Court File and Parties
Ontario Court of Justice
Date: 2018 April 23
Court File No.: Toronto DFO 18 15265
Between:
Mojgan Rahbari-Jawoko Applicant
— And —
Kennedy Jawoko Respondent
Before: Justice E.B. Murray
Heard on: April 20, 2018
Endorsement released on: April 23, 2018
Counsel
Mojgan Rahbari-Jawoko — the applicant on her own behalf
Rachel Nusinoff — counsel for the respondent
Endorsement
[1] Motion for Temporary Parenting Order
This is my decision on a motion brought by Father in the Integrated Domestic Violence Court in Toronto. Father asks for a temporary order providing that the parties have joint custody of their son O., born Sept. 10, 2015, and that the child spend 50% of his time with each of them. Mother opposes those requests. She asks that the temporary without prejudice orders made on consent on January 23, 2018 and March 6, 2018 continue. Those orders provide that Mother has custody of O. and that Father have access each Monday and Friday from 10 a.m. to 6 p.m. and on alternate Sundays from 10 a.m. to 6 p.m.
[2] Parties' Positions
Father says that he is perfectly capable of caring for O., as he has in the past. He alleges that Mother is trying to marginalize his role in the child's life. Mother says that Father is not capable of caring for the child on an overnight basis and that the child is too young to be separated from her overnight.
[3] Court's Determination
As I advised the parties after argument of the motion on April 20, 2018, I am of the view that the appropriate temporary order, the order that is in O.'s best interests, is one which allows the child to have overnight as well as daytime periods with Father and which allows each parent to participate in making important decisions about the child.
[4] Approach to Temporary Parenting Orders
I agree with Ms. Nusinoff that the appropriate approach to a temporary parenting order in most cases is one which, to the extent possible, preserves the child's pre-separation time and relationship with each parent. I recognize that in some cases a child's safety may be threatened by a continuation of the pre-separation pattern of contact. Based on the evidence before me now, I do not find that this is one of those cases.
[5] Factors Considered in Determining Temporary Residential Schedule
I take into consideration the following factors in deciding a temporary residential schedule:
Prior to Mother removing O. from the family home on January 9, 2018, the parties had been living separate and apart in the home since May 2016, and had been cooperating in parenting O.
Prior to January 9, 2018 it appears that O. had never been apart from Mother for an overnight period. Mother asserts this. Father's evidence shows some out-of-town professional travel on his part during which O. stayed with his mother.
O. attended daycare 3 days each week, and each parent cared for the child at times when the other parent was working. From January 2017 to January 9, 2018, Father cared for the child each Wednesday and each Thursday after daycare from 1 p.m. to bedtime. On evenings and weekends both parties divided their time to care for the child.
During this period O. slept in Father's bedroom at least some of the time, as Father had vacated the master bedroom for Mother's use.[1] Father is used to dealing with O.'s bedtime routine as well as his needs at night if he awakes.
Although Mother argued in submissions that Father provided inadequate care for the child and sometimes drank to excess, I have no evidence of this. What I do note is that Mother participated in a caregiving program for more than 1 ½ years in which Father played a significant role. Mother presents as a conscientious parent. I do not believe that she would have continually left O. in his father's care if she thought the child would be at risk.
I have no evidence that the Children's Aid Society (who were, as per protocol, contacted by police after Father was charged with assaulting Mother) has any concerns about the care provided by Father.
I have no evidence that O. has any special needs.
Each party has substantial time to spend with the child. Father teaches at Seneca, and has classes Tuesday-Thursday afternoons. He will not be working over the summer. Mother teaches a class Wednesday afternoons; she has other work that she can do at home on her own schedule.
Neither party suggests that O. does not have a good and loving relationship with the other parent.
Each party appears to be able to meet the child's instrumental needs as well as his need for social and emotional support.
[6] Domestic Violence Allegations
Mother submits that Father has been guilty of domestic violence against her in the past, and says that this should weigh against Father's request that O. spend overnight time with him. She went to police with these allegations on January 12, 2018 and he was charged with 3 counts of assault on dates in August, September, and October 2017. Mother provides no evidence as to any of the particulars of these alleged assaults. I have no information about what she says that Father did, other than a bald accusation. Mother does not say whether O. was present on any of the dates she alleges assault.
