COURT FILE NO.: FC-19-200
DATE: 2022/02/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Farouk Ali, Applicant
AND
Annine Marjorie Obas, Respondent
BEFORE: The Honourable Mr. Justice Pierre E. Roger
COUNSEL: Altynay Teshebaeva, Counsel for the Applicant
Julie Gravelle, Counsel for the Respondent
HEARD: January 20, 21, 25 – 28, and February 1 – 3, 2022, by video conferencing
REASONS FOR DECISION
Issues
[1] The parties have settled many issues, including that decision-making responsibility related to the child's health and education shall be joint. However, they have not been able to resolve all issues, primarily those relating to the father’s parenting time.
[2] The child’s primary residence has always been with the mother, and the father’s parenting time progressed through various court orders to its current five out of 14 days. The father seeks seven out of 14 days on a 2-2-3 schedule, and the mother seeks to preserve the current arrangement of five out of 14 days. Other issues include: which parent makes medical and dental appointments for the child; which parent keeps the original documents; whether the exchange of the child should continue to occur at the police station; and who should have the child during birthdays, at Halloween, and during summer vacations.
Factual Background
[3] The applicant is the father of the child and the respondent is the mother of the child. The parties are well-educated professionals. They both reside in Ottawa; the father in the Sandy Hill area of the City and the mother in the Orleans area, about 30 minutes apart by car.
[4] The child is a smart and healthy little girl born in May 2018. It is undisputed that she is fortunate to have two parents who love her immensely. Her first language is French, which she speaks with her mother and grandmother. The child also speaks English with the father.
[5] Prior to the birth of the child, the parties dated and were, on and off, a couple from 2014 until shortly before the child was born. They resided together only occasionally and for brief periods, but they considered buying a home and raising the child together prior to their final separation in April 2018.
[6] It is not disputed that the parties had an argument one evening in April 2018. It started as an exchange of words, from both sides, and escaladed to some pushing back and forth. The father alleges that the mother pushed him and spat at him. He admits that he threw water at the mother but denies that he slapped her. The mother says that the glass contained apple juice, and therefore, that it was apple juice that was thrown at her. The mother also alleges that the father slapped her once during this argument and that it was the father who did the pushing. It is agreed that the father refused to leave and only left after being asked to do so by the attending police officer. The father testified that he regrets his actions of that evening and that he apologized. This event marked the end of the parties’ romantic relationship.
[7] Nonetheless, the father attended at the hospital for the birth of the child in early May 2018 and was allowed parenting time with the child until about May 28, 2018, when the mother terminated the father’s parenting time. The mother terminated the father’s parenting time because the father unexpectedly and without permission twice kept the child overnight, on May 14 and May 23, 2018, and because he behaved inappropriately on May 28, 2018 when he was aggressive with the mother and momentarily drove away with the child, again without the mother’s permission.
[8] The mother then decided to consult a lawyer and refused to allow the father any parenting time. The father repeatedly wrote to the mother asking for cooperation, asking for the appointment of a mediator, and asking for some resolution that would allow him to see his daughter. The mother’s lawyer responded on June 7, 2018 with an offer of parenting time of one to one and a half hours three times per week. The father did not accept this offer and asked for four hours three times per week with additional time during the weekend day. Counsel for the mother responded that the mother would agree to two hours three times per week, but this was not sufficient for the father. The father had previously sent a very long letter explaining why he should have more parenting time with his daughter. The parties exchange letters but could not agree. In October 2018, the father finally accepted the parenting time offered by the mother, which by then she had limited to one half hour per visit. Despite many letters from the father asking to see his daughter, this could however not be arranged with the mother until November 17, 2018.
[9] Finally, on November 17, 2018, the father was allowed to spend 30 minutes with the child. This was the father’s only parenting time with the child since May 28, 2018. Moreover, this brief visit was also to be the father’s last parenting time with the child until August 18, 2019.
[10] The mother testified that the November 17, 2018, visit did not go well. She said the child was crying when she returned, and the father had not given the child her favorite toy to try and comfort her. Thereafter, the father kept writing requesting parenting time, but received very little response from the mother. On January 2, 2019, the lawyer then representing the father wrote to the mother’s lawyer asking for parenting time of two hours three times per week plus four hours on Saturday. No response was received to that letter. Ultimately, this application was started by the father in February 2019, and still no parenting time was allowed between the father and child until August 18, 2019. The mother said that she felt threatened by some of the letters written by the father. However, some of those letters were written as late as June and July 2019, and in such circumstances a parent might understandably become frustrated. This long period of relative silence by the mother, and her steadfast refusal to agree to any parenting time, impacted the child’s time with her father because from May 28, 2018, when the child was days old, until August 18, 2019, when the child was one year old, despite the many letters and emails that the father wrote requesting to see his daughter, the child saw her father only once, on November 17, 2018 for 30 minutes.
