NEWMARKET
COURT FILE NO.: FC-14-46840-00
DATE: 20150810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dina Tzovolos
Applicant
– and –
Constantine Rallis
Respondent
Susan Duggan, for the Applicant
Karen Dosanjh, for the Respondent
HEARD: July 29, 2015
Ruling on motion
jarvis j.:
[1] The respondent (“father”) has brought a motion to vary an Order made by Douglas J. on November 13, 2014. That Order primarily dealt with the father’s access to the parties’ infant son. The applicant (“mother”) opposes the father’s request to increase the child’s time with him, arguing that while she is prepared to agree to an increase, that should be gradual and, in any event, the request is premature.
Background
[2] The parties were married on July 27, 2013 and separated less than six months later on January 8, 2014. The father is 47 years old and the mother is 40 years old. This was a first marriage for each of them. Their son, Constantine, was born November 3, 2013 and is now 1 ¾ years old. Since his parents separated, the child has lived with his mother.
[3] The mother commenced an Application on October 17, 2014. On November 13, 2014, Douglas J. made a temporary without-prejudice Order, on consent, the relevant provisions of which are the following,
- The Respondent shall have access to the child, namely Constantine Zeus Rallis (DOB: November 3, 2013), as follows:
(a) every Tuesday and Thursday from 4 – 7:30 p.m.;
(b) every Sunday from either:
(i) 10 a.m. - 7 p.m. if pick up is at the Richmond Hill police station located at 171 Major Mackenzie Drive, West; or
(ii) 9:30 a.m. - 7 p.m. if pick up is at the Newmarket police station located at 240 Prospect Street.
Pick up for Tuesdays and Thursdays shall be at the child’s daycare.
Drop off shall be at the Richmond Hill police station located at 171 Major Mackenzie Drive, West until the Applicant moves and then the new location shall be a police station mid-point between the two parties’ homes.
[4] Police assistance in enforcing the Order was also directed.
[5] Two, not uncommon, themes inform the parties conflict under the umbrella of their son’s best interests. The first is the mother’s concern about the father’s ability to properly care for the son: the second is the father’s complaint that the mother is, in essence, trying to alienate the child from him by obstructing that contact. Underpinning both is the issue of “control” and, as is sadly typical in these cases, each party has made allegations about the other, and tried to involve the authorities to validate their position. Unconvincingly. An earlier motion by the father for increased access was heard by Bennett J. on March 18, 2015, and denied, but access was increased after an April 9, 2015 case conference before Kaufman J.
[6] When the current motion was argued, the child spent Tuesdays and Thursdays with his father from 4:00 p.m. to 7:30 p.m. and overnight access on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:30 p.m.
[7] What the father requests in this motion is an order that provides:
(a) Alternating weekend access from Friday at 3:00 p.m. to Sunday at 7:30 p.m., commencing August 14, 2015; and
(b) Wednesday overnights from 3:00 p.m. to Thursday at 7:30 a.m.
[8] He also requests that, to avoid conflict with the mother, pick up and drop off during the weekdays when there is no holiday be at the child’s daycare or, if a holiday, then at a police station mid-way between the parties’ residences.
[9] The mother was prepared to accede to the father’s request involving the child’s time with him on Wednesday evenings (in lieu of the Tuesdays and Thursdays) effective August 12, 2015 but wanted to defer the Friday overnight access to October 2015. It is this Friday night issue about which three affidavits containing 30 exhibits, which include six York Regional Police reports over an eight month period in which no charges were filed, two different Children’s Aid Societies were contacted (and in respect to the first a CAS Safety and Premises Assessment worker observed no hazards in the respondent’s home, and positive interactions between son and father: the second Society had not yet responded to the wife’s contact by the time this motion was argued) and two Books of Authorities were filed which, together with the attendance of counsel and the parties at the motion, has collectively cost them several thousands of dollars, likely unrecoverable.
[10] While there should never be a monetary premium on a child’s best interests, the time and money spent on this issue is wholly disproportionate, and the evidentiary record does no credit to either party. They seem more intent on attacking the other’s parenting and credibility than focusing on a going-forward plan that will promote the child’s upbringing with the love, care and guidance of both parents. No useful purpose will be served by giving credence in these reasons to the ill-conceived, often immature, and gratuitous accusations that each party has made.
[11] In my view, there is insufficient evidence that the child that Constantine would not benefit by expanded time with his father, or that his well-being would be at risk, but there is merit that the Friday overnight might be too much, a little too soon.
[12] Accordingly, Order to go as follows:
- Paragraph 1 of the Order of Douglas J. shall be varied to provide that the child, Constantine Zeus Rallis, born November 3, 2013, shall reside with his father as follows:
(a) Commencing September 11, 2015, alternate weekends from Friday at 3:00 p.m. to Sunday at 7:30 p.m.;
(b) Commencing August 12, 2015, every Wednesday night from 3:00 p.m. to Thursday at 7:30 a.m.
- Paragraph 5 of the Order of Douglas J. shall be varied to provide that, commencing August 12, 2015, pick up and drop off shall be at the child’s daycare in Innisfil during weekdays. On those days where the daycare is not open, whether for holiday purposes, or any other reason, pick up shall take place in Bradford at a Tim Horton’s location to be agreed by the parties.
[13] Both parties are responsible for their behaviour which led to this outcome. As success has been divided, no costs shall be awarded.
Justice D.A. Jarvis
Released: August 10, 2015