Reasons for Judgment

Court File No.: FC-21-00057341-0000
Date: 2025/03/20
Ontario Superior Court of Justice

Between:
Chevdet Alievski, Applicant
And:
Xhensila Alievski, Respondent

Before: Justice M. Tweedie

Counsel:
Richard Noll, Counsel for the Applicant
Kristen Normandin and Hannah Lank, Counsel for the Respondent

Heard: September 16, 17, 18, 19, 20, and 23, 2024

Overview

[1] The Applicant father and Respondent mother were married in Macedonia on October 26, 2006. At the time the father was 23 years of age, and the mother was 19. They were introduced approximately two weeks before their marriage through a matchmaker in Albania. At the time, the father lived in Kitchener, Ontario, and the mother in Albania, each with their parents.

[2] The mother remained in Albania until 2009 when she was able to immigrate to Canada. Upon arriving, she moved in with the father, his parents, and other family members in Kitchener, Ontario. At the time of separation, the mother and father continued to live with the father’s parents.

[3] At the time of the mother’s arrival in Canada, the father was working at the restaurant owned by the paternal family, Prime Bar-B-Q. The mother later began working at the restaurant as well, although there is dispute as to when.

[4] The parties have two children, Kenno Alievski (“Kenno”) born December 15, 2015, and Krenar (“Krenar”) Alievski born December 14, 2018 (collectively, “the children”).

[5] There is no dispute that both children have exceptionalities.

[6] In 2020, Kenno was diagnosed with Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder by Dr. Bruno DiGravio. As noted by Dr. DiGravio in the report dated March 6, 2020, Kenno has deficits in social communication and social interaction across multiple contexts, and noted to have restricted, repetitive patterns of behaviour and interests. He is noted to have good speech and to be intelligent.

[7] In 2021 Krenar was diagnosed with Autism by Dr. Jodi Rosner. Dr. Rosner, in her report dated September 1, 2021, notes that Krenar experiences social communication deficits, impaired social interactions, restricted and repetitive patterns of behaviour. He is non-verbal. Krenar is also diagnosed with asthma and requires puffers to manage the condition.

[8] On or around November 20, 2021, the mother advised the father that she was taking the children to visit with her brother Leonardi and his family in Etobicoke for the weekend. She did not return with the children. This is the agreed upon date of separation.

[9] Following separation, the mother would only allow the father to have parenting time in Etobicoke in her presence. Parenting time took place at the mother’s apartment, at a public library, and in a Walmart.

[10] The father commenced these proceedings on December 22, 2021.

[11] On March 11, 2022, Smith J. heard competing motions of the parties regarding parenting time, primary residence, and decision-making. He ordered as follows:

1. The parties are granted permission to bring these motions prior to a case conference on the basis of urgency.
2. The primary residence of the children will be with the applicant (father) at 108 High Acres Crescent, Kitchener, Ontario.
3. The parenting schedule will be as follows, commencing Sunday, March 13, 2022:
   a. with the applicant from Sunday at 7:00 p.m. until Friday at 5:00 p.m.;
   b. with the respondent from Friday at 5:00 p.m. until Sunday at 7:00 p.m.
4. The respondent will pick up the children from the applicant at 5:00 p.m. every Friday at 108 High Acres Crescent, Kitchener, Ontario.
5. The applicant will pick up the children from the respondent at 7:00 p.m. every Sunday at 8 Lomond Drive, Etobicoke, Ontario.
6. The applicant will facilitate video calls between the children and the respondent on Mondays, Tuesdays, Wednesdays, and Thursdays.
7. The respondent will facilitate video calls between the children and the applicant on Saturdays.
8. The party having care of the children on a holiday or other special occasion will facilitate video calls between the children and the other party on the holiday or special occasion.
9. The parties may depart from the parenting schedule, from the video call schedule, and from the pick-up and delivery provisions of this order (day, time, and location) with the written consent of both parties.
10. When the children are in the care of the applicant, he will not permit them to be in the presence of second-hand smoke in the home.
11. The applicant will not permit the children to be in the sole care of the paternal grandmother at any time.
12. The parties will share interim joint decision-making responsibility regarding the education, extra-curricular activities, non-emergency health care and therapy, religion, travel outside Ontario, and general welfare of the children.
13. In the event of an impasse respecting decision-making, the applicant shall have final decision-making responsibility.
14. The parties will communicate in writing using a co-parenting application.

[12] The mother returned to live in Kitchener in mid to late 2022, although the exact timing is in dispute.

[13] On November 4, 2022, the father was charged with historical assault of the mother. The father’s criminal undertaking prevented him from communicating with the mother or coming within 100 meters of where she may be and required him to use a third party for the exchange of the children and arranging parenting time. The parties used the father’s sisters as the third party. On November 2, 2023, the charges against the father were withdrawn.

[14] On November 4, 2022, the same day the father was charged, the paternal grandfather was charged with threatening the mother. The paternal grandfather’s charges were resolved when he entered into a 12-month peace bond on June 6, 2023. The terms of this peace bond were to not contact or communicate with the mother, not attend within 100 metres of where the mother may be, and a weapons prohibition.

