Court File and Parties

COURT FILE NOS.: FS-22-31005-000 DATE: 20230814 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FILIZ AHAD, Applicant AND: WAEL NADEEM AHAD, Respondent

BEFORE: M. D. Faieta J.

COUNSEL: Sarah Dingwall, Agent for the Applicant Sukhman Grewal, for the Respondent

HEARD: June 15, 2023

Endorsement

Faieta J.

[1] The parties were married in December 2012 and separated in April 2022. Their only child is 7 years old (“the Child”). The Applicant mother resides in the matrimonial home. The Respondent father claims that the Applicant has denied him parenting time and he brings this motion for, amongst other things, a temporary order for primary care of the Child.

Background

[2] This Application for Divorce was commenced in July 2022. The Applicant seeks a divorce, primary residence of the children, sole decision-making responsibility, and an order that the Applicant and the Child shall be permitted to relocate to Windsor, Ontario where the Applicant’s family resides.

[3] The matrimonial home is a condominium in downtown Toronto that is owned by the Respondent father. Following their separation, the Respondent moved to his parents’ home in Stouffville, Ontario. The Respondent states that the Applicant restricted his parenting time and that he saw the Child for a few hours a day about 21 times over two months ending in June 2022.

[4] In June 2022, the Respondent states that he and the Applicant informally agreed to a temporary, without prejudice, schedule that was to be reviewed before the start of the school year:

• Tuesday and Thursday, from after school to 7:00 pm
• Saturday or Sunday from Noon to 9:00 pm

[5] The Respondent states that the Applicant refused to change this schedule although he had two overnight visits on December 3, 2022, and April 1, 2023. The Respondent states that he missed only two parenting days with the Child between June and December 2022.

[4] The Respondent states that he moved to a rental condominium on January 30, 2023 to be closer to the Child. The Respondent states that between January and May 2023, over 16 parenting days have been unilaterally cancelled by the Applicant on the basis that the Child was sick or did not want to see him.

[6] On April 25, 2023, Shore J. made the following Endorsement after a Case Conference:

2. We were able to resolve some of the issue on a temporary basis and set up a process so that they would be ready to address the other outstanding issues at the next attendance.
3. On consent, order to go as follows: a. On a without prejudice basis, the Respondent shall pay child support to the Applicant for the child of the marriage, in the sum of $1,415 per month, commencing January 1, 2023, based in an income of $166,000. b. On a without prejudice basis, the Respondent shall pay spousal support to the Applicant in the sum of $2,000 per month, commencing January 1, 2023, based in an income of $166,000. c. SDO to issue, d. On a without prejudice basis, the Respondent shall continue to pay the expenses for the matrimonial home. e. On a without prejudice basis the Respondent shall pay 100% of the children’s s.7 expenses. f. The support and payments set out above shall be revisited once the parties have exchanged disclosure and/or on the closing of sale of the matrimonial home. g. A request shall be made for the appointment of the Office of the Children’s Lawyer to conduct an assessment. h. The request for an assessment by the OCL is without prejudice to the parties’ rights to bring a motion on parenting. i. The Respondent shall not attend at the matrimonial home without the consent of the Applicant. j. The Respondent has leave to file his Answer within two weeks of release of this endorsement, with his income tax returns to be filed once completed. k. The parties shall exchange Requests for Information. The RFIs shall be responded to within 60 days. Their responses shall be provided in affidavit format with any documents attached as exhibits. l. The Applicant shall cooperate in allowing workers access to the matrimonial home, to prepare the home for listing and sale, provided she is given reasonable notice. m. The Respondent shall reinstate the Applicant on his extended medical, dental and health insurance. The Respondent shall cooperate to ensure that the Applicant is reimbursed for expenses covered by insurance. n. The parties shall attend a settlement conference on September 27, 2023, at 10am.

[7] The Office of the Children’s Lawyer has accepted this court’s referral and has advised the Applicant that it will commence an investigation.

