CITATION: A.R. v. M.C., 2021 ONCJ 525
DATE: October 19, 2021
COURT FILE NO. D41341/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
A.R.
ELISSA GAMUS, for the APPLICANT
APPLICANT
- and -
M.C.
ZAKIYA BHAYAT, for the RESPONDENT
RESPONDENT
HEARD: OCTOBER 14, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] The parties have both brought motions for temporary parenting orders regarding their two sons, M.C. (age 5) and I.C. (age 4) (the children).
[2] The applicant (the mother) seeks a temporary order for sole decision-making responsibility for the children. She also seeks a temporary order that the respondent (the father) have temporary parenting time with the children on three weekends each month from Friday evening until Monday morning. She also proposes that he have parenting time with the children on one Wednesday overnight each month if there are four weeks in a month – and two Wednesday overnights, if there are five weekends in a month. The mother also sought an order for temporary child support.
[3] The father seeks a temporary order that he and the mother have equal parenting time with the children. He proposes a week on - week off parenting arrangement, or in the alternative, a 2-2-3 parenting schedule. He did not bring a motion for temporary decision-making responsibility. He opposes the mother’s request for temporary sole decision-making responsibility for the children and submits that no temporary decision-making responsibility order should be made.
[4] The parties were able to resolve several of the issues raised in their motions and filed temporary minutes of settlement at the outset of the hearing. These terms will be incorporated into the court order. The agreement resolved on a temporary basis:
a) Child support, including contributions to special and extraordinary expenses.
b) Child support arrears.
c) Emergency decision-making for the children.
d) Day-to-day decision-making for the children.
e) Obtaining third party information about the children.
f) Requiring the parties to use subsidized daycare for the children and to take all steps necessary to maintain the subsidy.
g) That the parties would maintain listed medical practitioners for the children, with a term that if there is to be a change in the medical practitioner, and the parties cannot agree, the court order regarding decision-making responsibility will be determinative.
h) Communication terms.
i) Holiday parenting time with the children up to and including the March Break in 2022.
[5] During submissions, the mother agreed that the court only needed to determine temporary decision-making responsibility regarding the issues of health and tutoring for the children, provided that the children’s school and daycare are not changed, and the person who exchanges the children between their daycare and school is not changed. The father agreed that this person, and the children’s school and daycare shall remain the same.
[6] The remaining issues on these motions are:
a) Is it in the best interests of the children to make a temporary decision-making responsibility order regarding their health and tutoring? And if so, what order is in their best interests?
b) What temporary parenting time order is in the children’s best interests?
Part Two – Background facts
[7] The mother is 38 years old. The father is 42 years old.
[8] The parties are the parents of the children. The mother also has a 14-year-old daughter from another relationship who lives with her.
[9] The parties lived together from April 2015 until March 2021.
[10] After the parties separated, the children lived with the mother during the week and with the father on weekends.
[11] The mother issued her Application on March 20, 2021.
[12] The father filed his Answer/Claim on April 28, 2021.
[13] On August 4, 2021, on consent, the father was ordered to pay temporary child support to the mother of $890 each month, based on his declared annual income of $58,423, starting on August 1, 2021. The court adjourned the parenting issues as a referral had been made to the Children’s Aid Society of Toronto (the society) regarding concerns of inappropriate touching of the children by the father and more information was required about the society’s investigation.
[14] The society investigated the concerns and closed its file.
[15] On September 2, 2021, the court set timeliness for hearing these motions. On a temporary, without prejudice basis, the court ordered that the children reside with the mother from Monday morning until Friday after school and with the father from Friday after school until Monday morning.
Part Three – The parties’ positions
[16] The mother states that she was the primary caregiver for the children while she lived with the father and that she was the decision-maker for them.
[17] The mother deposed that the father was physically and emotionally abusive to her during the relationship and that he has continued his controlling and coercive behaviour towards her since the separation.
[18] The mother feels that she cannot communicate effectively with the father about the children. She says that he is demanding and insistent about getting his own way. She says that he unilaterally withheld the children from her for several days in August and in September 2021 in contravention of their temporary parenting agreement. She deposed that he has also unilaterally removed the children from daycare and has taken them to different health practitioners without her consent.
[19] The mother says that the children have evolving medical issues and there is a good chance that temporary health decisions will need to be made. She also said that M.C. will require tutoring. She is concerned that the father will obstruct her meeting these needs for the children or that he will make unilateral decisions regarding them.
