Court File and Parties

COURT FILE NO.: D-23,145/20 DATE: 2022-05-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Anne Fiddes Applicant – and – Joel Eugene Zazulak Respondent

COUNSEL: T. Kestle, for the Applicant/Moving Party G. Brouillette, for the Respondent/Responding Party

HEARD via Zoom: April 13, 2022

DECISION ON MOTION

BOUCHER J.

Introduction

[1] The parties separated on or about February 12, 2019. They agree that shortly after separation they implemented a 2-2-3 parenting schedule that remains in place to this day. The applicant moves the court for an order granting her sole decision making, reducing the respondent’s parenting time and setting child support. The respondent asks that the motion be dismissed, and in the alternative, that the parenting time recommended by the OCL be implemented.

[2] The main issue to be determined at this interim stage is whether the current parenting plan is in the children’s best interests. If it is not, I must determine what orders need to be made. I must also address the issue of child support.

Background

[3] The parties disagree on when they started living together but it appears they lived together for several years prior to their marriage on May 26, 2012. The children of the marriage are Nathan Zazulak (born July 08, 2013, hereinafter “Nathan”) and Charlotte Zazulak (born February 25, 2015, hereinafter “Charlotte”).

[4] The applicant is employed full-time as a nurse practitioner, the respondent, as a systems analyst with Vale.

[5] The parties resolved pursuant to a separation agreement most of the issues flowing from their separation. Only parenting issues and child support remain to be resolved on a final basis.

[6] Although I could not find an exact start date in the materials, the parties agree the current 2-2-3 parenting arrangement has been in place since shortly after the separation.

[7] In May 2019 the respondent saw a psychiatrist and was provisionally diagnosed with paranoid personality disorder. The psychiatrist recommended antipsychotic medication to “take the edge off the paranoid ideas” but recognized that “dramatic effect is unlikely.” The respondent was reluctant to take the medication and accordingly the psychiatrist could not assist him further. Counselling was recommended, which the respondent had already started.

CAS involvement

[8] The Children’s Aid Society of Sudbury and Manitoulin (hereinafter the “Society”) has been involved in the lives of this family three times. The first was in December 2016 when the applicant contacted them concerning an altercation during which the respondent threw her mobile phone, which ricocheted and hit Nicholas, and then he threw it in the toilet. No injuries were reported. The Society recommended anger management counselling for the respondent and couples’ therapy. They closed their file in February 2017 because there had been no further incidents reported.

[9] In April 2019 the Sudbury police contacted the Society because Nathan had been found wandering unattended on a busy street at 6:30 a.m. He had apparently been walking for 25 minutes to attend Toys “R” Us. The respondent refused to sign a consent to enable the Society to speak with his family physician regarding allegations of mental health issues. The applicant further expressed concern about the respondent not properly providing Nathan his asthma inhaler and the state of uncleanliness of the respondent’s home. The Society did not find the respondent’s mental health negatively impacted his parenting and closed the file.

[10] In September 2019 the Sudbury police contacted the Society about an unfortunate incident that occurred during a parenting time exchange. As a result of a disagreement the respondent laid down in the rain in front of the applicant’s vehicle and contacted his parents to assist. He left before the police arrived. The respondent took responsibility for the incident and indicated he was having difficulties because of the separation. He mentioned he was taking medication and attending counselling. The Society recommended third-party supervision of the exchanges. This was put in place, and they closed their file a month later.

COMPASS involvement

[11] In the spring of 2020, the parties completed intake forms for COMPASS, which provides, among other things, neutral third-party supervision of parenting time exchanges. This supervision started at their offices in October 2020 and continues to this day, every other week. The applicant would like to continue with these services. The respondent does not believe they are necessary.

[12] On several occasions in the fall of 2020, the respondent failed to respect the protocol put in place by COMPASS. Specifically, he entered the building before his allotted time. In December 2020, COMPASS sent a letter to the parties pointing out that if the respondent did not follow their protocols, they would terminate their involvement. No further incidents have been reported.

The Office of the Children’s Lawyer

[13] The applicant started the within application in October 2020. The involvement of the OCL was requested pursuant to a consent order on January 18, 2021. The OCL accepted the appointment and conducted a clinical investigation pursuant to s. 112 of the Courts of Justice Act. Her report was filed with the court on November 01, 2021.

[14] In her report the clinician recommended the following:

a. That applicant has sole decision-making authority;

b. That the respondent has parenting time with the children as follows:

i. alternate weeks from Thursday after school until Monday morning and overnight on Wednesday in the opposite week;

ii. One week of vacation per month in the Summer; and

iii. Half of the Christmas holidays.

c. That parenting time exchanges be supervised or take place at their school or daycare; and

d. That all communications between the parents be in writing and resume immediately.

