COURT FILE NO.: FS-14-0729
DATE: 2014-04-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DR. PATRICIA GONZALEZ
Paul C. Buttigieg, for the Applicant
Applicant
- and -
EDIN TROBRADOVIC
Sandra J. Meyrick, for the Respondent
Respondent
HEARD: April 1, 2014,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] On February 9, 2014, police charged Patricia Gonzalez with assaulting her common law partner, Edin Trobradovic. They based their arrest on Mr. Trobradovic’s complaint that Ms. Gonzalez had stabbed him in the face with a fork, which Ms. Gonzalez denies.
[2] Ms. Gonzalez states that Mr. Trobradovic injured himself to bolster his own credibility when facing the police, whom Ms. Gonzalez had summoned to their home following an altercation between them. Mr. Trobradovic concocted his complaint, she says, with the aim of having her arrested and thereby gaining control of her home and their one year old daughter, Lara.
[3] After Ms. Gonzalez was released from custody on terms of bail that prohibited her from returning to her home or contacting Mr. Trobradovic, except for the purpose of arranging access to Lara, she agreed to a temporary order of Emery J. which provided for her to exercise limited access to Lara.
[4] Ms. Gonzalez now moves, on grounds of urgency, to dispense with the holding of a case conference, as prescribed by the Family Law Rules, and for an order restoring her to possession of her home and primary care of Lara. Mr. Trobradovic argues that the motion is premature until the trial of the criminal charge takes place in November 2014. He submits that the outcome of the criminal trial will help this court determine whether Ms. Gonzalez presents a risk of harm to others, including Lara. He further argues that the motion is neither urgent nor necessary, because Ms. Gonzalez has found suitable alternative accommodation elsewhere, and is exercising access to Lara with his consent.
[5] I have concluded, for reasons that follow, that Ms. Gonzalez’ arrest on Mr. Trobradovic’s uncorroborated complaint, and the ensuing abridgement of her parental right to custody of Lara, and of her right to possession of the home she has owned since before her cohabitation with Mr. Trobradovic, are circumstances of urgency that justify dispensing with a case conference so that an immediate adjudication can be made of the issues of temporary custody of Lara and possession of Ms. Gonzalez’ home with reference to the applicable principles of family law.
[6] I have further concluded that as there is no lawful basis for Mr. Trobradovic remaining in the home, following Ms. Gonzalez’ delivery of a notice pursuant to the Trespass to Property Act,[^1] and that Ms. Gonzalez should be restored to possession of it. As Lara is accustomed to the house as her home, and requires continuity and stability during her parents’ transition to separate households, the status quo that prevailed before her parents’ separation should be restored, with the result that Lara will reside primarily with Ms. Gonzalez, subject to liberal access by Mr. Trobradovic.
BACKGROUND FACTS
[7] Mr. Trobradovic, a 32 year old building contractor, began cohabiting with Ms. Gonzalez, a 37 year old medical doctor, in November 2012, when Mr. Trobradovic moved into the home Ms. Gonzalez owns at 1343 Milton Avenue in Mississauga, Ontario (“the Milton Avenue home”).
[8] Two months later, Mr. Trobradovic and Ms. Gonzalez became the parents of Lara Santina Trobradovic (“Lara”), born January 22, 2013.
[9] Ms. Gonzalez and Mr. Trobradovic separated on February 9, 2014, when police arrested Ms. Gonzalez following an altercation between the parties at the Milton Avenue home. The police made their arrest based on a complaint by Mr. Trobradovic that Ms. Gonzalez had stabbed him in the face with a kitchen fork. Ms. Gonzalez denies the accusation. She states that Mr. Trobradovic intentionally injured himself to bolster his credibility in facing the police, whom she had summoned to the home following an altercation between the parties.
[10] Ms. Gonzalez now moves for an order restoring her to possession of her home and granting her temporary or final sole custody of Lara. Mr. Trobradovic opposes her motion.
ISSUES
[11] The motion raises the following issues:
a) Are there circumstances that justify dispensing with a case conference, prescribed by the Family Law Rules?
b) Is Ms. Gonzalez entitled to exclusive possession of her home, notwithstanding Mr. Trobradovic’s claim to a constructive trust interest in the home?
c) What custody, access, and parenting schedule are in Lara’s best interests?
PARTIES’ POSITIONS
a) Dispensing with Case Conference
[12] Mr. Trobradovic objects to the manner in which Ms. Gonzalez brought her motion, on the following grounds:
a) Ms. Gonzalez failed to serve her Application and motion on Mr. Trobradovic’s lawyer in accordance with the Family Law Rules (“FLR”). The FLR require an applicant to serve her Application by special service, and Ms. Gonzalez served it by fax.[^2]
b) Ms. Gonzalez failed to obtain Mr. Trobradovic’s lawyer’s consent before serving her application and motion by facsimile transmission, although the material consisted of 64 pages, which exceeds the length beyond which the FLR requires that the recipient’s consent be obtained in advance.
c) Ms. Gonzalez scheduled the hearing of her motion without first proceeding to a case conference, as required by the FLR except in circumstances of urgency.[^3]
[13] Ms. Gonzalez argues that the consequences of the criminal charge against her, in removing her from her home and depriving her of her primary care of Lara, raise circumstances of urgency that justify dispensing with strict adherence to the rules as to the manner of serving documents and holding a case conference before the motion is heard.
b) Possession of the Milton Avenue Home
[14] Mr. Trobradovic asserts that he and Ms. Gonzalez bought the Milton Avenue home together, but registered it in Ms. Gonzalez’ name alone, “for business purposes,” which I interpret to mean to protect it from his creditors.
[15] Mr. Trobradovic states that he “organized” and has paid for the mortgage to this point, and spent a large amount of time and money improving the property. He says that his contributions entitle him to a constructive trust interest in the home, and that Ms. Gonzalez would otherwise be unjustly enriched at his expense.
[16] Mr. Trobradovic states that Ms. Gonzalez removed her belongings from the Milton Avenue home on February 17, 2014, and that her terms of bail bar her from attending there. He further states, and Ms. Gonzalez admits, that she has secured accommodation in a condominium apartment in Burlington. He therefore argues that her motion for exclusive possession of the home is unnecessary.
[17] Ms. Gonzalez argues that she is the sole owner of the Milton Avenue home, denies that Mr. Trobradovic made a substantial contribution to its acquisition or maintenance, and states that he has no valid claim to a constructive trust interest in it. She further argues that, in any event, as she and Mr. Trobradovic never married, and she has served a notice on Mr. Trobradovic pursuant to the Trespass to Property Act, informing him that he is prohibited from being on the property, he no longer has a lawful right to be there.
c) Custody of Lara
[18] Ms. Gonzalez argues that it is not safe for Mr. Trobradovic to have custody of Lara as he is addicted to alcohol and non-prescription drugs. She seeks an order requiring Mr. Trobradovic to undergo hair follicle testing for drug use, an order prohibiting him from entering the Milton Avenue home, and restraining him from molesting, harassing, or annoying her.
