Rafla v Fawaz, 2022 ONSC 4512

COURT FILE NO.: FS-21-101601-00

DATE: 2022 08 02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph Rafla v Natalie Fawaz

BEFORE: Fowler Byrne J.

COUNSEL: Shawn M. Philbert, for the Applicant

Karen Dosanjh, for the Respondent

HEARD: July 29, 2022 by video-conference

E N D O R S E M E N T

1The Applicant Father and the Respondent Mother were married for eight (8) years, separating on July 31, 2021. There are two children of this marriage – a daughter who is 5 years old and a son who is 3 years old.

2There are two motions before me. The Father has brought a motion wherein he seeks the following:

a) A 2/2/3 parenting schedule with exchanges at a public place, on a without prejudice basis;

b) A finding that an issue surrounding the Mother’s use of a vehicle has been resolved; and

c) A finding that the Mother’s cell phone is the property of the Father’s company.

3The Mother has brought a motion wherein she has sought the following relief:

a) That the matrimonial home be sold;

b) That the Father’s income be imputed at $150,000;

c) That the Father pay the sum of $2,077 per month in child support for the two children of the marriage; and

d) That the Mother have sole interim decision making authority with respect to the children.

4At the date this motion was argued, on consent, I requested that the Office of the Children’s Lawyer become involved.

5There has not yet been a case conference in this matter. Nonetheless, the parties have already been before this court on at least four different occasions to deal with parenting issues.

6The Father argues that the Mother’s motion should not be permitted to proceed. Given the circumstances, I agree. Rules 14(4) and 14(4.2) of the Family Law Rules are clear. No motion on a substantive issue may be served or heard before a case conference dealing with those substantive issues has been completed. The Father had an early case conference on the issues of parenting, the vehicle, and the cell phone before he brought this motion. When the issues were not resolved at the conference, leave was granted for the Father to bring his motion in advance of the case conference.

7None of the issues raised by the Mother were previously conferenced. There is nothing in the Mother’s materials that shows the issues raised are urgent or would result in a hardship if the parties were required to conference the issues first. I may have contemplated deciding the issue of child support as one of hardship, but the Father swore on July 21, 2022, that he is in the process of having an income report completed in order to determine his income and more importantly, the case conference is only three weeks away. The Mother’s motion will not proceed.

I. Parenting

A. Facts

8The Mother is a teacher and works 8:15 a.m. to 2:45 p.m. each day. She has all the usual school holidays and summers off. The Father owns and operates a tow truck business. His company covers the Greater Toronto Area, Hamilton, and Halton region. His hours are flexible and change depending on the needs of the business on a day to day basis. He sometimes works late away from the home, but he can also work from home.

9The parties’ evidence diverges with respect to their involvement with the children prior to separation. The Mother maintains that she looked after the children the majority of the time due to the Father’s erratic work schedule. She also maintains that he prioritized time at the business and his own pursuits, over his time with the children. She states she was the one that brought the children to all their extra curricular activities.

10The Father, on the other hand, claims he was a very involved parent. His flexible work hours allowed him to spend quality time with his children. He claims he brought the children to school or daycare everyday. He states he attended at most all of their extracurricular activities.

11Upon separation, the Father left the matrimonial home, where the Mother and the children remained. Over the next few weeks, he attended at the matrimonial home when the Mother was not present and retrieved his belongings. A few weeks later, on August 13, 2021, the Father returned to the matrimonial home. It did not go well as the Mother did not want the Father back in and there was an argument. The police were called. In the end, the police remained on the scene and facilitated the Mother and the children obtaining their essential items and then going to the maternal grandparents’ home. They have not returned since.

12On August 18, 2021, within 5 days of the children starting to reside with the Mother and the maternal grandparents, the Father’s counsel wrote to the Mother’s counsel seeking parenting time and suggesting an equal 2/2/3 schedule. On August 19, 2021, the Mother’s counsel wrote back and indicated that her client was agreeable to a 2/2/3 schedule. The Mother’s only concern was that the Father ensure that he was with the children when it was his time, and not leave the children in the care of the paternal aunt or paternal grandparents. Counsel then exchanged correspondence and the 2/2/3 schedule was to start on August 25, 2021.

