Court File and Parties

COURT FILE NO.: FS- 17-00420482-0000 DATE: 20240423 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BO KWON SEO, Applicant AND: SIWOO KIM, Respondent

BEFORE: Des Rosiers J.

COUNSEL: Howard Zweig, for the Applicant Justin J. Lee, for the Respondent

HEARD: April 2, 2024

Endorsement

[1] At the heart of this case is the child of the parties, T. born 2014. The Father brings this motion to increase his parenting time with T. The Mother disagrees.

[2] Pursuant to Consent Orders, the Father has parenting time for one hour every Saturday morning with the transition being handled by Access for Parents and Children in Ontario (APCO). The Father wants to increase his parenting time to 10:00 a.m. to 5:00 p.m. every Saturday, with overnight stays (Saturday 10:00 a.m. to Sunday noon) after three visits.

[3] The Mother opposes this increase in parenting time and is seeking an investigation by the Office of the Children’s Lawyer.

[4] There are three issues:

• Do I have jurisdiction to change the Consent Orders which provide for 1 hour a week of parenting time?
• If I have jurisdiction, is it in the best interests of the child to do so?
• Should the Office of the Children’s Lawyer be asked to do an investigation?

[5] For reasons detailed below, I order that a request for an investigation by the Office of the Children’s Lawyer be issued. I also order increased parenting time for the Father, without overnight visits for three months with special provisions for parenting courses and for transition to be put in place.

Introduction

[6] The circumstances of this case are unusual. The parties were married in January 2014 and separated on November 5, 2015, following serious incidents of family violence for which the Father was convicted.

[7] The Father had supervised parenting time with the child from April 2017 until July 2019, when the child was between 2 and 4. He stopped exercising that parenting time.

[8] There has been limited contact between child and father between 2019 and February 11, 2023. Mother submits that the Father has had no contact with the child for almost 5 years.

[9] The court proceedings began in March 2016. Between 2017 and 2022, they were in abeyance. An order combined the Family Law proceedings and the Divorce action in July 2022. Relevant to the present motion are three consent orders:

• On November 2, 2022, Justice Steele issued an order giving the Applicant\Father temporary supervised parenting time of one hour per week, with the proviso that “Either party may request a review of any aspect of this parenting time order at anytime.” (para. 11 of the Order).
• On June 5, 2023, the Mother agreed to remove the supervision from the parenting time with only exchanges being supervised by APCO. This was included in an order of Justice Kristjanson on August 7, 2023.
• The order was finally implemented in October 2023, pursuant to a further order of Justice Kristjanson dated October 14, 2023, changing the pick-up times, which was required by APCO.

[10] A Voice of the Child Report was completed in September 2023. The parties disagree as to the weight to be given to this Report.

Jurisdiction to Vary the Consent Orders

[11] The parties disagree as to the interpretation of the interim orders issued. The Father argues that Justice Steele’s order is explicitly reviewable, and that both orders from Justice Kristjanson are also “Temporary Without Prejudice Orders” that should be read within a framework of needed flexibility and adaptation to the circumstances of the child.

[12] The Mother’s position is that the Court ought not review nor change interim parenting Orders, unless there is a material change in circumstances.

[13] All three orders were “on Consent Temporary Without Prejudice” Orders. The terms were the result of negotiations designed to permit the reacquaintance of the child with his father.

[14] Section 29 of the Children’s Law Reform Act (“CLRA”) provides:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[15] In Ceho v. Ceho, 2015 ONSC 5285, there had not been an adjudication as to what parenting time would be in the child’s best interests (similar to the present case), and the parties had agreed that the order would be a temporary “without prejudice” basis (similar to the present case). In Ceho, Justice Price said: “Requiring a party to establish a material change of circumstances would be contrary to that agreement.” Ceho v. Ceho, 2015 ONSC 5285, para. 68.

[16] When parties agree on a course of action on a “without prejudice basis”, they mean that a legal status quo ought not to be inferred from this agreement.

[17] The purpose of section 29 of the CLRA is to provide stability for children in terms of residence, school, or friends. It is not meant to prevent parties from agreeing to temporary arrangements while adjudication takes place. At times, a factual status quo may develop when the “temporary” arrangements are carefully designed to last a long time. This is not the case since the unsupervised one hour a week parenting time began last October and the changes requested do not involve significant aspects of the child’s life such as school or residence.

[18] In my view, the case is distinguishable from the case of Lusted v. Bogobowicz, 2021 ONSC 269, relied upon by the Mother. In Lusted, the parties had negotiated a detailed parenting schedule with alternate weekends, weeknight visits, and holiday schedule. The father’s complaints in Lusted were about the implementation of the Consent Order. In the present case, the Consent Orders are not detailed and provide minimal contact understood in the context of a progressive reacquaintance.

[19] The orders ought to be read as including an element of flexibility in light of the very limited parenting time that was agreed between the parties. I conclude that it is appropriate to examine whether additional parenting time is in the best interests of T.

Is Increased parenting time in the best interests of T.?