[8] On June 8, 2023, Justice Horkins adjourned this motion, on consent, to June 15, 2023. Her Endorsement states:

The father’s Amended Notice of Motion is adjourned on terms at the request of the mother. She has not filed any responding material and has just retained new counsel. This adjournment is not allowed because of the ongoing OCL investigation. Justice Shore ordered (on consent) that the father could bring his motion for parenting time regardless of the OCL investigation.

The father disputes the mother’s request for the adjournment. There is no parenting order, and he says that the mother is not complying with their agreement for him to have parenting time.

The mother has agreed to the terms set out below. The noon hour is fixed to accommodate the mother’s counsel.

As I attempted to resolve the motion and expressed views, the motion shall be heard by another judge.

ORDERS:

1. The father’s motion shall be heard on June 15, 2023, at noon for 1 hour.
2. The mother shall serve and file her responding motion material by June 12, 2023, at 4 pm
3. If necessary, the father may file a reply affidavit, by June 13, 2023 at 4 pm.
4. The motion date is peremptory to the mother.

[9] Although counsel attended on her behalf, the Applicant mother did not attend this motion on June 15, 2023. The court was advised that the Applicant had committed to attend a field trip with the Child. After the Respondent refused the Applicant’s request to postpone this motion, the Child contacted the Respondent father many times on June 10, 2023 to request that he postpone their “appointment”.

Position of the Parties

[10] The Applicant mother states that the Child often gets extremely upset when told that she must spend time with the Respondent father. She states that the Child has often come home in tears after spending time with the Respondent because he yelled at her. The Applicant mother states that the Child should not be forced to spend overnights with the Respondent until she has become more comfortable and willing to do so.

[11] The Respondent father states that the parties shared childcare responsibilities during the marriage. He states that since June 2022 the parties have had an informal arrangement whereby the Respondent father would exercise parenting time with the Child every Tuesday and Thursday after school to 8:00 p.m. and every Saturday or Sunday from Noon to 8:00 p.m. The Respondent father states that 16 visits with the Child were unilaterally cancelled by the Applicant from January to May 2023.

Temporary Parenting Order

[12] The purpose of an interim parenting order is to provide stability to the child and the parties pending trial. It has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, [1970] 1 O.R. 331, para. 34; Spencer v. Spencer, 2023 ONSC 1633, para. 18 (Ontario Divisional Court).

[13] The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order: Gray v. Canonico, 2020 ONSC 5885, para. 48. However, the status quo is not changed by a parent who, for any reason, unilaterally imposes a parenting regime. Self-help is not a legally effective strategy for modifying parenting arrangements. A parent that changes the status quo due to concerns about a child’s safety while in the care of the other parent must seek the court’s approval at the earliest opportunity: Skitch v. Hiscock, 2018 ONSC 5581, para. 15.

[14] In allocating parenting time, a court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.), s. 16(6); Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), s. 24(6). In Knapp v. Knapp, 2021 ONCA 305, at para, 34, Benotto, J.A. explained that the “… principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.”

[15] In determining a child’s best interests, a court shall consider the circumstances of the child and give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s. 16(2); CLRA, s. 24(2).

[16] Under the Divorce Act, s. 16(3)- (5) and the CLRA, s. 24(3)- (5), the assessment of a child’s best interests must consider the following factors.

Factors to be considered

(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.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) 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 their parenting time, decision-making responsibility or contact with the child under a contact order.

[17] The list of best interest factors is not a checklist to be tabulated. It instead calls for the court to take a holistic look at the child: Spencer v. Spencer, 2023 ONSC 1633, para. 18 (Ontario Divisional Court).

[18] Finally, the affidavit evidence on a motion for an interim parenting order is often replete with contested evidence. In Al Tamimi v. Ramnarine, 2020 ONSC 4558, at para. 52, Sossin, J., as he then was, noted that “… decisions on interim motions are particularly challenging as the facts presented by affidavit evidence are untested by cross-examination and may still be evolving”.

