Court File and Parties

COURT FILE NO.: FS-22-27394 DATE: 20220429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mario Ferreira, Applicant – and – Carla Dias, Respondent

Counsel: Ken Nathens, for the Applicant Stephanie Martinez, for the Respondent

HEARD: April 26, 2022

PINTO J.

Reasons for Decision

[1] The parties, an unmarried couple, each bring a motion seeking to change parenting time with their two children, and for related relief.

[2] The parties cohabited from 2015 to late 2021. They have two children: a daughter K, 5; and a son J, 3.

[3] The mother left the matrimonial home with the two children on December 24, 2021. The father did not have parenting time over the Holiday period. He brought an urgent motion that was triaged to an urgent Case Conference. The current parenting schedule arises out of a consent order of Nakonechny J. dated January 12, 2022 reached at the urgent Case Conference. The temporary, without prejudice parenting schedule provides the father with parenting time as follows:

• Alternate weekends from Friday afternoon to Monday morning
• Wednesday afternoon to Thursday morning every week

[4] Since December 24, 2021, the father has continued to live in the matrimonial home, while the mother has lived with her parents.

[5] In January 2022, the mother was charged with assaulting the father and forcible confinement. She is prohibited from contacting the father pursuant to a no-contact order. The mother denies all charges and the criminal proceeding is pending.

The Father's Motion

[6] The father seeks to expand his parenting time to an equal parenting regime as follows:

(a) The children will reside with the mother each week from Monday afternoon to Wednesday morning drop off at school or child care; and (b) The children will reside with the father each week from Wednesday after school (pick up from school or child care) to Friday morning drop off at school or child care. (c) The parties shall alternate weekends with the children from Friday afternoon to Monday morning with the father's weekends starting the weekend of May 6, 2022.

[7] The father also seeks an order that the children spend one uninterrupted week with him during the summer from July 24 to July 31, 2022, and that the mother have one uninterrupted week in the summer as well.

[8] Finally, the father seeks an order that each party be permitted to speak with the children while they are in the other party's care for a maximum of two phone calls per day, not exceeding 15 minutes each.

The Mother's Motion

[9] The mother seeks to reduce the father's parenting time such that:

(a) The children will reside with the father each week from Wednesday pick up at 5:30 p.m. from the mother's residence to drop off at 7:30 p.m. at the mother's residence; and (b) On alternate weekends, the father will have day visits on Saturday and Sunday from 10:00 a.m. to 6:00 p.m., with pick-ups and drop-offs occurring at the mother's residence.

[10] The mother seeks an order requesting the involvement of the Office of the Children's Lawyer (OCL) to conduct an investigation under section 112 of the Courts of Justice Act and make recommendations to the court with regards to the children's primary residence and parenting time.

[11] The mother requests that her parenting plan remain in place pending a response from the OCL and, if the OCL declines involvement, the father will be free to bring a motion to increase his parenting time.

[12] The mother's proposed order also requires the parties to agree to the recommendations of the OCL clinician without contest.

The Mother's Position

[13] The mother claims that:

(a) Prior to the current parenting plan, the children had never been in the sole care of the father and that she has always been the primary parent. (b) K, the 5 year old daughter, has had an adverse reaction to spending time alone with her father under the current parenting plan and is suffering from what is presumed to be separation anxiety. (c) K has expressed serious issues about the stays with the father, including about his care of J, the 3-year old brother, and K wants to sleep at her mother's home. (d) K has engaged in therapy and the therapist's clinical notes support the mother's view that K is showing serious signs of anxiety due to having to spend time alone with her father. (e) The children's babysitter has informed the mother that the father does not provide the children with proper meals when he drops them off at the babysitter. (f) The mother's parenting proposal is in the best interest of the children while the OCL makes a determination as to whether it will become involved.

[14] The mother disagrees with the father's proposal that he have the children for one week in the summer, July 24 to 31, as the latter weekend falls on the August Civic Day long weekend where the mother is planning on celebrating her mother's (the children's maternal grandmothers') birthday.