[19] Mr. Trobradovic seeks an order dismissing Ms. Gonzalez’ motion and requiring the parties to follow the usual procedural step of attending a case conference before seeking a determination as to possession of the Milton Avenue home and custody and access to Lara. In the alternative, he seeks a temporary order granting him sole custody of Lara and requiring Ms. Gonzalez to exercise supervised access to her in accordance with a specified schedule. In the further alternative, he seeks an order for joint custody of Lara, with primary residence with Mr. Trobradovic, and supervised access by Ms. Gonzalez.
[20] Mr. Trobradovic says that he has been making decisions in Lara’s best interests. He further states that he recognizes the importance of Lara’s relationship with her mother and Ms. Gonzalez’ access to Lara and has been acting accordingly.
ANALYSIS AND EVIDENCE
a) Dispensing with Case Conference
[21] The Family Law Rules require litigants, except in exceptional circumstances, to attend a case conference before proceeding with a motion. Rule 14(4) provides that a case conference shall be held for every motion. Sub-Rule (4.1) provides that no notice of motion or supporting evidence may be served and no motion may be heard before the case conference is held.
[22] A case conference is a venue in which litigants can narrow the issues in dispute and discuss settlement.[^4] In Rosen v. Rosen, Wildman J. summarized the purpose of case conferences as follows:
The philosophy of the Family Law Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge.[^5]
[23] In Howatt v. Howatt, Steinberg J. stated, “The purpose of Rule 14 is to lessen the number of interim motions that occur in family law matters which have contributed to a significant increase in the cost of carrying on family law litigation.”[^6]
[24] Sub-Rule 14(4.2) provides that sub-Rules (4) and (4.1) do not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interests of justice. The jurisprudence defines “urgency,” in this context, to refer to circumstances such as abduction, threats of harm, and dire financial circumstances.[^7] In Rooney v. Rooney, Kukurin J. noted that dispensing with the case conference is an exception to the procedural requirements that should be made infrequently, based on compelling evidence.[^8]
[25] Ms. Gonzalez acknowledges that a case conference could have been held on March 4, 2014, following her first appearance in criminal court on February 24, 2014. Mr. Trobradovic argues that such a conference was desirable and that there are no urgent circumstances that justify dispensing with the requirement for a conference, because there is no threat of harm to Lara while in his care, and Ms. Gonzalez acknowledges that she is not in dire financial circumstances.
[26] The exceptions provided for in Sub-Rule 14(4.2) are broader than urgency alone. In McDermott v. McDermott, Karakatsanis J., as she then was, dispensed with a case conference and made an order for sale of a matrimonial home pursuant to the Partition Act. She did so, notwithstanding the absence of urgency, on the ground that “a case conference was not required for some other reason in the interests of justice.”[^9]
[27] Karakatsanis J. found that the husband was clearly entitled to an order for sale and, to avoid duplication of proceedings, she made the order for sale. Recognizing that the sale of the home was intertwined with other issues, and in order to preserve the integrity of the Family Law Rules and, in particular, the requirement for a Case Conference, and facilitate the parties’ effort to find a holistic solution to all of the issues, Her Honour directed that the order for sale would become effective after a case conference was held a month later. She stated:
The primary objective of the Family Law Rules is to enable the court to deal with cases justly, including: ensuring that the procedure is fair to all parties; saving expense and time; and dealing with the case in ways that are appropriate to its importance and complexity. The court shall promote that primary objective by active management of cases. The purposes of a case conference include identifying the issues that are in dispute and those that are not in dispute; exploring settling and resolution of the issues in dispute; ensuring disclosure of the relevant evidence; noting admissions that may simplify the case and setting a timetable or date for the next step in a case. [Rules 2(2) to (5) and 17(4)]
The case conference is the foundation of the active management of cases by the court. Family law proceedings are complex, generally involving numerous intertwined issues, and the case conference provides the parties with an opportunity to manage and resolve their disputes in a cost-effective, co-operative manner best suited to the nature of these issues. Rule 14(4), by precluding the bringing of a motion before the conclusion of a case conference that deals with the substantive issues of the case, serves these purposes. It prevents parties to a dispute from pre-empting the case conference process by bringing motions to court on issues that might otherwise have been decided by the parties themselves.
Subsection (4.2) constitutes an exception to the general rule by recognizing that the exigencies of the circumstances might, in the appropriate case, justify the early resolution of a particular issue. The provision, however, sets specific guidelines: namely, the existence of urgency or “some other reason in the interest of justice.”
In this case the conclusion of this motion on the merits is clear. However, unlike the case in Hipwell, this is not the only issue in these proceedings. I am not dealing with a case where the motion may dispose of the entire proceedings and therefore the case conference may in some circumstances represent a costly and unhelpful step. In this case, the parties disagree on numerous fronts. Under these circumstances, the possibility remains that a case conference on all the substantive issues as required by Rule 14(2) would allow the parties to find a holistic solution, of which sale of the matrimonial home would be only a part. Settlement often involves concessions. As well, the case conference allows parties to consent to specific issues and determine the most cost-effective way of resolving the issues. Indeed, a case conference may allow the parties to avoid the necessity of a motion altogether. It may be, of course, that the case conference would settle nothing, and in that case the parties may need to bring a motion. But the case conference is intended to provide the opportunity to manage and resolve issues by bringing the parties together informally before a judge.
In my view, to routinely allow parties with a clear case on the merits to bring motions on discrete individual issues before the holding of a case conference, despite the absence of urgency or some other reason in the interests of justice, may encourage systemic costly and adversarial litigation. In my view it would undermine the purposes of the case conference process that lie at the foundation of the active management of family cases under the rules.[^10] [Emphasis added]
[28] The Court of Appeal, in Wong v. Wong, upheld the motion judge’s exercise of discretion, on the ground of urgency, to dispense with a case conference and hear a motion for sale of the matrimonial home, to respond to a buyer’s offer to purchase the property.[^11] The Supreme Court dismissed an application for leave to appeal from the Court of Appeal’s decision.
[29] In Clement v. Clement, Cornell J. dispensed with a case conference, on the ground of urgency, to hear a motion by a common law husband to restore the parties’ two children to his home after the common law wife took advantage of the fact that the husband was awaiting bail on a criminal charge of mischief to property which the wife had precipitated, removed the children from their school, and enrolled them in a school closer to her home.[^12] The criminal court had later released the husband on a recognizance with a provision that access to the children was “to be exercised through a third party or pursuant to an order of a court with family law jurisdiction.” Cornell J. granted temporary custody of the children to the father.
[30] Similarly, in Shahini v. Ketis, Greer J. dispensed with a case conference on the ground of urgency, hardship, and in the interests of justice, to hear a motion brought by a wife to restore her infant son to her care after the child was removed from her following her arrest for assault based on her husband’s complaint to the police.[^13] In L.M. v. D.K.O., Spies J. dispensed with a case conference in circumstances where it was evident that a conference would not facilitate a resolution of the issues.[^14]
[31] There is compelling evidence in the present case that, the interest of justice, requires dispensing with the requirement that a case conference take place before Ms. Gonzalez’ motion to be restored to possession of the Milton Avenue Home and, more particularly, to her primary care of Lara, can be heard. The parties will be required to proceed to a Case Conference before addressing the other issues in the litigation.