[11] At the case conference of August 12, 2019, the parties agreed on a temporary and without prejudice interim order, until the father’s access motion could be heard, that the mother would share relevant information with the father relating to the child and that the father would have access to the child, at a children’s play center, starting on Sunday, August 18, 2019, every Sundays and Wednesdays from 4:00 to 5:00 p.m. and every Fridays from 4:00 to 6:00 p.m.
[12] The father’s access motion had to be adjourned because a bilingual judge was not available, but as a term of the adjournment, the father’s parenting time was ordered expanded to every Wednesdays and Fridays from 3:00 to 7:00 p.m. and every Sundays from 10:00 a.m. to 2:00 p.m. Thereafter, the father’s access motion was not heard because just prior to the motion, the parties agreed to retain an expert, Ms. Bourgeois, to conduct a parenting assessment. However, this assessment was never conducted because the mother never signed the retainer agreement and because the father was not having any overnight access, which apparently would not have permitted the assessment.
[13] After October 30, 2019, the father was not allowed any parenting time with the child until a consent order of December 10, 2019, reducing his parenting time. The mother was going back to work, and this was a difficult period of transition. The mother testified that the father was often late, as he wanted to make up lost parenting time. The mother also testified about an incident with the father on September 8, 2019, when the father was difficult during an exchange.
[14] The father brought another motion for more parenting time, and, on January 16, 2020, I signed a consent order expanding the father’s parenting time and requiring the parties to retain Ms. Guindon as a parenting coordinator. Under this order, the father was to have parenting time every Wednesdays from 3:00 p.m. to 7:00 p.m. and every alternate Mondays from 3:00 to 7:00 p.m., together with every alternate Saturdays and Sundays from 10:00 a.m. to 4:00 p.m., with overnights on Wednesday evenings to start “in one month”.
[15] The mother testified about an incident during an exchange of the child on February 2, 2020, when the father was late and agitated. The mother was concerned about this and wrote a memo outlining her concerns, including that the child was wearing summer shoes.
[16] The January 16, 2020 order provides that overnights with the father were to start in one month, which computed to Wednesday, February 19, 2020. However, the father kept the child overnight on February 12, 2020, one week earlier than what was allowed by the order. The father is highly educated, with an undergraduate and graduate degree in engineering and a PhD in human kinetics, and one would think that he should have been able to accurately calculate the commencement date of the overnights without relying on his lawyer’s erroneous calculation. The mother testified that she was concerned given the father’s early history of twice keeping the child overnight without the mother’s consent, and her lawyer argued that this occurred just as the pandemic was locking everything down. Nonetheless, the father explained that it was his lawyer’s error: his previous lawyer confirmed that it was her computing error. Moreover, even if the father probably knew better, the father’s previous lawyer had sent an email to the mother’s lawyer confirming that the father was looking forward to his first overnight access visit on February 12, which, in any event, was one week earlier than allowed by the order. Nevertheless, despite the order of January 16, 2020, and despite the involvement of a parenting coordinator, the mother refused to allow the father any parenting time from February 13, 2020 until June 17, 2020, when parenting time resumed with the help of the parenting coordinator, Ms. Guindon.
[17] Following June 2020, parenting time with the father proceeded as per the order of January 16, 2020. The mother testified that it was initially difficult for the child, but that it went better with time. Ms. Guindon’s involvement continued and on December 15, 2020, she awarded the father weekend overnights. The mother disagreed with the awards of Ms. Guindon and brought a motion seeking to remove Ms. Guindon as parenting coordinator.
[18] The mother testified that she was suspicious that the father was not changing diapers appropriately and she started marking diapers. In February and March 2021, the mother was concerned by reports that the father wrote to the parenting coordinator in which he complained about the potential impact on the child of the mother unilaterally restricting parenting time; she perceived such correspondence as threatening. The mother also testified that she was generally worried about the father’s parenting time because she observed that the child was more tired and hungry when she returned from visits with the father. As well, the mother testified that during this time, starting in February 2021, the child spontaneously mentioned that she did not like being kissed by her father because his mouth was not clean. The mother also testified that starting in April 2021, the child started to talk about being slapped by the father (“Elle parle de tapes par son père”). The father denied slapping the child. I note that all of this was happening while the mother was bringing a motion seeking to remove the parenting coordinator and to limit the father’s parenting time.
[19] The mother’s motion was heard on April 27, 2021, and on May 10, 2021, for jurisdictional reasons, Shelston J. set aside the parenting coordinator process. Shelston J. asked for additional written materials to address ongoing parenting time, and on June 1, 2021, he ordered essentially the same parenting time that had previously been recommended by Ms. Guindon. Shelston J. ordered, on a temporary basis, the five out of 14 days parenting time schedule that is still in place. His order provides that the father shall have parenting time:
• Every Wednesday from 3:00 p.m. to Thursday at 8:30 a.m.
• Every second weekend from Friday at 3:00 p.m. to Sunday at 6:30 p.m. As well, it provides that the father’s weekend parenting time will be extended for that summer to Monday at 8:30 a.m. on Monday August 2, August 16, and August 30, 2021.
• Every second Monday from 3:00 p.m. to Tuesday at 8:30 a.m.
