Court File and Parties

COURT FILE NO.: FS-12-380880-03

DATE: 2021-12-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashley Rose Di Iorio

AND:

Giuseppe Raffaele Tropea

BEFORE: Papageorgiou J.

COUNSEL: Esther Lenkinski, for the Applicant

Christina Doris and Afsana Allidina, for the Respondent

HEARD: December 9, 2021

ENDORSEMENT

[1]. These are cross-motions brought for a parenting plan brought by Ashley Rose Di Iorio (the “Mother”) and Giuseppe Raffaele Tropea (the “Father”) with respect to Lia Rose Tropea, born July 18, 2020 (the “Child”).

[2]. The parties began cohabiting in December 2012 and were married on August 23, 2019. The separated on September 6, 2019.

[3]. The Child is currently 17 months old and is still breast-feeding. Since birth, the Father has had increasing parenting time. The Mother agrees that over time the Father’s parenting time should increase.

[4]. The difference between the two cross-motions is essentially the speed at which the Father’s parenting time increases and when the Father may begin having overnight parenting time.

The Father’s Current Parenting Time

[5]. The Father’s current parenting time is:

Mondays from 3:30 pm to 8:00 pm

Wednesdays from 3:30 pm to 8:00 pm

Fridays 3:30 pm to 8:00 pm

Saturdays from 9:00 am to 2:30 pm.

The Mother’s Proposal

[6]. The Mother’s proposal would increase the Father’s overall time but would not introduce an overnight until March 19, 2022. Thereafter, commencing July 19, 2022 a further overnight would be added. Thereafter, commencing January 1, 2023 one further overnight would be added.

The Father’s Proposal

[7]. The Father has provided evidence that he may take a leave of two months paternity, beginning on December 15, 2021. Pursuant to his employment conditions, the Father can take parental leave no later than January 22, 2022.

[8]. He sees this as an opportune time to take leave as the Mother has indicated her intention to begin returning to work part time and he will be available to care for the Child when the Mother is working. This will also assist with providing the Father with more time to bond with the Child.

[9]. His proposal continues his current parenting time from December 9, 2021 until December 14, 2021. Thereafter he begins one overnight per week from December 15, 2021 until March 31, 2022. Thereafter, the Father seeks 3 overnights per 14 day period commencing April 1, 2022.

[10]. The Father also argues that the Mother’ schedule goes too far and that this court should not order a parenting plan beyond what he has proposed as the Child is quite young and her needs will be constantly changing.

The Best Interests of the Child

[11]. The best interests of the child are paramount. Section 16(1) of the Divorce Act makes explicit that any parenting order or contact order must be determined based only on an analysis of the child’s best interests.

[12]. The Divorce Act also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: s. 16(6). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict: Pereira, at para. 26.

[13]. Above all else, the primary consideration that the court must consider is a child’s “physical, emotional, and psychological safety, security and well-being”: Pereira, at para. 13; CLRA, s. 24(2); see also Divorce Act, ss. 16, 7.1, and 22.1.

[14]. Other relevant considerations are also contained in section 16 of the Divorce Act as follows:

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 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 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 cooperate, in particular with one another, on matters affecting the child;

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

[15]. As set out in the Father’s factum, the best interests analysis is holistic, taking into account a child’s well-being in a broad sense, including their “basic material, physical, educational, and emotional needs, as well as needs for affection and safety,” S.S. v. R.S., 2021 ONSC 2137, citing the UN Committee on the Rights of the Child. The court is to engage in a rigorous assessment of the specific child’s circumstances: S.S. v. R.S., at para. 37.

The Mother’s Implicit Agreement to the Concept of Overnights

[16]. While the Mother raises a multitude of complaints against the Father, she implicitly must agree that it is in the Child’s best interests to have overnight parenting time with the Father since she has proposed her own schedule which begins overnights in March 2022. Therefore, while I will consider all of her complaints and the relevant factors in the Divorce Act, the Mother must implicitly agree that none of them should be a bar to increasing the Father’s parenting time, and providing him with overnights.

[17]. I am uncertain as to why she argues these factors should delay overnights if that is in the Child’s interests and what purpose such delay would achieve.

