Court File and Parties

Court File No.: FS-24-00045287-0000 Date: August 22, 2025 Ontario Superior Court of Justice

Between: Benjamin Sanchez, Applicant – and – Aleksandrina Goeva, Respondent

Counsel:

• Dayna Shoot, for the Applicant
• Desi Nikolova, for the Respondent

Heard: July 31, 2025

Pinto J.

Reasons for Decision on Parenting Motion

Overview

[1] On July 31, 2025, I granted the applicant father's motion for expanded and equal parenting time with the parties' two-and-a-half-year-old daughter K, with written reasons to follow. These are those reasons.

Motion Materials

[2] The parties filed extensive materials on this regular motion:

[3] The applicant filed:

(a) His 12-page affidavit with 24 pages of exhibits;

(b) The affidavit of Ariella Folman, Registered Psychotherapist;

(c) The applicant's 13-page reply affidavit;

(d) The affidavit of Yered Pita-Juarez, the applicant's close friend; and

(e) The applicant's factum.

[4] The respondent filed:

(a) Her 20-page affidavit with 65 pages of exhibits;

(b) The respondent's factum.

[5] Both parties are in breach of the Consolidated Provincial Practice Direction for Family Proceedings (amended February 6, 2025, effective Jun 1, 2023), which places restrictions on filing motion materials without leave of the court. The practice direction states that each party is restricted to one primary affidavit in support of their position on the motion and cross-motion (if applicable), which shall not exceed:

• 12 pages of narrative for short or regular motions, and
• 20 pages of narrative for long motions. In addition, exhibits to each party's affidavit shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages.

[6] Notwithstanding the breach, I considered the entirety of the material filed by both parties. I may revisit the breach of the practice direction in my determination of costs.

[7] At the hearing of the motion, I also granted leave for the parties to file and make submissions on an updated report from K's occupational therapist, Veronika Niemczyk.

Background

[8] The parties speak English, although it is not their first language. The applicant is originally from Mexico, and his first language is Spanish. The respondent is originally from Bulgaria, and her first language is Bulgarian. The couple met in 2016, started cohabiting in the United States in 2019, and were married there on October 1, 2021. They have a daughter, K, born January 16, 2023. Both parties are highly educated, each with a doctorate. The parties accepted employment offers from the University of Toronto and moved from Boston to Toronto in April 2024 to commence employment in May 2024. They are currently employed as professors.

[9] The parties' marital relationship deteriorated after K was born and before they moved to Canada. They saw a marriage counsellor from October 2023 to April 2024 and separated on April 11, 2024.

[10] The parents currently live in separate residences in neighbouring buildings in downtown Toronto.

[11] The parties attended a Case Conference before Vella J. on March 28, 2025, following which the parties reached an interim, without prejudice, agreement providing the applicant father with parenting time effective March 31, 2025, as follows:

Week 1

• Tuesday from 5:00 p.m. to Wednesday at 5:00 p.m.
• Friday at 5:00 p.m. to Saturday at 5:00 p.m.

Week 2

• Tuesday from 5:00 p.m. to Wednesday at 5:00 p.m.
• Saturday from 9:00 a.m. to 7:00 p.m.

All exchanges under this arrangement are to take place at the respondent mother's residence.

[12] The applicant seeks an equal parenting time schedule as follows:

Commencing Immediately:

(i) Week One: Wednesday from pick up from daycare to Friday morning drop-off at daycare; Saturday from 9:00 a.m. to 7:00 p.m.

(ii) Week Two: Monday pick up from daycare to Wednesday morning drop off at daycare, and Saturday at 9:00 a.m. pick up from the Respondent's house to Sunday at 5:00 p.m. with pick up at the Applicant's house.

Commencing in Two Months:

(i) A 2-2-3 schedule:

1. Week One: Wednesday pick up from daycare to Friday drop off at daycare.
2. Week Two: Monday pick up from daycare to Wednesday drop off at daycare, and Friday pick up from daycare to Monday return to daycare.

