COURT FILE NO.: FS-24-00040810
DATE: 20240619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pablo Merino Garduno
Applicant
– and –
Maria Isabel Golec
Respondent
Meaghan O’Connor, for the Applicant
Patrice A.J. Cote, for the Respondent
HEARD: June 18, 2024
Papageorgiou
Overview
[1] The Applicant Father brings a motion for a revised interim parenting schedule to increase his parenting time for two 20-month twin boys (the “Twins”). Pursuant to a consent order, he has parenting time which includes overnights from Saturday at 10:00 am until Sunday at 5 pm for three weekends, and overnights from Saturday at 4:00 pm until Sunday at 5 pm, as well as weeknight parenting at the Mothers. He seeks to increase this so that he will have overnights from Saturday until Tuesday.
[2] The Mother takes the position that the Father has not met the onus of showing grounds to change an interim parenting order. She says that the changes requested are not in the Twins’ best interests. In the alternative, she is agreeable to him having increased parenting time from Friday at 5:00 pm until Sunday at 6:00 pm for three weekends and that on the fourth he would have parenting time Friday evenings at her home as he now does until 9:00 pm.
Decision
[3] For the reasons that follow I order that the Father shall have increased parenting time in accordance with the Mother’s alternative position and that the schedule for the fourth weekend remain the same with the Father having parenting time from Saturday at 5:00 pm until Sunday at 5:00 pm.
Analysis
The Law
[4] The best interests of the child are paramount. Section 16(1) of the Divorce Act makes explicit that any parenting order or contact order must be determined based only on an analysis of the child’s best interests.
[5] The Divorce Act also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: s. 16(6). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict: Pereira v Ramos, 2021 ONSC 1737 at para. 26.
[6] Above all else, the primary consideration that the court must consider is a child’s “physical, emotional, and psychological safety, security and well-being”: Pereira, at para. 13; CLRA, s. 24(2); see also Divorce Act, ss. 16, 7.1, and 22.1.
[7] Other relevant considerations are also contained in section 16 of the Divorce Act.
[8] The best interests analysis is holistic, taking into account a child’s well-being in a broad sense, including their “basic material, physical, educational, and emotional needs, as well as needs for affection and safety,” S.S. v. R.S., 2021 ONSC 2137, citing the UN Committee on the Rights of the Child. The court is to engage in a rigorous assessment of the specific child’s circumstances: S.S. v. R.S., at para. 37.
[9] Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Gordon v Goertz (1996), 1996 CanLII 191 (SCC).
The Circumstances
[10] The Twins were born on September 30, 2022. They were premature and remained in hospital for one month. The parties separated on or about February 15, 2023 when the Father moved out of the home they were living at in Etobicoke with the Mother’s father.
[11] The Father, who does not own a vehicle, chose not to relocate near the home in Etobicoke. Instead, he chose to live in North York closer to his work. He does not have a car, and this meant that he would have to take the bus to see the Twins. He admits that this has caused problems with his parenting time. He also admits that the Mother has been the primary caregiver since birth.
[12] On their first birthday, one of the Twins, Jose, was rushed to hospital where he was diagnosed with Meningoencephalitis due to Herpes and autoimmune encephalitis due to anti-NMDA antibodies, an infection of the brain and brain covering. He remained hospitalized and in treatment from September 30, 2023 to February 15, 2024 when he was released to the Mother’s care.
[13] The Father attended at TBST on February 20, 2024, five days after Jose’s release from hospital to obtain urgent dates for increased parenting time. Nakonechny did not schedule a motion and sent the matter to a case conference.
[14] At the case conference on March 4, 2024 before Schabas J., there was a consent order that provided the Father with increased parenting time and overnights from Saturday afternoon until Sunday evenings on three weekends. In particular it provided as follows:
• On Wednesdays, the parties are to attend Jose’s physiotherapy sessions together at Holland Bloorview, and bring the Twins back to the Mother’s home together for the Father to have parenting time until they go to bed.
• On Fridays, the Father has parenting time at the Mother’s home once he is done work until Twins’ bedtime.
• Commencing March 23, 2024, he has parenting time every weekend from Saturday at 10:00am until Sunday at 5:00pm, save for every fourth Saturday when the Father picks them up at 4:00pm on Saturday so that the Mother can have that day with them.
