CITATION: Batsinda v. Batsinda, 2013 ONSC 7869
COURT FILE NO.: FC-13-372
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
ERIC BATSINDA
Applicant
v.
CHRISTINE BATSINDA
Respondent
P R O C E E D I N G S
BEFORE THE HONOURABLE MADAM JUSTICE D. CHAPPEL
on November 7, 2013 at HAMILTON, Ontario
APPEARANCES:
H.K. Juriansz Counsel for the Applicant
A. Katz Counsel for the Respondent
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR JUDGEMENT 1
RULING 67
Transcript Ordered:
November 9, 2013
Transcript Completed:
December 19, 2013
Ordering Party Notified:
December 20, 2013
THURSDAY, NOVEMBER 7, 2013
REASONS FOR JUDGMENT
CHAPPEL, D. (Orally):
I. OVERVIEW
The Applicant and the Respondent in this case are the parents of four children, namely: Arianne Batsinda, born November 25, 2004; Arvin Batsinda, born June 8th, 2007; Aline Batsinda, born March 10, 2010; and Alicia Batsinda, who is almost sixteen months old, born July 12, 2012.
This was the hearing of a motion brought by the Applicant father of the children, and a cross-motion brought by the Respondent mother. Both motions were originally returnable before me on May 31, 2013. In paragraph 3 of his motion, the Applicant seeks disclosure respecting a number of matters relating to the Respondent’s move from the matrimonial home on February 20th, 2013. At the hearing of the motion, the Applicant advised that the relief requested in paragraph 3(d) had been addressed. The Respondent advised through her counsel at the hearing of the motion that she consented to the remainder of the disclosure requested, subject to the proviso that she does not agree to disclose her current address. The Applicant agreed with this limitation. The real issues in dispute in this motion related to the four children. Both parties seek relief relating to the issues of custody of, and access to, the children. With respect to custody, the Applicant seeks a temporary order dividing the incidents of custody between the parties, pursuant to a parallel parenting arrangement. He wishes to have temporary decision-making respecting all matters relating to the children’s religion, health, and medical matters, and he is agreeable to the Applicant having decision-making respecting educational matters. The Applicant requests a timesharing arrangement, which would grant the parties equal time with the children on a week-about basis. The Respondent mother, on the other hand, seeks a temporary order granting her sole custody and primary residence of the children, with access to the Applicant father in accordance with the recommendations which Ms. Jenny Athanasiou, a clinical investigator with the Office of the Children’s Lawyer, set out in her report, dated September 12th, 2013. Ms. Athanasiou recommended that Arianne and Arvin have access for a four-week period from Friday after school until Saturday at 6:00 p.m., and the recommendation was that after four weeks, access to Arianne and Arvin should increase to occur from Friday after school until Sunday evening at 6:00 p.m. With respect to Aline and Alicia, the recommendation was for them to have access with the Applicant during the daytime only each Saturday from 9:00 a.m. until 6:00 p.m., and Sunday from 9:00 a.m. until 6:00 p.m. Ms. Athanasiou recommended that the Applicant father have the children for three consecutive weekends with the children spending every fourth weekend with their mother. She did not clarify how this recommendation was to correspond with her first recommendation regarding four weeks of weekend access from Friday after school until Saturday at 6:00 p.m. It is not entirely clear in the recommendation section of the report whether weekend access with Aline and Alicia was to continue only during the day, with no overnights. However, based on the comments at page 13 of the report to the effect that access with Aline and Alicia should be slowly integrated and increase as those children became older, it appears that the intention was to recommend only daytime weekend visits with those two children for the foreseeable future. In addition to weekend visits, Ms. Athanasiou recommended that the Applicant have weeknight visits with Arianne and Arvin each Tuesday from after school until 7:00 p.m., and a weeknight visit every Thursday from 4:00 p.m. until 6:00 p.m., and specified vacation access. Further, her recommendation was that the Respondent mother be granted sole custody.
For the reasons that follow, I have concluded that is not appropriate in this case to grant temporary sole custody to either party. Although neither party requested joint custody, I have also determined that a temporary order for joint custody is not feasible, having regard for the level of conflict between the parties at this time, and that a joint custody would not be in the best interest of the children. I conclude that the custodial arrangement which is in the best interests of the children, at least at this point in time, is to make a temporary order pending the final resolution of this matter, dividing the incidents of custody. With respect to time sharing, upon carefully considering all the evidence in the case, and the report of Ms. Athanasiou, I am not satisfied that the recommendations set out in her report are in the best interests of the children, at least at this point. I have determined that it is in the best interest of the children to implement a temporary order that begins with overnight weekend time for the Respondent to Arianne and Arvin, and daytime visits with Aline and Alicia, but which sets out clear time frames for the progression of time between the Applicant and all four children, to include overnight time both during the week and on weekends. Specifically, I have concluded that it is in the best interests of the children that their time with the Applicant gradually progress over the next several weeks towards a two-week rotating schedule that includes weeknights and weekend overnight time with the children. The first week will include time with their father, from Wednesday at 3:30 p.m. until Friday at 7:00 p.m., and the second week will include from Thursday at 3:30 p.m. until Sunday at 7:00 p.m.
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