[20] Children have the right to a meaningful relationship with both of their parents. It is the right of the child, and it is the responsibility of parents to facilitate and support that relationship.

[21] The Divorce Act provides that “children should have as much time with each spouse as is consistent with the best interests of the child” (section 16(6) of the Divorce Act).

[22] One hour a week of parenting time does not provide much opportunity for a child to develop a meaningful relationship with a parent. It was instituted to permit T. to get to know a father who was a stranger to him.

[23] A review of the APCO notes that documented the supervised parenting time between T. and his father shows increasing levels of comfort between father and son, and some good moments between them. T. seems to be engaged in playing with his father who interacts with him.

[24] It is concerning that since unsupervised time has begun, T. has refused visits with his father a few times. The Voice of the Child Report also indicates some strained communication issues, where T. feels misunderstood, and that his father does not respect his preferences. According to that Report, T. wants to see his father sparingly, and is not interested in getting to know him.

[25] The Divorce Act lists factors to be considered in assessing the best interests of the child. Of relevance here are the age and stage of development of the child (s. 16(3)(a)), the strength of his relationship with each spouse and grandparents (s. 16 (3)(b)), the history of his care (s. 16 (3) (d)), the expressed preferences of the child in light of his age and maturity (s. 16 (3) (e)), the ability of the father to care for and meet the needs of the child (s. 16 (3) (h)), and the presence of family violence (s. 16(3)(j)).

[26] The child is 9 years old. He has lived with his mother his entire life. Father agrees that this should continue.

[27] Father points to an evolution of the relationship between Father and Child where T. is slowly adapting to a new person in his life. Father would like to introduce T. to his own extended family.

[28] The Mother is concerned that the Child is frightened by his father and does not want to spend time with him. She points to T.’s refusal to visit his father at least twice in the last few months.

[29] The Mother relies on Voice of the Child Report which concludes that the child would prefer to see his father very sparingly.

[30] I find that it is in the best interests of the child to get to know his Father better. It is the duty of the primary caregiver, the Mother, to foster T.’s relationship with the Father. A child has the right to develop a meaningful relationship with both of his parents. One hour of parenting time a week is insufficient to achieve this. T. is of an age where he may not appreciate the importance of having a meaningful relationship with his father.

[31] The serious incidents of family violence took place 8 years ago. The long-term effects of such violence between Mother and Father must be considered by the Court. The parties ought not be in the presence of one another and the issue of appropriate transition between the parents must be addressed.

[32] There is no indication that the child is at risk of violence from the Father.

[33] The Voice of the Child Report is instructive in identifying the issues that strain the father-child relationship, that is, the necessity of the Father to be more child-focused in his interactions with T. Because the Father was absent from T.’s life for almost 5 years, there is much time to be made up for a trusting relationship to develop.

[34] T. may resent the presence of other adults or extended family. It might be that Father has to prioritize T. before introducing him to other strangers.

[35] The Voice of the Child cannot be determinative of the issue as it is clear from the Report that T. was under the impression that he was being asked whether he wanted to live with his Father, and that was what his Father wanted.

[36] I am satisfied that the level of parenting time that has been set through agreement between the parties is not in the best interests of the child and prevents him from developing the relationship with his father that he is entitled to have at this stage of his life and for upcoming years.

[37] Time is of the essence here as every month that goes by without more time spent with the father may harden T.’s rejection of his father and undermine the possibility of building the father-son relationship.

The Necessity of a Report from the Office of Children’s Lawyer

[38] Because of the opposing views of the parties with regard to the relationship between the child and the Father, an investigation from the OCL would be helpful to the Court. It is unclear why the child has recently resisted visits with his father, even though he appeared to have enjoyed them earlier. It would also be appropriate for the court to have information about the options for parenting time that are reasonable taking into account the estrangement between father and son in the early years of the child’s development as well as the parenting or co-parenting skills of the parties. Additional questions that ought to be addressed are the ways in which the Father could improve his parenting skills and engage in child-responsive parenting to build trust with the child.

[39] In Flood v. Flood, 2018 ONCJ 822, the Court detailed when a OCL report was needed. This is a case that meets the requirements listed by the Court. The report will be useful to the court to determine the best interests of the child in this unusual situation.

[40] In conclusion, Order will issue with the following terms:

a. A request for an investigation of the Children’s Lawyer will issue; b. Father to have parenting time with the child T. every Saturday from 10:00 a.m. to 5:00 p.m. Father shall engage in activities that are responsive to the child’s interests. c. Father shall take a parenting course within three months form this Order. d. In three months from this Order, Father to have parenting time from Saturday 10:00 a.m. to Sunday noon on alternating weekends. e. Through counsel, the Father shall provide a plan for the transition of the child between the parties. If parties cannot come to an agreement, they may return before me on April 29, 2024, at 9 a.m., or May 6, 2024, at 9 a.m., via Zoom. f. This Order may be revisited at any time.

[41] If parties cannot agree on costs, I may be spoken to on April 29, 2024, or May 6, 2024, at 9 a.m., via Zoom.

Des Rosiers J. Date: April 23, 2024