Court File and Parties

COURT FILE NO.: FS-23-36716 DATE: 20231003 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JEFFREY B. WENTER Applicant – and – MICHELLE KHAIT Respondent

Counsel: Toni Wharton, for the Applicant Shannon Beddoe, for the Respondent

HEARD: August 29, 2023

VELLA J.

Reasons for Decision

[1] This is a parenting motion. The parties have been physically separated for a little over one month. The Matrimonial Home was sold, and the closing was on August 25, 2023.

[2] The parties began cohabiting since around August 2019 and were married on October 4, 2020.

[3] The parties have a son who is approximately 29 months old, born April 14, 2021.

[4] The Father seeks a parenting schedule which is a 2-2-3 schedule on an interim without prejudice basis or alternatively an equal parenting schedule on the same basis effective September 4, 2023. The Mother proposes a graduated schedule from August 29, 2023 to November 16, 2023 with the Father’s overnight parenting time increasing from zero nights to one night to two nights (per week), and then increasing to 5 of 14 nights commencing the week of November 17, 2023 (through to December 18, 2023), as more specifically detailed in her draft Order.

[5] Both parties work full time. The maternal grandparents, on consent of both parties, look after the child during their respective work days (five days a week).

[6] The Father deposes that he has played an equal caregiving role in the child’s life since birth. He details his involvement with the child in some detail in his affidavit. He points out that the parties attended at a mediation and the mediator (Mr. Hurwitz) observed that during the course of separation, while living in the same house, the parents had adopted an informal “loose” parenting schedule based on the 2-2-1-1-1 division of days and nights. The Father had overnight responsibilities as part of this informal schedule. However, the Mother points out that this mediation broke down and deposes that there are problems with the report offered by both parties. She deposed that Mr. Hurwitz’ observation of a “loose” 2-2-1-1-1 parenting schedule did not entirely reflect reality while they lived separate and apart but under the same roof. [1] She deposed that the Father was not always present during his parenting time and that she “continued to do the lion’s share of the parenting”. Nonetheless, she does not specifically challenge that the Father was present at his overnight parenting time with the child.

[7] The Mother deposed that she has been the primary caregiver for the child. During her 16 month maternity leave she was the primary caregiver for the child while the Father continued to work. She deposed that her bond with the child is stronger than the Father’s and hence a graduated schedule makes sense. She also deposed that the child “often experiences separation anxiety” when not with her.

[8] The Mother submits that this motion was brought prematurely by the Father and that there is insufficient evidence to make anything beyond a temporary schedule which would be in the best interests of the child.

[9] The Father responds that the child is at an informative stage of life in which bonds with the parents are being formed. In his view it is in the best interests of the child that he be provided with immediate substantial and ultimately equal overnight responsibilities as reflected in his proposed parenting schedule.

Analysis

[10] When determining a parenting schedule, the only consideration is the best interests of the child (s. 16(1), Divorce Act, RSC, 1985 c.3 (2nd Supp)). The court will give primary consideration to the child’s physical, emotional and psychological safety, security and well-being (s.16(2), Divorce Act). Section 16(3) of the Act sets out factors that inform the best interests of the child analysis.

[11] The status quo is not the default position in determining what is in the best interests of the child. Such an approach has the potential effect of enforcing the tender years doctrine which is a doctrine that has been long since rejected (Young v Young, [1993] 4 SCR 3; see also Pereira v. Ramos, 2021 ONSC 1737 at paras 35, 38, 39 and 58).

[12] By the same token, as stated by the Supreme Court of Canada in Barandregt v. Grebliunas, 2022 SCC 22 at para 135, there is “no presumption in favour of shared parenting arrangements, equal parenting time, or regular access” as the sole focus of the court is the best interests of the child in the specific factual context before it.

[13] The courts will take into consideration the guidelines set out in the AFCC Parenting Plan Guide (December 2021) (the “Guidelines”) for toddlers (Sribalan v. Dickson, 2023 ONSC 1254, at paras 2-5, 16, 18-19, 23, 25-29).

[14] This matter is at a very early stage in the litigation.

