Court File and Parties

COURT FILE NO.: FS-20-19229 DATE: 20211206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sergly Nekoz AND: Daria Nekoz

BEFORE: J. Steele J.

COUNSEL: Galyna Pribytkova, for the Applicant Viktoriya Terentyeva, for the Respondent

HEARD: November 23, 2021

ENDORSEMENT

Motion for Parenting Time

[1] This is a motion by the applicant, Sergiy Nekoz, for (i) an order that the applicant shall have equal parenting time with the parties’ daughter, M.N.; and (ii) an order that the respondent, Daria Nekoz, shall not leave M.N. unattended with her friend, Denis.

Background

[2] The parties married on November 22, 2014 in Ukraine. They immigrated to Canada in June, 2015. On August 11, 2015, their daughter, M.N., was born.

[3] The parties separated on February 17, 2020.

[4] The applicant lives in his sister’s home, which is about 20 minutes driving distance away from the respondent’s apartment (although can be longer depending on traffic).

[5] In 2020 the respondent made allegations against the applicant’s sister, Olena, that she had hit M.N. As a result, the court was reluctant to allow the applicant equal parenting time with M.N. pending an investigation by the OCL. Accordingly, on consent, and on an interim without prejudice basis, the applicant’s parenting time was limited to every Saturday and every Sunday from 9 or 10 am to 8 pm.

[6] The OCL refused to take on the case. However, CAS was involved. The allegations made against Olena were not substantiated.

Analysis

[7] The applicant seeks equal parenting time with M.N. The respondent objects to the change of schedule on the basis that there was no change in circumstances and the respondent’s view that the applicant does not have proper accommodation for M.N. to reside with him on a shared residency arrangement.

Material Change of Circumstances

[8] The respondent relies on the status quo and argues that there must be a material change in circumstances in order for the current parenting arrangement to be changed. The applicant submits that there is no status quo, as the current order was made on consent on an interim without prejudice basis. The applicant also submits that there has been a change now that the CAS has made a report on the allegations against Olena.

[9] Where a status quo is in place, courts are reluctant to interfere with such arrangements prior to trial. As noted in Coe v. Tope, 2014 ONSC 4002, at paragraph 25, “[t]he status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change.” However, the applicant says that there is no status quo that has been established in the circumstances here.

[10] The court order in place, made by Justice Faieta on October 13, 2020, was made on an interim without prejudice basis. The applicant submits that as the order was made on an interim without prejudice basis, then no material change must be shown. This is similar to the question considered in Verma v. Di Salvo, 2020 ONSC 850, where the court stated (at paras. 38-40):

[38] The mother argues that my temporary order of October 17, 2019 establishes a parenting status quo, which should not be changed absent a material change in circumstances. I disagree.

[39] My order set out parenting orders as terms of an adjournment of the motion that, among other things sought custody of J, parenting time for the mother in accordance with the advice of a parenting coordinator, and delivery of J to the father. Without having heard that motion on the merits, the order setting out terms of the adjournment cannot be considered an order creating a status quo that cannot be varied.

[40] The mother also argues that the current arrangement is a de facto status quo. I disagree again. The current parenting arrangement was established by my order setting out the terms of the adjournment and, for the reasons I explain above, is not an order that creates a status quo.” (emphasis added)

[11] Similarly, in Al Tamimi v. Ramnarine, 2020 ONSC 4558 temporary measures had been put in place by the court on December 19, 2019 when the motion before the court was adjourned. On the return of the matter, heard on July 17, 2020, the court determined that there was no status quo, as there had been a temporary order put in place as a “temporary response to an evolving situation”.

[12] The current “status quo” in this case arose from an interim without prejudice order made on consent at a case conference. The parenting time issue was not considered on its merits. The temporary arrangement for parenting time with the applicant was put in place until the allegations against Olena could be investigated. This is not the type of order that creates a status quo which would require a material change in circumstances in order for the arrangement to be changed.

Best Interests of the Child

[13] In determining a parent’s parenting time, the court must be governed by the best interests of the child. Sections 24(1), (2) and (3) of the Children’s Law Reform Act provide:

24(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) Factors related to the circumstances of a child include,

a. the child’s needs, given the child’s 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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d. the history of 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 in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

a. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

b. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate 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.

[14] The applicant’s position is that prior to separation, and after separation, he was the one who cared for M.N. on weekends and evenings. There is no question that the applicant has a close relationship with his daughter. The applicant also has substantial help from his mother and his sister, who also have a close relationship with M.N.

[15] The evidence is that both parties have cared for M.N. The applicant has made allegations in his affidavit, that are untested on cross-examination, that the respondent has been neglectful in her care of M.N. and also makes allegations of family violence by the respondent as against M.N. However, it is clear from the record before me that the respondent has been an involved caring parent, taking M.N. to appointments, encouraging M.N.’s interests such as music, interested in her achievements and involved in her school.

