Court File and Parties

Court File No.: FC-19-FS000044-0000 Date: 2021-01-13 Superior Court of Justice - Ontario

Re: Shad Steven Lusted, Applicant And: Maria A. Bogobowicz, Respondent

Before: The Honourable Madam Justice L. Madsen

Counsel: Barry T. Paquette, Counsel for the Applicant Maria A. Bogobowicz, Unrepresented Respondent

Heard: December 16, 2020

Endorsement

[1] This motion was heard by Zoom in light of COVID-19.

[2] The father, Mr. Lusted, ["the father"] brings a motion seeking to change an interim Consent Order agreed to on September 18, 2019 ["the Consent Order"]. He seeks substantially expanded parenting time; a police enforcement clause; terms related to communication; an adjustment to terms related to holiday time; and related relief.

[3] The mother, Ms. Bogobowicz, ["the mother"], seeks the dismissal of the father's motion; minor adjustments to the Consent Order; an Order for payment of outstanding childcare costs; and an Order for proportionate sharing of the section 7 expenses.

[4] For the reasons set out below, both parties' motions are dismissed.

Materials Reviewed

[5] The parties filed and I have reviewed the following materials for this motion:

• Father's Notice of Motion returnable September 23, 2020;
• Father's Affidavit sworn September 4, 2020;
• Father's Financial Statement sworn September 4, 2020;
• Affidavit of Desiree Charity Gray, sworn October 30, 2020;
• Father's Reply Affidavit sworn December 7, 2020;
• Father's Factum;
• Mother's Notice of Motion returnable September 23, 2020;
• Mother's Affidavit sworn September 17, 2020; and
• Mother's Financial Statement sworn September 17, 2020.

[6] In addition, I have reviewed both parties' Form 35.1 Affidavits.

Brief Background

[7] The parties are the parents of Makenzie Lusted, born October 11, 2016 ["Makenzie" or "the child"]. Makenzie, who is now four years old, has lived with her mother since birth.

[8] The parties never lived together. They ended their relationship on December 1, 2018.

[9] After they broke up, the parties could not agree on access arrangements. On May 15, 2019, the father brought an emergency motion seeking access. On a temporary without prejudice basis, I ordered that the father have parenting time with Makenzie each Saturday for two hours and each Tuesday for two hours [the "Without Prejudice Order"].

[10] A Case Conference was held on June 11, 2019.

[11] The matter then proceeded to a Motion before Justice MacLeod on September 18, 2019. A temporary Order was made, almost all terms of which were on consent [the "Consent Order"]. That Order provides, in part:

a. That the child would reside primarily with the mother;

b. That the father would have parenting time expanding to alternate weekends from Friday at 4:45 p.m. to Sunday at 4:45 p.m. and Tuesdays from 4:45 p.m. to 7:45 p.m., to be extended to Monday at 4:45 p.m. in the case of a long weekend.

[12] The parties also agreed to a holiday schedule, including a schedule for the summer months. There has been some confusion about the implementation of summer schedule.

[13] The Consent Order contains other parenting terms, including that the exchanges of the child would take place at the main branch of the Waterloo Public Library.

[14] The terms of the Consent Order are detailed and thoughtful. Both parties had counsel when the terms were negotiated and agreed to.

[15] Since the Consent Order was made, there have been some challenges, including the following:

a. Lateness: The mother, by her own admission, has repeatedly been late to drop off the child. She has, however, often extended the parenting time at "the other end" to reduce time missed by the father. When asked about whether there had been discussions between the parties about adjusting the regular schedule on consent to assist the mother in being able to arrive on a timely basis, this was not really answered. When pressed, counsel said that even when one-off adjustments were made to the schedule the mother was still late.

b. Conflict: There has been some conflict at exchanges. In the father's detailed affidavit (281 paragraphs, including blow-by-blow notes relating to what appears to be every access exchange since May 2019), he says that there have been arguments and swearing in front of the child and that this is causing anxiety for her. The mother says the father's notes are greatly exaggerated and that he causes the conflict, not her.

c. Pick-up and Drop Off: There has been a lack of consistency in terms of who is dropping off the child. Sometimes it is the mother and at other times it is the maternal grandfather or the mother's partner. The mother's materials confirm that she is not always the person doing the exchanges.

