Court File and Parties

Court File No.: FC-22-1290 Date: 2023-07-10 Superior Court of Justice - Ontario

Re: Leanne Susan Tomkinson, Applicant And: Dominik Sebastian Baszak, Respondent

Before: The Honourable Madam Justice R.S. Jain

Counsel: Roxanne Shank, Counsel for the Applicant Aria MacEachern, Counsel for the Respondent

Heard: July 6, 2023

Ruling on Motion

[1] On March 20, 2023, the parties attended for an Early Triage Conference in front of McDermot J. He set this matter down for motion on the issues of interim decision making and parenting time for the child Gabriel Josef Baszak born September 19, 2016; possession of the home; and spousal support.

[2] The parties and counsel were able to temporarily resolve the property issues and child and spousal support issues. The motion has been narrowed down to focus on the issues of temporary decision-making responsibility and parenting time for their child.

Preliminary issue regarding the June 30, 2023 affidavit by the Applicant

[3] The Respondent is opposed to the Applicant’s June 20, 2023 affidavit being filed. He states it is sur-reply on the parenting issues and it should be struck. He says that affidavit was supposed to be regarding the support issues only, which are settled. The Respondent submitted an affidavit dated July 4, 2023 in reply to the Applicant’s sur-reply. The Applicant is opposed to the Respondent’s July 4, 2023 affidavit being filed. Both parties are opposed to the other’s late affidavits which are outside of the timelines and limits for filing set by McDermot J.

[4] For oral reasons given, I did not strike the Applicant’s June 30, 2023 affidavit and I allowed the Respondent to file his affidavit dated July 4, 2023.

Motion regarding Temporary Decision-Making and Parenting Time

[5] This is the Respondent’s motion. He is seeking an order for joint decision-making responsibility and shared parenting time on a 2-2-3 schedule. The Applicant seeks an order dismissing the Respondent’s motion and granting her sole decision-making responsibility and primary residence and care of the child. She asks for an order that the Respondent have parenting time on a regular schedule in accordance with the temporary (without prejudice) consent Order dated March 20, 2023. This Order gave the Respondent parenting time with the child every Wednesday overnight to Thursday, and every other weekend from Friday after school until drop off at school on Monday morning.

[6] The parties separated in 2022 after residing together for approximately seven years. They have one child together, namely Gabriel, who is six years old.

[7] The Respondent states that the Applicant has unilaterally dictated parenting time and behaved unreasonably by withholding the child and engaging in alienating behaviours. The Respondent has wanted a shared parenting plan since separation; however, he states that the Applicant is constantly trying to limit parenting time. After separation, he says she made strategic allegations of a historic nature regarding physical and verbal abuse. The Respondent was charged and was removed from the home on November 17, 2022. He had no parenting time the Christmas break.

[8] Both parties assert they provided reasonable proposals for parenting time schedules. The Respondent states that he agreed out of desperation to the current parenting schedule. Despite this, he states that the Applicant unilaterally withheld Gabriel from him January 13-16 and again recently on Father’s Day. There was a CAS involvement and the file was closed. The Applicant did not provide parenting time again even though she knew the CAS file was closed.

[9] The Respondent states that all of his parenting time has been very positive. Pictures have been included in the evidence of the Respondent showing the loving bond between Gabriel and the Respondent. The Respondent wants a shared schedule so he will be able to be involved both with school and relaxing time for Gabriel. He would like to continue to make plans doing all their activities together. The property issue has been resolved so the Respondent has moved back into the Milne St. property which is very close to Gabriel’s school. Gabriel is comfortable with that home, and he has lived there for years. The Respondent stated that his work schedule is flexible, and his employer has confirmed they will be supportive of a share parenting schedule. He plans to work more when Gabriel is not in his care.

[10] The Respondent states that the Applicant has not raised any legitimate concerns about his parenting time. He picks him up from school and gets him to school without any issue. The child is very happy spending time with his Father. Gabriel is attending counselling to help with issues of separation. Counselling notes at Ex. “Y” of his May 31, 2023 affidavit show there is no concern regarding Gabriel’s emotional health, he is “feeling happy.” Gabriel is described as a “calm, quiet, sweet child who was able to sit and listen, reflect and answers questions about his feelings.” He did not state that he has any worries or concerns. The counsellor described both parents as supportive.

