NEWMARKET COURT FILE NO.: FC-22-671-00
DATE: 20221116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.M.
Applicant
– AND –
S.Y.
Respondent
Ernst Ahurov, for the Applicant
Tanya Cianfarani (Duty counsel assisting the Respondent)
HEARD: November 16, 2022
Amended RULING ON MOTION
A HIMEL J.:
Relief Sought
[1] The Applicant (or the “father”) seeks an equal time parenting order in respect of the three children of the marriage, M. (age 13), T. (age 11) and Ma. (age 3).
[2] The parties married on July 5, 2003, in Iran. The family immigrated to Canada on September 2, 2010.
[3] On November 9, 2022 the parties were advised that the court would only review materials that comply with the page limits and proper formatting. The limits are: (a) moving party – an affidavit that is 12 pages double-space font 12, a reply that is 5 pages double space font 12 and no more than 10 pages of exhibits; and, (b) responding party – an affidavit that is no more than 12 pages double space font 12 and 10 pages of exhibits. Certain documents do not count towards the page limits.
[4] The father’s materials comply with the page limits. The Respondent (or the “mother’s”) materials do not comply. She has filed a twelve-page affidavit, further notes (single space), hearsay evidence of materials she has downloaded from a website about schizophrenia, a letter about the viability of the marriage contract and a translation of the Iranian marriage contact. The court does not take judicial notice of schizophrenia, and the marriage contract is irrelevant to the motion about parenting time. As such I am not considering these materials.
Facts
[5] The relevant facts as stated by the parties are below.
[6] The father states that the parties separated on January 1, 2019, however, they continued to reside under the same roof until June 2022. During that period the father resided in the basement and the mother and children occupied the upper levels of the home. The father states that both parents actively parented the children.
[7] The mother states that they separated in November 2021, when the father moved to the basement. He left the basement in March 2022 and stayed at a friend’s home. The mother offered that the father could continue to reside in the basement until everyone vacated the home in June 2022, so that he could be close to the children. However, he declined to do so. She states that the father moved to his own residence in May 2022.
[8] The parties now reside approximately 5 minutes away from one another. The father brings this motion stating that the mother refuses to permit any overnight parenting time. She recently texted that there will be no overnight parenting until: (a) the court makes a decision; (b) the father passes a mental health test; and, (c) separation papers are signed.
[9] The mother has concerns from 2020 onwards about the father’s mental health in respect to hallucinations, fears of people trying to control him and an incident in winter 2021/2022 when there was smoke in the basement. The mother states that there was a history of violence and financial control during the marriage, and she provides various examples. The mother reported the incidents to the Newmarket Police on October 14, 2022.
[10] In October 2022, the mother reported her concerns to the York Region Children’s Aid Society (“Society”). The father has spoken with the Society once (which he believes followed the criminal charges set out below).
[11] The mother does not support any overnight parenting time until she is reassured about the father’s mental health. The mother has consulted various professionals about her concerns about the father’s mental health.
[12] The father states that the mother has made it very difficult to see the children, and that the mother’s sister threatened to take (him) to the ground and choke him. Following the physical separation, the father only saw the children during the day on Mondays and Wednesdays and on alternate Saturdays and Sundays. The mother prevented the father from having any parenting time from October 16 (when the charges were laid) until this week.
[13] The father denies the mother’s allegations and raises concerns about her mental health (depression and threats of self-harm).
[14] The father was charged with three counts of mischief under $5,000 (s.430(4)) the Criminal Code), on October 16, 2022, which is immediately after the father served his notice of motion and affidavit. The charges were withdrawn on November 1, 2022.
[15] The mother refused to communicate with proposed third parties to facilitate the father’s parenting time (when there was a no-contact order in place). As stated above, the father had no parenting time for almost one month.
Issues and Analysis
The Law
[16] The claims in respect of custody and access can be made under both the Divorce Act and the Children’s Law Reform Act[^1].
[17] In assessing parenting issues, section 16 of the Divorce Act,[^2] provides direction to the Court. The considerations imposed by section 16 were reviewed by Mandhane J. in the recent decision E.M.BP. v. M.V.BP[^3]. I summarize the relevant portions of paras. 52 – 71 below.
