Court File and Parties

COURT FILE NO.: FS-21-00022022-0000 DATE: 20231013 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAUNA MARGARET COOK Applicant – and – NICHOLAS JOHN MOSS GILLESPIE Respondent

Counsel: Poroshad Mahdi, for the Applicant Brian Ludmer, for the Respondent

HEARD: June 27, 2023

VELLA J.

Reasons for Decision

[1] This is a motion by the Respondent Father seeking a declaration that the Applicant Mother is in breach of certain paragraphs of the Endorsements of Justice Sharma dated February 4, 2022 and March 18, 2022 (collectively, the “Endorsements” or “Orders”), a compliance order, and parenting orders including changing the summer holiday schedule fixed by Justice Sharma, respectively, under r. 1(8) of the Family Law Rules.

Factual and Procedural Background

[2] The Mother and Father were married in February 2010. There is a disagreement as to the date of separation. Most importantly, they have a child together, “R”, born on October 25, 2017.

[3] On September 1, 2021, the parties appeared before Justice Faieta at a case conference.

[4] Then, on February 1, 2022, the parties appeared before Justice Sharma. Justice Sharma made several parenting orders, on a temporary basis under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) and Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Of particular note for this motion, Justice Sharma ordered a “nesting” arrangement such that the Mother and Father live separate and apart under the same roof. This was adjudged to be in the best interests of the child who was 4 years old at the time.

[5] Furthermore, Justice Sharma ordered that Wendy MacKenzie conduct a s. 30 assessment under the CLRA. That assessment is underway but was not yet completed at the time of this hearing.

[6] On April 21, 2022, Justice Sharma ordered costs payable by the Father in the sum of $10,000 (“Costs Endorsement”).

[7] On April 29, 2022, the Father brought a Form 14B Motion for an order directing that the transcript of the September 1, 2021 case conference (before Faieta J.) be released. The motion was contested and heard in writing. The Father wanted the transcript to substantiate his allegation that the Mother had agreed not to ever sleep with the child in her bed. Justice Faieta declined to order the transcript, noting that had such an order been consented to, it would have been in His Honour’s endorsement. Furthermore, of particular note for this motion, Justice Faieta wrote that “the Respondent father had the opportunity to raise the issue of proper sleeping arrangements at the parenting motion” (referring to the motion before Justice Sharma). Costs were ordered against the Father.

[8] The Father initially brought the current motion returnable June 15, 2023. However, as the date was chosen unilaterally by his lawyer while the Mother’s lawyer was out of town on vacation, the motion was adjourned to June 27, 2023. Costs of the adjournment were reserved to the judge hearing this motion.

The Parties’ Positions and Evidence

[9] The Father alleges a “long-standing pattern of non-compliance with various Court Orders” by the Mother. Specifically, he alleges that she has breached the follow paragraphs of Justice Sharma’s February 4, 2022 Endorsement:

a) para 67 a.: Each party shall vacate the matrimonial home during the times they do not have primary care of the child.

The Father alleges that the Mother does not vacate the Matrimonial Home by 9 a.m. which is the transition time from Mother to Father on certain days.

b) para 67 b.: Each party shall ensure the matrimonial home is tidy and in good order before departing. They shall exercise best efforts to maintain the home, including cleaning, doing the child’s laundry, the dishes, garbage removal, and purchasing groceries when they are using the matrimonial home.

The Father alleges that the Mother does not keep the matrimonial home is a tidy state.

[10] Furthermore, the Father alleges the Mother has breached the following provisions of the February 4, 2022 Endorsement:

(a) para. 68d: refused to alternate bringing the child to medical appointments;

(b) para. 68g: refused to follow the recommended medical treatment for the child by refuses to engage with an Occupational Therapist (Ellen Yack);

(c) para. 68f: breached the Father’s joint decision-making authority pertaining to the child’s medical decisions and his sole decision-making authority pertaining to the selection of the child’s pediatrician; and

(d) para. 68h: travelled with the child overnight causing the child to miss school and failed to inform the Father.

[11] The Father also alleges that the Mother rarely bathes the child and is not feeding him adequately.