[11] The Respondent stated that he has concerns that the Applicant does not get the child to school, and he has missed 34.5 days. He states that she is engaging in alienating behaviour by encouraging the child to refer to him as “Dominik” (as shown in the Father’s Day card made by the child).

[12] The Applicant denies the allegations that she is unreasonably withholding Gabriel or engaging in alienating behavior. She denies that Gabriel has missed an unreasonable amount of school or that there is a concern about his attendance. Her position is that joint decision-making and equally shared parenting time is impossible under these circumstances (with the outstanding criminal charges and the non-communication and lack of trust between the parties. Even if it were possible, the Applicant states that it would not be in the child’s best interests.

[13] When the parties were together, the Applicant states that she was the primary caregiver. The Respondent worked long hours and returned home late in the evening on most days. The Applicant asserts that the Respondent worked such long hours that it resulted in her doing most of the parenting. The Applicant didn’t return to work until 2021.

[14] While the parties were together, the Applicant had concerns about the Respondent’s alcohol and marijuana intake and concerns about how rough he was with Gabriel (even when playing). She further alleges that she was assaulted by the Respondent on July 30, 2022 and admits that she did not report it to police until November 2022. She waited until they were separated because she was afraid. She states that the Respondent verbally abused her many times, often in front of Gabriel. He’s verbally denigrated the Applicant and called her a “loser” and laughed at her with the child, involving the child in the conflict. Gabriel has announced that, “Daddy hates you, and I do too.” On or about November 16, 2022 the Applicant alleges that the Respondent locked the Applicant out of the master bedroom in front of Gabriel. She believes that the Respondent has engaged in tracking and stalking her. She stated that his knowledge of her whereabouts and possible stalking behaviour also contribute to her fear. She believes that the Respondent’s request for joint-decision making is an attempt to control her. She denies strategically making a report to the police in relation to the property claims. She stated she was genuinely afraid of the Respondent. He controlled and stalked her. She stated that due to her fears, she didn’t report the incidents of violence until they separated.

[15] The law requires the court to consider family violence when making a parenting order. There are outstanding charges that have not been resolved and a no-contact order. Even though the charges have not been proven in court, in my view, there is some evidence that there was significant conflict and allegations of misuse of alcohol in front of Gabriel during the relationship, (see text message thread in or around August 2022 found at Exhibit “R” of the Applicant’s affidavit dated June 14, 2023).

[16] With the lack of trust and communication, and the proposed multiple exchanges in 2/2/3 schedule, I agree with the Applicant that shared decision making and shared care is not possible, or in the best interests of the child in these circumstances or at this time. This doesn’t mean that it won’t be possible in the future.

[17] As time passes and the issues in this matter are resolved, trust and communication may be built between the parties. Albeit this will not happen overnight. Nor will it happen if there are further allegations of physical abuse and involvement of the Children’s Aid Society. I am not going to make any findings or conclusions regarding the alleged injury to Gabriel’s neck, and its cause at this time. I am further not going to make any conclusions about whether the Applicant withheld the child unreasonably this past Father’s Day. The evidence is unclear and contradictory and would require the court to make findings of credibility. What I will repeat is the same recommendation made by the New Path counsellor, that both parties should attend the “Triple P” program. I will add they also may benefit from attending a cooperative parenting program as well.

[18] It is accurate that a 2/2/3 schedule is appropriate in accordance with the AFCC Guidelines for a shared parenting schedule for a child Gabriel’s age and development. However, the case law is clear that the best interests of the child is from the child’s view, and that if a supportive and loving relationship can be provided by each parent, the child should have as much time with each parent as is in his best interests.

[19] The Applicant denies withholding parenting time. She stated that she offered the Respondent parenting time immediately after the separation. She offered parenting time on an alternating weekends basis after the removal of the Respondent from the home. She stated that the Respondent’s proposals were not reasonable. He wanted what he wanted, and she believes that if he didn’t get what he wanted, he wasn’t interested. He calls it “withholding” or “alienating” and she believes she is acting in Gabriel’s best interests and keeping him safe.