[15] Schabas J. stated:
There are concerns about the children re-establishing a pattern and routine following Jose’s lengthy stay in hospital, but it is also recognized that the Applicant must begin to have parenting time on his own. The situation requires cooperation and patience and respect from both parties. [Emphasis added]
The Father’s Current Request
[16] The Father seeks to further step up his parenting time so that he will also have overnights ultimately from Saturday at 10:00 am until Tuesday at 8:00 am for three weekends, and then from Saturday at 4:00 pm until Tuesday at 8:00 am for the fourth weekend.
[17] Schabas J. had given him leave to bring this motion.
[18] He also seeks an order that transportation to and from the residences will be shared equally such that the party whose parenting time it shall be responsible for picking the Twins up from the other parent. Based upon the current schedule that he proposes, this means that the Twins would stay overnight with him and then be picked up by the Mother at 8:00 am in North York. She will have to pick them up. On this issue, it is difficult to be sympathetic with the Father since he was the one who moved and created this issue, knowing he does not drive and that the Twins will have to be transported on public transportation. Notably, his counsel says this was so he could be closer to his work. So, he was prioritizing that over having a residence that facilitated his parenting time. He also did not seek leave to bring this particular aspect of the motion.
[19] He also wants an order dispensing with the Mother’s consent to enroll the Twins in daycare close to his home. He also did not obtain leave to bring this motion.
[20] He also sought orders that the Mother not be permitted to move out of Toronto in circumstances where there is no issue that she has ever raised her intention to do so. Her counsel advised that of course they will abide by the law and provide the required notice if she ever intended to move. I am satisfied with this.
[21] He also sought orders that he be permitted to participate in Jose’s physiotherapy when this is already covered by the current plan. It is not clear why he needs a court order to permit him to attend future medical appointments when there is no evidence the Mother has ever prevented this. He is the father; he can attend.
[22] He also requested an order that neither party be permitted to schedule activities if it falls on the other parent’s time, but there is no evidence that this has ever been an issue.
[23] Overall, the Father’s approach is escalating conflict over things that are not even an issue.
The Importance of the Children Having Sufficient Time with their Father.
[24] It is important for the children to have overnights with the Father. A child’s best interest is to have a strong and meaningful relationship with both parents. A child should be given the opportunity to know the non-custodial parent and be part of that parent’s life: Duthie v. Junker, 2011 ONCJ 298 at para 56-57; Holomey v. Hills, 2020 ONSC 6299, at paras 8-10, 13-14, 17-21; Cavannnah v. John, 2008 CarswellOnt 7455; S.D.G. v. D.K.N., [2017] B.C.J. No. 422.
[25] However, the Father’s request for this increased time is complicated by Jose’s health condition and the need for the Twins to attend daycare to facilitate this proposed new parenting schedule.
Jose’s Health Concerns Do Not Support Jose Going to Daycare as Yet.
[26] The Mother has provided a letter from Jose’s treating physician dated May 24, 2024, which supports the view that daycare may expose him to unnecessary risks. Dr Jacobson writes:
Jose with absent B cells is followed by immunology at sickkids. He is at higher risk of community acquired infections including but not limited to pneumonia, ear infections and sinusitis. Additionally, he will not respond to certain vaccines as a result of this issue at present. I understand mother is keeping him home from daycare to make sure his B cells (immune cells) are sufficient for his safety which I think is reasonable.
[27] The Father admits that Jose’s medical team previously advised them to avoid daycare since he did not have his MMR vaccine. He says that after he received the above note from Dr. Jacobson, they went to Jose’s neurologist at Sick Kids and that during this appointment Dr. Yeh advised that once Jose obtained his MMR, she recommended daycare to help his development.
[28] But that is not in fact what Dr. Yeh said. The medical note dated May 28, 2024 outlines ongoing concerns and issues with the possibility of daycare in the future after they have repeated his blood tests, and he is vaccinated:
His MRI was repeated May 12 and was stable with resolution of the extra-fluid collection along both cerebral hemispheres, he is awaiting to be seen by neurology in this context.
We discussed with the family today, as previously discussed with the immunology team, that the effects of rituximab on his B cell numbers and immunoglobulins can last for multiple months after receiving the medication. We will repeat these levels today and further advise on vaccination with live vaccines and possibility to go back to daycare (which would help with his development). [Emphasis added]
We also discussed his weak positive MOG antibodies might be of clinical significance, as an association between MOG and NMDA is possible. We recommend to repeat the serologies today and will plan a repeat. Jose had blood work on May 27, 2024 that confirmed that his B-cells were increasing but not yet normal. He is having bloodwork done again in six weeks and if his B-cells are sufficient, he should be able to attend daycare a few weeks later. This testing may or may not be sufficient.