13Unfortunately, it did not go well. The Mother’s counsel withdrew, and the Mother needed to get a new lawyer. As of September 8, 2021, the Mother’s second counsel indicated that the Mother never gave instructions to her previous counsel for an indefinite 2/2/3 schedule and the Mother was not confident in the Father’s ability to parent the children that often. The Mother then retained her third and current counsel who indicated that the 2/2/3 schedule was only supposed to be for the summer when the Father took time off.

14The parties then started taking matters into their own hands.

15In mid-September 2021, the Mother was contacted by the Peel Children’s Aid Society (“CAS”) to advise that they received a report that the eldest child was being physically harmed by the Mother. Upon investigating, the child disclosed that the Father had told the child to make these claims.

16Then the Mother withdrew the children from their school and day care for the last week of September, upsetting the current schedule and severely restricting the Father’s parenting time. The Father had to bring an urgent motion, seeking the return to the agreed upon 2/2/3 schedule.

17The matter was heard by Justice Van Melle on October 22, 2021. Justice Van Melle put the matter over to an early case conference on November 15, 2021. In the interim, she ordered that the Father have parenting time on alternate weekends from Friday to Monday and each Wednesday from after school until 6:30 p.m.

18On November 15, 2021, the parties and their lawyers attended an early case conference. No resolution of the parenting issues could be found, so leave was granted for the Father to bring a motion, in advance of a case conference, on the issues of parenting, the Mother’s cell phone and her use of a family vehicle, which was scheduled for February 11, 2022. No other order was made with respect to parenting.

19That same night, which was a Wednesday, the Father kept the children overnight. When he was supposed to have his parenting weekend on November 19, 2021, but he instead travelled to New Brunswick for work. On the following Monday, November 22, 2021, the Father picked up the daughter from school and kept her at the paternal aunt’s house until December 1, 2021, keeping her out of school. The younger child was not at day care on the 22nd, so it is not known if he would have done the same thing had the son been there. The Mother did not allow the Father any parenting time with the younger child for that week, although she states it was because he was ill. The youngest child obtained a negative COVID-19 test on December 1, 2021 and returned to daycare the next day.

20As a result of the Father keeping the child, the Mother brought her own urgent motion which was heard by Justice Dennison on December 3, 2021. At that hearing, Justice Dennison recognized that credibility was an issue between the parties but recognized that the main point of contention between the parties was whether in fact the Mother had agreed to an indefinite interim 2/2/3 schedule, to which she has now reneged, or whether it was only to last for the remaining weeks of the summer. In the end, Justice Dennison denied the Father the 2/2/3 schedule but also denied the Mother’s request that all parenting time with the Father be supervised by the paternal aunt.

21Justice Dennison’s interim order for parenting was to be in place until the parenting motion proceeded on February 11, 2022. The Father was to have parenting time on alternate weekends from after school on Fridays to Monday morning, and every Wednesday from after school until 6:30 p.m. She ordered that the Father was not to take the children out of school. She ordered that all exchanges be at the school, or otherwise at the Mother’s residence, as Justice Dennison accepted that the Mother did not have her own car. For the weekends, the non-resident parent was entitled to a 15 minute videochat with the children at a pre-arranged time, with a third party to supervise. Also, she ordered that neither party was to remove the children from the province, and the parents were not to disparage the other parent in the presence of the children.

22By this time, both parties have used the police for “wellness checks” when the other parent overheld the children and the CAS had been involved.

23Unfortunately, for reasons not important for the purposes of this motion, and due to the lack of readily available motion dates, the motion did not proceed on February 11, 2022. It was eventually adjourned to July 29, 2022.

24In this interim period, things did not get better. Exchanges did not always take place at the Mother’s house, even when school was not in session. The Father took to video-taping the exchanges when they did occur at the Mother’s house, which was readily apparent to the children. The Father claims this is because Justice Dennison recommended that a third party be present at exchanges. The Father did bring his extended family to exchanges, and he videotaped it. I am confident that this is not what Justice Dennison had envisioned.

