Court File and Parties

COURT FILE NO.: FS-22-00045363-0000 DATE: 2023-09-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandra ILCHUK, Applicant AND: Gleb NIKITASHENKO, Respondent

BEFORE: Kurz J.

COUNSEL: Daryl Gelgoot and Vanessa Amyot, for the Applicant Oleksiy Bykov, for the Respondent

HEARD: September 13, 2023

Endorsement

Introduction

[1] The Applicant mother (the “mother”) moves for temporary orders granting her final decision-making rights with regard to the parties’ five-year old child, (“the child”), the right to dispense with the consent of the Respondent father (the “father”) to her travel outside the country with the child as well as the renewal of Sophia’s passport.

[2] Following service of the mother’s motion, the father consented to a temporary order that dispenses with his consent to the renewal of Sophia’s passport and to the child’s travel to Florida from September 29, 2023 to October 5, 2023 as well as December 15, 2023 to January 7, 2023. Order to go in accord with the terms of the consent and draft order of the parties, set out at item 16 of the CaseLines master bundle for this matter. However, that order will also include the terms set out below.

[3] The remaining issue is interim decision-making for the child.

[4] The mother says that she cannot communicate with the father, that he is verbally abusive to her and her family, he refuses to cooperate with her, that he is in brazen breach of a number of terms of my interim order of January 18, 2023, particularly to pay for half of the child’s private school tuition and to return a vehicle to the mother. She argues that the father’s conduct and unwillingness to work cooperatively with her makes joint decision-making well-neigh impossible and contrary to the child’s best interests,

[5] The father says that it is the mother who is uncooperative. He says that she has arbitrarily withheld his parenting time with Sophia, that she fails to inform him of the child’s medical condition, and that she fails to consider his point of view. He adds that she misrepresents his willingness to cooperate with her.

[6] For the reasons that follow I agree with the mother that her sole decision- making is in the child’s best interests, upon the terms set out below.

My Previous Role in Conducting a Case Conference in this Proceeding

[7] I note that the parties informed me at the commencement of this motion that I had conducted a case conference in this matter. I told them that I have no independent memory of it, even after seeing my endorsement of January 18, 2023 and my order of that day. The father initially objected to my hearing this motion. But no one else was available to hear the motion. If I were to adjourn it, the next available date would be in December 2023. From reviewing the materials, it is clear that a decision is required now because of the high conflict between the parties.

[8] Nothing in the Family Law Rules prohibits me from hearing this motion. Rule 24(24) only applies to judges hearing settlement conferences. I add that I am unaware of any discussions before me on January 18, 2023 regarding the issue raised in this motion. I further add that it is routine in the Ontario Court of Justice, where single judge case management is the sanguinary norm, to have the same judge conduct the case conference and all motions. Thus, I find it appropriate to hear this motion.

Background

[9] The parties married on November 11, 2017 and separated on November 15, 2021. The child is their only child. The mother is a lawyer. The father possesses an MBA degree and a CFA designation. He formerly worked as a financial manager at BMO but lost that job in 2021. He apparently works for a company controlled by his parents.

[10] After the parties separated, the mother continued to reside in the matrimonial home in Oakville. The father moved out and first went to Kazakhstan for about two months. When he returned, he moved into his parents’ home in Richmond Hill, where he continues to reside. Each party makes claims about equitable title to each of those two properties, issues irrelevant to this motion.

[11] On January 18, 2023, the parties consented to my order. Among the terms of that order, the father was required to pay 50% of the child’s private school fees at Fern Hill School. He was also required to “forthwith” transfer title of the QX60 vehicle with which the mother had been driving herself and the child. It was purchased from the proceeds of sale of two vehicles that the mother had owned but placed in the father’s name. In the nine months since that consent order was made, the father has failed to comply with either term. He offers no valid justification for his breaches.

[12] He claims that the order does not set out the time for him to either pay the school fees or transfer the vehicle. The argument is clearly disingenuous. A look at his August 26, 2022 sworn financial statement shows that while he claimed an income of just over $25,000 per year while he also claimed expenses of approximately $104,000 per year, including the Fern Hill tuition for 2021-22. He admitted that he held $1,236,750 in various bank accounts and financial instruments. He also claims ownership of both the Infinity and a 2018 Jaguar XF. Why he needs two and the mother neither, when she has the child and he was ordered to turn over the Infinity, he fails to say. The father’s September 9, 2023 financial statements makes similar claims.

