Court File and Parties

COURT FILE NO.: FC-22-763 DATE: 20240702 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amanda Filoso-Baglione, Applicant AND: Kyle Kendall Lawson, Respondent

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Gary Joseph and Meghann Melito, Counsel for the Applicant Jodi L. Feldman and Golnaz S. Simaei, Counsel for the Respondent

HEARD: June 27, 2024

Ruling on Motion

Introduction

[1] The Respondent Father moves to vary the current order of Healey J. dated June 15, 2023 (“the Healey Order”). He seeks an order for expanded parenting time with the child Ana McKinley Lawson born January 29, 2019.

[2] Specifically, the Respondent seeks an order giving him alternate weekends from Friday to Sunday (Monday if school), plus every Wednesday after school until 7 p.m. (pick up at school or if there is no school then from 10:00 am to 7 p.m. He further seeks orders regarding the transitions/exchanges, supervision, and locations for his parenting time. Lastly, he seeks two seven-day periods of uninterrupted holiday parenting time in the summer of 2024.

[3] The Applicant is opposed to the relief the Respondent is seeking. She proposes a more restrictive expansion of the Respondent’s parenting time. She proposes to expand the Respondent’s parenting time to alternate weekends during the summer of 2024 from Friday to Sunday with two long weekends - one in July (three overnights) and one in August (four overnights). She then asks that the parenting time schedule return to follow the Healey Order in September.

[4] The parties separated in May of 2022. They have one child together, namely Ana, who is now five (5) years old. When the parties were together, they lived in Parry Sound. After separation, the Applicant relocated to Orillia, and then to Barrie.

Analysis

[5] This matter has been rife with conflict requiring numerous court appearances and using up significant judicial resources. Any progress towards resolution has been (in my view) incremental. Both parties’ narratives allege that the other is solely responsible for the conflict and the level of distrust. Both parties allege the other is behaving unreasonably, controlling and even abusive. I am sure both parties have incurred significant legal costs during the litigation. According to the endorsement of Douglas J. on May 16, 2024, this matter has been given priority to proceed peremptorily for trial during the November 2024 sittings.

[6] The Healey Order expanded the parenting time granted to the Respondent under the November 3, 2022 Order of Eberhard J. (the Eberhard Order). The Eberhard Order was highly restrictive and contained terms of supervision, which graduated to supervised exchanges. It contained only day parenting time; there were no overnights. The Healey Order graduated the parenting time schedule to provide the Respondent with one overnight (unsupervised) three times per month. It still contained terms regarding supervised exchanges and a restriction on the Respondent that did not permit him to remove the child from the Parry Sound area.

[7] The parties agreed to a s. 30 Assessment (Children’s Law Reform Act, R.S.O. 1990, c. C.12) in August 2023 to be completed by Dr. Harris. It has been received and it recommends a graduated step process of expanding the Respondent’s parenting time and holiday parenting time. Such expansion was to commence in the fall of 2023 and it incorporated a summer holiday parenting time of one week in July and one week in August. At the time of the Assessment, the Respondent reported that “he planned to rent a home in Barrie to be closer to Ana.” He was commended by Dr. Harris for this plan. Dr. Harris made recommendations to continue to step-up the Respondent’s parenting time to move the family “towards more equal parenting time using a step-up approach.” At the time of this motion, the Respondent has not moved to a home in Barrie.

[8] I am not going rehash all of the serious and contradictory negative allegations that each party has made about the other. Needless to say, the litigation has not improved the parties communication or helped them build any trust to move forward with cooperative parenting. I am further not going to comment on the strengths or challenges (if any) regarding the s. 30 Assessment. That will be left for the trial judge. I accept that I must treat the statements and recommendations contained within the Assessment with caution.

[9] However, there is caselaw that supports giving some weight to some of the findings in a s. 30 Assessment at a motion for temporary parenting time. (See Calabrese vs. Calabrese, 2016 ONSC 3077, and Bos vs. Bos, 2012 ONSC 3425). Ms. Simaei submitted that the objective findings made by an assessor can be relied upon at a motion for parenting time. I agree. Further, the changes that are being requested are of a gradual nature. The Respondent is not asking to change the status quo regarding decision-making responsibility or primary residence at this time. Since both parties are suggesting a gradual expansion or “step-up” plan, (which is similar to the recommendation in the Assessment), the court is not delegating the decision to the Assessor. In my view, the court is simply doing what it is supposed to do, which is to consider all of the evidence that is available in coming to a determination of the best interests of the child on a temporary basis.

