Court File and Parties

Court File No.: 1833/16 Date: 2023/03/06

Ontario Superior Court of Justice

Between: Deborah Kellett, Applicant Counsel: James Higginson, for the Applicant

And: Majdi Qutob, Respondent Counsel: Ben Fortino, for the Respondent

Heard: Hamilton, ON, on February 16, 17, 27, 28, March 1, & 2 2023

Before: The Honourable Justice D.L. Edwards

Reasons for Decision

1The Respondent, Majdi Qutob, brings a Motion to Change, seeking to change the final order of Justice Ramsay dated March 14, 2019, (“2019 Order”). He seeks joint decision-making, with final say on health matters and the Applicant having the final say on education matters. As well, he seeks an equal sharing of parenting time for the parties’ child, Samuel McCallum-Kellett, born July 14, 2016.

2The Applicant contests this relief. She seeks to maintain primary residence and final decision-making power, as well as proposing a specific schedule of parenting time for the Respondent.

3Initially, there were financial issues. The parties to their credit, reached an agreement on that issue and filed minutes of settlement for that issue, and I previously issued an order reflective of the Minutes of Settlement.

4Therefore, my primary focus during the trial was upon parenting time and decision making for Samuel.

Overview of the Evidence

5During the six-day trial I heard from both parties, as well as their respective spouses testified. (Ms. Kellett is separated but not divorced from her spouse).

6Both parties gave evidence about incidents that have arisen since the 2019 Order. There was much evidence about Samuel’s JK and SK, years and the issues that arose between the parties about school. As well, two issues with respect to dental care were canvased.

7The parties spoke about their involvement with Samuel’s school; the special assistance that he is receiving and the activities that each parent does with Samuel when he is with them.

8Ms. Kellett spoke about difficulties that she and Dr. Qutob had regarding adjusting the drop off time during the week. She explained why she wanted the change. Dr. Qutob gave his version of those events and why he could not always accommodate her request.

9Both parties gave evidence about the birth certificate/live statement of birth. Each had a slightly different version of the issues that arose.

10My sense from the testimony is that the parties each believe that they are communicating well, and for Samuel’s benefit, and yet I find that they both are not.

11To put the issues in context I will next examine Justice Ramsay’s decision in 2019.

Ramsay 2019 Order

12Justice Ramsay made certain orders regarding parenting of Samuel. At the time he was two years old. Justice Ramsay provided that Ms. Kellett would have sole custody and primary residence of Samuel. Dr. Qutob’s parenting time was set out as alternating weekends from Friday at 4pm until Sunday at 6:30pm, Each Tuesday from 10am until Wednesday morning before day care, and alternating Thursday from 10am until 6:30pm.

13Justice Ramsay also set out a schedule for the sharing of holidays.

14In paragraph 8 of the 2019 Order, he stated that important decisions would be made jointly, but if the parties could not agree then Ms. Kellett would make the final decision, but she would not implement that decision for a period of 30 days in order to allow Dr. Qutob time to consider his legal options.

15Also, in his endorsement Justice Ramsay made certain findings of fact at that time. He found that:

1. Both parties agreed that the goal should be equal parenting time
2. Both parents had a loving bond with Samuel
3. Both parents were capable and willing parents
4. The permanence of both parents’ family units is comparable
5. There was no history of domestic violence in either household

16During Ms. Kellett’s cross examination, she agreed that, with the exception of the first finding, those facts were still true today. She equivocated on whether she had agreed at the 2019 trial that the goal was equal sharing of parenting time; ultimately stating that it was the goal if the dysfunction ended.

17I will now review the relevant law with respect to decision making and parenting time.

The Law

18Section 24(1) of the Children’s Law Reform Act (”CLRA”) states that decision making and parenting time should be decided based upon the best interests of the child.

19Section 24(2) of the CLRA directs that the court consider all the factors related to the circumstances of the child and give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

20Section 24(3) contains a list of factors to consider in assessing the best interest of the child. A review of these factors is helpful in a determination of the child’s best interests.

21The legislation states:

(3) Factors related to the circumstances of a child include,

(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 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 parent in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and the 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, security and well-being of the child.

22Further, by law both parents have an equal right to decision making responsibility. Section 20 of CLRA.

23Also, in allocating parenting time, Section 24(6) states that “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.”