PARENTING ORDERS UNDER THE DIVORCE ACT
On March 1, 2021, the parenting provisions contained in the Divorce Act came into force and the amended provisions apply to the application before me: ss. 126(1)-(2).
Circumstances of the child
The Divorce Act calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. Subsection 16(3) sets out the factors related to the “circumstances of the child”, which include, but are not limited to, the following:
a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d) The history of care of the child;
e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f) The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g) Any plans for the child’s care;
h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular, with one another, on matters affecting the child;
j) Any family violence and its impact on, among other things,
i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety,
Best interests of the child
When making a parenting order, I must stay laser-focused on the child’s best interests: Divorce Act, s. 16(1). Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.
According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).
Maximum contact
There is no presumption in favour of joint parenting and the term “maximum contact” is no longer found in the Divorce Act. The legislation states in s.16(6) 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”.
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.”
[18] The Supreme Court of Canada recently addressed the issue of parenting time. This was reviewed by Chappell J. in J.T. v. E.T., 2022 ONSC 4956 at para. 99, which is relevant to this motion.
“[99] As noted above, section 24(6) of the CLRA requires that in allocating parenting time, the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This principle, referred to in the past as “the maximum contact principle,” recognizes that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it benefits the child. However, the principle is simply a guide, and it does not create a presumption in favour of equal time or maximum time with each parent (Barendregt v. Grebliunas, 2022 SCC 22), at para. 125; Knapp v. Knapp, 2021 ONCA 305 (C.A.), at para. 34).
It is subject to the overriding best interests test, and to the paramount consideration set out in section 24(2) of the child’s physical, emotional and psychological safety, security and well-being. As a guiding principle, it is only relevant to the extent that it bears on the best interests of the child (Barendregt, at paras. 9, 135). The courts have clearly emphasized over the years that if increasing parenting time with a parent would not in fact support the child’s best interests, it should not be ordered (Young, at para. 40; Gordon, at p. 49; Barendregt, at para. 9, 135; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4; Knapp, at para. 30). In Barendregt, the Supreme Court of Canada directed that going forward, the principle should be referred to as “the parenting time factor” rather than the maximum contact principle” to reinforce the child-centric nature of the inquiry (at para. 135).”
The Parenting Time Schedule
[19] The mother relies on allegations contained in her affidavit and her concerns about the father’s mental health and family violence. As stated above she believes that only day visits and not overnight visits are warranted. The mother states that both children have made statements about wanting to limit their overnight time with the father.
[20] The father states that the mother is interfering with his parenting relationship and parenting time, that he has concerns about the mother, and that he was actively involved in the children’s care.
[21] I note that both parties allege family violence and that the other parent has mental health challenges.
[22] The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
[23] Family violence is a complicated area in which courts should be hesitant to make findings on a contested record. At the same time, the Divorce Act requires me to consider the effect of family violence. In doing so I am alive to the family justice professionals who advocate for a differentiated response to family violence.
[24] After the mother’s reports to the police about the history of family violence, the police opted to charge the father with mischief (a property charge) rather than assault or another form of family violence.
[25] The Society has heard the mother’s concerns (as of October 23, 2022), yet neither party is aware of any further steps being taken by the Society. It is unclear if there continues to be an investigation or if the matter is closed, or otherwise.
[26] On the facts of this case the best evidence before the Court in respect of the father’s parenting time is the combination of various facts set out below.
[27] The uncontradicted evidence before the Court is as follows: (a) the Society has heard the mother’s concerns and has not commenced a child protection proceeding or asked to work voluntarily with the family (as of today); (b) the father was charged with property-related offences after the mother was served the motion materials; (c) the criminal charges were withdrawn; (d) the mother declined to facilitate any parenting time since the charges were laid (October 16, 2022) and until this week; (e) there has been conflict during parenting time exchanges; and (f) prior to the father vacating the home he spent considerable time with the children. It was the mother who suggested that he continue to reside in the basement until everyone needed to move in June 2022.
[28] The children have a right to an ongoing and normalized relationship with the father. I accept the father’s uncontradicted evidence that he has an appropriate home with sufficient space to care for the children, and that the home is close to the children’s school.
[29] However, I am not prepared to order a week-on/week-off parenting time schedule at this time. Shared parenting can only be ordered when a court finds that such a plan is in the children’s best interests. On the evidence before me I decline to make such a finding.