[12] In addition, the Father alleges the Mother has breached para. 2c of the March 18, 2022 Endorsement by not exercising best efforts to ensure the child attended soccer classes.

[13] However, at the heart of this matter is the Father’s allegation that the Mother has their child sleep with her in her bed from time to time. The child is now 5 and one half years old, and the Father feels that the child should be self-comforting and not reliant on the Mother to comfort him in this manner. He seeks an order prohibiting the Mother from sleeping in the same bed as their child. He offers no expert opinion evidence to support his concern that such behaviour is not in the best interests of the child. In his factum, the Father states that the Mother “refuses to consent” to an order prohibiting the child from sleeping (ever) with either parent.

[14] The Father seeks compliance orders against the Mother under r. 1(8).

[15] By way of a substantive remedy under r. 1(8), the Father seeks to change the summer holiday schedule fixed by Justice Sharma by deferring the extended block of time for each parent during the summer beyond the regular 2-2-3 parenting schedule in place for the balance of each year, pending receipt of the s. 30 assessment.

[16] In addition, the Father seeks an order under r. 1(8) that,

“neither parent shall sleep in the same bed as the child…R. shall sleep in his own bed, in his own room. Should the child have a nightmare, require the use of the washroom, or otherwise, during the night necessitating assistance from the resident parent, that parent shall ensure that after tending to the child, R. remains in his own bedroom, alone, for the remainder of the night”.

[17] The Father also alleges that the child apparently looses weight when he is with his Mother. The Father weighs the child every day. He expressed concern that if the child is left with the Mother for a week at a time during the summer, as ordered by Justice Sharma, the child will loose too much weight. He blames the weight loss on the Mother. Again, he has offered no expert medical evidence to demonstrate either that the child’s weight fluctuation is a health concern or has not offered any objective evidence that the Mother is the cause of the intermittent weight loss.

[18] The Father seeks to defer the summer holiday schedule set out by Justice Sharma. That summer schedule took effect in July 2023. The motion was initially brought on an arbitrary date by the Father on the basis that he believed the motion to be urgent. Justice Diamond did not agree and adjourned the motion to June 27, 2023. This was not scheduled as an urgent motion. Unfortunately, the court was unable to release a ruling from the bench. However, since Justice Sharma’s summer holiday schedule is intended to continue until amended by court order or mutual agreement of the parties, this issue is not moot.

[19] The Father submits that the child has ‘suffered greatly” under the Mother’s care He makes several bald allegations such as the child suffering “dramatic weight loss” over the two and three day period that is her parenting time, reporting that the child has told him that the Mother “engages in inappropriate touching”, and that the Mother does not attend to the child’s daily hygiene.

[20] However, the Father stops short of alleging any child protection concerns, and has not contacted the children’s aid society as his concerns, he admits, does not reach that threshold.

[21] The Mother denies the Father’s allegations.

[22] She states that the Father has been on an “unrelenting” campaign against her with the aim of reducing her time with the child. She points to the fact that the Father initiated a complaint with the C.A.S. which was dismissed, and now has launched a complaint against the C.A.S. with the Canadian Family Services Review Board which is ongoing. He also laid private criminal charges against her in July 2022 which were withdrawn by the Crown in early 2023. He also has made repeated complaints to the police against her, but no charges have been laid.

[23] She further notes that much of the Father’s allegations were made before Justice Sharma, and His Honour nonetheless made a 2-2-3 parenting schedule in the endorsement dated February 4, 2023.

[24] The Mother denies that she sleeps regularly with the child. In her affidavit, she admits sometimes having fallen asleep in the child’s bed after story time, and that sometimes the child comes to her bed in the middle of the night.

[25] The Mother deposed that in fact the Father found the pediatrician for the child. This was because Justice Sharma found that the child ought not continue going to the Mother’s family doctor after that doctor swore an affidavit in support of the Mother on the motion. However, the new pediatrician went on maternity leave for 6 months and her locum filled in. Thereafter, she believes due to the good relationship she had with the locum and pediatrician, the Father arbitrarily found a new pediatrician without her consent, contrary to the Sharma J. Order.

