that the children’s behaviours are unrecognizable in that L1 is acting out at school, angry and dysregulated, and throwing things. He is also experiencing night terrors. Similarly, L2 is anxious, screaming, yelling and distressed. In addition to the mother seeing these signs, L2’s daycare has expressed they have seen signs of anxiety and distress in her. She believes that this distress arises from the children witnessing Rommel being violent toward her and/or by his treatment of the children when in his care.
ii. During her Facetime calls with the children when they are with Rommel, the children have cried to her sobbing that they want to come home.
iii. The children are expressing to her that they are fearful of Rommel. He physically harmed Olivia’s hand in front of the children and when she said, “you are hurting me”, Rommel said, “it is your word against mine.”
iv. L1 told his mother that Rommel hurt him, pushed him to the ground, after which L1 hid in the closet. L2 also told the mother that “daddy is choking L1.”
v. She has witnessed Rommel yelling at and putting the children down, causing them distress. She is worried that this behaviour has continued when the children are in his care.
vi. Rommel is controlling financially and micromanages her and the children, including only permitting the children to use 1 sheet of toilet paper at a time.
vii. The CAS recommended therapy for the children and when Olivia proposed this to Rommel through counsel, he refused, indicating that he will consider it. Since then, Rommel has taken no steps to ensure that L1 receives counselling and now suggests that Howard Hurwitz determine whether therapy is needed. Howard Hurwitz will not be finished his s.30 parenting assessment before April 2025 and Olivia is highly concerned that L1 needs therapy on a more urgent basis.

Father’s Position

[24] Rommel takes the position that Olivia’s motion proposing that he only have supervised parenting time with the children, at a supervision centre, is ill conceived. Specifically, he argues that Olivia has engaged in troubling gatekeeping behaviour since the beginning of this case and she is on a campaign to eliminate him from the children’s lives, based on the following:

i. Olivia began the case on October 21, 2024, by asking for an urgent motion prior to a case conference being scheduled at To Be Spoken To Court. The court denied Olivia’s request for an urgent motion and, instead, ordered the parties to attend an urgent case conference.
ii. When she did not get the result she wanted from the court, four days later, on October 25, 2024, the CAS became involved with the family due to Olivia reporting an historical physical assault to her doctor, causing them to report it to the CAS.
iii. Rommel was then dealing with the CAS by meeting with them on November 7 and 12, 2024. On November 12, 2024, the CAS advised him it was closing its case.
iv. On November 12, 2024, the very day the CAS advised it was closing its case, Olivia then alleged that Rommel “crushed” her hand in the matrimonial home. Olivia called the police, and after interviewing everyone at the home for 2.5 hours, the police declined to press charges against Rommel. Again, Rommel claims that Olivia did not get the result she wanted.
v. Accordingly, the next day, on November 13, 2024, she went to the hospital, again reporting Rommel as being abusive and then surreptitiously removed the children from school and daycare early and took them to an undisclosed location without informing Rommel.
vi. Rommel was left frantically trying to find out where the children were and wondering if Olivia had abducted them. He texted Olivia directly and she did not respond. His counsel emailed Olivia’s counsel. His lawyer did not receive a response. Rommel then had no choice but to then report Olivia and the children missing to the TPS. He also began to work on urgent motion materials to seek assistance from the court to have the children returned.
vii. Very late in the evening of November 13, 2024, Rommel learned from the TPS after they did a wellness check at his insistence that the children were safe.
viii. On November 14, 2024, Olivia swore an affidavit with false statements, deposing that Rommel was aware of her location and that of the children. That is not true.
ix. Once the parties agreed to a timetable for the delivery of motion materials, Olivia served her motion materials late. Further, on December 30, 2024, she filed three third-party affidavits as reply evidence, despite not having filed the third-party affidavits in the first instance. Earlier, on October 25, 2024, she advised Rommel that she would be relying on evidence from these third parties and then she chose not to have those affidavits prepared.
x. Olivia’s motion materials contain hearsay, double hearsay and video/audio recordings that were obtained surreptitiously, which she did not verify. Olivia’s failure to follow the Family Law Rules has resulted in Rommel not being able to respond to the third-party affidavits, and argue that many of the improper aspects of her motion material be struck from the record.

