COURT FILE NO.: FC-22-869 DATE: 2023/03/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Olasubomi Ibitoye Applicant – and – Olakunle Ibitoye Respondent

Counsel: Angela Daniels, for the Applicant Alexandra Kirschbaum for the Respondent (Moving Party)

HEARD: January 10, 2023

REASONS FOR DECISION

Somji J

Overview

[1] This decision addresses the Respondent father’s request (moving party) for an interim order for shared, or alternatively, increased parenting time with the parties’ three children. The father seeks joint decision-making responsibility and for the parties’ to attend co-parenting counselling.

[2] The Applicant mother argues it is not in the best interests of the children to have shared parenting because the father is a neglectful and unable to meet the children’s needs. In addition, the two eldest children have recently expressed through the Office of the Children’s Lawyer (“OCL”) that they want limited parenting time with their father. The mother requests the children reside primarily with her, for the father to have parenting time one day a week from 4 to 9 pm and five additional hours per week as agreed upon by the parties. The mother seeks sole decision-making responsibility for the children.

[3] The primary issue is what interim parenting regime is in the best interests of the children. Upon review of the evidence filed to date, I find that it is in the best interests of the children that the parties have joint decision-making responsibility and move gradually towards shared parenting. I do not accept that the father is unfit to parent as alleged by the mother. However, given his relationship with the children appears to have deteriorated and the children’s wishes as expressed to the OCL, I find that the father should attend for counselling with his two eldest children to assist with the transition to shared parenting. In addition, there will be an order that the parents attend for co-parenting counselling to support the transition to shared parenting.

Background Facts

[4] The parties married in August 2009. They have three children all with the initials O.I. They are referred to as Dare, age 8, Dara age 11, and Dabi age 12 in these pleadings. According to the father, the parties were experiencing marital problems as early as 2021. They attempted marriage counselling without success. On February 5, 2022, there was a violent altercation in front of the children after the mother viewed text messages and photographs on the father’s phone. The father denies infidelity. The police were called. The mother was charged with assault and other criminal offences, and the police issued an order for the mother not to have contact with the father. The father moved out of the matrimonial home on February 7th allowing the mother and children to remain there. The children’s school is a short walk from the home.

[5] Over the next few months, the father returned to the home several times a week for parenting time with the children and to attend counselling with the mother. The father would drop the children off at school. He would remain at the house when the mother was not there but if both parents were at the house, the parties would ensure a third party adult was present.

[6] On March 17, 2022, the mother travelled out of town with the children. Prior to leaving, she changed the lock codes to the house. The police intervened and the mother reluctantly provided the father with the codes to enter the house. According to the father, in the beginning of April 2022, the mother started to damage his equipment relating to his PhD. He attended the home on April 24, 2022, to spend the time with the children and fix his equipment. The mother called the police to have the father removed from the home, but the police determined that the father should remain in the home with the children and that the mother should exit. She refused.

[7] The mother provided a different version of the events of April 24, 2022. She states that while she was at church with the kids, the father “sneakily” returned to the matrimonial home forcing her to leave because a no contact order was in place. She made no reference to police requesting her to leave.

[8] The mother refused to let the children stay at the home with the father even though it was close to their school. She left with the children to reside at a friend’s place and later at a women’s shelter. She eventually obtained a place for herself and the children. As a result of her relocation, the mother pulled the children out of in-person school.

[9] On May 6, 2022, the mother filed an urgent motion for exclusive possession of the matrimonial home. During the motion hearing on June 7, 2022, Associate Justice Kaufman suggested that both parties return to counselling and proposed a nesting arrangement so that the children could return to in-person school. The father agreed to the arrangement but the mother did not. The father offered to drive the children to school if necessary. AJ Kaufman ordered the children to return to in-person school and for the father to drive them. AJ Kaufman also ordered the father to have parenting time on Wednesday from 4 pm until the start of school on Thursday morning and on Fridays from 4 pm to 7 pm: Endorsement and Interim Order Associate Justice A. Kaufman, June 7, 2022.

[10] At the case conference of August 22, 2022, the father continued to seek shared parenting time. The mother refused but did agree to expand the father’s parenting time to two overnight visits a week and to attend for mediation. The father was granted leave to bring a motion if the issue of parenting time could not be resolved: Endorsement Justice N. Somji August 22, 2202. Since the cases conference, the mother has not agreed to attend any mediation sessions even after the no contact order was lifted. While the mother did agree to mediation on/around July 5th, it was on condition that the father provide exclusive possession of the house and child support.

