COURT FILE NO.: FS-21-21724
DATE: 20210824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamal Ghafur
Applicant
– and –
Sheliza Rabina Khan
Respondent
Soumia Allallou for the Applicant soumia@allaloulaw.com
Lisa Baumal, for the Respondent lbaumal@baumallaw.com
HEARD: August 19, 2021
ENDORSEMENT
E. L. NAKONECHNY, J.:
[1] The Applicant father brings his motion for an increase in his parenting time with the children or 2/2/3 schedule, that the child A, aged 4 attend Bowmore Public School and the child I, aged 2 attend Bowmore Child Enrichment or Rodin Daycare commencing September, 2021, that each party be entitled to information from the child’s school and other professionals, that the parties communicate through Our Family Wizard (OFW) and costs.
[2] The Respondent mother brings her motion for an order striking or sealing certain parts of the father’s Affidavit sworn August 5, 2021 including Exhibits; that the children attend H[...] Public School and daycare; that each party be entitled to information from the child’s school and other professionals; that the parties communicate through Our Family Wizard (OFW) that the father’s parenting time be increased to include Sunday overnight with return to school Monday morning on his alternate weekends, and costs.
[3] At the outset of the hearing the parties agreed to a temporary order regarding information from the children’s school and day care and that they use OFW for communication.
[4] The father agreed that paragraphs 8 and 10 and Exhibits A and B of his Affidavit sworn August 5, 2021 would be struck and not considered as evidence in these motions.
Background
[5] The parties were married three and a half years. A. was aged 2 ½ and I. was just aged one when the parties’ separated in 2019. The children have lived primarily with the mother since separation.
[6] The mother is a transit operator for the TTC. Her hours are 8:30 to 4:30 Monday to Friday. The father works from home as a software developer. He has a 9 to 5 schedule. The father says his hours are flexible and that his employer has not mandated a return to his office.
[7] After separation the police were called to the home by both parties on a number of occasions. The father was charged with assault of the mother in February 2020. He denies the assault and says the mother subsequently tried to put him in breach of his bail conditions. The criminal trial is scheduled for November 29, 2021.
[8] The father has resided with his parents in their home in East York since separation. He intends to continue to live there permanently. The mother and the children lived in the matrimonial home in Scarborough until it was sold in December 2020. The children attended Kimbercroft Day Nurseries.
[9] The parties could not agree upon the division of proceeds of sale of the home. Each party received $50,000. The balance, $490,763, is held in trust by real estate counsel.
[10] The father originally had parenting time facilitated through third parties due to his bail conditions. The father did not have parenting time for about three months. The father blames the mother for this. The mother says it is because the third parties chosen by the father to facilitate access were not available.
[11] In late May 2020 the father’s bail conditions were changed and he began parenting time with the children on alternating weekends. The schedule was increased in July 2020, again in August 2020 and again in April 2021. The father now has parenting time with the children every Wednesday overnight to Thursday morning and alternating weekends from Friday evenings to Sunday evening.
[12] After the matrimonial home was sold, the mother moved to a rental property in Scarborough. She advised the father that this was a temporary residence while she looked for a larger apartment. The father insisted that the mother not move more than fifteen kilometers from his home.
[13] In May 2021 the mother moved with the children to an apartment in North York. She says the apartment is fourteen kilometers from the father’s home. The mother’s aunt, who has been a caregiver for the children, resides in the same building.
[14] The mother wanted to move the children from Kimbercroft to H[…] which is nearer to her home. The father wanted the children to attend Bowmore Day care which is nearer to his home. After negotiation the parties agreed the children would attend Hillmount on a without prejudice basis.
[15] Shortly after this, Hillmount closed because a staff member tested positive for COVID-19. The mother and A. also tested positive. I did not test positive but was ill.
[16] The father blames the mother for the children’s illness. He says the children should not have been registered in day care at all. He and his parents are able to care for the children full time and could have done so. Instead, the father missed parenting time with the children during the period of isolation. Although there was make up time provided, the father says the mother unreasonably limited his time and made the exchanges difficult.
[17] Both parties agree that since the exchanges began at the day care or the Supercentre, there are fewer disputes between them.
The Parenting Time Schedule
[18] The father seeks an increase to his parenting time to add a Tuesday overnight in week one and a Sunday overnight to week two or shared parenting in a 2/2/3 schedule.
[19] The father states that he has consistently sought more time with the children, but the mother has refused. He says he was an equal primary caregiver to the children during the marriage. He fed, changed and bathed the children, played with them and took them to activities and medical appointments. The children are closely bonded to him and have expressed the wish to spend more time with him.
[20] The father says his work time is flexible. Because he lives with his parents there is always a caregiver available for the children in case of emergency or illness. The father believes an increased time schedule is in the children’s best interests because it will provide more stability and consistency and fewer transitions.
