Shabnam Shokoufimogiman v. Amir E. Bozorgi
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shabnam Shokoufimogiman, Applicant
AND:
Amir E. Bozorgi, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Ash Mazinani, for the Applicant Sean Bahmadi, for the Respondent
HEARD: September 1st, 2022
ENDORSEMENT
1This is a motion brought by the respondent (“father”) in which he seeks an order (a) granting him temporary primary care of the parties’ 4 ½ year old son, such that the child would reside with him 9 nights out of 14; (b) alternatively, for a temporary parenting schedule, such that the child would reside equally with the parents; (c) to have temporary sole decision-making responsibility for the major decisions that impact the child; (d) requiring both parents to consent to any travel with the child outside of Ontario; and (e) to be the parent responsible for holding the child’s government issued identification.
2The specific temporary parenting schedule sought by the father is for the child to reside primarily with him and for the mother to have parenting time on:
a) Mondays, after school at 4:00 p.m. to Tuesday morning, drop off at daycare.
b) Wednesdays, after school at 4:00 p.m. to Thursday morning, drop off at daycare; and
c) Friday, after school at 4:00 p.m. to Saturday, at 5:00 p.m.
3Alternatively, the father proposes that the child live with both parents pursuant to a 2-2-5-5 parenting schedule.
4The applicant (“mother”) seeks an order dismissing the father’s motion. She seeks an order that (a) she have primary care of the parties’ 4 ½ year old son; (b) the father be granted temporary parenting time with the child on alternative weekends from Friday, after school to Monday mornings, which amounts to 3 nights out of 14; (c) she be granted sole decision-making responsibility for important decisions that affect the child; and (d) she be responsible for holding the child’s government issued documentation.
5The mother consents to an order that neither party discuss this litigation with the child; denigrate the other parent in front of the child directly or indirectly; allow other people to speak negatively or denigrate the other in the presence of the child; and/or travel outside of Ontario without the other party’s consent.
6On the suggestion of the court, during the motion the parties consented to this matter being referred to the Office of the Children’s Lawyer (“OCL”) to see if they would take the matter on and conduct a parenting assessment.
7The issues for me to determine are:
a) What temporary decision-making regime is in the child’s best interest?
b) What temporary parenting schedule is in the child’s best interest? and
c) Which parent should retain possession of the child’s government issued identification, including his Iranian and Canadian passports?
Background
8The parties were married in Iran, Tehran on December 25, 2014. The mother immigrated to Canada in 2014 and sponsored the father, who arrived in Canada on May 26, 2016.
9The parties have one child, a son, who is now 4 ½ years old.
10The parties separated on March 21, 2022. They continued to reside separate and apart in the matrimonial home for four months until July 15, 2022.
11On July 15, 2022, the mother moved out of the matrimonial home with the child.
12Both parties agree that the mother told the father a month before she left the matrimonial home with the child that she intended to leave the home with the child in mid-July.
13The parties’ lawyers then attempted to negotiate a temporary parenting plan but were not successful.
14The mother deposes that the father made parenting schedule proposals, all of which insisted on an equal-time-sharing parenting schedule. She proposed that the father have parenting time three days a week, including one overnight. The father did not agree to this plan. The father deposes that he made numerous offers for parenting schedules, all of which were reasonable but were rejected by the mother.
15The mother submits that the father threatened her repeatedly that she could not leave the matrimonial home with the child unless she agreed to a 50-50 time sharing schedule. As a result of these threats, the mother contacted the police and the Children’s Aid Society (“CAS”) to arrange for a safety plant to allow her to vacate the matrimonial home with the child. The safety plan provided to her by CAS in July 2022 was attached to the mother’s affidavit as an Exhibit.
16After the mother moved out of the matrimonial home with the child, difficulties arose between the parties with respect to parenting time. According to the mother, the father began to pick up the child at his daycare without advising her that he would be doing so whenever he wanted to spend time with him. The father disagrees. He argues that the mother withheld the child from daycare to prevent him from having parenting time.
