, 2022 ONSC 3607

COURT FILE NO.: FS-20-000051-00

DATE: 2022 06 16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ali Amiri v Sana Nazer

BEFORE: Fowler Byrne J.

COUNSEL: Mira Pilch, for the Applicant, Moving Party

Satish Balasunderam, for the Respondent, Respondent Party

HEARD: May 13, 2022

E N D O R S E M E N T

1The Applicant Father has brought this motion for additional parenting time. In particular, he wanted to commence a 2/2/3 schedule. He also sought additional orders ancillary to parenting.

2Fortunately, the parties were able to agree on a number of matters. The remaining issues are the regular parenting schedule, the summer schedule, possession of important documentation with respect to the children, and the use of OurFamilyWizard.com as a tool of communication between the parties. The Office of the Children’s Lawyer has already been requested to become involved.

I. Issues

3The following issues must be determined:

a) What is an appropriate parenting schedule pending trial?

b) What parenting time should the Applicant have this summer?

c) Who should hold on to the child’s important documents?

d) Should the parties use Our Family Wizard for communication?

II. Analysis

4The parties started cohabitating in 2017 following an Islamic marriage and were married civilly on April 3, 2019. They separated on February 28, 2020. There is one child of the marriage, MA, born August 23, 2018. The child is almost four years old and will be starting junior kindergarten this September.

5Following separation, the Father was removed from the home, due to criminal charges. In April 2020, they appeared before Justice Kumaranayake who was satisfied that the Father’s motion for parenting time was urgent and agreed to hear a motion brought by each party, despite the pandemic shut down of regular court operations, and before a case conference. After hearing submissions, on April 21, 2020, Her Honour ordered that the Father have parenting time with the child on Tuesdays, Thursdays, and Saturdays from 10:00 a.m. to 3:30 p.m.

6The matter then came before Justice Harris on October 6, 2021, where the parties agreed to a graduated interim parenting plan wherein the Father would have parenting time each Tuesday from 2:30 p.m., after day care, until 6:30 p.m., and then alternate weekends from Saturday at 10:00 a.m. to Sunday at 6:30 p.m. On the alternate weeks, the Father would have parenting time on Thursdays from 2:30 p.m., after day care, until 6:30 p.m. This order was based on Minutes of Settlement. I was not provided with a copy of those Minutes.

7The parties then appeared before me for an early case conference on February 7, 2022. It is not clear why neither party sought a case conference before this date. At the early case conference, the father’s parenting motion was adjourned to this date. At the hearing of this motion, on May 13, 2022, a first case conference was booked for August 24, 2022.

8The child is registered to start junior kindergarten in September 2022 at Fairview Public School. The Mother has arranged for before and after school care through PLASP.

A. Regular Parenting Schedule

9The parties have not yet had a case conference and there have already been two parenting orders. If the Father is successful, this will the third order in two years. The first order was made after arguments were made, and the second order was made on consent. It does not appear that this latter order was “without prejudice”.

10In order to vary an interim order, the Father must show a material change in circumstances that compels a change in the parenting arrangements that is in the best interests of the child: Radojevic v Radojevic 2020 ONSC 5868 at para.18.

11To expand, the change in circumstances has to have occurred since the last interim order. The change must be material, in that it materially affects the child. The material change must raise exceptional circumstances where immediate action is required, and any order varying the previous order must still meet the best interests of the child: Thomas v Wohleber 2020 ONSC 1258 at para. 45; Innocente v Innocente, 2014 ONSC 7082 at para. 45.

12This makes sense. The purpose of an interim parenting order is to establish some stability for the child until which time the parents can sort out a long term plan, or their dispute can be tried. The child has already experienced a change when his or her parents separated. It is not beneficial for the child’s living arrangements to change multiple times pending trial, and then subject him or her to another change once the decision has been made, unless there are compelling reasons and exceptional circumstances.

13The Father submits that there are two material changes. First, the child is scheduled to start junior kindergarten in the fall. Second, he has aged since the last order.