[21] The mother says that she was the primary caregiver for the children during the marriage. She took a twelve month maternity leave after A. was born and an eighteen month maternity leave after I. was born. The father took no paternity leave.
[22] The mother says that the father was dedicated to his work and pursuing higher income. He also became more devout during the marriage and spent more time in his religious practices. The mother was home with the young children as a full time caregiver and homemaker.
[23] The mother denies that she has refused the father time with the children. She says that in the time since separation she has agreed to increases in the father’s parenting time, scheduled make up time, facilitated twice weekly video calls of unrestricted length and cooperated to vary the terms of bail to promote the father’s parenting time.
[24] The mother acknowledges that the children love their father and that he is a good parent. However, she believes it is better for the children to have their primary home with her.
[25] The mother agrees to increase the father’s weekend time to include the Sunday overnight to return to school Monday morning so long as the children attend Hillmount. This schedule would give the father five of fourteen overnights in a two week period.
The Children’s School
[26] A. will attend Junior Kindergarten in September. I. will continue at day care. The mother proposes that the children continue to attend Hillmount. The children have attended there for about four months and are doing well. They enjoy the learning and play and have made new friends. The children are comfortable and have benefitted from the programme at Hillmount.
[27] The mother has a day care subsidy which Hillmount accepts.
[28] The father opposes Hillmount and proses that the A. attend Bowmore Junior Public School which is near his home. The father attended Bowmore as a child. I. would attend Bowmore Child Enrichment, but he has not yet been able to secure a spot for her. A. has an automatic spot in the daycare because he is attending the school.
[29] The father has also investigated other day care near to him including Roden Public School and Kew Park Montessori.
[30] The father believes that Bowman is in the children’s best interests because it is a seven minute walk from his home. The school has an extended French and a gifted programme and a swimming pool and classes.
[31] The children would not need to attend before or after school care during the father’s parenting time. The father or his parents can care the children at home. It is closer for the mother to drive to Bowmore than for the father to drive to Hillmount so the children would spend less time in a car.
[32] The father opposes Hillmount because of the distance from both parents. Neither of them is nearby in case of emergency or illness. Hillmount only goes to grade 5 so the siblings will not be together for periods of their education. Bowmore goes to grade 8. Bowmore has a swimming pool which is a favourite activity of A.
[33] The mother has investigated the schools proposed by the father. She states that Hillmount has a smaller school population than Bowmore or Roden which would be more personalized for the children. There is not a spot in daycare for I. in either Bowmore or Roden. Kew Park Montessori has tuition fees of $17,250 for A. and $16,000 for I. which are not affordable for the mother.
[34] Hillmount provides daycare until age 13. Bowman provides day care until age 6. This means the children would have to change daycare at grade 1. The father states that this is not an issue because he and his parents can facilitate care even on the mother’s parenting time. The father can help the children with homework and provide them with care which he says would be superior to the care they would receive at a before or after school program
Law and Analysis
[35] Section 16(1) of the Divorce Act provides that in making an order for parenting time or decision making responsibility the court shall take into consideration only the best interests of the child. Section 16(2) states that when considering the factors in s. 16(3) to determine the best interests of the child, the primary consideration is the child’s physical, emotional and psychological safety, security and well-being.
[36] Section 16(3) sets out a list of circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive:
16(3) Factors to be Considered – In determining the best interests of the child, the court shall consider all of the factors related to the circumstances of the child including:
(a) Child’s needs given the age and stage of development, such as the child’s need for stability;
(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life,
(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) The history of the care of the child;
(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage;
(g) Any plans for the child’s care;
(h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) The ability and willingness of each person of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) Any family violence and its impact on, amongst other things;
(i) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and,
(ii) The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[37] In E.M.B. v. M.F.B., 2021 ONSC 4264 Mandhane, J. held: “When making a parenting order, I must stay laser-focused on the child’s best interests: preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: at paras. 62-63, citing Young v. Young, [1993] S.C.R. 3. In determining parenting time, the court must consider only the best interests of the child and give primary consideration to the child's physical, emotional, and psychological safety, security and well-being.
The parenting schedule
[38] In April, 2020, the parties agreed to an interim without prejudice parenting schedule. Pursuant to this schedule, the father has the children for 4 of 14 overnights. The mother agrees to add the alternating Sunday overnight. The father wishes to add 2 overnights or have an equal time schedule.
[39] A party seeking to vary the terms of an interim parenting schedule faces a strong onus to produce cogent and compelling evidence to show that the physical, mental, and moral welfare of a child would be in danger if the status quo was maintained: McCarthy v. Scheibler, 1999 CarswellOnt 3419 at para. 14. Variation of interim parenting decision making, and parenting time orders should only be granted if a child is at risk, or for some other compelling reasons.