[32] Where the police, acting on the uncorroborated complaint of one spouse, arrest the other spouse, detain her, charge her with a criminal offence, and the court makes a restrictive order for judicial interim release, the following circumstances may require the prompt intervention of the family court, to ensure that the interests of the parties’ children are protected and the property rights of the parties are respected:
a) The judicial interim release order prohibits the accused spouse from occupying his or her solely-owned property;
b) The accused spouse’s property and its contents, owing to the terms of the bail order, have fallen under the exclusive control of the complainant spouse;
c) The spouses’ child continue to reside in the parties’ home and, owing to the terms of the bail order, is cared for by the complainant spouse, who was not the children’s primary caregiver;
d) The accused spouse’s parental and/or property rights have been interfered with in the absence of judicial consideration of the factors that normally guide the family court in its determination of those rights.
e) The competing views and narratives of the spouses regarding the events that led to the police intervention are cast in a fixed mold by the criminal charge, whose prosecution lies within the exclusive control of the Crown Attorney’s Office, and by the requirements of the accused’s defence, which may constrain him from immediately disclosing his version of events;
f) The judicial interim release order prohibits the spouses from communicating with each other at all, or except in the presence of counsel, and for the limited purpose of arranging access to their child;
g) The spouses’ communication is further constrained by the exigencies of the prosecution and defence of the criminal charge, and the accused’s need to avoid steps which may result in new charges of harassment, obstruction of justice, or breaching the terms of his or her recognizance.
[33] The following circumstances justify dispensing with a case conference and hearing the motion:
a) There is exceptionally strong evidence to guide this Court to a different outcome than the one that resulted, de facto, from the interim judicial release order, with regard to the occupation of property owned by Ms. Gonzalez and the care of her one year old child who was in her primary care before the arrest;
b) The outcome dictated by family law principles can be achieved without undermining the legitimate objectives underlying the judicial interim release order made in the criminal proceeding;
c) It is unlikely that a case conference would result in a resolution of the issues of occupation of the home or primary care of Lara on terms that would be mutually acceptable to the spouses;
d) A case conference would not serve to resolve the issues in a more speedy, less costly, and more just manner, but would only add delay and cost to the proceeding.
[34] Pugsley J., in Shaw v. Shaw, called attention to the havoc that criminal proceedings can create in a family’s life:
The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.
Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.
This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge — this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.
Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation.
Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.[^15] [Emphasis added]
[35] The fact that Ms. Gonzalez was arrested on Mr. Trobradovic’s uncorroborated complaint, and was prohibited by the terms of her bail from entering the property she owns, and which is the primary residence of her one year old daughter, and was prohibited from contacting Mr. Trobradovic except to arrange access to Lara, permitting him thereby to become, by default, the primary caregiver for Lara, are urgent circumstances that justify dispensing with the strict adherence to the Family Law Rules governing the service of documents and requiring attendance at a case conference before a motion can be heard. Mr. Trobradovic has had adequate notice of the motion and ample opportunity to respond, and it is in Lara’s interests that the issues of Lara’s care and primary residence be addressed without delay.
b) The Milton Avenue home
[36] Mr. Trobradovic has no legal interest in the Milton Avenue home, as title to the property is registered solely in Ms. Gonzalez’ name. Mr. Trobradovic cannot acquire an interest in the property through the operation of Part II of the Family Law Act[^16], as he is not Ms. Gonzalez’ “spouse” for the purposes of Part II of the Act.
[37] The court, in the exercise of its discretion, sometimes declines to order the departure of a common law spouse who asserts a constructive trust interest in a property. In Morningstar v. Holley, Henderson J. stated:
Therefore, on a cursory view of the situation, it would appear that the respondent has no legal right to an interest in the property, and therefore, has no right to possession of the property. Prima facie, the applicant should be entitled to evict the respondent at will.
However, in this action, the respondent is making a claim that, if successful, could result in a court granting an interest in the property to the respondent. Specifically, the respondent requests relief by way of a declaration of a constructive trust. That is, the respondent requests a declaration that the applicant is holding legal title to the property as a trustee, in part for the benefit of the respondent.[^17]
[38] Henderson J. found that the common law wife’s claim to a constructive trust interest in the property where she resided was not a frivolous one, in that she had deposed that she contributed money toward the acquisition of the property and contributed money and labour toward its maintenance throughout the 20 years in which the parties cohabited. He concluded that if this evidence was accepted at trial, the trial Judge might find that the common law husband had been unjustly enriched, and consequently, might make a declaration of a constructive trust.
[39] Henderson J. rejected the common law husband’s argument that his common law spouse, even if successful, would not acquire an interest in the property, but would only be entitled to a share of the equity in the property, and would be fully protected if the property were sold and the proceeds of the sale were held in trust for the purpose of satisfying any judgment in the respondent’s favour. He held that it would be open to the trial judge to grant the common law wife an actual interest in the property. He stated:
I do not agree with the applicant’s position on that point. If a trial Judge finds that there has been unjust enrichment of the applicant, it is open to the trial Judge to choose an appropriate remedy. The trial Judge may simply choose to order that the applicant pay a sum of money to the respondent, or the trial Judge may grant an interest in the property to the respondent in the form of a constructive trust. See the case of Peter v. Beblow,1993 126 (SCC), [1993] 1 S.C.R. 980, at para. 21.[^18]
[40] In Peter v. Beblow, the Supreme Court restored the judgment of the trial judge who had awarded the common law wife the property which she had expended her labour to improve, as restitution for her contribution over the course of the parties’ 12 year relationship. The court based its decision on its finding that monetary damages would not be sufficient to compensate the common law wife, and that there was a sufficient link between the property and her contribution.
[41] Mr. Trobradovic has failed to substantiate his assertion that, over the course of his fourteen month cohabitation with Ms. Gonzalez, he made a substantial contribution to the acquisition or maintenance of the Milton Avenue home. He nevertheless asserts that the parties treated the home as a jointly owned asset which it was their mutual intention to share equally. He states:
Both Patricia and I treated the home as a jointly owned asset and it was our mutual intention to share equally in the home. Patricia retained and attended at counsel to have a contract prepared reflecting the parties’ intention to share the properties equally. We separated before the draft agreement was executed. Attached hereto and marked as Exhibit “E” are true copies of the two agreements drafted by counsel in relation to the two properties. These agreements were prepared by Patricia’s counsel, Chris Martin, based on her instructions.
[42] Mr. Trobradovic’s assertion must be scrutinized in light of Mr. Martin’s own evidence on this issue. Mr. Martin states, in an affidavit sworn March 27, 2014:
The properties located at 478 King Street West, Suite 1101, Toronto and 1343 Milton Avenue, Mississauga are registered in Patricia Gonzalez’s name alone.
Edin Trobradovic provided me the information contained in the agreements referred to in Exhibit “E” of his affidavit and instructed me to draft agreements for the above mentioned properties on or about February 19, 2014. Edin advised me that Patricia was on vacation in Argentina and did not advise me that they were separated.
Patricia Gonzalez did not instruct or provide me with the information contained in the agreements. The last time I had contact with Patricia was on or about July 2013 regarding a travel letter of consent and a real estate transaction…I was only informed by Patricia on March 26, 2014 that she had separated from a common law relationship with Edin on February 9, 2014. Edin provided me with the information for the agreement after February 9, 2014.
