COURT FILE NO.: FS-17-21712

DATE: 20220805

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mehnaz Hasan

Applicant

– and –

Anthony Bruce Joseph Gunpath

Respondent

Kathryn Smithen, for the Applicant

Ashley Lyathurai and Rachel Bushuev, for the Respondent

HEARD: July 26, 2022

PINTO J.

REASONS FOR DECISION

Overview

1The respondent father brought a motion to revise his supervised parenting arrangement.

2The applicant mother brought a cross-motion dated July 21, 2022 dealing with a plethora of issues. The mother's motion sought an abridgment of time so that her cross-motion could be heard and sought relief in respect of:

• Procedural issues (striking part of the father's affidavit)

• Adjournment of the motions (to be adjourned until August 9 or thereafter to give counsel appropriate time to prepare for the motion and cross-motion)

• Leave to file an affidavit longer than 10 pages

• The father signing authorizations re: third party professionals

• The father being required to cure his alleged contempt of a court order before being able to bring his parenting motion

• The substantive parenting issue

• Access to information and documentation regarding the children

• Contribution to the children's section 7 expenses

• Extended health care benefits

• Disclosure

• Costs

3After hearing the parties' submissions, I granted the respondent's parenting motion and dismissed the applicant's cross motion, with written reasons to follow. These are my written reasons.

Discussion

4The parties had been in a common law relationship since April 2010.

5They have two children, A, now 9, and K, now 7. A has cerebral palsy, ADHD and is high functioning with Autism Spectrum Disorder (ASD). The father has also been diagnosed with ADHD but denies that this is any reason to constrain his parenting time.

Procedural History

6The parties separated for the first time on July 17, 2017 when the mother brought criminal charges against the father. He left the matrimonial home. The charges were withdrawn.

7The mother commenced an application on August 18, 2017 and shortly thereafter, on August 24, 2017 brought an urgent motion that was heard by Stevenson J. The parties entered into Minutes of Settlement wherein the father would have supervised access with the children which would take place at the maternal grandparents' home on alternating Saturdays and every Sunday. Subsequently, the parties reconciled on October 9, 2017 and continued to cohabit in a conjugal relationship until May 14, 2020 when the separated again, this time finally.

8The father submitted that, when the parties reconciled in 2017, it was his understanding that the applicant was to withdraw her application and accordingly the father never filed an Answer. The parties never attended a Case Conference that was scheduled for October 25, 2017. From October 2017 to May 2020, the Minutes of Settlement were not followed.

9After the second separation in May 2020, the father did not see the children for 5 months. The father brought an urgent motion which was adjourned on consent. At that time, the father was residing with his parents. At a Case Conference on July 15, 2021 before O'Brien J., the parties agreed that the matrimonial home on Dale Avenue would be sold. The parties were scheduled for another Case Conference on February 4, 2020. This Case Conference was adjourned on consent as the parties had reached an agreement on the issues of disclosure and the appointment of the OCL. The next Case Conference was scheduled for June 10, 2022 but was adjourned to June 23, 2022 by which time the OCL had declined involvement in the matter. The parties were unable to reach an agreement at or following the Case Conference leading to the within motion.

10The father has been employed full time as a WheelTrans Operator for the last 20 years.

Preliminary Issues

11At the hearing of the motions, I dealt with a number of preliminary issues.

12The mother sought to strike out certain paragraphs from the father's affidavit dated July 18, 2022 on the basis that they related to settlement discussions. I struck out paragraphs 44, the last sentence of paragraph 46, paragraph 55 and Exhibit "M" to the father's affidavit. On reflection, and notwithstanding whatever comments I may have made at the hearing, I do not find that paragraph 56 of the father's affidavit should be struck.

13I denied the mother's request that the hearing of the motion and cross-motion should be adjourned or adjourned pending questioning of the father's former psychiatrist, or the father's social worker. The basis for the adjournment request was to supposedly give more time for the parties to prepare their submissions and to permit the father to respond in a more fulsome manner to the mother's cross-motion. I noted that the Case Conference which proceeded on June 23, 2022 was itself previously adjourned, and I considered it important that the father's parenting motion not be delayed further. I also do not see the father's alleged mental health issues as so pressing and relevant to the parenting issues on the motion that questioning should precede the motion.

14I also declined the mother's request that the motion not proceed because the father did not pay $1,500 in costs and had not complied with a provision of the Minutes of Settlement that required him to reimburse the mother for "the entire cost of the first year's subscription to Our Family Wizard". Given that the parties reconciled between October 2017 and May 2020, and that the Minutes of Settlement were signed in 2017, I was prepared to allow the father to proceed with his motion but advised the father that I may require him to come into compliance with the Minutes of Settlement before granting him any relief on his motion.

15On the mother's cross-motion, she filed a 242-page affidavit dated July 21, 2022, the narrative part of which was 26 pages, followed by 216 pages of exhibits. The applicant sought leave of the court to exceed the page limits imposed by the Province-wide Notice to the Profession Regarding Family Law Cases (effective September 13, 2021) that limited the narrative part of an affidavit for use on a motion to 12 pages, and exhibits to 10 pages. The mother claimed that such a lengthy affidavit was necessary to address the various issues on the motion and cross-motion. I found that it was inappropriate for the mother to have filed such a voluminous affidavit particularly as the affidavit went well beyond the parenting issues that animated the attendance. As a practical matter, I granted leave for this lengthy affidavit to be filed as it would have taken a long time for the court and parties to disentangle what paragraphs of the affidavit pertained to the parenting issues versus other issues.

