Court File No.: FC-19-00059728

Date: 2021-04-15

Superior Court of Justice – Ontario – Family Court

Re: Alina Kirichenko, Applicant

And:

Vadim Kirichenko, Respondent

Before: The Honourable Mr. Justice R.E. Charney

Counsel: Olena Brusentsova, Counsel for the Applicant Marcy Segal, Counsel for the Respondent

Heard: April 7, 2021

Endorsement

[1] The respondent father brings this motion for an order to vary the temporary order of MacPherson J. dated August 10, 2020 to increase his parenting time with the parties’ child. The respondent requests:

a. An additional Sunday night every other weekend.

b. An additional Monday night every other week when the child is in therapy at the respondent’s residence.

c. Four non-consecutive weeks of the summer holidays.

[2] The applicant mother opposes this relief, although agrees that the respondent should have some additional time with the child during the summer holidays.

Facts

[3] The parties were married on July 5, 2005 and separated in the autumn of 2017.

[4] There is one child of the marriage, D., born March 13, 2014. D. has been diagnosed with Autism Spectrum Disorder (ASD).

[5] In July 2020 the respondent father brought a motion for an order for three consecutive weeks of summer parenting time with the child, and, thereafter, an order for an equal parenting arrangement. The Court was also asked to resolve a dispute regarding the child’s ABA therapy.

[6] The motion was heard on August 7, 2020. On August 10, 2020, MacPherson J. released an endorsement with a temporary order, stating, at paras. 48 – 49:

The Applicant’s refusal to provide overnight access for 2½ years post-separation is a significant contrast from the Respondent’s request to have 3 consecutive weeks of summer holiday and, thereafter, a 50:50 parenting arrangement. Neither position is sensible.

While the court must tread cautiously and avoid making an order that will negatively impact D.’s sense of security, it is imperative that D. have parenting time with both parents including overnight.

[7] Accordingly, MacPherson J. determined that the following temporary order for parenting was in the child’s best interest:

1. The Respondent shall have summer parenting time with D. as follows: Friday, August 14, 2020 at noon until Monday, August 17, 2020 at noon; Friday, August 21, 2020 at noon until Monday, August 24, 2020 at noon; and Friday, August 28, 2020 at noon until Monday, August 31, 2020 at noon.

2. Commencing September 9, 2020 and every Wednesday thereafter, the Respondent shall have parenting time with D. from after school Wednesday until Thursday morning at school.

3. Commencing Friday, September 11, 2020 and every second weekend thereafter, the Respondent shall have access from Friday after school until Sunday at 4:00 p.m.

[8] MacPherson J. requested the involvement of the Office of the Children’s Lawyer (OCL), but the OCL declined the case.

[9] The parties attended a Settlement Conference on March 18, 2021 where changes to this Order were discussed, but the matter was not settled.

[10] On March 31, 2021 the Court considered the respondent’s urgent motion for leave to serve and file this motion one day late. Bruhn J. held that it is in the child’s best interests to have parenting issues, including the schedule of care, addressed in a timely manner. If the motion was not heard on April 7, 2021, the next available hearing date for the motion would not be until October 2021. Accordingly, the Court granted the respondent leave to file his motion material one day late and have the motion argued on April 7, 2021.

Motion to Change Temporary Orders- Material Change in Circumstances

[11] The test to be applied to change a custody and access order is set out in section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[12] The party seeking the variation must meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and/or the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further: Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 9-13 and 17; Miranda v. Miranda, 2013 ONSC 4707, at paras. 26-28.

[13] The onus is on the person seeking to establish a material change in circumstances to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. The change cannot be “trivial” or insignificant, it must be material.

[14] The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made.

[15] There is some dispute in the case law as to whether the material change in circumstances test applies with equal force to a temporary, as opposed to a final, order. In Miranda, at paras. 26-28, Radojevic v. Radojevic, 2020 ONSC 5868, at paras. 16-18 and Sullivan v. Boucher, 2020 ONSC 8062, at para. 21, the Courts concluded that the material change in circumstances test applies regardless of whether the order is a temporary or final order.

[16] In contrast, Henderson J. has held that it is open to the Court to consider a motion to change a temporary order if there is a “compelling reason”, regardless of whether there is a material change in circumstances: Calabrese v. Calabrese, 2016 ONSC 3077 at para. 27; M.D. v N.J., 2016 ONSC 6058, at paras. 21-23.

[17] That said, Henderson J. made clear that courts must proceed cautiously before changing even a temporary parenting order: see Calabrese, at para. 28:

In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.