(ii) Or, in the alternative, a 2-2-5 schedule:

1. Wednesday from pick up from daycare to Friday morning drop off at daycare, and
2. Alternating weekends from Friday pick up from daycare to Monday return to daycare.

[13] The applicant also seeks an order that the parties follow the recommendations of the child's pediatrician, Dr. Krylova, regarding any difficulties the child may encounter with the change in parenting schedule.

Evidence on Motion

[14] On April 4, 2024, roughly a month before their relocation to Toronto, the respondent asked the applicant for a break in their relationship. The applicant moved in next door with a friend but continued to see K every day. On April 11, 2024, the respondent advised the applicant that she wanted to separate. The same day, the respondent provided the applicant with a handwritten note that referenced a temporary parenting plan:

Between 4/11/2024 and 4/18/2024 Benjamin will see K at the house (14 Tufts 1) on Wednesday 4-7 pm and on Sunday 8 am – 8 pm.

[15] In May 2024, once the parties relocated to Toronto, they settled into different residences. The applicant deposed that the respondent unilaterally limited his parenting time to 6 hours per week.

[16] The respondent acknowledges, in her motion materials, that shortly after moving to Toronto, the applicant began demanding equal parenting time. However, her position is that permitting this would have caused even more distress for K, "who was struggling to adapt to all other drastic changes in her life."

[17] Notably, effective July 1, 2024, the respondent agreed to increase the applicant's parenting time, albeit not to the extent requested by the applicant. The applicant's parenting time increased to spending time with K every Tuesday from 5 pm to Wednesday 5 pm, and Saturdays from 9 am to 7 pm.

[18] In or around August 2024, the parties enrolled K in daycare, where, for the first time, she was spoken to in English. The parties disagree on K's progress and development thereafter. The respondent claims that "this new schedule and starting daycare was not well-received by K, who started to exhibit significantly worsening signs of distress." In contrast, the applicant has generally taken a more optimistic view of K's behaviour, health and development.

[19] The parties attended mediation on September 4, 2024, which was ultimately unsuccessful in bridging their differences concerning parenting time. The applicant commenced his application on October 2, 2024.

[20] The period after the parties' move to Canada was characterized by their conflicting opinions about the necessity and degree of medical and professional intervention and support required by K. The respondent mother appears convinced that K is undergoing anxiety, distress, and this is because of maladaptation to several rapid changes. The respondent insisted on "further medical investigation to diagnose the root cause of these concerning symptoms."

[21] Between July 2024 and up to July 2025, the respondent believed that K was consistently "exhibiting increasingly concerning signs of internal distress, emotional dysregulation, sensory seeking behaviour and issues with expressive communication." According to the respondent, her concerns were confirmed when Dr. Krylova diagnosed K with "expressive speech delay" requiring a speech therapy assessment and referral to a speech therapy pathologist.

[22] In October 2024, Dr. Krylova performed an assessment on K that raised concerns for an Autism Spectrum Disorder (ASD) diagnosis, and then referred her to an occupational therapist. The respondent submits that her concerns about K's development were further vindicated by a diagnostic finding in July 2025 that K met the criteria for Level 1 ASD, the mildest form of autism.

[23] The respondent submits that she consistently raised development red flags while the applicant minimized or dismissed them. She deposed that "this is the core reason why I object to the applicant having increased parenting time, let alone equal time, with our daughter until such time that he demonstrates a willingness to better understand and respond to our daughter's needs and concerning signs."

[24] The applicant strongly disputes those parts of the respondent's affidavit that characterize him as a less involved father, both pre- and post-separation. He points out that he took almost 5 months of parental leave when K was born. However, he acknowledges that the parties have different approaches to parenting. Whereas he was more flexible and laid back, the respondent was very cautious and nervous. He submits that he has supported K's involvement with various health professionals and that he has attended all appointments. He points out several areas in which the respondent's concerns about K's mental and physical health were overblown and which did not result in adverse findings. He submits that "it was clear that [the respondent] and I observed K through different lenses, I tended to look at her with optimism seeing opportunities for growth whereas [the respondent] saw deficiencies."