Father's parenting motion

16The father's motion was to change the location and supervisors for his supervised parenting time. On consent, an Order requesting the involvement of the OCL was made on May 16, 2022, but the OCL declined involvement with the file.

17The father's current parenting time is as follows:

• Every alternate Saturday for 6 hours at the maternal grandparents' home supervised by the maternal grandparents.

• Every Sunday for 6 hours at the maternal grandparents' home supervised by the maternal grandparents.

18The father argues that he should be permitted to parent the children at his new residence, supervised by his parents (the paternal grandparents) and by Renew, a supervision agency.

19He vehemently denies the mother's allegations that he is inattentive during parenting time. He submits that the status quo parenting arrangement derived from 2017 Minutes of Settlement is outdated, and does not reflect the best interests of the children or the parties' current arrangement. The father submits that supervised parenting is a stop-gap measure and, in any event, on the motion he is simply seeking parenting time supervised by Renew Supervision and his own parents at his new residence. The father has rented a two-bedroom, two-bathroom apartment in Scarborough and took possession of the apartment on June 5, 2022. The father argues that the proposed location for his parenting is in the neighbourhood of the children's school and that it presents a safe and stable environment for the children.

20The mother resists the father's parenting motion on the basis that:

(1) The older son A's health issues are very challenging and she does not believe that the father has demonstrated that he can handle A's issues. The mother provided some examples in the past where the father has allegedly lost his temper.

(2) The father's "unpredictable and violent behavior" puts the children potentially at risk. The mother made submissions concerning the details of the incident that laid to the father being charged in 2017. The mother maintains that the father continues to lie about the violence committed during their relationship.

(3) The father has a conflictual relationship with her parents.

(4) The father has not been forthcoming about his own medical issues. The mother additionally has "historic concerns" about the father's own medical issues which have not been fully addressed.

(5) The father has a conflict with A's neurologist, Dr. Kobayashi, about A's medical care.

Decision

21The father's motion must be decided on the best interests of the children as determined by the Children's Law Reform Act, RSO 1990, c. C.12, in particular section 24. I find that much of the mother's evidence is either stale dated or simply does not rise to the level of concern that should prevent the father from exercising parenting time at his new residence and/or with his parents as supervisors. For instance, I note that the father is working full time as a WheelTrans Operator. There is no evidence that his ADHD diagnosis has presented difficulties at work. The father presented a letter from his psychiatrist who confirmed that the father does not suffer from any psychosis, mental illness or personality disorder. He is not currently under any medication and does not require treatment.

22Further, I find that the father conducting parenting away from the mother's parents is likely to reduce the level of conflict, something that is clearly in the interest of the children and both parties. I also find that the father has sufficiently addressed the mother's concerns about his alleged parenting abilities in his affidavit material and, at the end of the day, the narrow issue for this motion is a change in venue and identity of supervisors.

23Notwithstanding all the above concerns, with respect to the father's actual motion for "swapping one set of grandparents for another", the mother deposed, in her affidavit, that she wanted an unbiased professional such as Renew Supervision Services to supervise the father at her parents' place for the next 8 weeks. Thereafter, the mother proposes that counsel should discuss the next transition stage. The mother further deposes that "moving forward, we could then discuss overnights provided the Father is prepared to accept and encourage the treatment of A's seizure issue with his Neurologist, Dr. Kobayashi."

24In other words, notwithstanding what appears to be the mother's strong concerns with the father's parenting ability, a closer review of the parties' positions suggests that the parties' position are not that far apart. The mother appears to simply want more time to assess the father's parenting ability and for that to be done via an independent party rather than to simply rely on the father's submissions. This was effectively acknowledged by the mother's counsel once I made my preliminary ruling that the father's parenting motion would proceed.

25The father acknowledged that the children have not seen his parents for almost 3 years. However, prior to the second separation, the children would go often to their paternal grandparents' home without anyone else present. I find that concerns about the children's recent lack of time spent with the paternal grandparents can be overcome with the first two occasions of supervision by the paternal grandparents being conducted with Renew Supervision Services present.

26In the circumstances, I find that it is in the best interests of the children that the father's motion be granted albeit with some minor revisions.

27The parties are scheduled to have a Settlement Conference on October 3, 2022. The new supervised parenting arrangement should be in place until October 3, 2022 at which time it shall be reviewed. To be clear, if the Settlement Conference is adjourned to later than October 3, a review should still take place by October 3 and, if the parties cannot agree on the interim parenting arrangement, they may contact me prior to October 3.

Costs

28If counsel are unable to resolve the issue of costs, they shall submit costs submissions to me by August 16, 2022 which shall be no longer than 3 double-spaced pages excluding attachments such as Bills of Costs. The submissions shall be sent to my judicial assistant via email at Patricia.Lyon-McIndoo@ontario.ca. The applicant shall receive a credit of $1,700 toward what she shall potentially owe to the respondent for costs of the motion in light of the respondent's unpaid costs and Our Family Wizard subscription fees outstanding from the Order of the Honourable Suzanne Stevenson dated August 24, 2017.

29I requested the parties to send me a draft order that I signed.

Pinto J.