The History of Care for the Child

[19] The Applicant mother states that she has been the Child’s primary caregiver since birth. She also states that the Respondent has never been actively involved in caring for the Child. In support of this assertion, the Applicant relies on an undated text message from the Respondent which does not provide any such acknowledgement but rather acknowledges that the Child is “more attached” to the Applicant. This text message provided by the Applicant mother shows that she has given the Respondent the contact name “Cheating Lying Abusive …”

[20] The Applicant states that she has been their daughter’s primary caregiver since her birth. She states that the Respondent has a significant history of alcohol, drug and pornography addictions which led to a long history of abuse throughout their relationship.

[21] The Respondent father states that he assumed as much responsibility around the home and with the Child as he could while maintaining his full-time job. He assisted with diaper changes, bath time, and feedings. When the Child became older, the Respondent ‘s role grew to include participating in her play and extra-curricular activities, attended play dates and birth parties with the Child, taking the Child to the park, the Science Museum, etc.; attended every parent teacher interview; worked with the Child on her reading and math skills; responsible for pick up and drop offs at daycare and school; took the Child to all medical appointments, and created a nighttime routine during the school week where he would help the Child get bathed and read a book together before bed.

Plan for the Care of the Child

[22] The Respondent states that the Child is connected to her community in Toronto. He has rented an apartment near her school to avoid any issues regarding travel time if he continued to live at his parent’s home in Stouffville. The Respondent states that he has the flexibility to drop off and pick up the Child and be available as need because he works from home. The Respondent states that he also has the support of his parents and siblings to care for the Child as they are willing to come to Toronto as necessary. The Respondent states that the Child has attended eleven counselling sessions with Nesatara Downey, a psychotherapist, at Kidcrew Medical Centre since August 2022 and will continue to do so. The Respondent states that the Child has not seen Ms Downey since April 2023 because the Applicant was changing clinics. The Respondent has not been provided with any information regarding the Child’s needs or treatment plan.

[23] The Respondent states that he would like to be enrolled in extracurricular activities in which she has shown an interest. The Respondent will also encourage the Child to maintain her relationship with both extended families.

[24] The Applicant did not provide a plan of care for the Child. She worked many years as a legal assistant in Toronto however she has been unemployed for several years.

Family Violence

[25] The Respondent provided the following records, partially redacted, from the Toronto Police Service:

(a) December 28, 2017. The parties got into an argument. The Applicant packed the Respondent’s bags and asking him to leave their home. The Applicant told police that she did not want the Respondent to return. She did not advise of any assaults or threats. There were no signs of struggle. The Respondent left the home and said he would stay with his parents.

(b) February 12, 2018. The Applicant reported a domestic incident. She stated that there has never been any physical violence or threats. She alleged verbal abuse in the form of screaming and derogatory language. It states that the Respondent is an engineer who earns $160,000 per year and controls their finances. The Applicant told police that she does not fear for the safety of their daughter in his care and described him as an “exceptional father”. The police did not consider that the report would constitute domestic violence and did not contact the Respondent.

[26] Under s. 2(1) of the Divorce Act, “family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[27] A similar definition is found in s. 18(1) of the CLRA which defines “family violence” to mean any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.

[28] The above police reports do not establish any form of “family violence”.

[29] On the other hand, the Respondent states that the Applicant suffers from anxiety and depression which strained their marriage. He states that the Applicant would verbally and physically abused him during their marriage. The Respondent provides a photo of a scar on the right side of his head which he states occurred in March 2020 as a result of the Applicant’s actions.

Any Civil or Criminal Proceeding, Order, Condition or Measure that is Relevant to the Safety, Security and Well-Being of the Child

[30] There is no evidence of any such civil or criminal proceeding in this case that is relevant to the Child’s care.

The Child’s Needs, Given the Child’s Age and Stage of Development, such as the Child’s Need for Stability

[31] The Respondent relies on the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) for the submission that the parenting time should be allocated on a 2-2-3 basis.

