COURT FILE NO.: 16-143 DATE: September 6, 2018

Superior Court of Justice – Ontario

RE: Blaskavitch v Smith BETWEEN: Christina Faith Blaskavitch, Applicant AND: Christopher Donald Smith, Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: David Howard for the Applicant Michael Conroy for the Respondent

DATE HEARD: August 29, 2018

Endorsement

James, J

Introduction

[1] On May 22, 2018 the respondent father made a motion to change the final order of Robertson J dated 28 April 2017 (the “Robertson Order”). This order was made with the consent of both parties.

[2] The respondent then brought a motion for a temporary order within the motion to change (the “main proceeding”). More on this request later.

[3] In the main proceeding, the respondent seeks to increase his parenting time in relation to the parties’ 3 year old son, Nathan. He also seeks an order for a “needs assessment” pursuant to section 30 of the Children’s Law Reform Act.

[4] The applicant mother has her own claims in response to the father’s requests. The applicant seeks an order for sole custody of Nathan, a reduction of the respondent’s parenting time and alternatively, permission to move to Florida with Nathan to reside with her new partner.

The Motion Presently Before the Court

[5] The respondent seeks to increase his access on a temporary basis due to changes in his work schedule. He also seeks an order directing a section 30 assessment. It makes sense to request the assessment at this time because if the request is granted, the assessment report will be available for use in the main proceeding. There is also an issue about how childcare expenses are to be shared.

i) The Request to Re-arrange Mid-Week Access

[6] The respondent’s previous work routine involved afternoon/night shifts every second week. Accordingly, the original order provided for two mid-week daytime access sessions. When the respondent’s work schedule changed, the applicant did not see fit to accommodate this change by agreeing to an alteration of the timing of the mid-week visits. As a result, Nathan has been deprived of mid-week visits with his father for most of this year.

[7] The parties don’t get along very well. The applicant presents as hyper-vigilant and mistrustful of the respondent. It seems to me that the parties can do better at getting along and the lack of cooperation should not be permitted to be a tool for adjusting parenting time. The applicant tends to put a slant or spin on her version of events in an effort to show the respondent in a bad light. She also makes the most of opportunities to deprive the respondent of access visits. In many instances the applicant’s allegations are not corroborated and ought to be discounted because of the lack of evidence to support the applicant’s statements.

[8] As for the respondent, his decision to spend time with the applicant’s estranged father and to involve Nathan, when he knows that this is highly distressing to the applicant, suggests to me that he is a willing contributor to the dysfunction that poisons their relationship, to the detriment of their son. The respondent must do better at keeping the applicant informed in a timely and respectful way regarding access, his plans and other issues that impact on Nathan and on the parenting arrangements with the applicant. He also needs to take care in what he shares with third parties about his dealings with the applicant as this is essentially a private matter and ought to be treated as such.

[9] The applicant has failed to demonstrate why there should not be an adjustment to the access arrangements. The change in the respondent’s work schedule is a material change in circumstances warranting the adjustment. There will be an order altering the Robertson Order respecting mid-week access, deleting the two daytime visits and replacing them with a weekly overnight visit, with pick up and drop off at Nathan’s daycare provider, commencing immediately. This change will remain in effect until amended by a further order.

ii) Section 30 Assessment

[10] The parties agreed to a parenting regime about 18 months ago. There is no material change of circumstances warranting a major re-structuring of these arrangements. They had difficulty getting along then and they have difficulty getting along now. The applicant sought to minimize the respondent’s access then and continues to do so. Finality is an important consideration that applies here. So are stability, consistency and certainty for Nathan.

[11] While not well-developed in the evidence, both sides seem to agree that there is a real possibility that the respondent will be deploying to Mali for 6 to 9 months in the near future.

[12] The respondent says the main proceeding should not proceed to trial this fall because of the time required to prepare an assessment. He suggests that it ought to be delayed until next spring. When the respondent’s counsel was asked whether a possible deployment would impact on a spring 2019 trial, his response was that the respondent was going to have to decide what he is going to do.

[13] In my view an assessment is not appropriate at this time because the parenting regime was agreed to last year and the situation is not materially different now. Both parents are capable of looking after Nathan.

iii) Daycare Expenses

[14] This convoluted issue appears to resolve down to the question of whether the applicant ought to be granted a credit because of the respondent’s failure to apply for a subsidy sooner. Apparently both parties are receiving subsidies now so the problem should not arise in the future.

[15] In my view the applicant is not entitled to the requested credit. They are to share the expenses in accordance with the Robertson Order based on amounts actually paid. The evidence which I accept is that the respondent owes a little more than $150 to the applicant which ought to be paid forthwith.

Disposition

[16] The request to alter the mid-week access is granted.

[17] The request for an order directing the preparation of a needs assessment is dismissed.

[18] The daycare expenses are to be paid in accordance with the Robertson Order and this endorsement.

[19] Within 15 days the parties shall exchange proof that they have completed the parenting communication course ordered by Robertson J., failing which they will be deemed not to have complied with this requirement.

[20] The main proceeding is to proceed to hearing during the fall 2018 sittings. The current time estimate is 5 days. Trial scheduling endorsement forms are to be completed by counsel and delivered for judicial signature by October 2, 2018.

[21] On the issue of costs, success has been divided. If the parties are unable to agree on costs, the respondent may deliver his bill of costs and his costs submissions (not more than 3 pages) within 10 days and the applicant will have 10 days to respond.

James, J. DATE: September 6, 2018