COURT FILE NO.: FS-26759
DATE: 20220527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ramin Karimi
Applicant
– and –
Ashley Nicole Kyron
Respondent
Megan O’Neill, for the Applicant
Gary Joseph and Vivian Merklinger, for the Respondent
HEARD: May 19, 2022
Pinto J.
Reasons for Decision
Overview
[1] The applicant father brings a motion to gradually expand his parenting time with the parties’ child who is currently 8 months old. He also seeks orders with respect to hair-follicle testing and adding his surname to the child’s last name.
[2] At the outset of the motion, the respondent asked that the motion be adjourned since:
(a) The father had failed to provide an update of his criminal record report as required by the consent order of Steele J. dated April 5, 2022.
(b) The mother requires a forensic review of a video taken by the applicant on May 10, 2022, which allegedly shows the mother assaulting the father;
(c) The mother has not had an opportunity to respond to an affidavit of the father containing the video evidence that was filed late.
[3] At the hearing of the motion, I dismissed the mother’s adjournment request and proceeded to hear the motion on its merits.
[4] For the reasons that follow, I allow the father’s parenting motion. However, I continue to reserve on the father’s request for follicle testing, disclosure of prescription histories and the child’s name change.
Facts
[5] The parties, an unmarried couple, had a relationship that ended in May 2021, by which time the respondent was pregnant. The applicant maintains that the parties cohabited during their relationship but this is denied by the respondent. The respondent gave birth to a daughter born September 7, 2021. The application was commenced on November 23, 2021. In the respondent’s Answer, she denied that the respondent was the child’s father. Subsequently, results of a paternity test dated March 24, 2022 established that the applicant was the child’s father.
[6] By the consent order of Steele J. dated April 5, 2022, following a second Case Conference, inter alia:
(a) The father was to pay child support and child support arrears on a without prejudice basis.
(b) The father was to have parenting time for one hour on Saturdays and one hour on Sundays supervised by Brayden Supervision Services or another professional supervisory agency. The father’s parenting time was to be exercised on the verandah of the mother’s residence.
(c) The father was to attend an anger management course.
[7] The father first met his daughter on April 21, 2022, some 7 months after she was born.
[8] Pursuant to an endorsement of Steele J., dated April 27, 2022, following a third Case Conference, the father exercises parenting time with the child 5 days a week on the verandah of the mother’s residence. Parenting time occurs on Tuesday, Wednesday and Friday from 8:00 a.m. to 8:30 a.m., and on Saturday and Sunday from 8:00 a.m. to 9:00 a.m.
[9] On April 14, 2022, Brayden declined to supervise if the mother was present during parenting time. The mother refused to allow the father’s parenting to occur even with a professional present if she was not also in attendance. The parties then consented to conducting parenting time on the verandah while the mother was present without a third-party supervisor.
[10] The father has been unable to exercise parenting time since May 10, 2022 when he claims that the mother assaulted him during parenting time.
[11] On consent, the parties agreed that the father’s parenting time with the child could be videotaped and used as evidence in court.
[12] The father’s first proposal for a parenting schedule was sent on September 22, 2021. The mother did not consent to any parenting time until the parties’ first Case Conference on March 14, 2022. The father first proposed a paternity test on November 17, 2021, but the mother did not accept that a paternity test be performed until February 2022.
Mother’s Adjournment Request
[13] The mother submitted that the father’s motion should be adjourned since the father did not submit the results of a criminal record check as required by the April 5 order of Steele J. The father responded that he submitted his fingerprints to the RCMP and paid the processing fees on April 5, but that the result of the criminal record check have not come back. The mother provided her criminal record check dated April 24, 2022, which shows that she has no criminal record.
[14] The mother alleges that there are concerns with the applicant’s involvement in criminal activity and that the father’s failure to comply with Steele J.’s order should preclude him from proceeding with a motion, particularly one which implicates the best interests of the child.
[15] I ruled that I was not prepared to adjourn the motion because of the father’s failure to provide his criminal record check. First, while Justice Steele ordered the father to provide his criminal record check, it remains in my discretion whether the father’s parenting motion should proceed despite the father’s non-compliance with the order. Second, I find that the father moved with reasonable dispatch in obtaining his criminal record check. Third, notwithstanding the lack of an official criminal record check, the court has evidence from the father as to his lack of a criminal record. In the father’s Form 35.1 Affidavit regarding decision-making responsibility, parenting time and contact, he indicates “not applicable” to the sections that require him to answer whether he has been found guilty of a criminal offence, or whether he is now charged with a criminal offence. The father provided a note in the Form 35.1 indicating that he was facing a charge of possession for the purpose of trafficking cocaine but that the charge was withdrawn on February 2, 2022, as confirmed by a copy of the court indictment.
