Court File and Parties
COURT FILE NO.: FS-21-26759 DATE: 2022-11-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN
RAMIN KARIMI Applicant
– and –
ASHLEY NICOLE KYRON Respondent
Counsel: Megan O’Neill, for the Applicant Alexandrea Grant, for the Respondent Noah Schachter, for the Toronto Police Service
HEARD: October 20, 2022
Reasons for Decision
M. D. FAIETA J.
1The parties are the parents of an eleven-month-old daughter. The Respondent mother, age 36, brings this motion to vary a temporary parenting order granted about five months ago so that the Applicant father’s parenting time is supervised. The Applicant father, age 39, alleges that the Respondent has breached the parenting order by failing to make the child available for parenting time on numerous occasions. As a result, he seeks make-up parenting time and an order for the police enforcement of the parenting order. On short notice, the Toronto Police Service appeared on this motion to object to the request for a blanket provision requiring the police enforcement of the parenting order.
BACKGROUND
2The parties dated for parts of 2019 and 2020. The Applicant states that both parties have a history of drug abuse however the Respondent largely denies any drug use on her part. The Respondent states that the Applicant was charged with drug trafficking six kilos of cocaine, however he states that that charge was withdrawn in February 2022 by the Crown. He is not currently subject to any criminal charges or bail conditions. The Applicant states that he is a self-employed home builder.
3From time to time, the Respondent lived with the Applicant in his parent’s home pursuant to his bail conditions from January 2021 until May 2021. After their relationship ended, the Applicant was notified that the Respondent did not want him to contact her.
4Their child was born in September 2021. About one week after her birth, the Applicant learned through a friend that the child had been born.
5On September 22, 2021, the Applicant’s counsel requested that the Respondent permit the Applicant to meet the child and to develop a parenting time plan. On the same day, the Respondent filed an application for a peace bond which was dismissed in December 2021.
6After learning that the Respondent denied that the Applicant was the child’s father, this Application was commenced on November 23, 2021.
7On March 14, 2022, the parties attended a Case Conference. There was no agreement on parenting time and the Applicant was granted leave to bring a parenting motion. The parties were ordered to exchange criminal record checks in the event that the paternity test showed that the Applicant was the child’s father.
8On April 5, 2022, the parties attended a second Case Conference. Paternity testing confirmed that the Applicant was the child’s father. The following consent Order for professionally supervised “veranda parenting time” was granted:
Commencing April 1, 2022, on a without prejudice basis, Mr. Karimi shall pay child support to the respondent, Ashley Nicole Kyron, in the amount of $580.00 per month.
On a without prejudice basis, Mr. Karimi shall pay Ms. Kyron child support arrears in the lump sum amount of $3480.00 by May 31, 2022.
The parties shall take all steps forthwith to do the intake forms, and complete any other requirements, for Brayden Supervision Services.
On an interim, without prejudice basis A.K. shall have parenting time with Mr. Karimi for one hour on Saturdays and one hour on Sundays at such time as is available for the supervisor and acceptable to the parties, acting reasonably. Mr. Karimi’s parenting time shall be supervised by Brayden supervising or another professional supervisory agency. Mr. Karimi’s parenting time shall be exercised on the veranda at Ms. Kyron’s residence.
Mr. Karimi shall attend an anger management course. The respondent shall provide Mr. Karimi with three anger management course options to choose from.
The applicant’s April 19, 2022 motion date is vacated.
9The Applicant agreed to the Respondent’s demand that he wear a mask during parenting time with the child. Brayden did not have an available supervisor for a few weeks. The Respondent demanded to be present on her veranda during the Applicant’s parenting time with the child. On April 14, 2022, Brayden advised that it would not supervise the Applicant’s parenting time if the Respondent was present.
10On April 21, 2022, the Applicant had his first parenting time with the child.
11On April 27, 2022, the parties attended a third Case Conference. The following consent Order for “veranda parenting time” was granted:
On consent and without prejudice, Mr. Karimi’s interim parenting time shall be as follows: Tuesdays, Wednesdays and Fridays from 8 a.m. to 8:30 a.m.; Saturdays and Sundays from 8 a.m. to 9 a.m. The parenting time shall be exercised on the veranda at the respondent’s home.
12On May 27, 2022, Pinto J. granted the Applicant father’s motion for parenting time on the following terms:
a. Every Tuesday, Wednesday, and Friday for a period of 1-hour per visit;
b. In the alternative to subparagraph 1 (a), any 3 weekdays per week that are convenient for the Respondent for a period of 1-hour per visit;
c. Every Saturday and Sunday for a period of 3-hours per visit;
d. Parenting time shall occur in the Applicant’s home. The Respondent may attend the first 3 visits in the Applicant Father’s home; and
e. The parent whose parenting time is ending shall drop the child off at the other parent’s home at the end of their parenting time.