[20] The mother criticized the father’s parenting. She said that during their relationship, he preferred to go out with his friends rather than care for the children. Since the separation, she believes that the father does not offer structure and routine for the children and that they spend far too much time on social media. She said that the father will rarely do homework with M.C. She expressed concern that the father often goes out to socialize with friends during his parenting time, leaving the children with his mother. She claims that the father has deleted her number from the children’s iPads so that they are unable to contact her during his parenting time. She says that the father will not answer her calls when the children are with him.
[21] The mother says that she recognizes the importance of the children having a meaningful relationship with the father. She believes that the current amount of parenting time with the father is in their best interests. She asks to modify the current parenting time arrangement so that the children can spend at least one weekend with her each month and go to church with her.
[22] The father offers a different narrative and denied all the mother’s allegations – particularly about family violence and his parenting ability. He believes that the mother is making false allegations against him to obtain an advantage in this case.
[23] The father claimed that the mother was physically abusive towards him.
[24] The father says that he was an equally involved parent with the children prior to the parties’ separation. He said that he researched the causes of delayed speech, autism and Attention-Deficit Disorder for M.C. (it has turned out that M.C. does not have autism or Attention-Deficit Disorder). He said that he researched schools for the children.
[25] The father says that he has been very involved in the children’s health care. He stated that he has been the parent primarily taking them to speech therapy.
[26] The father attested that the mother imposed the temporary parenting arrangement after their separation and that he has never been satisfied with it. He believes that she is trying to marginalize his involvement with the children.
[27] The father believes that, despite their differences, he and the mother are able to effectively communicate about the children. He has sought a joint decision-making responsibility order in his Answer/Claim. He believes that the temporary minutes of settlement adequately addresses temporary decision-making responsibility for the children and that no further order needs to be made.
[28] The father asks that the parenting exchanges take place at the children’s school, or if the school is closed, at a public location, equidistant between the parties. He deposed that he is seeking this order at the suggestion of the society and the police. The mother asks that the exchanges take place at the children’s daycare as she does not want to compromise the daycare subsidy. If the daycare is closed, she asks that the exchanges take place at her home.
Part Four – General legal considerations for temporary parenting orders
[29] 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. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.
[30] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act). The court has considered these factors that are relevant to this case.
[31] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[32] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.
[33] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child.
[34] Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence. Family violence has been given a comprehensive definition in subsections 18 (1) and (2) of the Act.
[35] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
- 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
[36] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
Part Five – Decision-making responsibility
5.1 Specific legal considerations
[37] Subsection 18 (1) of the Act defines decision-making responsibility as follows:
“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,
(a) health,
(b) education,
(c) culture, language, religion and spirituality, and
(d) significant extra-curricular activities;
[38] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint decision-making responsibility order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
[39] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022.
[40] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 6423 (ON S.C.).
[41] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; Pinda v Pankiw, 2018 BCSC 190.
[42] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and,
c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
[43] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.
5.2 – Analysis
[44] The parties, in submissions, agreed that the children’s school, daycare and the person who exchanges them between their daycare and school should not change.
[45] The parties agreed in the temporary minutes of settlement to maintain the children’s current doctor, dentist, surgeon and speech therapist.
[46] However, the parties did not agree on a mechanism for how a non-emergency health decision concerning the children would be made, or who would decide if the children should have a new health practitioner if they could not agree.
[47] Both children have some special needs and attend speech and language therapy. M.C. has had tongue-tie surgery. He likely requires occupational therapy. Other health issues may arise pending final resolution. The mother also submitted that M.C. likely requires tutoring.
[48] An order that is silent about decision-making responsibility regarding health and tutoring for the children essentially requires the parties to jointly make these decisions. If they cannot agree, this becomes problematic for professionals who will not know which parent has the authority to make these decisions for the children.
[49] The court finds that it is not in the children’s best interests to leave the issue of decision-making responsibility for health and tutoring silent or to make an order for temporary joint decision-making responsibility.