[7] Impact of Domestic Violence on Child's Best Interests
There are cases in which it has been recognized that a parent who perpetrates domestic violence in the home is putting his or her children at risk of psychological harm.[2] There is no evidence before me now that establishes that Father has assaulted Mother. Mother's allegations of assault do not lead me to order that O. have no overnight time or less time with Father than is otherwise in his best interest.
[8] Breastfeeding as a Factor
Mother's evidence is that, although at some time prior to the physical separation on January 9, 2018, O. was bottle-fed, she is now breast-feeding the child. She argues that this should prevent any overnight time for the child with Father. She says that she is unable to express milk. In my view, Mother's desire to revert to nursing O. with breast milk is not an impediment to the child spending overnight time with Father. O. was bottle fed in the past, and continues to be fed in this manner now during the day periods he spends with Father.
[9] Rationale for Parenting Schedule
In making the following order for O.'s temporary residential schedule, I try to reflect the pattern of time the child had with each parent prior to January 9, 2018, and to insure that the child sees each parent frequently. I did not order, as requested by Father, that O. spend alternate weekends with him from Friday morning to Tuesday morning. In my view, 4 nights away from Mother is too lengthy a time for the child to be separated from her now.
[10] Temporary Parenting Order
I order as follows:
Other than as set out below, O. shall reside with Mother.
O. shall live with Father as follows:
a. Week 1
- i) Monday from 9 a.m. to Tuesday at 9 a.m.;
- ii) Friday from 9 a.m. to 6 p.m.
b. Week 2
- i) Monday from 9 a.m. to Tuesday at 9 a.m.;
- ii) Friday from 9 a.m. to Saturday at 6 p.m.
Transfers of the child shall take place at his daycare, Kids and Company, except for the transfers on Saturdays or Sundays, which shall take place at the children's play place at Indigo Bookstore at 55 Bloor St. W., Toronto.
The above-noted schedule shall commence with Week 1 on Monday April 30, 2018.
If O. is not otherwise with Mother on Mother's Day, May 13, 2018, he shall be in her care on that day from Sunday at 9 a.m. to Monday morning at 9 a.m.
If O. is not otherwise with Father on Father's Day, June 27, 2018, he shall be in his care on that day from Sunday at 9 a.m. to Monday morning at 9 a.m.
Father shall have O. with him for vacation from Sunday June 17, 2018 at 9 a.m. to Sunday June 24, 2018 at 5 p.m. Mother, if she wishes, may have an equal period of exclusive time with O. for vacation on prior written notice to Father.
The parties shall communicate with each other about important issues related to O. by email or text.
O. is not to be removed from the province of Ontario without further court order or prior written agreement by each party.
Neither party shall move the child's residence a distance greater than 15 km from his/her current resident without further court order or prior written agreement of the parties.
[11] Shared Decision-Making
It is desirable if O.'s parents are able to cooperate in making any major decisions that may arise about the child, provided that the decision can be reached in a timely manner and without significantly increasing conflict between the parties. There do not appear to be any major decisions that have to be made within the next few months about O. The record I have to date shows that the parties are able to communicate with each other and reach an agreement on issues such as choice of daycare or arrangement of dental care. I understood from the parties that they intend to participate in closed mediation on parenting issues with Mediate 311.
[12] Additional Parenting Order Provisions
The appropriate temporary parenting order at this time is as follows:
Each party shall have the right to receive, without authorization from the other party, information about O. from the child's service providers, including the child's daycare centre staff, doctor, and dentist.
Each party shall advise the other in a timely manner of any illness or accident suffered by O. while in his/her care.
The parties shall confer and decide together any major issue concerning O. If, after consultation with the other, they are unable to agree then the issue may be determined by the court.
[13] Costs
My initial inclination is to say that costs in the cause is the appropriate order. For Mother's benefit, that means that costs related to this motion would be determined in light of the ultimate results of the case. However, if either party wishes to pursue a claim for costs of the motion now, then he/she shall serve and file submissions of no longer than 6 pages with any offers to settle by May 7, 2018. Any response of no more than 6 pages shall be served and filed by May 21, 2018.
Released on: April 23, 2018
Justice E. Murray
Footnotes
[1] Mother asserted in submissions that she co-sleeps with O. It was not clear whether she referred to the period since physical separation only, or to a time prior.
[2] See, for example, K.O.M.D. v. K.S., 2017 OJ 6860 (OCJ)