COURT FILE NO.: FS-23-38614

DATE: 20240215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dax Urbszat, Applicant

AND:

Zahra Owji, Respondent

BEFORE: Schabas J.

COUNSEL: Rachel Nusinoff, for the Applicant

Michael H. Stangarone, for the Respondent

HEARD: February 13, 2024

reasons on motion for parenting time

Introduction

[1] The parties separated in May 2023 when their child, a daughter, was five years old. However, they continued to reside in the matrimonial home until October 12, 2024 when the police were called and both parties were charged with assaulting each other.

[2] The Applicant, the father, left the home and moved in with his sister. The Respondent mother remains in the home. The child attends school and activities in the area of the city where the matrimonial home is located.

[3] Since October, parenting time has been uneven, and seems to have been largely controlled by the Respondent. The parties have engaged in acrimonious communications. They can agree on very little, accusing each other of being violent to one another, and both claiming they had primary parenting responsibility prior to the separation, and prior to the Applicant leaving the matrimonial home in October.

[4] The parties have agreed to an assessment under s. 30 of the Children’s Law Reform Act, RSO 1990, c. C.12, but have not yet agreed upon an assessor. I was advised that a well-qualified assessor has been identified who is available to conduct the assessment now. It is in the best interests of the child that this assessment be completed as soon as possible. Hopefully the parties can agree on that now.

[5] In the meantime, both parties move for an order formalizing parenting time on an interim, without prejudice basis.

Positions of the parties

[6] The Applicant seeks the following orders:

1. An Order that neither party shall make important decisions with respect to the child, without the other parent's prior written consent.

2. An Order that, on an interim/without prejudice basis, the child shall reside with both parties in accordance with the following shared parenting schedule:

(a) Week 1

• Monday from pick up after school until Tuesday morning drop off at school (or 4:00 p.m. if there is no school);

• Friday from pick up after school until Monday morning drop off at school (or 4:00 p.m. if there is no school); and

• Such further and other times as may be agreed by the parties.

(b) Week 2

• Wednesday from pick up at school until Saturday morning at 10:45 a.m. drop off at ballet (or 10:00 a.m. if there is no ballet); and

• Such further and other times as may be agreed by the parties.

3. In the alternative to paragraph 3 above, an Order that the child shall reside with the parties in accordance with a 2/2/3 schedule.

4. In the further alternative, an Order that the child shall reside with the parties in accordance with a schedule as determined by the Honourable Court.

[7] The Respondent seeks the following orders:

1. The child shall primarily reside with the mother.

2. On an interim and without prejudice basis, the child shall have parenting time with the Applicant in accordance with the following parenting schedule:

(a) Week 1:

i. Monday pick up after school to Tuesday morning drop off at school (or 4:00 p.m. if there is no school;

ii. Friday pick up after school to Sunday drop off at 5:00 p.m.; and

iii. Such further and other times as may be agreed upon by the parties.

(b) Week 2:

iv. Wednesday pick up after school to Thursday morning drop off at school (or 4:00 p.m. if there is no school); and

v. Such additional parenting time as may be agreed upon by the parties.

[8] The submissions before me only addressed parenting time. Further, as there was no issue, at least on this motion, that the child will continue to attend the same school and no significant parenting decisions are needed, I only address parenting time in these Reasons.

Context – an interim order and the status quo

[9] This case is at an early stage. There is high-conflict between the parties and they have filed diametrically opposing evidence on important issues.

[10] As stated by Fowler-Byrne J. in Grover v. Grover, 2023 ONSC 3607 at para 11, “[i]nterim motions by their very nature do not easily lend themselves to resolve cases where there is conflicting evidence on critical issues presented to the court by way of affidavit evidence, untested by cross-examination”, citing Al Tamimi v. Ramnarine, [2020] O.J. No. 3510 at para. 57; Coe v. Tope, 2014 ONSC 4002 at para. 25. Further, as stated in Coe v. Tope: “Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.”

[11] It would be inappropriate, therefore, to make findings on this interim motion as to whether one parent or the other is to blame for the conflict, or who is more to blame, or who has had primary parenting responsibility prior to separation or prior to the Applicant leaving the home. However, neither party is asserting that the other should not have parenting time, or that the child is unsafe with one or the other. Indeed, the parties have been working out significant parenting time to this date, although not without much acrimonious communication and, unfortunately, uncertainty for the child.

[12] Generally, the status quo is to be maintained on an interim parenting motion: Grover at para. 14. However, as Fowler-Byrne J. continued at para. 16, what is relevant is the status quo “which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within these principles”, citing Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869 at pp 19-20.

[13] Here, the status quo as to who had primary parenting responsibility prior to separation, and prior to the charges being laid in October, is very much in dispute. Following the Applicant leaving the matrimonial home, the evidence is also not definitive. Counsel for the Applicant has filed evidence showing that the Applicant frequently picked up the child at school and, since November 23, 2024, he has had the child for many weekday and weekend overnight stays. On the other hand, the child has largely resided with the Respondent in the matrimonial home, which is close to her school and other activities.