14With respect to the first alleged change, this change has not yet occurred. Even if it had though, I do not find that this change in school to be material. The child was already in daycare, and the parenting schedule revolved around the daycare schedule. The school is a five minute drive from the daycare. This will not impact the Father’s parenting time in any significant manner.

15With respect to the age of the child, he or she has only aged eight months since the last order. The passage of time and increased maturity of a child does not in and of itself constitute a material change in circumstances: Coppin v Arboine 2018 ONSC 7149 at para. 39. Aging may constitute a material change, but this usually occurs when dealing with adolescent children, and children who have aged a number of years and changed in their level of development and maturity: Coppin at para. 40; Warr v Riettie 2019 ONSC 1868 at para. 16.

16The Father argues that his increased parenting time with the child is beneficial for the child. He speaks about “training” the child in sports, such as gymnastics or soccer, and not having enough time for this training. He also alleges that he taught his child to spell, to count, to paint and teaches him or her organizational skills. He makes no mention of the Mother’s role in the child’s life. His desire and ability to parent has not changed – he simply wants more time to do it. This is not a material change.

17The Father has relied on Kirichenko v Kirichenko 2021 ONSC 2833, which affirmed Rigillo v Rigillo 2019 ONSC 548 in support of the “maximum contact principle”. This case states that a child should have as much time as possible with both parents, as is consistent with his or her best interests. Unfortunately, these cases do not assist the Father. In Kirichenko, the father brought an interim motion seeking to vary an interim order, granting him more parenting time. In that case, the court reiterated the law that a material change of circumstances was required and found no such material change. Instead, the court varied the interim order because it found that the previous order was time limited and that it was to be reviewed and subject to change after a specific event or period of time. The order of Justice Harris is not that type of order. While this order does indicate that access was to commence after daycare, I do not infer that it requires a change when daycare ends. As I indicated, the daycare is only five minutes away. The child’s life will not significantly or materially change by changing to kindergarten.

18The Father also relies on Lamacchia v Carullo 2022 ONSC 687 wherein Justice Kaufman granted a 2/2/3 parenting schedule, following the AFCC Parenting Plan Guide that suggests such a schedule is indicated for children aged 3 to 5. In that case, the interim order was based on “without prejudice” Minutes of Settlement. In addition, that settlement was reached when the child was 9 months old and was now three years old. Neither one of these factors are present in this case. The Order of Justice Harris was not “without prejudice”. In addition, the previous interim order was not even a year old.

19Accordingly, there will be no variation to the regular parenting schedule.

B. Holiday Schedule

20There is currently no order in place with respect to holiday time. As indicated, the parties have agreed to parenting time on specific holidays. The Father also wants each party to have 7 consecutive days in the summer of 2022.

21The Mother believes that the expansion of overnight access should be more gradual. She is agreeable to the Father’s request commencing in the summer of 2023, but for this summer, they should start with expanding the Father’s regular access weekends. As it happens, the Father’s regular weekend access visits this summer land on two long weekends. She is agreeable that for the Canada Day weekend, the Father’s access start on Thursday after daycare until Sunday at 6:30 p.m. For the civil holiday on August 1, 2022, she proposes that the Father’s access be from Friday after daycare until Monday at 6:30 p.m.

22Right now, the Father has one overnight parenting visit every two weeks, plus one to two visits during the weekday evenings. While I agree the Father should have more time over the summer, I agree that seven consecutive days right away is premature. A more gradual approach should be taken. The Mother’s proposal is reasonable as it provides for two separate 3 consecutive overnight visits. I would add an additional overnight visit for the weekend of August 27, 2022, which will provide the Father with 7 additional overnight visits for this summer. Next summer, each party will be entitled to 7 consecutive overnight visits.

C. Child’s Documentation

23The Father requests that possession of the child’s important documents be held by one parent for a year, and then with the other parent the next year. He also asks for an order that both parents be required to sign any passport application, and that the fees be divided evenly.