[43] On February 19, 2014, when Mr. Trobradovic instructed Mr. Martin to prepare the draft agreement on which he relies, he must have known that, contrary to what he told Mr. Martin, Ms. Gonzalez was not, in fact, on vacation in Argentina, because he was with her in court the previous day. The Order of Emery J. dated February 18, 2014, recites the fact that both parties and their respective counsel were in court that day, and signed the interim minutes of settlement on which the order was based.
[44] Mr. Trobradovic states that he made significant financial contributions towards the purchase of the Milton Avenue home, and to its renovation and landscaping, but he has not offered any evidence of such financial contributions. While it is not disputed that Mr. Trobradovic has paid $3,000.00 per month toward the mortgage, realty taxes, and home insurance of the home since February 9, 2014, these payments must be regarded, in large part, as the cost of his occupancy of the property, having regard to the fact that he has been in exclusive possession of it since Ms. Gonzalez’ arrest. To the extent that his payments may have exceeded the fair market value of his occupancy, he may claim a credit against the net proceeds of sale. The amount of such contributions would in no way justify granting him title to the property as was done in Peter v. Beblow.
[45] I find, based on the material before me, that Mr. Trobadovic’s claim for a constructive trust interest in the Milton Avenue home does not have sufficient merit to prevent Ms. Gonzalez being restored to her possession of the home. Ms. Gonzalez will therefore be granted a writ of possession, effective May 31, 2014. Mr. Trobradovic shall be required to vacate the property within that period and Ms. Gonzalez shall have exclusive possession of the property effective June 1, 2014, subject to her obtaining the necessary amendment of her bail condition.
[46] Mr. Trobradovic seeks leave to register a Certificate of Pending Litigation on the title to the Milton Avenue home and on the title of Ms. Gonzalez’ investment property at 478 King Street, Suite 1101, in Toronto, and an order requiring Ms. Gonzalez to provide full and proper disclosure to Mr. Trobradovic, as set out in his Notice of Motion. While I find that Mr. Trobradovic has failed to substantiate his claim for a constructive trust interest in the Milton Avenue home, the proceeding is at an early stage, and Mr. Trobradovic should not be foreclosed from advancing his claim based on further evidence.
[47] Mr. Trobradovic will be granted leave to renew his motion for a Certificate of Pending Litigation in relation to either property, if he is so advised, based on further and better evidence. To facilitate the determination of Mr. Trobradovic’s claim, Ms. Gonzalez will be required to provide such disclosure as he requires concerning the two properties.
[48] Both parties agree that the Milton Avenue home should be sold. The issuance of a Certificate of Pending Litigation at this stage may interfere with such a sale. An order will instead be made directing the lawyer whom Ms. Gonzalez retains to assist her with the sale of the home to hold the net proceeds of sale, after payment of mortgages, secured lines of credit, property taxes, home insurance, legal costs of sale, and standard adjustments, in trust pending further order of this court.
c) Custody of Lara
[49] In making a determination as to custody of Lara and access to her, I am bound by section 24 of the Children’s Law Reform Act. That section provides, in part, as follows:
24(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.
(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child, including,
(a) the love, affection, and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, and necessaries of life and any special needs of the child;
(e) any plans proposed for the care and upbringing of the child;
(f) the permanence and stability of the family unit with which it is proposed that the child will live; and
(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.[^19]
[50] I will address the factors that have particular relevance in the present case.
(a) Love, Affection, and Emotional Ties
[51] The evidence satisfies me that both parents have love and affection for Lara and emotional ties to her that should be recognized in the order made for custody of and access to her. No other family members are living in either parent’s household. While others have been involved in Lara’s care and upbringing, their involvement is not sufficient to affect the order to be made.
(b) Preferences
[52] Lara is not of an age at which her preferences are an issue.
(c) Stable Home Environment
[53] Mr. Trobradovic argues that it is in Lara’s best interests to maintain the “de facto status quo”, meaning the care that Mr. Trobradovic has provided to her since Ms. Gonzalez’s arrest.[^20] He submits that there is no compelling reason, at this point, for depriving him of the custody of Lara that he has exercised in the interval. He argues that the status quo that has prevailed since the criminal charge was laid against Ms. Gonzalez should be maintained, pending the trial of that charge, in accordance with her bail conditions, which prohibit her from contacting Mr. Trobradovic or entering the property where he resides.
[54] The court must be vigilant of the risk that parents may engage the criminal process in order to achieve a strategic advantage in family law proceedings. Chappel J. adverted to this risk in Batsinda v. Batsinda:
This case also raises important issues respecting the interplay between Family Law and Criminal Law proceedings involving allegations of domestic violence, where criminal charges have been laid but not yet proceeded to trial. The fact that allegations of domestic violence have been made is a very important factor for a court to consider in the context of motions to address temporary custody and access, and the terms of release in criminal proceedings may be determinative, in full or in part, of the issues. However, the existence of criminal charges and proceedings respecting allegations of violence is not determinative of the issues of temporary custody and residence of the children of the parties’ relationship. The focus of the analysis remains at all times the best interests of the children, and this involves a careful consideration and weighing of all of the evidence and relevant factors. Part of this process involves a careful consideration of the evidence relating to the alleged violence and whether there are any clear concerns on the record before the court regarding the strength of that evidence. If there are concerns of this nature, the court should exercise caution before relying heavily on the existence of the criminal charges. (see Shaw v. Shaw, 2008 Carswell, Ont. 1626 (O.C.J.)). Allowing the existence of criminal charges in such circumstances to dictate the outcome of the motion runs the risk of allowing a party to invoke the criminal law system as a tool to gain an unfair advantage and hijack the Family Law proceedings.[^21]
[55] Ms. Gonzalez raises significant concerns regarding Mr. Trobradovic’s credibility in relation to the criminal charge. She says that Mr. Trobradovic made his complaint against her in order to gain control of the Milton Avenue home and custody of Lara. She relies on text messages that Mr. Trobradovic sent to her since her arrest. While not amounting to a repudiation of his complaint, the messages characterize it as a mistake motivated by anger and influenced by alcohol. One states: “Relax. Stop thinking about it. I made a mistake. I was angry and under alchocol (sic). I was Hurt that u called the cops.”
[56] To the extent that there is any merit in Mr. Trobradovic’s allegation, I am not satisfied that it is relevant to Ms. Gonzalez’ ability to act as a parent of Lara. Section 24(3) of the Children’s Law Reform Act provides:
24(3) The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child.
[57] The bail order made in relation to Ms. Gonzalez is the only judicial determination made thus far in the criminal proceeding against her. The bail conditions restrict her communication with Mr. Trobradovic, but not her access to Lara. I infer from the criminal court’s failure to place any restrictions on Ms. Gonzalez’ access to Lara that it did not find that the allegations against her to raise a concern about Lara’s safety in her presence. I also do not find a basis for such a concern.
[58] A motion for temporary custody and access must be based on the child’s best interests. A child’s best interests may dictate that the status quo be maintained, particularly if an order or arrangement between the parties has been in place for a significant period of time. The court should generally not disturb the status quo, unless there is urgency that this be done in the child’s best interests,[^22] especially if there will soon be an opportunity to consider the matter more fully at trial.[^23]
[59] In the present case, the status quo that Mr. Trobradovic relies on has existed for only two months. Moreover, this Court held, in Howard v. Howard, that the only status quo that counts is the one that existed prior to the separation.[^24] In the absence of evidence that impugns Ms. Gonzalez’ ability to care for her, Lara’s best interests urgently require restoration of the status quo that prevailed prior to her mother’s arrest.