[25] The applicant further submits that even though he does not believe that all of K's professionals are necessary, he has supported their engagement. He has actively participated and contributed to their work with K. He has attended all appointments, all in-clinic sessions, all feedback meetings, and completed the "homework" with K while she was in his care.

[26] The applicant disagrees that K's "expressive speech delay" is as great a concern as the respondent suggests, since the delay is just as much tied to English not being her original language. Overall, the applicant's perspective is that the parties' areas of difference and perspectives about K's health and development are not a reason to deny him expanded and equal parenting time, and there is nothing in the extensive documentation and reports of K's professionals that contradict this.

The "Best Interests of the Child" Test and the "Status Quo"

[27] Both parties cite the legal test on this parenting motion as the "best interests of the child" derived from s. 16(3) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). However, the parties take different approaches to the meaning of "status quo." The applicant submits that the importance of the status quo may be diminished in cases where one party has imposed a new status quo and the other party has not acquiesced: McArthur v. Stickwood, 2023 ONSC 4807, per Carter J., citing L.M.V. v. F.J.D., 2020 ONCJ 239, at para. 31, and Pereira v. Ramos, 2021 ONSC 1737, at para. 38. The applicant submits that the respondent has engaged in "self-help" by improperly extending what was just supposed to be a temporary one-week parenting arrangement, and claiming that it represents the status quo that should not be disturbed pending trial. For the applicant, the actual status quo is not the unequal parenting time plan in place at the time of the motion, but rather the equal arrangement that the parties had before their separation in April 2024, which was just before their move to Canada.

[28] Conversely, the respondent submits that the parties' parenting time arrangement at the time of this motion represents the "status quo" and that the applicant must meet a high standard to vary a parenting arrangement at a temporary motion, including an arrangement consented to on a without prejudice basis at a case conference. The respondent argues that this status quo should be maintained until trial unless there is material evidence that the child's best interests require an immediate change: Shokoufimogiman v. Bozorgi, 2022 ONSC 5057, paras. 32, 36; Dayboll v. Binag, 2022 ONSC 6510, at para. 24; Southorn v. Ree, 2019 ONSC 1298, at paras. 12 and 13.

[29] The respondent adds that the test for varying the status quo at an interim stage becomes even more stringent when dealing with special needs and/or anxious children, and the respondent characterizes K as having this profile: Davis v. Davis, 2016 ONCJ 254. Also see Cibuku v. Cibuku, 2023 ONSC 7128, paras. 17, 29, 31, 32, 41–43.

[30] Section 16(1) of the Divorce Act states that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. Section 16(3) sets out a non-exhaustive list of factors related to the circumstances of the child, which the court must consider in determining the best interests of the child. Pursuant to section 16(6) of the Divorce Act, courts allocating parenting time are required to adhere to the principle that "a child should have as much time with each spouse as is consistent with the best interests of the child". Knapp v. Knapp, 2021 ONSC 305; O'Brien v. Chuluunbaatar, 2021 ONCA 555. There is no presumption of equal time-sharing of children after parents separate.

[31] In Da Silva v. Quevedo, 2025 OSC 968, Pazaratz J. commented on the meaning and use of "status quo":

Although the "status quo" is frequently mentioned as an important consideration in determining – or continuing – parenting arrangements, the term is not specifically mentioned in the legislation. However, section 16(3)(d) of the Divorce Act and section 24(3)(d) of the Children's Law Reform Act both list "the history of care of the child" as a factor in determining best interests. That factor appears to be another way of describing "status quo". Brownson v. Brownson, 2022 ONSC 5882. (para. 27)

[32] In Churchill v. Elliot and Ward, 2024 ONSC 1907, Pazaratz J. also noted that:

The court must be mindful that an interim order can often have long-term implications for the child and the outcome of the litigation. F.B. v. C.H., 2021 ONCJ 275; Coe v. Tope, 2014 ONSC 4002. As a result, the existence of a status quo – and its manner of creation – are often the subject of significant controversy at the motion stage.

a. The status quo may be established by reference to the parents' practice or the child's routine prior to separation; by any consensual arrangement made after separation; or by court order. Brady v. Fitzpatrick, 2022 ONSC 2380; Gray v. Canonico, 2020 ONSC 5885; Falarz v. Gullusci, 2023 ONSC 2644

b. If a motion is brought immediately after separation, the court will need to determine parenting roles and the child's routine while the parties were together, with emphasis on more recent patterns. If a time-sharing arrangement has emerged on a consensual basis since the date of separation – and if it is meeting the child's needs – the court will be reluctant to change an arrangement which the child has become used to. But if only a short amount of time has elapsed between the creation of a new status quo and the hearing of the motion, the court will be more inclined to presume that restoration of a previous successful status quo is appropriate. Kennedy v. Hull, 2005 ONCJ 275; M.H.S. v. M.R., 2021 ONCJ 665.

38 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.

a. 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. Neither parent has the right to suddenly impose major changes in a child's life, or to unilaterally interfere with or impede the other parent's contact or role in the child's life. A parent cannot be permitted to gain a litigation advantage through manipulation of events, or by creating a new arrangement which they may later characterize as the "status quo." 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.

[33] Furthermore, Chappel J.'s analysis in Batsinda v. Batsinda, 2013 ONSC 7869, is particularly apt in determining the actual status quo. She states:

In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin; Kimpton v. Kimpton, 2002 CarswellOnt 5030; Horton v. Marsh, 2008 Carswell NS 371)

Discussion

[34] I find that the evidence in this case indicates that the respondent has unreasonably attempted to create a new status quo by failing to return to the equal parenting time arrangement that the parties enjoyed before separation. I find that on April 11, 2024, the parties agreed to a temporary parenting arrangement that was only to last one week. This is obvious from the one-week period listed on the handwritten note. The respondent does not argue that the parties reached a subsequent agreement reflecting the applicant's reduced parenting time with K. Rather, the respondent acknowledges that, as soon as they moved to Toronto, the applicant requested to return to the schedule of equal parenting time. The respondent's consistent position has been that this would represent too drastic a change for K. The respondent states in her affidavit, "[w]hile I am not opposed to the Applicant having more parenting time with K in the long run, I am opposed to such being increased at present and so abruptly, in the wake of us receiving an ASD diagnosis, and without having any independent professional feedback on how drastic changes may impact K; what her special needs are and how best to meet them, individually and together as co-parents."

[35] I find another indication that the appropriate "status quo" is an equal parenting time arrangement comes from the respondent herself. In her affidavit, she states, "we specifically discussed that [the applicant] will have liberal parenting time, when we resumed 'regular routines' and settled from our move. While we never discussed him seeing K every day, indeed, my intention was always to implement a liberal permanent schedule once K settled into her new life and routine. Unfortunately, I did not anticipate that K will struggle to adapt or that she would start exhibiting such signs of distress, nor did I foresee that she would be diagnosed with ASD."

[36] The parties moved to Canada from the United States in April 2024, roughly 16 months ago. Both parties have full-time jobs. The parties are well settled in their professional lives. However, because the respondent believes that K is struggling, she is not prepared to return to an equal parenting arrangement, which was the pre-separation status quo. I find the respondent's conduct is unreasonable in this regard. She is entitled to have a different view from the applicant of K's developmental progress. Still, her view that K should not spend more time with the applicant is contrary to what the parties themselves agreed to, and is not supported by the third-party medical and professional advice as discussed below. Put differently, I find that moving forward, it is in K's best interests that she have an equal parenting time arrangement with both parents.

[37] I find that the professional reports filed on the motion point to a positive trend in K's health and development, and close attachment to both parents.

