COURT FILE NO.: FC-21-706 DATE: 2023/01/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ghada Mansour, Applicant -and- Yassin Hassan, Respondent
BEFORE: Anne London-Weinstein J.
COUNSEL: Diana Aoun, for the Applicant Courtney Shields, for the Respondent
HEARD: January 12, 2023
ENDORSEMENT
Overview:
[1] The Applicant Mother and the Respondent Father had a relationship which produced one child. They never married. The child, SY was born on February 9, 2021. He was born with Down Syndrome and has special needs. The evidence before me on the motion is that the parents’ interactions with each other are acrimonious. Both parties have children from other relationships.
[2] This motion was originally scheduled as a motion for parenting time brought by the Respondent Father and a cross-motion by the Applicant Mother for child support. Insufficient time was scheduled to hear both matters in the time allotted and materials were also filed late regarding the imputation of income portion of the motion.
[3] Therefore, I ordered that the child support aspect of this motion must be heard before me on an urgent basis within 90 days. I have dealt here only with the motion dealing with parenting time.
Mother’s Position:
[4] The Mother’s position is that the Father shall see the child every Tuesday and Thursday for three hours each visit, commencing immediately, until further agreement or court order. The Mother asks that the Father take a parenting course related to parenting a child with special needs and seeks the appointment of the Office of the Children’s Lawyer to complete a section 112 OCL assessment. Finally, the Mother seeks an order permitting her to take out a passport for the child and to travel with the child outside of Canada without the Father’s consent.
Father’s Position:
[5] The Father seeks joint decision-making authority and parenting time every Tuesday and Thursday after daycare from 4 p.m. to 8 p.m. After a month, the Father would have parenting time two days a week after daycare until 8 p.m. and overnight on Friday to Saturday at 8 p.m. After a further 30 days, the parenting time would be divided evenly on a rotating weekly basis, with each parent spending time with the child during the week and alternating weekends.
[6] In the alternative, the Father seeks parenting time with the child every Tuesday and Thursday after daycare to 8 p.m. and every Sunday from 4 p.m. to 8 p.m. Parenting time would be reviewed by this court at a future point.
[7] The Father asks that all exchanges take place at the daycare or at 1216 Hunt Club, Ottawa Ontario K1V 2P1.
[8] The Father asks that the parties not speak negatively about one another or permit anyone else to do so in the presence of the child, and that all communications relating to the child shall be by email between the parties. Communication shall be respectful and child focused. The Father asks that the Mother provide a list of foods the child can eat. The Father requests that the Mother provide consent permitting the Father to speak to any third party professionals involved with the child.
[9] The Father asks that the Mother advise of all appointments relating to the child and that he be permitted to attend those appointments in person and that each party advise the other immediately of any issues that arise with the child while in their care. The Father asks that neither party shall remove the child from the City of Ottawa without the prior written consent of the other. He asks that no one smoke in the presence of the child.
[10] The Father seeks an order authorizing police to search for and apprehend the child if necessary. Finally, the Father asks that the parties obtain copies of all police records relating to the parties.
Procedural History:
[11] The Applicant Mother filed an application without a lawyer and brought an urgent ex-parte motion on April 22, 2021 before Justice Summers. The Applicant Mother was granted an order requiring the Respondent Father to return the child to the Mother and parenting time to be at the Mother’s discretion.
[12] The Father maintains that the Mother had indicated to him that she no longer wished to care for the child. The Mother denies this allegation and indicates that the urgent motion was necessitated as he would not return the child.
[13] It is not clear on the record why the urgent motion being returnable within 14 days was never brought back to court, but that is apparently what happened. A first appearance in the matter did not occur until the Father retained counsel. The first appearance took place on December 22, 2021 where the first case conference was scheduled for February 4, 2022. The case conference was adjourned and rescheduled due to a change in the Mother’s counsel. A case conference was scheduled for March 30, 2022. The Father was not having parenting time and as a result brought a request for an urgent motion on March 14, 2022. The motion was unable to be heard due to technical difficulties at the courthouse. A case conference was held but was struck. A case conference was held on August 22, 2022, but a temporary agreement was not reached.
Interim Variation of an Interim Order:
[14] In assessing whether a temporary order should be varied a Court must consider whether there has been a material change in circumstances that affects or is likely to affect the best interests of the child. While the Children’s Law Reform Act (“CLRA”) does not set out a test for a variation of a temporary order, when a party is requesting to vary a temporary order, the material change must result in a compelling reason to vary the order. Children’s Law Reform Act, R.S.O. 1990, c. C.12, s 29(1) Radojevic v Radojevic, 2020 ONSC 5868 at para 13
[15] The test to vary an order was described in Gordon v. Goertz, [1996] 2 SCR 27.
[16] That case was decided under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), however, the test applies to variation under the CLRA. Brown v. Lloyd, 2014 ONSC 5868 at para 13.
[17] The threshold issue when assessing whether to vary an order is whether there has been a material change in the circumstances of the child since the last order. Where there is no material change, the Court lacks jurisdiction to vary the order. Gordon v Goertz: para 10.