[32] The preface to the Guide states that it has been prepared to assist parents and their professional advisors to develop child-focused, realistic parenting plans. The Guide reflects the combined knowledge of its drafters, including social workers, psychologists, mediators and lawyers, and it summarizes development research on the impact of parental separation on children and provides practical insights about the needs of those children. The Guide includes suggested parenting plans for children in various age groups.

[33] The Guide, at pages 22-23, states:

Six to nine-year old children engage with more people outside of the family and benefit from experiences that help develop a sense of competence, such as participation in school, sports, art, music and peer relationships.

Children of this age can more easily understand and manage differences in parenting styles and blocks of time away from each parent due to their now more developed understanding of time. Using a calendar to inform and remind children of the parenting schedule, along with other activities, is helpful for this age, as transitions can be anticipated and talked about ahead of time, easing the stress of transition.

If parents are in conflict, the child’s sense of competence may be affected. It is important to protect a child from conflict between their parents. In this regard, it can be helpful for transitions or parenting exchanges to take place at neutral places (such as school). Children this age often feel they need a parent’s “permission” to see the other parent. They have developed an appreciation for others’ points of view; if they believe that a parent is unsettled or anxious about their spending time away, the child may have feelings of guilt, fear, anxiety, or even anger.

While children in this age range are stressed by parental conflict, they are more flexible than older children, and may be better able to transition between parents who may still be hostile towards one another. Entrenched child resistance to contact with one parent due to the parental conflict or the influence of an aligned parent may start at this age, but generally only starts with children who are a little older.

Schedules for children aged 6 to 9 years: At this age, children generally should have very significant involvement with both parents. However, parents should appreciate that as children grow older, they should be spending more time on school and community activities, which will mean less time with the family. Children in the higher end of this age range are likely to want to have some input in the parenting plan.

If both parents have had a substantially equal role in parenting and separation occurs when a child is in this stage of development, it will normally be appropriate for them to have roughly equal parenting time with their children of this age, provided that this is logistically feasible for them. This will normally involve children spending 2 to 7 nights in a two-week cycle with each parent.

For children in this age group, an equal parenting time schedule could be based on 2 to 7 nights in a row with each parent, for example a 2-2-3 or a 5-5-2-2 or a 3-4-4-3 arrangement. For some children and parents, transitions can be challenging, and alternate weeks may be more beneficial for children in this age group. While in the care of one parent, a short private call or on-line chat with the other parent once a day will generally help the child feel more secure, especially if a child is away from a parent for more than a couple of nights in a row.

As more fully discussed below, children in this age range are often starting to be involved in extracurricular activities. If the parents do not both have the willingness and ability to facilitate involvement in a particular activity, it may be advisable to have a parenting schedule that gives the parent supporting that activity the care of the child on the same day that the activity is scheduled. It is important that the parenting schedule is focused on the child’s needs and involvement in activities, rather than the parents’ willingness or ability to facilitate that participation. In other words, it is generally not desirable for a child to stop participating in an activity because it does not “fit” into the parent’s schedule, though it is also important to recognize that the resources and energy of parents will be stretched after separation.

If separation occurs when a child is in this age range and one parent has had a smaller role in parenting, it is normally preferable for the other parent to provide most of the care initially after separation, but children will benefit from significant involvement with the other parent. When one parent has had only a limited prior role, the plan might start with the child having one overnight each weekend, and a dinner and a few hours one night during the week. That schedule can expand after a transition period to alternate weekends with midweek parenting time. The mid-week parenting time, whether just a few hours or overnight, are a valuable way for the parent to engage in the child’s routine activities, especially in relation to school. This arrangement could evolve into an equal parenting time schedule.

Even if parents have been equally involved in childcare before separation, some children in this age group will still benefit from having a “home base” with one parent, with, for example, alternate weekends and a mid-week dinner with the other parent. It is very helpful for children this age to have a consistent routine, whatever the parenting plan. Any mid-week parenting time should occur on the same night each week, if possible.