25The parties also disagreed about who should hold the children’s health cards. Each claim the other keeps them inappropriately. The Mother alleges that the Father has refused to return the children’s health cards this summer.

26The Father has also taken a rather stern approach to the children’s extracurricular activities. He would not allow his daughter to go to the same summer camp that she has attended for the last three years. He agreed only to allow his son to continue at daycare for three days per week. Father told the management of Lifetime Gym, where the Mother and the children have been a member of since December 2021, that his children are not allowed to be there. Now, the paternal aunt has obtained a membership and has been seen observing the children at the gym. The Father now refuses to allow the eldest child to be enrolled in ballet classes, nor her before school daycare programme.

27On July 11, 2022 the Father posted the following message to the Mother on Our Family Wizard:

I do not authorize [eldest child] or [youngest child] to attend any summer camps or any activities unless for [youngest child] mondays wednesdays and friedays daycare. In school, dance classes nor even lifetime gym or anything of that sort . you have seem to forget that you need my permission prior enrolling them to anything. The kids are not allowed to go to life time gym . A legal letter will be sent to them today . So don't put urself in a bad position where you are forced to include me for their activities . You have been trying so much to disclude me from their life but I am their father and these are my rights.

28Finally, before the return of this motion, the Father was to have his parenting time on the weekend of July 22, 2022. Just before, the Father sent a message that he was too sick to take the children that weekend. The Mother kept the children but later saw social media posts by the Father that showed he was working on that weekend.

B. The Law

29The Father seeks a parenting schedule on a 2/2/3 basis. He seeks that the order be without prejudice. At the same time, he asks the court to give these battling parents some predictability and stability with respect to parenting.

30If it is stability and predictability that the Father seeks, then a without prejudice order would not be helpful. That would give either party the ability to seek a variation again, without having to show a material change in circumstances. Given the number of times that the parties have been before this court already, and the number of difficulties they have had with adhering to their interim without prejudice schedule and the exchanges, my parenting order will be made “with” prejudice. When making parenting decisions, I am not limited by the positions that the parties take or even the terms of a settlement reached: Thomas at para. 46; Richardson v Richardson, 2019 ONCA 983 at para. 26; Spadacini-Kelava v Kelava, 2020 ONSC 5561, at para. 122-133.

31When parties first separate, it is best that the children’s lives be impacted as little as possible. There will be some change, of course, but the status quo with respect to the children will generally be maintained on interim parenting orders pending trial, in the absence of compelling reasons indicating a change is necessary to meet the child’s best interests: Papp v Papp, 1969 CanLII 219 (Ont.CA.); Grant v Turgeon (2000), 2000 CanLII 22565 (ONSC). This principle has been referred to as the “golden rule”: Kimpton v Kimpton, 2002 CarswellOnt 5030 at para. 1.

32When deciding issues of parenting, whether on a temporary or final basis, the most compelling principle though, is that any order made must be in the children’s best interests, taking into consideration their physical, emotional, and psychological safety, security and well-being: s.16, Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). The Divorce Act lists a number of factors to consider when determining the circumstances of the child. One of those factors is the child’s stability.

33The status quo is established by reference to the parents’ practice or the child’s routine prior to separation: Batsinda v Batsinda, 2013 ONSC 7869 at page 19; Gray v Canonico, 2020 ONSC 5885 at para. 48. It can also be established by evidence of a consensual arrangement made after separation, or by court order: Gray at para. 48; Wu v Yu 2022 ONSC 3661 at para. 117.

34The status quo is not established by any self-help actions taken by one parent, nor is it established if any previous agreement or order is made on a “without prejudice” basis. Once an interim order is made, it should be remained in place, absent a change in the circumstances of the children that materially affects them, until the matter is tried or is otherwise resolved on a final basis: Thomas v Wohleber, 2022 ONSC 1258 at para 40-45.