[26] She points out that Ms. MacKenzie denied recommending that the child be assessed by an occupational therapist.

[27] The Mother also deposed that the Father continues to re-new the enrolment for the child to attend at extracurricular activities without the Mother’s consent, again contrary to Sharma J.’s Order.

[28] She denies leaving the house dirty. She explains that on the day that the Father took photographs of the house in a disheveled state, her mother was in a serious health crisis and she had to spend time with her mother at the hospital. Her mother went into Critical Care on June 5, 2023 and passed away on June 11, 2023.

[29] She notes that the Father has gone into her bedroom to take photographs contrary to the nesting arrangement ordered by Justice Sharma.

[30] She denies starving the child, leaving him in a dirty state or that he is dysregulated under her care and points to the child’s kindergarten report card which shows he is doing well at school.

[31] She notes that the child has missed a lot of days due to illness. She admits not taking the child to all of the activities booked by the Father, because the child is overbooked: dance class, piano lessons, swimming class, and soccer class each week. The Father enrolled the child in all of these activities without the Mother’s consent (save the soccer lessons), contrary to Justice Sharma’s order.

[32] The Mother voluntarily produced her long term disability file to the Father in order to facilitate settlement discussion since spousal support and child support are not yet resolved. The Father is now trying to rely on these records to establish that she is not competent to look after the child due to mental health concerns. This issue was before Justice Sharma.

[33] The Mother states that she is taking her medication as prescribed by her doctor for the depression and anxiety she experiences.

[34] The Mother deposed that only on one occasion, when the child was sick, she went upstairs to say goodbye to the child at 9:00 a.m., after the Father entered the house. He followed her with his phone to video record her, in front of the child, saying she was “breaching” the court Order.

[35] She raises concerns with the Father weighing the child on a daily basis as she fears this may give rise to body image issues for him.

[36] As stated, there is an ongoing s. 30 assessment under the CLRA being conducted by Wendy MacKenzie ordered by Sharma J. on consent. It is anticipated that it will be completed shortly.

[37] The Mother submits that this motion is premature since the s. 30 assessment will be an essential piece of information in determining what is in the best interests of the child in terms of parenting arrangements.

Analysis and The Law

[38] The Father is essentially arguing that Sharma J.’s order establishing a summer holiday schedule be varied under r.1(8). He justifies this request based on the alleged non-compliance with provisions of Justice Sharma’s two endorsements. He focused his analysis on the best interests of the child analysis under s. 16 of the Divorce Act.

[39] Justice Sharma made an interim parenting order on the basis of a 2-2-3 parenting schedule during the school year and part of the summer months. However, Sharma J. ordered a summer holiday schedule such that each parent will have 1 two week period each and 2 one week periods each (para 63f of Endorsement dated February 4 2022). For the non holiday weeks during the summer, the regular 2-2-3 parenting schedule applies.

[40] The Father ties the Mother’s alleged non-compliance with the various provisions of Justice Sharma’s two endorsements to a remedy that effectively varies the summer holiday schedule, and as justifying an order prohibiting the child from sleeping in either parents’ bed under any circumstances and how the parents’ should react if the child awakes during the night.

[41] Rule 1(8) provides that the court may impose whatever remedy “it considers necessary for a just determination of the matter”. The Rule then lists a number of procedural remedies, which are not exhaustive. The Court of Appeal in Bouchard v. Sgovio, [2021] O.J. No. 5216, 2021 ONCA 709 (Ont. C.A.) confirmed that once the court is satisfied that a party is in non-compliance with a court order, the court can fashion a substantive remedy providing it is tied to the breached order such that the remedy will encourage compliance with the breached order. The scope of the court’s discretion to fashion a responsive substantive remedy is particularly appropriate where at issue is the wellbeing of children.

[42] The caselaw relied upon by the Father in justifying his proposed substantive relief is not apt here. In those cases, the alleged non-compliance with court orders was egregious and resulted in conduct by the offending parent that was not in the best interests of the child.

[43] Here, the Father has not demonstrated in the evidentiary record that any alleged non-compliance with court orders by the Mother has impacted the best interests of their child negatively, or were beyond a minor nature.