[20] The child’s maternal grandmother also testified. She has lived with her daughter (the mother) and the child since just prior to the birth of the child. She looks after the child while the mother works remotely from home; the mother testified that she expects to continue working remotely after the pandemic. The maternal grandmother testified that the child occasionally says that her father slaps her (“Des fois elle dit: mon papa m’a encore tapé”).
[21] A co-worker of the mother testified that during a zoom conference, sometime in the spring of 2021, the child suddenly appeared and blurted out that she does not like it when her father kisses her on the mouth because it is not clean (“Mon papa me donne des becs sur la bouche, c’est pas propre, j’aime pas ça”). The co-worker said that this was the first and only time that she saw or met the child, and she admitted that she does not remember the exact words that the three-year-old child said.
[22] Ms. Morinville, a person with a background in social work who conducts parenting assessments, prepared a report under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), which was admitted in part. Ms. Morinville testified that the child needs a routine, stability, and structure to feel secure and that the child has difficulty with transitions. She also said that the child is still in the process of building a relationship with the father because she did not see him or see him regularly during the first years of her life. In her opinion, seven consecutive days with the non-primary parent is too long for a child of almost four years of age. As well, she said that the child must be allowed to develop her autonomy and not be subjected to family conflict. Some of her recommendations focused on trying to minimize transitions. She agreed that both parents truly love the child and that the child is comfortable with the father. As is indicated more fully below, I place limited weight on Ms. Morinville’s recommendations because they are more focused on her perception of concerns with the father’s historical conduct, which is not always supported by the evidence, rather than on the needs of the child and the ability and willingness of both parties to satisfy those needs.
[23] The parties filed a summary of the information obtained from the child’s family doctor, confirming that the child is in good health and that she sees her doctor when required. The child will turn four this upcoming May, and she is scheduled to start school in September 2022.
Analysis
[24] The CLRA provides that in making a parenting order with respect to a child, the court shall only consider the best interests of the child. In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, giving primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
[25] The CLRA provides that all factors related to the circumstances of the child are to be considered, including:
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, 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 co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[26] The weight to be given to all relevant factors is a matter of discretion to be exercised considering the circumstances of the case.
[27] The CLRA also provides that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. It further provides that in allocating parenting time, the court shall 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.
[28] With regards to contact with each parent, the Supreme Court of Canada has indicated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 117–118:
The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access…
[29] On that topic, in Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1, at para. 27, the court states, “[w]hile the maximum contact principle is not absolute, it is mandatory. … As the court decided in Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.), while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption to the child.”
[30] When considering all relevant factors, the evidence indicates that the child needs love, routine, and structure to feel secure. She is young and finds transitions difficult. Evening transitions would probably be more difficult for her at this stage because they can interfere with her bedtime. It is probably in the child’s best interests to limit transitions and to have transitions occur early. On the latter, the evidence indicates that the child resists going to bed and wants to stay up in both homes, and that going to bed around 8:00 p.m. should at this time be the approximate target.
[31] The evidence also indicates that the child is fortunate because she is loved very strongly by both her parents, and both parents offer her all their support. Ms. Morinville said that the child is truly loved in both homes and, with regards to the father, that the father offers the child a great deal of love and support as well. Both parents show their affection to the child, and although this is difficult to assess at the child’s age, the evidence indicates that the child loves both parents.
[32] The mother and the maternal grandmother have a wonderful relationship with the child, and there is no question that the child loves them very much. The father and the child also share a strong relationship, which is still developing, and the child is close to her father. For example, the father and the child share many hugs, and the child is comfortable with her father. Ms. Morinville observed that the child is comfortable saying “no” to her father, and observed the child easily engaging in play with her father, making frequent eye contact with him, and following his directions. Both parents show affection to the child and the child shows her affection in return. With regards to the father, Ms. Morinville observed the child to be comfortable climbing on her father’s lap, cuddling with him, taking his hat to place on her head, playing with him while having a snack, and engaging in conversation with her father. The mother admitted that the child loves her father, and this is supported by the evidence.
[33] Both parents are invested in the child, and both do their best for her. For example, the father testified that he tries to instill in the child a love for books, a desire to read, good character, and respect for elders. He engages the child in related activities and teaches the child a love for art and music.
[34] Both parents offer stability to the child. The mother has offered stability to the child from the child’s birth. The father has progressively been a stable figure in the child’s life, particularly since August 2019, and the child’s time with her father has since steadily increased.
[35] Both parents offer the child a good and comparable routine, with the exception that the father should put the child to bed slightly earlier to better mirror the child’s routine with her mother as stability in both households is important to the child. Both houses are well equipped for the child. For example, she has her own bedroom in both homes and the father has equipped his basement to allow cycling for the child. The child gets exercise and activities at both homes. With her father, for example, she visits parks, helps her father to prepare meals, and learns to help with daily chores.
[36] Both parents are involved with their respective extended family, and both seem to involve the child with their family. This seems important to each parent.
[37] The father testified that the mother is a “fantastic” mother. He said that the mother’s role is pivotal for the child. The mother does not appear to fully return the sentiment.