[18] See also M.D. v. N.J., at para. 24:

However, there is a significant body of law that suggests that it is not in a child’s best interests, in most cases, to change an existing temporary parenting order prior to trial. By necessity, any change prior to trial must be founded on affidavit evidence only. A full vetting of the evidence will not be possible until the trial, at which time the trial judge will have the benefit of oral evidence from, and cross-examination of, all witnesses. Temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interests of a child.

[19] See also the cases cited by Henderson J. at para. 25.

[20] I agree with Kurz J. in paras. 16 and 17 of Radojevic that there may not really be a significant difference between the two approaches. Subject to the two exceptions outlined below, I would follow the material change of circumstances approach because it is consistent with the express language of s. 29 of the Children’s Law Reform Act. That said, each of the two exceptions discussed below would likely qualify as a “compelling reason” referenced by Henderson J.

Material Change in Circumstances

[21] The respondent takes the position that since the August 10, 2020 Order there has been a material change in circumstances: D. started school in September, and he has done well in his father’s care. These material changes, he argues, justify an immediate change to the father’s midweek parenting time.

[22] In my view, neither of these circumstances meets the “material change in circumstances” test. In particular, it does not meet the requirement that “the change must have not been foreseen or reasonably contemplated by the judge who made the original order”.

[23] The August 10, 2020 Order expressly contemplates mid-week parenting time commencing September 9, 2020, when the 2020-21 school year began. It cannot be seriously maintained that D.’s attendance at school in the 2020-21 year was a change in circumstances, let alone a circumstance not contemplated by the judge who made the original order. Indeed, D.’s attendance at school in 2020-21 was the specific circumstance addressed by the court.

[24] Similarly, the original order was made in the best interests of D. That D. has done well during this time is testament to the appropriateness of that order, and not a reason for varying it at this time.

[25] Accordingly, I decline to make any immediate changes to the parenting schedule set out in the August 10, 2020 Order.

Exceptions to the Material Change in Circumstances Requirement

[26] As indicated above, there are two exceptions to the material change in circumstances requirement, the second of which applies in this case.

i) Without Prejudice Orders

[27] While the issue is not free from dispute, the first exception is that the material change in circumstances requirement should not apply where the parties have agreed that the temporary order should be made on a “without prejudice basis”, since requiring a material change in circumstances before variation would prejudice one of the parties and be contrary to the agreement. A “temporary, without prejudice” agreement would be difficult to achieve if one or the other party thought that they were creating a new status quo requiring a material change in circumstances before it could be varied. See: Regina Musheyev v. Ronen Gilkarov, 2016 ONSC 4120, at paras. 17-19.

[28] See also: Ceho v. Ceho, 2015 ONSC 5285, at para. 68, and M.D. v. N.J., at para. 22.

[29] This point is not applicable to the present case, however, because the August 10, 2020 Order was not a “without prejudice” order.

ii) Time Limited Orders

[30] The second exception to the material change in circumstances requirement applies when the temporary order is expressly or by necessary implication time limited, and it is the intention of the court that the order be reviewed and subject to change after a specific event, date or period of time.

[31] The August 10, 2020 Order presents such an exception. The Order addressed the respondent’s summer parenting time only for the summer of 2020. It made no provision for subsequent summers. As I read this Order, the Court expected the parties to either settle the issue of future summers or return to court for a new assessment based on the child’s best interest. It was also hoped that the OCL would be involved to assist the parties moving forward.

[32] The order is less clear about the school year following the summer of 2021. The applicant mother would simply continue the 2020-21 school year parenting schedule for 2021-22. This would mean that MacPherson J. intended to leave the summer 2021 parenting schedule open to review and variation, but not the school year following the summer of 2021.

[33] In my view, a more coherent interpretation of the Order is that MacPherson J. anticipated that, in the absence of agreement, the parenting schedule would be revisited by the Court prior to the summer of 2021, and that this reconsideration would include both the summer and following school year schedules.

[34] It is clear that, in light of D.’s ASD diagnosis, MacPherson J. wanted to proceed cautiously, using an incremental approach Having the benefit of nearly a year’s experience, would inform the next steps in the parenting schedule. This graduated approach to parenting is commonly used. It recognizes that the parenting schedule appropriate for a six year old who had virtually no overnight access with his father for 2 ½ years may not be appropriate for a seven year old who has enjoyed alternate weekend and frequent weekday overnights with his father for nearly a year.

[35] Accordingly, I find that the August 10, 2020 Order was intended to be limited to the summer of 2020 and the 2020-21 school year, and either party is free to ask the court to review the parenting schedule for subsequent years.

Positions of the Parties

[36] The respondent father is requesting four additional days per month with D. He currently has parenting time with D. alternative weekends from Friday after school until Sunday at 4:00 p.m. He is requesting that his alternate weekends continue until Monday morning when he will drop D. off at school.