(d) Ability of each parent to provide guidance, education, and necessaries of life
[60] While both Ms. Gonzalez and Mr. Trobradovic were involved in parenting Lara when they were together, the evidence clearly establishes that Ms. Gonzalez was Lara’s primary caregiver. For approximately a year, the parties employed a nanny, Jocelyn Hizon, who took care of Lara when both Mr. Trobradovic and Ms. Gonzalez were at work. In her affidavit sworn February 13, 2014, Ms. Hizon states the following:
(i) Most mornings when she arrived at the parties’ home at 8:00 a.m., Mr. Trobradovic was still sleeping, and only Ms. Gonzalez and Lara were awake. Mr. Trobradovic routinely awoke at 9:00 or 10:00 a.m., at which time she would be preparing Lara for her first nap.
(ii) Mr. Trobradovic never involved himself in preparing Lara for her nap, even if he was at home at the time.
(iii) Either Ms. Gonzalez prepared pre-made meals for Lara or instructed Ms. Hizon in the morning what to feed Lara during the day. Mr. Trobradovic never gave direction or instructions as to what to feed Lara, and never engaged in feeding her himself.
(iv) Ms. Hizon never saw Mr. Trabradovic change Lara’s diaper and normally spent only 15 or 20 minutes holding or playing with her.
(v) On a routine day, Mr. Trabrodovic would leave the home for many hours without telling her where he was going and was often not home when Ms. Hizon finished her work day at 4:00 p.m.. Ms. Gonzalez, by contrast, would rush home and Ms. Hizon would not leave until Ms. Gonzalez gave her the ok to leave.
(vi) Ms. Hizon observed Mr. Trobradovic yelling loudly on the telephone on numerous occasions, while Lara was sleeping, loudly enough to waken her, and using vulgar language routinely around Ms. Hizon and Lara.
[61] Mr. Trobradovic responded to Ms. Hizon’s affidavit by texting her that it was clear that Ms. Gonzalez had coerced her into signing it. Ms. Hizon signed a further affidavit stating that she was not coerced, pressured, or intimidated into providing her affidavit. She states that she attended at Ms. Gonzalez’ lawyer’s office voluntarily and responded to questions that were asked in an open-ended way, and that she is 100% comfortable with the content of her affidavit.
[62] Ms. Gonzalez has tendered text messages that she and Mr. Trobradovic exchanged after Ms. Gonzalez contacted the Peel Police on the evening of January 26, 2014. In one, Mr. Trobradovic states, ”I am a little drunk and I’m sorry.” Although in his text message, Mr. Trobradovic tells Ms. Gonzalez that he is staying at a hotel for the night, she states that he later admitted to her that he had, in fact, stayed at a friend’s house and had sampled cocaine earlier that evening after being ordered away from the Milton Avenue home by the police.
[63] Mr. Trobradovic has tendered a report from a medical laboratory, CML Health Care, dated February 6, 2014, which states that a test of a urine sample provided by Mr. Trobradovic that day was negative for a number of drugs, including opiates, amphetamines, and cocaine. However the report clearly states “CML does NOT follow “Chain of Custody” procedures and therefore results CANNOT be used for Medico-Legal purposes.” I infer from this that there is no independent verification, as some labs are equipped to provide, of the patient’s representation that the urine sample was, in fact, his own. While Ms. Gonzalez’ allegation regarding Mr. Trobradovic’s admission as to cocaine use is denied by Mr. Trobradovic’s cousin, who attests to his strict diet regimen, the cousin also states that she has known Mr. Trobradovic to “only have wine or a spirit drink recreationally with dinners,” which I find inconsistent with Mr. Trobradovic’s text messages and a note to Ms. Gonzalez.
[64] Ms. Gonzalez tendered a handwritten note that Mr. Trobradovic wrote to her, apparently in 2013, in response to an article on alcohol abuse that she had given him. He writes, “I read this article, I agree I abuse alcohol, and neglected my family. I now realise and will never do this again. I have not had a drink today. If I break my commitment the (sic) Patricia and Lara can leave July 31.”
[65] Ms. Gonzalez has tendered three strong letters of character reference, including two from doctors who are her friends and co-workers. One of these, Sheela Chemparathy, describes Ms. Gonzalez as always keeping a level head and maintaining empathy in the face of irritable and sometimes unstable patients, and interacting with ease and openness in uncomfortable situations. The other, Dr. Sadaf Ahmed, has known Ms. Gonzalez for the past 5 years and has a son born within 4 days of Lara. She has observed Ms. Gonzalez to be “a fabulous mother”, hiring a sleep consultant and discussing in detail with Dr. Ahmed finding the right nanny for Lara, and encouraging Mr. Trobradovic in his role as a parent, being very rational in her ability to identify problems and think of solutions. It is her opinion that Ms. Gonzalez is Lara’s primary caregiver and should not be separated from her for any length of time.
[66] Ms. Gonzalez’ other character reference, Nicole Kow, is a friend who met Ms. Gonzalez at the Turtle Creek Early Years Centre in January 2013, shortly after they both became new mothers. She describes Ms. Gonzalez as a loving, attentive, and involved mother to Lara. She states that Ms. Gonzalez has initiated many play dates and outdoor walks with fellow mothers with infants, showing great interest and investing much time in Lara’s happiness and development, ensuring that Lara socializes with her peers, organizing activities, and ensuring that Lara has all the daily supplies needed.
[67] Mr. Trobradovic has tendered two letters of character reference, one, from the Racquets Director and Head Pro at his health club, focuses on Mr. Trobradovic’s dedication to fitness. He states that Mr. Trobradovic has established a tight routine at the club, training an hour or more on court and then bringing his daughter Lara out in the second hour “to share his wonderful passion for the great sport of tennis with his daughter and ignite her similar interest in racquet’s hand-eye coordination.” He continues, “The bond between the two of them is wonderful to witness 1st hand on court as I have several times; to be sure, the father/daughter Tennis dynamic is a truly magical one.” I find this statement puzzling, having regard that Lara is only a year old.
[68] The other letter of character reference, from a lawyer, states that the author has known Mr. Trobradovic for two years and attests to his good moral character. While the letter states that Mr. Trobradovic’s discussions concerning his relationship to his daughter have always been positive, and that Mr. Trobradovic has “confirmed his desire to form a bonding relationship with his daughter”, it does not appear that the author has ever observed Mr. Trobradovic with Lara or has any basis for his opinions apart from what Mr. Trobradovic has told him.
[69] Following the parties’ separation, Mr. Trobradovic arranged supervised access for Ms. Gonzalez with Lara. Mr. Trobradovic alleges that during that time, Ms. Gonzalez caused Lara’s passport to be removed from the home and that this caused him to worry that Ms. Gonzalez would return to her native land of Argentina and abduct Lara to that country. I find no support for Mr. Trobradovic’s abduction concerns.
