Endorsement

Introduction

COURT FILE NO.: 1440/19
DATE: January 21, 2025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Scott Preston, Applicant
AND: Stephanie Margaret Ionni, Respondent
BEFORE: Alex Pazaratz
COUNSEL: Self-Represented Applicant; Jennifer Vandenberg, Counsel for the Respondent
HEARD: January 15, 2025

Issues

1. Can a mother suddenly insist on strict compliance with a parenting order, if the parties have actually been following a different schedule for more than three years?

2. And if the mother’s unilateral decision comes immediately after a case conference on the father’s motion to change, does the father have to amend his pleadings and wait for another case conference before he can try to restore the actual status quo pending determination of the motion?

3. With mutual cross-motions pending, is it really wise to change parenting time now, given the fact that both parties will be seeking significantly more changes within a few months?

4. Is today’s dispute child-focused or strategic?

Background

5. The background briefly:

   a. The parties started living together January 1, 2015.
   b. They separated May 6, 2018.
   c. They have a 7-year-old son, HKP, who is the subject of this motion.

6. The December 10, 2019 final order of Justice Lococo – based on a mediation report – varied a May 24, 2019 order and included the following:

   a. Mother has primary residence
   b. Father’s time includes:
   i. Alternate weekends Friday 4:30 pm until Monday 4:30 p.m.
   ii. Alternate Wednesdays 4:30 p.m. until Thursday 6:30 a.m.
   c. Joint decision making remains in force.
   d. Parents to be flexible and accommodating with each other’s requests for changes to timesharing.
   e. Father to pay $500.00 per month child support, negotiated based on approximate equal time; father’s 2019 projected income $60,000.00; Mother’s imputed income of $29,100.00.
   f. Mother to advise immediately upon obtaining paid employment.
   g. Section 7 expenses shared in proportion to incomes, father to pay 73%.
   h. Annual exchange of tax returns & notices of assessment.

7. On September 17, 2024 the father brought a motion to change which included requests relating to:

   a. Decision making
   b. Change of primary residence
   c. Parenting time (reversal of existing schedule)
   d. Child support
   e. Rescission of arrears

8. In support of his motion to change, the father filed a general affidavit and financial statement, together with 35.1 and 35.1A affidavits.

9. The mother then filed a response to motion to change; and her own general affidavit (along with 35.1 and 35.1A affidavits).

10. The parties attended a Case Conference with a Dispute Resolution Officer on December 3, 2024.

a. The matter was not settled.
b. It was adjourned to March 13, 2025 at 12:00 p.m. for a Settlement Conference.

11. A few days after the Case Conference, on December 8, 2024 the father brought this fresh motion, originally returnable December 18, 2024. As it happens, when the matter was finally called on December 18, 2024 the father indicated he was too ill to proceed, so the matter was adjourned to January 15, 2025 when the matter was argued.

12. The father’s December 8, 2024 motion requests that the alternate Wednesday overnight visits set out in the December 10, 2019 order should be replaced with overnight visits every Thursday. He does not seek to change his alternate weekends at this time.

Positions of the Parties

13. The mother asks that the father’s December 8, 2024 motion be dismissed, or in the alternative that it be adjourned to allow another case conference to take place. Her position:

a. The father’s current request was not part of the September 17, 2024 motion which was case conferenced on December 3, 2024 and which is set for the March 13, 2025 Settlement Conference.
b. His latest request to change to “alternate Wednesdays to every Thursday” is a fresh claim which was not discussed at the December 3, 2024 Case Conference.
c. The father has now brought a stand-alone motion, not in the context of any existing motion to change. So his request is not properly before the court, because it does not conform with Rule 14 which governs when motions may be brought.
d. Even if this most recent request is to be characterized as a motion to change, there is no urgency to the request to change mid-week parenting time. This entirely new request needs to be processed pursuant to the Rules, which make a Case Conference mandatory.
e. The father has not requested in his notice of motion that the matter be heard on an urgent basis.

14. In his December 9, 2024 affidavit the father suggests there is urgency to his current claim. He says:

a. For more than three years the parties agreed to deviate from the existing order. Since July 2021 they have changed his mid-week overnight times from alternate Wednesdays to every Thursday. This was done to reflect a number of factors, including the father’s work schedule, the child’s needs, and changing family dynamics. This existing schedule has worked out well for the child. It has provided stability and consistency.
b. However, on December 3, 2024 – immediately after their Case Conference -- the father received an email from the mother’s lawyer advising that the mother intended to enforce the original 2019 court order, and that mid-weeks would revert to alternate Wednesdays. This change was made unilaterally, without consultation or forewarning.
c. The father is unable to accommodate the proposed change to alternate Wednesdays as a result of family obligations, treatment for injuries from a motor vehicle accident, and obligations of his spouse.
d. In any event, the mother’s unilateral decision to reinstate an out-of-date parenting schedule will result in needless disruption for their son who has been thriving in the current arrangement.