If the parents have difficulty in communicating, it may be preferable to have as many exchanges of care as possible done by having one parent drop the child at school and the other pick up the child at the end of the school day. This plan requires that a child spend alternate weekends with each parent so that weekends are not split.

[34] While the Guide is not binding on a court, it is of “… great assistance in determining parenting schedules that are in a child's best interests, particularly when clinical evidence of a specific child's age and stage of development is unavailable.”: Bansal v. Kelly, 2022 ONSC 7049, para. 34.

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] Each party states that they have a strong relationship with the Child.

[36] The Child does not have any siblings.

[37] The Applicant’s parents live in Windsor. There is no evidence of any role that they have in the Child’s life. The Respondent’s parents live in Stouffville, Ontario and there is little evidence of any contact between them and the Child since the date of separation.

Each Spouse’s Willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Spouse

[38] This consideration, sometimes referred to as the “friendly parent rule”, requires a court to consider the willingness of a parent, where appropriate, to foster and support the child's relationship with the other parent: Barendregt v. Grebliunas, 2022 SCC 22, at para 133.

[39] The Respondent father states the Applicant mother exercised coercive control over him during their marriage which is now manifested in her control of his relationship with the Child. Amongst other things, he states that the Applicant would yell and scream at him using profanities often in the presence of the Child. Whenever he did not comply with her demands, the Applicant would threaten to contact police.

[40] While the Applicant mother states that she supports the Child’s relationship with the Respondent, it appears that her actions suggests that the opposite is true.

[41] Since their separation, the Applicant has effectively removed the Respondent from the Child’s life as the Applicant has, except for two evenings, refused him to have overnight visits with the Child.

[42] When the Respondent took the Child to an afternoon show in Niagara Falls, Ontario, on Saturday, December 3, 2022, the Applicant contacted police as she had “intrusive thoughts” that the Respondent would take the Child to Pakistan even though she had custody of the Child’s passport. The police report shows that the Applicant told police that she thought that the Respondent would take the Child to a dinner and show in Toronto. The police officers examined the text messages from the Respondent which confirmed that he was taking the Child to Niagara Falls for a show, spending the night with his parents and returning the Child home at 8 pm on Sunday. The police contacted the Respondent and the Child returned home as scheduled.

[43] The Respondent states that when he disciplined the Child for swearing or when he told her that he was disappointed in her grades when he knew she could do much better, the Applicant used the child’s reaction to those events to create a self-serving narrative to cancel his parenting time. A text message from the Applicant dated April 25, 2023 states:

… She said that she never wants to see you again. That you make her feel like garbage and she can’t be herself. That she doesn’t trust you and she doesn’t feel safe with you. Physically or emotionally. How dare you?!! Who do you think you are ?!! Like you are the picture of perfection with you addictions, abuse, loss of engineering designation, tax arrears 10+ years, chronic lying, infidelities, lack of any morals or dignity!

She doesn’t want to see you again. You wanted to make things right with her and do this?!! Along with the abuse and fear, now she has to contend with you devaluing and breaking her confidence and self-worth?!!

I won’t allow this! This is done! I’m moving on this asap!

We will definitely be fighting to the Supreme Court if needed bcs I will protect her from you.!!!

THIS ABUSE IS DONE !!!!!

The Child’s Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage

[44] There is little evidence in respect of these matters other than the fact the Respondent and/or his parents appear to have immigrated to Canada from Pakistan.

The Ability and Willingness of Each Person To Care for and Meet the Needs of the Child

[45] The Respondent father notes that the Child’s attendance records show that she has missed 20 days of her Grade 2 classes during the 2022/2023 school year. No explanation is offered by the Applicant mother. He also states that the Child is failing to complete her activities this year.

[46] The Respondent states that the Applicant was never interested in assisting the Child with her schoolwork and would delegate such responsibility to him. The Respondent purchased flashcards and other educational tools for the Child. He states that the Child has told him that she misses doing these activities with the Respondent.