17The parties agree that from July 21, 2022, to August 17, 2022, the father did not have parenting time with the child. According to the father, he did not have parenting time with the child because the mother would not permit him to do so. According to the mother, the father did not have parenting time with the child because he refused to agree to any parenting schedule that was less than 50-50 time.
18The parties attended a case conference on August 15, 2022, before Steele, J., at which the following consent order was reached:
a) Commencing on September 1, 2022, the father would pay child support to the mother in the sum of $1,068 a month, based on his annual income of $120,000; and
b) Commencing immediately, the father would have temporary parenting time with the child on Mondays, from after daycare to 7:00 p.m.; Wednesdays, from after daycare to 7:00 p.m.; and Fridays, from after daycare to Saturday at 5:00 p.m.
19After the father served the mother with his motion materials, and 9 days before this motion was heard, he contacted the police alleging that the mother assaulted him in October 2018 and January 2022. The mother was arrested and charged on August 23, 2022, in front of the child when they were at a movie theatre. The mother gave a Criminal Undertaking to have no contact with or be near the father, except for the purposes of facilitating parenting time set out in a court order, the CAS or a mutually agreeable third party.
20The mother denies the allegations of assault entirely. She submits that these allegations were made by the father solely to gain a tactical advantage on this motion, since he filed his Answer on May 27, 2022, and did not mention the alleged assault in his pleading. Further, the mother argues that father remained in the matrimonial home with her until she left in July 2022, which he would not have done, had she assaulted him in January 2022.
21The father’s Form 35.1, Affidavit (decision-making responsibility, parenting time, contact), which was sworn on August 10, 2022, does not reference the mother committing violence or abuse against him or the child, even though the form refers to family violence set out in the Divorce Act, RSC 1985, c.3 (2nd Supp), at paragraph 8. By contrast, the mother’s Form 35.1 Affidavit, which was sworn on April 1, 2022, contains the same family violence allegations she made in this motion namely, that she suffered family violence by the father throughout the marriage. The mother’s Form 35.1 affidavit describes the October 2018 assault and subsequent charges against the father and describes the father threatening to remove the child from Canada and taking him to Iran at the time of separation.
The Parenting Roles During the Marriage
22The evidence on the record before me is entirely in conflict.
23Both parents insist that she/he was the child’s primary parent. The mother maintains she has been the child’s primary parent since birth. The father submits that since the child turned 1 years old, he has been his primary caregiver.
24According to the mother, the following facts demonstrate that she was the child’s primary parent over the last 4 ½ years:
a) Prior to the child being born, in 2017, the mother transferred her company, which provided healthcare and life sciences products and services, to the father because she did not plan on working once the child was born.
b) The mother did not work outside of the home for nearly two years after the child was born, namely, from February 2018 to November 2019 because she was at home looking after the child. The father worked full time during this period.
c) In November 2019, the mother established a new company, “Dana Pharmed Inc.”, when the child began to attend daycare. She worked while the child was at daycare but otherwise looked after all his needs.
d) After the child was born, the father went to Iran for lengthy periods of time to manage various businesses while the mother looked after the child. Specifically, after the child was born, in March 2018, the father went to Iran for 5 weeks; on June 10, 2018, the father went to Iran for 2 months; In June 2019, the father went to Iran for 6 weeks; and in January 2020, the father went to Europe for 2 weeks. While the father was away for these lengthy periods of time, the child was in the mother’s sole care.
e) When the child’s daycare closed in March 2020 as a result of the Covid 19 health crisis, the mother stopped working for 6 months, until September 2020, so she could look after the child until his daycare reopened. During this period, the mother collected CERB.
f) The mother was the parent who made all the decisions for the child, including his choice of daycare. She applied to be a volunteer on the Board of Directors of his daycare but was not elected to the Board.
g) The mother is the contact person for the child with the TDSB on the student registration form.
h) The mother completed a number of parenting courses after the child was born to ensure that she could be the best possible parent, including, a) the Healthy Babies Healthy Children program offered by Toronto Public Health ending in May 2019, over 14 months; b) the Make the Connection One to Two program offered by the Toronto Public Health ending on May 21, 2019, which was a weekly program over 12 weeks; c) the Nobody’s Perfect Parenting Program ending on June 20, 2019, offered by Health Canada which was a 12 week program; and d) the Healthy Eating Series Nutrition Education Program ending on June 28, 2019, offered by Toronto Public Health, which was a 4 month program.
