COURT FILE NO.: FS-15-84098-00 DATE: 20180801

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GRIZEGORIZ BEMBENEK S. Benmor, for the Applicant Applicant

• and -

RENEE BEMBENEK M. Rose, for the Respondent Respondent

HEARD: July 10, 2018, at Brampton

REASONS FOR JUDGMENT

André J.

1The applicant, Mr. Bembenek, brings an application for an order that the two children of the marriage reside with both parents on an equal basis, without any obligation on the part of Ms. Bembenek, whose income exceeds that of Mr. Bembenek, to pay him child support. Ms. Bembenek opposes the application on the ground that Mr. Bembenek has not met the rather stringent test to vary an interim order for child access.

BACKGROUND FACTS

2The parties were married on September 6, 2008. They have two children, Sebastien, born on February 25, 2010 and Milena Bembenek, born on June 14, 2013.

3The parties separated on March 23, 2015.

4On September 16, 2016, Coats J. made a consent interim order regarding the custody of the children and their primary residence with the mother. She recommended that the Office of the Children’s Lawyer (OCL) to prepare a report enable the court to better understand the nature of the conflict between the parties concerning the parenting of the children.

5On March 13, 2017 the Children’s Lawyer made the following recommendations concerning parenting of Sebastien and Milena:

1. Custody: Joint custody
2. Access: The children will share their access time between their parents as follows:
   • Mother will have access every Monday and Wednesday overnight and alternate weekends Friday afterschool to Monday morning.
   • Father will have access every Tuesday and Thursday overnight and alternate weekends, Friday after school to Monday morning.
   • Drop offs and picks up should occur at the school whenever possible (when the school is open) if the pick up or drop off falls on a holiday the parent who will have access shall pick up the children from the other parent’s home at the same time that the pick up or drop off would have occurred if they were in school.

6The respondent maintains that little weight should be placed on the OCL report and that the issue of parenting should be resolved in a trial. The matter has therefore been set for trial in May 2019.

PARENTING SCHEDULE SOUGHT BY MR. BEMBENEK

7Mr. Bembenek seeks an order requiring the children to reside with both parents equally on any one of the following rotations:

(i) with the Applicant Father every Monday after school/daycare/camp until Wednesday drop off at school/daycare/camp and on alternating weekends from Friday after school/daycare/camp until Monday drop off at school/daycare/camp and with the Respondent Mother every Wednesday after school/daycare/camp until Friday morning drop off at school/daycare/camp and on alternating weekends from Friday after school/daycare/camp until Monday drop off at school/daycare/camp;

OR

(ii) with the Respondent Mother every Monday after school/daycare/camp until Wednesday drop off at school/daycare/camp and on alternating weekends from Friday after school/daycare/camp until Monday drop off at school/daycare/camp and with the Respondent Father every Wednesday after school/daycare/camp until Friday morning drop off at school/daycare/camp and on alternating weekends from Friday after school/daycare/camp until Monday drop off at school/daycare/camp;

OR

(iii) with each parent for a period of one week alternating each week with the exchange occurring every Friday after school/daycare/camp;

OR

(iv) with each parent for a period of one week alternating each week with the exchange occurring every Friday after school/daycare/camp and the other parent having the children for a sleep-over that week from Wednesday after school/daycare/camp until Thursday drop off at school/daycare/camp;

b. An Order suspending paragraph 5 of the Order dated September 20, 2016 (child support) given that the Respondent’s income is greater than the Applicant’s income and she would otherwise be liable for child support but, for now, no support be payable as this parenting schedule constitutes reasonable arrangements for provisions of the children, as defined.

GOVERNING PRINCIPLES

8Section 20 of the Children’s Law Reform Act (CLRA), R.S.O. 1990, c.C.12 provides that:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

9Section 21 of the CLRA provides that:

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

10Section 24 of the CLRA provides that:

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, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, 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 child’s care and upbringing;

(b) the child’s views and preferences, if they 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, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

11Section 16 of the Divorce Act, R.S.C., 1985, c.3, states:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, 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 and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

12The case of Marcy v. Belmore, 2012 ONSC 4696, [2012] O.J. No. 3896, at paras. 15 to 20, stands for the following principles:

a. OCL Reports form only part of the evidence at trial; b. OCL Reports are expected to be tested and analyzed at trial via cross-examination; c. Courts should be extremely cautious about relying on untested OCL reports at interim motions; d. In rare cases, an OCL report reveals or confirms the existence of an urgent problem requiring immediate attention or correction; e. Only in rare or exceptional cases will an OCL report’s recommendations be acted upon before trial, as it will affect the trial and its outcome; f. There is no presumption that the report’s recommendations will or should prevail at trial; and g. Courts cannot delegate decision-making authority to the assessor. [emphasis added]