[25] Rommel argues that there is no evidence on record to contradict that the parties have been co-parenting the children for two months or that they cannot communicate about the children.

[26] In terms of decision-making responsibility, the father submits that the parties have retained Howard Hurwitz to complete a s.30 parenting assessment and gave the authority to Mr. Hurwitz to determine whether L1 should receive therapy. Finally, Rommel submits that he is not opposed to L1 having therapy. He simply needed time to consider it and was then overloaded in having to deal with the CAS and Olivia abducting the children before he was able to properly respond to this particular issue.

Preliminary Evidentiary Issues

Surreptitious Recordings and Hearsay

[27] Rommel argues that the audio and video recordings attached as Exhibits to Olivia’s affidavits should be struck as they were obtained surreptitiously, and they have not been verified by him. Olivia asked me to listen to the audio recordings which she claims were taken by her when L1 was sleeping and having night terrors. She submits that the recordings prove that L1 is struggling and scared of Rommel. Olivia also asked me to review the video recordings of both children as evidence of the struggles they have been experiencing.

[28] I refused to listen to the secret audio and video recordings. I find that any probative value that they hold is undermined by policy considerations that call for extreme caution before allowing such recordings to become part of this family litigation record. I agree with the sentiments expressed by Kurz, J. in Van Ruyven v. Van Ruyven, 2021 ONSC 5963, namely that if the court allows surreptitious recordings to be routinely admitted into evidence absent exigent circumstances then the court undermines any chance that family law litigants will ever be able to work together for the benefit of the child.

[29] The court’s reluctance to allow surreptitious recordings made by spouses of each other and their children were articulated by Sherr J. in Hameed v. Hameed, 2006 ONCJ 274. There, Sherr J stated at paras. 11-12:

[11] ... Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko:

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this "evidence" convince me that it should be struck in its entirety and should not be before the court.

[30] The rule is not an absolute one. As Sherr J. noted, the court retains some discretion to determine whether the probative value of secretly recorded evidence outweighs the strong policy factors set out above.

[31] The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.

[32] Accordingly, I exclude the surreptitious recordings made by Olivia of L1 while he was sleeping and of both children.

Hearsay

[33] Rommel also asked the Court to either strike or not give any weight to the various paragraphs in Olivia’s affidavits that contain hearsay and double hearsay.

[34] Absent an exception, hearsay evidence is not admissible. Hearsay is an out of court statement that is offered to prove the truth of its contents. The foundation of the court's concern over hearsay is the inability of the court to test the reliability of the out of court statements. That concern is often expanded in many judicial decisions to include statements not made under oath and statements that are not subject to cross-examination by opposing counsel. Further, concern arises over determinations of credibility where the court is unable to cross-examine the demeanour of the declarant.

[35] One of the long-standing noted exceptions to the hearsay rule is the category of out of court statements that are admitted as evidence of the state of mind of the children, not as truth of the facts in the statements but because inferences that might be reasonably drawn from the fact that such statements were made: see Harris (Re).

[36] In R. v. P. (R.), [1990] O.J. No. 3418, 58 C.C.C. (3d) 334 (H.C.J.), at p. 341 C.C.C., Doherty J. made the following comment:

If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker's state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems arising out of the inference drawing process.

[37] If a child makes a statement that "I am afraid of my dad because when he gets mad he punches holes in the wall", the statement may be admitted to show the child's present state of mind as an exception to the hearsay rule but not for the proof of the truth of the child's statement that the child's dad punches holes in the wall when he gets mad.