[40] In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) Wood, J. held that the court should be reluctant to vary interim orders on an interim basis. This should only be done where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests and the proposed arrangement would be, at para. 14.
[41] In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti, J., reviewed cases dealing with this issue. His Honour states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances which shows there are compelling reasons to vary the interim order to meet the child's best interests.
[42] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and determined at a trial. The status quo should be maintained unless there is material evidence that the child’s best interest requires an immediate change: Munroe v. Graham 2021 ONSC 253 at paras 26-30.
[43] The father asks to vary the current schedule to an equal 2/2/3 schedule. This would have significant implications for the parties and the children going forward. This decision is too important to be made based on conflicting Affidavit materials that have not been tested by cross examination.
[44] In determining whether a change to parenting time is necessary and in the best interests of the children, I have considered the relevant factors in s. 16(3) of the Divorce Act. I find that there is no material change in circumstances which shows there are compelling reasons to vary the current schedule to an equal time sharing schedule.
[45] Both parties agree that the exchanges at the school and Superstore have improved the situation. If the father has the children Sunday overnight on alternating weekends, this will further reduce the in person exchanges. This will reduce conflict which is in the children’s best interests. I find it is appropriate to increase the father’s parenting time to include the alternating Sunday overnight.
The children’s school and day care
[46] Section 28(1)(b) of the CLRA permits the Court to determine the incidents of decision-making responsibility, parenting time or contact, with respect to the child. This includes the child’s enrollment in school: Thomas v. Osika, 2018 ONSC 2712 at para. 37.
[47] Where parents disagree, the Court has discretion to decide where the children will attend school. In Thomas, Audet, J. summarizes the principals to be considered when making the decision in the children’s best interests. These include: the unique needs and circumstances of the children, the ability of the parents to assist the children with homework and participate in their educational program, promotion of the child’s cultural and linguistic heritage and the benefits and resources each school offers the children. Third party rankings are not a determinative criterion.
[48] The children live primarily with the mother. They have attended H[…] and are comfortable and settled there. Bowmore does not have a day care spot for I. It does not have day care for either child after age 6.
[49] The mother requires before and after school care to accommodate her employment. The father is working from home now but this may change depending on his employer’s post COVID-19 requirements. If the children attend Bowman, the mother will have to rely on the father or the paternal grandparents for before and after school care for the children on her parenting days. This disrupts the stability and routine of the children with their mother. It will limit the mother’s ability to assist the children with homework and participate in their education program. It also creates an opportunity for conflict between the parties at exchanges on the mother’s parenting time.
[50] The list of best interest considerations is not exhaustive. It is not a checklist to be tabulated with the highest score winning. The court must look at the needs of the children specifically and what outcome will be best for them overall: Phillips v. Phillips 2021 ONSC 2480. I find that it is in the children’s best interests that A. be enrolled in Junior Kindergarten at H[...] Public School for the 2021-2022 school year and the day care programme and that I. attend the day care programme at Hillmount.
[51] It is not apparent on evidence before me if the children can be registered in the day care program only for the mother’s parenting time or if they must be enrolled full time. The father may choose not to take the children to the program on his parenting time unless it would jeopardize the children’s ability to remain in the program.
Order
[52] I make the following interim Order:
a) The Applicant shall have parenting time with the children, A., aged 4 and I, aged 2 as follows: Every Wednesday from pick up after school or day care to return to school or day care Thursday morning and alternating weekends from pick up Friday after school or day care to return to school or day care Monday morning. If the school or day care is closed, the exchanges shall take place at 8:00 am or 5:00 pm as applicable at the Superstore at 825 Don Mills Road, Toronto.
b) The children shall have their primary residence with the Respondent.
c) A. shall attend H[...] Public School and H[…] day care commencing September 2021. I shall attend H[…] day care commencing September 2021.
d) Each party shall make enquiries and be given information by A and I’s teachers, school officials, day care providers, dentists, health care professionals, camp counsellors and others involved with the children;
e) Each party shall obtain their own copies of the children’s school or day care calendar and notices;
f) The parties shall use Our Family Wizard to communicate about the children. In the case of emergency to time sensitive issue, the parties may call or text one another. Each party shall pay their own cost of Our Family Wizard.
g) If the parties cannot agree on costs, each party may serve and file costs submissions of no more than three pages excluding Bills or Costs and offers to settle. Submissions shall be served and file within 14 days. There shall be no reply submissions.
h) This Endorsement is an Order of the Court enforceable by law from the moment it is released.
E.L. Nakonechny, J.
Dated: August 24, 2021