[11] This motion decision addresses only parenting time and decision-making responsibility. Issues related to the sale of the matrimonial home, division of property, and child support arrears are ongoing and not the subject of this motion: Endorsement Justice N. Somji January 10, 2023.

Analysis

[12] The primary criterion in determining an appropriate parenting order on an interim or final basis is the best interests of the child. Section 16(3) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am, lists specific best interests factors that must be considered as follows:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, 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 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, security and well-being of the child.

[13] In coming to a decision, I have considered all the best interest factors and highlight below those which I find most relevant on this motion and not necessarily in the order listed.

s. 16 (d) the history of care;

[14] The mother states that she has always been the primary caregiver. She has attended to all the children’s needs such as schooling, enrollment in activities, and attendance at medical and dental appointments. She argues the father was absent from the children’s lives on business trips and to attend school and had limited role in parenting or decision-making. The mother argues that the children have been living with her since separation.

[15] The father attests that prior to separation, the parents cared for the children and made decisions jointly. For example, in December 2017, he resigned from his job as a Field Engineer with Chevron Corporation and stayed home with the children while the mother obtained a master’s degree to pursue her career goals. Similarly, in 2021, he began full-time remote employment for BC Hydro and later Air Canada which allowed him to work from home and allow him more time with his children. The father posits that it was his flexible work schedule that factored into AJ Kaufman’s order to have all three children return to in-person school.

[16] Following separation, the father has continued to request more parenting time with the children. He initially agreed to leave the home at separation because he believed it was in the children’s best interests to remain there with the mother and be able to walk to school. The parents had an arrangement where the father would attend the house to care for the children several times a week. It was the mother’s unilateral decision to change the codes to the home in March and to remove the children from the home in April, despite the police suggestion that they continue to stay there with the father, that prompted the change in status quo.

[17] Furthermore, the mother has one, not been amenable to a nesting arrangement as proposed by AJ Kaufman which would have provided the father more equitable parenting time, two, has declined to participate in community (through her church) or court mediation, and three, has refused to increase the father’s parenting time even on a graduated basis. The father also perceives the mother’s enrolment of the children in virtual classes was undertaken to alienate him from his children’s lives.

[18] I find the evidence to date supports that the father was involved in the children’s care prior to separation and that his involvement continued after separation notwithstanding that the children were residing with the mother. The father continued to attend the home after separation, was willing to drive the children and from school, has been involved in caring for the children in the parenting time provided to him, and has engaged with school staff about issues concerning the children. The father has been persistent since separation to obtain increased parenting time. Even in the summer of 2022 when the children were not in school, his access was limited to the children to a few hours a week. It was not until August 2022 when she finally agreed to two nights a week following a case conference. The father filed a number of emails sent to the mother between August and November 2022 demonstrating his attempts to mediate the parenting issues through the support of the church or court mediation services as well as his attempts to obtain an equitable parenting agreement many of which were not responded to at all by the mother. If there has been a change in the status quo since separation with respect to parenting or decision making, I find it is as a result of the mother’s unilateral conduct denying the father access.

[19] The jurisprudence makes clear that status quo may be established by reference to the parents’ practice or the child’s routine prior to separation or by consensual arrangements made after separation, or by court orders. However, status quo cannot be established by the unilateral “self-help” conduct of one parent to gain a litigation advantage: Gray v Canonico, 2020 ONSC 5885 at paras 48-52; see also Rifia v Green, 2014 ONSC 1377 at para 25.

[20] I find this best-interest factor favours shared parenting and decision-making.

s. 16 (a) the children’s needs, given their age, stage of development and need for stability and s. 16 (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;

[21] The mother states that the father is a neglectful parent and unable to meet the children’s needs. In this regard, she relies on what the children reported to her about events that happened during the father’s parenting time between August and October 2022. She attests for example that:

a. The children reported to her in late August 2022 that the house was filthy with lots of flies, that there was barely any food in the cupboards, and that the children were forced to eat stale bread that was in the house for weeks. The father denies this stating he keeps the matrimonial home very clean and provides the children with healthy foods. b. The children reported to her on August 24th that they were made to wash a sink full of dirty dishes and do other chores while the father spent his time on the phone. The father states he has never asked them to clean the house in the manner described. c. On August 31st, Dara came home with chocolate cannabis gummies which she told her mother she found in the father’s bedside drawer. The father explains that he does not keep cannabis in the house. He believes the mother is attempting to involve the daughter in false allegations of substance abuse against him. In email exchanges, the mother reported that the daughter had brought the package from his home. The father was concerned and asked that she provide a picture of both sides of the label so he could confirm where this package came from. The mother only sent him a picture of one side of the package and failed to respond to his further inquiries. d. Dara reported on September 8th that the father refused to let her stay home when she felt sick and forced her to walk to school. The school later called the mother to inform her that Dara wasn’t feeling well and needed to go home. The father states his daughter did not inform him that she did not feel well that morning. e. Dara reported to her mother that the father made her wear pyjamas to school. The father denies he has ever sent the children to school in their pyjamas. f. Dara reported to her mother in October 2022 that the father did not allow her to eat breakfast as punishment for refusing to provide her cell phone passcode and did not provide her lunch for school resulting in the teacher providing the child with her own lunch. The mother states this is an example of the father “disciplining the children by starving them.” The father explains this is grossly false. He requested Dara to give him her passcode so he could install parental control settings to prevent her from being on the phone late at night. She refused and so he took the phone away that night. He dropped it off at school the next day. He also had prepared noodles for lunch but his daughter didn’t want to eat that so she didn’t take the lunch to school. g. Dara reported to her on November 9th that the father treats her differently from her brothers. He insisted that she take a bath while not requiring her brothers to do the same and she told the school principal that she did not take a bath at her dad’s home because there were no clean towels. The father reports that this is inaccurate. The father did approach the school principal because of issues with the daughter. He was able to obtain a social worker to support Dara, and as discussed below, this resulted in an improvement in their relationship. h. Dara reported to her that on November 21st that the father bought winter boots for her brother but not for her. The father reported that he never refused boots for his daughter, but that she had wanted very expensive ones and would not accept the ones he bought for her. The mother then proceeded to buy the ones that the daughter asked for. i. There was a conflict between the parents on Dabi’s graduation day on June 24th. The mother states she wanted to take Dabi for lunch and the father told her she did not have permission. The father reports that he dropped his son of that morning and had planned to pick him up at noon for his graduation lunch, but the mother would not let him take him. The principal called the police who in turn asked Dabi what he wanted and he told the office he wanted to go with his mother.

[22] The above-noted claims reported by the children to the mother, if true, would give rise to serious concerns about the father’s ability to care for the children. However, upon hearing the father’s account of the same events, it is difficult to ascertain the veracity of these claims. Furthermore, the OCL report does not provide any information about the children’s perspective on these claims. In addition, there is no third party evidence from the school teachers or principal to corroborate the claims that, for example, the children attend school with insufficient food or are experiencing parental neglect when with the father. Finally, it appears that in many instances, the mother has accepted the children’s claims and concluded parental neglect without any regard to the father’s perspective on the situation, a necessary requirement if one wishes to co-parent respectfully and effectively. For example, there is a significant distinction between a parent refusing to buy their child winter boots and refusing to buy a specific winter boot that the child insists on but is unaffordable. The former might suggest parental neglect but the latter certainly does not. In the absence of additional evidence, I am not prepared to find on the basis of these claims that the father is neglectful and unable to care for the children.

[23] On the contrary, there is evidence that the father has continued to meet the needs of the children. Following the separation, the father continued to attend the home to care for the children and to take them to school. He has been engaged in the children’s schooling and has taken time to speak with school staff on issues concerning the children. I note, however, that the mother reports the father missed two parenting time sessions on July 1 and 6, 2022. The father denies he missed any parenting time. No clear explanation is provided on what transpired on those dates.

[24] The father described the children’s routine on the nights they are with him which involves making and sharing a meal together as well as music lessons. The father states his income allows him to meet the children’s material needs. He also has family support for times when he may be away. He argues he is able to meet the children’s physical and emotional needs.

[25] The father does not take issue with the mother’s parenting ability, but has concerns about the mother’s anger and her verbal and physical abuse towards him which resulted, in at least one instance, in criminal charges against her. The father identified concerns about the mother involving their children in parental conflict. For example, the mother read the police report on criminal charges to the children. While the charges were against her, it resulted in the children becoming angry with him. The mother acknowledged she did read the report to the children and was chastised for doing so at a mediation session involving church and family members on May 13, 2022. The father reports that the mother also called the police on October 7, 2022, and falsely accused him of mentally abusing their daughter and asked her to testify against him.

[26] The father reports that prior to separation, in June 2021, Dara referred to him as “The World’s Best Dad.” They participated in musical activities together and she would often ask him to teach her piano. Recognizing that his relationship with his daughter has deteriorated since separation and increasing behavioral issues, the father spoke to the school principal on October 26, 2022, to obtain assistance for her. The school assigned a social worker to help Dara. Since then, his relationship with Dara has improved. The father reports that in November 2022, his children’s attitude towards him improved. They opened up to him and told him they believed he had abandoned them, evicted them from their home, and made them live in a homeless shelter. These statements have not been verified, but if true, indicate the children may have been operating under a misapprehension of events. On December 23, 2022, the father reported to the school principal that he was making progress in repairing his relationship with his children.