15. The mother’s December 12, 2024 affidavit includes the following narrative:

a. She disputes that the change from alternate Wednesdays to every Thursday was mutually agreed upon. To the contrary she says the father unilaterally imposed this change, and the mother felt powerless to resist the change. The mother ultimately acquiesced to giving the new arrangement a try, but she anticipated the midweek schedule would revert back to alternate Wednesdays.
b. The change occurred a little more than two years ago – not three years ago as the father says.
c. While the father says he was notified that the mother wanted to revert to the court order on December 3, 2024, he fails to mention that in August 2024 the mother similarly requested that they revert to the alternate Wednesday midweek schedule. In August, the father gave no explanation about why he was refusing to revert to the existing order.
d. The mother disputes that the weekly Thursday overnights are best for the child. He has to get up unreasonably early on Friday mornings to be dropped off at the mother’s residence. These early mornings create a disruption in HKP’s sleep pattern, which he already struggles with as an autistic child.
e. As well, having the mid-week on Thursdays means that on the father’s weekends the child is away from the mother from Thursday morning until Monday afternoon. This long gap away from his routine is disruptive to the child’s anxiety level and ability to self-regulate his emotions.
f. The father moved to St. Catharines after the 2019 order, so he has created a situation in which the child has to get up early to travel back to Hamilton on school mornings. The child’s attendance and punctuality are being undermined.
g. She attached an email from the child’s school confirming that the father and/or his current partner have been picking HKP up from school on Thursdays. The mother was unaware the father’s partner was going to be involved in transportation. This was to be the father’s responsibility. His partner is not listed as one of HKP’s emergency contacts, and his partner shouldn’t be involved with HKP’s school.
h. The father does not share information with the mother concerning his partner.

Analysis

16. On the surface, the current motion entails a conflict between formal compliance with procedure, and the ultimate primacy of promoting the best interests of the child.

17. The mother is correct that the self-represented father did not specifically frame his December 8, 2024 motion as a motion to change, nor did he characterize it as part of the existing motion to change. But there is no doubt that a motion to change is underway; that both parents are seeking changes to the final order; a Case Conference has already taken place; and further case management is now scheduled for March 13, 2025.

18. The mother says this particular issue of mid-week parenting time was never conferenced. But it’s not clear if that’s the case. And if the “alternate Wednesdays vs. every Thursday” issue was never conferenced, a question arises as to why it wasn’t conferenced.

a. The mother’s October 11, 2024 response to motion to change sets out that the current order grants the father time on alternate weekends and alternate Wednesday overnights. In her response she requested an order removing mid-week parenting time altogether.
b. The mother’s response to motion to change refers, in several sections, to her October 11, 2024 affidavit as explaining the basis for her opposition to the father’s requests, and the basis for her own requests. In that affidavit she clearly addresses the issue of mid-week parenting time – because she specifically states she wants to eliminate all of the father’s mid-week parenting time.
c. So as of December 3, 2024 the father’s pleadings were clearly asking for more weekday time with HKP. The mother’s pleadings were clearly asking that he have no weekday time with the child. That pretty much suggests that weekday parenting time was a live issue which could or should have been discussed at the December 3, 2024 Case Conference.
d. The mother’s October 2024 materials made it clear that she had serious concerns about mid-week parenting time. She opposed the father having every Thursday overnight. But the only specific change she proposed was to eliminate mid-week parenting time entirely. Her materials made no mention of her intention to unilaterally revert mid-week parenting back to the terms in the 2019 order, while the motion to change is underway.

19. Credibility is always difficult to assess when dealing with untested affidavit materials – which is why courts are generally reluctant to change existing parenting arrangements until the facts are better ascertained. But I note that the mother’s materials include some inconsistencies and gaps:

a. In her December 12, 2024 affidavit the mother strenuously denied the father’s allegation that the July 2021 change to the weekday schedule was mutually agreed upon. In paragraph 5 she stated: “Nothing could be further from the truth.” But in paragraph 7 of the mother’s October 11, 2024 affidavit she stated: “At some point, the Applicant and I agreed to change the Applicant's midweek, overnight visit from alternate Wednesdays to every Thursday.”
b. As well, in her December 12, 2024 affidavit the mother insisted the “every Thursday” schedule hasn’t been in place as long as the father alleges. She said it’s only been a little more than two years. But text messages attached to the mother’s affidavit confirm the father’s version: he’s been having HKP with him every Thursday for the past three and a half years.
c. The mother says in August 2024 she suggested to the father that they revert to the alternate Wednesday schedule, but he didn’t agree and she didn’t force the issue. Her materials fail to explain why it wasn’t urgent to force a change in August (prior to any motion to change) but it suddenly became urgent to impose a change in December (after the motion to change was underway). Parents who attempt to impose strategically advantageous changes in the middle of a court case have a very high onus to explain and justify their actions.

