CITATION: Zhao v. Tong 2016 ONSC 8037
COURT FILE NO.: FC-16-997
DATE: 2016/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ting Zhao
Applicant
– and –
Brain Tong
Respondent
A. Roodal, counsel for the Applicant
M. Coderre, counsel for the Respondent
HEARD: December 19, 2016
ORDER
KANE J.
Existing Interim Access
[1] The parties consented to an interim without prejudice order dated May 20, 2016 which includes periods of access of the children with the father, namely:
(a) Every Sunday;
(b) Every Tuesday; and
(c) Every Thursday.
[2] The status quo ordinarily is to be maintained until trial, absence material evidence that the child’s best interests demands an immediate change: Button v. Konieczny, 2012 ONSC 5613; Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (OnOnt. S.C); Kimpton v. Kimpton, 2002 CarswellOnt 503G (Ont SC); Eastofi v. McAvoy, 2005 ONCJ 319 and Horton v. Marsh, 2008 NSSC 224.
[3] The mother suggests that the May 20, 2016 interim without prejudice order’s terms of access represents the “status quo” and those terms should not be changed prior to trial as there is no child based evidence warranting variation.
[4] That interim order’s terms of access no longer represents the “status quo” since the father moved out of the home.
[5] The mother consented to and the parties agreed subsequent to that interim May 20, 2016 consent order that Ethan would sleep over at the father’s residence. That has occurred, other than occasions when the mother unilaterally altered that arrangement.
[6] The mother further argues that the OCL report is due at the end of January, 2017 and that report should not be pre-judged by a further interim order.
[7] The report and position of the Office of the Children’s Lawyer, despite some 6 month’s involvement, remains outstanding and is now scheduled to be completed by January 31, 2017.
[8] The Christmas holiday period has arrived and the parties cannot agree to a variation of the existing access terms to accommodate that fact. The interim order is silent as to holiday access.
[9] There was no reason for the applicant to consent to the draft interim access provisions of the children spending time with their father three times per week and the subsequent agreement as to sleep overs by Ethan with his father, if the mother’s prior 2015 complaint to police and her several subsequent complaints to the CAS continued to be relevant. No charge was laid. The CAS has not proceeded in response to her complaints.
[10] The father, as suggested to him, has since completed two parenting courses.
Interim Access Order
[11] The court makes the following interim without prejudice orders to incorporate changes which have occurred since the May 20, 2016 consent interim order and to address provisions not provided for therein.
[12] The father’s interim without prejudice right of access as to both children, subject to the following terms and until receipt of the OCL’s report and the next order of this Court, are:
From December 24, 2016 at 10 am, overnight until December 25 at 1 pm;
From December 26, 2016 at 10 am, overnight until December 27 at 5pm;
4:30pm to 6:30 pm, Thursday, December 29;
From January 1, 2017 at 10 am, overnight until Monday January 2 at 6:30 pm; and
4:30 pm to 6:30 pm Thursday, January 5.
[13] Interim without prejudice access terms after January 5, 2017 will be:
Every Tuesday and Thursday from 4:30pm until 6:30pm;
Every Sunday, 10am, overnight, until 8:30am on Monday for Ethan;
Every first Sunday for Evelyn, starting January 8, 2017, from 10 am until 6:30pm; and
Every second Sunday for Evelyn, starting January 15, 2017, from 10 am Sunday, overnight, until 8:30 am on Monday.
Medical Appointments
[14] Except in the case of medical emergencies requiring immediate attendance at a hospital, each parent is to provide the other parent with a minimum of 8 hour advance notice of the time, physician and place of any medical appointments regarding either child.
Discipline of Children
[15] Neither parent as a part of discipline is to physically strike the children, directly or indirectly. Neither parent is to raise their voice in anger for any reason in the presence of the children.
Ethan’s Dog and Cat Allergies
[16] The respondent resides currently with his parents and occasionally with his sister.
[17] Ethan is allergic to dogs and cats. To address that issue, periods of Ethan’s access with his father requires that the following measures be followed:
Ethan is to be kept away from dogs, cats and other animals;
Ethan’s bedroom door during all periods of access with his father and otherwise is to be closed at all times in order to prevent entrance of the animal(s) in that child’s bedroom;
On each day of Ethan sleeping during the day or overnight at the current residence used by the respondent, Mr. Tong will beforehand, daily vacuum Ethan’s bedroom and the space outside and near his bedroom prior to the child’s arrival at that residence and during Ethan’s attendance at that residence; and
Mr. Tong will immediately purchase, install and operate throughout periods of access a HEPA filter in the bedroom being used by Ethan.
Mr. Justice Paul Kane
Released: December 21, 2016
CITATION: Zhao v. Tong 2016 ONSC 8037
COURT FILE NO.: FC-16-997
DATE: 2016/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ting Zhao
Applicant
– and –
Brain Tong
Respondent
order
Kane J.
Released: December 21, 2016