Finally, we explained that his MRI changes are quite predominant in highly epileptogenic areas bilaterally, therefore we would advise against weaning his Keppra for now. We recommend a repeat EEG and can further discuss with the family then depending on evolution…
[29] It further noted that the plan was for: further “immunology work up (IgA-IgG-IgM-TBNK) to further discuss plan for live vaccines and possibility to attend daycare.” I add the emphasis because his medical team is clearly not recommending daycare now but depending on the results of the testing it would be a possibility.
[30] Then on June 12, 2024, Jose had to be treated again with an immune suppressant (Rituximab) and hasn’t been able to receive his MMR vaccines. There is no information before me as to why this was. Notably this was the drug that the Sick Kids note above indicated affected his B cells and immunoglobulins which the note said could last for multiple months after receiving the medication.
[31] There is no certainty that his B cell testing will be normal and there is certainly no present green light from the treating physicians to the Father’s plans.
[32] What is also interesting about these notes is that the physicians have referenced Twins “returning” to daycare when they have never gone to daycare. This seems to be something that the Father must have told the medical staff.
[33] After the Mother raised the issue of Jose’s health, the Father also attended at Dr. Jacobson who provided the following note on June 12, 2024:
As further clarification to May 24, 2024 letter.
I believe that the decision re: safety for daycare attendance should rest with the experts (i.e. immunology and neuroinflammatory teams) making a decision with both parents. My suggestion is to bring these teams together to give an opinion re: safety for attendance of daycare as they are certainly the experts in making this decision. This opinion can then be used to make an informed decision by parents re daycare attendance for Jose…the experts in giving a more clear recommendation surrounding safety for daycare attendance rest outside of my expertise.
[34] Given the above medical notes which the Father filed in reply to the Mother’s affidavit and so which he has obviously seen, he appears to only hear the parts of information that support his desires.
[35] It is concerning that the Father is still bringing this motion, seeking a court order today to permit him to enroll Jose in a daycare of his choice and to put in place a schedule part of which can only be accommodated with daycare, in the context of Jose’s prior health issue, the medical evaluations, and uncertain and unknowable results of his future B-cell testing. It is unclear why he would not want to follow Dr. Jacobson’s recommendation to put the teams together to provide clearer recommendations surrounding daycare safety to ensure absolute safety.
[36] It is also concerning that the Father did not make any inquiries of Jose’s treating physicians about this prior to bringing this motion given Jose’s prior and immunocompromised status, particularly since he has a medical degree he obtained in Mexico. It is only after the Mother raised the issue of Jose’s health that he then sought medical information.
[37] There is also no specific information before me that there are any daycares that may provide services that may be needed to address Jose’s needs. Although 20 months old, he cannot feed himself either solids or liquids, has not recovered full motion of his right hand and cannot walk. There is no evidence that the Father has made any specific investigations on this issue other than to say that Holland Bloorview has offered to assist providing a suitable daycare. It seems to me that this is something he should have already researched and provided the Court with clear information about.
[38] At this time, the Mother is unemployed as she was terminated and so is engaged in caring for the Twins fulltime at home. She feels it is in their best interest to remain at home with her in all the circumstances. She also points out that there is a settlement conference scheduled for July 15, 2024 where all issues can be addressed in a more fulsome manner.
The Mother’s Concerns About the Father’s Parenting
[39] This is an interim motion and so there are a variety of disputed evidentiary matters raised by the Mother that I cannot resolve:
• She has expressed concerns about the Father not prioritizing the Twins’ well-being and instead his own parenting needs. She also says that he tried to get her to stop breastfeeding which has well known health benefits, so that parenting time could be outside the Mother’s home. The Father says that he never tried to force her to stop but that by the time he wanted to start taking the Twins out into the community, they were using formula as well.
• She also cites his failure to respect their sleep schedule as well as concerns with how his parenting time has been going. She says she brought several concerns to his attention which he dismissed outright. For example, on one occasion, he returned them with rashes and bleeding spots on their buttocks consistent with severe diaper rash. She says their eyes were swollen from prolonged crying and irritability. The Father denies this other than to say that on this occasion he returned the Twins to the Mother’s father. That does not mean she could not have observed this when she returned.
• On April 28, 2024, she says that Jose came home with a large bruise on his right temple. The Father told her that he hit himself with the bed. The Mother says that she asked the Father on several occasions to replace the beds he purchased for the Twins because they are not age appropriate. Her cribs are CSA approved. She says he dismissed her concerns. The Father says that after she raised concerns about bruises on Jose’s forehead, he took it seriously and went and bought sponge tubing to provide extra padding on the bed. I note that this is essentially an admission that Jose returned with a bruise on his head.