d. Police: There has been police involvement. On the motion and in his factum, the father stated that the mother repeatedly involves the police without any basis. In argument it was stated that the mother had called "approximately six times" and that he had called the police on "one or two" occasions. A review of the father's own detailed notes suggests that since the Consent Order, he has called the police three times. The mother does not, in fact, appear to have called the police since July 6, 2019, before the Consent Order.

e. Access cancellations: The father says the mother cancels access. On a review of the father's detailed notes it appears that she has cancelled access twice since the Consent Order and that the father has also cancelled twice since the Consent Order. In addition, there was a disagreement about overnight access for Thanksgiving 2019, and about access in December 2019. When access has not taken place there has been conflict about whether there should be "make up time" and if so when that should be.

[16] The father works full-time for the Township of Woolwich. In his affidavit materials he states that he works from home two days per week. As at the arguing of the motion this had changed and his counsel stated that the father now works from home five days a week. The father says that his work is flexible and that even though he is working full-time he can supervise the child and support her schooling.

[17] The father states that if he is not available, his girlfriend can help. There are no details in the affidavit material or the Form 35.1 about his girlfriend, only her name. It is unclear whether the father's girlfriend lives with him, or what her experience is with children.

[18] In the alternative, the father states that his 19-year old daughter, who is attending college remotely, can assist. There are few details in his materials about his daughter.

[19] The mother is a stay at home parent. She is a part-time employee of Blyth Academy and a part-time tutor. She says that she is able to do that work during Makenzie's nap.

[20] Makenzie is enrolled in junior kindergarten, which she is attending remotely in light of COVID-19, while in the mother's care.

[21] Both the mother and the father are experienced parents. Each has three other children.

Parties' Positions

[22] The father argues that the interim Consent Order should be varied because the mother is sabotaging his parenting time. He states that the evidence demonstrates a material change of circumstances since the Order was made, and that the child's best interests require an Order that she reside with her parents on an equal basis. He says that given the level of conflict on exchanges, an Order for week-about parenting time will reduce exchanges and thereby reduce the child's exposure to conflict, which is in her best interests.

[23] The mother argues that other than adjusting the pick-up and drop off times, there is no basis for changing the Order as there has been no material change of circumstances. She says the father exaggerates the level of conflict and where there is conflict he is the source of it. She stresses that she has been the child's primary caregiver since birth, and that it is not in the child's best interests to be in a parenting arrangement where the child is parented by the father's girlfriend and/or other daughter while he is working.

The Law

Interim Variation

[24] This is a matter under the Children's Law Reform Act, R.S.O., 1990 c. C.12 ["CLRA"] as the parties were never married. Section 29 of the CLRA provides that a court shall not make an Order varying an Order in respect of custody or access unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.

[25] Case law makes clear that there is a significant difference between applying to vary an interim Order versus a final Order. In general, an interim Order is intended to continue until trial. Interim Orders are most commonly varied only in "compelling" or "exceptional" circumstances. See for example Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708, in which the court stated as follows regarding the variation of interim Orders:

Given that interim Orders are 'meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,' requests to change them should be rare. [emphasis added]

[26] See also Lonsdale v. Smart, 2018 ONSC 3991, in which the court held that "compelling reasons" are required for an interim variation under the CLRA.

Best Interests

[27] It is trite law that determinations about parenting are to be made in the best interests of children. Under section 24 of the CLRA, factors to be considered by the court include, but are not limited to: the love and affection between the child and her parents; the length of time the child has lived in a stable home environment; the ability and willingness of each person applying for custody to care for the child; and each person's proposed plan for the child's care and upbringing.

[28] While "maximum contact" is not explicitly listed in section 24 of the CLRA, caselaw is clear that the maximum contact principle is an important consideration for cases under the CLRA. That is, the child should have as much contact with each parent as is in her best interests. See for example Borsfai v. Hyde, 2015 ONCJ 117.