[18]. The Child is currently 17 months old and has been in the Mother’s primary care. The Father has had no overnights.

The Child’s Needs Given Her Age

[19]. The Mother argues that for children under 3, parenting plans should be. incremental, slowly introducing longer periods of parenting time and monitoring the child’s adjustment to each step of the plan as new changes are implemented. She relies upon Holtzhauer v. Murphy, 1996 CarswellOnt 1831 for the proposition, “nighttime in a strange bed and a strange place is a real vulnerability for a small child.”

[20]. However, the antiquated “tender years” principle no longer applies to determining the access schedule for a young child: Botticelli v. Botticelli, 2009 ABQB at paras 15, 32 and 37.

[21]. As well, in this case the Father has been spending significant time bonding with the Child. The Child knows and loves him and there is no time required for the Child to get used to the Father as is required in some cases where there has been the complete absence of one parent in the child’s life.

[22]. In Holomey v. Hills, the Father sought overnights with the 18 month old child. His current schedule included parenting time every other day, for two hours from 10: am to 12 pm. The Father faithfully availed himself of that time. The Mother’s evidence was that the Father was a barely competent parent, that he had been abusive during the relationship and that she was still breastfeeding, so overnight access was not practical. The Court stated that the Mother’s resistance to an increased schedule appeared to be punitive. It also stated that breastfeeding is a factor, but one amongst many. The Court cited caselaw stating that regular contact should exist between access parents and young children, which should include regular overnight visits. Holomey v. Hills, 2020 ONSC 6299, at paras 8-10, 13-14, 17-21

[23]. In Cavannnah v. John, 2008 CarswellOnt 7455, the Mother claimed the Father could not have reasonable access with the parties’ 2 year old child because the child was breastfeeding. The court recognized that the importance of the child having a relationship with his father superseded the importance of a child continuing to breastfeed at his age. The Court found that the father had shown patience with the mother’s desire to breastfeed the child, patience that restricted his time with the child. The Court held that the mother was using breastfeeding as an excuse, and not considering the totality of the child’s needs when she restricted the Father’s access due to unclear and unspecific evidence about the benefits of breastfeeding.

[24]. See also S.D.G. v. D.K.N., [2017] B.C.J. No. 422 the court accepted the following statement regarding the importance of a young child bonding with both parents:

It is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened. In the absence of such opportunities for regular interaction across a broad range of contexts, infant-parent relationships fail to develop and may instead weaken.

The evening and overnight periods (like extended days with nap times) with nonresidential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight period provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hours visits cannot provide.”

Kelly, Joan and Lam, Michael, “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children”, Family and Conciliation Courts Review, July 200, 4 of 14.

[25]. In my view, the fact that the Child is breastfeeding is only one consideration and should not be a bar to overnight parenting time for the Father if that is in the Child’s interests.

Nature and Strength of the Child’s Relationship with the Father

[26]. A child’s best interest is to have a strong and meaningful relationship with both parents. A child should be given the opportunity to know the non-custodial parent and be part of that parent’s life: Duthie v. Junker, 2011 ONCJ 298 at para 56-57.

[27]. The Father has been present throughout the Child’s life. He has consistently sought and obtained parenting time. It is in the Child’s interest that the Child have a strong bond with the Father and I agree that the Father requires more time at this critical juncture to build that bond.

Ability and Willingness to meet the Child’s needs

[28]. There are some contested facts on some matters regarding whether the Father appropriately follows nap times, bedtimes, food schedules, or maintains schedules.

[29]. Text exchanges do support that the Father gave the Child strawberries and scallops, which the Mother indicated was on a list of foods which were prohibited and which the Mother says gave the Child a rash and mucous in her stool. Justice Diamond had made an order on April 20, 2020 which provided that the Child would be introduced to solid foods on or before January 18, 2021 and that the Mother would take the lead with respect to this introduction, would keep a food log which would be shared with the Father. Justice Diamond also directed that the Father should only feed food that have been introduced to the Child and recorded in the log. Therefore, there is some independent evidence that the Father has not complied with a court order with respect to the Child’s needs and care.

[30]. However, apart from the incidence of feeding the Child some foods on a prohibited list, the remainder of the Mother’s allegations regarding nap times etc. are mostly contradicted by the Father and I cannot make any findings regarding these issues on this record.