25According to the father, he was the child’s primary parent since he turned 1 years old, or alternatively, at least an equal and co-parent to the child. He relies on the following facts to prove his parenting role:
a) The father and child have a strong relationship, verified by photographs attached as an Exhibit to his affidavit, sworn on August 23, 2022.
b) The father is the director of a small corporation owned by his brother and, as the only employee, he conducts his business virtually and has the flexibility as to where and how long he works. This is evidence that he is available for the child.
c) He ensured that the child was taken care of because of his love the child and his work situation.
d) He took an active role with the mother in caring for the child. He genuinely took joy in being responsible for the child.
e) He made the child his main priority. He was “always” with the child when the child was not feeling well and took care of him on the days the child was not at the daycare.
f) He was the child’s primary caregiver while the mother decided to work full time;
g) He did travel to Iran for 103 days in total, to organize and close his business and to visit his mother who was ill and subsequently died. However, once the child turned 1 years old, he deposes he was only away for a total of 37 days; and
h) He attended most, if not all, of the same parenting courses with the mother.
26A letter from the child’s paediatrician, Dr. Lelia Fazeli, dated August 22, 2022, was attached to the father’s affidavit as an Exhibit and confirms that the child attended his routine check-ups and sick visits, with both parents.
27The father alleges that the mother displayed a constant pattern of controlling, demanding, impulsive and abusive behaviour toward him throughout the marriage. He deposes that her first husband was very physically abusive toward her; that her second marriage failed as well; and that both failed marriages led to the mother suffering from anxiety and depression. The father also deposes that the mother has been abusive toward the child, in that she has lost her temper, yelled at him and, at times, hit him. He argues that the mother is self-centered, impulsive, abusive, deceitful, lacks sound judgment and is not capable of making decisions and/or acting in the best interests of the child. These allegations are found in the husband’s two affidavits, filed in support of this motion, and his Factum.
28In support of his position that he is the child’s primary caregiver, the father filed three affidavits from third parties, as follows:
a) An affidavit, sworn by Pejman Ossivand, dated August 16, 2022. Mr. Ossivand is a family friend who met the parties at a parenting class. He deposes that during the time he and his wife visited the parties are the home, he “observed” that the father was the child’s primary caregiver. The mother deposes in her responding affidavit that Mr. Ossivand had not been to the matrimonial home since before the outbreak of Covid-19 in March 2020.
b) An affidavit, sworn by Fashad Fatemi, dated August 19, 2022. Mr. Fatemi deposes that he was with the father and the child waiting for the mother at a parenting exchange after the order of Steele, J., dated August 15, 2022. He deposes that the child began to cry when the mother arrived because he did not want to go with the mother; the mother was aggressive with the father in front of him and others; and did not calm the child down. Mr. Fatemi also deposes that the father had told him he was “in-charge of putting [the child] to bed, pick him from daycare and bathe him”. The mother deposes in her responding affidavit that Mr. Fatemi is a close friend of the fathers, and she believes owes the father substantial debt.
c) The third affidavit was filed by the mother’s brother, Valiallah Ebrahimi, who resides in Iran, sworn on August 19, 2022. Mr. Ebrahimi confirms that the mother’s first husband was extremely violent toward her. Mr. Ebrahimi deposes that the wife was “horrendously beaten” by her husband and required hospitalization as a result of being beaten and stabbed. Mr. Ebrahimi deposes that the mother had behavioural complications after this marriage ended. He describes the mother as being aggressive, verbally and physically abusive toward relatives, including the maternal grandmother. Further, he states his belief is that the mother relies on a desire to feel “supreme” above others. The mother’s brother ends his affidavit confirming that he filed it in support of the child having his primary residence with the father and for the father to have decision-making responsibility for the child. The mother made submissions that despite the fact that her brother swore this affidavit on August 19, 2022, it was not served on her until after she filed her responding affidavit, leaving her with no opportunity to give evidence.