24The Mother is agreeable to an order that both parties are required to sign any passport application, and that they divide the costs equally.

25With respect to the child’s documents, at this interim stage, it is appropriate that one party hold the documents, and the other have notarized copies. Given that the child lives predominantly with the Mother, the Mother should hold the documents.

D. Our Family Wizard

26The Father wishes the parties to use Our Family Wizard for their communication. The Mother objects because of its cost. She states she only earns between $40,000 and $45,000 and the Father is unemployed and not paying child support. She claims that the parties can communicate in writing, and each party can keep their own record of their communications.

27This relationship is rife with allegations of domestic violence, manipulation, and fraud. Given the nature of the allegations, it is important that communications be preserved. In the usual course, I would order that Our Family Wizard be used, and Father bear the costs of the communications on behalf of both parties, but I am hesitant to impose any additional financial obligation on the Father when he is not even paying his child support, especially when such a burden is not necessary.

28Accordingly, I do not believe Our Family Wizard is appropriate at this time.

III. Conclusion

29Accordingly, I make the following orders on consent:

a) The parent who is not caring for the child on his or her birthday shall be able to have a brief video visit with the child on his or her birthday, and this shall be accommodated by the other parent;

b) If the parent’s birthday falls on a day when he/she does not have the child, the parent with a birthday shall be able to have a brief video visit with the child on the parent’s birthday, and this shall be accommodated by the other parent;

c) the child shall spend holiday evening with the parent who is caring for him or her and the other parent shall be able to have a brief video visit with the child on Halloween, Eid, Christmas, and this shall be accommodated by the other parent;

d) Each party shall make enquiries and be given information by the child’s teachers, school officials, day care providers, dentists, health care professionals, camp counsellors and others involved with the children;

e) Each party shall obtain their own copies of the child’s school or day care calendar and notices;

f) In the event that the parties wish to obtain a passport for the child, the Mother shall make the application, and the Father shall also sign; the cost of this passport shall be divided evenly;

30For the foregoing reasons, I also make the following orders:

a) Paragraph 1 of the Father’s Notice of Motion dated March 25, 2022, is dismissed;

b) Subparagraph 2(d) of the Father’s Notice of Motion, dated March 25, 2022, is dismissed;

c) For the summer of 2022, the Father shall have the following additional holiday time, which shall override the regular parenting schedule:

1. from after daycare on June 30, 2022, to July 3, 2022, at 6:30 p.m.;

2. from Friday July 29, 2022, after daycare until Monday, August 1, 2022, at 6:30 p.m.;

3. from Friday, August 26, 2022, after daycare until 6:30 p.m. on August 28, 2022;

d) Commencing the summer of 2023, each parent shall have seven (7) consecutive parenting days; on all odd-numbered years, the Father shall notify the Mother of the week he wants by May 1, following which the Mother will notify the Father of the week she will be taking within seven days thereafter; the Mother will have first choice on all subsequent even-numbered years, notifying the Father of her choice of week by May 1, with the Father notifying the Mother of his choice within seven days thereafter;

e) Subparagraph 3(a) of the Father’s Notice of Motion, dated March 25, 2022, is dismissed;

f) The Mother shall hold the child’s OHIP card, passport (when he or she has one), birth certificate and any important government documentation; within 30 days, the Mother shall provide a notarized copy of these documents to the Father, at her own expense;

g) Paragraph 4 of the Father’s Notice of Motion, dated March 25, 2022, is dismissed; and

h) The parties are encouraged to resolve the issue of costs themselves; if they are unable, the Mother shall serve and file her written costs submissions, limited to 2 pages, double spaced and single-sided, plus Costs Outline and any offers to settle no later than July 4, 2022; the Father shall serve and file his written costs submissions, with the same size limitations, plus Costs Outline and any offers to settle, on or before July 18, 2022; if the Mother wishes, she may serve and file reply submissions, limited to one page, on or before July 24, 2022.

Fowler Byrne J.