COURT FILE NO.: FS-17-90404 DATE: 20180626 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dr. Jakub Konarski Applicant

AND:

Dr. Tracey Doan Respondent

BEFORE: Ricchetti, J.

COUNSEL: P. Buttigieg for the Applicant/Father J. Moldaver for the Respondent/Mother

HEARD: June 15, 2018

Endorsement

THE MOTION

[1] This is a motion by the Applicant/Father seeking:

a) The appointment of Dr. Morris to conduct a s. 30 Children's Law Reform Act assessment, the costs of which he asks be paid by the Respondent/Mother;

b) That pending the s. 30 Assessment and further order of this court, the Mother to have supervised access; and

c) the Father to have primary residence of the children.

THE BACKGROUND

[2] The parties were married on August 6, 2006 (living together since October 2005).

[3] The parties separated on January 1, 2017.

[4] Both parties are licensed, practicing dentists.

[5] There are two children of the marriage: Bentley Doan Konarski (dob October 20, 2011) and Brody Doan Konarski (dob October 9, 2013) (the “Children”).

[6] The Father commenced this application in September 2017. The Father sought joint custody of the Children with their primary residence to be with him, or alternatively, an equal sharing of parenting time.

[7] The Mother sought sole custody of the Children and primary residence of the Children be with her.

[8] In his reply, the Father agreed to joint custody of the Children.

[9] A case conference was held on December 15, 2017. The parties entered into a consent which provided:

a) The parties retain a social worker to devise a parenting plan, ("the parenting coordinator"); and

b) The parties to jointly parent the Children.

[10] On May 4, 2018, the parties and their counsel met with the parenting coordinator. The parties arrived at partial final Minutes of Settlement (the “Minutes of Settlement”). The Minutes of Settlement were very detailed and provided, on a temporary basis, the "primary residency of the children and the regular day-to-day parenting schedule". Specifically, the Father was to have the Children in his care on:

a) Tuesday and Thursday afternoons from 3:30 pm until 7:00 pm;

b) Saturdays from 8:30 am to 7:00 pm; and

c) The parenting time in the Minutes of Settlement was to be "worked on" with the parenting coordinator over the following months.

[11] The Minutes of Settlement also contained the following provisions:

a) Neither parent may object to the other's plans with the children and must respect each other's ability to care for the children appropriately...

b) Neither parent shall speak in a disparaging or negative manner about the other parent nor allow nor encourage others to do so in the presence of any of the children...

c) All texts between the parents regarding the children shall not be deleted. Texts shall be brief, respectful, related solely to the children...

[12] Child support in the Minutes of Settlement was settled on a final basis that no payment of child support was payable by either party provided that, in the event either party sought child support, the settlement was void.

THE POSITION OF THE PARTIES

[13] The Father submits that the Mother's actions over the past few months, particularly the events of May 21, 2018, demonstrate that it is not in the best interests of the Children for the Mother to continue parenting the Children and requires that her parenting time be limited to supervised access pending a s. 30 Assessment.

[14] The Mother admits the incident of May 21, 2018 was a very serious mistake on her part. She has since enrolled in anger management classes and therapeutic counselling. The Mother seeks a dismissal of the Father's motion and that the Minutes of Settlement be turned into a court order.

THE EVIDENCE

The Father's Evidence

[15] After the execution of the Minutes of Settlement, the Father alleges there was an agreement he would have parenting time with the Children alternating weekends (Friday p.m. until Monday a.m.) and every Tuesday after school until Wednesday morning.

[16] The Father alleges the Mother has, contrary to the Minutes of Settlement, made disparaging comments about him to the Children, has encouraged the Children to lie to him, and has used vulgar language and gestures towards him in the presence of the Children. As a result, the Father contacted Peel CAS and provided this information to them. A social worker was assigned to the family.

[17] On May 21, 2018, the Children were with the Father. The Mother called the Children. Brody put the phone on speakerphone. The Father overheard the Mother ask Brody whether the Father's girlfriend hits him. The Father's girlfriend recorded the rest of the telephone call. During the telephone call, the Mother asked her son to say to the Father "do you like pussy". The Mother continued converse with Brody regarding "pussy" eventually telling him to say to his Father that he "eats pussy".

[18] By any standard, the Mother's conduct was deplorable, made worse by involving her 4 year son into her hatred of and conflict with the Father and the use of extreme vulgarities to a child, let alone one so young.

[19] The next day, the Father again contacted the social worker at the Peel CAS and advised her of the events of May 21, 2018. Peel CAS declined to apprehend the Children "because they are not showing any signs of "severe" mental or emotional distress".

[20] Several days later, the Mother's lawyer denied the Mother made the statements on May 21, 2018. The Father submits this shows the Mother lied to her lawyer.