[15] Both parties work full time. The parties agree that the child will be cared for by the maternal grandparents during their respective workdays which are Monday to Friday. There is no suggestion that the Father is unable to properly care for the child overnight or that he has not done so, albeit under the same roof as the Mother.

[16] The Mother has moved into her parents’ house while the Father has rented a two bedroom apartment within a five minute drive from the maternal grandparents’ house.

[17] Both parties represented that they are prepared to resume mediation, with a different mediator, to try to reach a long-term parenting plan.

[18] The major difference between the two parenting plans is that the Father seeks an immediate transition into a repetitive 2-2-3 two-week schedule on an equal basis, and the Mother proposes a graduated schedule of overnights.

[19] The factors that particularly resonate as informing the best interests of this child are his young age and stage of development, stability, each parent’s willingness to support the development and maintenance of the child’s relationship with the other spouse, the parents’ ability to effectively communicate with each other, the history of care of the child, together with the plan of care presented by each of the parties.

[20] Both parties rely on the Guidelines. The Guidelines state in relation to toddlers aged 18 – 36 months, at pages 18 and 19 (in part), that:

Toddlers need predictable and consistent routines and clear structures that help them develop a sense of limits to help them feel safe and secure. While they need to be closely supervised and have little sense of damage, they should have opportunities for exploration.

If parents have fully shared in the caretaking arrangements before the child has reached this age and the child has an easy temperament, parenting time can be shared equally as long as the separations from each parent are not too long (no more than two to three days or two nights for example)…..

If the child has some trouble with transitions, or is not particularly adaptable or flexible, or if the parents are unable to effectively communicate with each other about the child, it may be better for a child this age to have a primary residence with one parent and frequent contact, including some overnight parenting time, with the other parent (for example three contacts during the week, made up of one or two 4 to 6 hour blocks and one or two non-consecutive overnights).”

[21] Further, at page 13 of the Guidelines,

The fact that one parent may have provided more care before separation and a child may be more closely attached to that parent may well have initial significance in making an initial post-separation parenting plan. However, it is important to recognize that regardless of prior parenting arrangements, and in the absence of concerns about risks to the safety or wellbeing of a child, after separation both parents are expected to have significant roles in the lives of their children after separation.

[22] The proposal set out by the Father is recommended (with certain caveats) in the schedule for pre-schoolers (aged 3 to 5). The graduated proposal by the Mother is more in keeping with the recommendations in the Guidelines set out for toddlers.

[23] Each party has advanced case law that supports their respective positions. The cases relied upon demonstrate that each case must be decided on the specific facts before the court.

[24] I am satisfied that the Father has had significant parenting involvement with the child over the time that they lived under the same roof in this young child’s life. However, overall the Mother has had more parenting time and involvement with the child to date, particularly during her maternity leave when she was home with the child for 16 of his first 18 months. [2] I am also satisfied that a large part of the child’s stability will be maintained irrespective of the parenting schedule as both parties agree that the child will continue to be looked after by the maternal grandparents during the weekdays and has been residing there with the Mother since the Matrimonial Home was sold.

[25] I am also aware that the evidentiary record at this stage is somewhat thin, and the parties are willing to go back to mediation to develop a more long-term parenting plan.

[26] The evidentiary record largely consists of bald assertions by the respective parties without much in the way of confirmatory evidence.

[27] In my view, it is in the best interests of this child to order a graduated interim and temporary parenting schedule as follows:

(a) From Thursday October 4, 2023 to Friday October 26, 2023, the Father will have the child as follows: (i) Every Tuesday from 4:00 p.m. to Wednesday morning at drop off at the home of Galina and Victor Khait at 9:00 a.m. (ii) Every Thursday from 4:00 to 8:00 p.m. (iii) Every Sunday from 10:00 a.m. to Monday at 9:00 a.m. morning at drop off at the home of Galina and Victor Khait at 9:00 a.m.

(b) From Friday October 27, 2023 to December 31, 2023, the Father will have the child as follows: (i) Every Tuesday from 4:00 p.m. to Thursday morning drop off at the home of Galina and Victor Khait (with Wednesday daycare at the home of Galina and Victor Khait from 9:00 a.m. to 4:00 p.m.); (ii) Every Sunday from 10:00 a.m. to Monday morning drop off at the home of Galina and Victor Khait at 9:00 a.m.