[13] Incongruously, his last sworn financial statement in this proceeding, dated March 7, 2023, raises further concerns. He claimed a present income of $22,236 and income for 2022 of just $7,498. Nonetheless, he claims expenses of $104,589, including the school fees that he was ordered but refused to pay. He continued to possess both the Infinity and the Jaguar.

[14] In addition to half of the school fees, the father also refuses to pay any of the child’s non-school s. 7 expenses.

[15] These issues are not before me in order to make financial determinations but the incongruity of his sworn financial statements and what they say about his willingness to obey the orders of this court are relevant to both his credibility and the substantive issues before this court.

[16] Until now, the father has only been able to enjoy day parenting time with the child. He recently accepted the mother’s offer of a graduated increase in parenting time which will allow for his first overnight visit this coming weekend.

[17] The parties are unable to communicate other than through texts. The mother complains that he will not speak to her during changeovers for the child. She also points to numerous insulting comments that the father has made to her during their text exchanges, including:

1. “Shame on you and your parents that you cannot take proper care of [Sophia]”;
2. He referred to the mother, after she informed him of Sophia’s illness, as a “cringe person from a toxic family”;
3. He referred to her grandfather, who had suffered a heart attack as someone who “now barely looks like a human”;
4. He asserted that their relationship was the worst he’d had in his 37 years;
5. He opined that her family is “rotten to the core”.

[18] There are other examples of that vituperation, including a pleading that I ordered struck, which explained the mother’s reluctance to grant him the parenting rights he seeks on the Russia/Ukraine war. The pleading implied that she supports the Russian side and is attempting to punish him for his support for Ukraine.

[19] Most egregiously, the father sent the mother a text with a picture of an Amber Alert. His comment, translated from the Russian, was “[s]eems like I will soon be referenced in these alerts”. The comment can only be reasonably read as a threat to kidnap the child. It was accompanied by a laughing emoji. The father claims that it was all a joke, although kidnapping a child could be no further from a laughing matter.

[20] The father’s counsel argued that all of these comments have been presented to the court in a decontextualized manner. However, he fails to offer or refer to any evidence that offers a context that would justify the father’s insults and serious threat. This is certainly not the communication of a person who is able to make decisions jointly with the child’s other parent.

[21] The father claims that he was always willing to sign the child’s passport but neglects to mention the fact that he insisted on a quid pro quo that would give him equal holiday parenting time when he has not even had an overnight with the child since separation.

[22] I add two points made by the mother. First, he has pointedly criticized her when the child was ill, although there is no evidence of ill-treatment or negligence in the child’s care. He also blamed her when the child slipped and fell at the maternal grandparent’s home, causing a bruise. But he has never offered to care for the child when she was ill.

[23] Second, while complaining that the mother withheld the child from him 20 times, fails to offer proof of that substantial withholding. I add that it was always open to him to move for increased parenting time. The mother offered the agreed upon increased time to him without him having to move for the relief.

[24] However, he only agreed to the Florida trips and passport renewal cited above after this motion was served. The mother and child have been unable to travel together to Florida for about a year because of the father’s recalcitrance.

Applicable Law

[25] Under s. 16(1) of the Divorce Act, the sole criterion for any parenting determination is best interests.

[26] In Jackson v Jackson, 2017 ONSC 1566, Chappel J., thoroughly considered the applicable factors regarding the allocation of parental decision making, within the context of joint vs. sole custody, as it then was described. She wrote:

1. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven.
2. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children.
3. The quality of past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.
4. However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests.
5. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents' ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 ONSC 12294, [2006] O.J. No. 1514 (Ont. S.C.J.), "the cooperation needed is workable, not blissful; adequate, not perfect."
6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The court must carefully consider the parties' past and current parenting relationship and reach its own conclusions respecting the parties' ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties … and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child's interests ahead of their own when necessary, an order for joint custody may be appropriate. The question for the court to determine is "whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis".
7. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/ are unable to put the needs of the child before their own, joint custody is not an appropriate order. In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody. There must be a clear evidentiary basis for believing that joint custody would be feasible.
8. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances.
9. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. Although a child's wishes in such circumstances do not necessarily synchronize perfectly with the child's best interests, "the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes".
10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.
11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication. Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party.
12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.