[47] The Respondent further states that the Child is at risk of emotional harm as the Applicant has: (1) disregarded the impact of being verbally and physically abusive to him in the Child’s presence; and (2) discussed adult issues including their separation with her. A text message dated March 23, 2022 from the Applicant indicates that told the Child that she would abandon her:

Applicant: I said goodbye to her and she’s crying. In the shower. I can’t do this. I need to leave ASAP and I’m not coming back. U can have it all.

Respondent: WTF Liz. We have to work everything out. You have to stop. How is this healthy. … You have too many people that still love you including [the Child].

[48] The Applicant mother alleges that the Respondent has a “significant history of substance abuse” and that he admitted to having an “alcohol, drug and pornography addictions. No such evidence was provided to substantiate those claims. The Respondent father denies these claims however he acknowledges that he indulged in food, alcohol and edibles for over one year prior to separation to dull his pain over their crumbling marriage.

[49] The Applicant also states that not only is the Child uncomfortable with spending overnights with the Respondent, and that she often gets “extremely upset” when told that she must spend time with the Respondent. The Applicant refers to the following circumstances:

(a) The Respondent has left the Child unattended in a public space during his parenting time on numerous occasions. The Respondent states that he only left the Child unattended at a public space for a few minutes when he had to use the restroom or pickup their food.

(b) After his parenting time, the Respondent returns the child well past her bedtime and sometimes as late a 11:00 pm. The Respondent acknowledges returning the child past her bedtime occurred on Saturdays when they visited his parents.

(c) The Child often returns home hungry as the Respondent has not fed her anything for dinner. The Respondent states that he always informed the Applicant that the Child had not eaten and offered to drop off dinner with the Child.

(d) The Child often returns home in tears saying that she fears the Respondent and that he yells at her. The Applicant states that the Child also told her that she feared the Respondent prior to separation. The Respondent denies that the Child is fearful of him and states that he has never done anything to make her fearful. He stats that he has disciplined her when she has called him names or hit him in front of his friends. He did not describe how he disciplined the Child.

(e) The Child states that the Respondent has refused to permit him to call the Applicant while she was upset. The Respondent states that the Child only wished to call the Applicant on one occasion, and he did not stop her from doing so.

The Child’s Views and Preferences

[50] There is no evidence of the child’s views and preferences other than the evidence of the Applicant mother. She states that the Child does not wish to have overnight parenting time with the Respondent father. I do not place a great deal of weight on the Applicant’s evidence in this regard given her animosity towards the Respondent.

Conclusions

[51] Much of the affidavit evidence is unsubstantiated except by text messages and police reports.

[52] Given all the circumstances, which do not place either parent in a very favourable light for purposes of this analysis, I find that it is in the Child’s best interests for the Respondent father to have significant involvement in her life while permitting her to maintain her “home base” with the Applicant.

Should the Applicant Mother be Required to Provide the Respondent’s Appraiser with Access to the Matrimonial Home?

[53] The Respondent father asks for an order requiring the Applicant mother to provide his appraiser, Advanced Appraisals, with access to the matrimonial home, municipally known as 327-90 Stadium Road, Toronto, Ontario on 24 hours’ notice.

[54] The Respondent states that Justice’s Shore Endorsement dated April 25, 2023, requires that the Applicant shall cooperate in allowing workers access to the matrimonial home, to prepare the home for listing and sale, provided she is given reasonable notice. He states that the Applicant has not cooperated with providing access to an appraiser and seeks a timeline for the completion of the appraisal.

[55] The Applicant has made the appraiser’s access to the matrimonial home dependent upon the appraiser being jointly selected by the parties. The Respondent is not required to retain an appraiser who is approved by the Applicant. While it may be financially sensible for the parties to agree to a joint appraisal of the matrimonial home, rather than retain their own appraiser to complete an appraisal, it is not required.

[56] The Respondent’s motion for access to the matrimonial home by Advanced Appraisals is granted.

Order

[57] Order to go as follows:

(1) On a without prejudice, temporary basis, the Child shall remain in the primary care of the Applicant mother.