[15] The mother believes that telephone access to the other parent should not be restricted.

The Father's Position

[16] The father claims that, during the relationship, both parents were equally involved in raising and spending time with the children, and the parties relied on a babysitter as they both worked. However, he acknowledges that the mother was responsible for most of the pick-ups and drop-offs as it was on her way to work, although he participated as well.

[17] He claims that the children have a strong and positive relationship with him. Whereas the mother has raised a number of concerning parenting issues about him, he too has concerns about the mother's parenting such as the mother losing her temper and being aggressive with the children.

[18] He is concerned that K's negative portrayal of his parenting, as conveyed to K's therapist, is the product of coaching from the mother.

[19] The father retained an independent parenting professional to observe his interactions with the children who concluded that his interactions and relationship were very positive.

[20] He submits that his proposal for equal parenting is in the best interests of the children, even on a temporary basis, as the OCL is invited to become involved with this family. Under his proposal, the children are not away from any parent for more than 3 days at a time, and neither party is prejudiced in terms of the parenting schedule as this matter moves towards a final order.

[21] With respect to phone calls, the father seeks a reasonable limit of two 15-minutes phone calls each day from the mother while the children are in his care.

Discussion

[22] The parties consent to the court requesting the involvement of the OCL under s.112 of the Courts of Justice Act.

[23] The parties also agree that the present parenting order is on a completely without-prejudice and temporary basis. They agree that no party need demonstrate a material change in circumstance to warrant a change in parenting time: Al Tamini v. Ramnarine, 2020 ONSC 4558, at para. 38-39.

[24] I see the main issue as one of determining the appropriate temporary parenting arrangement in the best interests of the children pending the potential involvement of the OCL.

[25] Section 24(1) through 24(6) of the Children's Law Reform Act ("CLRA") sets out the parameters to consider when determining the best interest of the child. Primary consideration is given to the child's physical, emotional and psychological safety, security and well-being.

[26] In particular, subsection 24(5) stipulates that in determining what is in the best interests of a child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility or parenting time with respect to the child. And subsection 24(6) provides 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 best interests of the child.

[27] In the mother's affidavit, she deposes that:

(a) K, the daughter, has expressed to her that the father does not care for her or her brother while they are in the father's care and leaves them with his girlfriend, or alone in the living room with a [computer] tablet. (b) K has serious issues staying overnight at her father's residence. (c) She has taken multiple videos of K refusing to go into the father's care. The videos, not produced on the motion, show K kicking, screaming, and crying when the father arrives to pick up the children. (d) In response to K's concerns, and with the father's consent, K attended and received psychological counselling services from Sherice Annis, a Registered Social Worker. The clinical notes of the therapy sessions are very concerning and suggest that K has serious anxiety due to spending time alone with the father. (e) In addition to K's therapist, the children's current babysitter has informed her that the father does not provide the children with proper meals when he drops the children off. Apparently, the father has brushed off these concerns stating that there is nothing wrong with the food he is providing. (f) The father has gone to extreme lengths to confront any person that speaks out against him. The mother believes the first babysitter withdrew her services as a result. The mother's former neighbours have also informed her that the father was rude and impolite and "practically told them to stop sharing information" since he was the one who was going to continue to be their neighbour, not the mother. Similarly, K's therapist, was also "confronted" by the father's lawyer after the disclosure of the counselling notes.

[28] On February 19, 2022, Ms. Annis sent an email to the mother with her notes from K's initial therapy session on February 17.

