Court File and Parties

COURT FILE NO.: FS-24-00041311-000 DATE: 20240725 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.V., Applicant AND: A.K., Respondent

BEFORE: Justice Mathen

COUNSEL: Elena Mazinani, for the Plaintiff Shivani Sharda, for the Respondent

HEARD: July 24, 2024

Endorsement

[1] The parties attended at a motion before me on July 18, 2024. The motion was brought by the Applicant Husband A.V. (Applicant) for the following:

a. An interim Order that the children of the marriage, namely E.K. born June 15, 2012 ('E.'), J.V. born March 18, 2016 ('J.'), and L.V. born February 22, 2018 (L.) shall primarily reside with the Applicant, commencing immediately. b. An interim Order that the Respondent-Wife, A.K. (Respondent), shall have parenting time with the children as follows: i. Week 1: Friday pick up from [redacted] ('Home') at 4:00pm, overnight until Monday morning with a drop off at the Home at 10:00 a.m.; and ii. Week 2: Wednesday pick up from the Home at 4:00 p.m. overnight until Thursday morning 10:00 a.m. drop off at the Home. c. An interim Order that the Parties have joint decision-making responsibility for the children. d. An Order for the costs of this motion. e. Any further relief that the Honourable Court deems just.

[2] At the motion, the parties came to agreement on a number of issues. Other issues, absent a settlement, will require a trial.

[3] The parties married in 2022 and separated in 2023. Post separation, they continued to live in the same house (belonging to the Applicant’s parents).

[4] The record is not clear as to when the parties began their relationship. They agree that they started living together in 2015. Their first child was born in 2016 and their second in 2018. The Respondent’s son from a previous relationship, E., also lived with them. The parties stated that E.’s biological father pays child support but has no current involvement with him.

[5] The Respondent does not contest that A.V. loves all three children very much. A.V. gave affidavit evidence of his close relationship with E. in particular.

[6] The parties disagree about the status of their living arrangements over the years. The Applicant states that they lived with his parents from 2015 until 2024. The Respondent says that in numerous years this was not the case. I am unable to make a finding on this issue.

[7] I do accept that the three children were living at the Applicant’s parents’ home at the time of separation.

[8] The parties made allegations against each other that triggered police involvement.

[9] On March 12, 2024, the Applicant made an assault complaint against the Respondent leading to her leaving the home. At that time, she took the eldest child, E., with her. The younger children continued to reside with the Applicant.

[10] On or about March 15, 2024, the Respondent made a sexual assault complaint against the Applicant in relation to what she says is an incident that occurred the previous November. As a result, the Applicant is subject to a no contact order save for the purpose of facilitating parenting time.

[11] At some point prior to her departure from the home, the Respondent came to have the children residing primarily with her. I am unable to make a finding on the sequence of events leading to this state of affairs.

[12] The Applicant says that the mother inappropriately engaged in “self-help” to change the status quo so that the children now reside with her. That is a primary reason he requests that the children be returned to him.

[13] The threshold, on an interim motion, to disturb the status quo with respect to the residence of children is high:

[G]enerally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. This is so, whether the existing arrangement is de facto or de jure: Grant v. Turgeon para 15.

In these circumstances, I do not believe that that high threshold is met.

[14] There was no evidence before me that the children’s current arrangement puts them at any risk. I accept, per the Applicant, that the Respondent’s current living arrangements likely are smaller than the Applicant’s parents’ house. That, by itself, does suggest that the children’s best interests are negatively implicated.

[15] The Applicant also objects to the current parenting arrangement which he described as primarily on weekends. He characterizes this as facilitating the Respondent’s ability to “party”. There was no evidence before me to substantiate this allegation. I found the Respondent to be cooperative and plausible in her explanations to the Court. She is currently in a massage therapy program which requires her to log practicum hours mostly on weekends. On the record before me, I am persuaded that this is the reason why the Respondent has suggested that current parenting arrangement. In any event, the Respondent claims that the Applicant sees the children more often than that.

[16] I do accept the Applicant’s allegation that he has not been able to see E., or, at least, not as often as the younger children. This is a concern, given the close relationship between them. I therefore am prepared to order, on a temporary basis, parenting time in respect of all the children.

[17] In my view, the fact that E. has another parent complicates the Applicant’s ability to secure relief concerning the child’s primary residence or decision-making. However, I do not find that fact to pose an obstacle to an order, on a temporary and without prejudice basis, for some parenting access. I find such access appropriate in order to maintain the current close relationship between the Applicant and E., such relationship not being disputed by the Respondent.

[18] At the hearing, I understood the parties to agree on seeking an assessment from the Office of the Children’s Lawyer for all the children. Subsequent to the hearing, I was made aware that the parties disagreed on whether to include E. in the request. I gather that this is because of the Respondent’s reluctance, at this time, to deal with issues surrounding E. in general.

[19] A court request that the OCL conduct an assessment on a child does not require parental consent. I believe it is appropriate to include E. in the referral request for the following reasons:

a. An assessment of E. is not something on which his biological father, who exercises no parenting time and by all accounts has not seen him in some time, would reasonably have input; b. The evidence before me indicates that the three children are part of the same family unit. I see no reason to treat E. differently for the purpose of OCL involvement. c. It is at least plausible that at some point in these proceedings the OCL would be asked to assess E., too. d. Nothing in the record indicates that having E. be subject to an assessment by the OCL would put him at any risk.

[20] Accordingly, I shall make a request that the OCL investigate and provide a report with respect to the three children.

[21] The parties have achieved divided success on this motion and shall bear their own costs.

Order

[22] In conclusion, and subject to further order of this Court, I make the following order:

e. Pursuant to the order attached to this endorsement, the Children’s Lawyer is requested to investigate and provide a report in accordance with Section 112 of the Courts of Justice Act. f. The Applicant’s request for decision-making in relation to E. born [redacted], is dismissed without prejudice. g. On an interim and without prejudice basis, the Applicant and Respondent shall exercise joint decision-making with respect to J. born [redacted], and L. born [redacted]. h. On an interim and without prejudice basis, the three children shall continue to reside primarily with the Respondent. i. Until the Respondent’s practicum hours are completed, on a without prejudice basis the Applicant shall exercise parenting time for the three children Friday morning at 10 am until Tuesday morning at 10 am. The Respondent shall make best efforts to facilitate weekday visits with the Applicant. j. The parties shall cooperate to secure third party assistance to ensure that exchanges of the children are carried out in accordance with any no contact orders. k. The parties may seek further relief in relation to parenting by the earlier of: i. the completion of the Respondent’s current practicum hours; or ii. October 1, 2024. l. The parties shall bear their own costs for this motion.

Justice Mathen Released: July 25, 2024