29Similarly, the mother also alleges family violence on the father’s part. She deposes that the father has been physically and verbally abusive toward her throughout the marriage. The mother deposes that the father was charged with assault against her in October 2018 when he threatened to kill her and slapped her in the face. After these charges, however, the parties reconciled, and the charges were resolved by way of a peace bond. These allegations are found in the mother’s Application, which was issued on April 1, 2022.
30The mother argues that the father contacted the police and made false allegations that she assaulted him after he had scheduled this parenting motion. The father reported incidents of family violence in October 2018 and January 2022 to the police. He deposes that he has a video of the wife. The police charged the wife with two counts of assault on August 23, 2022. The wife denies these allegations and argues that the father contacted the police as a tactical attempt to gain a litigation advantage in terms of this parenting motion.
31The mother denies any history of mental illness as suggested by the father. She attached a letter from her family doctor, Dr. Peyvand Basti, dated August 23, 2022, to her affidavit, in which he confirms that he became the mother’s family doctor in 2017, prior to the birth of the child, that the mother has no history of mental illness, and he has never felt she has a mental problem since he became her doctor.
Analysis for Decision-Making
32A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.
33The only test the court must consider is the best interests of the child. Section 16(3) of the Divorce Act sets out the various factors a court is to consider when determining the best interests of the child.
34Section 16(2) of the Divorce Act provides that primary consideration shall be given to the child’s physical, emotional and psychological safety, security and well-being.
35The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
36It is particularly difficult to make a determination with respect to parenting on a motion without the resources and evidence available in a trial to find facts and assess the credulity and reliability of the parties.
37In Basley v. Basley, 2016 ONSC 5877, Justice Vogelsang refers to Easton v. McAvoy, 2005 ONCJ 319 (Ont. Ct.). In that case, Justice Renaud declined to make a temporary custody order: “to avoid the risk that the children involved would have their future care and relationships with their parents affected by potentially unreliable and contradictory information.”
38Justice Vogelsang notes Justice Renaud’s approval of the words of caution expressed by Justice Pierce in Croker v. Hooke, 2003 CanLII 2298 (ON SC), [2003] O.J. No. 1742 (Sup.Ct.) on a motion for temporary custody where she said,
29 This court does not have the same vantage point as the trial judge, who will hear evidence tested by cross-examination, hear testimony from third parties, including professionals involved with the child and his parents. That court will assess credibility and weigh evidence; it may ask questions.
30 Interim custody, in the face of conflicting affidavits and a climate of recrimination, is not a time for experimentation with the child's life. Such decisions are difficult enough for the court when it has the benefit of hearing evidence presented by the parties…
31 Rather than awarding interim joint custody in such a climate, the child may be better served by an expedited trial, where all issues surrounding his care can be explored.
32 I am not persuaded there are compelling reasons to change the status quo on an interim basis. The father's proposal is a fundamental shift from the status quo. Making no order as to custody will leave the parties on an equal footing to argue the matter at trial…
39In Coe v. Tope, 2014 ONSC 4002, Justice Pazaratz indicated parenting determinations at temporary motions are particularly challenging for several reasons. He notes temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent stages in the process. The status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interests demand an immediate change. He further notes frequency of contact is particularly important for young children (See Basley v. Basley, para 22).
40The comments and findings in Basley v. Basley, Easton v. McAvoy and Coe v. Tope, regarding temporary custody motions are particularly relevant when an assessment is pending. In this case the evidence is conflicting. There has been no cross-examination on the affidavits; the parties have presumably made some decisions together for the past six months, albeit with some difficulties. While the court will be referring this matter to the OCL for an assessment, there is no guarantee that they will take this matter on.
