COURT FILE NO.: FS-18-005351

DATE: 20191016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MILENA KUMURDJIEVA

Applicant

– and –

GIUSEPPE LORETO GILDO CERASUOLO

Respondent

Karen Ballantyne, lawyer for the Applicant

Annamaria Perruccio and Olivia D’Ammizio, lawyers for the Respondent

HEARD: October 3, 2019

ENDORSEMENT

DIAMOND J.:

Overview

[1] On June, 27, 2019, the parties had scheduled a series of motions to be argued before me on the regular motions list. While they were able to resolve one dispute surrounding travel arrangements with their daughter, it was readily apparent that the balance of the relief sought on those motions could not be reached within the allotted one hour.

[2] As such, I ordered that the applicant’s motion for disclosure proceed on July 30, 2019, and the respondent’s motion for increased parenting time proceed before me on September 17, 2019.

[3] Justice Shore heard the applicant’s disclosure motion on July 30, 2019. The respondent’s parenting time motion was further adjourned, and proceeded before me as a long motion on October 3, 2019. At the conclusion of argument, I took my decision under reserve.

Background Facts

[4] The parties were married for approximately five years. There is one child of the marriage, a daughter born on October 15, 2013.

[5] In mid-October 2018, the applicant vacated the matrimonial home with the daughter, and advised the respondent that she had contacted both the police and the Children’s Aid Society (“CAS”). Both the police and CAS opened investigations into allegations of child abuse reported by the applicant based upon information she purportedly received from their daughter. From my review of the record, it appears that the respondent cooperated with both investigations.

[6] The police investigation appears to have concluded shortly after the respondent was interviewed. No charges were laid.

[7] CAS has provided its records in this proceeding, and a review of those records discloses that the CAS investigation was closed due to the allegations being unfounded.

[8] On October 25, 2018, the respondent brought an urgent motion before Justice Monahan asking for joint custody of the daughter with equal parenting time on a week on/week off basis. At that time, the police investigation was ongoing, but the CAS investigation may not have commenced. Justice Monahan noted that the allegations had yet to be proven, and saw “no reason why the respondent should not be permitted” to have the daughter in his care for at least some overnights, as it was in the daughter’s best interest to have ongoing regular contact with both parents. As a result, Justice Monahan made an interim order that the respondent have the daughter in his care every Wednesday after school until the following Thursday morning, and alternating weekends from Friday after school until Sunday at 6:00 pm.

[9] At a case conference held on December 3, 2018, and at the applicant’s request, the parties consented to an order retaining Howard Hurwitz (“Hurwitz”) to carry out a section 30 custody and access assessment. That assessment was completed in mid-April 2019 and on April 17, 2019 both parties met with Hurwitz at a disclosure meeting during which a lengthy list of recommendations were suggested and provided to the parties.

The Hurwitz Report

[10] Hurwitz concluded that a stable home environment in two homes was in the daughter’s best interest, as was a joint and shared custodial arrangement.

[11] Hurwitz reviewed the CAS and police investigation files, and was mindful of the allegations during his interview with the daughter. Hurwitz believed the allegations to be unfounded.

[12] At some points in his report, Hurwitz had difficulty accepting some of the applicant’s contentions, and found that the applicant failed to see the value in shared parenting with the respondent, preferring to act unilaterally in her parenting of their daughter. Hurwitz considered the applicant to be quite critical of the respondent and ultimately found an absence of evidence to counter his recommendation that the respondent parent the daughter in a more substantive way than he was being permitted to in early 2019.

[13] Hurwitz found that the applicant would “go to extreme levels to be critical” of the respondent. While the applicant was historically the primary parent, Hurwitz appeared to reject the applicant’s suggestions that the respondent was simply “not involved in parenting their daughter”.

[14] With respect to increasing the respondent’s parenting time, Hurwitz set out the following recommendations to be implemented:

(a) From May – October 2019

• Week 1: pick up Monday after school until Tuesday morning drop off, and Friday after school until Monday morning drop off; and

• Week 2: pick-up Wednesdays after school until Thursday morning drop off.