[38] When evidence is offered as state-of-mind evidence, it is important that this evidence "not be used as a back door to admit evidence of past acts through the medium of a child's alleged current feelings": see D.A. Rollie Thompson"Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings -- Part 1" (1988), 7(1) Canadian Journal of Family Law 11, at p. 50.

[39] The above analysis of out of court statements relative to state of mind applies both to out of court statements offered through a fact witness and an expert witness, such as an assessor or a social work assist through the Office of the Children's Lawyer: see R. v. Mohan.

[40] In this case, Olivia recounts events that took place in the home and deposes that L1 and L2 said certain comments to her about Rommel and/or things Rommel said or did to them. [1] I decline to strike these kinds of statements in Olivia’s affidavit materials and accept that the statements may show L1’s or L2’s state of mind at the time the statement was alleged to have been said, but not for the truth that Rommel did or did not do the specific things Olivia alleges he did.

Improper Reply Evidence

[41] Rommel also asks that the court not allow the three third-party reply affidavits Olivia filed in reply to his responding materials on the ground that these third-party affidavits are not proper reply evidence and in filing them as reply evidence for the motion, Rommel was not afforded an opportunity to respond to these third-party affidavits.

[42] Olivia submitted that she filed the 3 third-party reply affidavits despite the fact that she could have served and filed such affidavits with her initial motion material because she was concerned that if she had done so in the first instance that Rommel would have argued that she was over the page limit set out in the Toronto Family Practice Direction. Olivia’s counsel acknowledges that her client did refer to having evidence from third-parties to support her allegations of Rommel having his hands around L1’s neck in October 2024.

[43] Olivia had the opportunity to file third-party affidavits in support of the relief she seeks on this motion in the first instance. She did not do so. If Olivia was concerned about surpassing the page limits, it was open to her to bring a 14B motion to seek approval to do so, or direction from the court. Olivia failed to do that. I find that it is improper reply for Olivia to have filed 3 third-party affidavits in reply to Rommel’s denial that he had his hands around L1’s neck, or in reply to Rommel’s denial that L2 is struggling in daycare. Again, Olivia raised the allegation of Rommel choking L1 in her initial motion materials. She also raised the concern about L2 acting out in daycare in her initial motion materials. Rommel should have had a proper opportunity to respond to the case against him and by filing these 3 third-party affidavits in reply he was not afforded the opportunity to do so. Accordingly, I did not give any weight to the 3 third-party affidavits filed by Olivia.

Parenting Time

[44] Given that the parties are married, the Divorce Act is the applicable statute. The test to determine a parenting schedule for the children is the best interests of the children. Section 16(3) of the Divorce Act sets out the best interests factors the court is to consider.

[45] The court must also give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being in determining the best interests of a child: s.16(2).

[46] There is no presumption of equal time-sharing of children after parents separate. Bembenek v. Bembenek, 2019 ONSC 4050.

[47] The most appropriate allocation of time in any given situation will depend on many factors including the child's age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child's best interests. The parenting schedule must accord with the child's best interests. McBennett v. Danis, 2021 ONSC 3610; Morrison v. Harder, 2021 ONSC 5107; Ammar v. Smith, 2021 ONSC 3204.

[48] This is a child-focussed approach with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child's best interests. It may end up being equal time. It may end up being some other division of time. Each family is different, and the principle is a general guide set out to benefit children. Knapp v. Knapp, 2021 ONCA 305; R.F. v. J.W., 2021 ONCA 528.

[49] The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Kirichenko v. Kirichenko, 2021 ONSC 2833.

[50] While maximizing contact is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child's best interests, it should not be ordered. McBennett v. Danis, 2021 ONSC 3610; Young v. Young; Gordon v. Goertz; B.V. v. P.V., 2012 ONCA 262; Rigillo v. Rigillo, 2019 ONCA 548; K.M. v. J.R., 2022 ONSC 111, at para. 373.