Application

[29] I find that the evidence in this case is insufficient to establish that there has been a material change of circumstances since the making of the Consent Order in September 2019. The father's own materials suggest that the challenges that he says exist in terms of lateness, conflict, and police involvement were already in evidence when that Order was made. For example:

a. The father's materials indicate that the mother was late for almost every drop off after the May 2019 Without Prejudice Order and before the September Consent Order. Lateness, therefore, is not evidence of a material change;

b. In his materials he states that the mother repeatedly "invoke[es] police involvement when there is no cause." I have noted above that this does not in fact seem to be the case since the Consent Order. The police calls by the mother were before the Consent Order was entered into. The evidence is that the father has been the party to call the police since September 2019, calling on three separate occasions.[^1] Police involvement, therefore, is also not evidence of a material change.

[30] Thus, while the father is frustrated, I do not see that the situation now materially changed from when he agreed to the Consent Order, knowing, based on the implementation of the Without Prejudice Order, what the difficulties were likely to be.

[31] If I am wrong and the conflict, lateness, and police calls do constitute a material change of circumstances, I nevertheless find that the evidence does not support the changes to the Consent Order sought by either party. I reach this conclusion for the following reasons:

a. The circumstances in this case are neither compelling nor exceptional, and do not meet the threshold required to change an interim Order.

b. The change sought by the father is a substantial departure from the status quo that the child has always known. She has been in her father's care 4 overnights of every 28. He seeks to increase that to 14 overnights in every 28. This child has always lived primarily with her mother and the parties never resided together. In general, where it is in the child's best interests, the court will preserve the status quo on an interim basis until trial.

c. The evidence is that the mother has been the child's primary caregiver since birth. While the father states in his materials that he was very involved with the child until the parties separated on December 1, 2018, caring for her in the evenings while the mother worked, the child has been living with her mother for all of her life. The father consented to an Order confirming the continuation of that arrangement.

d. The mother is personally available on a full-time basis to care for the child. While she does some tutoring, the evidence is that she is able to do this while the child takes her nap. The evidence supports a finding that she is able and willing to care for the child, and her plan is the child's best interests.

e. The father's proposed plan is less persuasive. He is working full-time. While he states through counsel that because he is working from home he is generally available to care for the child and support her on-line schooling, he is a full-time employee, with professional obligations while the child needs care. The father's alternate arrangements of having his girlfriend or adult daughter care for the child were not detailed in his materials with any precision. In any event, the court will prioritize care of a child by a capable parent over care by third parties where possible.

f. I am not convinced that the mother is responsible for all of the conflict, as the father suggests. The evidence about nature of the conflict is inconsistent. It appears that both parents have a hand in creating the conflict that is occasioned at pick-ups and drop offs.

g. The evidence does not support a finding that it is only the mother that inappropriately involves the police. The father's own materials reveal several unnecessary police calls by him.

h. The father's evidence does not support a finding that a move to 50/50 parenting time as sought by him is in the child's best interests at this time. The best evidence regarding the quantity of contact that is in this child's best interests at this time is the interim agreement the parents reached and confirmed in their Consent Order.

i. While it may be that changes and expansions to parenting time become appropriate, in my view the court requires oral evidence and the benefit of cross-examination to determine what change, if any, should be made.

[32] None of this should be confused with the court suggesting that it is not concerned with allegations set out in the parties' respective materials. I make the following comments about separated parenting generally:

a. Once a parenting schedule is established by the court, whether on consent, or following an argued motion, it is both parties' obligation to comply with that schedule fully, absent prior agreement in writing between the parties to make minor adjustments. This means that it is both parties' obligation to be on time, every time, absent an emergency. It is wholly unacceptable that the mother has been so consistently late. The parenting schedule should be treated like an employment schedule – pick-up on time, drop off on time, every time.

b. Neither party may unilaterally "cancel" access. If a child is ill, the other parent is presumed capable of caring for her. If the child's clothes are dirty from school or playing (for example), the other parent is presumed capable of washing them. If a child is tired, the other parent can put the child down for a nap. If the child is cranky, the other parent is presumed capable of cheering her up. If the child is sad, the other parent is presumed capable of comforting her. The exception to this, in my view, would be if a child is sufficiently ill to require hospitalization. In that event the other parent should be notified immediately.

c. There is no automatic right to "make-up time." Where the parent with "access" cancels his or her time, make up time may be extended as a courtesy, but is not a matter or right. Absent a specific term to the contrary (which is not in the parties' Consent Order, save for time missed due to the mother's travel with the child), access proceeds on a "use it or lose it" basis. Negotiation of make-up time routinely causes conflict.