[70] Ms. Hizon, Lara’s nanny, describes Ms. Gonzalez as a competent and conscientious mother. She describes her as always being present with Lara and feeding her breakfast when Ms. Hizon arrived at her home, telling Ms. Hizon what activities to engage in with Lara, pre-making dinners for Mr. Trobradovic to give to Lara, maintaining a written agenda that she asked Ms. Hizon to follow to ensure a steady routine for Lara, focussed on structured nap time, play time, and feeding time. She never saw Ms. Gonzalez raise her voice or act in an aggressive fashion.
[71] Mr. Trobradovic seeks an order that Ms. Gonzalez’ access to Lara be supervised on a temporary basis and that she not be permitted overnight access to Lara. He also seeks an order that Ms. Gonzalez undergo a psychiatric assessment. There is no credible evidence that would justify such orders.
[72] Mr. Trobradovic seeks an order requiring Ms. Gonzalez to pay for an assessment of Lara’s needs pursuant to section 30 of the Children’s Law Reform Act, to be conducted by Barry Brown. In rare cases, an assessment may reveal or confirm an urgent problem requiring immediate attention or correction. In Genovesi v. Genovesi, Granger J. held that even in those cases, courts should act with caution, and implement only such changes as are required to rectify circumstances which, to prevent harm to a child, cannot be allowed to continue until trial.[^25]
[73] An assessment is desirable, in the present case, having regard to Lara’s young age, each of the parties’ allegations as to the other’s inability to care properly for Lara, including allegations that the other is dependent on alcohol or medication, and their assertions that this has contributed to past neglect of Lara. However, restoring the status quo that prevailed before the parties’ separation should not be delayed for this purpose, as an assessment may take many months to complete, and it is not in Lara’s interests that the disruption of her relationship with her mother be permitted to continue for that amount of time.
[74] Ms. Gonzalez opposes Mr. Trobradovic’s selection of Mr. Brown as the assessor, and there is no reason why Mr. Trobradovic, who acknowledges earning an annual income of $65,000.00, should not share in the cost of the assessment. Accordingly, an order will be made that the parties jointly retain a qualified expert to conduct a s. 30 assessment at a cost to be shared by them in proportion to their income.
(e) The principle of maximum contact
[75] The Supreme Court of Canada in Young v. Young[^26] and Gordon v. Goertz[^27] held that a child’s best interests must be ascertained from the perspective of the child rather than of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child.
[76] No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence in the court’s determination of custody and access. The court pays particular attention to:
(i) the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;[^28]
(ii) the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner;[^29]
(iii) the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and
(iv) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.[^30]
[77] Minor-age children with attachments to both parents need sufficient contact with both parents, without prolonged separations, to maintain meaningful and close relationships with them.[^31]
[78] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children.[^32] Where there is friction between equally competent spouses, custody should be awarded to the parent who is more likely to ensure that the children reap the benefit of both households.[^33] It is difficult to determine, in the present case, which parent is most likely to facilitate access by the other parent. However, the limited access that Mr. Trobradovic has given Ms. Gonzalez, and his request that her access be supervised, leads me to conclude that Ms. Gonzalez should, pending the outcome of a s. 30 assessment, be restored to primary care for Lara.
[79] In Young, McLachlin J. (as she then was) discussed the “maximum contact principle” in the context of an application under the Divorce Act. Speaking for the majority of the Court, she stated:
... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. [Emphasis added]
[80] The principle of maximum contact is an important consideration under either legislative regimen when determining the best interests of children. Contact with both parents is the child’s, not the parents’, right. Where a parent argues for unequal contact between the child and each of her parents, the onus is on that parent to rebut the presumption.
[81] Mr. Trobradovic emphasizes the importance of maximizing Lara’s contact with each parent. This does not dictate, in every case, that a child spend equal time with each parent. The Divorce Act, for example, in s. 16(10), directs that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. McLachlin J. noted in Young: “The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute.”
[82] L'Heureux-Dubé J., with whom four of the seven justices of the Court in Young stated that orders for access must be determined in accordance with the best interests of the child:
In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome the lived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured by abstract claims of parental rights. … As Abella J.A. held in M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, for the majority, at p. 459:
[The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviously inextricable, particularly between children and the parent on whom they depend for their day-to-day care, where only one parent has this primary responsibility. The structure of an environment that fits the child's interests would undoubtedly be reinforced if the economic and emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well‑being….
In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmatic and take into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only to recognize that, in some circumstances, the perfect may be the enemy of the good. Courts must always be mindful that not only the benefit but also the real cost and burden of all custody and access arrangements ultimately falls on the children themselves.[^35] [Emphasis added]
[83] The Court of Appeal, in B.P. v. P.V. held that a judge who made an order giving a non-custodial parent access on alternate weekends and on one week-day evening per week had made an error in law in giving the parent “minimal access” without compelling reasons for doing so.[^36] In the present case, I do not find compelling reasons to deprive Mr. Trobradovic of approximately equal access to Lara. It is appropriate, having regard to Lara’s young age, that she have frequent contact with each parent, and that she not be separated from either parent for substantial periods.
[84] Mr. Trobradovic seeks an order prohibiting either party from moving his or her residence more than 50 kilometres from the Milton Avenue property, and an order that neither party remove Lara from Ontario. These orders are appropriate in order to allay Mr. Trobradovic’s concerns that Ms. Gonzalez’ return to the Milton Avenue home and her care of Lara will not result in his being marginalized from Lara’s life.
d) Parenting Schedule
[85] The parties and the Court face a challenging task of fashioning a parenting arrangement that achieves the best balance of factors that directly or indirectly affect Lara’s best interests. All things being equal, it is desirable for the parenting schedule to accomplish the following:
(a) maximize Lara’s contact with each of her parents;
(b) maintain the status quo that prevailed before the parties’ separation, in order to give Lara a sense of stability and consistency;
(c) give both parties a predictable schedule and thereby minimize unnecessary stress and maximize their ability to spend relaxing “quality time” with Lara when their work schedules allows;
(d) minimize Lara’s transitions from one parent to the other;
(e) minimize travel time for the parents and Lara in order to maximize the undivided attention the parents can give Lara;
(f) maximize the simplicity and comprehensibility of the schedule for the parents;
(g) avoid unnecessary occasions for interaction between Ms. Gonzalez and Mr. Trobradovic and the likelihood of conflict between them, especially until the criminal charge against Ms. Gonzalez and the family law issues in dispute are resolved;
(h) allow the employment of babysitters for sufficient time and with sufficient consistency to enable the parties to preserve their availability, quality, and consistency;
(i) maximize Lara’s opportunities to engage in constructive socializing interaction with other children, as well as challenging and instructive extra-curricular activities;
(j) minimize the cost of excessive use of commercial daycare providers for Lara, especially ad hoc use of freelance providers who are not known by Ms. Gonzalez and Mr. Trobarovic to be trustworthy;
(k) minimize the risk of missed appointments for the pick-up or return of Lara with the associated disappointment or anxiety to her or to the parties.
[86] The schedule I establish will equalize, to the extent consistent with Lara’s best interests, the time she spends with each parent. Ms. Gonzalez would like the right to make arrangements for Lara’s care at a day care centre near her place of employment, and Mr. Trobradovic would like to assume care of Lara himself whenever Ms. Gonzalez is not available to provide it. The fact that Ms. Gonzalez is working does not automatically disentitle her from making reasonable arrangements for Lara’s care at times when Lara is her responsibility. This is part of her responsibility as a parent. At the same time, while the arrangements for Lara are not automatic and dictated entirely by the availability of one of the parents, a separated parent also does not have an absolute and unfettered right to make arrangements for the care of his/her child. The arrangements must be both reasonable and in Lara’s best interests. Additionally, when Ms. Gonzalez’ bail conditions allow contact between the parties to resume, it is desirable that such arrangements be made by consultation between the parents.