[14] There is no presumptive rule in favour of the status quo; rather, as the test is always what is the best interests of the child, the court must “carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements”: McPhail v. McPhail, 2018 ONSC 735, quoting Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869 at paras. 25-26. To the extent I should be guided by the status quo, therefore, I accept only that the child has continued to reside primarily in the matrimonial home, which is close to her school and other activities.

The best interests of the child

[15] It is, of course, trite law that when making a parenting order, the Court shall take into consideration only the best interests of the child. Section 16(3) of the Divorce Act, RSC 1985, c 3 (2nd Supp,) sets out a non-exhaustive list of factors to be considered in determining the best interests of the child. These factors include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[16] Subsection 16(2) of the Divorce Act directs that in considering those factors the court shall give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[17] Subsection 16(6) states that “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.” Subsection 16(5) prohibits consideration of past conduct “unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.”

[18] Subsection 16(5) directs that the following factors be taken into account in considering the impact of family violence under ss. (3)(j):

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[19] Virtually identical factors are found in s. 24 of the CLRA.

[20] It is well-accepted that the best interests of a child are usually furthered by having a loving relationship with both parents. Emphasis must be placed on the importance of bonding, attachment and stability in the lives of young children. Any limitations on parental access to their children, including supervised access, must be justified based on a risk of harm to the child’s physical and emotional well-being.

[21] In this case, despite all the acrimony and contradictory evidence, the issue between the parties is whether, on an interim basis, the parties should have close to equal parenting time or whether the Respondent should have more time because she is in the matrimonial home.

[22] Although allegations of family violence have been made by both parties, I cannot conclude on this motion that the family violence has been directed towards the child. Regrettably, the child may have been exposed to some violence between the parties, but I cannot conclude on this motion that the evidence of family violence impacts on “the ability and willingness” of either parent “to care for and meet the needs of the child.” Further, given that the parties have been able to work out parenting time in the past, albeit not always smoothly, I also cannot conclude that the family violence will prevent cooperation on parenting time going forward, especially when parenting time will be governed by a court order going forward.

[23] In my view, “the principle that a child should have as much time with each spouse as is consistent with the best interests of the child” is apt here where there is little basis to prefer one parent over the other on this motion.

[24] However, I must also take into consideration the status quo and the practical impact of such a decision on the child. As the Supreme Court of Canada has emphasized, as summarized recently by Kraft J. in Predotka v. Dudek, 2023 ONSC 7025 at para. 20, “the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; 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 (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at paras. 74 and 202; Gordon, at pp. 50, 54, 68; F. v. N. 2022 SCC 51(S.C.C.), at para. 61).”

[25] I have concerns about the current situation in which the Applicant lives in Mississauga and the child lives in the matrimonial home in Scarborough. The Applicant continues to pay for all the costs associated with the matrimonial home, but had to vacate the home when the criminal charges were laid. He moved in with his sister in Mississauga where there is a bedroom for the child. The child has stayed there many times since November 23, 2024.

[26] The lawyers argued over how long the drive takes and whether this was detrimental to frequent parenting time by the Applicant. I accept that the driving time is between approximately 45 minutes and an hour, but can be more or, sometimes, less depending on traffic. The Applicant says he engages with the child in the car, and has stated that once the matrimonial home is sold he will “have the funds to relocate closer to [the child’s] school.” The Respondent herself has stated that the driving time is less than an hour, and has not made an issue of it until this motion.

[27] Counsel for the Respondent relied on cases warning against interim orders changing the status quo, especially where there is conflicting evidence, arguing that this supported limiting parenting time to the Applicant: 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 6402at paras. 17-19. However, those cases dealt applications to vary a recognized status quo embodied in a court order.

[28] In this case the circumstances are different. The status quo does not favour one party or the other. Looked at from the lens of the child, however, her primary residence continues to be the matrimonial home where, for the time being at least, the Respondent lives. This home is close to the child’s school and other activities and, presumably, friends she has made or will make in the neighbourhood. The travel time to her father’s home is significant, and should be kept to a minimum. This favours an order which results, slightly, in more parenting time for the Respondent than the Applicant.

Conclusion

[29] Accordingly, I make the following parenting orders, on an interim and without prejudice basis.

(a) The Applicant shall have parenting time as follows:

Week 1

• Monday from pick up after school until Tuesday morning drop off at school (or 4:00 p.m. if there is no school);

• Friday from pick up after school until Monday morning drop off at school (or 4:00 p.m. if there is no school); and

Week 2

• Wednesday from pick up at school until Friday morning drop off at school (or 4:00 p.m. if there is no school):

(b) The parties are at liberty to agree to other parenting time;

(c) The parties shall agree forthwith on an assessor to conduct an assessment under s. 30 of the CLRA; and

(d) The parties will refrain from speaking negatively or disparagingly about each other, or discussing the litigation, with the child or in the presence of the child.

[30] Nothing in this order is to alters the orders made by Maxwell J. on consent on January 23, 2024.

[31] If the parties are unable to agree on costs of this motion, they may provide me with written submissions, not exceeding three pages, double-spaced, not including attachments, by Friday, February 23, 2024.

Paul B. Schabas J.

Date: February 15, 2024