Court File and Parties

COURT FILE NO.: FS-23-106567-00 DATE: 2024 08 02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: IMORIN, Esther Edayaraj - Applicant AND: JEGATHEESPARAN, Jegatheep - Respondent

BEFORE: Justice Emery

COUNSEL: A. Rubin as an agent for J. Passeri – for the Applicant (Email: ari@nussbaumlaw.ca) H. Noori – for the Respondent (Email: hnoori@noorilaw.com)

HEARD: Video Conference

Reasons for Decision

[1] The respondent father, Jegatheep Jegatheesparan, brings this motion seeking two orders. The first is an order that the Peel Children’s Aid Society produce its entire file on this family. The applicant mother consents to this order and the Peel CAS does not oppose. An Order for this relief on the terms set out in para. 5 of the Notice of Motion shall issue accordingly.

[2] For the balance of the motion, the father seeks an order expanding the parenting time he presently exercises with the child, Neriyah. She was born September 2, 2019 and is currently 4 years of age. The father seeks incremental changes to that parenting time to allow for overnight visits with Neriyah every other weekend for two nights. In the alternative, he asks the court to grant an order to entitle him to one overnight visit with Neriyah to bridge the daytime visits on each Saturday and Sunday of those weekends.

[3] The real issue on this motion is the determination of overnight parenting time at this stage.

[4] The father’s present parenting time is set out in the consent order made at the case conference by McGee J. on February 16, 2024 as follows:

a. Every other Saturday from 10 a.m. until 4 p.m.; and b. Every other Sunday from 1 p.m. to 7 p.m. (to allow Neriyah to attend church with her father).

[5] The father relies on three grounds for this motion. First, the endorsement of McGee J. at the case conference on February 16, 2024 contains a recommendation that increased parenting time be given to the father. Leave was granted to bring this motion if the mother would not agree. Second, the AFCC-O guide supports an increase in parenting time for a parent and a four year old child on a step up approach, with possible overnight visits. Third, the father states that overnight parenting time with him would be in Neriyah’s best interests as she has verbalized a desire to stay over on Saturday night with her father. She made that wish known when she was already at her grandparent’s home for parenting time with him.

[6] The father also seeks a court ordered schedule to contact Neriyah on two evenings during the week through the Ipad he has purchased for her.

[7] The applicant mother, Esther Edayaraj Imorin, resists the motion for three essential reasons. First, the Order of McGee J. dated February 16, 2024 requested the OCL to become involved with this matter. The OCL accepted that request for involvement in May 2024 and the mother had her first meeting with the OCL investigator on May 18, 2024. The OCL has advised the parties that a report may not be ready to file with the court until at least 90 days thereafter. The court would likely benefit from the results of the investigation and any recommendations that report may contain. Second, she submits the AFCC-O guide does not apply to the facts in this case. Third, the evidence filed by the mother is replete with evidence that paints the father as the cause of certain family violence which reflects on his ability to parent. The instances of family violence described in the mother’s affidavit, if true, may have an impact directly or indirectly of Neriyah.

[8] There is a settlement conference in this case scheduled for August 8, 2024.

Context

[9] The parties married on November 26, 2016. They separated on February 1, 2023. The mother left the matrimonial home with Neriyah in January 2023 and made allegations to the police resulting in charges against the father. A no contact order made upon his release.

[10] The father is currently resides with his parents at their home in Mississauga, and they are his sureties. All parenting time he presently exercises with Neriyah has taken place at this home, or in the presence of at least one surety.

Discussion

[11] The parties must keep two things in mind when reading this decision. The first is that the Order I am asked to make on this motion will be interim in nature. It is intended to maintain the status quo and to preserve the relationship of each parent with the child while the case is before the court. Final parenting arrangements will be made when the case is resolved by agreement, or determined by the court on a full record at trial.

[12] The second thing to keep in mind is that the paramount consideration, if not the sole objective on a parenting motion is to order the parenting plan that is in the best interests of the child: s. 16(1) of the Divorce Act. In this case, what is best for Neriyah is the only thing that matters as far as parenting is concerned. From a principled starting point, s.16(6) of the provides that children benefit from the greatest amount of time a child can have with each parent that is consistent with the best interests of that child.

[13] The overall consideration of the court must be ascertained from the child’s perspective, and not the parent’s wishes, preferences or assertion of rights. Those wishes, preferences and rights are not relevant to the equation except to the extent that they are necessary to identify the best interests of the child. See Gordon v. Goertz, as well as Young v. Young (1993).

[14] As the Court of Appeal explained in Knapp v. Knapp, 2021 ONCA 305, at para. 34, the objective of a child focused approach is to achieve a result that will provide the child with as much time with each parent as possible according to the best interests of that child. This principle is a guide to benefit the child. However, this objective is but one factor in the determination of what parenting order would be in the child’s best interests: Bjornson v. Creighton, at paras. 22-30. The application of this principle may or may not result in equal parenting time between parents: Knapp, at para. 34.