[38] For example, the mother has resisted increasing the father’s time with the child. At the initial case conference in August 2019, the mother agreed to one hour for three days a week. The father had to bring a motion to increase his parenting time, and his time was increased to four hours for three times per week. The father had to bring another motion to increase his parenting time on January 16, 2020, and it took the parties too much time to fully implement the terms of the January 16, 2020 order because the mother terminated the father’s parenting time for four months. When the parenting coordinator increased the father’s time slightly from what was ordered in the January 16, 2020 order, the mother moved to remove the parenting coordinator. The father had to bring another motion to increase his parenting time, which was granted by Shelston J. on June 1, 2021, and Ms. Morinville noted that if the mother were to make decisions solely, the father’s role might be further diminished.
[39] Given the history of the mother’s resistance, it is unlikely that she will agree to any increase in the father’s parenting time going forward.
[40] The child has lived primarily with the mother since birth, and caregiving at the mother’s home is supported by the maternal grandmother. There is no question that the child is extremely well cared for by her mother and grandmother. The mother argues that the child is happy and thriving under the current status quo and that the status quo should be preserved. I do not doubt that the child is happy and thriving. However, I do not consider the child’s current living arrangements to reflect the status quo because the father has consistently advocated for more parenting time, and the mother has consistently resisted.
[41] The mother argues that the father’s plan will disrupt the child’s stability and disrupt a schedule that appears to be working for the child. Indeed, the father might require daycare and will need to commute to the child’s school. However, as the Court of Appeal reminds us in Berry, while being with a happy parent has a positive effect on a child, the legal test focuses on the best interests of the child and maximizing contact with both parents as is consistent with the child’s best interests.
[42] The father’s parenting time proposal would involve six transitions for the child while the current regime, which the mother does not oppose, involves eight. By comparison, the recommendations of Ms. Morinville would also involve six transitions for the child.
[43] The father was present at the child’s birth. He was initially allowed parenting time by the mother and should not have taken the child for two overnights without the mother’s consent. Even if he said that he cared for the child properly and the child was not in distress, the father now understands that this was wrong. The father has taken parenting and high conflict courses and seems to have gained insight and understanding that some of his historical behaviour was not acceptable. The father regrets his actions. The father also wrote inappropriate letters to the mother but admitted that they were inappropriate and admitted that one of his early letters to the mother was “full of ignorance”. I accept that the father regrets his actions.
[44] The father did not see the child from June 2018 to August 2019 except for one half-hour visit in November 2018. However, starting in August 2019 the father had regular, albeit with interruptions, parenting time with the child. The father had regular overnights (Wednesday to Thursday) since July 2020 and regular weekend overnights (Saturday to Sunday) since October 2020. Since June 1, 2021, the father’s parenting time expanded weekend overnights (Friday to Sunday) and weekday overnights (two weekday overnights during Week 1 and one weekday overnight during Week 2).
[45] Both parents have significant capacity and disposition to provide guidance, education, and the necessaries of life to the child. As well, both parents have demonstrated an ability to understand and meet the needs of the child. In this regard, I disagree and place limited weight on the assessment of Ms. Morinville because her assessment of the father’s ability to meet the child’s needs is not based on the evidence.
[46] Ms. Morinville testified that the father was not in tune with the child’s needs because he “just picked her up and carried her in, instead of explaining to her that it was hot outside”. Yet, she admitted that the father had squatted beside the child explaining that it was hot outside. Nonetheless, she used this example to make a strong negative statement about the father’s parenting ability, stating “Mr. Ali forced his will on the child”. As well, she stated that to offer stability to the child, the father would benefit from following a routine closer to the mother’s routine. However, when questioned about this, she admitted that she did not closely compare the two schedules and that she rather meant that the child needs to go to bed earlier while with the father. However, when questioned further about this, she also admitted that she did not have the facts about when the child was going to bed in the mother’s house. She was defensive of her opinions and occasionally refused to admit the obvious, for example when she refused to answer questions about sufficient hours of sleep for the child. She also said that the father was not in tune with the child’s needs because he proposed a 7/7 schedule. But she failed to compare her understanding with the sworn document provided by the father, and she failed to discuss this with the father to better understand his position. As well, her conclusions were not logically drawn from her observations. For example, she expressed an issue with the father’s character and found him disingenuous because he told her that he expected the process to be focused on the present more than on past events. As well, she drafted her report more as a critique of the father’s character, but in doing so, she jumped to incorrect assumptions, for example about the father’s knowledge of the child’s last name and did not mention or discuss the mother’s withholding of parenting time and how it might factor into the mother’s willingness to foster the child in continuing to develop a relationship with her father. She admitted as well that she is not an expert on child development and attachment, and she focused on historical events involving the father that were not necessarily relevant to the current parenting time.
[47] As indicated above, it is not disputed that the father loves the child. The father testified that he likes to parent by example, and that he only disciplines the child when necessary, never with any physical discipline. He said that he considers the child’s opinions and that he tries to instill in her a love for books and reading. He lives alone and said that he and the child are very close. He also completed parenting and high conflict courses. He testified that he seeks equal parenting time for the child to be better adjusted because “time is love” and his active involvement will demonstrate this to the child, as well because the child is close to and loves her extended paternal family.
