COURT FILE NO.: FC-19-200
DATE: 2021/06/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Farouk Ali, Applicant
AND
Annine Marjorie Obas, Respondent
BEFORE: Justice Mark Shelston
COUNSEL: Marie-Hélène Godbout, for the Applicant
Julie Gravelle, for the Respondent
HEARD: In Writing
ENDORSEMENT
Overview
[1] By endorsement dated May 10, 2021 in Ali v. Obas, 2021 ONSC 3412, I set aside two awards made by a parenting coordinator, terminated the parenting coordination process, placed this matter on the November 2021 trial sittings and granted the parties leave to bring motions to address a parenting schedule including summer access and the appointment of a parenting assessor pending the trial.
[2] I have considered the pleadings filed by the parties in the initial motion dated April 27, 2021 as well as the detailed affidavits addressing the parenting schedule and the assessor filed by the parties.
Consent to the Appointment of the Parenting Capacity Assessor
[3] In the applicant’s affidavit dated May 17, 2021, he proposed three different parenting assessors including Ms. Valerie Morinville, who was appointed to conduct such an assessment in the parenting coordinator award dated January 27, 2021. In her affidavit filed to set aside the parenting coordinator awards, the respondent alleged that she was not afforded an opportunity to make submissions on the appointment of such an assessor. For that reason, I included the appointment of the parenting assessor in this proceeding.
[4] However, in her affidavit dated May 25, 2021, the respondent consented to an order that Ms. Valerie Morinville be appointed the assessor. There is no explanation as to why she waited until May 25, 2021 to consent to the assessor. Further, the respondent provided a signed copy of the assessor’s retainer agreement. In his reply affidavit, the applicant has provided proof that he has signed the retainer agreement and that he has paid his half of the initial deposit of $4500 to the assessor. As there is no proof that the respondent has provided her half of the retainer, I order that the respondent provide the assessor with her half of the retainer being $4500 no later than June 8, 2021 by 4 PM and that she provide proof of such payment to the applicant forthwith after payment. I further order that the parties contact the assessor to schedule their initial intake appointments forthwith.
[5] Consequently, I order that Ms. Valerie Morinville conduct the parenting assessment, that the parties share equally in the costs of such assessment, without prejudice to their right to claim such costs in this proceeding.
Parenting Schedule
[6] The parties disagree on a temporary parenting schedule. The existing order of Justice Roger granted the applicant parenting time with the child as follows:
a) Alternate Wednesdays from 3 PM to Thursday at 8:30 AM.
b) Alternate Mondays from 3 PM until 7 PM.
c) Every alternate Saturday from 10 AM until Sunday at 4 PM.
[7] The applicant is proceeding to trial where he will seek an equal timesharing arrangement. He argues that the current parenting regime allows the child to spend only two overnights with the applicant in a fourteen day period. The applicant proposes, on a temporary basis, a parenting schedule that increases in stages as follows:
First Stage: June 1, 2021 to July 31, 2021
Week One
(i) Wednesdays at 3 PM to Thursday at 8:30 AM.
(ii) Fridays from 3 PM to Sunday at 7 PM.
Week Two
(i) Wednesdays at 3 PM to Thursday at 8:30 AM.
(ii) Mondays from 3 PM to Tuesday at 8:30 AM on the Monday after the child has had weekend parenting time with the respondent.
Second stage: August 1, 2021 to August 31, 2021
Week one
(i) Wednesdays from 3 PM to Thursdays at 8:30 AM.
(ii) Fridays from 3 PM to Monday at 8:30 AM.
Week two
(i) Wednesdays from 3 PM to Thursday at 8:30 AM.
(ii) Mondays from 3 PM to Tuesday at 8:30 AM on the Monday after the child is at weekend parenting time with the respondent.
Third Stage: September 1, 2021 until trial
The respondent seeks the continuation of the Second stage parenting schedule but would accept the First Stage parenting schedule if so ordered.