[16] Accordingly, while I agree with the mother that the father’s criminal conduct, if any, may be relevant to the parenting motion, I disagree that his failure to produce his criminal record check by the time of the motion is a reason to adjourn the hearing. My decision is also influenced by the fact that it may be approximately 120 days before the criminal record check is provided. It would be unfair and not in the best interests of the child for the court to hold off on making a parenting decision until the child is several months older because the court is waiting for the father’s criminal record check.
[17] The second ground for an adjournment raised by the mother was that she sought a forensic review of a video that the father intended to rely upon at the motion purportedly showing her assaulting the father on May 10, 2022. The video supposedly shows the father holding the baby in his arms on the verandah and the mother insisting that the father return the baby so that she can soothe the child who is crying. The video purportedly shows the mother grabbing the father’s arm and digging her nails into his skin so hard that she breaks skin and draws blood. The mother argues that the father’s video evidence was raised for the first time in his May 16, 2022 affidavit at a time when she had already filed her response affidavit on May 6, so it would be unfair to proceed without the court obtaining her evidence regarding the incident. Moreover, she doubts the authenticity of the video and submits that the court should not make any determination on the video evidence until the results of a forensic analysis are produced.
[18] I rejected this second ground for adjourning the motion. I ruled that I would not be relying on the video evidence for the motion, therefore the fact that the mother wants a forensic review of the video cannot be a reason for adjournment. Instead, I noted that, in his May 16 affidavit, the father had included four photographs that he deposes were taken “immediately following Ashley’s assault and shortly thereafter.” To be fair, the mother argues that this does not dispose of the problem as the photographs emanate from the video itself. However, I find that the strict application of Rule 14(20) of the Family Law Rules (restricting the use of reply material to only new matters raised by the respondent) would not serve the primary objective of the FLRs, namely, to enable the Court to deal with cases justly. Taking guidance from Rules 2(2), (3), and (4), I conclude that I should exercise my discretion to permit the father to use those parts of his May 16 affidavit that at are not strictly in reply.
[19] I find that the impugned evidence is relevant to a recent incident of conflict that occurred during parenting time and that it would not be just for the court to adjourn the motion pending the mother’s response. At the end of the day, the video/photographic evidence and the father’s May 16 affidavit are but part of the overall evidence concerning the parenting arrangement for this 8-month-old baby. It would not be in the best interests of the child for the court to delay reviewing and possibly rearranging the parenting arrangement because the father filed some material to which the mother did not have an opportunity to respond.
[20] Having dismissed the mother’s adjournment request, I proceeded to deal with the father’s motion.
Father’s Motion
[21] The father asked that I make an order varying the temporary parenting order of Steele J. The court has jurisdiction under section 21 of the Children’s Law Reform Act, R.S.O. 1990, c.C-12, to make a parenting order where it finds that the order is in the best interests of the child.
[22] The father’s request for a revised parenting arrangement entails the following:
(a) The father would parent the child every Tuesday, Wednesday and Friday (or in the alternative any 3 weekdays per week) for a 1-hour period (this represents an expansion from the current half-hour each of these days).
(b) Additionally, the father would parent the child every Saturday and Sunday over a 3-hour period (this represents an expansion from the current 1-hour each of these days).
(c) Parenting would occur at the father’s home (this represents a change from the mother’s verandah).
(d) The mother would attend the first 3 parental visits at his home.
(e) Both parties would submit to hair follicle testing every 3 months until further written agreement or court order and that the parties would share the results with each other.
(f) Each party would provide to the other a copy of their prescription history for the previous 12 months.
(g) The child’s name should be changed to include Karimi either before or after the child’s existing surname “Kyron”.
[23] The father argues that the status quo parenting order was always a stop-gap measure and it is evident that the present “verandah parenting” arrangement cannot continue as it places the child in the middle of the parent’s conflict. Moreover, he argues that the present arrangement is not appropriate or conducive to the child developing any meaningful relationship with him. The father urges the court to expand his parenting time and permit him to parent the child at home.
