Czyzewski v. Fabro, 2022 ONSC 4883

Court File and Parties

COURT FILE NO.: FS-21-00026481-0000

DATE: 20220823

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan Czyzewski Applicant

– and –

Sarah Fabro Respondent

COUNSEL:

Gary S Joseph & Alice Parama Counsel, for the Applicant

Michelle M Abel Counsel, for the Respondent

HEARD: August 18, 2022

Endorsement

SHORE, J.

Overview

The Applicant Father is seeking an order that the parties’ 20-month year old child reside with him on a week-on/week-off schedule. The schedule would consist of the Respondent Mother having parenting time with the child on Wednesdays overnight during the Father’s parenting week with the child. The Father is not seeking time with the child during the Mother’s week with the child. The Father is also seeking an order that the child be permitted to travel with him to Mexico from November 21-28, 2022.

Background

The parties were involved in a relationship, but they were never married. They did not live together. They are the parents of Benjamin Fabro-Czyzewski, born December 1, 2020 (“the child”). The Father also has a child from a previous relationship, Madison, who is 9 years old. Madison resides primarily with the Father. The child has had his primary residence with the Mother, with increasing parenting time with the Father.

The Father’s current parenting time with the child is as follows:

Week 1:

a. Tuesdays and Thursdays from 9am-5pm; and

b. Friday from 6pm until Saturday at 6pm.

Week 2:

a. Saturday from 6pm until Sunday at 6pm.

This case is about what schedule is currently in the best interest of the child. Both parents are good parents. They both clearly love Benjamin and they both want to maximize their time with their son. I am satisfied they are both motivated by what they believe is in the best interest of the child.

The Father wants to move to a week about parenting schedule with the child. The Father has been able to adjust his work schedule so that he can care for Benjamin in week 1 and then work hard in week 2, when Benjamin is in the Mother’s care. The Father is a freelance worker and works as an image and camera technician. He has arranged his schedule to work every other week (12 to14 hour days), with a week of very light work in between, during which he is available to care for Benjamin. The Father’s evidence is that during his alternate work week, it is very difficult for him to have parenting time with Benjamin. He is not asking for any parenting time with Benjamin during the second week.

The Mother’s position is that given the child’s age, he should not be separated from her for more than two or three days at a time. Ideally, she submits, this would be true for the Father as well, but the Father’s work schedule only allows for him to spend time with the child in alternative weeks.

Both parties have criticized the other parent. The Mother alleges that historically, the Father would cancel or not show up for his parenting time. I accept that the Father had difficulty exercising the parenting time because of his work schedule, but he has made great efforts to address this issue by restructuring his work weeks. The Father alleges that the Mother has played the role of “gatekeeper” and has not permitted him equal time with the child. I am not making any determination on what may or may not have happened in the past, but it seems clear that both parties recognize the importance of the other parent’s role in the child’s life and that the Mother was struggling to find a consistent and predictable schedule that worked for Benjamin. The schedule has evolved over time, with increasing time with the Father as Benjamin got older. I do not find the Mother has unreasonably restricted the Father’s time with the child. Therefore, the parties’ criticisms of the other, as set out above, have not affected my decision with respect to what parenting schedule is currently in the best interest of the child.

If the parties and the child continue on the current path, I can see the schedule moving into an alternating week schedule. However, is an alternating weekly schedule currently in the best interest of Benjamin?

Legal Framework

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 in the best interest of the child. Section 24(1) through 24(7) of the Children’s Law Reform Act 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.

Section 26(6) provides that in allocating parenting time, the Court shall give effect to the principles that a child should have as much time with each parent as is consistent with the best interests of the child. However, there is no presumption that maximum parenting time equates with equal parenting time.¹ The maximum contact principle cannot be used to detract from the best interest of the child inquiry.

I have considered the factors set out in section 24. Benjamin has a strong and loving relationship with both parents. The parties are both able to offer him a loving and stable home environment. Both parties have a support system that includes extended family and grandparents. Given the young age of the child, and the fact that the Father’s parenting time with the child has been increasing as the child gets older, the history of care is not as important in this case as it may be in other cases, but still relevant (explained further below). Both parents seem to respect the other parent and understand the importance of the other parent’s role in Benjamin’s life. As set out above, I find both parents are willing and able to meet the needs of the child.

The list of best interest considerations is not exhaustive but calls for the court to take a holistic look at the child and his needs.²

Analysis

This case comes down to the child’s age and stage of development, which includes the child’s need for stability.³ What schedule is in the best interest of this child, in these circumstances, and at this age and stage of development?