[8] In stage one, the applicant proposes that he would have the child ten overnights in a twenty-eight day period, increasing to twelve overnights in a twenty-eight day period in stage two.
[9] In reply, the respondent proposes that the child spend six overnights with the applicant in a twenty-eight day period as follows:
(i) Every alternate Saturday at 10 AM until Sunday at 6:30 PM.
(ii) Every second Wednesday, in the week after the child has been with the applicant for the weekend, from 3 PM until 8:30 AM Thursday.
(iii) Every second Monday from 3 PM to Tuesday at 8:30 AM in the week after the child has been with the respondent for the weekend.
[10] The applicant is 40 years of age and is an engineering consultant with the Department of National Defence. The respondent is 43 years of age and works full-time as a public servant.
[11] The parties dated for approximately three years but never married. After separation, the respondent advised the applicant that she was pregnant. At the child’s birth, the applicant drove the respondent to the hospital and was present for the birth of the child. Within weeks of the child’s birth, the parties stopped communicating.
[12] The applicant alleges that he did not have parenting time to the child from August 2018 to August 2019 except for one visit. The respondent alleges that the applicant did not want to see the child for periods of time.
[13] On August 12, 2019, the parties entered into a temporary without prejudice agreement that granted the applicant parenting time with the child being one hour on Wednesday, two hours on Friday and one hour on Sunday.
[14] Over the next six months, the applicant alleges that his parenting time was expanded, restricted and unilaterally suspended by the respondent. The applicant attempted to have an urgent motion scheduled as a result of the suspension of his parenting time without success.
[15] On January 16, 2020, the parties were proceeding to a motion for temporary relief. At that time, the parties entered into a temporary order which addressed issues of parenting time, disclosure and child support. On the issue of parenting time, it provided for a slow expansion of the applicant’s parenting time with his child. Connected to that schedule was an agreement that the parties would enter into a parenting coordination contract to attempt to resolve the outstanding issues between the parties. The parties were in that process from March 2020 until January 2021. On May 10, 2021, I terminated the parenting coordination process.
[16] The applicant submits that the child has enjoyed her time with him and benefits from her parenting time with him. He argues that there is no risk for the child to be in his care and that he has had very restricted parenting time with his child. He proposes to have an expansion of the parenting time pending the trial and while the assessment process is underway. He submits that the respondent has attempted to paint him as a dysfunctional parent to attempt to continue to reduce his time with his daughter.
[17] In her affidavit dated May 25, 2021, the respondent raises historical allegations against the applicant. It is not my intention to reconcile the series of allegations made by each party in this litigation at this stage. At a trial, the parties will be subject to cross-examination and the court will be able to make findings of fact. The numerous allegations raised by both parties will be investigated by the parenting assessor.
[18] The respondent submits that the child has stability living with the respondent and the maternal grandmother. The respondent is opposed to the schedule proposed by the applicant.
Analysis
[19] In reviewing the parenting proposals, my sole focus is what is in the best interests of this child. I am cognizant of the fact that the parenting time with the applicant has proceeded slowly and that this matter is one of high conflict with allegations being exchanged by the parties.
[20] In my view, there is no reason why the child should not spend more time with the applicant. The first agreement on parenting time was August 2019. Since that time there has been a slow integration of the applicant in the child’s life. There have been interruptions in the parenting schedule and almost a six month delay from the parenting coordinator’s award of December 15, 2020.
[21] The respondent has an obligation as the primary caregiver of this child to ensure that the child has a relationship with her father. The applicant has consistently sought more time. Despite the passage of time, the respondent’s proposal to increase the child’s time with the applicant by one overnight every fourteen days is simply not enough for the child to maintain and develop her relationship with the applicant. I do not find there is any evidence to support a finding that the child is at risk while in the care of the applicant.
[22] In addition, I have also considered the need for the assessor to see the applicant interact with his child in order for her to make informed recommendations regarding decision-making and a parenting schedule.