[50] The parties offer very different accounts of their relationship. The court is aware that this evidence has not been tested through cross-examination. However, the following findings from the uncontested evidence are more than sufficient to find that one parent should have temporary decision-making responsibility regarding health and tutoring decisions for the children:
a) The parties communicate poorly with each other. They each blame the other for this. They both interpret facts to draw the worst possible conclusion about the other.
b) The parties accused each other of family violence. The mother is accusing the father of significant family violence.
c) The parties have little trust in or respect for the other – certainly nowhere near enough to effectively make joint decisions for the children at this time. On February 25, 2021, the father filed a police report against the mother. He said it was after she falsely accused him of hitting her and forcing him to have sex in front of the children. The father installed a camera in his room in March 2021, he said, to protect himself from being falsely accused by the mother of any violence. The mother filed a report with the police regarding this. No charges were laid arising out of these reports.
d) The parties have also involved the society in their dispute. Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidates for joint decision-making responsibility or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147.
e) The parties accused each other of lying and using litigation tactics to obtain an advantage in this case.
f) The parties accused each other of acting unilaterally regarding the children and excluding the other.
g) The parties have arranged exchanges to limit in-person contact with each other due to the high level of their conflict.
h) Neither parent had anything positive to say about the other.
[51] The evidence, on a preliminary basis, also raises concerns about the father and whether he would use a joint decision-making order as a mechanism to control the mother and expose the children to conflict. It also informs the court that the mother should have temporary decision-making responsibility regarding the children’s health and tutoring on a temporary basis. This evidence is as follows:
a) On February 25, 2021, the father presented the mother with a separation agreement providing that he have sole decision-making responsibility for the children. The mother said that the father would not let her leave with the children unless she signed it. The mother did not sign it.
b) The father took M.C. to a different dentist after the separation without the mother’s prior consent. M.C. subsequently saw his own dentist with significant dental issues.
c) The father explored changing the children’s speech therapist without the mother’s consent. There was no need to do this.
d) The parties had an oral temporary parenting time arrangement that had been in effect since March 2021. After the first case conference in August 2021, the father unilaterally changed that agreement because he wanted vacation time with the children (he might also have been upset with the referral to the society). He removed the children from daycare on two occasions for several days over the summer. They missed speech therapy.
e) The father is very focused on his rights. His material focused on what he is entitled to and how he has been victimized by the mother. He spent little time discussing the children’s needs. The court is concerned about whether he is able to distinguish the children’s needs from his own.
f) An email the father sent to the mother on August 14, 2021, after he unilaterally changed the existing parenting schedule, is revealing. Excerpts from this email are as follows:
I want to be clear that the old schedule you tried to implement no longer applies or is recognized, as that schedule was not dictated by any authority.
I was clear in my correspondence that I will have my kids 50% of the time as I am entitled to do so, and I will not back down because they ae our kids. The authorities will not tell my differently as you yourself know that I am a good father and do the best that I can for our boys, no different than you do.
Again, I just want to make it crystal clear that I want my kids 50% of the time and the previous schedule will not work anymore. I miss my kids when they are gone, as I always have.
g) The father sent the mother another email on August 16, 2021, where he writes in the first paragraph:
A.C., you are not understanding this! You are not entitled to any schedule. The boys have been living with me since birth. They have not responded to your attempted schedule well and need their father more than ever now.
h) The father did not provide the mother with an appropriate amount of child support after the separation. He paid her $400 each month until the court made a temporary order at the case conference in August 2021. The father should have been paying the mother $890 each month. He placed his own interests ahead of the children’s interests. This also placed the mother in a precarious financial position. This was controlling behaviour on his part.
[52] The mother also filed evidence indicating that the father was exaggerating his past involvement with the children. The children’s family doctor swore an affidavit that the mother has been the primary parent who has been taking the children to their medical appointments. Since March 2020, he said that all medical appointments have been by phone and only with the mother. The children’s daycare provider (since 2016 for M.C. and 2017 for I.C.) stated that the mother is the person who picked up and dropped off the children until this year when the father did the exchanges on Friday afternoons and on Monday mornings.
[53] Also, the mother filed a letter that the father had sent to the daycare in November 2020, where he wrote that he was unable to assist the mother in picking up the children after school since he was employed, his work hours and locations of work varied and he usually worked out of town, sometimes for a duration of 12-14 hours. The father did not deny writing this letter. He said that it was false and written to assist the mother so that the daycare could keep the children for longer hours. This explanation did not assist the father. He either was working these hours and exaggerated his involvement with the children, or he was prepared to lie to the daycare to advance his interests. This adversely affects his credibility. In the absence of corroboration, the court is not willing to accept his explanation at this point that the mother was complicit in his misrepresentations to the daycare.
[54] The evidence indicates that the mother has been making responsible health decisions for the children. On a temporary basis, and subject to the terms agreed to in the temporary minutes of settlement, it is in the children’s best interests that she have decision-making responsibility for the children’s health care and M.C.’s tutoring. She is to meaningfully consult with the father before making these decisions.
Part Six – Parenting time
6.1 – Legal considerations
[55] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[56] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.