[87] Ms. Gonzalez complains that the schedule that has prevailed to date involves frequent transitions. While it is desirable that the number of transitions be minimized, and that the schedule of pick-ups and drop-offs be practical, it must be kept in mind that there is an unavoidable trade-off between the duration of Lara’s separation from each parent and the number of transitions she must make between the parents.
[88] It is in Lara’s interests that she sees each of her parents often and that each parent also be able to perform their respective obligations at work. Predictability is also an important priority to be observed at a time when Lara’s life is in flux owing to the profound change in the structure of her family.
[89] The schedule I have formulated will cause some inconvenience to the parties, and there will be times when Lara is in the care of a third party daycare provider when Mr. Trobradovic would be available to care for her. However, it will better provide more consistency and stability to Lara and to the parties. This is particularly important here, having regard to the intensity of the parties’ conflict, until they are able to re-formulate their relationship and develop the skills necessary to make parenting decisions in a cooperative way.
[90] If the parties are unable to agree as to costs, they may submit written arguments, not to exceed four pages, and a Costs Outline, by May 10, 2014.
CONCLUSION AND ORDER
[91] Based on the foregoing, it is ordered that:
A writ of possession shall issue, to take effect May 31, 2014. Mr. Trobradovic shall vacate the premises within that period, and Ms. Gonzalez shall have exclusive possession of the property at 1343 Milton Avenue in Mississauga, Ontario, commencing June 1, 2014, subject to her obtaining the necessary amendment of her bail condition.
Mr. Trobradovic’s obligation to contribute to the payment of expenses in relation to the Milton Avenue home shall cease, effective May 31, 2014.
Ms. Gonzalez shall have temporary sole custody of the parties’ child, Lara Santina Trobradovic, born January 22, 2013, beginning April 22, 2014. Lara shall reside with her parents in accordance with the following schedule:
(a) Ordinary weekly access as follows:
i) Beginning Tuesday, April 22, 2014, Lara shall reside with Ms. Gonzalez:
a. From Tuesdays after day care to return to day care on Wednesdays;
b. From Thursdays after day care to return to day care on Fridays;
c. On alternate weekends, beginning April 25, 2014, from Friday after day care to return to day care on Monday; and
ii) Lara shall spend the balance of her ordinary time (that is, outside of the vacation or holiday periods described below) in Mr. Trobradovic’s care or at daycare arranged by Ms. Gonzalez.
iii) In the event that the parent with whom Lara resides at any time is unable to exercise his/her evening access to her (or find a suitable caregiver), that parent shall provide the other with 48 hours written notice of same.
iv) In the event that a parent is unable to exercise his/her regularly scheduled weekend access visit with Lara (or find a suitable caregiver), that parent shall provide the other with one week written notice of same.
v) Once Lara begins social or extra-curricular activities, it shall be the responsibility of the parent with whom Lara is residing to transport her to such activities. Neither parent shall schedule such activities for Lara that require attendance when she is to be residing with the other parent or that require financial contribution from the other parent without that other parent’s prior written consent. In the event of disagreement, the dispute shall be subject to the conflict resolution process described in paragraph 3.
vi) Neither parent shall use or permit any corporal punishment of Lara whatsoever.
vii) Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications for the purpose of access arrangements, and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.
(b) Father’s Day - If Lara is not otherwise with Mr. Trobradovic on this weekend, she will reside with him on Father’s Day, from Sunday at 9:30 a.m. until 6:00 p.m.
(c) Mother’s Day - If Lara is not otherwise with Ms. Gonzalez on this weekend, she will reside with her on Mother’s Day from 9:30 a.m. until her return to school on Monday.
(d) Valentine’s Day – Lara shall spend Valentine’s Day with the parent with whom she normally spends that day of the week based on the above-mentioned provisions of this order.
(e) St. Patrick’s Day – Lara shall spend St. Patrick’s Day with the parent with whom she normally spends that day of the week based on the above-mentioned provisions of this order.
(f) March break – Commencing when Lara begins school, she shall spend March break in odd-numbered years with Ms. Gonzalez, from the close of school to the resumption of school, and in even-numbered years with Mr. Trobradovic, from the close of school to the resumption of school.
(g) Easter – Commencing when Lara begins school:
(i) In even-numbered years, she shall reside with Mr. Trobradovic from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Ms. Gonzalez from Saturday at 10:00 a.m. to the resumption of school.
(ii) In odd-numbered years, she shall reside with Ms. Gonzalez from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Mr. Trobradovic from Saturday at 10:00 a.m. to the resumption of school.
(h) Summer Vacation – Mr. Trobradovic and Ms. Gonzalez shall have an uninterrupted vacation time with Lara. The duration of their vacation time with Lara shall begin, in 2014, with one week with each parent, and gradually increase with Lara’s age, in recognition of the fact that, when Lara is very young, lengthy separations from either of her parents are not in her best interests. The periods of each parent’s vacation with Lara each summer shall increase to two weeks when Lara is five years of age, and to a month when she is seven years of age. The parties shall advise each other by March 31st of their chosen vacation weeks with Lara. While Lara is on vacation with one parent, the other parent’s weekly routine access shall be suspended, resuming upon her return. Ms. Gonzalez shall have first choice in odd-numbered years, and Mr. Trobradovic shall have first choice in even-numbered years.
(i) Canada Day – Lara shall spend Canada day with the parent with whom she normally spends that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case she shall spend Canada day with the parent with whom she is scheduled to spend vacation at that time based on the provisions of this order.
(j) Thanksgiving weekend – In odd-numbered years, Lara shall spend this holiday with Ms. Gonzalez and in even-numbered years, she shall spend it with Mr. Trobradovic.
(k) Christmas - Should this holiday fall on Mr. Trobradovic’s regular access days, Lara shall reside with him as per the regular weekend schedule. In 2014, and in even-numbered years thereafter, Lara shall reside with Ms. Gonzalez from December 25th at 12:00 noon until December 26th at 8:00 p.m. In 2015 and in even-numbered years thereafter, Lara shall reside with Mr. Trobradovic from December 25th at 12:00 noon until December 26th at 8:00 p.m.
(l) New Years – Beginning in 2014, and in even-numbered years thereafter, Lara shall reside with Mr. Trobradovic from December 30th at 6:30 p.m. to January 1st at noon. Beginning in 2015, and in odd-numbered years thereafter, she shall reside with Ms. Gonzalez from December 30th at 6:30 p.m. to January 1st at noon.
(m) Parties’ birthdays - Lara shall spend at least two hours with each parent on her parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.
(n) Lara’s birthdays, - If Lara is not otherwise with Mr. Trobradovic on her birthday, he shall be entitled to access with her for at least three hours either on the day of her birthday or the following day for the purposes of a birthday celebration. Ms. Gonzalez shall confirm Lara’s availability for such access with Mr. Trobradovic at least ten days prior to her birthday.