[37] In addition, D. has ABA therapy at the father’s house every other Monday from 6:00 p.m. to 8:00 p.m. The respondent father is asking that D. remain in his care until drop-off at school the following day.

[38] There would be no change to the respondent father’s weekly parenting time from Wednesday after school until Thursday drop-off.

[39] Finally, the respondent is asking that the summer schedule be expanded so that he has four non-consecutive weeks with D. in the summer, essentially dividing the summer holiday with the applicant.

[40] The respondent rents a condominium in Thornhill, close to the mother’s residence, and D. has his own room there. D. stays at the condo on weeknights. On weekends the father takes D. to the family cottage, approximately one hour away. The respondent father plans to spend his four non-consecutive summer weeks with D. at the cottage.

[41] The respondent father acknowledges that he will be seeking a gradual increase in parenting time, and will eventually request that the parties share parenting time on a 50/50 basis.

[42] The respondent father’s motion is supported by an Affidavit from Amir Haimove, a cognitive development therapist with a Masters in Psychology and a PhD candidate in child development and mental health. He has had his own clinic since 2009, and specializes in autism and developmental delay. He was hired by the parties in the summer of 2020 to work with D., to teach him communication and social skills once a week for two hours. He alternates each week at each parties’ residence as required by the August 10, 2020 Order.

[43] Mr. Haimove indicates that D. has made progress with respect to his communication and social skills. D. has improved while in the care of each parent. Mr. Haimove describes the father as an affectionate and supportive father with a calming manner.

[44] Mr. Haimove states that he believes that D. would benefit greatly from having increased parenting time with his father, and supports the father’s request for increased parenting time based on his observations of D. during the therapy and in the care of each parent.

[45] The applicant mother takes the position that it has taken a long time for D. to adjust to the new parenting schedule ordered by MacPherson J., and he is often confused as to where he would go after school.

[46] The applicant argues that the father has no plan of care for D. during the four non-consecutive weeks in the summer that are requested. She argues that D. has never been away from her for more than 4 days, and it will be a challenge for him to be away for a full week at a time.

[47] The applicant argues that the respondent is sometimes too busy to pick D. up from school, or too busy to attend medical appointments or therapy sessions. She alleges that the respondent father fails to properly supervise D. when D. is in his charge, and permits D. to watch TV and play on his iPod.

[48] The applicant mother also alleges that D. comes home from visits with the respondent very nervous and upset, and that it takes a lot of effort to calm him down.

[49] For the upcoming summer, the applicant would like to enroll D. in a summer camp or art class if the COVID situation improves. She would also like to have a tutor help D. in his academic progress during the summer if this is possible. Finally, she does not want there to be any disruption in D.’s therapy sessions. He requires routine, stability and predictability.

[50] The applicant’s proposal for the summer of 2021 is not too different than the respondent’s. Instead of four non-consecutive weeks in the summer, she is proposing two non-consecutive weeks, one in July and one in August. In addition, she proposes that commencing the weekend of July 8, 2021 and every second weekend, the respondent father’s alternate weekends will be extended from Thursday at 4:00 p.m. until Monday at noon.

[51] The applicant opposes any alteration to D.’s schedule during the school year. The applicant believes that D. requires an established routine that helps him to be ready for school on Mondays. She alleges that D. is stressed when he is with his father.

[52] The applicant also alleges that the respondent is reluctant to let her speak to D. when D. is with the respondent.

[53] The applicant asserts that because of the late filing of the respondent’s material, she did not have an opportunity to cross-examine Mr. Haimove on his Affidavit. She alleges that Mr. Haimove was hired at the end of last summer as a temporary therapist, and that he has not provided any therapy for D. since February. She argues that Mr. Haimove is not qualified to give the opinion evidence that he has provided, and that he is not an unbiased witness.

Analysis

[54] The issue for the Court is whether expanding the father’s parenting schedule will be in the best interests of the child. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents.

[55] While there is no presumption of equal parenting time (Bembenek v. Bembenek, 2019 ONSC 4050, at para. 96), the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child (See s. 16(6) of the Divorce Act and s. 24(6) of the CLRA).

[56] Prior to its amendment on March 1, 2021 by Bill-78, the marginal note[^1] to s. 16(10) of the Divorce Act, RSC 1985, c 3 referred to “Maximum Contact”, and so the principle that a child should have as much time with each parent as is consistent with the best interests of the child came to be referred to as the “maximum contact principle”: Young v. Young, [1999] 4 S.C.R. 3, at para. 212.

[57] Failure to consider and apply the maximum contact principle is an error of law: Rigillo v. Rigillo, 2019 ONCA 548, at paras. 3 and 12.