[48] The father works hard as a consultant, but his schedule is flexible. Because of the COVID-19 pandemic, he currently works from home, and after the pandemic, there will be some flexibility to occasionally work from home. The father said that he seeks to have seven consecutive days with the child during the summer because they are closer now and the child will be four years old by next summer. He does not wish to continue with the pickup and drop-off at the police station because he fears that this sends the wrong message to the child. He wishes to be involved in making some of the child’s medical appointments because he alleges that there is no discussion from the mother about this. He testified that in more than the last year, the mother has provided him with no information about the child’s health (despite being ordered to do so at the initial case conference).
[49] The father did not dispute that his relationship with the mother was at times tumultuous. However, he denied being violent and denied slapping the mother or the child. Some of his early letters or correspondence to the mother about the child, particularly when he had no parenting time or when the mother would not agree to more parenting time, were inappropriate in tone and in content; some containing threats or veiled threats. He explained that he was frustrated by long periods of no or of little parenting time and that he never intended nor did he ever act upon any of what he then said; still, he should have known better and acted better because two wrongs rarely make a right. Nonetheless, there is no evidence that he did any of the things mentioned in his letters and, on the other hand, some of his other letters were polite and appropriate – despite most being sent in a difficult and highly charged context of a parent not seeing his daughter for long periods of times and constantly seeking either some or more parenting time.
[50] In assessing the circumstances of the child, I place no weight on the allegations that the father slapped the child, or that the child did not like being kissed by the father because his mouth is not clean.
[51] About not liking being kissed, the mother’s coworker had never met the child before, and I find the coworker’s evidence not reliable because it is not probable that she could have heard what the child allegedly spontaneously blurted out without some interpretation by the mother. The child was young at the time and her linguistic abilities probably reflected her age. As well, or in any event, it is not clear what this might mean coming from a young child.
[52] I also find the evidence of the mother and of the maternal grandmother about these allegations not credible and reliable. The mother and the father were engaged in litigation at the time that these allegations came to light and the timing is suspicious. The mother was trying to set aside the parenting coordinator process while the father was trying to increase parenting time. It was a highly litigious period, and it seems too coincidental to be probable that these allegations were then said by the child. Moreover, it is concerning that despite statements about being slapped by her father being allegedly constantly made by the child, the mother was not concerned about the safety of the child, took little steps, and did not make notes of these allegations when she historically made notes about less important matters.
[53] As well, the mother provided different versions of how the conversations with the child about a slap on her hand unfolded. In her testimony, the statement was made in the car after she picked up the child and asked her questions as to how her weekend with her father had been. However, in her Affidavit of May 25, 2021, this statement was made at home. When asked about these inconsistencies, the mother said that she was confused with dates, but did not explain why she provided a different context as to how or when the same statement was allegedly made by the child.
[54] About being slapped on the mouth, the mother initially testified she did not pay attention to this and later testified that she had a tape recording about this. It was during her evidence at trial that the mother disclosed for the first time that she had a recording about this. She never informed the father that the child told her that he had slapped the child on the mouth. She also did not mention this in her affidavit of May 25, 2021, when she was resisting the father’s request for more parenting time.
[55] Moreover, the mother had a tendency to exaggerate this evidence when she said that the child repeats these allegations basically all the time, and that if she had kept a written record of when the child said this, she would have recorded constantly; the mother historically recorded much less important matters. As well, if this was being constantly repeated by the child, it is not believable that the mother would have no safety concern and would have contacted the Children’s Aid Society only once and not pursued this further because she is otherwise a concerned mother. Historically, the mother stopped parenting time when she thought she had to, yet, about this she was not concerned. It is also surprising that the child’s maternal grandmother was not more concerned about this either. On a balance of probabilities, these statements are not believable. As well, this negatively impacts my general assessment of the mother’s credibility.
[56] The parents are both of Caribbean background, and their cultural background is important to them. Both wish for the child to learn their background and customs. They both have a lot to share with the child from this perspective as well. The mother prepares traditional meals on occasion, and the father and the child listen to music, including Tonga and Reggae. Ms. Morinville reported that the father’s Caribbean culture and love of art also offers much to the child. Both parents have a lot to offer to the child.
[57] Regarding plans for the child’s care, the child is currently primarily with her mother and maternal grandmother for five out of 14 days. Both parents have presented reasonable plans for the care and upbringing of the child. Furthermore, there is no question on the evidence that both parents are dedicated to the child and that the child enjoys stability, parental love, and dedication from both parents.