[29] Ms. Annis' notes of the one-hour therapy sessions with K on February 17, February 24, March 4, March 10, March 17, and March 25, 2022 were produced on the motion. Under the heading "Issues Discussed and Interventions Carried Out", Ms. Annis' notes are between 2 and 9 lines in length. Some representative notes state:

• I don't want to see daddy on the weekend.
• I cry when I go see my daddy because he never lets me call mommy
• Daddy does not spend a lot of time with us, I spend all my time on my tablet with my brother
• Daddy always put my brother in time outs
• Daddy's girlfriend takes care of me when I'm sick, not daddy
• Daddy wants me to lie about mommy
• Daddy smokes in the house

[30] There is no doubt that the notes suggest that K does not want to spend more time with her father, that she has concerns about the care that she is receiving while she and her brother are in the father's care, and that, in Ms. Annis' view, K presents with symptoms of anxiety regarding ongoing visits with the father.

[31] The father denies the mother's allegations about his unfitness as a parent or that Ms. Annis' notes contain an accurate portrayal of K's relationship with him. In his affidavit, he refutes the allegations referenced in Ms. Annis' notes or in the mother's affidavit.

[32] The father retained Joanna Seidel, MSW, and Nicole Khaitman, MSW, of Toronto Family Therapy to conduct observational visits with the children. The father produced the observational notes of Nicole Khaitman from visits on April 13 (3 hours), April 16 (4 hours), and April 17 (4 hours). Representative notes state:

• Overall, Mr Ferreira was very pleasant and kind towards the worker and toward the children. He was observed to be playful and loving. The children did not appear uncomfortable or afraid of Mr. Ferreira and they appeared to have a strong bond/relationship. The children also got along very well together, and the place was extremely clean/tidy/orderly.
• From the brief 3-hour snapshot that this worker observed, Mr. Ferreira appears to have a close knit and positive relationship with K and J. The children appeared at ease and comfortable with Mr. Ferreira for the duration of the visit. The children showed no indication of being scared or fearful of Mr. Ferreira and, in fact, would often call on Mr. Ferreira for assistance, soothing, questions they have, showing off skills, or for comfort.
• Mr. Ferreira was also attentive to the children's overall hygiene and physical care.
• Overall, the children appeared to have a very close knit and positive relationship with Mr. Ferreira. The children also connected well with Mr. Ferreira's friend, C. Mr. Ferreira appeared to be a loving and attentive father. He is extremely affectionate and attentive with both kids.
• The only suggestion would be for more nutritious food/drinks to be offered to the children.
• Mr. Ferreira was very involved with the children. For example, whenever one of them got upset at one another, he would help the children resolve the issues together.
• Mr. Ferreira frequently smoked cigarettes outside in front of the children.

[33] Significant discussion ensued at the hearing of the motion about what could realistically be gleaned from Ms. Annis and Ms. Khaitman's notes. The father strongly believes that Ms. Annis' reports are not an accurate indicator of K's true feelings as they are overwhelmingly negative and do not focus on other aspects of K's life such as her school, friends and activities. The mother argues that there is a significant difference between interviewing a child in a therapeutic setting versus a "staged event" where the father is clearly on his best behaviour for a few hours, trying to impress the social worker.

[34] I acknowledge these criticisms. On balance, however, independent of the parties, I was concerned with the brevity and singular focus of Ms. Annis' notes. I do not doubt that Ms. Annis was conveying what she heard from K. However, it is difficult to understand whether what she has conveyed in her notes is an accurate indicator of the entire session. For instance, in the one hour session on March 10, the "Issues Discussed and Interventions Carried Out" is described as:

During our session K reported 'Daddy's girlfriends kids are always around and I don't like this'. During every session K reports "I don't like to see daddy on the weekend, only mommy' Talk therapy is used in sessions.

[35] Was this an accurate summary of the entire 1-hour session?

[36] Likewise, for March 17, the entirety of the one-hour session notes state:

During the session K reported 'Daddy wants me to lie about mommy'. K also reported that 'Daddy's girlfriend stays over all the time and I don't like that'. Interventions are talk therapy and play therapy.

[37] The mother's counsel suggested that it is not surprising that Ms. Annis' notes focus strongly and exclusively on the relationship between K and her father which is decidedly negative. However, given that this was not explained by Ms. Annis or set out anywhere, it is difficult to understand why there is no refence to any other topic in Ms. Annis' notes.