[21] The Father suggests the Mother "is suffering from more than just the typical anger and "inability to move on".

[22] The Father submits he is capable of properly caring for the Children and the Mother is not. The Father submits he should have exclusive parenting time (except for supervised access by the Mother) which, he suggests, is in the Children’s best interests.

The Mother's Evidence

[23] The Father had no overnight access for 15 months. From the time of separation until March 31, 2018, the Father had access on Tuesdays (after school until 7:30), Thursdays (after school until 7:30) and Saturdays (8:00 a.m. to 7:30 p.m.).

[24] After March 31, 2018, the Mother states the Father continued to have the same Tuesdays and Thursdays access but, in addition, had alternate weekend access with one Saturday from 8:00 a.m. to 7:30 p.m. and on the other Saturday from 8:00 a.m. until Sunday at 11:00 a.m.

[25] Starting on May 18, 2018, the Father's access changed to every Tuesday after school until Wednesday morning school drop off and alternating weekends from Friday after school until Monday morning school drop off.

[26] The Mother acknowledges that her behaviour on May 21, 2018 was inexcusable, unjustifiable and inappropriate. The Mother explained her anger arises from the support she provided to the Father over the years and the subsequent breakdown of the marriage. The Mother is very sorry for her conduct and acknowledges the negative impact such conduct has on the Children.

[27] As a result of this "wake up call", the Mother enrolled in an 8 week Anger Management Course and engaged a social worker for therapeutic services to assist in dealing with issues arising from the separation.

[28] The Mother produced communications showing the Father too has communicated with the Mother in what can only be described as a sexually inappropriate, vulgar and deplorable manner. The Mother does not suggest the Father involved the Children in these inappropriate exchanges.

[29] As a result of this incident, the Mother states that the CAS conducted an investigation, including interviewing her and the Children on multiple occasions. The CAS is closing its file in this matter.

[30] The Mother submits that a s. 30 Assessment is not needed.

[31] The Mother also relies on an affidavit from the Father’s mother. The Children's paternal grandmother suggests that "dual custody" be continued until a final separation agreement and that "taking them entirely from their mother would have a devastating effect on them".

Father’s Reply

[32] The Father responds that his mother is being "manipulated" by the Mother.

[33] The Father continues to state that the Mother is "out of her mind and maniacally giddy" which requires her to "be properly assessed by a mental health professional". He has concerns the Mother will not meaningfully participate in the anger management program or the therapeutic sessions.

THE ANALYSIS

CHANGE IN CUSTODY AND PARENTING

[34] The question is easy to frame: Does the Mother's conduct, including her conduct on May 21, 2018, require a change in the agreed upon custody and parenting arrangement in the Minutes of Settlement?

Prior allegations

[35] I do not accept the Father's evidence that the Mother's inappropriate conduct (as alleged in his first affidavit) has gone on for months.

[36] The reasons rejecting this evidence include:

a) The Father agreed to the Minutes of Settlement to give the Mother the majority of the parenting time. The Father's explanation that he thought they had "turned the corner" is a vague, bald statement with no apparent basis for why he would believe that Mother would not continue this inappropriate alleged behaviour, if indeed the Mother behaved in this manner;

b) The Father's reporting to the Peel CAS shortly after the Minutes of Settlement were executed (and before the May 21, 2018 incident) suggests it is possible the Father is no longer happy with the parenting arrangements he agreed to in the Minutes of Settlement and has engaged in steps to change the parenting arrangement;

c) That the Father's own behaviour after May 4, 2018 (the date of the Minutes of Settlement) is also inappropriate and demonstrates that both parties "feed" each other's anger and conflict and, he too, has engaged in disparaging comments to the Mother; and

d) The Father's allegation in his second affidavit that the Mother is "out of her mind", is “maniacal” and he believes she has a mental health problem, all demonstrate his own anger towards the Mother.

[37] It is clear, from all the evidence, there continues to be a great deal of anger between the parties which has continued despite the Minutes of Settlement.

[38] In my view, setting aside the parenting arrangements the parties agreed to in the Minutes of Settlement cannot be made on alleged historical inappropriate behaviour of either party which pre-dates the Minutes of Settlement.

The May 21, 2018 Incident

[39] There is no question that the May 21, 2018 incident is very troubling. It demonstrates the Mother's anger is also being vented through the Children and involves the Children in this high conflict. Mother's conduct is entirely inappropriate and not in the Children's best interests. This type of inappropriate conduct can have lasting effects on the Children emotionally and negatively impact on the relationship they have with their Father. That is why s. 24(3) of the Children's Law Reform Act permits the Mother's conduct to be considered in the assessment of the best interests of the Children in this case.