[24] Section 24(1) through 24(6) of the CLRA sets out the parameters to consider when determining the best interests of the child. Primary consideration is given to the child's physical, emotional, and psychological safety, security, and well-being: s. 24(2).
[25] Pursuant to s. 24(6) of the CLRA, 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. Under s. 24(5), 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, parenting time, or contact with respect to the child.
[26] The mother strongly objects to the father’s parenting proposal. She posits a number of factors related to the best interests of the child that weigh against the father’s motion. I shall deal briefly with each factor and, in doing so, explain why ultimately, I allow the father’s parenting motion.
[27] The mother submits that the father has difficulty controlling his anger and has provided no evidence of his attendance at an anger management course as ordered by Justice Steele. The father’s 35.1 Affidavit states that he has undergone individual counselling with Andrea Barclay and enrollment in one-on-one anger management sessions at the Family Enhancement Centre. The father’s counsel stated that the father has completed the anger management course. I find that while the mother may be critical of the course chosen by the father, and skeptical that he has, in fact, completed the course, this issue is not significant enough to deny the father expanded parenting time in the best interests of the child.
[28] The mother submits that the father has a history of substance abuse and his parenting proposal is “too much, too soon.” The father submits that both he and the respondent have struggled with addiction throughout their lives and experienced multiple relapses. He deposes that, in December 2013, he stopped drinking and using drugs for 5½ years but, unfortunately, at the end of 2018, he relapsed. In November 2019, he attended a 6-week rehabilitation program. He deposes that, since August 8, 2021, he has maintained continuous sobriety. He continues to receive support from a counsellor.
[29] The father submits that the mother has shared with him that she has struggled with alcohol and drug use for the majority of her adult life, including abusing prescription medication. The father states that the mother has told him that she has attended multiple rehabilitation centres and continuously uses prescription medication. The father believes that the mother will continue to deny the severity of her addiction. To address this issue, the father proposes hair follicle testing and that the mother disclose her prescription history for the last year.
[30] I find that the mother’s information regarding the father’s alleged drug and/or alcohol abuse is not time specific. The mother does not refute the father’s position that he has maintained sobriety since August 2021. She somewhat generically refers to her concerns about the father’s “history of drug and alcohol abuse and criminal activity.” She refers to her having “previously witnessed him selling illicit drugs” and “using illicit drugs during the entire time we were dating”. These allegations concern the court, however, the father is not proposing that the court simply accept his affidavit at face value. He acknowledges his problem, appears committed to counselling and treatment, and is proposing follicle testing for himself and the mother.
[31] By contrast, I find that the mother provides a very sparse response in her motion materials concerning her alleged drug or alcohol use. The mother deposes that she does not use or abuse drugs or alcohol and that there is no reason to submit to hair follicle testing as she does not have a substance abuse problem. She deposes that she does not abuse prescription drugs. Once again, the mother puts no time line on her information. She does not specifically refute the father’s evidence that on October 17, 2020 she texted a friend to purchase a ball of cocaine, or that on December 25, 2020, she wrote the applicant a note complaining about the difficulty of her withdrawals, or hearing voices, and writing that “the drugs will always win”, or that, on February 21, 2021, she texted the father that she was still having cravings for drugs two months into her pregnancy and felt like “the drugs are going to win.”
[32] On the limited evidence presented at the motion, I find that the father’s struggles with alcohol or drugs appear to be under control. On the various parenting visits, the mother did not complain that the father appeared to be under the influence. Moreover, given that the father is actively proposing follicle testing, it would be surprising if he is actively using illegal drugs or abusing alcohol. I do not find that the father’s alleged drug or alcohol problem is of sufficient severity to deny the father expanded parenting time.
[33] The mother argues that, as the child is only 8 months old and is still breastfeeding, it is premature to provide the father with expanded parenting time. The father responds that the child’s breastfeeding can be accommodated and legally and factually it should not be a bar to his expanded parenting time. The parties agree that the child is being introduced to new solid foods every three days. The father proposes that the child’s nutritional needs can easily be met by the mother breastfeeding the child prior to the father’s parenting time, and/or the child having access to a bottle (or breast milk or formula) and solid foods during the proposed 1-hour and 3-hour visits. I agree with the father’s position. The case law supports the proposition that “the fact that [a mother] breastfeeds the child cannot rule the day”: Holomey v. Hills, 2020 ONSC 6299.