[38] In a report prepared by Sara Yellan, a Hanen Certified Speech-Language Pathologist from the More than Words program, dated May 27, 2025, she explained that this was a 12-week program which ran from February 18 to May 27, 2025. The program consisted of a pre-program consultation visit, eight parent group-training sessions and three individual feedback sessions. The applicant and respondent attended all eight group-training sessions and all three individual feedback sessions. The report states that, throughout this 3-month program, K is reportedly communicating more often to share her interests and is beginning to comment, gesture, and imitate during play. She is also now responding to comments made by her communication peers more consistently during play. The report's summary states that K has demonstrated good progress in her social communication skills over the past few months.

[39] In Dr. Krylova's July 11, 2025, report — the one which confirmed the ASD diagnosis — she states that K would benefit from ongoing therapy with a Speech Language Pathologist and Occupational Therapist as long as they are finding that there are ongoing deficits that require attention. In other words, Dr. Krylova left it to these other professionals to determine, on a needs basis, if K needed ongoing professional attention and support. In the same report, Dr. Krylova stated, "[w]e discussed that Dr. Nguyen had made note of some separation anxiety and inattentive traits – this is not to say that [K] has a diagnosis of anxiety or ADHD – rather, something to monitor at this time." Dr. Krylova's assessment concludes with the observation that K meets the diagnostic criteria of ASD and "she continues to make excellent progress in development, including progress with speech, communication and integration into the classroom environment."

[40] In the same July 11 report from Dr. Krylova, she states that "K would greatly benefit from ongoing regular attendance of daycare — not only to promote her social development and peer relationships, but also as a way of experiencing continuity of care with transition between parental homes." Notwithstanding this professional advice, the respondent deposes while acknowledging the positive role that daycare has had in socializing K — that "given [K's] special needs, it is preferable that she is cared for by her immediate family wherever possible." I find this is an example of where the respondent is not reading the professional advice in the best interests of K, but rather from her own. In this instance, the applicant's interpretation of Dr. Krylova's report is more attuned to K's needs.

[41] Another example of the parties having conflicting views is in K's alleged difficulty with transitions. The respondent believes that K continues to have difficulty transitioning from the applicant's care to her own, and she posits this as a reason to deny or delay his request for more parenting time. By contrast, the applicant believes that K's transitions between parents are essentially unproblematic and, in any event, not a legitimate reason to deny him more parenting time. Again, I find that the applicant's interpretation aligns more closely with what the professionals have actually advised. For instance, the respondent points to Dr. Krylova emphasizing that transitions between homes can be tricky, especially for children with anxiety and sensitive temperaments. From there, she interprets the pediatrician's reference to "consistency in routine for the most part" to represent "a clear warning to avoid changes in the foreseeable future and maintain consistency in the existing routine." I disagree that this is the import of Dr. Krylova's report.

[42] Rather, what Dr. Krylova actually said was:

3. We re-iterated that transitions between homes can be tricky for children, especially kids with some anxiety and sensitive temperament – as such, keeping to a similar bedtime routine, having some transition objects (such as stuff/blankie), and similar boundaries /rules in the home would be very helpful. Both parents indicated that they are on board with this – general consistencies in routine for the most part, of course without getting lost in minor details.

[43] I find that there is nothing in the motion material to suggest that transitions between parents are so problematic that this supports the respondent having considerably more parenting time than the applicant. Indeed, it seemed contrary to the respondent's professed concern over transitions that she opposes the applicant's request that transitions occur at the daycare, as this would cut down on the number of transitions experienced by K. I found this another example of where the respondent was either unable or unwilling to disentangle what appeared to be in K's best interest from her own.