41Section 2(1) of the Divorce Act defines decision-making responsibility as follows:
“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,
(a) health,
(b) education,
(c) culture, language, religion and spirituality, and
(d) significant extra-curricular activities;
42The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint decision-making responsibility order is appropriate:
a) There must be evidence of historical communication between the parents and appropriate communication between them.
b) It can’t be ordered in the hope that it will improve their communication.
c) Just because both parents are fit does not mean that joint custody should be ordered;
d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
e) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
f) The younger the child, the more important communication is.
43Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022.
44Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).
45Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; Pinda v Pankiw, 2018 BCSC 190.
46In S.S. v. S.K., 2013 ONCJ 432, The OCJ wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and,
c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
47Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.
48The parties offer very different accounts of their relationship. The court is aware that this evidence has not been tested through cross-examination. However, the following findings from the uncontested evidence are more than sufficient to find that one parent should have temporary decision-making responsibility regarding the major decisions that impact the child between now and the trial of this matter:
a) The parties communicate poorly with each. They each blame the other for this. They both interpret facts to draw the worst possible conclusion about the other.
b) The mother’s current Criminal Undertaking prevents the parties from communicating directly or indirectly.
c) The parties accused each other of family violence.
d) The father accused the mother of being impulsive, having poor judgment and being incapable of making decisions for the child.
e) The parties have little trust in or respect for the other – certainly nowhere near enough to effectively make joint decisions of the child at this time.
f) Roughly two weeks ago, the father filed a police report against the mother arising from two incidents assault, one allegedly having taken place 4 years ago and once allegedly having taken place 9 months ago.
g) The father did not mention family violence on the mother’s part in his Answer or his Form 35.1 parenting affidavit. If this was truly a concern on his part, it was incumbent on his to raise these serious issues in his pleading and the parenting affidavit.
h) The mother involved the CAS in this dispute because she did not feel she could leave the matrimonial home with the child safely due to alleged threats made by the father;
i) The parties accused each of lying and using litigation tactics to obtain an advantage in this case;
j) The parties accused each other of acting unilaterally regarding the child and excluding the other; and
k) Neither parent had anything positive to say about the other.
49The court has concern that the father raises concerns regarding the mother’s character which include such things as her being self-centered, impulsive, abusive, deceitful, lacking sound judgment and not being capable of making decisions and/or acting in the best interests of the child. These are very serious attacks on the mother’s character and parenting abilities. It does not follow that if the father truly felt this way during the marriage, that he would leave the child in the mother’s sole care on the many occasions he travelled to Iran, which he claims to be 103 days. Further, it does not follow that the father would not have raised his concerns regarding the mother’s impulsivity, controlling and abusive behaviour in his Form 35.1 parenting affidavit, particularly, when each party is completed a form affidavit and is reminded in the form about family violence.
50The evidence, on a preliminary basis, raises concerns about the father and whether he would use a joint decision-making order as a mechanism to control the mother and expose the child to conflict. This informs the court that the mother should have temporary decision-making responsibility regarding the child. This evidence is as follows:
a) The father is very focused on his rights. His material focused on what he is entitled to and how he has been victimized by the mother. He spent no time talking about the child’s needs, his likes or preferences, or his bath time or bedtime routines, etc. The court has concerns as to whether he is able to distinguish the child’s needs from his own;
b) The father focused on the mother preventing him from having parenting time with the child once she moved out of the house and accused her of “alienating” the child, when he could have, at a minimum, agreed to see the child, at the times put forward by the mother on Mondays, Wednesdays and Fridays overnight, at least between the date she left the home on July 15, 2022 and the case conference on August 15, 2022. While I appreciate the father wanted more parenting time with the child than to which the mother was prepared to agree, the father made a choice to have no parenting time for a month, when he could have seen the child three times a week and have four overnight visits but remained steadfast that he was “entitled” to a 50-50 time-sharing schedule.
c) The father did not provide the mother with child support once she left the matrimonial home. He was aware for a month prior to her leaving that she would be going on July 15, 2022. He ultimately consented to paying child support when the parties attended the case conference before Steele, J. on August 15, 2022, to commence September 1, 2022. In this manner, he placed his own interest ahead of the child’s interests. This was controlling behaviour on his part.
