COURT FILE NO.: FC-13-370 DATE: 2016/04/18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kristina Pey, Applicant AND Ali Javaheri Pey, Respondent
BEFORE: Shelston J.
COUNSEL: Carol Craig, counsel for the Applicant Self-represented for the Respondent
HEARD: January 26, 2016 (at Ottawa)
ENDORSEMENT
Overview
[1] The applicant has brought a motion seeking to replace paragraph 7; vary paragraph 8 and replace paragraph 10 of the order of Justice Doyle dated September 25, 2015. Further she seeks an order that the respondent cannot sign out the children from school without the applicant’s consent.
[2] The parties settled the custody and access issues by minutes of settlement dated September 25, 2016. Said minutes were confirmed by judgment of Justice Doyle dated September 25, 2015. Both parties had independent legal advice from their counsel before signing the minutes of settlement.
[3] At a trial management conference on January 16, 2016, Justice Sheffield ordered that, prior to the commencement of this trial, the applicant was granted permission to bring a motion to vary certain terms of the order of Justice Doyle and that the evidence would be submitted by affidavit evidence.
[4] When the party signed the minutes of settlement in September 2015, Parisa was to turn six years of age on May 29, 2017, 21 months after signing the minutes of settlement.
Facts
[5] The parties are the parents of two children namely Anya, born February 3, 2010 and Parisa, born May 29, 2011.
[6] The current access started on October 2, 2015. The applicant alleges the respondent has not respected the terms of the order requiring its amendment to minimize the possibility of future issues.
[7] The respondent denies the allegations and submits that the efforts of the applicant are designed to reduce his time with his children.
[8] The applicant alleges that the respondent has a long history of refusing to comply with court orders. She indicates that he in the past has reverted to long drawn out goodbyes when dropping off the children causing emotional stress to the children. Further, she alleges he was consistently late dropping the children off after the 4 o’clock deadline.
[9] To avoid future issues, the applicant insisted upon the terms set out in the access provisions of the final order of Justice Doyle dated September 25, 2015.
[10] Since October 2, 2015 the applicant alleges the respondent has breached the existing court order as follows:
(a) He has kept at least one child home without justification on several occasions; (b) He has removed a child or both children from school early on days he has access; (c) He is finding ways to extend his access by keeping the children home from school; (d) He has disregarded the access terms and has refused to return the children to her care.
Amendment to Paragraph 7
[11] Paragraph 7 of the order of Justice Doyle dated September 25, 2015 provides as follows:
The children shall reside with the respondent as follows:
(a) Commencing on Friday, October 2, on alternate weekends from Friday after school until Monday morning, returning the children to school; (b) Commencing on Wednesday, September 30, on every Wednesday evening from after school returning the children to school on Thursday morning.
[12] The proposed amendment seeks to specify that the respondent’s access every second weekend will start at 3:45 p.m. on Friday and will end Monday at 9:15 a.m. Further, if the respondent determines a child is too ill to attend school, he will return the child to the applicant’s home by no later than 9:15 a.m. This amendment is also to apply to the respondent’s access on Wednesdays to Thursday morning.
[13] The affidavit evidence of the applicant provides very specific dates and times when the children were signed out of school early. The evidence discloses that the respondent signed the girls out early from school commencing October 7, October 14, October 16, October 21, October 30, November 11, November 13, November 18, November 25, November 27, December 2, December 9, December 11, December 16, January 6 and January 8.
[14] The respondent’s reply affidavit dated January 15, 2016 does not deny the allegations regarding him taking the children out of school earlier. He simply states at paragraph 25:
I acknowledge that in some days I have picked up the children slightly earlier from school as they do not have a school bus when they resided me and I go to school to pick them up.
[15] He also acknowledges and picks up the children slightly earlier on Wednesdays so they can do their homework with him but now agrees that he regrets doing so and has decided to pick the children up at the end of the school from now on.
[16] I accept the applicant’s evidence. I grant the relief to the amendment to paragraph 7.
Amendment to Paragraph 8
[17] The applicant seeks to amend paragraph 8 regarding summer vacation, March break, Christmas school break, EID, Father’s Day, Easter, and statutory holidays. The existing paragraph 8 provides very specific access.
Paragraph 8 (a) (b)
[18] The custody and access provisions of the final order of Justice Doyle must be considered in the context of what the parties anticipated. In paragraph 15 of the final order of Justice Doyle the parties agreed to retain Dr. Weinberger or an alternate assessor if he is not available to complete an updated assessment immediately after Parisa’s sixth birthday with a view to determining whether any changes should be made to custody or the respondent’s parenting time with the children.