The Positions of the Parties

The Applicant

[15] The applicant suggests that within a few months of implementing the parenting arrangement she felt it did not work in the children’s best interests. She unsuccessfully tried to discuss changes with the respondent.

[16] The applicant believes the respondent is not properly treating his mental health issues and this has an impact on his ability to parent the children. She suggests he lacks insight, noting that at his questioning in 2022 he denied a formal diagnosis of paranoid personality disorder, despite the provisional findings in May 2019. She is concerned because he has not returned to a psychiatrist since that diagnosis. She believes he is not taking his anti-psychotic medication. Added to this is her concern about his use of alcohol (3-4 times per week) and cannabis (1-2 times per week).

[17] The applicant believes the children are not receiving the best possible care in the respondent’s home. He tried to give away their family dog, which she ultimately retrieved. The children are not adequately clothed, not sleeping enough (teachers have noted they have been tired in class), their personal hygiene is substandard, and the respondent does not provide proper supervision. In support of the last point, she highlights Nathan’s unattended 6:30 a.m. Toys “R” Us walk as well as an incident in which Nathan fell into the respondent’s pool.

[18] She also suggests the respondent is not careful with Nathan’s food allergies and is not giving him his asthma inhaler as needed (noting he has had the same three inhalers since 2020). She does not believe the respondent encourages the children to do homework and they are accordingly behind when they return to her home. She is worried that Charlotte has night terrors at his home and often must sleep with Nathan. These concerns are in addition to the details I have already reviewed regarding family violence in 2016 as well as problems with parenting time exchanges. Regarding the latter, the applicant states that when COMPASS is not available, she arranges alternate third-party supervision.

[19] She also observes that although they had an agreement to equally share the children’s expenses, the respondent has not reimbursed her for thousands of dollars of expenses, the last reimbursement taking place in the fall of 2020.

[20] Finally, the applicant seeks sole decision-making. She points out that the respondent is responsible for a complete breakdown in communication. She suggests he does not respond to her emails regarding the children. She also asks that the respondent’s parenting time be reduced to alternate Thursdays to Sunday evening, which is less than that which was recommended by the OCL clinician. She seeks full child support in this scenario.

The Respondent

[21] The respondent believes the current parenting plan is in the children’s best interests. Other than Nathan’s asthma and allergies, the children are in good health and are happy. He suggests Nathan’s allergies is the reason why he surrendered the family dog. He denies not paying appropriate attention to his allergies.

[22] He acknowledges the provisional diagnosis of paranoid personality disorder and suggests he has been regularly attending counselling and taking medication. He admits he does not take his medications everyday as prescribed. This is confirmed by the print-out of his medications from the pharmacy which shows he has continually re-filled his anti-psychotics in recent years but not enough to cover the one pill per day as prescribed. He currently feels well, like he is in remission.

[23] He acknowledges he has not always behaved appropriately in the past. He notes that all the serious conflict between the parties, which I have already summarized, took place before the end of 2019. In addition to ongoing counselling, he has taken several courses such as anger management (July 2020), Triple P parenting (July 2020) and mental health first aid (May 2021). He explains his problems with COMPASS as misunderstandings on his part and has followed the guidelines since the warning letter was sent in December 2020.

[24] The respondent worries that if the applicant is granted sole decision-making, she will shut him out of the children’s lives. He agrees he limits his communication with her because he feels she dictates everything and triggers him.

[25] He denies hygiene issues with the children and admits that the weather caught him off guard a few times over the past three years. He suggests this explains the applicant’s concerns about the children’s outerwear. He denies that he was in his workshop when Nathan fell in the pool. In fact, he suggests he saw him fall from inside the house and was on his way to help when Charlotte came looking for him. His evidence is that the pool had been emptied for the winter.

[26] When Nathan left the home and walked to Toys “R” Us in April 2019, the respondent explains that he initially thought Nathan was hiding and playing a game. He changed the locks at his residence so that this cannot happen again.

[27] He admits to consuming a glass of wine from time to time when the children are with him but denies this minimal consumption of alcohol impairs his ability to parent. He admits to smoking cannabis but suggests it is never done in the presence of the children.

[28] The respondent cautions that the OCL report should be given limited weight on an interim motion. He encourages me to avoid giving too much weight to the conclusions the clinician reaches and to rather consider the objective information she gathered. This includes that the children are happy with both parents, are doing well academically, do not have behavioral issues and no concerns about the children’s hygiene or parenting have been raised by the teachers.

The Law

[29] The Divorce Act sets out the following guidance for courts that are called upon to determine the best interests of the children of the marriage:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[30] When considering parenting orders at the interim stage, courts are reluctant to interfere with a status quo that is working in the children’s best interests. Put another way, absent compelling evidence justifying an immediate change, the status quo should normally be maintained until trial (see for example Shotton v. Switzer, 2014 ONSC 843 paras. 13-15).