[18] A material change is defined as:
a) A change in the condition, means, needs or circumstances of the child and/or the parents’ ability to meet the child’s needs;
b) The change materially affects the child; and
c) The change was either not foreseen or could not have been reasonably contemplated when the order was originally made; at para 13.
[19] Where a material change in circumstances is found and the current order is no longer in the child’s best interests, the court must vary the order. A decision to withhold parenting time contrary to a previous temporary order has been found to be a material change in circumstances. Sullivan v. Boucher, 2020 ONSC 8062 at para 23.
[20] In the circumstances of this case, the Mother’s position contemplates regular scheduled parenting time between Father and child. Justice Summer’s order contemplated that the Mother, in exercising her discretion to permit the Father parenting time, would do so in a manner reflective of the best interests of the child. Unfortunately, the Father has not seen his son since May 16, 2022.
[21] The passage of eight months with no contact between the child and his father is not in the best interests of the child and has had a serious material impact on the child’s interests. Therefore, I find that there has been a material change in circumstances since the order of Justice Summers, as her order contemplated that discretion for parenting time would be exercised in a manner which would permit the Father and child to spend time together. I find that this discretion has not been exercised in the manner contemplated by Justice Summers.
[22] Having found there has been a material change in circumstances, I turn now to a consideration of what is in the best interests of the child. CLRA, s 24(1) and 24(2)
[23] In determining what order is in the child’s best interests, the court should consider the factors set out in s. 24(3), which include:
A) The child’s needs, given the child’s age and stage development;
B) The nature and strength of the child’s relationship with each parent;
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;
F) The ability and willingness of each parent to care for and meet the needs of the child;
J) Any family violence; and
K) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(3)
[24] In allocating parenting time, the court must take into consideration the maximum contact principle, based on the child’s best interests.
Conclusion:
[25] Given the child’s age and the elapse of eight months, parenting time between the Father and child must be restored on a gradual basis. It is in the best interest of the child that the Father have parenting time with the child which begins with daytime parenting time, building to overnight parenting time.
Order:
[26] Therefore, the Father shall have parenting time with the child every
- Tuesday and Thursday after daycare to 8 pm and every Sunday from 4 pm to 8 pm as a starting point.
- All exchanges shall take place at the daycare or at 1216 Hunt Club, Ottawa, Ontario.
[27] A motion shall be brought before me to review parenting time, specifically to address overnight parenting time. If the parties are amenable, this could be addressed at the motion to be heard within 90 days dealing with child support and imputed income. I leave this arrangement to the discretion of the parties.
[28] Given the acrimonious relationship and communication style between the parties, joint decision making is not in the best interests of the child at this time. I have a record before me which presents two adults who have been unable to communicate effectively with one another, although this would clearly be in the child’s best interest. I am unable to determine, on the record before me, with the allegations and counter-allegations, if one parent is creating the conflict, or both. Therefore, decision making authority will remain with the mother. Beale v. Badom, 2022 ONSC 5372 at para 33.
[29] However, the Mother is to inform the Father of all major decisions in the child’s life and seek his input. However, the final decision, after consulting with the Father shall remain with the Mother.
[30] The communications shall be by email. Communications will be child centred and respectful.
[31] The Father shall be permitted to attend all appointments relating to the child. The Mother shall provide her consent so that the Father can discuss the child with all third parties, including medical and educational professionals. The Mother shall keep the Father fully apprised of the appointments pending for the child. The Mother shall provide the Father with a list of foods the child can eat and any other particulars related to his care.
[32] At this point in the proceedings, I am not satisfied that an order permitting the Mother to take out a passport for the child and remove the child without the permission of the Father is in the best interests of the child. I am concerned that the Mother does not appreciate the importance of the child spending time with his Father.
[33] I decline to make an enforcement order at this point in the proceeding. This matter can be revisited before me on a motion to review parenting time already contemplated. I am concerned regarding the impact of police intervention on the child who has special needs and is just two years old.
[34] I have not ordered that the Father take a parenting course as requested by the Mother. There is no evidence that the Father requires a formal course to learn to properly parent a child with special needs. The Father has had other children, as has the Mother.
[35] The Mother shall advise the Father of all appointments relating to the child and he is permitted to attend those appointments in person. Each party shall advise the other immediately of any issues that arise with the child while in their care.
[36] Further, I have not ordered that the Office of the Children’s Lawyer become involved in this matter as requested by the Mother. Given the child’s age and the fact that the Father has not seen the child for eight months, the ability of the OCL to shed light on the issues facing the parties would be circumscribed. This issue can be revisited at a later stage when consistent parenting time is restored. The parties are to seek all police records and disclose them to the other party, paying any associated fees, within 60 days of this order.
[37] The parties are not to speak disparagingly of one another in the presence of the child. No one is to smoke in the presence of the child. Costs shall remain in the cause.
Anne London-Weinstein J. Date: January 19, 2023