24As noted by Justice Braid, there is no default position in favour of joint decision making in Ontario. There must be a high level of cooperation and communication between the parents if joint custody/ decision-making is to be a viable option. Rapoport v. Rapoport, 2011 ONSC 4456, at para. 47.

25Section 29(1) of the CLRA states that a variation of an order shall not be made to vary a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interest of the child.

Material Change in Circumstances

26The Applicant concedes that there has been a material change in circumstances, and I agree.

27I therefore move on to the question of what is in Samuel’s best interest regarding parenting time.

What is the best interest of Samuel regarding Parenting Time

28Having heard all of the evidence I agree with Ms. Kellett’s testimony that the findings made by Justice Ramsay that I referred to above, remain factually correct today. Samuel has two parents who have a strong bond with him, who are willing and capable parents, and whose family units are comparable.

29Both family units have three additional children, one of whom in each family, is close to Samuel’s age. Dr. Qutob has been married for 19 years. His spouse is a family physician and is very involved in Samuel’s life. Ms. Kellett’s relationship with her husband has ended after many years. However, he remains somewhat involved with all of their children, including Samuel.

30There is no evidence of family violence in either household.

31Samuel has since birth had his primary residence with Ms. Kellett. However, since Samuel was very young, Dr. Qutob has sought a more equal sharing of parenting time.

32Ms. Kellett works fulltime. Dr. Qutob does not work as he has an arthritic condition that prevents him from working as a surgeon. This allows him the time to do many child-related tasks, including making the children breakfast, take them to school, pick-ups etc.

33Ms. Kellett believes that Samuel’s time with his father should be limited to keep a regular schedule, and not overwhelm Samuel during the school year, and yet she does not agree to a week about sharing of time with Samuel in the summer when school concerns are not relevant, as she sees no reason to alter from her proposed schedule.

34I find that Samuel has a positive relationship with his siblings from both family units. He also has a child close to his age in both families, with whom he is a strong bond.

35I have no concerns about the capability and willingness of either parent to properly care for Samuel. During the trial there were allegations regarding the mother’s handling of dental care and the vaccination for COVID, but my view is that was a question of poor communication and cooperation between the parents, and not an issue of poor parenting.

36There was also evidence by the Applicant about the issue that arose, particularly during SK, as to whether Samuel would attend activity days on Tuesday and Thursday. The Respondent refused to permit this unless the mother agreed to a revised parenting time schedule because of the significant impact upon his parenting time.

37The Applicant’s position is that this is an example of the Respondent not putting the interests of Samuel first, but rather prioritizing his own interests. She especially believed this to be true after Samuel’s teachers recommended that his participation on those days would help him as he was struggling learning the alphabet and his numbers and at risk of not advancing to Grade One.

38The Respondent’s evidence is that he understood that Samuel was having learning issues, and as a result he was doing extra work at home with Samuel on those issues. He understood that as the activity days were optional, they were more like play days. He felt that his relationship with Samuel and his family at that stage in Samuel’s life was also important, and without a change in the parenting schedule, if Samuel attended school on the activity days, which were Tuesdays and Thursdays, Samuel’s relationship with his father and his father’s family would suffer as this would significantly reduce Samuel’s time with Dr. Qutob and his family. He felt that this would not be in Samuel’s best interests.

39Given all of the circumstances, I do not agree that the Respondent was not considering the best interests of Samuel on this issue. I accept that in his mind, he was attempting to balance the various aspects of Samuel life, all of which were important, and he was not prioritizing his own interests over Samuel.

40I do have some concerns about the willingness of the parents to communicate and cooperate with each other. However, my concern is not limited to one parent. They both demonstrate an inability to consider the other parent when making decisions for Samuel.

41The mother blames the father for doing things behind her back by not copying her on emails to teachers or medical practitioners.

42However, I find that the mother often has not followed paragraph 8 of the 2019 Order because she has made decisions unilaterally without a 30-day delay in implementation. For example, she did not consult with the father when she ascertained that the three assessors that the school recommended for Samuel’s psychoeducational assessment were unable to act. She did not interview the assessor that Dr. Qutob suggested. Instead, she retained an assessor that the office of one of the school recommended assessors suggested. She did so without consulting with Dr. Qutob.