d. Parties should do everything in their power to reduce reliance on the police to assist in the ordinary implementation of a parenting schedule. This is so for two reasons: First, as citizens we all need the police to be available to assist in emergencies that may take place in our communities. Pick-up and drop off is rarely an emergency. It should be managed by reasonable people in a reasonable manner. Second: involvement of the police in an access exchange can only be damaging to children, who are placed directly in the middle of their parents' conflict. It is not child-centred to involve the police in pick-up and drop off of children absent exceptional circumstances. (See Patterson v. Powell, 2014 ONSC 2627 per Pazaratz J. for a thorough discussion on police enforcement clauses.)

e. Relatedly, parents must remember that they are always role modelling, not just when they think they are "teaching" the child. Children see, feel, and experience their parents' conflict viscerally, and through that experience "learn" how conflict is to be resolved. All parental conduct during pick-ups and drop offs matter and can have lasting impacts on the child.

f. It is not unreasonable for parents to have third parties assist parents with pick-up and drop off of the child. Both parents have other children. Life is busy. Having trusted family members assist is perfectly reasonable. However, as a courtesy, if a non-parent will be assisting in pick up or drop off, he or she must be scrupulously polite to the other parent; and, the other parent must, as a courtesy, be provided with notice in advance (text will suffice).

g. The parents are, as a starting point, the two most important people in the life of the child, and should speak about and treat one another as such, particularly in front of the child. It should go without saying that each must speak of the other respectfully within earshot of the child and not permit others to denigrate the other parent in front of the child. Toxic words have toxic effects on children in both the short and long term.

h. Unless there is a legal impediment to parents communicating directly about their child, they should, in general, make every effort to do so. Thus, in this case, just as the mother would expect the father rather than the father's girlfriend to communicate with her on Our Family Wizard, so too the father should be able to expect that it is the mother, not the maternal grandfather who is communicating about the child. That said, the communication must remain focused on the child only, not on adult issues. All communication must be respectful and courteous.

i. Parties may, as a general rule, adjust minor parenting terms such as pick-up and drop off terms, on consent, where that consent is obtained in advance and in writing. In this case, the parties could have adjusted the regular drop off time on consent and in writing.

[33] As I have found there to be no material change of circumstances, there is no basis for adjustments or changes to the existing Consent Order. However, I encourage the parties to discuss "tweaks" to that Order, on consent. They may wish, for example, to adjust the pick- up and drop off times, and to clarify the wording of the paragraph governing the summer schedule.

[34] I also decline to order police enforcement in this matter. The police have been over-involved. The parties' obligation is to comply with Justice MacLeod's Order such that the involvement of the police is unnecessary.

[35] In terms of financial relief sought, the issue of the father's retroactive contribution to outstanding daycare costs is adjourned to the trial. The mother has also sought an Order for proportional sharing of special and extraordinary expenses on prospective basis, but her affidavit materials do not suggest that there are other such expenses at this time. This issue is also adjourned to trial.

Conclusion and Order

[36] Based on the foregoing, I make the following Order:

1. The issues of contribution to retroactive childcare costs and of ongoing contribution to special and extraordinary expenses costs (paragraphs 5 and 6 of the mother's Notice of Motion) are adjourned to trial.

2. The balance of the relief sought on this motion by both parties is dismissed.

3. The next step in this matter is a Settlement Conference, to be organized through the Trial Coordinator.

4. If the parties cannot agree upon costs of this motion, in which neither party was successful, the court will accept brief cost submissions (3 pages or less, double spaced), with a Bill of Costs, on the following schedule:

The Respondent January 29, 2021

The Applicant February 12, 2021

5. If making costs submissions, they are to be served on the other party and then emailed to Mona.Goodwin@ontario.ca with an affidavit of service. The filing timelines for cost submissions may not be extended without leave of the court. If cost submissions are not received on the timeline set out above, costs will be deemed to have been resolved by the parties.

L. Madsen, J.

Date: January 13, 2021

[^1]: The father states in his materials that he called the police on December 20-22, 2019; July 17, 2020; and June 23, 2020. However, the police records provided only show a call by him on July 17, 2020. The reason for this discrepancy is unclear.