[58] Bill-78 repealed s.16(10) of the Divorce Act and replaced it with the similarly worded s. 16(6). The marginal note “Maximum Contact” was deleted and replaced with “Parenting time consistent with best interests of child”, as there was concern that the term “maximum contact” might be misinterpreted as creating a presumption of equal parenting time, a principle rejected by Parliament. Properly understood, however, the principle of maximum contact continues to apply, and previous cases relying on this principle continue to be relevant. See Nicholas Bala, Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act, 39 C.F.L.Q. 47, at pp. 67 -. 69:

It is submitted that despite the disappearance of the word “maximum” from the marginal notes, since the words of the legislation have not changed materially, and the social science literature continues to recognize the value, in most cases, of significant involvement of both parents in the lives of their children after separation, Canadian courts should continue to rely on the precedents under the previous law.

[59] In undertaking my analysis, I have taken into account the analysis undertaken by MacPherson J. in arriving at his August 10, 2020 Order. It is not necessary to re-invent the wheel, and my intention is to continue where he left off. MacPherson J. noted that there were several significant changes for D. at that time. He was just beginning overnight visits with his father for the first time in 2 ½ years. He was about to change schools in September 2020 from a private school to a public school.

[60] Given these significant changes, MacPherson J. “tread cautiously”. I am satisfied from the evidence on this motion before me that sufficient time will have passed for D. to adjust to those changes, and it is in D.’s best interest to take the next step and expand his parenting time with the respondent father.

[61] The summer vacation in 2021 begins on June 30, 2021, and ends September 6, 2021 – a total of 9 ½ weeks. The respondent father is asking for 4 non-consecutive weeks during the summer. In my view, this is a reasonable proposal. The 4 non-consecutive weeks should begin on the Monday at noon before what would otherwise be one of the father’s alternate weekends, and end on the Sunday evening. Two weeks should occur in July, and two in August. I am satisfied that the father’s plan to take D. to the cottage for those weeks is a proper plan for a summer vacation.

[62] This will also leave the applicant mother with time to enrol D. in camp or art classes if they are offered this summer, or to arrange for a tutor during her weeks with the child. The father’s Wednesday to Thursday parenting time with D. will be suspended during the months of July and August so that each parent has full weeks with D. during the summer.

[63] I also agree that it is in D.’s best interest to expand his parenting time with the respondent father during the school year. Accordingly, I accept the father’s proposal to continue his weekend parenting time until Monday morning drop off at school. This will allow the father two additional days per month parenting time. Should any of the father’s alternate weekends fall on a long weekend, the father’s parenting time will continue until Tuesday morning drop off at school.

[64] The father has indicated that he is prepared to return with D. to the Thornhill condominium on Sunday evening rather than Monday morning. This resolves a concern raised by the applicant mother that it is not in D.’s best interest to be woken up early and have an hour commute to school on Monday morning.

[65] I do not accept the respondent father’s proposal to expand the school year schedule to include alternate Monday evenings when the child is in therapy at the respondent’s residence. I am concerned that this would result in too fragmented a schedule during those weeks. It would mean that D. would stay overnight with the father on Monday, the mother on Tuesday, the father on Wednesday, and the mother on Thursday. Given D.’s particular requirements, I do not see how this daily rotation could be in his best interest.

[66] This is a temporary order. It is intended to apply to the summer of 2021, the 2021-22 school year, and the summer of 2022. Either party may bring a motion to review this schedule in advance of the 2022-23 school year

Temporary Order

[67] Paragraphs 1, 2 and 3 of the Order of MacPherson J., dated August 10, 2020, are amended as follows:

a. The respondent father shall have summer parenting time with D. two non-consecutive weeks in July and two non-consecutive weeks in August, commencing the Monday at noon before what would have been his alternate weekend, and ending the Sunday evening at 7:00 p.m.

b. The father’s Wednesday to Thursday parenting time in paragraph 2 of the August 10, 2020 Order is suspended during the months of July and August.

c. Commencing Friday September 10, 2021 and every second weekend thereafter, the respondent father shall have parenting time from Friday after school until Monday morning drop off at school. If the father’s weekend falls on a long weekend, this time is extended to Tuesday morning drop-off at school.

d. The father will return the son to the father’s Thornhill residence on the Sunday before school (or the Monday of a long weekend).

e. The applicant mother may communicate with D. each evening for 15 minutes before his bedtime while he is in the respondent father’s care. The respondent father shall facilitate these calls.

[68] This temporary order applies to the summer of 2021, the 2021-22 school year, and the summer of 2022. Either party may bring a motion to review this schedule in advance of the 2022-23 school year. I am not seized.

[69] If the parties are unable to agree on costs, the respondent may serve and file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision, and the applicant may serve and file responding submissions on the same terms within a further 10 days.

Justice R.E. Charney

Date: April 15, 2021

[^1]: The marginal notes appear as headings in the electronic version of legislation.