Jarosz v. Denda, 2025 ONSC 1191

Court File No.: FS-21-00026821-0000
Date: 2025-02-18
Superior Court of Justice – Ontario
Between:
Isabel Jarosz, Applicant
and
Christopher Denda, Respondent

Before: Natasha Mathen
Counsel:

• Jesse Rosenberg / Mariam Khattak, for the Applicant
• Emma Compeau, for the Respondent
  Heard: 2025-02-18

Endorsement

Respondent's Motion

[1] The Respondent father brings a motion for the following relief:

a. An order that neither party shall attend at routine extracurricular activities scheduled during the other parent’s time with their daughter;

b. An order that either party may attend the daughter’s “significant events” flowing from her educational or extracurricular activities such as championship games, recitals and competitions;

c. Costs of this motion.

Applicant's Motion

[2] The Applicant mother seeks the following:

a. An order that both parties shall be at liberty to attend any and all of the child’s structured (regularly scheduled) extracurricular activities and “significant events” regardless of the parenting time schedule.

b. An order that the parties shall refrain from any manner of conflict, subtle or open, in the child’s presence and, accordingly, relate to and communicate with one another in a reasonable, brief, and cordial manner, as may be necessary, in all instances in which the child is present or nearby, with the parties to maintain a reasonable distance from one another.

c. Costs.

Background

[3] The parties had a seven-year cohabitation and marriage, and share a five-year-old daughter, P. Their dispute is high conflict, with several motions and endorsements. Despite being initiated in 2021, this matter has yet to go to trial.

[4] In November 2021, the Respondent was charged with uttering death threats in relation to an alleged incident the previous April. The criminal matter was resolved by way of a peace bond. However, as a result there were restrictions on his activities for a period of time.

[5] Currently, the parties have a 2-2-3 parenting schedule. On April 22, 2022, Justice Kristjanson made an order including, inter alia, the following terms:

8. The parties may each enroll P. in activities during their respective parenting time and each shall take P. to her activities on his or her time. The parties may not enroll P. in activities during the other parent’s parenting time without prior written consent.

9. P.’s enrolment in Manor Road Nursery School will be deferred to September 2022. The parties must alternate activities/events/appointments at Manor Road Nursery School to which parents may attend and, once the respondent is no longer under restrictions relating to the outstanding criminal charge, both parties may attend Manor Road Nursery School activities/events/appointments.

10. The parties will alternate taking P. to medical and dental appointments which appointments must be made in consultation with the other.

11. Neither parent should make disparaging comments to P. or in P.’s presence about the other’s parenting style.

[6] The parties dispute the interpretation of this order. The Respondent says that if Her Honour intended the parties to be able to attend off-weeks activities she would have worded paragraph 8 the same as paragraph 9. The Respondent points out paragraph 41 in her endorsement where Justice Kristjanson states that while P. was exposed to arguments between the parties, “the court does not have that concern” since the parties no longer lived together and had minimal contact. The Applicant states that the lack of a specific prohibition on attendance indicates the opposite, especially given paragraph 9 and, in any event, the order was made three years ago in a very different context.

[7] The Respondent originally brought this motion returnable on December 5, 2024. The motion was adjourned on terms on a without prejudice basis in order that the parties attend a case conference before Justice Kraft. When they were unable to resolve the matter, the motion was scheduled for today. In their costs, the parties include time spent preparing for and attending the conference.

Party Positions

[8] The parties are diametrically opposed about how they communicate and what has led to this motion.

[9] The Respondent states that the parties cannot communicate effectively and therefore should interact as little as possible. He deposes that, after three years, the Applicant started showing up at P.’s biweekly dance class that he organized on his parenting weeks after the Applicant refused to cooperate. The Applicant also attended P.’s gymnastics class that occur on his time. He accuses the Applicant of standing close to him, brushing up against him, recording him surreptitiously, interfering with his parenting time, and upsetting the child.

[10] The Applicant flatly rejects the above arguments. As she puts it:

a. The parties can communicate effectively and cordially when they want to. She attached copies and screen shots of text messages and emails to substantiate this.

b. The Applicant cherished her own extracurricular activities as a child. It was important to her that her parents both attend. She lost her mother at a young age and is acutely aware of the ways that life can suddenly change.

c. The Respondent has refused to share P.’s schedule with the Applicant. She found out, by chance, that P. is enrolled in the same dance class on both parents’ scheduled weeks. That is what prompted the Applicant to attend.

d. Any allegation that the Applicant has created an “unsafe” environment is without foundation.

e. The Applicant tries not to interact with the Respondent at these activities.

f. A section 30 report completed after the Kristjanson Order recommends that “all parenting figures and extended family members be encouraged to attend at any and all of P.’s structured extra-curricular activities, school concerts, plays, presentations, graduations, etc., subject to all parenting figures and their respective extended families behaving in accordance with the relevant Guidelines and Principles recommended above.” The Applicant urges the court to adopt this recommendation now.

[11] In her materials, the Applicant did not address whether she has surreptitiously recorded the Respondent when she attended the dance or gymnastics classes. I note that during questioning which occurred at the end of 2024, the Applicant declined to answer questions about this, taking them under advisement. Justice Kristjanson had noted the Applicant engaging in this behaviour in 2022, which Her Honour regarded as “odious”.