[10] The best interests of a child are to be analyzed from the child’s perspective and not from the perspective of either parent. The focus must remain at all times on the child, not the needs or interests of the parents. Parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child. See Gordon v. Goertz, [1996] 2 S.C.R. 27 and Young v. Young, [1993] 4 S.C.R. 3. Mr. Joseph submitted that in making its decision, the court should place emphasis upon the critical importance of bonding, attachment and stability in the life of young Ana. See Barnes v. Parks, 2001 CarswellOnt 486, [2001] O.J. No. 643 (Ont. C.A.). He submitted that the increase of parenting time ought to be done in a gradual, sensitive, and child-focused manner. I agree.

[11] The Applicant agrees to some expansion of the child’s weekend parenting time with the Respondent. It seems however, that her objections to the Respondent’s proposal are rooted in her allegations of her past lived experience with the Respondent and the high level of conflict after the separation. The Applicant is without a doubt highly protective of Ana. It remains to be seen as to whether this is completely justified. From the materials filed, it seems that the Applicant’s suggested expansion for the summer months, would basically only move the family towards the traditional alternate weekend parenting schedule in the summer, then, for some unfathomable reason, the schedule would step backwards and revert back to the parenting time schedule in the Healey Order until trial. The Applicant’s proposal does not give the child much time to enjoy special summertime holidays and activities with her father before she starts back to school. I find the Applicant’s proposal is inconsistent and unstable and does not promote and encourage the relationship between the child and her father.

[12] Parts of the Assessment (observations and findings) can be used by a motion judge even though Dr. Harris has not been cross-examined. Her observations of Ana with her father were positive. Dr. Harris observed that Ana enjoys her time with her father. From the evidence of both parties, the Respondent had limited involvement with parenting Ana prior to the separation. The parties disagree as to why this was the case. However, the Assessor’s recommendations include a “step-up” plan that gradually increases the Respondent’s care so as to be sensitive to the child’s needs. Considering the progress that has been made, and the evidence of both parties, I am not convinced that the Respondent is an unsuitable parent to have some further expanded parenting time. I am further not convinced that it would not be in the best interests of the child to have expanded summer holiday parenting time with him. Childhood is so brief. Ana should not lose out on opportunities that are in her best interests just because her parents cannot trust each other or cooperate and get along.

[13] At the same time, in my view, the parenting schedule proposed by the Respondent is not necessarily sensitive to all of the child’s needs either. While I agree with the expansion of alternate weekends, I do not agree with the return on Mondays, and I do not agree with the Wednesday parenting time taking place outside of Barrie. Transitions should be naturalized and I agree that some of them should take place at the child’s school. However, given the distance between the parties and the age of the child, I do not believe it would be in her best interests to have a long drive from Parry Sound to Barrie on Monday mornings before school, or on Wednesdays (whether or not she is in school). In my view, it is not in the best interests of any child to spend any more time on the highway than is reasonably necessary.

[14] The weekend parenting time should expand to Friday to Sunday plus some midweek parenting time and some summer vacation time as well. The only consideration is Ana’s best interests. There is no evidence to support not expanding the Respondent’s parenting relationship, however, there is evidence that supports the expansion being slow and sensitive to Ana’s comfort. Both parties should be flexible in negotiating the expansion so that it is comfortable and sensitive to Ana needs and development.

[15] At this time, I believe that there should not be any facetime calls between the child and the Applicant or the Respondent during each others parenting time. In light of the allegations of control by both parents, Ana needs to have time and freedom to enjoy her time with each parent.

[16] There is not much that these parties agree on, (except that there is a high degree of conflict and distrust between them). The previous endorsements and the size of the file show that this family has been plagued with conflict that has existed prior to and after the date of the separation. Both parties put forward strongly worded narratives that completely blame the other for all the conflict and make continued serious allegations of abuse against each other. Significant animosity continues and this matter will likely require the trial which is scheduled to proceed in November 2024. The parties are cautioned to do their best to move forward emotionally in this matter. If they do not, there is a chance that little Ana (whom they both love) will be emotionally harmed because she may never know a day of peace in her childhood.