[31]. In any event, I agree with the court in in Eberle v. Pasco, 2009 ABQB, where the Court ordered shared and equal parenting for the parties’ two year old daughter concluding that the mother’s grievances and complaints about the father’s parenting would be addressed by having larger blocks of time. In my view, the kinds of issues raised by the Mother, if true, are things that the Father will be able to learn and address if his parenting time is increased

Family Violence

[32]. The Mother has some more serious complaints such as the Father exhibiting hostility in front of the Child, yelling and swearing in front of the Child, lashing out and smashing the Child’s food jar, throwing the Child’s stroller, swearing at a security guard and calling the Mother a “sick and twisted individual.”

[33]. While the Father did call the Mother “sick and twisted” in a text, I have read all of their text communication and I found both of them to conduct themselves with hostility towards each other. The texts do not prove what the Mother say they do. Essentially the Mother relies upon words and pictures that she writes and sends as proof of something that she says took place.

[34]. Frankly, all of these texts appear to be very self-serving on both the Mother and Father’s part.

[35]. The bulk of their dispute relates to the Father’s parenting time and his feeling that he is not being given sufficient time and input. In my view this is what is causing the conflict and if this could be addressed the conflict would be reduced.

[36]. Regarding the specific incidents alleged by the Mother, I am unable to make any findings that this is a relevant consideration on this contested record, particularly when the Mother actually does not even take the position that the Father has done anything that should disentitle him to parenting time—just that somehow it should be delayed.

Ability of the Father to Communicate and Cooperate on Matters Affecting the Child

[37]. The Mother also argues that this is a high conflict situation and that to facilitate successful overnight parenting, co-parents must be able to maintain consistent feeding and sleep routines, sharing information “about bedtimes and rituals, night awakenings, food preferences and feeding schedule, effectiveness practices for soothing, illnesses, and changes in routines as the child matures…”: Ryan v. Scott, 2011 ONSC 3277 at para 18.

[38]. I agree that this is a very high conflict situation. I have reviewed the text communication between the parties and in my view it is both of them who are responsible for their inability to communicate. They are both aggressive, confrontational, sarcastic and passive aggressive.

[39]. I did not find the Mother’s communication style to be any better than the Father’s. The fact that they are both behaving so badly should not mean that the Child should not get to build a bond with her Father.

[40]. Both parents must adjust their communication style in their Child’s best interests.

[41]. I will be ordering that from now on the parties communicate by Our Family Wizard as an ancillary order.

Analysis of the Schedules

[42]. In all the circumstances I find that it is in the Child’s best interests to have overnights with the Father. The only issue is when it will begin and how quickly it will be accelerated.

[43]. The Mother’s main argument is that the Child is very sensitive and highly bonded to her and wakes during the night whereupon the Mother must suckle her for her to return to sleep. If this is true, it is not clear to me why this will no longer be a problem in March 2022. It is in the Child’s best interests to have a strong bond with the Father. Overnights are required for this. The fact that there might be some adjustment for the Child does not mean that it is not in her best interests. Children may also have trouble adjusting to breastfeeding, certain kinds of healthy foods, brushing their teeth, going to bed and attending school etc. That does not mean that parents should not make them do so.

[44]. The Mother provided an affidavit from the Child’s physician Jessica Lesley Baugniet who indicated that based upon her clinical observations and discussions with the Mother, the Child is sensitive and is used to nursing on demand that she wakes to be comforted. At times when she is over-tired or upset she vomits. She agreed that the Mother’s proposed schedule would allow the Child to transition to spending more time away from the Mother and that gradual progression is in the best interests of a child of her age. I note that Dr. Baugniet was not shown the Father’s proposed plan and so we do not know what she would have thought of it. Further, Dr. Baugniet concluded that the Child was “bright and healthy” and she was “confident that with time she will adjust to new routines and continue to thrive.”

[45]. Dr. Baugniet was also apparently unaware that the Father has the ability to take paternity leave beginning December 2021 which ability he will lose in February 2022 It is in the Child’s interest that the Child have a strong bond with the Father and I agree that this is an opportune time to increase his parenting time significantly to facilitate that bond. Dr. Baugniet would not have known of the Father’s availability to build an intense bond during his paternity leave.