[34] The mother also raised concerns that the father lacks the capacity to parent the child on his own. While it is true that the father does not have experience parenting the child on his own, given the relatively short parenting intervals that the father is asking for, I find that it would be in the child’s best interests that the father have the opportunity to feed, play, soothe, bathe and put the child to sleep as needed. These are fundamental parental activities and all new parents start out with little experience. The father has taken a parenting course and will have spent more than 10 parenting sessions with the child. It is not clear what more the father can do at this stage to demonstrate that he is ready to parent the child. The mother’s position is self-serving. She is using the status quo against the father’s parenting request, but does not appear willing to change the status quo.
[35] The mother’s residual concerns having to do with the unsuitability of the father’s residence (he has a motorcycle in his living room, and a dog) are not material. If the motorcycle is a hazard to a young child, it should be immediately moved. The father’s counsel advised that the father is turning his father’s office into a nursery, and the family dog is trained.
[36] The mother also claims that it is not clear why the father wants additional parenting time since he does not take advantage of the parenting time he currently has. The father responds that he has shown up late once and has left early if the child is sleeping as he does not wish to wake up the child.
[37] Above, I have dealt with a number of factors and explained why I disagree with the mother’s position that the father does not deserve expanded parenting time. However, on a parenting motion, it is still incumbent on the court to determine whether the option being put forward by the moving party, here the applicant father, is in the best interests of the child.
[38] I find that the father’s parenting proposal is a reasonable one and in the best interests of the child for the following reasons.
[39] It is in the child’s best interest that she not be placed in the middle of the parent’s conflict. The father proposes that his parenting time occur at his residence without the mother present. I find that the father is currently equipped to parent the child for a few hours at a time, as per his proposal. He will have a greater opportunity, given his residential setting, to attend to the child’s needs. He will have all the amenities of his home to provide for the child, as opposed to conducting parenting on the mother’s verandah. The evidence demonstrates that the mother continues to have very strong reservations about the father’s parenting ability and it appears to be a recipe for greater conflict to maintain the status quo. I only rely minimally on the photographic evidence of what purportedly occurred on May 10 to arrive at the conclusion that having both parents be present when the father’s parenting occurs is problematic for the child and creates an artificial parenting environment for the father as the mother is always present.
[40] There is no “tender years doctrine” precluding very young children being parented by their fathers: Young v. Young [cite]. Yet, many of the mother’s claims suggest that the father is inherently unable to parent a young child particularly as the child is being breastfed.
[41] As set out in Ferreira v Ferreira, 2015 ONSC 3602:
The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.
A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont.Ct. (Gen. Div.))
[42] I find that it is in the best interests of the child that parenting with her father be expanded as, even at this young age, she should have the opportunity to attach to her father in a meaningful way while still being mindful of her physical needs to be breastfed by the mother. I find that this can be accomplished by a modest increase in the father’s parenting time. He is not, at this point, asking for full days or overnight parenting.
[43] For a young child (8 months), the Association of Family and Conciliation Courts - Ontario (AFFC-O) recommends that the non-residential parent spend frequent time for the child for period long enough to engage in all caretaking activities. The AFFC-O plan further recommends that parenting time gradually expand and occur away from the residential parent’s home.
[44] At the end of the day, the mother’s submission devolves to arguing that this is a very young child who needs to be with her mother, the father has a troubling past and that he is ill equipped to look after this child unsupervised in his own home, particularly as the child is being breastfed.
[45] I find that the mother’s concerns, while understandable, have been sufficiently answered and refuted by the father and the child’s best interests are considerably better met via the father’s parenting proposal rather than the status quo.
[46] The focus of the motion before me was primarily around the father’s request for expanded parenting time. I consider it a priority for the parents to receive this decision on parenting as soon as possible. However, I require more time to consider the three other issues raised on the motion: hair follicle testing, disclosure of prescription histories and a potential name change for the child.
[47] An Order shall go in the form of paragraph 1 of the father’s Notice of Motion dated May 3, 2022. The order takes effect commencing Tuesday, May 31, 2022. The parties shall present me with a clean draft order in WORD prior to Tuesday, May 31, 2022.
[48] The issue of costs shall be addressed after I have released my decision concerning the remaining aspects of the father’s motion.
Pinto J.
Released: May 27, 2022
COURT FILE NO.: FS-26759
DATE: 20220527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ramin Karimi
Applicant
– and –
Ashley Nicole Kyron
Respondent
REASONS FOR DECISION
Pinto J.
Released: May 27, 2022