[51] Olivia has made a request that all of Rommel’s parenting time be supervised. The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69; Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

[52] The burden is on the parent requesting supervision to establish that it is necessary. Nevertheless, it is the Court’s responsibility to ensure that the decision to end or maintain the supervision is in the best interests of the child.

[53] In this case, Olivia relies on the fact that the children are struggling and acting out and her concern that Rommel is engaging in behaviours that constitute family violence toward the children when he is caring for them. Rommel does not dispute that the children are having adjustment issues but, rather, denies the allegations of family violence and attributes the parenting conflict to Olivia being on a campaign to minimize and/or eliminate his parenting role with the children.

[54] As summarized in Stec v. Blair, 2021 ONSC 6212, paras. 22-24, per Fowler Byrne J.:

“Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.”

[55] I am not persuaded that Olivia has met the burden of demonstrating that Rommel’s parenting time needs to be supervised. I agree with the court in Lewis v. Lewis, 2005 NSSC 256 that supervision “is not appropriate if its sole purpose is to provide comfort to the custodial parent.” There needs to be evidence of a serious concern in terms of the children’s physical health or mental health and/or safety concerns involving the children to restrict a parent’s time to be supervised.

[56] On the conflicted record before me, I cannot determine whether there has been family violence or if there has been family violence, the extent to which such family violence is contributing to the children’s current behaviours.

[57] Olivia’s affidavit materials indicate that the children are struggling. It appears that L1 is dysregulated and has difficulty self-soothing. L1 is also showing challenging behaviours at recess, as documented by his teachers. It also appears that L1 is having nightmares and was distressed in his sleep. Olivia also deposes that L2 is having separation anxiety and out of sorts at daycare, also documented by the daycare workers. What I cannot determine is the root cause of these behaviours. These behaviours are also possibly the result of the children dealing with the parental separation, moving into two homes, and struggling with a parenting schedule that has them waking up in one parent’s home and falling asleep in a different parent’s home, every day of the school week. I can determine that the children are struggling and require some stability and predictability.

[58] Olivia asks this court to establish this predictability and stability by requiring Rommel’s parenting time to be supervised. Rommel asks this court to establish this predictability and stability by maintaining the current parenting schedule. I am not persuaded that either of these two options will create the stability and predictability that L1 and L2 require and deserve.

[59] Rather, a more child-focussed parenting schedule will afford the children the opportunity to get settled with one parent while ensuring that they do not go for too many days without seeing the other parent. In the meantime, Howard Hurwitz is in the midst of a s.30 parenting assessment. If he finds that there is family violence or other clinical issues that require these parents to engage in different treatments or take advantage of different resources, the family will hopefully follow these recommendations. A parenting assessment is a lengthy process but allows someone with skills in the mental health field to observe both parents with the children, meet with and interview the children, meet with and speak to every third party collateral involved with the children, and present to the court a set of recommendations that will have examined this family system, far more extensively than possible by the Court on a conflicted written record that has not been tested.

[60] Olivia’s actions in removing the children surreptitiously from school and daycare were steps she took to ensure her safety. At the time Olivia took these steps, she had counsel and an urgent case conference had been scheduled. Olivia could have attempted to file an emergency motion before the case conference prior to resorting in self-help measures. She did not do so. Rommel’s reaction to returning home and finding the children’s belongings and passports missing was understandable. Although Olivia deposed that Rommel knew she had not abducted the children, I am not persuaded that that was the case. I accept that Olivia was following the safety plan she had put in place with the assistance of counsellors. However, it would have been far less troublesome from Rommel’s perspective if, once having implemented that plan, Olivia’s counsel communicated to Rommel’s counsel, on that same day, where Olivia and the children were (i.e. safe in Toronto).

[61] The question is what parenting time schedule is best for these children?

[62] L1 and L2 have been having equal parenting time with the parents since November 10, 2025. They appear to be adjusting to the many changes in their homelife and the separation of their parents, albeit, struggling.