Procedural Arguments

20. The mother’s threshold argument is that the court should not even entertain the father’s motion on procedural grounds.

a. She says he has brought a stand-alone motion dealing with specific weekday timesharing, even though the “alternate Wednesday vs. every Thursday” issue was not specifically referred to in his motion to change.
b. She says she’s entitled to enforce the parenting times in the December 10, 2019 order, and if the father is opposed to that decision, the onus is on him to bring a fresh motion – or at the very least that the “Wednesday/Thursday” issue needs to be case conferenced.
c. She proposes that the father’s motion be dismissed – or adjourned – and that in the meantime she should be allowed to terminate the “every Thursday” parenting time, and replace it with alternate Wednesdays.

21. I have considered four cases submitted by the mother:

a. Paletta v. Mariani, 2022 ONSC 6344
b. Godzisz v. Augello, 2024 ONSC 5223
c. Dunford v. Dunford, 2023 ONSC 4077
d. Plett v. Murphy

22. However, the general propositions set out in those cases are of limited applicability to the circumstances of this case.

23. I cannot accept the mother’s submission that there is a procedural impediment to the court addressing the best interests of this child.

a. As of the December 3, 2024 Case Conference, both parties knew that parenting time was in dispute. They knew the father was asking for more time and the mother was proposing that he should have less time.
b. The only thing the father didn’t know at the Case Conference was that later that same day the mother would suddenly – and without any forewarning – insist that she was rescinding her agreement (or at worst, acquiescence) to a parenting arrangement which at that point HKP had been used to for more than three years.
c. It is disingenuous for the mother to suggest that the father should have specifically brought a motion to prevent her from doing something he didn’t know she intended to do.
d. While there may be instances where a completely new category of claim requires its own Case Conference, this is not one of those situations. “Parenting time” in the broadest sense was case conferenced. Our already busy court system would be overwhelmed if we required a fresh Case Conference every time a parent in an ongoing action has a new proposal in relation to a particular day of the week.
e. Whether his Notice of Motion characterized it properly or not, the father’s December 8, 2024 motion to prevent a unilateral interim change to parenting times was implicitly part of the existing motion to change.

24. The mother’s attempt to create a procedural hurdle for the father is unrealistic and unfair. She’s basically saying:

a. She can change things now.
b. He can object later.

25. That approach is completely inconsistent with Rule 2 of the Family Law Rules, O. Reg. 114/99.

Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

Status Quo and Best Interests

26. The mother’s alternate position is that even if the father is allowed to advance his claim, his motion should be dismissed on the merits. And this gets us into the complex debate about what constitutes the status quo, and which parenting arrangement is entitled to deference.

a. Is it in the best interests of HKP to resume the schedule set out in a five-year-old order?
b. Or is it in the best interests of the child to not disrupt the actual parenting schedule he has been used to for the past three-and-a-half years?
c. And should we be changing anything right now, bearing in mind that the parenting schedule may change again fairly soon, when the current motion to change is determined?

27. It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial or determination of an ongoing proceeding.
    Niel v. Niel,
    Grant v. Turgeon,
    Wang v. Tang, 2023 ONSC 3609,
    Levesque v. Bond, 2023 ONSC 1895,
    Churchill v. Elliot and Ward, 2024 ONSC 1907

28. The status quo – and avoiding reckless creation of a new status quo – are important considerations at the interim stage.
    Cosentino v. Cosentino, 2016 ONSC 5621;
    Cabral v. Parker, 2021 ONSC 4574;
    Viveash v. Viveash, 2021 ONSC 7456;
    N.D. v. R.K., 2020 ONCJ 266

29. The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change.
    W.H.C. v. W.C.M.C., 2021 ONCJ 308;
    Ceho v. Ceho, 2015 ONSC 5285;
    Batsinda v. Batsinda, 2013 ONSC 7869;
    Green v. Cairns;
    Papp v. Papp;
    MacDonald v. Cannell, 2021 ONSC 7769

30. The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings based on incomplete and untested evidence.
    R.C. v. L.C., 2021 ONSC 1963;
    C.C. v. I.C., 2021 ONSC 6471;
    Dayboll v. Binag, 2022 ONSC 6510;
    Chaput v. Chaput, 2021 ONSC 2809

31. Temporary orders are “band-aid” solutions pending a full hearing. The status quo is ordinarily maintained pending trial unless the evidence demonstrates that the best interests of the child require some modification.
    Sullivan v. Senechal, 2022 ONSC 557

32. Because of the obvious importance of the status quo as a best interests consideration, courts must be mindful of—and actively discourage—efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.
    Izyuk v. Bilousov, 2011 ONSC 6451;
    Coe v. Tope, 2014 ONSC 4002