[16] The respondent also makes allegations of family violence, that are untested on cross-examination, as against the applicant. Based on the record before me, I have no doubt that the applicant is also able and willing to care for and meet the needs of M.N. Even during the past several months when the applicant’s parenting time was very limited, he would take any opportunity to have time with M.N., including some overnights, picking her up from school several times and travelling with her to a cottage for the weekend. The applicant also has significant support with his mother and sister who can assist when he is at work, as neither of them work and they are at home with Olena’s 2 daughters. The evidence is that they are willing to care for M.N. when the applicant is not available. He can drop M.N. off at school in the morning and his sister will pick her up after school and care for her until the applicant returns from work. Before the parties separated, the respondent would frequently leave M.N. with the applicant’s mother and sister when she needed assistance.

[17] The respondent argues that the sleeping arrangements for M.N. proposed by the applicant are not sufficient. This seems to be the respondent’s primary objection to the applicant having shared parenting time, with overnights, with M.N. As mentioned above, the applicant lives with his sister in a three-bedroom home with a separate finished basement. His sister has 2 daughters, one of whom is M.N.’s age and has a close relationship with M.N. The applicant’s mother also lives in the home. The evidence is that M.N. could either share a bedroom with her cousin, or arrangements could be made so that M.N. has her own bedroom. The applicant has also indicated that he would be willing to move out to his own apartment if necessary in order to have the shared parenting time with his daughter. On the record before me, I do not have any concerns about the proposed arrangements for M.N.’s accommodation and care by the applicant.

[18] Here we have two parents who both love their child, and M.N. has a close relationship with both parents. M.N. is well cared for by both parents. In the circumstances, it is in M.N.’s best interest to have a loving relationship fostered with both her parents and have time with both her parents. M.N. is only 6. Accordingly, it is my view that at the present time the shared schedule should not be week about as proposed by the applicant, as this is a long time for a young child to be away from either parent on a regular basis. The applicant proposes that, in the alternative, the shared parenting schedule be a 2-2-3 rotating schedule. In my view, this is appropriate in the circumstances.

Daria’s friend Denis

[19] The applicant makes allegations against Daria’s friend Denis that are unsubstantiated and have not been tested on cross-examination. The applicant alleges that M.N. reported to him that Denis punished her for something by stripping her naked and hitting her with a belt. However, the evidence is that the police and CAS have investigated and determined there are no concerns for the child, M.N. The CPIN disclosure document states that “TPS attended the home and interviewed both mother and child and reported no worries for child, nor were injuries reported or observed….It was felt that the worries are more related to custody and access conflict.”

[20] The respondent submits that she would not generally leave M.N. unattended with Denis, however in the event of an unforeseen emergency, she may need to rely on her friend. Given the findings of TPS and the fact that the respondent has no family nearby and relies on her friends for support, I decline to make the order requested.

[21] There seem to be frequent allegations of violence back and forth in this case, none of which have been substantiated to date. We have a young child here, who needs the care, love, support and attention of her parents. This is where the focus of the parents needs to be, not on pointing fingers and mud-slinging each other. Decisions and actions of the parents that may impact M.N. must be made putting M.N. first – not their mutual desire to revenge or hurt each other. If decisions and actions that may impact M.N. are always guided by the best interests of M.N., in all likelihood the right decisions will be made and appropriate actions taken. Before saying or doing anything in front of M.N., or making a decision that will impact M.N., the parties ought to take a step back and ask themselves, is this in M.N.’s best interests?

Disposition and Costs

[22] In the result therefore, the parenting schedule for M.N. shall be a 2-2-3 rotating schedule commencing January 3, 2022, such that over a 14-day period, M.N. shall have parenting time allocated as follows:

a. In week one, M.N. shall have parenting time with the applicant on Monday after school to Wednesday morning, when she will be dropped off at school, and with the respondent from Wednesday after school to Friday morning when she will be dropped off at school, and with the applicant from Friday after school to Monday morning when she will be dropped off at school.

b. In week two, M.N. shall have parenting time with the respondent on Monday after school to Wednesday morning, when she will be dropped off at school, and with the applicant from Wednesday after school to Friday morning when she will be dropped off at school, and with the respondent from Friday after school to Monday morning when she will be dropped off at school.

[23] All communications between the parties, written or otherwise, shall be child-focused, cordial, and to the point about the child. The parents shall remain courteous and polite in communications with each other at all times. In addition, the parents shall refrain from including information that reflects his/her personal opinions and feelings about the other party and concentrate on deciding what is in M.N.’s best interests.

[24] Neither parent shall denigrate or disparage the other parent or members of their extended family, either overtly or covertly, in any communication with M.N. or in her presence.

[25] The parents shall not speak with M.N. directly or indirectly about any issues related to support or financial issues between them.

[26] The parents shall not ask M.N. to relay information between them and she will not be a “letter carrier”, but rather the parents shall communicate directly with one another about issues related to the child or other contentious issues. The parents shall not communicate with each other about parenting or other issues about their relationship at transition times, joint activities or special events, except to address immediate childcare issues.

[27] The parties shall each bear their own costs.

J. Steele J.

Date: December 6, 2021