Court File and Parties
COURT FILE NO.: FS-197790-00 DATE: 2019-09-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Zurab Gugushvili Applicant
– and –
Anna Shestak Respondent
Counsel: Self-represented Alexandra Abramian, for the Respondent
HEARD: August 27, 2019
REASONS FOR DECISON
Del Frate J.
[1] The applicant (the “Father”) seeks an order varying the Final Order of Coats J., dated September 27, 2016. Primarily, he wishes to change the parenting time to a week about basis. Further he seeks an order that the respondent (the “Mother”) be curtailed from making the final decisions in the activity schedules of the children. Lastly, he seeks that the Mother be responsible for the extra expenses he is incurring as a result of her moving from her Oakville residence to High Park.
Background
[2] The parties were married on December 18, 2004 and separated either in August or September 2014. From this union they had two children, Alexander born October 17, 2009, and Anton born July 19, 2011.
[3] The parties have been in a bitter and protracted litigation since the separation. Communication, or lack of communication, is one of the biggest factors as to why this litigation has become so high conflict.
[4] The Father believes that the Mother has totally disrespected him in the choices that she has made vis-à-vis enrolling the children in activities, and most importantly in moving from her Oakville residence to High Park without notifying him of her plans.
Position of the Father
[5] The Final Order of Coats J., which ordered joint custody and a fixed parenting plan, must be changed. Even though the Father has approximately 43% of the parenting time consisting of alternating weekends, every alternating Tuesday to Thursday morning, and every Thursday to Saturday morning, her decisions have reduced his parenting time to much less than 43%.
[6] The reduction in time arises from the fact that the Mother has moved and thus the Father must spend a much longer time driving to pick up and drop off the children at school or to their activities. This not only reduces his parenting time but increases his expenses due to the distances involved and because he must miss at least one hour from his work.
[7] The Father submits that the eventual move to High Park was a totally unilateral decision on the Mother’s part and accordingly she ought to be responsible for the extra costs. Further, to obtain the approximate 43% of parenting time, the only reasonable solution is a week about schedule.
Position of the Mother
[8] The Mother has complied with the Final Order. Although there is joint custody of the children, para. 2.2 of the order states:
Anna shall be responsible for arranging and scheduling the children’s extracurricular activities. She will provide information and a schedule to Zurab, but it is the responsibility of Zurab to access information from the websites provided with respect to last minute information and changes.
2.2.1 Anna shall make best interests to schedule the recreational (non-competitive) activities to minimize the activities that fall during Zurab’s time with the children. However, both parents shall acknowledge that some activities will conflict. Zurab shall take the children to all their competitive activities. Zurab shall be allowed on his Sunday access to not take the children to their recreational activities every Sunday he has them.
[9] The Mother does acknowledge that she did not inform the Father of her move from Oakville and the subsequent enrollment of the children in a new school. She believed that the move was in the children’s best interests and further that the travelling from Mississauga where the Father resides to Oakville is similar to the travelling from Mississauga to High Park. The only difference is that Oakville would require a westerly route and High Park requires an easterly route.
[10] Regarding the enrollment of the children in extracurricular activities such as soccer and gymnastics, these were activities that the children were involved in prior to separation and have continued. The children are good at them and enjoy the competition.
[11] Lastly, the Mother contends that this motion is not proper since it is seeking a variation of a final order. On an interim basis, the applicant seeking a variation must establish a material change in circumstances. The facts as presented by the Father do not constitute a material change and accordingly the Father’s motion ought to be dismissed.
Discussion
[12] It is unfortunate that the parties cannot communicate since this is the root of their discord. It appears that neither one has made a concerted effort to obtain some kind of counselling and direction on how to improve their methods of communication. The result is more court attendances and more legal expenses. These add up to further frustrations and a greater lack of communication between the parties.
[13] Case law is clear that the status quo ought not to be interfered with unless there are compelling reasons that would affect the best interests of the children.
[14] I am confronted with conflicting affidavits neither one of which convinces me that the status quo ought to be altered.
[15] Although the Father deeply believes that his request for an equal time parenting plan is in the best interests of the children, there is no reliable evidence to support that claim. At best, there are the faint inferences that the children tell him that they wish to spend more time with him. The evidence from the children themselves in the Voice of the Child Report does not disclose any serious concerns about the existing schedules. The children appear to be quite well rounded and are very diplomatic in stating their preferences so as not to hurt either parent. They are aware of the challenges faced by their parents and would appreciate a more stable schedule since the changes and uncertainty of the schedule is somewhat “confusing.”
[16] Unlike what the Father believes to be the case, both children are content and excited to be involved in the activities in which they are enrolled. In my view, depriving the children of those activities, especially the competitive aspects they enjoy, would harm the children’s attitude towards their parents. It is very clear that the children love and enjoy spending time with their parents. Even at their tender ages, it is obvious that they do not enjoy the animosity that is exhibited between their parents.
[17] I do not doubt that the Father believes that his concerns are genuine. However, they are not realistic. He genuinely believes that the unilateral decisions of the Mother have affected him financially and prevent him from spending further time with his children. His week about solution would only increase the frustration and expenses. Having a chauffeur pick up and drop off the children would not leave a salutary impression on the children.
[18] The change of address is inconvenient to both parties and in particular the Father. However, inconvenience is not a material change of circumstances. That inconvenience can be minimized with some improvement in the communication by the parties. Respect towards each other would alleviate some of the stressors.
[19] The problem is not with the children but with the parents. I encourage them to attend counselling and enroll in parenting courses that may assist them in opening their lines of communication. The parents must realize that this continued confrontation has affected the children and will continue in the future unless they change their ways.
Conclusion
[20] In conclusion, the Father’s motion is dismissed.
[21] It appears from the evidence that the final order does not specify the pick-up time from the children’s activities and from the Mother’s home. In order to alleviate any further misunderstandings, I order that the pick-up time of the children from their gymnastic classes at Toronto Gymnastics International located at 77 Browns Line Road, Etobicoke, Ontario, be no earlier than 7:15 p.m. Further I order that on the other week days when the children are scheduled to be in the Father’s care, the Father shall pick up the children from the Mother’s home at 6:00 p.m.
[22] Further, on consent, I order that both parties shall execute any consents necessary for the release of records from both the Toronto Children’s Aid Society and Peel Children’s Aid Society.
[23] The Father shall be granted leave to amend his motion to change to seek a claim for sole custody.
[24] Permitting these changes will alleviate the necessity of having the parties attend for another motion.
[25] These orders are merely procedural changes and for the purposes of clarification.
Costs
[26] The parties have informed me that offers to settle have been exchanged. These have been sealed on the understanding that I would open them once I had my reasons completed.
[27] I did hear submissions on the quantum expected by both parties. If successful, the Father would be requesting $2,100. The Mother is requesting $7,000 all inclusive on a substantial indemnity basis, and on a partial indemnity basis $4,500 plus HST. Having had the opportunity of reviewing the offers to settle, the Mother has been successful in having the Father’s motion dismissed. Presumptively, she would be entitled to full indemnity costs from the date of the offer, being August 15, 2019, until the hearing.
[28] I do not have the hours that were spent on the file from August 15 to the date of hearing. Accordingly, I award costs of $5,000 plus HST. The said costs are to be paid by the Father within 60 days.
[29] Order to issue as per reasons.
The Honourable Mr. Justice Robert G. S. Del Frate
Released: September 4, 2019
COURT FILE NO.: FS-197790-00 DATE: 2019-09-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Zurab Gugushvili Applicant
– and –
Anna Shestak Respondent
REASONS FOR DECISION
Del Frate J.
Released: September 4, 2019