[44] Furthermore, the Father’s proposed variation of Justice Sharma’s summer holiday schedule is advanced on the basis of alleged non-compliance with orders that do not directly implicate the summer holiday schedule. The only order that has any connection with the proposed variation of the summer holiday schedule is the allegation that the Mother has not always vacated the Matrimonial Home promptly upon transitioning parenting to the Father.

[45] The variation sought with respect to the summer parenting schedule is not premised on a change of circumstances. It is premised on alleged breach of court orders by the Mother.

[46] Under s.29(1) of the CLRA, there must be “a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the [parenting or contact] order”.

[47] Implicit in the Father’s argument was that the alleged non-compliance with various provisions of Justice Sharma’s respective endorsements constitutes a prima facie material change in circumstances. However, the Father does not have any authority for such a proposition.

[48] In my view, absent establishing a causal connection between the alleged non-compliance, an adverse impact to the child’s best interests, and the substantive relief, a party cannot do what is in effect an end-run around the material change in circumstances requirement for the variation of an interim parenting order by bringing a motion under r. 1(8).

[49] The court will be reluctant to vary an interim parenting order absent special circumstances (J.S.G. v. E.M.G., 2016 ONSC 2233, at paras. 71, 79). This is a threshold that the Father has the burden to prove.

[50] The Father has not proven that there has been a material change in circumstances, then he fails at this stage, and the court does not proceed to the best interests of the child analysis.

[51] When Justice Sharma issued the special summer holiday schedule, His Honour also directed the s. 30 assessment which may then form the basis for a motion to change depending on the results of that assessment.

[52] The Father has not proven that there has been a material change in circumstances which, had they existed prior to the issuance of the order in question, might have changed that order.

[53] In any event, the Father has not proven material non-compliance by the Mother with the subject provisions of Justice Sharma’s two Endorsements. Therefore, he is not entitled to a remedy under r. 1(8).

[54] Furthermore, I am not satisfied that it is in the best interests of the child that (a) the summer holiday schedule ordered by Justice Sharma be varied or (b) an order be granted prohibiting the child from ever sleeping in either parent’s bed, much less prescribing how a parent is to deal with a child who awakes during the night in a distressed state. In relation to the latter requested relief, the Father did not advance any expert evidence to assist the court in this respect. In any event, common sense dictates that a parent is entitled to exercise discretion in how he or she or they will comfort their child when in a distressed state, so long as that method is not harmful to the child. In the event I had found the Mother to be in material non-compliance with the subject Orders, there is no connection between the substantive relief of prohibiting the child from sleeping in the parent’s bed in the circumstances that the child awakes in a distressed stated and needs comforting, and the alleged non-compliance.

[55] Accordingly, the motion to vary the summer holiday schedule set out in the Sharma J. Order pending the s. 30 assessment and for an order prohibiting the child from ever sleeping in a parent’s bed, under r. 1(8), is dismissed.

[56] As for the breaches that are alleged, I find that the Mother is not in material breach of Justice Sharma’s Orders. At best there have been isolated incidents of minor noncompliance. The Father is also not in perfect compliance with the Orders. To echo Justice Sharma’s words from the Costs Endorsement, at para. 12, “[p]arties need to be reasonable, patient and cooperative in working out the details of the nesting order until there is a final resolution of this case…”.

[57] Accordingly, I decline to issue any compliance orders against the Mother.

[58] Furthermore, and in any event, there is an ongoing s. 30 assessment which will likely shed light on the parenting abilities of both parents.

[59] The motion is dismissed without prejudice to the Father (or Mother, for that matter) to bring a motion for change, should the circumstances warrant, after receipt of the s. 30 assessment by Ms. MacKenzie.

Costs

[60] If the parties cannot agree on costs, the Applicant shall deliver her cost outline and cost submissions within 10 days from the release of this decision. The Respondent shall deliver his cost outline and cost submissions within 10 days thereafter. The written submissions shall not exceed 3 pages double spaced each, and will be delivered in care of my judicial assistant.

Justice S. Vella

Released: October 13, 2023