[Citations omitted.]

[27] At para. 66, Chappel J. cited the decision of Pazaratz J. in Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.) at para. 504 to the effect that even in very positive circumstances, a joint decision-making arrangement may not be in a child’s best interests. She wrote:

Even if both parents are attentive and loving, a joint custody order may not coincide with the child's best interests. As Pazaratz, J. stated in, "[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully."

[28] A court considering the ability of parties to jointly make decisions for a child must consider the dynamics of their relationship. It must consider whether, in light of those dynamics, the order is more or less likely to increase the parents’ conflict. If parents sincerely wish to work together, an order such as joint decision-making will help to de-escalate the circumstances between the parents. But as Sherr J. wrote in K.H. v. T.K.R., 2013 ONCJ 418, at para. 57:

[57] However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

(see also: S.S. v S.K., 2013 ONCJ 432, at para. 43 and I.B. v. P.E., 2021 ONCJ 114 at para.98.)

[29] The father points to authorities which say that that the court should be wary of making a parenting decision that creates winners and losers in high conflict cases: Goodyear v. Burton, 2016 ONSC 4853. Further, courts should be aware that temporary orders are intended only to stabilize the parties’ circumstances until trial, where a fuller consideration of the facts upon better evidence can take place: Sellick v Bollert, 2004 ONSC 18894 (S.C.J.)

Analysis

[30] Little could be gained and much would be lost if the mother were forced to make all decisions with the consent of the father. I agree with her that it would just be an invitation for the father to further insult and attempt to control her. The circumstances between the parties could only worsen in that scenario. I say this because:

1. The mother has been the child’s primary caregiver since birth.
2. The father has had a relatively minor role in caring for the child, both when the parties were together and even more so after they separated.
3. While the father complains about the mother’s control, he took no steps to demonstrate that he is ready to be an equal parent. He offered no concrete parenting plan since separation. The current arrangements only arose from his acceptance of the mother’s plan. It was open to him to seek an order for greater parenting time but he failed to even make the attempt.
4. Speaking of control, the father has demonstrated that he is willing to attempt to control the mother through the child. He is unwilling to even accept the mother’s role with the child. During questioning he refused to concede that the mother is a good parent (although there is no reason on the material before me to deny that fact) and that she is a good mother and that she meets the child’s needs. He would only concede that she is the child’s primary caregiver because she withholds the child from him. They seem to have little parenting common ground.
5. The father has been unable to contain his negative feelings for the mother in communicating with her. Rather he seems more than willing to unburden himself of his negative feelings towards her and her family, regardless of the effect of his rhetoric on his ability to coparent with the mother.
6. He threatened to kidnap the child. If it were only a joke, that would only point to the immaturity of the father’s approach to parenting.
7. He may well be ungovernable. At the very least, he appears ready to ignore court orders when they do not suit him. From the materials before me, he has no justification for his breach of my previous order. It is hard to believe that a man willing to snub his nose at a court order, would be willing to work with a mother whom he clearly does not respect in order to coparent their child.

[31] For all of the reasons set out above, I find that it would be in the child’s best interests that the mother have final say in all decisions regarding the child, both major decisions and day-to-day decisions when the child is in her care. The father may make day-to-day decisions when the child is in his care but only so long as they do not contradict decisions made by the mother (for example but not limited to diet, heath related matters or the child’s activities).

[32] That being said, the mother will consult with the father regarding all major decisions regarding the child, but will have the right to a final say.

[33] Further, because the issue was not raised, my decision does not purport to decide upon the propriety of any s. 7 expenses.

Costs

[34] The mother seeks costs of $10,000. Her full recovery costs are $17,858.52 and her partial indemnity costs are $11,608.04. The father stated that if he was successful he would seek costs of $5,000. His bill of costs sought costs of $7,712.25.

[35] I have reviewed both bills of costs and considered the provisions of r. 24. While the father conceded the travel and passport aspects of this case after it was served, I am far from sanguine that he would have done so without this motion being brought. Further, the mother was successful on the decision-making issue. In the circumstances, I find that cost of $10,000 are fair, reasonable and proportional and so order.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz Date: September 14, 2023