43Ms. Kellett’s response to the question as to why she not consulted Dr. Qutob about this, is that he knew that Samuel was going to be assessed and that she would make the appointment. In her mind, there was no need to consult with Dr. Qutob. She still does not see why it was appropriate to consult with Dr. Qutob as the search for an assessor unfolded. Normally functioning parents would have done so. How simple it would have been to advise Dr. Qutob that the three recommended assessors were not available, but she had located an assessor; perhaps even advising him why, after the three school recommended assessors were not available, that she did not follow up on his suggestion.

44Issues also arose about school, especially regarding SK. From the evidence, both oral and text messages, there remains an ambiguity as to what exactly was communicated by each parent. However, what is evident is that the arrangments were not clear to both parents. Whether it is as Dr. Qutob testified that he did not know which school Samuel would attend for JK until close to the commencement of school, or as Ms. Kellett testified that the only issue outstanding was whether Samuel would attend full time JK or not, school arrangements were not clear and unambiguous between the parents. Clear communications between both parents could have resolved this issue.

45The school issue is also somewhat complicated because the parties did not use an app to communicate. For example, there is a gap in text messages because of a change in phone by Ms. Kellett and there was evidence of a physical meeting of the parties, but no record of those discussions.

46Ms. Kellett also made a telling statement when she said that generally their communication was good, but only recently, after the Motion to Change, was issued did it deteriorate. That statement would be accurate if Ms. Kellett was entitled to make all decisions without consultation with Dr. Qutob.

47However, I find that their communication in fact is dysfunctional. Nowhere could I find a clear pattern of discussions about an issue, and then if there was a disagreement, the discussion was followed by Ms. Kellett sending a notification to Dr. Qutob of her decision, so that he would have 30 days to consider his options. When questioned about a lack of notice, Ms. Kellett responded several times that something was implied, or she expected that he was getting information from the provider. In her mind such a notice was not required, notwithstanding the specific provision of the 2019 Order.

48The problem also lies with Dr. Qutob’s communication. He did not copy Ms. Kellett on emails/texts to medical practitioners or with teachers. That leads to Ms. Kellett’s feeling that he was going behind her back. During his testimony he acknowledged that he should have copied Ms. Kellett on those communications.

49I will return to the issue of communication later.

50A guiding principle is that a child should spend as much time with each parent as is in the best interests of that child.

51After considering all of the relevant factors, I find that it is in Samuel’s best interests to share parenting time equally with both of his parents. I find that there is no evidence that such a sharing of parenting time would be detrimental for Samuel, other than Ms. Kellett’s assertion that she felt that this would overwhelm him. There is no corroboration of that position.

52Dr. Qutob has proposed 2, 2, 3 split, with Samuel being with him on Monday and Tuesday of each week. On Wednesdays and Thursdays of each week Samuel would be with Ms. Kellett. Friday through Sunday would alternate between the parents.

53I find that gives stability and predictability to Samuel’s schedule. It allows each parent to involve Samuel in events that are repetitive on a weekly basis.

54I order that the parents shall have equal parenting time with Samuel in accordance with a 2, 2, 3 schedule. Each party shall have two consecutive days during the week and alternating weekends. Monday and Tuesday shall be the Respondent’s days and Wednesday and Thursday shall be the Applicant’s days.

55Regular parenting time commences on the parent’s scheduled day in the morning at the regular school commencement time (or at 10:00 AM if there is no school). In the absence of school, exchanges that occur after school shall occur at 6:30 PM, unless changes to these times are agreed to by the parties in writing. This schedule shall commence after the March break.

56The parties shall primarily utilize the child’s school for the purposes of exchange. In the event that the school is not open on the day of exchange, the party ending his or her time with the child shall be responsible for dropping the child off at the other party’s home, unless otherwise agreed in writing. During such exchanges the parties shall meet outside in the driveway to complete the exchange. Neither party shall alter the exchange arrangements absent the written consent of the other party.

Holidays

57As a general principle the parents shall share the holidays, subject to my comments below. The holiday schedule shall override the normal 2, 2, 3 schedule.

58During the summer holidays, Samuel should be on a week about schedule. On even years the mother shall have the first holiday week and thereafter the parties shall alternate weeks with Samuel. On odd years the father shall have the first week with Samuel, with the parties alternating weeks thereafter.