[58] The mother proposes to continue with the current five out of 14 days temporarily ordered by Shelston J. in June 2021, or to adopt the five out of 14 days recommended by Ms. Morinville. The father seeks two additional days to bring the schedule to seven out of 14 days with each parent. He proposes to change the current schedule starting April 1, 2022, by adding one overnight, and testified that if granted, he will make arrangements for the child for Thursday. He said that he has flexibility at work. Starting on September 1, 2022, when the child starts school, the father seeks one additional overnight, to bring the parenting schedule to seven out of 14 days. He seeks a 2-2-3 schedule, with his parenting time as follows:
i. Week one:
From Monday at 3:00 p.m. to Wednesday at 8:30 a.m.; and
From Friday at 3:00 p.m. to Monday at 8:30 a.m.
ii. Week two:
- From Wednesday at 3:00 p.m. to Friday at 8:30 a.m.
[59] The child will start school in junior kindergarten in September 2022. The father testified that he will be able to drop off and pick up the child at school, with the parties arranging any required before and after care for the child.
[60] I am concerned that some aspects of the father’s plan for the child have not been precisely outlined. However, the father testified that his employment is flexible and that he has been doing all the driving to and from Orleans in the past three years, and that he will be able to continue to do what is required. Although the mother’s plan offers continuity and stability, I am concerned that it risks perpetuating the minor or secondary role that she has attributed to the father and that this will occasion ongoing conflict between the parents to an extent that it will soon be observed by the child and be detrimental to her best interests. The evidence does not reassure me that the mother is prepared to nurture the ongoing development of the father’s parental relationship.
[61] Despite the father’s plan not being precisely outlined, the father has demonstrated an ability to care for and meet the needs of the child. The father has a well thought out routine that is comparable to that of the mother; it only requires that the child go to bed slightly earlier while with the father. The father otherwise incorporates the child very well into his routine. He plays interactive games with the child and teaches her house chores. He also sets out limits for the child.
[62] I accept the father’s evidence that he does not use physical discipline. The father has learned how to discipline a child in his parenting courses, and I accept that he wants to create a welcoming environment for the child. Moreover, the father has always sought professional involvement to increase his parenting time, and it seems improbable that he would have constantly done so if he used physical discipline.
[63] As well, the father cares for the child’s health and has demonstrated a concern for her well-being. The father took courses and learned techniques to employ with the child, such as how to connect with the child before correcting her and how to be in a calm place before disciplining the child.
[64] Regarding the parties’ ability and willingness to communicate and cooperate on matters affecting the child, the parties were able to settle most of the decision-making aspect of this matter, demonstrating a degree of cooperation. As well, the mother’s pick up and drop off chart shows that there have not been significant issues at exchanges since about June 2020. The parties have also shown that they can communicate about some child related issues, but they need to continue their efforts to keep the tone and content child focused and acceptable. Similarly, at least to date, the parties have been able to shield the child from their conflict.
[65] With regards to family violence and its impact, I am concerned about the father’s history. There is an uncontested incident in 2015 when the father slapped the mother. In April 2018, another incident occurred between the parties that involved pushing back-and-forth, and the father throwing liquid at the mother and possibly slapping her. There is also another incident in May 2018, when the father pushed the mother and left with the child, and another incident in September 2019, when the father was late for an exchange and refused to return the child to the mother. As well, at some of the early exchanges, the father attempted to bully the mother, and he threatened the mother in some of his earlier correspondence. There is, however, no evidence that these past events impact the father’s ability and willingness to meet the needs of the child, nor that this impacts the parties’ ability to cooperate on issues affecting the child - the parties have consented to joint decision-making responsibility. These are isolated and historical events. There is no evidence of more recent violence events. There is no evidence that these events could compromise the safety or the physical, emotional, and psychological well-being of the child. Furthermore, I do not accept the mother’s evidence that she fears the father because she agreed to joint decision-making responsibility and because on November 8, 2019, after the violent events, she suggested that pickup and drop-off of the child occur at her residence.
[66] On this point, the mother’s insistence that pickup and drop-off continue to occur in the parking lot of a nearby police station is not necessary and not required by the evidence; it is not in the best interests of the child.
[67] Exchanges in the parking lot of a police station should be a rare event because it is not clear what they accomplish other than conveying a negative message. If the safety of the child or of a parent is at risk, such a measure is likely inappropriate because it offers little other than the illusion of protection. It is preferable to address and diffuse the situation. If appropriate in the circumstances of a particular case, it should usually be a temporary measure because it risks sending the wrong message to the child and not being child focused.
[68] Here, there has been no recent incident and no difficulty with exchanges since about June 2020. The child is still young but will eventually understand that there must be something wrong if her exchange is required to occur in the parking lot of a police station. The safety of the child and of her parents is of course in her best interests but there is no evidence that this is required or helpful. Exchanges to occur in the parking lot of a police station is therefore not in the child’s best interests because it is not required by the evidence as the father does not pose a risk to either the mother or the child and because the risk of conflict between the parents can better be addressed otherwise.
[69] School will start in September 2022 and this seems a good time to transition out of the police station. Exchanges occurring at school or, if the child is not at school, at the residence of the parent where the child is will better limit interactions between the parents. In a parking lot, even at a police station, the parents nonetheless have to interact to exchange the child. When at home, the child is now old enough to walk by herself from the home of the parent where she is to the parked car of the parent attending to pick her up, limiting required interactions between the parents. As well, this also limits transfers to one car (instead of transferring out of two cars when transfers occur at a police station) and will be more comfortable and less stressful for the child as the child will be comfortably home should a parent be delayed picking her up. This will normalize and facilitate transfers for the child. It sends the right message. It is in the child’s best interests.