C. Analysis

35The best interests of the children are my focus in making an interim parenting schedule, which should remain in place until trial or settlement. In that regard, I will apply the factors set out in s.16(3) of the Divorce Act in deciding the parenting schedule.

36The children’s need for stability and the historical care of the children are all part of the consideration of the status quo prior to separation. The children are used to seeing both parents on a daily basis, prior to separation, although the amount of time they saw the parents depend on their various work schedules. The children are also accustomed to attending summer camp and their extra curricular activities. All aspects of the children’s lives should be considered when establishing the status quo.

37Whether or not I accept the Mother’s version or the Father’s version of who looked after the children prior to separation, it is clear that both parents worked, and used childcare. I accept that the Mother’s schedule is predictable, and the Father’s schedule is flexible and at times unpredictable. I find that the children have been used to going to summer camps and being involved in a number of extracurricular activities. Right now, the children require the stability and predictability that they had prior to separation, as much as it is possible.

38I find that both children have strong relationships with both parents, and that this should be encouraged. I see evidence of the parties both supporting and undermining the children’s relationship with the other parent. They have both resorted to self-help remedies, but at the same time, have ensured that parenting time continue for both. They seem unable to communicate and cooperate on any level at this time. Hopefully that will improve.

39I have reviewed the exchange of lawyer’s letters in August 2021, and no where do I see that the 2/2/3 schedule was only to remain in place until the commencement of school. Nonetheless, while an agreement is an important consideration, it does not override my duty to ensure that any parenting schedule must be in the children’s best interests.

40At this time, I find that the Father is not able nor willing to adequately care for and put the needs of the children ahead of his own, or at least not to the extend that the Mother is.

41I find this for a number of reasons. First, it appears that he relies heavily on the assistance of the paternal extended family. Time with the extended family is not to be discouraged, but it should not be used to replace parenting time. It is not ideal if the children are with the extended family, and not with the Father during his time. The simple fact is that the Father has unpredictable working hours. This is not a criticism. The family benefitted financially by the Father’s work, but the family adjusted their care for the children around that schedule. The Mother’s schedule was predictable – she was home after school and was always around during the weekends and school holidays. The Father fully participated when his schedule allowed. That is the status quo that the children should enjoy pending a final resolution.

42Also, the Father seems unable to put the interests of his children ahead of his own need to “win” in this litigation. His handling of the Mother’s vehicle and her cell phone, as described before, show this. His unilateral change in parenting time, in spite of a court order, while not being transparent in the reason why, takes away from the predictability and stability the children require.

43Finally, the Father’s stance on the children’s participation in daycare while at school, in summer camp, and their participation in activities previously enjoyed, appeared to be more about his control of the situation, rather than what is in the children’s best interests.

44Even if I accept that the parties agreed to a 2/2/3 in August 2021, and even if I accept that the temporary parenting arrangement since October 22, 2021 was without prejudice, which I do, that does not alter what I consider to be in the children’s best interests. The Father is simply not in a position to properly support a 2/2/3 parenting schedule at this time.

45Accordingly, the parties’ parenting time should continue as it has since October 2021, but additional measures should be put into place so that the children can enjoy as much of their pre-separation status quo as is possible, especially with respect to their daycare and extra curricular activities.

II. Vehicle

46At the time of separation, the Mother had the use of an Infinity QX60 as a family vehicle to drive the children and herself around. The Father drove his 2012 Dodge Challenger and had a fleet of tow trucks for his business. On August 11, 2021, the Father removed the key from the Mother’s key ring, claiming he needed it for work. He never returned it.

47The Mother has given evidence of lots of vehicles owned by the Father, through insurance documents, that he could have used instead of taking her car. Instead, he took possession of the only car that she used, leaving her somewhat stranded and reliant on the maternal grandmother’s car.

48The Father claims the car was in his name. Nonetheless, he claims the issue is “resolved” because he no longer has the car. He clarified that it was a leased vehicle, and he simply surrendered the vehicle, on an unknown date. He claims she now has her own car.