13At a Settlement Conference on July 18, 2022, Backhouse J. ordered that the weekly visits on Tuesday and Friday shall take place at 7:45 am to 8:45 am instead of 6 pm to 7 pm.
14In late August 2022 the Applicant’s parenting time was interrupted when the child, the Respondent and the Applicant’s father tested positive for COVID-19. The Applicant then had parenting time in a park with the child on her birthday with the Respondent present. The Applicant’s parenting time was spent with the child occurred a few more times in a public place with the Respondent present during September 2022. At his request, parenting time resumed at his home on September 21 & 22, 2022 albeit with the Respondent present. On September 24, 2022 the parties attended an aquarium with the child. On September 25, 2022 and September 27, 2022, at the Respondent’s insistence the parties parenting time occurred at a restaurant with the Respondent present.
15On September 15, 21, 23, 24, 25 and 27, 2022, the Applicant exercised parenting time with the child with the Respondent present. They spent two visits at his home, a visit at an aquarium and three visits having a meal at a restaurant. The Respondent sent messages to the Applicant after these meetings expressing her satisfaction.
16The Applicant’s mother left to travel to Romania at the end of September 2022.
17On Saturday, October 1, 2022, the Respondent notified the Applicant that she would not permit him to have parenting time with the child without his mother being present. She stated:
I didn’t want to get into it today … in the past when you had [the child] you always had you mom’s support. Without that, [the child] shouldn’t be there for visits. I already have afternoon plans for tomorrow – but if you want to meet me in the morning and go for a walk you are more than welcome.
18The Applicant posted, what he now recognizes to be an ill-advised, video on Instagram venting his frustrations with the denial of his parenting time and with the discovery of a caffeine pill belonging to the Respondent that he found in the child’s carriage.
19On Sunday, October 2, 2022, the police attended at the Respondent’s residence to enforce his parenting time. The police left after the Respondent made them aware that the Applicant could not drive with the child. The Respondent states that the Applicant was pacing and swearing at the end of her driveway while he waited for the child to come out.
20On October 4, 2022, the Respondent’s lawyer responded to a letter from the Applicant’s lawyer that demanded compliance with Justice Pinto’s Order. She stated:
My client will not be facilitating unsupervised parenting time between [the child] as a result of your client’s erratic behaviour and her resulting concerns about his emotional stability. Alternatively, she is proposed supervised access until you client’s mother returns. If your client does not agree to supervised access we will be bringing an urgent motion for same.
21The Respondent mother brings this motion for an order that the Applicant father’s parenting time be supervised until the Applicant’s mother returns from her travels in December 2022. Specifically, the Respondent mother seeks the following Order:
- An interim Order that the Applicant Father shall have his existing parenting time with the child, Ayla Noelle Kyron, born September 7, 2021 (Ayla) as set out below for ease, supervised on a temporary basis by either Brayden Supervised Access Center or Michelle Hughes or any alternate supervisor agreed or ordered by the Court, in accordance with the following schedule, or if necessary an alternate configuration of the days and times to accommodate the supervisor so that parenting time can happen as soon as possible:
a. Every Tuesday, Wednesday and Friday for one hour;
b. Every Saturday and Sunday for a period of 3-hours;
The Applicant Father’s parenting time shall be supervised until the Applicant’s Mother (Ayla’s paternal grandmother) returns in or about December 2022.
Upon the Applicant Mother’s return, parenting time shall occur at 28 Yarn.
The Applicant Father shall not drive with Ayla.
22By cross-motion, the Applicant father seeks the following Order:
An Order striking Exhibit “J” (the Report of Christopher Mark Milroy) from the Respondent’s Affidavit, sworn October 13, 2022.
An Order that Applicant shall have make-up time for every hour of parenting time missed as a result of the Respondent’s breach of the Order of the Honourable Justice Pinto, dated May 27, 2022. Make-up time shall be added onto the Applicant’s existing parenting time in 2-hour increments on Saturdays and Sundays and shall be fully made up by no later than December 31, 2022.
An Order adding the Toronto Police Service as a party for the purpose of the herein motion.
An Order that the Toronto Police Service be directed and authorized to enforce the Order of the Honourable Justice Pinto, dated May 27, 2022, which Order shall expire 6 months after issuance unless further extended by this Honourable Court.