Analysis of Temporary Parenting Time
51In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:
[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”
[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.
52An equal-parenting time plan, as proposed by the father, requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.
53In the decision of Justice McGee in Melbourne v. Melbourne, 2022 ONSC 2299, 72 R.F.L. (8th) 84, support and weight is given to the “extensively researched” AFCC Parenting Guidelines1. Specifically, at para.19:
[19] The 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…
[20] I 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.
54As further stated by me 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.
55In considering the AFCC-O Guide, the child would be considered a pre-schooler (ages 3-5). While I do not feel bound by the Guide, I find it contains helpful information in understanding a child’s developmental stage and schedules. The Guide states that “Preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered. Transitional objects, such as a favorite toy, stuffed animal or blanket, moving between the two homes can help a preschooler manage sadness and anxiety.”
56It goes on to state:
“If one parent was primarily responsible for a child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of “step-up” care to gradually increase the involvement of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight. As a child becomes more comfortable moving between the two homes, one or two overnights a week might be added.
If a child has trouble adapting to transitions, or one parent has less time available for childcare or less experience with the care of the child, parents may find that a plan that involves a child spending more time with one parent provides greater stability for the child through this stage of development. This arrangement may involve a schedule of care with the other parent having some midweek contact and care every other weekend. The weekend could start with one Saturday overnight and may then be extended over time to include Friday night, or Sunday night, or both.
If both parents were employed outside the home at the time of separation and were equally involved in the child’s care, it may be appropriate to have an arrangement with roughly equal parenting time, but not more than 3 nights away from either parent. At the early stages of separation, the parents might consider splitting each weekend so that the child has one full stay-at-home day and overnight with each parent as well as some weekday contact. While this may not be the best long-term plan for the parents, it may help the child at this stage of development. This type of arrangement may be a “2-2-3” schedule, with care transition starting in the morning (e.g. at 9 or 10 am) or at the end of daycare or school.” (Emphasis Added)
57I have no doubt that both parents have been involved with the child and are closely bonded to him. It is clear from the paediatrician’s letter that both parents attended all the child’s doctor appointments. Although neither parent led evidence as to the details of the child’s bedtime, feeding or bath time routines, the father’s affidavits make several sweeping statements with no details, such as he and the child having a “strong relationship”, him “making the child a priority” and him having “work flexibility” to look after the child. I accept that both parents were involved in the child’s daily routines and are familiar with them.
58It is impossible for me to determine, based on the conflicted record before me, whether one parent was more primarily involved with the child at the time of separation. In designing a temporary parenting schedule, I will follow the guidelines set out in the Guide that it would be difficult for the child to spend more than 3 nights away from either parent.
59The parenting schedule proposed by the father has the child sleeping in a different house every night of the week. That schedule, in my view, is not in the child’s best interests as it does not promote stability and predictability. Furthermore, the father’s schedule produces far too many transitions for a child aged 4 ½.
60The parenting schedule proposed by the mother has the child spending three consecutive overnights with the father, but then has the child going ten days without seeing the father. That schedule, in my view, is also not in the child’s best interests as ten days is too long a period for the child to go without seeing one of his parents.
61Both parents proposed parenting schedules where the pick-up and drop-off arrangements take place at the child’s daycare/school. That proposal for parenting exchanges is a good idea because it ensures that there is not conflict between the parents at parenting exchanges and, at the moment, if the exchanges take place a neutral location, there is no risk that the Criminal Undertaking given by the mother will fail.