[30] Shared parenting arrangements have a greater likelihood of success when the parties have good communication and good co-parenting, when both parents have been actively involved in their care and where there is low conflict. At this stage, the children have had no overnight parenting time with the father since at least June 2022. The parties disagree as to the father’s parenting role during the marriage.
[31] At this stage there is little evidence as to the older children’s views and preferences in respect of rotating back and forth between two homes on a week-on/week-off basis, when they have always resided in one home. Some older children do well with a week-on/week-off schedule and some do not. A Voice of the Child Report is warranted to assist the court when making a final determination at trial, if the parties are unable to resolve this dispute:
As stated by Kristjanson J. in M. v. F., 2022 ONSC 505:
“The obligation to consider the views and preferences of the child before parenting orders are made recognizes the agency of children and is based on the rights of the child. The United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Article 12 (“UNCRC”) specifically recognizes that children who are capable of forming their own views have the right to express those views in all matters affecting them, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial proceedings affecting them, either directly, or through a representative or an appropriate body. As Benotto, J.A. states in M.A.A. v. D.E.M.E. at para. 46:
The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests --which is engaged in all child-related matters -- must incorporate the child's view.”
[32] The proposed week-on/week-off schedule is concerning for Ma. (age 3), who has resided in the mother’s primary care since birth (and both parents until March or June 2022). He is cared for in the home by the mother and the maternal grandmother. The father suggests a new care arrangement on his parenting weeks with someone else or daycare. The schedule below is a significant change for this young child. Changing the caregiving plan as well may be disruptive which may impede his ability to adjust to the new and increasing parenting time schedule.
[33] The AFCC-Ontario Parenting Guide recommends schedules that prevent young children from being away from the other parent for more than three days. The schedule below addresses that concern and provides the father with a normalized parenting time schedule (stepping-up to 4/14 overnights, and one mid-week parenting time period).
[34] The step-up schedule below delays the implementation of overnight parenting time until the father provides the letter (required of both parties) that addresses any concerning use of alcohol, illegal substances and mental health concerns. Each party shall provide the requested letter set out below to the other within 14 days (and to the Society upon request).
[35] For the above reasons, I make the following schedule for the father’s parenting time:
(a) Commencing Friday November 18, 2022, the children shall be picked up in the mother’s driveway at 4:00 p.m. every Friday with a return to the mother’s driveway at 7:30 p.m. and every Saturday from 11:00 a.m. to 7:30 p.m. with exchanges in the mother’s driveway.
(b) Commencing Friday December 9, the father shall pick up the children in the mother’s driveway on alternate Fridays at 4:00 p.m. with a return to the mother’s driveway on Sundays at 7:30 p.m. (except on December 25, when he shall return them at 2:00 p.m.).
(c) Commencing Friday December 16, the father shall pick up the children in the mother’s driveway on alternate Fridays at 4:00 p.m. with a return to the mother’s driveway at 7:30 p.m.
(d) Commencing Wednesday November 23, father shall pick up the children in the mother’s driveway every Wednesday at 4:00 p.m. with a return to the mother’s driveway at 7:30 p.m. Commencing December 13, the father will return the older children to school on Thursday morning and Ma. to the mother’s driveway after the school morning drop-off. The father will take any child to any scheduled activity.
(e) For the winter break the children will be in the father’s care from December 23 to 25 (as per above), December 27 (11:00 a.m.) to December 30 (7:30 p.m.), January 2 (11:00 a.m.) to 4 (7:30 p.m.) The usual alternate weekend schedule re-commences with the children in the father’s care from Friday January 6, 2023 (4:00 p.m.) to Sunday January 8, 2023 (7:30 p.m.). Exchanges in the mother’s driveway.
(f) Commencing January 6, 2023, the father shall have an additional 24 hours when there is a statutory holiday attached to the father’s weekend.
(g) For March break, the father shall have the children for half of the break (with an exchange on the Wednesday at 7:30 p.m. attaching to his weekend).
(h) Commencing 2023, the father shall have Easter Sunday (11:00 a.m.) to Monday (7:30 p.m.) if the children are not in the father’s care.