[17] At an interim parenting time motion, the court does not usually change that arrangement unless they are satisfied there are compelling circumstances to do so and they are of the belief that such change would be in the child’s best interests. In my view, there are compelling circumstances that exist at this time. As Douglas J. put it in his endorsement of May 16, 2024, “parenting time is the right of the child.” Both of the parties agree to expand the Respondent’s parenting time, they just disagree on the pace of the gradual expansion. Additionally, there has been a significant period of time whereby the Respondent has already exercised unsupervised overnight parenting time, and in my view, he has made progress to develop a loving bond with the child. Lastly, although the s. 30 Assessment has not been tested in court, the relief sought by both the Respondent and the Applicant in this motion do not differ so much from the first step recommended by the Assessor.

[18] I find it is in the best interests of the child to continue to incrementally expand the Respondent’s parenting time to promote and encourage the child’s healthy and meaningful relationship with both parents. In reality, despite the conflict and the drama, the Respondent’s parenting time has been slowly “stepping-up” since the separation. The parties may not agree with the necessity and/or pace of the “stepping-up”, however, the Applicant did share her view with Dr. Harris that “the gradual increase in parenting has benefitted both Ana and her father in their relationship.”

[19] For the reasons set out above, Order to Go:

1. The Respondent shall have parenting time as follows:

2. Summer 2024: (a) Commencing July 5, 2024, alternating weekends from Friday at 10:00 a.m. to Sunday at 7:00 p.m. (b) Every Wednesday from 10:00 a.m. until 7:00 p.m. in Barrie. (c) In addition to the regular schedule described above, the Respondent shall have care of Ana for one long weekend in July, (3 consecutive nights) and one extra-long weekend in August (5 consecutive nights). These extended periods of parenting time shall be attached to a regularly scheduled weekend visit. Specifically, one of the Respondent’s scheduled weekend parenting time in July shall be extended by one additional night and Ana shall be returned to the Applicant’s care on the Monday at 7:00 p.m.; and one of the Respondent’s scheduled weekend parenting time in August shall be extended by three nights so that Ana shall be returned to the Applicant’s care on the Wednesday at 7:00 p.m. (d) If, by July 4th at 5 p.m. the parties cannot agree on which weekends will be extended, the Applicant shall choose the Respondent’s extended parenting time weekend in July and the Respondent shall choose the extended parenting time weekend in August.

3. Commencing September 2024: (a) Alternating weekends from Friday after school (pick up at school) to Sunday at 7:00 p.m. (b) Every Wednesday from after school (pick up at school) until 7 p.m. in Barrie.

4. During the school term, Ana’s transition to the Applicant on Wednesdays at 7:00 p.m. and Sundays at 7:00 p.m. shall take place through a supervised agency in Barrie.

5. Except as set out above, the Respondent may exercise his parenting time with Ana anywhere in Ontario.

6. If either party is away overnight from their residence with the child during their parenting time, they shall immediately inform each other of their location and contact information.

7. Neither party shall remove the child from Ontario without the written consent of the other, or court order. Such consent shall not be unreasonably withheld.

8. The Applicant shall transport Ana to and from Parry Sound for the Respondent’s weekend parenting time in the summer and the transitions of Ana shall be arranged through Mr. Geoffrey Reekie with the costs to be paid by the Respondent subject to re-apportionment by the trial judge. If the Respondent intends to exercise his parenting time with Ana within the Province of Ontario but outside of Parry Sound and if the Respondent elects to have the exchanges of Ana take place in Barrie instead of Parry Sound, he shall provide the Applicant with five days notice of his election and arrange for the exchanges of Ana to take place in Barrie through Brayden Supervision Services with the costs to be paid by the Respondent subject to reapportionment by the trial judge.

9. If Brayden Supervision Services is unavailable for the transitions of Ana between the parties in Barrie, then the parties shall use Renew Supervision Services for the transitions in Barrie, and accordingly, the parties shall forthwith complete the intake process with Renew Supervision Services.

[20] If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Respondent on or by July 12, 2024, followed by the Applicant’s responding submissions on or by July 19, 2024, then reply submissions, if any, on or by July 26, 2024. Cost submissions shall be no more than 2 pages in length (12 pt font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received on or by July 26, 2024, the issue of costs will be deemed to have been settled between the parties.

JAIN J. Date: July 2, 2024