The Mother referred to the decision of Justice McGee in Melbourne v. Melbourne, 2022 ONSC 2299, 72 R.F.L. (8th) 84, where support and weight is given to the “extensively researched” AFCC Parenting Guidelines.⁴ Specifically, at para.19:

19The AFCC Parenting Guidelines were prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) to assist parents and their professional advisors in specifically developing the best, child-focused, and realistic parenting plans…

20I agree with Justice Chappel in McBennett v. Davis, 2021 ONSC 3610, when she states in paragraph [92] that:

The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of the children.

21As further stated by Justice Kraft in H. v. A., 2022 ONSC 1560:

The parenting plan guide produced by the Association of Family and Conciliation Courts – Ontario (“AFCC-O”) has been found by many courts to be of great assistance in determining parenting schedules that are in a child’s best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation.⁵

In considering the AFCC-O Guide, Benjamin would be considered a toddler (18-36 months). While I do not feel bound by the Guide, I too find it contains helpful information in understanding a child’s developmental stage and schedules. For toddlers, “if parents have fully shared in the caretaking arrangements before the child has reached this age, and the child has an easy temperament, parenting time can be shared equally as long as the separations from each parent are not too long (no more than two to three days or two nights for example).”⁶

While both parents are good parents, the Mother and Father have not been equal parents to date. But even if they were equal parents, it is not recommended that children of Benjamin’s age spend more than two to three days away from either parent. The Father’s schedule does not permit an equal sharing of time where the child is not away from either parent for more than a few days. The Father’s schedule would mean that Benjamin would be away from his Father for a week. This separation is too long for the parties to have an equal time-sharing schedule at this time. The child should not go for a full week without seeing his Mother (with only one night in the middle), and then go an entire week without seeing his father, just to have an equal time-sharing arrangement. This is not in the best interest of the child at this age. This means the Mother is going to continue to be the primary parent for now. To me, this does not mean that the Father’s time should be restricted with Benjamin, but more that Benjamin should not spend extended time away from his Mother. There is a conceptual difference. As the child gets older and can be away from his Mother for longer periods of time, the schedule may well develop into a week about schedule.

In this case, I agree with the Mother, that it is not in Benjamin’s interest, at this age, and in these circumstances, to spend too long a period of time away from his Mother. Again, this in no way is a reflection on the Father’s ability to care for the child, but more a reflection on the child’s developmental needs at this time in his life.

Parenting Schedule

For the reasons set out above, I find that it is in the best interest of the child that the child reside with the parents as follows:

Week 1:

Sunday at 6pm until Tuesday at 6:00pm with the Father;

Tuesday at 6:00pm until Thursday at 9:30am; and

Thursday at 9:30am until Sunday at 6:00 pm with the Father.

Week 2:

As agreed to from time to time between the parties, if the Father is available during his work week to spend time with the child.

Travel

The final issue raised by the parties relates to travel. In line with my reasoning above, the request to travel with the child for one week in November is denied for this year. It may be reconsidered as the child gets older or if there are extenuating circumstances.

Order to go as follows:

Order

1. The Father shall have parenting time with the child as follows:

Week 1:

Sunday at 6pm until Tuesday at 6:00pm with the Father;

Tuesday at 6:00pm until Thursday at 9:30am; and

Thursday at 9:30am until Sunday at 6:00 pm with the Father.

Week 2:

Parenting time, as agreed to from time to time between the parties, if the Father is available during his work week to spend time with the child.

2. The child shall reside with his Mother at all other times.

3. The motion to travel with the child in November for one week is dismissed, without prejudice to seek an order permitting the Father to travel time with the child at a future date.

Shore, J.

Footnotes

1. 1M.J.L. v. C.L.F., 2022 ONCJ 243 at para. 115.
2. 2M.J.L. v. C.L.F., 2022 ONCJ 243 at para. 83.
3. 3Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(3)(a).
4. 42022 ONSC 2299, 72 R.FL. (8th) 84, at para. 18.
5. 5Ibid at paras. 19-21.
6. 6Association of Family & Conciliation Courts-Ontario, “Parenting Plan Guide, version 2.0” (2021) at 19, online (pdf): AFCC-Ontario https://afccontario.ca/wp-content/uploads/2021/12/AFCC-O-Parenting-Plan-Guide-Version-2.0-December-2021-.pdf.