[15] On December 14, 2022, Breithaupt Smith J. heard the mother’s motion seeking joint decision-making with the use of a parenting coordinator in the case of an impasse, and an increase in her parenting time. The motion was dismissed, and an order was made regarding video calls with the children.

[16] On January 17, 2023, Sweeny RSJ. granted an order on consent of the parties which extended the mother’s parenting time to take place from Friday after school, to Monday morning at school.

[17] On June 28, 2023, Gibson J. heard the mother’s motion seeking an interim order that she have final decision-making and week about 50/50 parenting time. The motion was dismissed.

[18] The parties continue to follow the parenting schedule set out in the order of Sweeny RSJ. dated January 17, 2023.

[19] Neither parent is currently employed.

Issues for Trial

[20] When this matter was set for trial, there were several issues outstanding. However, several of them were resolved on a final basis at the outset of trial, and I granted a final order on September 16, 2024, pursuant to final partial minutes of settlement. The issues resolved were joint decision-making, terms ancillary to parenting provisions, phone and video contact, mobility, prospective child support and s.7 expenses, spousal support, and the reconciliation and subsequent closing of a joint chequing account.

[21] The issues that remained outstanding for trial were:

a. How to resolve joint decision-making in the event of an impasse;
b. The parenting time schedule. More specifically, the mother seeks an additional overnight every Monday;
c. Travel with the children;
d. Equalization, specifically, how to treat a bank account held jointly between the father and his mother and whether the father can exclude $40,000 from his net family property.

Evidence

[22] The father gave evidence. He also called two of his sisters as witnesses: Querime Alievski (“Charmaine”) and Vicky Sulejmanov (“Vicky”). The mother gave evidence and called no other witnesses.

[23] All witnesses were credible overall. However, I find some areas in which each of them was not. I found the father was not credible when giving evidence about the allegations regarding family violence and his family’s treatment of the mother. I found the mother was not credible when giving evidence about her brother’s potential criminal involvement and her participation in some of the post-separation conflict. I found Charmaine to be reluctant and at times argumentative during cross examination. She was evasive and inconsistent when giving evidence in relation to her practice of recording the mother post-separation. Both Charmaine and Vicky testified in a manner that portrayed the father in the best light.

[24] I have considered all evidence presented at trial, however, will only refer to that which is necessary to explain my analysis of the legal issues and support my conclusions.

Family Violence

[25] The mother alleges that the relationship with the father and the paternal family was one which involved family violence. The father denies this. The Divorce Act, RSC 1985, c 3 (2nd Supp.) requires the court to consider family violence when making decisions in the best interests of children.

[26] Section 16 of the Divorce Act outlines the factors that courts shall take into account in considering the impacts of family violence. It reads as follows:

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(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.

[27] Section 2(1) of the Divorce Act defines family violence as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property

[28] Family member is also defined in s. 2(1) of the Divorce Act as follows:

family member includes a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household.

[29] The relevant case law and legislation indicates that in Ontario, family violence is considered to be a pattern of behaviour that takes on many forms. It does not need to take the form of physical violence and can include coercive and controlling behaviour. It can include, among other things:

a. Isolating the victim or monitoring their activities or movements;
b. Controlling the victim’s access to finances and how money is spent;
c. Repeatedly denigrating the victim and making them feel worthless;
d. Threats of violence against the victim, their loved ones or pets;
e. Other types of threats including reporting the victim to the police, publishing intimate photos, or reporting their immigration status;
f. Damaging the victim’s home or property;
g. Gaslighting.

[Further detailed findings and analysis omitted for brevity; see full text above for all paragraphs and orders.]

Order

[1] The divorce shall proceed on an uncontested basis by affidavit evidence. Either party may set the matter down for a divorce at their own expense for no costs payable.

[2] The parties share joint decision-making in accordance with the final consent order dated September 16, 2024. In the event that the parties are unable to agree on a major decision respecting the children Kenno Alievski, born December 15, 2015 (“Kenno”) and Krenar Alievski, born December 14, 2018 (“Krenar”) (collectively “the children”), the following process shall apply:

a. Each party shall advise the other of the decision to be made and the parties shall meaningfully discuss and consider the other’s views.
b. If they are unable to agree and the decision is one in which a professional is involved, such as a teacher, doctor, dentist, psychologist, or therapist, the parties shall follow the recommendation of the professional.
c. If they are unable to agree and the decision is not one in which a professional is involved, then the Respondent mother (“the mother”) shall have the final say.

[3] The mother shall hold all the children’s important documents including but not limited to the children’s birth certificates, passports, and SIN cards.

[4] The parties shall cooperate if either of them wishes to obtain a passport for the children.

[5] The children’s health cards shall travel with the children.

[6] The parties shall share equal parenting on the following two-week, 2-2-5-5, schedule:

a. With the Applicant father (“the father”) from Monday after school until the start of school on Wednesday;
b. With the mother from Wednesday after school until the start of school on Friday;
c. With the father from Friday after school until the start of school on Wednesday;
d. With the mother from Wednesday after school until the start of school on Monday;
e. Repeat by going back to (a) above

[7] All pick-ups and drop offs shall be done at school, except in the event of a PD Day or when school is not open, when the parents shall pick up or drop off the children at Thyme Pizza and Rolls on 540 Westforest Trail, Kitchener, ON, N2N 3J4 (“Thyme Pizza”) at 9:00 a.m.