[63] I find that the parenting schedule which will meet both children’s needs, given their age and stages of development and given that they have demonstrated some difficulty in adapting to transitions, is a 2-2-5-5 schedule such that the children know they will be residing with Olivia on Mondays and Tuesdays, with Rommel on Wednesdays and Thursdays, and they will alternate their weekends with each parent. All parenting exchanges shall take place at each of the children’s schools/daycare.

[64] Given that Howard Hurwitz is in the midst of conducting a s.30 parenting assessment, there shall be no order for decision-making responsibility at this time. The parents are encouraged to rely on the advice of the doctors, dentists and third party professionals involved with the children, such as teachers, and use the recommendations of these third parties in attempting to reach any decision that may need to be made between now and when Howard Hurwitz’s assessment is concluded.

[65] The parties shall ask the children’s doctor for the names of three recommended therapists for L1. Counsel for both parties shall reach out to the respective therapists and engage the services of the first available therapist for L1. This shall take place immediately and not wait for Howard Hurwitz’s recommendations.

[66] These children deserve to live in a conflict free environment. They did not ask for this separation. While it is clear that the current parenting schedule is not working, I am not persuaded that the children’s best interests will be met by them only having supervised parenting with Rommel for one 5-hour period of time on a Saturday.

ORDER

[67] This court makes the following temporary parenting order:

a. The children shall reside with the parents pursuant to the following temporary 2-2-5 parenting schedule as follows:

i. In Week one:

1. the children shall reside with the applicant mother from Monday, after school to Wednesday morning, when she will drop off the children at school/daycare;
2. the children shall reside with the respondent father from Wednesday, after school to Friday morning, when the father shall drop off the children at school/daycare;
3. The children shall reside with the applicant mother from Friday, after school to Monday morning, when she will drop off the children at school/daycare; and

ii. In Week two:

1. the children shall reside with the applicant mother from Monday, after school to Wednesday morning, when she will drop off the children at school/daycare;
2. the children shall reside with the respondent father from Wednesday, after school to Friday morning, when the father shall drop off the children at school/daycare;
3. The children shall reside with the respondent father from Friday, after school to Monday morning, when he will drop off the children at school/daycare; and

b. All parenting exchanges shall take place at the children’s respective schools/daycare. If school is not open because of a holiday, or the children are not attending school due to illness, the parenting exchange shall take place at the closest Tim Hortons or McDonalds closest to the children’s school, where there is CCTV, unless agreed to otherwise, at 4:00 p.m. on a given day.

c. All communication between the parents shall take place on a co-parenting application called AppClose or Our Family Wizard. The parents shall subscribe to this app immediately and only communicate pertinent information about the children. The parents shall not denigrate the other parent in any communication between them. The parents shall not text or email one another unless in the case of an emergency. The parents shall respond to each other’s messages on AppClose/OFW within 24 hours of receiving a message, except in the case of an emergency when an earlier response may be necessary.

d. The residential parent shall be responsible to take the children to their activities and after school programs.

e. The parties shall each ask L1’s doctor for the names of three recommended therapists. The parties shall engage one of the recommended therapists based on which therapist can schedule the first appointment for L1.

f. There shall be no order as to decision-making responsibility at this time.

g. The parties shall attempt to resolve the issue of costs. If they are not able to do so, the parties shall exchange written costs submissions of no more than 3 pages, not including a Bill of Costs or Offers to Settle within ten days. Each party shall serve and file responding costs submissions of no more than 1 page, within 5 days of being served with the other party’s costs submissions.

M. Kraft
Date: January 13, 2025
Correction Date: January 22, 2025

Correction: Paragraph 67(a) in the original Endorsement dated January 13, 2025 has been deleted and replaced with the following:

[67] This court makes the following temporary parenting order:
(a) The children shall reside with the parents pursuant to the following temporary 2-2-5 parenting schedule as follows:

[1] In Olivia’s affidavit, sworn on December 9, 2024, such statements are found in paras. 8, 11, 12, 72, 72, 76, 96.