[40] Clearly, the guiding principle for this court is to determine what is in the best interests of the Children.

[41] Parenting decisions in minutes of settlement/consent orders generally reflect what the parents believe is in the children’s best interests. This court should not lightly disregard what the parties agreed unless the terms are no longer in the best interests of the children. See M.T.J. v. M.P.G. and Hartwick v. Stoneham (2000), 8 R.F.L. (5th) 74 (ONSC).

[42] In order to determine the Children's best interests, the court must look not only to the events of May 21, 2018 but all the relevant circumstances surrounding and regarding the Children’s current care and well-being.

[43] Despite the Mother’s entirely inappropriate conduct, there are a number of factors which support leaving the existing custody and parenting arrangements in place:

a) This appears to be an isolated, albeit very disturbing incident, by the Mother;

b) The Minutes of Settlement were only signed on May 4, 2018. This is what the parties agreed was in the best interests of the Children at that time. The Father was satisfied that the majority of the parenting time be with the Mother, with his parenting time to increase over time with the assistance of the parenting coordinator. The parties appear to have cooperated to expand the Father’s parenting time. Very little time has gone by - just a few weeks - since the execution of the Minutes of Settlement. Granting the order sought by the Father is essentially throwing out the Minutes of Settlement opening up completely custody and parenting time. The work of the parenting coordinator to mediate and conclude additional/change parenting time would be undone;

c) The Children have been primarily with the Mother since separation - particularly overnight parenting has been substantially all with the Mother except for a few days since the Minutes of Settlement. It is only recently that the Father is enjoying greater parenting time with the Children, including overnight parenting. The Father’s proposed order would result in a significant and traumatic change for the Children. It would be a major upheaval in the Children's lives;

d) Supervised access is not a very meaningful way for the Children to continue or have a meaningful relationship with the Mother;

e) The Mother has recognized that her behaviour on May 21, 2018 was totally unacceptable and inappropriate. More importantly, I accept the Mother realizes the tremendous negative impact such behaviour has on the Children. I accept her statement that she will not engage in such behaviour again;

f) Granting this motion would likely perpetuate the anger/high conflict and litigation between the parties. While that is not a direct factor in this decision, the indirect impact of continuing this anger/high conflict litigation this will have on the Children is a relevant factor. The sooner the litigation can be resolved and the parties can move on with their lives with the assistance of the parenting co-ordinator, the better the Children's emotional well-being in the long term; and

g) CAS didn't find any child protection concerns. I recognize that “child protection” is a significantly high bar before the CAS take protection steps. However, quite often the CAS will be concerned that about the parent's high conflict impact on the children's emotional well-being. In such situations it is common that CAS continues to monitor the situation. In this case, there is no dispute that the CAS has decided to close its file. I do not accept the Father's suggestion that CAS has "abdicated its responsibilities". That has certainly not been this court's experience.

[44] Overall, these factors are a very strong and compelling reason not to change custody and access based on the May 21, 2018 incident. These factors outweigh the isolated events of May 21, 2018.

[45] I am not persuaded that a change in the parenting arrangements need to be changed at this time. That is not to say the Father cannot renew this motion in the event that the Mother's conduct occurs again in the future.

S. 30 ASSESSMENT

[46] The Father did not seek a s. 30 Assessment in the Application. I am not persuaded that this is fatal. However, I am not satisfied that it is appropriate, at this time, to order a s. 30 Assessment.

[47] It appears that the parties have made tremendous steps forward on Children’s issues with the benefit of a parenting coordinator. The parenting coordinator remains involved. It is hoped that the parties can return to moving forward with a focus on the short term and longer term best interests of the Children.

[48] There may be a time in the future where a s. 30 Assessment might be appropriate but that time has not arrived.

CONCLUSION

[49] Considering all of the above, I am not persuaded that this court should grant the motion to change the custody or parenting arrangements presently in place for the Children.

[50] To ensure that such conduct does not continue into the future, an order will issue as follows:

a) Neither parent shall speak in a disparaging or negative manner about the other parent, or the other parent’s partner, to or in the presence of the Children;

b) Neither parent shall encourage or speak to the Children regarding inappropriate sexual, vulgar or sexually suggestive manner regarding the other parent, or the other parent’s partner;

c) Neither parent shall speak or divulge any information regarding this proceeding to the Children;

d) All communications between the parents shall be by email or text messages, except in emergency situations. All emails and texts between the parents shall only deal with issues involving the Children;

e) All emails and texts between the parents regarding the Children shall not be deleted and remain available for this court proceeding; and

f) the Mother shall deliver evidence to the Father that she has completed the Anger Management Course that she is taking.

COSTS

[51] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[52] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[53] There shall be no reply submissions without leave.

Ricchetti, J.

Date: June 26, 2018