13In Bos v. Bos, 2012 ONSC 3425, at para. 26, the court set out the following questions to assess the weight to be afforded the OCL report:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo? b) What other evidence is before the court to support the change requested? c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge? d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

14In Tsiriotakis v. Rizzo, 2018 ONSC 1544, O.J. No. 1307, at para. 16, the court noted that interim orders are “meant to provide a reasonably acceptable solution … for a problem that will get a full airing at trial”.

ANALYSIS

15The central issue in this motion is whether the interim consent order of Coats J. dated September 20, 2016 should be varied in accordance with Mr. Bembenek’s wishes.

16Mr. Bembenek justifies his position by maintaining that it is in the children’s best interests to vary the custody arrangement and, that it is consistent with the children’s wishes and also with the OCL report. Finally, he submits that failure to grant the order would effectively create a status quo which would benefit Ms. Bembenek at the expense of the children.

17There is no question that pursuant to s. 16 of the Divorce Act and s. 24 of the CLRA, the children’s best interests are the primary consideration in ascertaining the degree of contact they should have with each parent. Furthermore, I agree with Mr. Bembenek’s counsel that pursuant to s. 16(10) of the Divorce Act, I must 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 each child.

18That said, I must question whether a disruption in the children’s schedule would necessarily be in the children’s best interests. This disruption may create uncertainty and even discomfort if they are placed in a position where they believe that they are the source or cause of further conflict between their parents.

19Furthermore, while Mr. Bembenek’s counsel has repeatedly asserted that the children support the equal parenting sought by Mr. Bembenek, there is no indication in the OCL report that this is indeed the case.

20Additionally, the access schedule has been in place for one and a half years. There is a paucity of evidence that it is not working properly. Further, there is no evidence of any new development that calls into question the access schedule to which Mr. Bembenek consented to. Extending this schedule until the trial will not create a new status quo, given that the access schedule has remained unchanged for a lengthy period of time.

21Additionally, acceding to Mr. Bembenek’s request by reliance on the OCL report would effectively deprive Ms. Bembenek an opportunity to challenge the report; an intention she expressed when she filed her dispute of the report on April 11, 2017. This report may well be given considerable weight in a trial, after its maker has been cross-examined. However, at this juncture, it may be inappropriate to change the status quo on the strength of the OCL report. As the court noted in Marcy v. Belmore, there is no presumption that the contents of the report will prevail at trial and furthermore, that OCL reports are expected to be tested and analyzed at trial through cross-examination. In my view, a cautious approach is consistent with the need to ensure the children’s best interests given that it is contrary to their interests to change an interim order which was made on consent without any questioning of the conclusions of the OCL report.

22Additionally, the report does not reveal or confirm the existence of any urgent problem that requires immediate attention or correction. It does not reveal any recent development that has jeopardized the children’s welfare in any manner.

23For the above reasons, I find that the OCL report, in the circumstances of this case, does not justify a change in the status quo insofar as Mr. Bembenek’s access to the children is concerned. Accordingly, the motion is dismissed.

COSTS

24The respondent is seeking costs in the amount of $10,000 inclusive, on a full recovery basis while the applicant seeks costs of $13,348 on a similar basis and $8,000 on a partial recovery basis.

25In deciding what quantum of costs is fair and reasonable in this matter, I take the following factors into consideration:

1. Ms. Bembenek was substantially successful in this matter;
2. The matter was moderately complex and required a fair amount of research and the preparation of a factum;
3. Ms. Bembenek made an offer to settle on June 28, 2018, which included a term that the parenting order of Coats J. would remain in place pending settlement or a trial of the parenting schedule;
4. The offer to settle contained the payment of costs by the applicant to the respondent in an amount which is significantly less than the costs now sought by the respondent;
5. Mr. Bembenek did not unnecessarily prolong the proceedings or act in a vexatious manner.

26Based on the above, costs in the amount of $8,500 inclusive are fair and reasonable.

27Order to go that Mr. Grizegoriz Bembenek pay costs fixed in the amount of $8,500 inclusive, to Ms. Renee Bembenek, within ninety (90) day of today’s date.

André J.