Analysis

[12] The court’s primary consideration is the best interests of the child.

[13] I find that the Kristjanson order implies that, when one parent has charge of P., they shall be responsible for taking her to extracurricular activities. Justice Kristjanson noted the high degree of acrimony between the parties. I find it implausible that she would have intended for the off-week parent to be able to attend at those routine activities on the other parent’s time.

[14] In the alternative, if the Kristjanson order is better understood as silent on this issue, for the following reasons it would not change my ruling.

[15] Both parties cited decisions in which courts have come down on either side of this issue. Some of those have dismissed attempts to keep parents separate during routine extracurricular activities; others have not. The question is highly fact-specific and contextual.

[16] On the motion record before the court, I find that the parties are unable to effectively communicate in a consistent way. The matter is high-conflict. Given the constraints of a one-hour motion, and that fact that the parties’ views and perspectives are diametrically opposed, I am unable to assign responsibility for this dynamic in either direction.

[17] There is no clear information about the nature of the space in which the parties may interact should they both attend the routine extracurricular activities. I am satisfied that the gymnastics venue is larger than the dance venue. I am also satisfied that the dance venue separates parents from the actual studio. I find it more plausible than not that the dance studio has limited space for observers.

[18] While it is optimal for a child to view their parents interacting in a normal and cordial way, if the parents cannot or will not do that it is clearly better for the child to be shielded from conflict.

[19] I am unable to determine whether P. is upset at her mother attending her activities on her father’s time. However, I find that the parties’ potential for conflict could unacceptably and negatively affect P. There is no indication that P. will suffer any harm if her parents refrain from attending activities on the other’s time.

[20] Other people in the Respondent’s life, including his current partner and their children, attend P.’s activities. This contributes to an already tense atmosphere.

[21] The Applicant’s desire to be present at all of P.’s activities is natural. However, her materials suggest that a focus on her own emotional and family needs. The court has no reason to doubt the Applicant’s love for and devotion to P. Yet, the Applicant’s insistence on attending extracurricular activities on the Respondent’s time where he has expressed discomfort about that is of some concern. P. attends activities during the mother’s weeks at which the two can share the special bond the Applicant describes as so important. In addition, the order sought allows both parents to attend significant events, including recitals and competitions, regardless of on whose time they occur.

[22] The question about whether the Applicant has engaged in surreptitious recordings is a further concern. I recognize that the parties attended questioning in December where the Applicant took under advisement a question about whether she had recorded the Respondent at these activities. I recognize that the parties have until March 3, 2025, to respond to undertakings made. Nevertheless, the allegation is straightforward and forms a central part of Mr. Denda’s claims. The Applicant could have addressed it in her sworn statement. She only deposed that she “did not take her phone out to hold it next to him.” I note that the Applicant filed a 26-page affidavit that went into exhaustive detail on many points. The fact that she did not address this allegation is puzzling.

[23] In prior proceedings involving the parties, this court has expressed concern about surreptitious recordings. Such recordings would appear to be inconsistent with the spirit of the section 30 report. At a minimum, the possibility that such recordings have occurred affects the force of the recommendation that both parties be able to attend routine activities.

[24] In view of the above, the court finds that, at present, it is not in P.’s best interests for the parties to attend routine extracurricular activities falling on each other’s parenting time. The Respondent’s request shall be granted.

Costs

[25] The Respondent father was successful on this motion and is entitled to some costs.

[26] The Respondent uploaded costs totaling $12,739. This includes attendance at the case conference before Justice Kraft in December.

[27] I acknowledge that this proceeding required more counsel time than usual. However, I decline to award substantial costs. First, the issue is not especially complex. Second, I find that both parties are clouded by their emotions and antagonism. At the same time, and third, I do not fault the mother for wanting to attend P.’s activities. While I reject her interpretation of the Kristjanson order, and I am concerned by her opacity on the question of recordings, I do not find her arguments so devoid of merit as to amount to bad faith or to merit a substantial costs award. Both parties must take the necessary steps to move this dispute to a final resolution whether that be by way of a trial or final settlement.

[28] The Applicant shall pay costs of $7,600 inclusive of disbursements and HST.

Order

[29] The Respondent’s motion is granted in part:

a. Subject to further court order, the Applicant, Isabel Jarosz ("the Applicant") and the Respondent, Christopher Denda ("the Respondent") shall not attend at the routine extracurricular activities for the child, namely, P., born [redacted] that occur during the other parent's parenting time, unless agreed upon in advance and in writing.

b. Subject to further court order, both parties may attend at P.’s significant events flowing from her educational or extracurricular activities such as championship games, recitals, competitions, performances, graduations, etc., regardless of the parenting schedule. On these instances, the parties shall maintain a reasonable distance from one another and shall limit communications only to what is necessary, brief and cordial.

c. The Applicant shall pay to the Respondent costs of this motion in the amount of $7,600 inclusive of disbursements and HST.

d. The parties may submit a draft order for my signature to [redacted].

Natasha Mathen
Date: 2025-02-18