59Notwithstanding the previous paragraph with respect to summer holidays, each party shall be entitled to two consecutive weeks of summer vacation with the child, The Respondent shall have the first choice of weeks in odd number years and the Applicant shall have the first choice of weeks in even number years. Unless otherwise agreed in writing, the party having first choice shall notify in writing the other party no later than May 15th of each year, with the party having second pick notifying the other party in writing by no later than May 30th of each year. In the event that a party fails to provide confirmation of his or her requested dates by the above note its deadlines, the party shall forfeit their right to two consecutive vacation weeks, unless the parties otherwise agreed in writing. The two consecutive weeks may not commence immediately following a party’s week with Samuel. In other words, this provision may not be utilized to obtain three consecutive weeks with Samuel, unless the parties agree in writing.

60March break shall be shared equally. When the school break is 2 weeks long, each parent shall have one week with Samuel. In even years, the Respondent shall have Samuel for the first week and in odd years, he shall have the second week. In even years, the Applicant shall have the second week with Samuel and in odd years, the Applicant shall have Samuel the first week. In the event that the March break is two weeks only every second year, then the parties shall alternate which week each has with Samuel.

61If March break is one week, plus the Friday before that week and the Monday afterwards, in even years the Respondent shall have Samuel from the end of school on the Thursday until Wednesday morning at 9am and the Applicant shall have Samuel from Wednesday morning at 9am until school on Tuesday morning. In odd years the Applicant shall have Samuel from the end of school on the Thursday until Wednesday morning at 9am and Respondent shall have Samuel from Wednesday morning at 9am until school on Tuesday morning.

62Christmas break shall be shared equally. In odd number years Samuel will be with the Respondent for the first half of the Christmas break and the last half of the Christmas break in even number years, and with the Applicant having Samuel for the first half of the Christmas break in even numbered years and the last half of the Christmas break in odd number years. The first half of the break shall start after school on the last day of school in December and end at 12 noon on the day that is the halfway point of the Christmas break. The second half shall start at 12 noon on the day that is the halfway point of the Christmas break, and end at the start of school on the January return to school date.

63Notwithstanding the above paragraph regarding Christmas break, in odd number years, Samuel will stay with the Respondent from 12 noon on Christmas Eve until Christmas Day at 12 noon and with the Applicant from 12 noon on Christmas Day until 7:00 PM on Boxing Day. In even numbered years Samuel will be with the Applicant from 12 noon on Christmas Eve until Christmas Day at 12 noon and with the Respondent from 12 noon on Christmas Day until 7:00 PM on Boxing Day.

64Dr. Qutob is a Muslim. Samuel shall be with him on Eid al-Fitr and Eid al-Adha. Those days change each year. The Respondent shall notify the Applicant no later than February 1st of each year of the days of observation that year.

65Ms. Kellett is a Christian. Easter is an important Christian holiday. Samuel shall be with Ms. Kellett from Good Friday at 10am through to Easter Monday at 4pm.

66Notwithstanding the regular parenting schedule, Samuel will stay with the Applicant on Mother’s Day weekend from Saturday at 7:00 PM until the start of school on Monday, and for Father’s Day, Samuel will stay with the Respondent on Father’s Day weekend, from Saturday at 7:00 PM until the start of school on Monday.

67In the event of a holiday weekend with respect to the holidays set forth below, whomever has Samuel that weekend shall have his/her weekend extended to Monday evening at 6:30 PM: Family Day weekend, Victoria Day weekend, Canada Day weekend, August Civic Holiday weekend, Labour Day weekend, Thanksgiving weekend.

68In the event of a professional development day (“PD”) which results in a school holiday, whomever has Samuel that weekend shall have his or her weekend extended by that day. If the PD day is the Friday, then the weekend would start at 10:00 AM on the Friday. If the PD is a Monday, then the weekend would be extended until 6:30 PM on the Monday.

Decision Making

69It is clear to me that the parents currently are not communicating in a positive way to ensure that Samuel’s best interests are implemented. Both parties blame the other for this problem. I find that both are, to a certain extent, responsible for this dysfunction.

70As there is no evidence that the parties can communicate effectively, I find that joint decision making without any restrictions is not appropriate for this situation.

71As noted in s. 20(1) of the CLRA, the general principle is that a child’s parents are equally entitled to decision-making responsibility for Samuel.

72There is no doubt that Dr. Qutob is actively involved in Samuel’s life. Ms. Kellett testified that Dr. Qutob interacts with Samuel’s teachers and attends school events. He has enrolled Samuel in swimming lessons and piano lessons. He takes Samuel skating. He is very involved. It is in Samuel’s best interests that Dr. Qutob has a role in decision-making for Samuel.