[38] There is also a related concern that I have with the relationship between Ms. Annis' notes and their use on the within motion. On March 30, 2022, Mr. Nathens, counsel for the mother, contacted the agency where Ms. Annis works, Toronto Neurofeedback, via email and requested whether there was a time that he and the father could speak with Ms. Annis. The manager replied that "we do absolutely no custody or access work and will not make comments on it." I had difficulty understanding this response. The mother argued that this simply reflects the agency's position that they do not take any kind of legal position in parenting disputes. However, I was concerned whether this also meant that the agency and/or Ms. Annis would, in writing up and providing their notes, be insufficiently taking into account that K is a child of separating parents. I am sure that Ms. Annis was fully aware of this fact but, without a further explanation from the agency and/or the mother in the motion material, and given the very sparse therapeutic notes, I am not inclined to place much reliance on them as an accurate indicator of K's accurate feelings towards her father.

[39] By contrast, and while there are limits that should be placed on the extent to which one can draw conclusions by merely observing children with a parent for a few hours, I am prepared to place more reliance on Ms. Khaitman's observations. Her notes were more fulsome and contained both complimentary and critical comments. Overall, my conclusion is that it would be challenging for the father and the children to completely stage-manage their behaviour over 11 hours of Ms. Khaitman's observation, if the reality was that K is indeed fearful of her father, or experiences anxiety while she in in her care, at least to the extent described by the mother.

[40] There are also a number of other factors that lead me to conclude that there is no reason to reduce the father's parenting time and that, in fact, an expansion of his parenting time to an equal arrangement on a temporary basis is warranted.

(a) The CAS has been involved with this family and has closed its file. (b) I question the mother's judgment in terms of videotaping K's reaction to leaving for parenting time with the father. I find that the mother may be unwittingly placing K in the middle of the parties' conflict and contributing to the very behaviour by K that she is concerned about. (c) I also find that the mother may be reading too much into the father's conduct in an attempt to minimize his parenting time. This strikes me as less about the children's needs rather than the mother's. For instance, the mother claims that the father has used "fear and intimidation" with respect to speaking to the neighbours, the babysitter, and his lawyer contacting K's therapist. I find that the more likely explanation is that the father and his lawyer are following up after receiving concerning information. Similarly, the mother makes much of the fact that the father took the phone away from K. However, the father’s response, that he took the phone away because K, 6, is sometimes glued to the screen, and so that he can spend quality time with the children, strikes me as the more probable reason.

[41] The available evidence suggests that both parties have a close and loving relationship with their young children and that they are each capable of looking after the children in a caring and protective manner. The children's young age suggests that taking their direct comments at face value, let alone to reduce parenting time, is highly ill-advised. The temporary order of Nakonechny J. was on an entirely temporary and without prejudice basis. I do not see why both parents should not benefit from a roughly equal parenting time arrangement. The father proposes a 2-2-3 arrangement which means that these young children are not away from any parent for too long.

Pickup and Drop Offs

[42] The father explains that the baby sitter where J stays during the day, as well as K's school is about a 5-minute drive from his residence, while the mother's current residence at her parents' place, is about a 25-minute drive away from the school and babysitter. The father submits that it would make more sense for him to pick up the children directly from the babysitter/school.

[43] The mother resists the father's proposal and suggests that the reason why it is better that drop-offs and pick-ups are done at her place is that the children need to get "settled in, change their clothes after school, and to feed them prior to being picked up by the applicant. It also helps with their anxiety in their transitions as they have always been picked up by me from their babysitters or school and [I] didn't want this to also change for them."

[44] My read of the evidence is that it is the transitions that may be a considerable source of conflict in respect of the children. What the mother calls "settling in" to her care does not make sense when the children are about to spend time with their father. Also, the extra commute is not in the best interests of the children. I find that the father is equally capable of having a change of clothes and proper after-school snack ready for the children. Furthermore, given the no-contact order, the father's proposal is the one that minimizes contact and potential conflict between the parties.