[27] I find this factor favour shared parenting decision-making.

s. 16 (e) the children’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

[28] Deborah Bennett counsel for the OCL put forward the children’s legal position in a motion confirmation form. Ms. Bennett interviewed the parents to collect information and Dabi and Dara each three times.

[29] Counsel Bennett reports that both children are aware of the different arrangements available for parents living in separate households. Within this context of awareness, she reports that the eldest child Dabi would like to live with the mother full time and see his father one or two overnights a week. This schedule should be the same all year. Dabi prefers his mother to take him to cadets and that the father not be involved. In terms of virtual calls, Dabi would like to be able to contact the father when he wishes. Dabi wanted his mother to make decisions for him but it was okay for the father to express his opinion.

[30] Counsel Bennett also reports that Dara would like to live with her mother and spend only one day a week with her father and no overnights. This schedule should be the same all year. Dara too would like to be able to call her father when she wants. Dara wants her mother to make decisions for her based on what has happened in the past. No explanation was provided by what this latter statement is referring to.

[31] This best interest factor favours the father having limited parenting time with the two oldest children, but as discussed below, I do not find it is determinative of the interim parenting regime to be imposed in this case.

s. 16(g) - 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;

[32] Based on the evidence to date, I find the mother has not demonstrated a willingness to communicate and cooperate with the father on matters affecting the children. As already discussed, when the children have come home with complaints, the mother had little regard for the father’s perspective, assumed the worst, and did not appear to take steps to ameliorate the situation by discussing with the father what could be done to address the concerns raised. In contrast, the father has made persistent efforts to communicate with the mom directly on issues involving the children, has sought third party help from the community to deal with parental conflict, and has engaged professional help (i.e. school social worker) to assist Dara.

[33] The mother also appears to be involving the children in parental conflict and in doing so, alienating the children from the father. In addition to reading the police report to the children in May 2022, the father reports that Dara told him on October 10th that “Mom has told me to call the police whenever you tell me to do something I do not want to do.” This statement was not verified with the mother. However, if it is true, it supports the father’s claim that the mother is engaging in alienating behaviour. It also suggests that the mother is unable to counsel her own children on how to deal with conflicts with their father in a respectful and appropriate manner and how to distinguish disagreements with the father from situations when resort to police intervention is truly required (i.e.. risk of violence and danger).

[34] I find this best interest factor favors the father’s request for a shared parenting regime.

16(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;

[35] There is no evidence that either parent intends to undermine the children’s relationships with their siblings or extended family members.

s. 16(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

[36] Both parents appear to be closely involved in their religious and community traditions.

[37] The mother does not wish for the father to have parenting time with the children on the weekends because she wants to take the children to church. The father discussed meetings he has had with the pastor and his musical involvement with the church at Christmas. The children’s attendance at church services would be amongst the many issues the parents will have to learn to discuss under a co-parenting regime. Even with shared parenting, arrangements could still be made for the other parent to take the children to Sunday services if one parent is unavailable to go.

s. 16 – plans of care

[38] The parents have not been able to present clear plans of care as there remains conflict over financial issues and the sale of the matrimonial home. Both parties appeared to have now completed their financial disclosure. Each parent has obtained an appraisal value of the matrimonial home. The value from the mother’s appraiser was higher than the father’s appraiser. Nonetheless, the father wishes for the children to continue to stay in the matrimonial home given its proximity to the school and offered to purchase the mother’s share based on the mother’s appraisal, but she refused. This issue of the sale of the matrimonial home remains unresolved. Residency for both parents will be a factor for where the children attend school, particularly if the mother does not drive. In short, the parents’ plans of care continue to be in flux.

s. 16(g) Family violence

[39] The criminal charges against the mother from the events of February 2022 are still outstanding. The court is not privy to all the facts and not in a position to make any findings regarding family violence. For this reason, I decline to place any weight on these charges or the issue of the mother’s alleged violence as a factor in determining an interim parenting order.

Conclusion

[40] The best interest framework endorses a child-centered approach in determining parenting orders: Young v Young, , [1993] 4 SCR 3 at pp 62-63. The court must take a holistic look at the children’s needs and people around them and not simply tabulate each of the best interest factors with the highest score winning: Phillips v. Phillips, 2021 ONSC 2480 at para 47. When I consider the totality of the best interest factors, including the children’s views and preferences, I find that it is in the best interests of the children that there be a transition to shared parenting.