33. The status quo does not refer to a situation unreasonably created by one party after separation to obtain a tactical advantage in the litigation.
    Cabral v. Parker, 2021 ONSC 4574;
    Theriault v. Ford, 2022 ONSC 3619;
    Kirkland v. Kirkland, 2024 ONSC 982;
    Rifai v. Green, 2014 ONSC 1377;
    Ivory v. Ivory, 2021 ONSC 5475;
    J.F.R. v. K.L.L., 2022 ONSC 5067;
    Wang v. Tang, 2023 ONSC 3609

34. Parents cannot resort to self-help remedies; ignore obligations under agreements or orders; present a fait accompli to the court on an interim basis; and expect the court to approve. That is a recipe for chaos, and disaster, and is unfair to children caught in the middle.
    Sain v. Shahbazi, 2023 ONSC 5187

35. Self-help is to be discouraged, and certainly not rewarded. A parent who engages in self-help tactics for strategic purposes—despite the best interests of the child—will generally raise serious questions about their own parenting skills and judgment.
    Southorn v. Ree, 2019 ONSC 1298;
    McPhail v. McPhail, 2018 ONSC 735;
    C.C. v. I.C., 2021 ONSC 6471;
    Rifai v. Green, 2014 ONSC 1377;
    M.H.S. v. M.R., 2021 ONCJ 665

36. Neither parent has the right to create a unilateral parenting status quo, even if there is an alleged safety issue.
    Gray v. Canonico, 2020 ONSC 5885;
    Ivory v. Ivory, 2021 ONSC 5475;
    Ibitoye v. Ibitoye, 2023 ONSC 2008

37. Acquiescence to a parenting arrangement purportedly imposed by the other parent will—with the passage of time—undermine efforts to change the status quo on an interim basis.
    Brownson v. Brownson, 2022 ONSC 5882

38. The mother is quite correct that court orders are to be complied with. Judges are actually quite fussy about that.

39. But in this case, the efficacy of the 2019 order has in large measure been overshadowed by the reality of the child’s subsequent experiences. And at every stage we have to look at things from the child’s perspective. Because whatever the litigation history and whatever the paperwork, the only thing that matters is the best interests of the child.

40. Where a status quo has existed for a long time—and where a parent says that they’ve always had concerns about that arrangement—it is inappropriate for that parent to suddenly select their own preferred moment to unilaterally change arrangements.

41. I am unable to accept the mother’s basic request that the court should ratify what amounts to self-help in disrupting the most meaningful and long-standing status quo in this child’s life.

a. The parties have joint decision-making, initially set out in a May 24, 2019 order and continued in the December 10, 2019 order. The father’s voice in these matters is not unimportant.
b. From the outset, the father has had significant parenting time—so much so that the child support calculation included consideration of his “approximate equal time”.
c. However it happened—whether by consent or by acquiescence—the parenting schedule was changed in July 2021. That’s three-and-a-half years of HKP experiencing an ongoing routine which is markedly different from the terms set out in the December 2019 order.
d. The mother says the father relocated to St. Catharines after 2019. But that happened years ago, and the mother took no steps to change the “every Thursday” arrangement.
e. The mother says HKP is now in school. But he’s been in school a long time, and even after the boy started school the mother took no steps to change the existing arrangement.
f. The mother says the three-and-a-half year old status quo is not working well for the child. But she has failed to establish any urgency, nor has she identified any precipitating event which would justify a major change on a temporary basis, in the midst of ongoing litigation. She has simply decided to suddenly do what she has apparently wanted to do for a long time.
g. The father insists that HKP is thriving in the longstanding arrangement, and that the child benefits from the significant involvement he has with the other children in the father’s household (including a sibling).
h. It is impossible to make a determination—based on the current untested materials—as to which narrative is more compelling. It is impossible to predict how this case will ultimately be decided, likely later this year.
i. The resolution of the pending motions will be determined based upon more complete information and consideration. The court will not be limited to a binary choice between the father’s proposal and the mother’s proposal. There are many ingredients to be considered in determining whether a material change in circumstances has occurred, and if so, what arrangements would best meet the needs of this child.
j. But in the meantime, there is no justification for any sudden disruption of this young boy’s routines, experiences and relationships.

Order

42. The father’s motion is granted. Pending further order the father’s weekday parenting time shall be every Thursday from pick-up at school until drop off at school Friday morning. His alternate weekends shall end with drop off at school Monday morning.

43. If either party is seeking costs, written submissions no longer than two pages (case law to be hyperlinked) plus copies of any offers are to be served and filed on the following deadlines:

a. Father’s materials by February 10, 2025
b. Mother’s materials by February 24, 2025
c. Father’s reply by March 3, 2025
d. (If only the mother requested costs, mother’s reply by March 14, 2025.)

Alex Pazaratz
Date: January 21, 2025