[19] The existing access for the summer and March break access do not provide the respondent with any access until once Parisa reaches six years of age. To support that submission, counsel for the applicant advised that Dr. Weinberger was to prepare an updated assessment when Parisa turns six years of age as set out in paragraph 15 of the final order of Justice Doyle.
[20] I accept the applicant’s submissions that the respondent was not afforded any form of summer access or March break access until after the youngest child reaches six years of age when an updated assessment is to take place.
[21] With respect to the amendments sought regarding paragraph 8 (b) by adding the words “from after school on Friday at 3:45 PM” and the words “until return to school on Monday morning at 9:15 AM” is also granted. I accept the evidence of the applicant that the respondent has not complied with the court order. In such circumstances I grant the amendment.
Paragraph 8 (c)
[22] With respect to the amendment sought at paragraph 8 (c) here again there is no Christmas school break access provided to the respondent until Parisa reaches six years of age. The respondent admits that on Monday, December 28, 2015, it was a statutory holiday and consequently he kept the children home with him. The respondent relies on paragraph 8 (h). In my view the agreement did not clearly set out that the statutory holidays would not apply during the Christmas school break. Consequently, to provide clarification to the parties, the amendment will be granted.
Paragraph 8 (d)
[23] With respect to the amendment sought at paragraph 8 (d), again the amendments being sought are to ensure that the respondent complies and returns the children to school. I find that the request that the children be returned by 9:15 a.m. the next morning is reasonable. Further, the request to add an amendment that if the respondent determines a child is too sick to attend school, he return the child to the applicant’s home by no later than 9:15 a.m. is also reasonable considering that the applicant is the main caregiver of the children. I grant the amendment sought.
Paragraph 8 (f)
[24] With respect to Father’s Day, I agree that there needs to be a time when the respondent must return the children on Monday morning. The request is for 9:15 a.m. and I find that to be reasonable. Again for the same reasons previously indicated that if the child is sick and cannot attend school the child shall be returned to the applicant’s home the later than 9:15 a.m. That amendment sought by the applicant is granted.
Paragraph 8 (g)
[25] With respect to the amendment at Easter, I agree with the amendment that the pickup of the children from school must be specified at 3:45 p.m. based on the evidence that the respondent has picked the children up earlier than the end of school. Further with respect to the clarification of Easter, if the Easter weekend does not fall on a weekend of scheduled access, there will be no access. I grant this amendment.
Amendment to paragraph 10
[26] The applicant seeks to delete paragraph 10 of the final order of the honourable Justice Doyle dated September 25, 2015 which provides as follows:
- Both parties will ensure the children attend school unless they are absent due to illness. If a child is too ill to attend school, she will remain in the care of the parent where she resided overnight until the end of the school day.
[27] The applicant seeks to replace the existing paragraph 10 with a new paragraph 10 which provides as follows:
- Both parties will ensure the children attend school unless they are absent due to illness. If a child is too ill to attend school, she will be cared for by the applicant. If the child resided with the applicant on the previous overnight, the respondent will return the child to the applicant no later than 9:15 a.m.
On any occasion when the respondent is returning the children to the applicant by 9:15 a.m. because the children are too ill to attend school, the respondent will provide the applicant with at least 30 minutes’ notice.
[28] In my view, the affidavit material supports the need to deal with the care of the children when they are ill as well as to prescribe a return time to the applicant if the children are too ill to attend school. I accept the applicant’s evidence that the respondent has utilized alleged illness by the children to keep the children out of school. I grant the amendment being sought with respect to paragraph 10.
New Amendment
[29] The last amendment being sought by the applicant is an order that the respondent cannot sign out the children from school without the applicant’s consent. This does not exist in the order of Justice Doyle dated September 25, 2015. I note that in the final order, the applicant has the sole authority to arrange and to attend to medical, dental and counselling appointments for the children. The parties will share joint decision-making authority in all other matters, primarily education and religion. Each party will be responsible for the day-to-day decisions when the children are in their care.
[30] The evidence discloses that the father has taken the children out of school before his access. The mother is the main custodial parent and the father access is set out in the court order.
[31] The father is entitled to exercise access to his children pursuant to the terms of the order but he does not have the right to sign the children out of school when it is not his access without the applicant’s consent. Based on these findings, I grant the amendment being sought by the applicant.
Costs
[32] The applicant was successful on this motion and is entitled to costs. This motion was argued at the beginning of a four-day trial. I direct that the costs submissions made by the applicant and any response by the respondent be included in the cost submissions with respect to the trial decision.
Shelston J. Released: April 18, 2016