73At the same time, clearly Ms. Kellett is also very involved in throughout Samuel’s entire life and should have a role in decision-making. I find no fault in her parenting of Samuel.

74In my view one of the factors that has increased tensions between the parties is the fact that Ms. Kellett has treated the situation as if she had sole decision-making authority without the need to consult with Dr. Qutob, notwithstanding a court order to the contrary. She seems to feel that the initiative lay with Dr. Qutob on these matters. However, under the 2019 Order as she had sole custody of Samuel, the burden lay with her to consult with Dr. Qutob before making decisions. She appeared to not appreciate this.

75In recognition of their communication issues, and the desire and ability of both parents to partake in decisions for Samuel, I find that a division of those responsibilities would be in Samuel’s best interest, and hopefully help with the parents’ communication issues.

76Therefore, I order that the parties shall attempt to make decisions jointly, which means they must consult each other. However, in recognition of their communication issues, I order that Dr. Qutob will have final decision-making authority with respect to health matters and Ms. Kellett will have final decision-making authority with respect to Samuel’s education.

77This sharing of final decision making reflects the fact that Dr. Qutob and his spouse are both physicians and therefore very capable of making reasonable, informed health decisions, and Ms. Kellett has been very involved in Samuel’s schooling and her other three children also attend that school.

78I have set forth in detail in the draft order attached to my decision, the procedure that the parties must follow with respect to decision making. As well, the draft order describes miscellaneous provisions with respect to Samuel’s religious education, which restrict the general decision-making authority that I have given to Ms. Kellett with respect to education.

Communications

79As I have already noted these parties have a great deal of difficulty communicating in a positive, clear way for the benefit of Samuel. I have found that both are somewhat the cause of the issue.

80Text messages are not overly helpful in maintaining a complete record of their interactions. It is important that an app be utilized that maintains a record that neither party can amend after the fact.

81The purpose of these types of apps is to provide a vehicle whereby separated parties can create a permanent record of their interactions. Some apps also warn the party if they are using intemperate language.

82I order that the parties utilize Family Wizard or another app that they agree upon in writing. They will each bear the cost, if any, of such app. They will utilize the app for all communications, except for emergencies, with respect to Samuel related issues.

83I urge both parties when they are making decisions for Samuel, to stop, pause, and consider that if the other parent was making such a decision, how would they feel. Consider what communication that he or she would like to have had before such a decision by the other parent. Stop assuming that he or she should know. Remember you are both Samuel’s parent and you should act like it.

Miscellaneous Parenting Issues

84Paragraph 10.11 of the 2019 Order required that the Applicant amend the statement of live birth to reflect the Respondent as Samuel's father. The Applicant’s evidence was that she had completed this process but did not have a copy of the revised statement. She testified that if Dr. Qutob wanted a certified copy, he could apply online.

85Clearly this is important to the Respondent. In my view it was implied that after Ms. Kellett complied with that paragraph of the 2019 Order, she would provide Dr. Qutob evidence of such compliance. She has not done so.

86I order that the Applicant provide proof to the Respondent of compliance with Justice Ramsay's order within 30 days of today. If there is a government caused delay in getting such proof, then the Applicant shall keep the Respondent apprised of the progress on this matter.

87Also, paragraph 10.8 of the 2019 Order directed that the Applicant provide to the Respondent a notarial copy of Samuel's health card. The Applicant's evidence was that she provided the Respondent with a screenshot of the health card and that should have been enough for the Respondent.

88The difficulty with that position is that was not what the 2019 Order required that she do.

89The actions of the Applicant with respect to these two matters, as well as lack of compliance with the 2019 order with respect to consultation with the Respondent regarding decisions, indicate to me that the Applicant feels that she need not comply exactly with an order if she considers what she did was close enough. This, I feel, has contributed to the strained relationship between the parties.

90I order the miscellaneous parenting matters that are set out in the draft order attached to my decision.

Summary

91An order to go as per the draft order attached to my decision.

Costs

92If the parties cannot agree upon costs, the Respondent shall serve and file his costs submissions within 14 days. The Applicant shall serve and file her costs submissions within 10 days after receipt of the Respondent’s submissions. Reply submissions, if any, by the Respondent shall be served and filed within 5 days after receipt of the Applicant’s submissions. Cost submissions shall be limited to 3 pages, plus the costs outline.

D.L. Edwards, J.