[8] Long Weekends, Statutory Holidays, and PD Days: Except as otherwise set out below, the above schedule shall not be adjusted for any long weekend, statutory holiday, or PD Day.

[9] Mother’s Day: If the children are not otherwise with the mother for Mother’s Day weekend, the children shall be with her for Mother’s Day Sunday from Sunday at 10:00 a.m. until Monday the next day before school. This exchange shall take place at Thyme Pizza.

[10] Father’s Day: If the children are not otherwise with the father for Father’s Day Weekend, the children shall be with him for Father’s Day Sunday, from Sunday at 10:00 a.m. until Monday the next day before school. This exchange shall take place at Thyme Pizza.

[11] Family Day Weekend: The children will stay with the father on Family Day Weekend in odd-numbered years and with the mother in even-numbered years, from after school on Friday until the start of school on Tuesday.

[12] March Break: the parties shall follow the regular schedule.

[13] Easter Weekend: The children will stay with the mother on Easter Weekend in odd-numbered years and with the father in even-numbered years, from after school on the Thursday before the Easter Weekend until the start of school the following Tuesday.

[14] Victoria Day Weekend: The children will stay with the father on Victoria Day Weekend in odd-numbered years and with the mother in even-numbered years, from after school on Friday until the start of school on Tuesday.

[15] Summer Break: each parent shall have one uninterrupted week in July and one uninterrupted week in August (Sunday at 9:00 a.m. to Sunday at 9:00 a.m.) during which time the other parent’s regular parenting time will be suspended. The mother shall have first choice of her desired weeks in odd-numbered years, and the father in even-numbered years. The party who has first choice shall advise the other of their desired weeks of holiday time no later than April 15 each year. The party with the second choice shall confirm their desired weeks of holiday time no later than May 1 each year. These Sunday exchanges shall take place at Thyme Pizza.

[16] Canada Day: the parties shall follow the regular schedule, unless one parent is exercising summer parenting time which will be given precedence over the regular schedule.

[17] August Civic Holiday Weekend: Subject to the summer parenting time, which will take precedence, the children will stay with the mother on the August Civic Holiday Weekend in odd-numbered years and with the father in even-numbered years, from 4:00 p.m. on Friday until Monday at 8:00 p.m. This exchange shall take place at Thyme Pizza.

[18] Labour Day Weekend: The children will stay with the father on the Labour Day Weekend in odd-numbered years and with the mother in even-numbered years, from 4:00 p.m. on Friday until the start of school on Tuesday. This Friday exchange shall take place at Thyme Pizza.

[19] Thanksgiving Weekend: The children will stay with the mother on Thanksgiving in odd-numbered years and with the father in even-numbered years, from after school on the Friday before Thanksgiving until the start of school on Tuesday.

[20] Halloween: The children will be with the father for Halloween in even-numbered years and with the mother for Halloween in odd-numbered years, from after school until 8:00 p.m. The party who has the children for Halloween will be responsible for the children’s costumes. The 8:00 p.m. transition shall take place at Thyme Pizza.

[21] Winter Break: The parties will share the children’s Winter Break. Commencing 2025, the children will reside with the mother for the first half of the Winter Break in odd-numbered years and the last half of the Winter Break in even-numbered years, and with the father for the first half of the Winter Break in even-numbered years and the last half of the Winter Break in odd-numbered years. The first half of the children’s Winter Break will start after-school on the children’s last day of school in December and end at noon on the date that is the halfway point of the Winter Break. The second half will start at noon on the date that is the halfway point of the Winter Break and end on the morning the children return to school in January. The noon pick-ups and drop-offs shall take place at Thyme Pizza.

[22] Kenno and Krenar’s Birthday: The children will spend their birthdays in accordance with the regular schedule.

[23] The parties may agree in writing to a location other than Thyme Pizza for exchanges that do not happen at the school.

[24] Neither party shall travel outside of Ontario or Canada without the prior written consent of the other, which consent shall not be unreasonably withheld. Detailed itineraries of the travel shall be provided in advance of the travel. Neither party shall discuss the travel with the children in advance of obtaining the consent of the other party.

[25] Both parties shall be flexible to permit the other to travel with the children, even if it disrupts the regular parenting schedule.

[26] Both parties shall cooperate to provide travel documents and travel consent letters to the other in order to facilitate the travel.

[27] If either party plans a vacation with the children, that party will give the other as much notice as possible, but no less than 14 days for domestic travel and 30 days for international travel. This shall be done regardless of whether the travel occurs over the other party’s time. The travelling party shall further provide the exact travel dates, details about the vacation, the name of any flight carrier and flight times, accommodation, including address and telephone numbers to be reached at in case of emergency, and other important details.

[28] The Applicant father shall pay to the Respondent mother an equalization payment of $27,933.59.

[29] All other claims are dismissed.

Released: March 20, 2025

Justice M. Tweedie