[46]. While the Mother is breastfeeding, she can pump milk and provide this for the Father to use. See C.M.S. v. M.R.J.S., 2009 YKSC 32, at paras 43, 45-47, 53-54, 57, 61 where the court held that the mother could pump to facilitate the father’s overnight access.

[47]. While the Mother argues that moving to overnights immediately is not gradual and not child focused, at some point the Child has to move from visitation during the day to overnights. The Father’s parenting time has varied over the last year as a result of an attempt at reconciliation, summer holidays (the Father is a teacher) as well as some coaching responsibilities he has had. However, since June 2021 he has had parenting time as follows:

Mondays—between 8 and 4 ½ hours

Wednesdays—between 5 ½ and 2 hours

Fridays—between 4 ½ hours and 2 hours

Saturdays—5 ½ hours

[48]. The Child knows him and is already bonded to him. The movement to overnights should not be problematic in this case, even if the Father will have to learn how to sooth the Child if she wakes in the night. There is no reason to think he is unable to do this.

[49]. Indeed, I agree with the Father’s argument that the Mother’s proposal to permit the Father only one overnight every 14 days initially will not permit the Child to adjust easily as it would be too infrequent. Beginning with one overnight each week makes sense and is in the Child’s best interests as it permits the Father to build up routines with the Child in his home.

[50]. While it is important to gradually increase the Father’s parenting time, increasing it to one overnight per week initially as requested by the Father is gradual enough.

[51]. I agree that the schedule proposed by the Father from December 2021 until April 1, 2022 (to continue thereafter pending court order or agreement of the parties) is in the Child’s best interests with the caveat that the Father’s proposed parenting time for the weekends after March 2021 essentially provides the Father with the bulk of the weekend time. To some extent this makes sense. The Mother is on maternity leave and only intends to go back to work part-time presently. The Child lives with her and she can have significant parenting time during the weekday when she is not working as the Child does not attend school. Because of the age of the Child and likely bedtimes, after the Father’s paternity leave ends, the bulk of the time which he will be able to spend with the Child will be on the weekend.

[52]. Nevertheless, I will be adjusting this so that during Week 2, the Father shall return the Child to the Mother on Sunday at 9:00 am. The Child’s bond to extended family is important and there may be family events which the Mother may wish to bring the Child to on a weekend day.

[53]. With respect to after April 1, 2022, the Father argues that there should be no further parenting plan and that it should simply remain as is pursuant to my Order pending further court order or agreement of the parties. I agree.

[54]. The Father’s parenting plan gets the Father up to 3 overnights by April 2022 and the main difference is that the Mother’s plan gets the Father up to 3 nights by April 2023. Therefore, there is no need to implement the remainder of the Mother’s proposed plan.

[55]. I agree with the Father that it is too soon to project that the Father should only have three overnights with the Child until the Child is three years old.

[56]. With respect to the holidays, in my view, neither schedule fairly provides each parent with parenting time on the holidays. The Father’s proposal gives him all of Christmas day while the Mother’s fails to provide the Father with any overnights during this holiday period. As well, the Father fails to address all the holiday dates in 2022 while the Mother does. In my view, given the level of conflict, it is appropriate to provide the parties with a clear schedule.

[57]. Therefore, I am imposing a schedule whereby the Mother and Father shall share equally Christmas, New Years, and Family day weekend. The Mother has proposed that the Father have extended times during the day during March break from March 14 to 18 and I will be providing him with some extended parenting days during that week. There are also other holiday dates which the Mother has requested that the parties share and I have addressed those dates below in a manner whereby the parties shall share these holidays.

[58]. With respect to the summer of 2022, the schedule regarding the Father’s parenting time after April 1, 2022 with extended days shall apply.

[59]. Accordingly, I am Ordering the following interim and without prejudice parenting plan:

Pursuant to section 16.1 of the Divorce Act, commencing December 9 until December 14, 2021, the Respondent Father shall have the following parenting time with the child, Lia Rose Tropea, born July 18, 2020 (the “Child”)

a. Mondays from 3:30 p.m. to 7:00 p.m.;

b. Wednesdays from 3:30 p.m. to 7:00 p.m.;

c. Fridays from 3:30 p.m. to 7:00 p.m.; and

d. Saturdays from 9:00 a.m. to 7:00 p.m.