[23] One of the issues raised by the respondent is the return time of the child being either at 6:30 PM or 7 PM. I accept that since the child’s bedtime is at 8 PM, the child should be returned at 6:30 PM after having supper with her father, to ensure that she is ready for bed in accordance with her normal schedule.
[24] The applicant’s proposal for the first stage from June 1 to July 31, 2021 will result in the applicant having the child for four nights in one week being Monday/Tuesday; Wednesday/Thursday; Friday/Saturday/Sunday. The next week, the applicant would have the child Wednesday/Thursday for a total of five overnights in a two-week period.
[25] For the month of August, the applicant proposes that one week he would have the child four nights and the next week, he would have the child two nights, being Monday/Tuesday and Wednesday/Thursday. The applicant’s proposal results in the child being with the applicant twelve out of twenty-eight days. The respondent’s position for summer access is that the proposed schedules made by the applicant include him having the child on Canada Day and the Ontario Civic Holiday.
[26] The applicant has not requested one or two or three weeks of summer holidays. At this stage, such a schedule would not be in the child’s best interests. Instead, he has proposed that for the month of August, his every second weekend access be extended from Sunday to Monday morning. This would take place on August 2, 16 and 30, 2021. I do not find that the request to extend three weekends parenting time to Monday morning to be unreasonable. I find that making such a request indicates that the applicant is considering his child’s best interests as she has never been away from her mother for any extended period of time.
[27] Starting in September though, the addition of an overnight every second Sunday to Monday morning causes, in my view, a very chaotic schedule for the child. The schedule for the child must be in her best interests and not what either parent desires. While I agree that the proposal made by the respondent is inadequate to expand upon the child’s parenting time with the applicant, I find that the applicant’s schedule for the months of June and July 2021 is in the child’s best interests.
Disposition
[28] I order that the applicant have parenting time with the child as follows:
a) Starting June 2, 2021, every Wednesday from 3 PM to Thursday at 8:30 AM.
b) Starting Friday, June 4, 2021, every second weekend from Friday at 3 PM to Sunday at 6:30 PM. The applicant’s weekend parenting time will be extended to Monday at 8:30 AM only on Monday August 2, August 16 and August 30, 2021.
c) Starting June 14, 2021, every second Monday from 3 PM to Tuesday at 8:30 AM.
Case Management
[29] The applicant requested case management in this proceeding. The respondent did not address that request in her responding materials. This matter has been plagued by delay and requires case management to ensure that the matter is ready for trial in November 2021. Consequently, I will assume case management of this matter effective today. In the event that either party seeks to raise an issue before me, they are to contact the trial coordinator to schedule a court appearance.
[30] I order the parties to schedule a joint trial management/settlement conference with me to occur no later than October 8, 2021. At such conference, the parties shall provide a trial schedule endorsement form completed. Any disputes in such form shall be decided at such conference.
Costs
[31] The respondent appears to be the successful party in the motion dated April 27, 2021 while the applicant seems to be the successful party in this motion. Without any further submissions, it appears that he has been divided success and there should be no order as to costs. However, if the parties do not agree with that disposition, I order that the respondent provide her costs submissions no later than Friday, June 11, 2021 with such costs submissions not to exceed two pages plus a detailed bill of costs and any offers to settle. I order that the applicant provide his costs submissions no later than Friday, June 18, 2021 with such costs submissions not to exceed two pages plus a detailed bill of costs and any offers to settle. There will be no right to reply.
Date: June 1, 2021
COURT FILE NO.: FC-19-200
DATE: 2021/06/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nicholas Farouk Ali, Applicant
AND
Annine Marjorie Obas, Respondent
COUNSEL: Marie-Hélène Godbout, for the Applicant
Julie Gravelle, for the Respondent
ENDORSEMENT
Justice Mark Shelston
Released: June 1, 2021