Order
62Accordingly, this court makes the following order:
a) Pursuant to s.16.1(1) and (4) of the Divorce Act, commencing September 6th, 2022, the child will reside with the parents pursuant to the following two-week rotating parenting time schedule:
i) During Week One, the child will reside with the parents,
(1) With the father on Friday, after daycare at 4:00 p.m. to Monday mornings, with the drop-off at daycare;
(2) With the father on Wednesday, from after daycare at 4:00 p.m. to Thursday morning, with the drop-off at day care; and
(3) With the mother at all other times.
ii) During Week Two, the child will reside with the parents,
(1) With the father on Sunday, at 3:00 p.m. to Monday morning, with the drop-off at day care. The parenting exchange on alternate Sundays is to be conducted by a mutually agreeable third party to ensure the parents have no direct or indirect contact. A neutral location, such as a Tim Hortons somewhere in between both party’s home shall be chosen for purposes of the exchange;
(2) With the father on Wednesday, from after daycare at 4:00 p.m. to Thursday morning, with the drop-ff at day care; and
(3) With the mother at all other times.
b) Pursuant to s.16.1(2) an (4) of the Divorce Act, on a temporary basis, for any major decisions that arise between now and the trial of this matter, if any, such as a decision about the child’s health, education, religion or extra-curricular activities, the mother shall advise the father in writing of any decision that needs to be made. The father shall be given 8 days to advise the mother in writing of his opinion as to what decision should be made and, in that manner, the parties shall attempt to consult with and work together, through counsel, to arrive at a decision on consent. If the parties need to consult with a third party with respect to a decision, such as the paeditrician, they shall do so. If a joint decision cannot be made and the parties cannot reach agreement on a decision, the mother shall have the final authority to make the decision.
c) Pursuant to s.16.1(4) of the Divorce Act, if the mother schedules a well or sick appointment with any of the child’s health care providers, she shall give the father notice of the appointment. Given the Criminal Undertaking in place, the parties cannot attend such appointments together. The parent who is scheduled to reside with the child shall take him to the scheduled medical/dental appointment. The parent who takes the child to an appointment shall advise the other parent of what took place at the appointment within 5 hours of the appointment taking place in writing.
d) Pursuant to s.16.1(4)(c) of the Divorce Act, the parents shall immediately subscribe to Our Family Wizard or AppClose for at least one year. The parties shall communicate with one another only through this website. The parties shall respond promptly to each other’s messages and, in any event, within 24 hours of receiving a message, unless there is urgency, and a quicker response is required.
e) Pursuant to s.16.1(4)(c) of the Divorce Act, neither parent shall denigrate the other in front of the child or in front of third parties when the child is present or allow any other person to speak negatively or denigrate the other parent in the presence of the child.
f) Pursuant to s.16.1(4)(d) of the Divorce Act, neither parent shall discuss this litigation with the child.
g) Pursuant to s.16.1(4)(d) of the Divorce Act, neither parent shall travel with the child outside of Ontario without the written consent of the other parent.
h) Pursuant to s.16.1(4)(d) of the Divorce Act, the mother shall retain possession of all government-issued documentation for the child but shall provide the father with a copy of the child’s health card.
i) This matter shall be referred to the Children’s Lawyer to provide such services, under s.89(3.1) and s.112 of the Courts of Justice Act, as she deems appropriate for the child. A separate endorsement to that effect will follow.
j) If the parties cannot agree on costs of this motion, they shall exchange costs submissions in writing, of no more than 3 pages, not including a Bill of Costs or offers to settle within 15 days of the release of this Endorsement. Any response shall be served and filed within 7 days of receiving the other party’s costs submissions. There shall be no right of reply.
September 6, 2022
M. Kraft, J.
COURT FILE NO.: FS-22-00029055
DATE: 20220906
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shabnam Shokoufimogiman,
Applicant
AND:
Amir E. Bozorgi,
Respondent
ENDORSEMENT
Kraft, J.
Released: September 6, 2022
1 Association 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.