(2) On a without prejudice, temporary basis, the Respondent father shall have parenting time with the Child on the following terms:

a. The Child shall reside with the Respondent father on alternate weekends from Thursday after school until Monday before school. The first such weekend with the Respondent father shall be Thursday, August 17, 2023.

b. The Child shall reside with the Respondent father every Wednesday overnight from Wednesday after school until Thursday before school.

c. All parenting time exchanges shall take place at the Child’s school when school is open.

d. In the event that the Child’s school is closed, then parenting time exchanges shall take place in the lobby of the Applicant mother’s residence at the start of the Respondent Father parenting time, and in the lobby of the Respondent Father’s residence at the start of the Applicant mother’s parenting time. The exchanges shall take place at 3:30 p.m..

e. The following holiday schedule shall supersede the regular residential schedule described above:

i. Christmas and New Years: The regular parenting schedule will be suspended during the two-week Christmas School Break, which begins after school on the last day of school before the Break and ends on the Monday morning that school resumes. In odd-numbered years, the children will reside with Father from December 24 at 11 a.m. to December 25 at 11:00 a.m and with the Applicant mother from December 25 at 11:00 a.m. to December 26 at 11:00 a.m. The reverse will be in effect in even-numbered years. The balance of the Christmas School Break will be shared equally with the Applicant mother having the first half and the Respondent father having the second half, with each parent’s share potentially interrupted by the period between December 24 and December 26.

ii. March Break: In even-numbered years the Child will reside with Respondent father commencing with the Monday (am) and ending on the Friday (pm) of the school break and will attach to her regular weekend. In odd- numbered years the children will reside with Applicant mother

iii. Summer Break: This provision commences on January 1, 2024. Summer commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each party will have a two-week period of uninterrupted time with the Child during July and August, preferably attached to his/her regular weekend. The Applicant mother will have her first choice of weeks in odd-numbered years, and the Respondent father in even-numbered years. The party with the first choice will advise the other in writing by January 15 annually. The party with the second choice will advise the other in writing by January 22 annually. The balance of the summer school break will follow the regular schedule.

iv. Statutory Holidays / Long Weekends / PA Days/ PD Days: The resident parent will have the additional 24 hours added to his/her regular weekend. The non-resident parent will have 3 hours time on the Easter weekend and Thanksgiving weekend to celebrate a holiday meal with the Child. This statutory holiday provision will not apply during the summer if the Child is with either parent for her uninterrupted summer vacation time.

v. Child’s Birthday: The non-resident parent shall have up to three (3) hours of parenting time with the Child if her birthday falls on a weekday and up to five (5) if her birthday falls on a weekend.

f. In emergencies or for unforeseen circumstances (e.g., illness, inclement weather), significant changes in the drop-off and return times will be communicated to the other party by text, email and telephone as soon as these changes become known to the parent having to make them. In the event that the Child is unable to attend to travel to the other parent’s home for parenting time, then the resident parent shall provide a doctors’ letter confirming that the Child is unable to travel and provide the non-resident parent with make-up parenting time.

g. The Applicant mother shall not relocate to Windsor, Ontario with the Child without the prior approval of this Court.

(3) The Applicant mother shall provide the appraiser, Advanced Appraisals, access to the Matrimonial Home, municipally known as 327-90 Stadium Road, Toronto, Ontario on 24 hours’ notice.

(4) The Respondent shall serve and file a draft Order for my review by Noon on August 16, 2023. If the Respondent disagrees with the form or content of the draft Order, then she shall submit a proposed draft order by Noon on August 17, 2023. Their submissions shall be sent to my attention via my assistant.

(5) The Respondent father shall deliver his costs submissions by August 23, 2023. The Applicant mother shall deliver her responding costs submissions by August 30, 2023. The Respondent father shall delivery any reply costs submissions by September 5, 2023. Each costs submissions shall be no more than three pages exclusive of any offers to settle and bill of costs.

Mr. Justice M. D. Faieta Released: August 14, 2023