Court File and Parties
COURT FILE NO.: FC-21-1781
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Serban Iliuta, Applicant
AND:
Xinru Li, Respondent
BEFORE: Associate Justice Kaufman
COUNSEL: Gregory Ste-Marie, Counsel for the Applicant
Evan Corey, Counsel for the Respondent
HEARD: October 26, 2021
REASONS FOR DECISION
[1] The applicant father brings this motion for a determination of urgency under Rule 14(4.2) of the Family Law Rules.[^1] If his motion was determined to be urgent, the applicant would seek interim orders that provide for a transitional parenting schedule culminating with a 3-3-2 equal parenting schedule.
[2] The parties separated in April of 2020 and lived separate and apart under the same roof for approximately 16 months. They are the parents of a three-year-old girl named Elena. In August 2021, the applicant alleged that the respondent assaulted her, which resulted in criminal charges being laid. He was required to leave the matrimonial home and he must abide by certain bail conditions which, among other things, prevent him from being within 100 meters of the respondent.
[3] The applicant has not seen Elena since he left the matrimonial home six weeks ago. He alleges that the parties were close to reaching an agreement that provided for parenting arrangements which would gradually and ultimately result in equal parenting time. The respondent objects to the admissibility of these settlement discussions, but also disputes the applicant’s version of events. I will not consider these settlement discussions because they are privileged, the applicant relies on only the parenting time aspects of an agreement and should not be considered in isolation, and because their contents are disputed. The respondent is evidently not willing to agree to this specific arrangement at this time.
[4] The respondent says that he was a very hands-on father, that his relationship with Elena is strong, and that he must spend time with her lest she feel that he has abandoned her. He filed an affidavit sworn by his former neighbour who confirms that the applicant spent quality time with Elena on a regular basis.
[5] As soon as her lawyers were served with this application, the respondent proposed an interim parenting schedule. Under her first offer, the applicant would have parenting time for two weekday evenings per week. The respondent made a second offer after the parties filed their motion materials. She advised the Court that she is now prepared to offer, in addition to two weekday evenings, one overnight and one weekend day per two-week period.
[6] I have sympathy for the applicant. If the respondent mother was not offering meaningful parenting time, I would have allowed his motion.
[7] On a motion under Rule 14(4.2), the Court’s role is to assess if the matter is urgent. The jurisprudence provides that abductions, threats of harm or dire financial circumstances are examples of urgent matters.[^2] In some situations, a complete denial of access, or the imposition of very strict conditions akin to a denial of access, could certainly amount to a “threat of harm”. The harm need not be physical. Here, the type of harm alleged is one resulting from a sub-optimal parenting schedule (from the applicant’s perspective). It is very common for separating parties to disagree on the parenting arrangements that are in the best interests of their children. Parties should be encouraged to make, and to accept, reasonable offers. A balance must be struck between, on the one hand, dispending swift justice in situations where there are immediate concerns affecting serious health, safety and economic concerns and, on the other hand, making family law orders based on a complete evidentiary record, providing the parties with sufficient time to present their case, and making judicious use of scarce judicial resources. Where, as here, a parent is prepared to agree to reasonable parenting time, these arrangements should be fully explored before resorting to an urgent motion.[^3]
[8] The applicant no doubt feels that his parenting time is arbitrarily restricted. He may ultimately be right. But the respondent has offered him parenting time with Elena since October 10, 2021. If he makes the most of that parenting time - and based on the affidavits I have every reason to believe that he will - there should be more than adequate time for him to reassure Elena that he has not abandoned her, that he loves her, and to maintain their strong relationship. Pursuant to the respondent’s latest proposal, he would see Elena on 6 days out of 14, which is almost every other day. I therefore cannot conclude that there is a situation of urgency.
[9] The applicant objected to the requirement that Elena would be returned to the respondent through a third party because it would present logistical difficulties. The parties accepted the Court’s suggestion that the exchanges occur at the Ottawa Police station on Elgin Street without third party involvement.
[10] The respondent sought costs in the amount of $1,000. The applicant argues that he should not be required to pay costs because he was required to bring this motion in order to get the parenting time ultimately offered. While it is often true that offers for parenting time get better when faced with a motion, the applicant did receive an offer for parenting time over two weeks ago and it was his decision to carry this motion to a hearing. The respondent had no choice but to incur costs to respond to it. The respondent was successful on the motion and the normal “loser pays” rule should apply. Given that the applicant is currently unemployed, I order that he pay the respondent costs of the motion, fixed in the amount of $1,000, in any event of the cause.
[11] This Court orders as follows:
- On an interim without prejudice basis the child Elena Catherine Iliuta was born on August 4, 2018 shall have parenting time with the Applicant/Father commencing immediately as follows (Monday of Week 1 being October 25, 2021):
a. On Monday of Week 1, Serban picks up Elena from daycare at 3:00 p.m. and remain overnight with Serban until drop off at daycare at 9:00 a.m. on Tuesday (if there is no daycare or Elena is sick, drop off at the Ottawa Police Station located at 474 Elgin Street at 9:00 a.m.);
b. On Thursday of Week 1, Serban picks up Elena from Daycare at 3:00 p.m. to spend time together until 7:00 p.m., exchange at Ottawa Police Station located at 474 Elgin Street;
c. On Monday of Week 2, Serban picks up Elena from Daycare at 3:00 p.m. to spend time together until 7:00 p.m., exchange at Ottawa Police Station located at 474 Elgin Street;
d. On Thursday of Week 2, Serban picks up Elena from Daycare at 3:00 p.m. to spend time together until 7:00 p.m., exchange at Ottawa Police Station located at 474 Elgin Street; and
e. On Saturday of Week 2, Elena shall have parenting time with Serban from 10:00 a.m., exchange at Ottawa Police Station located at 474 Elgin Street until 4:00 p.m., exchange at Ottawa Police Station located at 474 Elgin Street.
- Pursuant to this Order and the parties’ agreement to vary Serban’s Criminal Release Conditions dated August 21, 2021, Serban shall be able to attend at the daycare, care program or school that Elena is attending when he is picking up or dropping off Elena during his parenting time. In addition:
a. Serban shall also be able to be in contact with Xinru at the Ottawa Police Station located at 474 Elgin Street for the purpose of exchanges contemplated above. The parties shall have minimal contact and that minimal contact shall be restricted to immediate practical parenting concerns related to the exchange. All other parenting issues shall continue to be discussed through counsel or in mediation.
b. Serban shall be permitted to attend mediations with Xinru in an on-line format within separate virtual rooms and from separate physical locations
The parties may set a date for a Case Conference.
This order shall continue until the parties’ first case conference, unless otherwise agreed to by the parties in writing.
Costs for this motion shall be payable by the Applicant to the Respondent in the amount of $1,000.00 in any event of the cause.
Associate Justice Kaufman
Date: October 27, 2021
[^1]: O. Reg. 114/99.
[^2]: Yelle v Scorobruh, 2016 ONSC 3300.
[^3]: Porter v. Maclennan, 2011 ONSC 5298.