[70] Both parents contribute positively to the needs of the child, and both bring different cultural, linguistic, artistic, and educational components to the child. They both offer stability to the child. They both love the child, and the child loves both parents. Both parents offer the child a positive extended family experience, and both parents are willing and able to care and support the child. It is in the child’s best interests to spend as much time as possible with each parent. The schedule proposed by the father is in the child’s bests interests as it achieves all of this, while limiting transitions to six and eliminating the one early evening transition.
[71] The child should have time with both parents during the summer, but the child is not yet quite ready for seven consecutive days with the father; she will be by the summer 2023.
[72] The father suggests that the parties rotate making regular medical, dental, and optometry appointments. However, this will be difficult to manage, particularly for these parties. The mother suggests that she looks after regular medical appointments and that the father looks after regular dental appointments, because she and the child share the same family doctor. In the circumstances of this case, it is in the best interests of the child to minimize the potential for conflict between the parents and this seems better achieved by allocating these responsibilities amongst the parents, rather than imposing some rotational schedule.
[73] The parties cannot agree on who should keep the original of the documents relating to the child. The mother insists that she should keep the original, with the father being provided the original only upon providing to the mother a detailed explanation why he requires the original. The mother testified that she fears the father might attempt to leave Canada with the child and return to a country that is not a member of the Hague Convention. However, the mother has no evidence in support of her stated fear and the parties have agreed that neither party can initiate a process for a foreign passport application for the child. Further, the father has a PhD in a very specialized area, works in Ottawa as a consultant with the Department of National Defence, and is well rooted in Canada, with many family members in Ontario. This is an example of the mother assigning a minor or secondary parenting role to the father.
[74] The father seeks parenting time with the child at birthdays and at Halloween, irrespective of the parenting schedule. The mother agrees to some of this but would prefer to limit transfers. The child has difficulty with transfers and transfers should, in the best interests of the child, be limited and at a time that does not interfere with her bedtime routine. I agree with the mother that it is not important for the child to celebrate birthdays with each parent on the day of the birthdays. Birthdays can equally be celebrated during the preceding or next parenting time. Similarly, for Halloween, there is no need to rotate as the parenting schedule should sufficiently allocate Halloween between the parents without having to add another transition to the child’s schedule.
Disposition
[75] Consequently, considering all factors and circumstances relevant to the best interests of the child, the following is ordered:
DECISION-MAKING RESPONSIBILITY
Medical, dental, and optometry appointments
(a) The parties are referred to as the parents.
(b) The Respondent mother shall schedule and attend at the child’s routine medical appointments and shall record each appointment in the parties’ communication application, Our Family Wizard (“OFW”), within 24 hours of scheduling the appointment. As well, withing 24 hours of attending at any such appointment, the Respondent mother shall record on OFW a summary of the appointment, including any diagnosis, prognosis, and recommendations made by the attending doctor or health professional.
(c) The Applicant father shall schedule and attend at the child’s routine dental and optometry appointments and shall record each appointment in the parties’ communication application, OFW, within 24 hours of scheduling the appointment. As well, withing 24 hours of attending at any such appointment, the Applicant father shall record on OFW a summary of the appointment, including any diagnosis, prognosis, and recommendations made by the attending dentist, optometrist, or health professional.
Documents
(d) The parents shall rotate the custody of the child’s original documents yearly, with the Applicant father keeping them in odd-numbered years and the Respondent mother keeping them in even-numbered years. These include all of the child’s original documents such as, for example, her OHIP card, passport, birth certificate, etc. These original documents shall be exchanged between the parents by January 10 of each year by returning them with the child.
(e) Any parent can initiate a process for a Canadian passport application for the child, and both parents shall be required to sign the child’s passport application. Any parent seeking a Canadian passport for the child shall record the fact that he or she is making such an application in OFW within 24 hours of making any such application.
(f) Any fees related to obtaining the child’s documents shall be apportioned pro rata between the parents.
PARENTING TIME
Regular parenting schedule
(g) The parties shall have shared parenting of the child based on a 2-2-3 schedule starting on September 1, 2022, with the following graduation from the current schedule:
(i) The current schedule (that started on June 1, 2021) shall continue until March 31, 2022, whereby the Applicant father parents the child during five out of 14 days as follows:
a. Every Wednesday from 3:00 p.m. to Thursday at 8:30 a.m.;
b. Every second Friday from 3:00 p.m. to Sunday at 6:30 p.m.; and
c. Every second Monday from 3:00 p.m. to Tuesday at 8:30 a.m.
Pick ups and drop offs shall continue to be at the police station on St. Joseph Boulevard in Orleans.