Pursuant to section 16.1 of the Divorce Act, commencing December 15, 2021 until February 15, 2022, the Respondent Father shall have parenting time with the Child during his paternity leave, as follows:

a. Mondays from 9:00 a.m. to 7:00 p.m.;

b. Wednesdays from 9:00 a.m. to 7:00 p.m.; and

c. Fridays from 9:00 a.m. to Saturdays at 7:00 p.m.

Pursuant to section 16.1 of the Divorce Act, February 16, 2022 until March 31, 2022, the Respondent Father shall have parenting time with the Child following his paternity leave, as follows:

a. Mondays from 3:00 p.m. to 7:00 p.m.;

b. Wednesdays from 3:00 p.m. to 7:00 p.m.; and

c. Fridays from 3:00 p.m. to Saturdays at 7:00 p.m.

The Respondent Father shall have parenting time with the Child commencing April 1, 2022 as follows:

a. In Week 1:

i. Mondays from 3:00 p.m. to 7:00 p.m.;

ii. Wednesdays from 3:00 p.m. to 7:00 p.m.; and

iii. Fridays from 3:00 p.m. to Saturdays at 7:00 p.m.;

b. In Week 2:

i. Mondays from 3:00 p.m. to 7:00 p.m.;

ii. Wednesdays from 3:00 p.m. to 7:00 p.m.; and

iii. Fridays from 3:00 p.m. to Sundays at 9:00 a.m.

The parties shall have holiday parenting time with the Child from December 2021 to December 31, 2022, sometimes in lieu of the regular parenting schedule as set forth in paragraphs 1 2, 3 and 4 above, as follows:

Friday December 24, 2021 at 3:00 pm to Saturday December 25, 2021at 1:00 pm

Father

Saturday December 25, 2021 at 1:00 pm to Monday December 27, 2021 at 9:00 am

Mother

Monday December 27, 2021 at 9:00 am to 7:00 pm

Father

Monday December 27, 2021 at 7:00 pm to Wednesday December 29, 2021 at 9:00 am

Mother

Wednesday December 29, 2021 at 9:00 am to 7:00 pm.

Father

Wednesday December 29, 2021at 7:00 pm to Friday December 31, 2021 at 9:00 am

Mother

Friday December 31, 2021 at 9:00 am to 7:00 pm

Father

Friday December 31, 2021 at 7:00 pm to Saturday January 1, 2022 at 2:00

Mother

Saturday January 1, 2022 at 2:00 Saturday to January 1, 2022 at 7:00 pm

Father

Return to usual schedule after January 1

Family Day weekend: February 20, 2022 falls on a Monday which is the Father’s day for parenting time. He shall have extended time from 9:00 am to 7:00 pm

Father

March break—March 14-18: The Father’s usual parenting time falls on a Monday, Wednesday and Friday. Therefore, he shall have extended time on these days from 9:00 am to 7:00 pm.

Father

Good Friday—Friday April 15, 2022

This is the Father’s usual time and his usual time shall apply.

Easter Monday—Monday April 17, 2022

The Mother shall have the full day since the Father is having Good Friday even though this falls on the Father’s usual parenting day

Monday April 25, 2021—the Father’s birthday

This is a day when the Father works and has parenting time in the evening. The usual schedule will apply

Sunday May 8, 2022—Mother’s day

Pursuant to the schedule I have ordered, the Father will return the Child to the Mother at 9:00 am. Therefore, the usual schedule will apply

Tuesday May 10, 2022—the Mother’s birthday

This falls on a day when the Father does not have any parenting time. Therefore the usual schedule will apply

Monday May 23, 2022—Victoria day

This falls on a day when the Father has parenting time in the evening. Therefore the usual schedule will apply

Sunday June 19, 2022—Father’s day

The Father shall have extended parenting time until 4:00 on this day

Summer 2022

The Father is a school teacher and if he does not teach summer school and is available then his weekday parenting time during the weekday shall be extended and he shall have from 9:00 am to 7:00 pm on such days.

Friday July 1, 2022