(b) From October 2019 onward

• Week 1: pick up Tuesday after school until Thursday morning drop off; and

• Week 2: pick up Tuesday after school until Wednesday morning drop-off, and pick up Friday after school until Monday morning drop-off.

[15] Hurwitz also set out a series of recommendations with respect to shared holiday time between the parties.

Further Allegations

[16] In early June 2019, the applicant once again reported child abuse allegations against the respondent to the police. It is the respondent’s position that these allegations were false and advanced for the purpose of postponing the implementation of Hurwitz’s recommended parenting plan. For her part, the applicant says she was simply reporting what she understood to be the case based upon further discussions with the daughter.

[17] On the record before me, the June 2019 allegations appear to be unfounded. In her recent affidavit, the applicant states that her daughter’s claims “were not substantiated…but this does not mean that they didn’t happen”. While the CAS investigation into the child abuse allegations appears to have been closed, the CAS file itself is not closed as a case worker was assigned to assist the parties with their post-separation conflict.

[18] Since the summer of 2019, the parties have encountered significant difficulty in agreeing upon the best parenting course of action for their daughter. The respondent takes the position that the applicant has consistently interfered with his parenting time, and contacted their daughter on multiple occasions during the respondent’s parenting time. The respondent complains of numerous incidents where the applicant would blame him for “anything and everything”, including a rash on their daughter’s hands which the applicant considered to be “his fault”.

[19] The applicant gave evidence that despite suggesting and attempting to implement a revised 2019 summer schedule designed to provide the respondent with extra weekends with their daughter, the respondent consistently changed his mind and refused to take up the applicant’s offer of extended time. As such, the applicant takes the position that even if Hurwitz’s recommendations were implemented, the respondent has not displayed a pattern of conduct which would support those recommendations being successful or carried out with consistence or at all.

Parenting Coach vs. Parenting Coordinator

[20] In his report, Hurwitz recommended that the parties retain someone to be their parenting coach, and suggested three individuals to fill that role. Hurwitz also recommended that in the event disputes between the parties could not be resolved, they would retain someone to mediate and/or arbitrate those disputes.

[21] The applicant takes the position that a parenting coach is insufficient in the circumstances, as a parenting coach does not arbitrate or make any binding decisions in the event of an unresolvable dispute. A parenting coordinator can arbitrate and make binding decisions on top of likely providing assistance with the communication issues and conflict.

[22] The applicant gave evidence that if the parties were to have joint custody of their daughter, they require a parenting coordinator as they “cannot keep coming to court every time a dispute arises”.

[23] Throughout the summer of 2019, counsel for the parties communicated but could not agree upon a parenting coach or parenting coordinator. The applicant states that in the event the respondent does not agree to retaining a parenting coordinator, she may have to seek sole custody of their daughter at trial. As such, the applicant submits that these issues would best be left for trial so that the Court is not placed in a position to make “piecemeal orders” with respect to some of the Hurwitz recommendations but not others.

Child Psychologist

[24] According to the applicant, their daughter is having difficulty adjusting to the current parenting schedule, and the parties apparently agree that their daughter would benefit from seeing a child psychologist. However, the parties were unable to settle on who that child psychologist would be as they refused to arrive at a joint conclusion.

[25] As part of her cross-motion, the applicant is asking for an order mandating the parties to retain a child psychologist.

Decision

[26] As held in Zhang v. Guo 2019 ONSC 531, “the existence of criminal charges respecting allegations of violence is not determinative of issues of temporary custody and access…the focus of the analysis remains the best interest of the child, and this involves a careful consideration and weighing of the evidence and the relevant factors.”

[27] The respondent has been attempting to increase his parenting times for approximately one year. While the applicant maintains that the allegations of child abuse may indeed be true, there is very little in the record before me to substantiate those allegations. Both the police and CAS chose not to take any substantive steps once their respective investigations were completed.

[28] As a result of the applicant’s unilateral departure with the daughter from the matrimonial home, and her subsequent reporting of child abuse allegations on two occasions, the status quo prior to October 2018 has been disrupted, and a new, disjointed status quo has been in place for several months. The Hurwitz report attempts to dislodge that blockage, and implement gradual changes which, if successful, would increase over time and be in the daughter’s best interests.