An Order that the Applicant may apply to this Honourable Court to extend the duration of the police enforcement Order on a regular motion date, if necessary.
Should the Temporary Parenting Time Order be Varied?
23Only the “best interests of the child” are to be taken into account when making a parenting order and an interim parenting order as well as when considering a request for the variation of a parenting order and interim parenting order: See Children’s Law Reform Act, R.S.O. 1990, chapter C.12 (“CLRA”), ss. 24(1), (7).
24The CLRA states that “[i]n determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: CLRA, s. 24(2).
25Subsections 24(3)-(5) of the CLRA describe the factors that inform the best interests of the child.
26Section 29(1) of the CLRA states:
A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.
27It is doubtful that section 29 of the CLRA applies to a request to vary an interim parenting order given that: (1) it only applies to a “parenting order” and not to an “interim parenting order”; and, 2) s. 24(7) of the CLRA distinguishes an “interim parenting order” from a “parenting order” as that phrase is used in s. 24(1) of the CLRA.
28It has been long established that the status quo, whether de facto or de jure, will be maintained on a motion for an interim parenting order unless there is cogent evidence and compelling reasons that the best interests of the child dictate otherwise: Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331, at para. 34. This assessment requires a balancing of whether there is an urgent need for the Court to intervene to protect a child’s physical or emotional well-being in light of new circumstances that have arisen since the time that an interim parenting order was issued against the need for cogent evidence of such circumstances as opposed to conflicting affidavit evidence, the child’s need for stability in parenting arrangements and the need, under Rule 2 of the Family Law Rules, to actively manage each case in an efficient and effective manner: J.T. v. E.J., 2022 ONSC 4956, para. 88.
29In Stec v. Blair, 2021 ONSC 6212, paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access:
22 Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.
23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)
24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.
30The Respondent’s main concern is that since the issuance of Justice Pinto’s Order in May 2022, the Applicant’s mother is now on vacation and, as a result, the Applicant’s parenting time with the child is unsupervised. She states that he is unfit to parent the child. She states that he does not actively parent the child while she is in his care. He denies this evidence and states that he feeds, changes and plays with her. The Respondent also states that the Applicant has exhibited “erratic and reckless” behaviour after he posted “disturbing” video on Instagram in reacting to the Respondent withholding parenting time. The Applicant acknowledges that the posts were inappropriate and states that they were a direct response to the Respondent’s intention to require that his parenting time be supervised.
31There is nothing new in the Respondent’s allegations regarding the Applicant’s alleged criminal activity and use of drugs were matters that were considered by Justice Pinto other than the fact that he was convicted 17 years ago for dangerous driving. There is no allegation that he has driven in an unsafe manner with the child. The allegations of the Respondent’s own history of drug use (see paragraph 31 of Justice Pinto’s Endorsement) were not specifically denied. The Applicant delivered hair follicle test results and steroid results to the Respondent. He tested negative for any signs of steroid use.
32On the motion before Justice Pinto, the Applicant alleged that during an episode of veranda parenting time, the child cried while being held by the Applicant. The Applicant produced a video which apparently shows the Respondent grabbing his arm so that he would return the child to her. He states that in doing so, the Respondent scratched his arm and drew blood. Justice Pinto did not rely on the video. Nor do I. However, the Respondent retained a forensic pathologist, Dr. Christopher Mark Milroy, to prepare a report to opine on whether the injuries shown on the Applicant’s arm were caused by the Respondent. The Applicant was served with this 176-page report on October 7, 2022. The Applicant challenges the admissibility of this report and in any event objects to its admission on the basis that she has been unable to cross-examination Dr. Milroy. Whether the Applicant’s injuries were caused by the Respondent is a matter that should be addressed at trial rather than on an interim parenting motion which should not be turned into a trial.
33I dismiss the Respondent’s motion. The Respondent’s evidence was largely considered by Justice Pinto (namely, the Applicant is an alleged drug user/trafficker, the Applicant drives recklessly, and the Applicant has a criminal past). There is no cogent evidence that the child has been harmed or put at risk of harm in his presence. The Respondent has failed to meet the onus for establishing the need for supervised access and for varying the interim parenting order.
34In respect of the Applicant’s motion for make-up parenting time, I find that it is in the child’s best interests to grant that relief.
