Bancic v. Mirceta, CITATION: 2019 ONSC 39

COURT FILE NO.: FS93/15

DATE: 2019-01-02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Boyanna Bancic, Applicant

AND: Milos Mirceta, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: George A. Kirkham for Applicant; Sean D. Heeley for Respondent

HEARD: January 2, 2019 at Welland

ENDORSEMENT

[1] The Applicant has filed a motion to change a final order. Today she moves for a temporary order changing terms of access.

[2] The parties have a four-year-old son who is in the custody of the Applicant. On May 19, 2017 Edwards J. made a final order based on minutes of settlement. The Respondent was given access on alternate weekends, with overnight access one night a week. Special arrangements were made for certain holidays. The Respondent was made responsible for transportation, but he was not to be present at exchanges. His mother has been picking up and dropping off the children.

[3] The terms of access to which the parties agreed, and which were put into a court order, were all reasonable. Unfortunately, the parties, and in my view in particular the Respondent, used the terms of the order as a basis for extending the conflict between the parties, rather than a basis for minimizing conflict. In these circumstances, for the sake of the child it is necessary to make a few changes pending trial in the hope of facilitating stable access. There are a number of separate issues to consider.

[4] The order provides that notwithstanding the regular schedule, the father shall have the child on Serbian Orthodox Christmas day, January 7, in odd-numbered years, and the mother shall have him in even-numbered years. On January 7, 2018 the Respondent held the child over Christmas. He now says that he was mistaken as to the terms of the order. I do not believe him. Anyone in his situation would have looked at the order, as I find he did. His text messages to the Applicant were threatening. He did not refer to the terms of the order. He said that he always has the child at Christmas and any change will be made “over my dead body.” A final disposition of the motion to change should be made by Christmas next year. For this year, January 7, 2019, the child shall stay with the Applicant. In order to minimize conflict over this apparently emotional issue, the Respondent’s regular weekend access from January 4 to 6, 2019 will be cancelled.

[5] The child is now in school. The order of Edwards J. provided that in this event, mid-week access should be revisited. Whether a four-year-old should be in school and how many days a week is a decision that should be made by the custodial parent. What has been happening is that the Respondent has had the child picked up on Tuesday night and then kept him out of school on Wednesdays. He should not have been overriding his wife’s authority in this manner. Ideally one mid-week visit a week from after school until after dinner would be considered, but the Applicant lives in Niagara Falls and the Respondent in Stoney Creek, which is a bit of a hike for a four-year-old to make twice in a few hours. The situation is compounded by the fact that the Respondent cannot drive and cannot be present during pickup, which puts the burden on the Respondent’s mother.

[6] The level of conflict is high enough that I thought seriously about imposing supervised exchanges and police enforcement, but I hope that the following temporary measures will calm the situation enough until trial. They are designed to provide access while minimizing the opportunity for conflict. Maddalena J. has already ordered the parties to communicate exclusively by Family Wizard.

[7] The Applicant also wants to take the child on a Caribbean holiday during March break. Provided she complies with paragraph 6 of Edwards J.’s order, I do not see why she should not. The Respondent will be losing one access weekend. Looking at the situation from the long term view, that one weekend will not hurt anybody.

[8] I make the following temporary order:

a. Paragraphs 2. (c) and (f) of the order of Edwards J. dated May 19, 2017 are replaced with the following:

i. (c) [Deleted].

ii. (f) Subject to the above, on alternate weekends commencing January 18, 2019 from Friday at 4 pm until Sunday at 6 pm.

b. In 2019 the Applicant is entitled to cancel one weekend access visit at the beginning or end of March break in order to travel with the child on a vacation.

[9] The parties may make written submissions to costs not exceeding 3 pages in length, to which may be appended a bill of costs and any offers to settle, the Applicant by January 8 next, the Respondent by January 11.

J.A. Ramsay J.

Date: 2019-01-02