[31] The reasoning behind this is two-fold. Neither party should use the interim motion to gain an advantage in the litigation. More importantly, courts try to change parenting orders as little as possible to avoid children bouncing back and forth between regimes prior to a final order. To be clear, however, where their best interests require a change, such a change will be made, even at the interim stage.

Analysis

[32] The current status quo has been in place for about three years, since early 2019. The most serious incidents between the parties, those that necessitated the involvement of the police and the Society, occurred prior to the end of 2019. The respondent acknowledges he did not always respond appropriately to stressors. He is attending counselling, has taken three other courses, and is taking his anti-psychotic medication, though not exactly as prescribed.

[33] I find these steps taken by the respondent, together with the implementation of third-party supervision of parenting time exchanges, helped to reduce if not eliminate the major conflict between the parties. Indeed, when interviewed by the OCL clinician, neither of the children seemed impacted by these earlier incidents. Neither of them reported any ongoing issues with their parents, such as yelling or speaking poorly of each other.

[34] I appreciate the OCL report contains recommendations regarding parenting orders. These recommendations have not been tested at trial and I must therefore be careful with the weight they are to be attributed at this stage. The OCL report otherwise contains many facts which are helpful, some of which are summarized earlier in these reasons. Sometimes these facts are serious enough that the court will disturb a status quo in the children’s best interests, to protect them, for example, from harm. This is not a situation, however, where the OCL clinician is recommending an immediate change to the parenting regime.

[35] I find the respondent’s ongoing management of his paranoid personality disorder is not negatively impacting his ability to parent the children. It is clear to me that the parties have different parenting styles; however, it is equally clear the children are doing well under both regimes. Their grades are very good. The teachers do not report any issues with hygiene or clothing or parenting. Neither child expressed any concerns to the OCL clinician about either parent’s care or home.

[36] On this record I find that the applicant has been mostly responsible for major decisions involving the children. The respondent admits that he responds to her emails only when he feels an answer is required. He has effectively acquiesced to her judgment, for example, on matters involving medical care. Despite his failure to respond, she has continued to keep him apprised of these important events. Although their communication should be improved, such as by using third-party communication software, at this interim stage it is not impacting the best interests of the children such that a change to the status quo is required.

[37] Having considered the best interests test as set out above, and for these reasons, I find the long-standing status quo is in the children’s best interests. The applicant’s request to change the parenting regime is therefore dismissed.

Child Support

[38] The applicant’s claim for child support in her motion is based on an arrangement that would see the respondent paying full Guideline support. I declined to interfere with the status quo. The parties will accordingly continue to share their time with the children. The respondent asked in his factum for child support to be based on this shared parenting arrangement, but no submissions were made in this regard.

[39] In shared parenting situations, the Federal Child Support Guidelines (hereinafter the “Guidelines”) require me to undertake the analysis set out in s. 9 of the Guidelines which reads as follows:

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[40] The table amounts payable by each parent would be $1,692 per month for the applicant (based on her 2021 income, not including the CERB, of $118,04.78) and $1,505 per month for the respondent (based on his 2021 income of $102,763.80). This would result in the applicant paying the respondent $187 per month in child support.

[41] Neither party made submissions on the increased costs associated with the shared parenting time arrangement.

[42] The financial statements delivered by the parties are over a year and a half old. It appears the applicant is spending right up to her income, the respondent, just under. They claim almost equal expenses for groceries and daycare. The applicant spends $200 per month on the children’s clothing; the respondent, $100. The applicant spends $40 per month on school supplies; the respondent, $25. The respondent does not claim any babysitting expenses, while the applicant claims $500 per month. The applicant claims $50 per month in summer camp expenses, while the respondent does not claim any.

[43] This results in the applicant claiming $718 more than the respondent per month in expenses relating to the children. In her affidavit the applicant suggests she has sent to the respondent thousands of dollars of expenses related to the children, though no receipts were provided. She submits he has not paid his share of these expenses.

[44] On this record, and in the absence of submissions from the parties on this issue, it would not be appropriate to order the applicant to pay monthly child support to the respondent. The request for child support is accordingly dismissed, without prejudice.

Conclusion

[45] For these reasons, the applicant’s motion is dismissed.

[46] If the parties cannot agree on costs, the respondent may deliver costs submissions of no more than two pages, double-spaced, not including a bill of costs and any offers to settle, within twenty days of this decision. The applicant will have thirty days to deliver costs submissions of no more than two pages, double-spaced, not including a bill of costs. There will be no reply without leave. Submissions delivered outside these timelines will not be considered.

The Honourable Mr. Justice P.J. Boucher Released: May 04, 2022