Telephone Access to the Children

[45] The current order of Nakonechny J. stipulates that "both parties will be permitted reasonable communication with the children while in the other parties' care, through telephone or electronic means. Such communications shall be for no longer than 15 minutes per day at times agreed upon by the parties."

[46] The father seeks an order that each party be permitted to speak with the children while in the other's care for maximum of two phone calls per day, not exceeding 15 minutes each.

[47] The mother seeks an order whereby the children are permitted to contact either parent while in the other's care with no restriction. She suggests that the phone remain visible and reachable to the children at all times in case of an emergency.

[48] I find, given the young ages of the children, the phone can be a source of distraction and conflict between the parties. I find that the maintenance of the status quo order is in the best interests of the children as even two different calls of 15 minutes per day, as the father proposes, can be disruptive to the care and activities of the children who may be bathing, eating, playing, watching TV or a screen, or engaging in an activity with the parent and/or sibling. Of course, in case of a very urgent inquiry or an emergency, an exception should be made, and one party may call the other and/or the children at any time. If the parties wish to mutually agree on some additional time, that is acceptable as well.

Summer Parenting Time

[49] The father seeks an order that the children spend one uninterrupted week during the summer with him, from July 24 to July 31, 2022 as he as rented a cottage on the lake. He proposes that the mother have one uninterrupted week in the summer as well.

[50] The mother opposes the father's request since the latter weekend falls on one of her parenting weekends and she states that it is her mother's birthday. She states that the children are close with their maternal grandmother and that it would be unfair for the children not to be present the weekend beginning Saturday, July 30th.

[51] There was insufficient time at the hearing of the motion to discuss the summer schedule. The parties shall set up a brief 15-minute telephone case conference with me through the Motion Coordinator to discuss this matter.

Costs

[52] Prior to knowing the outcome of this motion, the parties provided me with their submissions on costs. The father's full indemnity costs are $9,000 and his partial indemnity costs are $7,000 (77% of full-indemnity costs). The mother's full indemnity costs are $7,200.

[53] I find the father's costs somewhat high in terms of the nature of the motion. The father has been the successful party on the motion and is entitled to reasonable costs as determined by the factors in Rule 24(12) of the Family Law Rules.

[54] I find that the father should be awarded costs in the amount of $6,000 all-in, payable by the mother within 30 days of the release of these Reasons.

Order

[55] The court orders that:

(a) The children, will reside with each party on an equal basis, such that the children will reside with the respondent mother each week from Monday afternoon to Wednesday morning drop off at school or child care, and with the applicant father from Wednesday after school (pick up from school or child care) to Friday morning drop off at school or child care. The parties shall alternate weekends from Friday afternoon to Monday morning with the father's weekends starting the week of March 6, 2022. (b) Each party shall be permitted to speak with the children while in the other's care for a maximum of one call per day, not to exceed 15 minutes, or as varied by mutual agreement between the parties to a maximum of 2 calls and 30 minutes of telephone access per day. (c) Under section 112 of the Courts of Justice Act, the involvement of the Office of the Children's Lawyer (OCL) is requested to investigate, report and make recommendations to the court with regard to the children's primary residence and parenting time with each party. The parties shall complete OCL intake forms within 14 days of the release of this decision and the OCL shall provide such services as it sees fit. (d) The respondent shall pay costs fixed in the amount of $6,000 to the applicant within 30 days of the release of these Reasons. (e) The parties shall set up a brief 15-minute telephone case conference with me through the Motion Coordinator to discuss this matter. (f) By Tuesday, May 3, 2022, the parties shall provide me with a Draft Order approved as to form and content, and a clean copy of the Draft Order in WORD format for my signature. The order shall be sent via email to AnnaMaria.Tiberio@ontario.ca.

Pinto J. Released: April 29, 2022