[41] Given the children have expressed through the OCL that they do not wish to spend as much time with the father as the mother, it is important that the transition to shared parenting be gradual and in conjunction with counselling between the two eldest children and the father. The OCL report was limited to just a few paragraphs indicating what each child reported as their preference with no insight into why the children have come to these views. While I appreciate that this was not the OCL’s mandate, I find the father has presented sufficient evidence to suggest that the children’s present views and preferences may have been influenced by their mother’s discussions with them about the reasons and circumstances surrounding the family breakup. For this reason, while I have considered the children’s views and preferences and given it considerable weight, I am not prepared to find these views as presently expressed in the OCL report should be determinative of the interim parenting order.

[42] Counselling will allow the children to express their feelings directly with the father in a safe and professional environment and allow the father an opportunity to take steps to address the children’s concerns including any concerns around the state of the home, their daily routine, the father’s involvement in their activities like cadets, etc. There will be an order that the father attend for a minimum of 16 hours of counselling with Dabi and Dara. How those hours are to be divided will be at the discretion of the counsellor. It may be that more time is required with one child. The mother is ordered to cooperate with any intake forms or meetings with the counsellor should it be requested. The costs of counselling between the father and the children will be paid for by the father.

[43] In addition, there will be an order that the parties attend a co-parenting course or a minimum of 12 hours of co-parenting counselling, preferably with the same counsellor. Given the present level of conflict and that the family and criminal proceedings are ongoing, I find it is in the best interests of the children that the parents learn to manage their conflict without involving the children and to co-parent harmoniously under a shared parenting schedule. The costs of co-parenting counselling will be shared by the parties.

[44] Below I have set out a graduated parenting schedule for the children that transitions from two overnights to shared parenting by the end of the summer. At present, there is no evidence that the youngest child has expressed any concerns with respect to parenting time with his father. The complaints referred to by the mother do not refer to the youngest child. However, to minimize confusion and ensure consistency in routine, I find that it is in the best interests of the youngest child to follow the same interim parenting schedule as his siblings.

[45] There will be an Order that

1. The parties will have joint decision-making responsibility for the children.
2. That the parties will move towards a shared parenting schedule as follows: a. Commencing April 1 to May 1, 2023, the father shall have the children weekly from Tuesday after school to Wednesday morning and from Friday after school to Saturday at 6 pm. b. Commencing May 1 to June 30, 2023, the father shall have the children from Wednesday after school to Saturday at 6 pm. c. Commencing July 1, 2023, the parties will move to a shared parenting on a week on-week off schedule. The father will have the first week and the mother will have the following week. The parents will agree upon time for the exchanges.
3. Each parent will have two consecutive weeks with the children during the summer break. The parents will agree on which two weeks they wish to have by May 1, 2023, and if an agreement is not reached, the father will have the last two weeks of July and the mother will have the first two weeks of August. During this period, the shared parenting schedule is suspended.
4. The father shall attend for 16 hours of counselling with his eldest two children. This counselling shall commence by April 17, 2023. The mother shall cooperate with intake forms. The cost of this counselling shall be paid by the father.
5. The parties shall attend a co-parenting course, or alternatively, a minimum of 12 hours of co-parenting counselling which shall commence by May 1, 2023. The cost shall be shared by the parties.
6. The parties shall refrain from speaking ill of one another in the presence of the children and will not share information relating to parental conflicts with the children.
7. The parties shall sign consents to allow each parent to obtain information regarding the children’s educational, medical, or psychological needs.
8. The parties shall inform each other of any appointments with educational or medical professionals involving the children within 24 hours of scheduling the appointment. If the other parent cannot or does not attend such appointment, the parent attending will inform the other in writing of the outcome and any instructions provided by the professionals within 24 hours of attendance at the appointment.
9. The father shall provide the mother with a copy of the children’s identification cards and passports.
10. Upon the shared parenting schedule taking effect on July 1, 2023, child support shall be paid in accordance with the Child Support Guidelines, O. Reg. 391/97 as am, on a set-off basis.

[1] Counsel will draft an Order consistent with this decision and forward it to me for review and signature. Should the parents consent to any additional terms they wish to have included in the interim order such as, for example, a schedule for statutory holidays or the timing or transportation for exchanges, they may include them in the draft Order.

Costs

[2] The father was the successful party on this motion notwithstanding that the order for shared parenting is to be made on a graduated basis. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The father shall file his submissions by April 13, 2023, the mother by April 27, 2023, and the father will have until May 4, 2023 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: March 29, 2023