[29] The respondent wants the Court to adopt and implement Hurwitz’s recommendations. In reviewing the relevant jurisprudence, when asked to order interim relief pending trial, as a general rule the Court should exercise caution when relying upon conclusions and recommendations set out in untested assessments or reports. However, as held by Justice O’Connell in Rahbari-Jawoko v. Jawoko 2019 ONCJ 538, there have been cases were the Court has drawn “a distinction between the issues of custody and access”, as in some cases the Court may rely on recommendations of the assessor or clinical investigator on temporary, “access only” motions.

[30] The Hurwitz report was obtained at the applicant’s request. It appears that she is not happy with Hurwitz’s recommendations, and has resisted their implementation by relying upon further allegations of child abuse and the respondent’s inability to cooperate with her. In my view, some of the applicant’s positions are akin to “self help” actions which lack an overall appreciation of the need for stability and consistency for the daughter. I agree with the respondent that the status quo to be maintained is not the artificial status quo created by the applicant over the last several months, and the last year does not amount to a “long term status quo” as that term was used in Ceho v Ceho 2015 ONSC 5285.

[31] I have reviewed Hurwitz’s observations and analysis, and consider his report to be probative evidence. The daughter would benefit from a reduction, if not a hopeful elimination, of the conflict which has only increased due to the parties “fighting about the fight”. The proposed increased parenting time in the respondent’s favour does not amount to a significant change, especially given the gradual increased nature of those recommendations. Since any changes I am being asked to implement are on an interim and without prejudice basis, I believe that following the Hurwitz recommendations is in the daughter’s best interest, and in furtherance of the maximum contact principle.

[32] I am thus prepared to increase the respondent’s parenting time in accordance with the Hurwitz recommendations. Given that those original recommendations were set to be in place well before the daughter’s six birthday, I believe it to be in her best interest to create a new parenting time regime to increase over time. Accordingly, I make the following order to commence on the week of October 28, 2019:

(a) For the first week, the respondent shall have the daughter from pick up at school on Mondays until drop off at school Tuesday morning, and also from pick up at school on Fridays until drop off at school on Monday morning; and

(b) For the second week, the respondent shall pick up the daughter on Wednesdays after school until Thursday morning drop off.

[33] This new parenting time shall alternate every week thereafter. The balance of the parenting time recommendations in the Hurwitz report (i.e. increasing the first week pick up from Tuesdays after school until drop off Thursday mornings and switching the weekend access to the second week) shall commence after a six month period. In the event further complications arise, the parties may revisit this issue before me in accordance with my directions set out below.

[34] With respect to changing interim custody, at this time I am not prepared to implement that recommendation at this time but this decision is being made on a without prejudice to both parties’ rights and interests and may be revisited in accordance with my directions set out below.

[35] With respect to the applicant’s request for the appointment of a parenting coordinator and the retainer of a child psychologist, these issues were not tabled before me pursuant to my original endorsement, but the parties may revisit these issues before me either in person or by conference call in accordance with my directions below.

Soft Case Management

[36] As I indicated to the parties at the conclusion of the hearing, in my view this proceeding could benefit from case management. While I am not substituting myself for a potential parenting coordinator (if such relief is ultimately granted), I am prepared to act as the “soft” case management judge for the purpose of administratively scheduling matters, and either being the conference judge or the decision making judge depending upon the parties’ wishes. As part of their respective costs submissions (as set out below), counsel may advise of their parties’ intentions in this regard.

Costs

[37] In my view, it can be argued that success on this motion has been divided. If the parties take a different view, absent an agreement on the issue of costs, they may serve and file written costs submissions totaling no more than five pages (including a Costs Outline) and in accordance with the following schedule;

(a) the respondent’s costs submissions within 10 business days of the release of this Endorsement; and,

(b) the applicant’s costs submissions within 10 business days of the receipt of the respondent’s costs submissions.

Diamond J.

Released: October 16, 2019

COURT FILE NO.: FS-18-005351

DATE: 20191016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MILENA KUMURDJIEVA

Applicant

– and –

GIUSEPPE LORETO GILDO CERASUOLO

Respondent

ENDORSEMENT

Diamond J.

Released: October 16, 2019