[20] Although the Applicant didn’t agree to the parenting schedule proposed by the Respondent, she did make proposals and offer reasonable parenting time. Further, the Applicant agreed to modify the no contact order to enable the Respondent to pick up and drop off at school. This is helpful for the functionality of the parenting schedule and reduces the chance of Gabriel being exposed to possible conflict in the future. The Applicant is supportive of regular parenting time for the Respondent in accordance with the schedule that is currently in place. She says that Gabriel is thriving on the routine. She states that she is open to expanding the time include the extra day if the weekend includes a statutory holiday. In my view, all of this does not support the allegation that the Applicant is exhibiting unreasonable withholding or alienating behaviour.

[21] Both parties do not trust each other or communicate with each other. They allege the other has the worst of intentions with the positions they are taking. In my view, under these circumstances, a joint decision-making order could perpetuate the power struggles and hostility. This would create delay and indecision, which would not be in the best interests of the child.

[22] While it is clear that the Respondent and the child have a loving bond, the question of whether an equally shared 2/2/3 parenting time schedule is in the best interests of the child cannot be answered positively, yet. I find it would be a very different schedule than what Gabriel is used to, and it is problematic given the criminal court restrictions on communications. The number of exchanges alone would increase the potential for conflict and place stress and reliance on third party exchanges. The focus of the court in making any temporary parenting order is the best interests of the child. In most situations, the familiar arrangement is to be maintained if possible. The court does not usually change a status quo on motions for temporary parenting orders unless there were compelling circumstances. Although this status quo is “without prejudice,” I do not find there are compelling circumstances to justify changing it in the way the Respondent requests.

[23] I acknowledge that Gabriel’s tears at the end his parenting time with the Respondent may be difficult to experience, however they are understandable considering what he has been through in the past year. Gabriel needs to know when he is going to be with his parents. Both parents should focus on how to support him through the exchanges by creating more certainty and security in the parenting schedule and in his relationship with his parents. Creating or demanding more exchanges to facilitate an “equal” parenting schedule will not create certainty or security. Consistency creates certainty and security and helps build trust. Both parents must follow the court ordered schedule at all times until it is changed by agreement or court order. Neither of the parents should be speaking negatively to Gabriel about the other, and they should refrain from speaking about adult issues or legal issues. As much as they may hate or dislike one another, they should show Gabriel that they love him more. They should be supportive of his loving bond with the other parent at all times. They should assure him that nobody is going to replace them.

[24] The allegations regarding the Respondent’s behaviour towards the Applicant and the child remain allegations, however, the court views them as serious and must take them into consideration. The principle that a child should have as much time with each parent as is consistent with the best interests of the child does not create a presumption of equal time sharing of children after parents separate. I do not find that it is in the best interests of the child to have a shared 2/2/3 parenting time schedule at this time.

[25] For the reasons set out above, Order to go:

a. The Respondent’s motion for joint decision-making and a 2/2/3 parenting time arrangement is hereby dismissed.

b. The Applicant shall have temporary sole decision-making responsibility for Gabriel Josef Baszak, born September 9, 2016 (“Gabriel”).

c. The Applicant Mother shall be entitled to make major decisions for Gabriel with respect to his medical care, education, religious and or spiritual training, cultural instruction, and extra-curricular activities after first consulting with the Respondent.

d. Gabriel shall primarily reside with the Applicant and shall have parenting time with the Respondent following the existing schedule: every Wednesday from after school until drop off at school on Thursday morning and every other weekend from after school on Friday until drop off at school on Monday morning. If Friday is a statutory and/or school holiday, the Respondent shall pick up Gabriel on Thursday after school and drop off school on Monday morning. If Monday is a statutory and/or school holiday, the Respondent shall pick up Gabriel on Friday after school and drop off at school on Tuesday morning.

e. During Gabriel’s school summer holidays, the above schedule shall continue with the following amendments: every Wednesday at 3:00 pm until drop off on Thursday morning and every other weekend on Friday at 3:00 pm until drop off on Monday morning. All pick up and drop off exchanges shall be at the Applicant’s place of employment, located at 56 Victoria St. E., Alliston, Ontario, L9R 1L5.

f. Both parents shall refrain from speaking negatively to Gabriel about each other, and they shall further refrain from speaking with him about adult issues and/or legal issues.

[26] Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the Applicant is the successful party and is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant on or by July 17, 2023, followed by responding submissions on or by July 24, 2023, then reply submissions, if any, on or by July 31, 2023. Cost submissions shall be no more than 2 pages in length (12 pt font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received on or by July 31, 2023, the issue of costs will be deemed to have been settled between the parties.

JAIN J. Date: July 10, 2023