[44] The updated OT report is also consistent with a more positive outlook on K's progress. In the updated OT report from Ms. Niemczyk dated July 31, 2025, she traces K's progress throughout 16 occupational therapy sessions. She notes that, since the last OT report dated June 4, 2025, K has engaged in seven additional sessions. The recent sessions show "progress in reduced warm-up time, greater environmental familiarity, and independent requests, with K now entering the gym smiling and making activity requests to OT, occasionally averting her gaze briefly upon initial greeting." The updated report also refers to K's improvement in sustained attention and transitions, as well as improved fine motor tasks and bilateral coordination. While select passages from Ms. Niemczyk's report can be used to support the respondent or applicant's perspective about K's progress or lack thereof, there is nothing in my reading of the report to suggest that this supports K spending disproportionately more time with her mother.

[45] The respondent submits that because the applicant agreed to a certain interim parenting plan at the Case Conference before Justice Vella, that arrangement represents the proper "status quo" which must be maintained pending trial unless the applicant meets the high standard for varying that interim order in the best interests of the child. I disagree and find that this submission flies in the face of the legal meaning of "without prejudice." In Button v. Konieczny, 2012 ONSC 5613, Minnema J. addressed this point as follows:

[16] I have not accepted that the mother's actions or her counsel's were intended to gain a tactical advantage. However, the two cases noted do assist regarding the status quo. Further along these lines the Court in Howard v. Howard, noted that the only status quo that counts is the one that existed prior to the separation. In Shaw v. Shaw, 2008 ONCJ 130, the fact that the first order was granted on a without prejudice basis meant that it established no precedent as to custody and access between the parties.

[17] "Without prejudice" as used in the context of family law proceedings is generally understood to mean 'without any loss to a party's legal rights'. As such the status quo here must at least be the situation as it existed prior to the first order being made. In line with the cases cited I find that the actual status quo in this case goes back further, to the situation as it existed prior to the father being asked by the police to leave the matrimonial home.

[46] I also find the respondent's reliance on certain caselaw misplaced. In Shokoufimogiman, the parents were in a very turbulent and allegedly violent relationship, unlike the relationship between the parties here. Nevertheless, Kraft J. endorsed a parenting schedule based on the Association of Family and Conciliation Courts — Ontario plan that would directly undermine the respondent mother's position here. In Dayboll, both parties brought cross-motions for parenting time. While not making any final determination, Pazaratz J. found the mother's allegations of family violence by the father to be credible and alarming. The court discouraged self-help tactics by either party. Finally, in Southorn, McDermot J.'s comments about not disturbing the status quo and not placing children in a shared parenting arrangement were made where the parties' separation was marked by severe conflict, the Office of the Children's Lawyer was involved, and where the father rested his case on the views and preferences of very young children. None of those factors are present here.

Conclusion

[47] I have considered the factors under section 16(3) of the Divorce Act in arriving at my conclusion that K's best interests currently are served by an immediate expansion of the applicant's parenting time, moving quickly to an equal parenting arrangement. Briefly, I find that K has a close and loving relationship with both her parents. Although the parties are not aligned on the range and degree of professional support necessary for K, she would benefit from greater time with the applicant, as he is promoting a more "take it as it comes" flexible approach to K's health and development needs that seems better aligned with what K's professionals are recommending. By contrast, I find that the respondent's views are too negative, dogmatic and extreme. I find the actual status quo, or "history of the child," is also consistent with the applicant's motion request and the respondent's original commitment post-separation. Further, although this was not a prominent feature of the motion, given that both parents come from different linguistic and cultural backgrounds, I find it is in K's best interests that she spends equal time with her parents in these pre-school years.

[48] As a final comment, I was concerned with the respondent's suggestion that "one of the central reasons for [the applicant's] motion and the applicant's claim to equal parenting is his desire to pay no child support." On the materials before me, I found no evidence of such.

[49] An order shall be made allowing the applicant's father's motion.

[50] If counsel are unable to resolve the issue of costs, they shall submit costs submissions to me by August 31, 2025, which shall be no longer than three double-spaced pages excluding attachments such as Bills of Costs. The submissions shall be sent to my judicial assistant via email at Theresa.Finelli@ontario.ca.

Pinto J.

Released: August 22, 2025