(c) The parties have not provided a holiday schedule, statutory holidays or special days and are encouraged to develop a schedule that is mutually agreeable and in the best interests of this child;

(d) If either parent is unable to care for the child during their respective parenting time, they shall notify the other to give that parent the opportunity to do so.

[28] This schedule is without prejudice to the attendance at a case conference which is scheduled to occur on December 18, 2023.

[29] This parenting arrangement provides for a transition period from two separate overnights per week, to 3 overnights a week (including two consecutive overnights) for the Father. By the case conference, the parties will have the benefit of observing the child’s transition into and increasing overnight schedule with the Father and will be approaching the pre-school age. However, each weekday, the child will be cared for by his maternal grandparents in their (and the Mother’s) home with his other bedroom and items of comfort at hand. In my view this is in the best interests of the child and is also consistent with the Guidelines and the maximum time principle balanced with the child’s existing status quo.

[30] I am not persuaded by the current evidentiary record that the child’s safety and wellbeing will be compromised by this schedule. There is no real suggestion that the Father is unable to properly care for the child during overnight stays. This schedule will promote optimal parenting time as between the parents. I am also not persuaded on the current evidentiary record that the child trouble with transitions, or is not particularly adaptable or flexible, to quote the Guidelines. However, as stated, the evidentiary record is thin.

[31] I am concerned, however, that the Father resorted to litigation within 3 days of physical separation from the child to bring this motion rather than have tried further to resolve the parenting schedule through mediation, though there is some explanation in the record. The evidentiary record is not sufficient to determine whether ultimately the parties will be able to work in harmony in setting the right parenting schedule and plan of care for this child.

[32] As stated, the child’s stability over this transitional period will be enhanced by being cared for by his maternal grandparents five days a week.

[33] This interim schedule should present the parties with a sufficient opportunity to work out a longer-term parenting schedule, to raise any difficulties that this schedule may present as it unfolds and also provide further information about the child’s ability to transition away from Mother’s care and into Father’s overnight care. It will at the same time promote healthy bonding between the child and the Father without sacrificing stability.

[34] This interim schedule also generally reflects the principles set out in the Guidelines for toddlers which, while not determinative, are apt in providing helpful information that can inform the best interests of this child in terms of understanding the child’s developmental stages (Shokoufimogiman v. Bozorgi, 2022 ONSC 5057, at para. 55).

[35] This temporary and interim order is intended to provide an immediate parenting basis acknowledging that this is at a very early stage of litigation, and the evidence is untested. The aim is to provide a temporary parenting solution which is in the best interests of the child on a short term basis (Nicholson v. Nicholson, 2021 ONSC 7045, at para. 36; Shokoufimogiman, at para. 32).

If the parties cannot agree with respect to costs, then the parties will exchange cost outlines and deliver same to me within 5 days from the release of this decision, together with a two page submission outlining their respective positions as to who, if either party, should receive costs, the amount and scale, and why.

Justice S. Vella Released: October 3, 2023

Additional Information

COURT FILE NO.: FS-23-36716 DATE: 20231003 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JEFFREY B. WENTER Applicant – and – MICHELLE KHAIT Respondent

REASONS FOR JUDGMENT Vella J. Released: October 03, 2023

[1] Both parties relied to a varying degree on the Report of Mr. Hurwitz appended as an exhibit to the Father’s affidavit, though the Father more than the Mother. This report has not been properly tendered into evidence and therefore I am placing no weight on it. Furthermore, the Mother appended as exhibits a text message exchange with, and a memorandum from, Mr. Hurwitz (and various others). I attach little weight to the text exchange, and none with respect to views expressed by Mr. Hurwitz in the memorandum. Because of the fact this motion was scheduled with very little notice, it was not possible to conduct cross examinations, or obtain evidence directly from Mr. Hurwitz (arguments concerning the asserted without prejudice nature of that mediation aside).

[2] The Father deposed that he was able to work from home during COVID, overlapping with the maternity leave, and has a flexible work schedule and so was able to help care for the child during this time period.