(i) The father shall have Father’s Day from Sunday at 11:00 a.m. to 7:30 p.m. (but a return to the mother on Mother’s Day at 11:00 a.m. if the children are in his care).
[36] Both parties are also expected to advise their extended family to protect the children from the conflict and to avoid discussing the litigation, the conflict and the other party/family when the children are present. They are to protect the children from the conflict. The parties are directed to review the AFCC-Ontario parenting guide (www.afccontario.ca), the BIFF communication protocol, the High Conflict Tip Sheet and the For Kids Sake Protocol.
[37] The mother shall not advise the children that they should not sleep at the father’s home. If any child hesitates in wanting to go to the father’s home, it is the mother’s obligation to support the court-ordered schedule. The mother admitted the statement above in her affidavits.
[38] A copy of this endorsement is being sent to the York Children’s Aid Society (attn: A. M.-M.) so that it can be forwarded to the relevant worker. If the Society advises the parties that there are child protection concerns that warrant temporary changes to the above schedule, the parties are expected to comply with any such requests and to work voluntarily with the Society to address any child protection concerns. If requested, each party shall provide the Society with the letter set out below from the family doctor.
[39] The next step in the litigation is a settlement conference which shall be held on March 24, 2023 at 11:30 a.m. (in person).
Costs
[40] At the conclusion of the motion, I asked the parties for submissions on the issue of costs given the schedule that I was ordering.
[41] The father incurred costs of about $5,000 on a substantial indemnity scale. He made an offer to settle but did not beat his offer (for a 50/50 shared parenting schedule). He seeks costs of at least partial indemnity. The father states that the mother’s refusal to consent to any overnight parenting time was unreasonable, as was her refusal to consent to parenting time after October 16 and until last week (as well as the criminal charges themselves).
[42] The mother is self-represented. She seeks an order for no costs or that costs be adjourned to the trial judge.
[43] The parties have had divided success. The overnight parenting time has been ordered, although it is delayed until after the provision (on consent) of letters from each party’s family doctor (who is the same person). The delay also provides the Society the opportunity to consider if there are any child protection concerns about either parent.
[44] While each party denies any mental health issues, without the benefit of receiving the letters, and without a clear understanding of the Society’s role (if any) with this family, it is difficult to determine with certainty if the mother’s refusal to consent to overnight time is unreasonable. However, at this stage I am concerned about the statements made by the mother about the children and their time with the father, and the period of no parenting time.
[45] I am adjourning the issue of costs to the trial judge.
TEMPORARY ORDER TO GO:
In accordance with the above parenting time schedule. The schedule shall remain in place until otherwise agreed to by the parties or ordered by the court.
On consent:
a. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of or within earshot of the children.
b. Each party shall provide a letter from his or her family physician regarding his or her mental health, including any diagnosis and currently prescribed medication, and any concerns about the use of illegal substances or alcohol use, within 14 days of this Order.
c. Neither party shall consume alcohol or illegal substances 12 hours prior to his or parenting time or while in a caregiving role.
d. Neither party will expose the children to any violent content on any social media platform and will ensure that any content that the children have access to on social media is safe and age-appropriate.
e. The Applicant and Respondent shall refrain from discussing hypnosis or the paranormal with the children.
f. The Applicant and Respondent shall refrain from engaging the children in age-inappropriate activities.
g. The parties shall exchange Requests for Information by no later than December 15th and such requests shall be answered by January 16, 2023.
h. The OCL is appointed with a request to produce a Voice of the Child Report for the two older children, commencing mid-January 2023. Counsel to follow up with the OCL in early January 2023.
i. On a without prejudice basis, the father shall pay child support in the amount of $856 per month commencing December 1, 2022. The child support is based on the father’s 2021 personal income of approximately $43,000.
SDO to issue.
There shall be a settlement conference on March 24, 2023 at 11:30 a.m. in person. Both parties to comply with the relevant Practice Directions and Family Law Rules, and to provide offers to settle. Full financial disclosure for a self-employed person is required for the father. Year end 2022 and year to date 2023 financial disclosure is required.
_____________________________ Justice Andrea Himel
Date: November 16, 2022
[^1]: R.S.O. 1990, c.C.12.
[^2]: R.S.C. 1985 c. 3 (2nd Supp).
[^3]: 2021 ONSC 4264.