Police Enforcement
35I find that it is necessary to order the police enforcement of the parenting time provisions of Justice Pinto’s Order. The views expressed by Mandhane J. in E.M.B. v. M.F.B., 2022 ONSC 4838, at para. 10, are equally applicable in this case:
While police enforcement is generally an extraordinary remedy, it is necessary here to ensure that the Child has stable and consistent parenting time with the Father. The Mother has repeatedly breached court orders and forced the Father to bring motions to reinstate his parenting time. The threat of police enforcement is the only way to ensure that the Mother will not supplement her judgment for that of this court.
36A few days after the hearing of this motion, the Court was advised that the Applicant had agreed to the following terms proposed by the TPS:
THIS COURT ORDERS that the respondent shall comply with the order of Justice Pinto dated May 27, 2022 and permit the father, Ramin Karimi, to see his daughter as permitted by the Order. In the event the mother, Ashley Kyron, refuses to provide access to the father as ordered the following provisions apply.
THIS COURT ORDERS that, pursuant to section 36(2) of the Children’s Law Reform Act, the Toronto Police Service are directed to forthwith locate, apprehend and deliver the child to the applicant.
THIS COURT ORDERS that, pursuant to section 36(4) of the Children’s Law Reform Act, the Toronto Police Service shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the Order of Justice Pinto.
THIS COURT ORDERS that, pursuant to section 36(5) of the Children’s Law Reform Act, for the purpose of locating and apprehending the child in accordance with this order, any member of Toronto Police Service may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable in the circumstances.
THIS COURT ORDERS that, pursuant to section 36(6) of the Children’s Law Reform Act, an entry or a search referred to in paragraph 4 of this order shall be made only between 6:00 a.m. and 9:00 p.m. standard time.
THIS ORDER shall expire 6 months following the date of this order.
THIS ORDER does not direct or authorize police to locate, apprehend and deliver the child more than once.
In the event this Order is used to apprehend the child the parties are hereby directed to appear back before a Superior Court Judge to advise as to the circumstances that this Order was required and to provide an opportunity for the Court make a further Order with regards to an appropriate custody arrangement given the Respondent’s repeated non-compliance with the Custody Orders.
Other
37Given the numerous interim proceedings in this case to date, I find that it is in interests of justice to move this matter to trial as soon as possible. A settlement conference is scheduled for January 16, 2023. I have set a date for a Trial Management Conference (“TMC”) for March 1, 2023.
ORDER
38Order to go as follows:
THIS COURT ORDERS that the respondent shall comply with the order of Justice Pinto dated May 27, 2022 and permit the father, Ramin Karimi, to see his daughter as permitted by the Order. In the event the mother, Ashley Kyron, refuses to provide access to the father as ordered the following provisions apply.
THIS COURT ORDERS that, pursuant to section 36(2) of the Children’s Law Reform Act, the Toronto Police Service are directed to forthwith locate, apprehend and deliver the child to the applicant.
THIS COURT ORDERS that, pursuant to section 36(4) of the Children’s Law Reform Act, the Toronto Police Service shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the Order of Justice Pinto.
THIS COURT ORDERS that, pursuant to section 36(5) of the Children’s Law Reform Act, for the purpose of locating and apprehending the child in accordance with this order, any member of Toronto Police Service may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable in the circumstances.
THIS COURT ORDERS that, pursuant to section 36(6) of the Children’s Law Reform Act, an entry or a search referred to in paragraph 4 of this order shall be made only between 6:00 a.m. and 9:00 p.m. standard time.
THIS ORDER shall expire 6 months following the date of this order.
THIS ORDER does not direct or authorize police to locate, apprehend and deliver the child more than once.
In the event this Order is used to apprehend the child the parties are hereby directed to appear back before a Superior Court Judge to advise as to the circumstances that this Order was required and to provide an opportunity for the Court make a further Order with regards to an appropriate custody arrangement given the Respondent’s repeated non-compliance with the Custody Orders.
The Applicant shall have make-up time for every hour of parenting time missed as a result of the Respondent’s breach of the Order of the Honourable Justice Pinto, dated May 27, 2022. Make-up time shall be added onto the Applicant’s existing parenting time in 2-hour increments on Saturdays and Sundays and shall be fully made up by no later than December 31, 2022.
A TMC shall be held on March 1, 2023, at 2:00 pm.
The Applicant father shall deliver his costs submissions by November 11, 2022. The Respondent mother shall deliver her costs submissions by November 21, 2022. All submissions are maximum of three pages exclusive of any offers to settle and an outline of costs.
Mr. Justice M. D. Faieta
Released: November 1, 2022
COURT FILE NO.: FS-21-26759 DATE: 2022-11-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RAMIN KARIMI Applicant
– and –
ASHLEY NICOLE KYRON Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: November 1, 2022