(o) Beginning when Lara is five years of age, Mr. Trobradovic shall have the right to communicate with her at any reasonable time by telephone and email, and Ms. Gonzalez shall forthwith keep him informed of Lara’s contact information whenever it changes.
(p) Such other and additional access as may be agreed upon between the parties from time to time.
(q) When special opportunities for Lara arise or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that Lara’s interests prevail, and each party shall give his/her/their own needs and convenience only secondary importance.
(r) Both Mr. Trobradovic and Ms. Gonzalez shall have the right to information regarding Lara’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the health and general wellbeing of the children. Each of the parties shall sign a direction and a consent to Disclose Personal Health Information, pursuant to the PHPA, authorizing the other to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to the other party. These authorizations shall be provided within 30 days.
(s) Beginning on Lara’s seventh birthday, each of the parents shall have the right to communicate with her, and Lara shall have the right to communicate with either parent in private by e-mail or Skype at any reasonable time when she is residing with the other parent, and each parent shall equip the room which Lara occupies when residing with them with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of Lara’s e-mail address and telephone number whenever they change.
Either party may travel with Lara outside of Canada provided that the travel is entirely within that party’s access time. Any proposed travel outside Canada for longer than the parent’s scheduled access shall be negotiated or, at either party’s election, mediated and, if negotiation/mediation is unsuccessful, determined on motion to the court.
If either parent plans a vacation out of Ontario with Lara:
a) That parent will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodations, including address and telephone numbers, and details as to how to contact Lara during the trip.
b) The other parent shall provide a notarized travel letter authorizing Lara to travel. Neither party will unreasonably withhold his/her consent to the other’s travel with Lara. The consent must be provided no later than ten days before any proposed travel by the other.
To facilitate convenient travel with either party, any passports obtained for Lara shall be in Lara’s names (rather than being on the passport of a parent). Each party will give any consent required for such a passport and will not unreasonably withhold consent. The passport will normally be kept by Ms. Gonzalez, but will be temporarily given to Mr. Trobradovic when reasonably required for his travel with Lara outside of Canada.
The parties shall forthwith jointly retain a qualified expert to conduct a s. 30 assessment at a cost to be shared by them in proportion to their incomes.
The parties shall exchange Requests for Information in Form 20 by May 16, 2014. The party receiving such a Request shall provide the information and documents required within 30 days of receipt of the Request. If any document requested is not produced within that time, the party who received the Request shall, by that date, produce to the other his/her sworn affidavit setting out the steps taken to obtain the document, the reasons it was not produced, and a signed direction authorizing and directing any non-party who is believed to be in possession of the document to produce it to the party who delivered the Request, at the expense of the party who received the Request.
If disputes arise in the implementation of this Order, either party may apply for directions, by motion on short notice, to be heard by me between 9 and 10 a.m. on a date when I am presiding, to be arranged with the Trial Office in consultation with my judicial secretary.
The parties shall attend court for a Case Conference on July 14, 2014.
Price J.
Released: April 17, 2014
COURT FILE NO.: FS-14-0729
DATE: 2014-04-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DR. PATRICIA GONZALEZ
Applicant
- and -
EDIN TROBRADOVIC
Respondent
REASONS FOR ORDER
Price J.
Released: April 17, 2014
[^1]: Trespass to Property Act, R.S.O. 1990, c T.21, s. 5
[^2]: Family Law Rules O. Reg. 114/99, ss. 6 and 8
[^3]: Family Law Rules, s. 14(4.2)
[^4]: Rosen v Rosen, 2005 480 (ON SC), 2005 ONSC 480, [2005] WDFL 897,
[^5]: Ibid, paras. 23 and 24
[^6]: Howatt v. Howatt, 2002 2731 (ON SC)
[^7]: Hood v Hood, , 2001 28129 (ON SC), 20 R.F.L. (5th) 78, [2001] O.J. No. 2918 (S.C.)
[^8]: Rooney v. Rooney, 2004 ONCJ 26 at para. 15
[^9]: McDermott v. McDermott, 39 R.P.R. (4th) 218, 2005 37590 (ON SC)
[^10]: McDermott v. McDermott, paras. 12 to 18.
[^11]: Wong v. Wong, 2006 ONCA 31806., leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 457
[^12]: Clement v. Clement, 2010 ONSC 1113
[^13]: Shahini v. Ketis, 2012 ONSC 5336
[^14]: L.M. v. D.K.O. 2010 ONSC 3788.
[^15]: Shaw v. Shaw, 2008 ONCJ 130,62 RFL (6th) 100, paras. 5 and 6.
[^16]: Family Law Act, R.S.O. 1990, c. F.3
[^17]: Morningstar v. Holley, 154 A.C.W.S. (3d) 912 , 2007 2359 (ON SC), paras. 5 to 7
[^18]: Morningstar v. Holley, para. 9
[^19]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, s. 24(1)
[^20]: Kimpton v Kimpton, 122 A.C.W.S. (3d) 711 [2002] OJ No 5367 (S.C.).
[^21]: Batsinda v. Batsinda 2013 ONSC 7869 at para. 29
[^22]: F.I. v. S.P.P., 2010 ONCJ 473, [at, para. 13, per Wolder J.
[^23]: Grant v. Turgeon, 5 RFL (5th) 326,2000 22565 (Ont. S.C.), per Mackinnon J.; Dyment v. Dyment, (1969) 1969 438 (ON CA), 2 O.R. 748 (C.A.), per Laskin J.A.
[^24]: Howard v. Howard, (1999), 1999 35009 (ON SC), 1 R.F.L. (5th) 375 (Ont. S.C.)
[^25]: Genovesi v. Genovesi, (1992) 1992 8562 (ON SC), 93 D.L.R. (4th) 262, 41 R.F.L. (3d) 27 (Ont. Gen. Div.), per Granger J.
[^26]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 47, 99
[^27]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 pp. 67-68. See also Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1, at para. 10.
[^28]: Greber v. Moskowitz, 1982 74 per Lalande J.; Tramble v. Hill, (1987), R.F.L. (3d) 85, (Ont. U.F.C.); Milne v. Milne (1985), 1985 786 (BC CA), 44 R.F.L. (2d) 241 (B.C.C.A.); Wylde v. Wylde, 1984 91per Fisher J.
[^29]: Lusher v. Lusher, 1988 1433, 13 R.F.L. (3d) 201, per Main J.
[^30]: Salter v. Borden, (1991), 1991 12943 (NS FC), 101 N.S.R. (2d) 171, (Fam. Ct.).
[^31]: Van Den Driessche v. Van Den Driessche2011 MBQB 134.
[^32]: Barnes v. Parks, 2001 241146 (ON CA) (in chambers), at para. 10, per Laskin J.A.
[^33]: Huisman v. Stefaniw (1997), 1997 24463 (ON SC), 26 R.F.L. (4th) 406 (Ont. Gen. Div. Fam. Ct.), per Wallace J.; Boukema v. Boukema, (1997), 1997 12247 (ON SC), 31 R.F.L. (4th) 329 (Ont. Gen. Div.), per Macdonald J.
[^34]: Divorce Act, R.S.C. 1985 c.3
[^35]: Young v. Young, at pp. 68-69.
[^36]: B.P. v. P.V., 2012 ONCA 262, paras. 14 and 15.