[57] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.
[58] In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:
[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”
[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.
[59] Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.
[60] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.
6.2 – Analysis
[61] The court finds that it is in the children’s best interests to make an order for parenting time that is similar to the status quo that has been in place since the parties separated in March 2021.
[62] The evidence indicates that the children enjoy excellent relationships with both parents and other members of the maternal and paternal families. The children benefit from this meaningful contact.
[63] This parenting time arrangement has been stable and consistent and the children have benefitted from this.
[64] The court finds that it is in the children’s best interests that the children spend one out of every four weekends with the mother. The mother wants to take the children to church on the Sundays the children spend with her. The ability of a parent to share their culture, religion and spirituality with a child is a best interests factor under clause (f) of subsection 24 (3) of the Act. Further, many activities for children are only open on weekends. The children should be able to participate in these activities, at times, with the mother and their half-sister.
[65] The mother proposes that the father have parenting time on Wednesday overnight once each month and twice in months with five weekends. The court finds that it is in the children’s best interests that the father’s weekday parenting time take place once every four weeks from Tuesday with pickup from daycare until the Thursday morning when the father is to return the children to daycare. This additional parenting time is more reflective of the time that the children have been spending with the father and will give the father an opportunity to participate in the children’s weekday routine, without unduly disrupting it.
[66] The evidence does not support the equal-parenting order sought by the father for the following reasons:
a) The level of communication between the parents is far too poor to effectively coordinate such a parenting plan.
b) Given the age and special needs of the children, it is in their best interests that they have a stable weekday routine. The parenting approaches appear to be very different in the two homes.
c) The court has more confidence in the mother at this point to consistently arrange for and attend at the children’s health appointments. These appointments will ordinarily take place on weekdays.
d) The children are not used to being away from the mother for the seven consecutive days sought by the father.
e) The father’s alternative proposal of a 2-2-3 parenting plan requires too many transitions for the children that they are not used to. Increased transitions also increase the potential of exposing the children to adult conflict.
f) The request for equal parenting time by the father appears to be more about his assertion of his rights than about the best interests of the children.
[67] The court finds that it is in the children’s best interests to make the parenting exchange arrangement sought by the mother – being exchanges at the children’s daycare, so as not to compromise their subsidy, and if the daycare is closed, at her home.
Part Seven – Conclusion
[68] A temporary order shall go as follows:
a) On the terms set out in paragraphs 1-19 of the temporary minutes of settlement dated October 14, 2021.
b) A support deduction order shall issue.
c) Subject to paragraph 7 of the temporary minutes of settlement (which states that the parties will maintain the children’s current doctor, surgeon, dentist and speech language therapist) and after meaningful consultation with the father, the mother shall have the decision-making responsibility regarding non-emergency health decisions for the children.
d) After meaningful consultation with the father, the mother shall have the decision-making responsibility regarding tutoring for M.C.
e) Unless the parties agree otherwise in writing, the children shall stay at their present school and daycare and use the person who presently takes them between their school and daycare.
f) The children’s primary residence shall be with the mother.
g) The father shall have regular parenting time with the children as follows:
i) Three out of every four weekends from Friday, with pickup by the father at daycare, no earlier than 4:30 p.m., until Monday morning, when the father shall return the children to daycare, no later than 7:30 a.m. This will start on Friday October 22, 2021. The children shall spend three consecutive weekends with the father, followed by one weekend with the mother.
ii) In the week preceding the weekend when the father does not have parenting time, he shall have parenting time with the children from Tuesday, with pickup by the father at daycare, no earlier than 4:30 p.m., until Thursday morning, when the father shall return the children to daycare, no later than 7:30 a.m.
h) If the daycare is closed when an exchange is to take place, the father shall exchange the children at the mother’s home.
[69] If either party seeks costs, they shall serve and file written submissions by November 2, 2021. The other party will then have until November 16, 2021 to serve and file their written response (not to make their own costs request). Both parties shall file costs outlines. The submissions shall not exceed 3 pages, not including any costs outline or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.
[70] The court strongly urges the parties to negotiate a final parenting plan as soon as possible. The risk of the children being adversely impacted by parental conflict increases the longer this litigation continues.
[71] The court is hopeful that this decision will provide the parties with a framework to resolve the case. It also hopes that it serves as a reality check for the father. If he continues to primarily focus on his rights, the court process is bound to become very costly and disappointing for him.
[72] The court thanks counsel for the high quality of their presentation.
Released: October 19, 2021
_____________________ Justice S.B. Sherr