49It is not clear whether the Mother now has her own car, but she claims that she still relies on the maternal grandparents. Also, on December 3, 2021, the Mother advised the court that she no longer wanted the vehicle as she is fearful that the Father may have tampered with it given the “death prayer” that she found in the matrimonial home, where the Father was allegedly praying that she died.

50Given that the vehicle is no longer available, I cannot make any order with respect to it. I am left though, with no explanation by the Father as to why he took the car in the first place, and why it was not returned to the Mother in a timely manner.

III. Mother’s Cell Phone

51At the time of separation, the Mother had a cell phone, which was part of the Father’s business account. On October 12, 2021, he deactivated it. The Mother had that particular cell phone number from before it was transferred to the Father’s business account. She wanted to retain it.

52The Father considers the issue resolved as the Mother was forced to get a new cell phone. I am not sure of the status of her old phone number.

53Nonetheless, I am left with no explanation as to why the cell phone was deactivated. If the Father no longer wished to pay for it, the cell number could have been transferred back to the Mother and asked her to pay for it herself. Instead, like the car, he “resolved” the issue by making sure she could not longer have the phone or number.

IV. Conclusion

54For the foregoing reasons, I make the following orders:

a) The Mother’s motion is dismissed, without prejudice to her ability to bring her motion again after the case conference;

b) The children shall reside primarily with the Mother;

c) The Father shall have parenting time as follows:

a. Alternate weekends from Friday after school, daycare or summer camp until the following Monday, when the children are returned to school, summer camp or daycare;

b. Each Wednesday at the end of school, daycare or summer camp, until 7:00 p.m.

c. If school is not in session and the child(ren) is/are not enrolled in a daycare or summer camp, the Father’s parenting time starts at 3:30 p.m. on Friday or Wednesday, as the case may be, and ends on Monday at 8:30 a.m.; and

d. As otherwise agreed to in advance and in writing.

d) Each party has day to day decision making authority when the children are with them, in accordance with 16.2(2) of the Divorce Act;

e) Each party is entitled to a video or phone chat with the children on the weekend in which the children are with the other parent; this chat shall be limited to 15 minutes and must be consistently at the same time each weekend, which the parties should agree to by the case conference;

f) All exchanges shall take place at the school, daycare or summer camp, but if they are not in session, shall take place at the Mother’s home;

g) There shall be no videotaping of the children at the exchanges; the security system camera at the maternal grandparent’s home shall remain in place;

h) Neither parent is permitted to take the children outside the province of Ontario without the written consent of the other parent, obtained in advance;

i) Neither party is to discuss the legal proceedings with the children;

j) Neither parent is permitted to disparage the other parent in front of the children and is to ensure the children are not present if any third parties disparage the other party;

k) The Mother shall be permitted to enroll the children in the before and after school care of her choice in September 2022;

l) Both parties shall ensure that the children attend their school, daycare or summer camp and not remove them except for reasons of health, or unless they agree in advance, in writing;

m) The children shall continue in the extracurricular activities they enjoyed prior to separation which includes, but is not limited to dance class for the eldest child;

n) The parties are entitled to attend these activities if they occur during their parenting time, or upon the other parties consent, in advance and in writing; the parties are encouraged to put the children’s best interests and wishes at the forefront when deciding whether to allow the other parent to attend;

o) If possible for 2022, the eldest child shall be enrolled in summer camp, as she has in previous summers;

p) The Mother shall be the custodian of the children’s health cards; the Mother shall ensure that the Father has a notarized copy of both sides of these cards for his use in the event of an emergency;

q) The parties shall continue to utilize Our Family Wizard, as ordered by Justice Dennison on December 3, 2021;

r) If still possible, and if the Mother so elects, within 7 days, the Father shall cooperate and arrange for the transfer of the Mother’s cell phone number back to her with forthwith; and

s) The parties are encouraged to resolve the issue of costs themselves. If they are unable, both are to serve and file their written costs submissions, limited to 2 pages, double-spaced and single-sided, and their Cost Outline, on or before August 26, 2022; the other side may serve and file responding submissions, with the same size restrictions, no later than September 16, 2022.

Fowler Byrne J.