(ii) Starting on April 1, 2022 and until August 31, 2022, the parties shall switch to a schedule whereby the Applicant father parents the child during six out of 14 days as follows:
a. Week one:
i. From Monday at 3:00 p.m. to Tuesday at 8:30 a.m.; and
ii. From Friday at 3:00 p.m. to Monday at 8:30 a.m.
b. Week two:
i. From Wednesday at 3:00 p.m. to Friday at 8:30 a.m.
Pick ups and drop offs shall continue to be at the police station on St. Joseph Boulevard in Orleans until August 31, 2022.
(iii) Starting on September 1, 2022, the parties shall switch to a schedule whereby they parent the child based on a 2-2-3 schedule, whereby the Applicant father parents the child as follows:
a. Week one:
i. From Monday at 3:00 p.m. or after school to Wednesday at 8:30 a.m. or at school; and
ii. From Friday at 3:00 p.m. or after school to Monday at 8:30 a.m. or at school.
b. Week two:
i. From Wednesday at 3:00 p.m. or after school to Friday at 8:30 a.m. or at school.
Starting on September 1, 2022, pick ups and drop offs shall switch from the police station to be at school or at the residence of the parent where the child is, as applicable. The parent with the child shall be responsible for ensuring that the child is brought to school and picked up from school. When the child is not at school, the parent picking up the child shall travel to the residence of the other parent where the child is to pick her up. During pick ups and drop offs, unless previously agreed in writing, both parents shall make reasonable efforts to limit contact with the other parent, including not attending at the door of the other parent’s residence but texting the other parent to alert him or her of his or her arrival, not attending at the other parent’s parked car, remaining in the parked car throughout the exchange except as required to assist the child to enter the car, and then by the parent attending to pick up the child remaining as near to his or her car as is reasonably possible, and exiting his or her car only to assist the child. As well, during all exchanges, both parents shall be child focused, and if any verbal communication with the other parent is required, shall limit any such conversation to what is required for the child, and any such conversation shall at all times be polite and respectful of the other parent, and communications between the parents shall otherwise be in writing and shall also always be child focused, polite and respectful of the other parent.
Holiday parenting schedule
(h) Child’s birthday: The parent who is not caring for the child on her birthday shall be able to have a brief facetime visit with the child on her birthday, and this shall be accommodated by the other parent.
(i) Parents’ birthdays: If the parent’s birthday falls on a day when he/she does not have the child, the parent with a birthday shall be able to have a brief facetime visit with the child on the parent’s birthday, and this shall be accommodated by the other parent.
(j) Halloween: The child shall spend Halloween evening with the parent who is caring for her and the other parent shall be able to have a brief facetime visit with the child on Halloween, and this shall be accommodated by the other parent.
(k) Summer 2022, 2023 and 2024: The mother may take one vacation of seven consecutive days with the child each summer until 2025. She is to organize her vacation so that it includes her regularly scheduled weekend, ending the following Friday at 3:00 p.m.
(l) Summer 2022: The father may extend four of his regularly scheduled weekends in July or August by one day, so that his parenting time either begins on Thursday at 3:00 p.m. or ends on Tuesday at 8:30 a.m. (four overnights total each time).
(m) Summer 2023 and 2024: The father may take one vacation of seven consecutive days with the child. He is to organize his vacation so that it includes his regularly scheduled weekend, ending the following Friday at 3:00 p.m.
(n) Beginning in 2025: Each parent may take two vacations of seven consecutive days each summer with the child, to include their regularly scheduled weekend and ending the following Friday at 3:00 p.m.
(o) In even numbered years, the father shall have first choice of his vacation dates and in odd numbered years, the mother shall have first choice of her vacation dates.
(p) The parent with first choice shall let the other parent know in writing by April 15th each year of his/her preferred weeks. The parent with second choice shall let the other parent know in writing by May 1st each year of her/his preferred weeks, and a final schedule shall be confirmed in writing by May 15 of each year. The parents shall advise each other using OFW.
(q) Child’s daily routine: On June 1 and December 1 of each year, or within five days of that date, each parent shall post on OFW the child’s updated routine at the parent, including at a minimum the child’s waking up and going to bed times, and meal times, and both parents shall make reasonable efforts to have similar routines with the child.
CHILD SUPPORT
(r) Commencing on April 1, 2022, the parties shall pay set-off child support based on Section 9 of the Child Support Guidelines.
COSTS AND OTHER ISSUES
(s) If the parties cannot agree on costs by March 5, 2022, then costs submissions not exceeding five pages and seven enclosures shall be provided: by the Applicant by March 18, 2022; by the Respondent by March 25, 2022; and any reply by the Applicant not exceeding two pages by March 31, 2022.
(t) If the parties within the next three months need assistance with any issues resulting from this order, they may contact the family trial coordinator to make an appointment to appear before me.
Released: February 23, 2022 Justice Pierre E. Roger
COURT FILE NO.: FC-19-200
DATE: 2022/02/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nicholas Farouk Ali
Applicant
– and –
Annine Marjorie Obas
Respondent
REASONS FOR DECISION
P. E Roger J.
Released: February 23, 2022