[15] One of the metrics of parenting time with each parent often used by Canadian courts is the parenting plan guide produced by the Association of Family and Conciliation Courts - Ontario (“AFCC-O guide”). Kraft J. in Hatab v. Abuhatab, 2022 ONSC 1560 said that the AFCC -O guide:

“……has been found by many courts to be of great assistance in determining parenting schedules that are in a child’s best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation parenting: McBennet v. Danis, 2021 ONSC 3610, at paras. 92-93; Armstrong v. Garrison, 2021 ONSC 3986, at para. 38; Southorn v. Ree, 2021 ONSC 7819, at para. 401.

[16] Chappel J., in McBennet v. Davis, held at paragraph [92] that:

“The AFCC-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”

[17] Neriyah falls within the “pre-school” age category in the AFCC-O guide for children between three to five years of age. Mr. Jagatheesparan’s parenting time should be calibrated to the parenting time guideline that is suitable for Neriyah as the baseline for this Order.

[18] The AFCC-O guide for a child at the toddler stage recommends parenting time with the non-resident parent in terms of short blocks of time until the child acclimatizes to longer periods. There is some suggestion that overnight visits may be permitted if shown it is sustainable and a positive experience for the child. I find that a four year old child who has experienced upheaval in her family with her mother living with her in one home and her father living with other family members elsewhere will not be ready for an overnight stay with the father.

[19] I consider it not only appropriate, but advisable to wait for the report and recommendations of the OCL on any expansion of the father’s parenting time with Neriyah before any change is made. This includes overnight stays. I do not have sufficient evidence at this time to apply the AFCC-O guide to the circumstances of this family, or the needs of this child.

[20] I am also concerned about the emotional impact any family violence described in the mother’s affidavit, if true, may have had on Neriyah. The relevance of family violence and its impact are factors relating to the circumstances of a child set out in the new Divorce Act at ss. 16(3)(j) and (4) for the court to consider.

[21] Most often, the court finds that it is helpful to wait until the OCL has completed its investigation, released its report and held the disclosure meeting before hearing a motion for a change to interim parenting time. This point was captured by Coroza J. when a judge of this court in Bhogal v. Bhogal, 2018 ONSC 6483, at paras. 15 and 18. Coroza J. further discussed the difficulty encountered by the court to make findings of fact or credibility on a paper record consisting of competing affidavits in para. 16 of Bhogal. That is exactly the difficulty encountered here, thus making his observations most applicable.

[22] The same view was expressed by Myers J. in Vo v. Voong, 2019 ONSC 5061 at paras. 78 and 79 where he said:

[78] After setting out his concerns and responses to Ms. Vo’s allegations in the section of his factum dealing with his request for access, Mr. Voong argues for the appointment of the Office of the Children’s Lawyer so that the children’s voices might be heard in this proceeding. Instead of looking to the OCL, as discussed above, the parties have consented to submit themselves and the children to a full s.30 assessment. I agree that considering the serious nature of the allegations made an assessment is a very worthwhile, productive, and healthy procedure in the best interests of the children and the parents. In light of the upcoming assessment however, it seems to me that I should not be altering the status quo and destabilizing the children’s or the parents’ living arrangements right before they all undergo an intensive and intrusive family assessment. Nor do I wish to make an order on partial information only to see the possibility of it being changed again in several months. Changes to the children’s arrangements and routine should be minimized.

[79] In my view, it is not in the best interests of the children to change the current access schedule yet. The only exception is that Ms. Vo is not to enroll the children in any new activities that are scheduled to occur during Mr. Voong’s access time during the day time on weekends except with his prior consent (which shall not be unreasonably withheld). Otherwise, I adjourn Mr. Voong’s motion to alter his access to a case conference following the delivery of the s.30 assessment subject to any intervening urgency as always.

[23] I am of the view that the father already exercises parenting time that allows him to see Neriyah at least 24 hours each month to provide him with both consistency and continuity on alternate weekends. I am reluctant to expand the parenting time that the parties agreed upon at the case conference and that they have been following for over one year before the OCL has completed the court ordered process. Changing the parenting arrangement now might destabilize the parenting arrangements that the OCL investigator may find are working, or where it may be found that more parenting time to the father is required.

[24] I therefore find that the timing of the OCL investigation and report modifies the recommendation of McGee J. that more parenting time to the father be considered on this motion. I also find that the AFCC-O guide either favours holding off from granting the father overnight parenting time with Neriyah because of her age and circumstances, if they apply at all. Last, the court will benefit from further evidence and the views of the OCL on parenting issues because of the troubling allegations of family violence the mother has made against the father.

[25] I decline to make an order for the father to have regular video-based visits with Neriyah for the same reasons.

Orders

[26] I therefore find that Mr. Jegatheesparan’s motion for expanded parenting time is premature. He should have waited until after the OCL report has been made available for each party to include and to refer to in their motion materials. That part of the motion is dismissed, without prejudice to either parties ability to bring the motion when the OCL has delivered its report.

[27] If Ms. Imorin seeks costs for the current motion, she may file written submissions consisting of no more than two pages, not including any offer to settle or bill of costs, by August 16. Mr. Jegatheesparan may then file written submissions in response, subject to the same page restrictions, by August 30. No reply submissions are permitted.

[28] Submissions may be filed by email to my judicial assistant at melanie.powers@ontario.ca.

Emery J. Released: August 2, 2024