• The Twins also return in the same clothes after visits with the Father, suggesting they had not been bathed and changed. She says it is important for Jose’s recovery that he be clean and that he should change his clothes. The Father denies this and says that he always washes and redresses the Twins in the same clothes that they are sent to him, so that he returns the clothing.
• The Twins have also begun showing constipation which is a sign of improper hydration. When she brought this to the Father’s attention, she says he dismissed this concern. He says that she is the one who controls their diet implying any problems in this regard are from her care. He says that if she suggests food that is better suited to avoid constipation, he complies.
• She says that when he comes to her house, he films her despite her having asked him to stop.
• She says he has never inquired about the cost or frequency of the Twins’ medications.
[40] I note that the Father does acknowledge in his affidavit that he finds having Twins and managing feedings/activities can be a challenge.
[41] There is also evidence before me that the Father has not been paying full table support. He paid $500 from March 2023 and only began paying table support of $1000 in or around March 2024.
[42] I note as well that the Father has raised allegations against the Mother relating to her being abusive towards him by slapping him and punching him, yelling at him in front of the Twins, and also to being controlling, although he still says she is a good parent. The Mother denies all the allegations of abuse. I cannot resolve these allegations either, but they also raise concerns.
[43] I will be ordering that the OCL conduct an evaluation of the best interests of the child as a result.
The Status Quo
[44] I must also take into consideration the status quo and the practical impact of such a decision on the child.
[45] Caselaw warns against interim orders changing the status quo, especially where there is conflicting evidence: See, e.g., Brar v Brar, 2015 ONSC 5736at paras. 15-16; Kimpton v. Kimpton, 2002 CanLII 2793 (ON SC) at paras. 1-2; Verdon v Verdon, 2015 ONSC 6402 at paras. 17-19.
Variation of Interim Orders
[46] As well, there is an interim order here and courts have held there must be a compelling reason to change it on an interlocutory basis; such orders are rare. In Calabrese v. Calabrese, 2016 ONSC 3077, at paras 27 and 28 the Court stated:
[27] Regarding the second legal issue, I find that there must be some compelling reason for a court to change an existing temporary custody/access/parenting order prior to the trial. …The overriding principle in all custody/access/parenting proceedings, whether final or temporary, is that a court should make an order that is in the best interests of the child.
[28] In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.
[47] See also Miranda v. Miranda, 2013 ONSC 4704.
[48] The Father has not shown any compelling reasons or urgency to changing the status quo related to the Twins. This motion is primarily about his preferences and particularly in light of the health concerns, he has prioritized his own interests above his son’s. In my view, the proposed changes are not in the Twins’ best interests in all the circumstances.
[49] However, the current schedule permits the Father to have parenting time at the Mother’s Friday evening for four hours. Given the escalation in the conflict in this matter, it is my view that it is not in the Twins’ best interests that the Father’s parenting time Friday evenings be at the Mothers. As such, I order the revised schedule that the Mother has offered in the alternative with respect to three weekends.
[50] I also amend the schedule such that he will no longer have parenting time at the Mother’s Wednesday evenings, but he will continue to have parenting time on the fourth weekend from 5:00 pm until Sunday at 5:00 pm. Although this does not give her as much weekend time to spend with the Twins and family, she does have weekdays, and in my view, it is in the best interests of the Twins to also have this time with the Father on the fourth weekend.
[51] I award the Mother $3,500 in costs as requested as she was the more successful party. Such costs are fair and reasonable and within the reasonable contemplation of the Father since his Bill of Costs requests more.
Conclusion
[52] I Order:
• The Father shall have parenting time beginning the weekend of June 21, 2024, with three consecutive weekends where he will have parenting time from Friday at 5:00 pm until Sunday at 6:00 pm.
• The following weekend, he will have parenting time beginning on Saturday at 5:00 pm until Sunday at 6:00 pm.
• This schedule shall repeat every four weeks.
• All other relief requested by the Father is dismissed.
• I am requesting that the OCL provide assistance and request that the parties provide me with a draft order in that regard.
• The Father shall pay the Mother $3,500 in costs within 14 days.
Papageorgiou J.
Released: June 19, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pablo Merino Garduno
Applicant
– and –
Maria Isabel Golec
Respondent
REASONS FOR JUDGMENT
Papageorgiou J.
Released: June 19, 2024