Reasons for Judgment

Court File No.: FS-16-408402
Date: 2025-01-31
Ontario Superior Court of Justice
Between:
Yevgen Mokhov, Applicant
– and –
Nataliya Ratayeva, Respondent

Applicant Counsel: Carolina Paterson
Respondent: Self-Represented
Heard: May 27, 28, 29, 30, 31, and June 26, 2024
Justice: J.S. Shin Doi

I. Overview

[1] The Applicant Yevgen Mokhov (the “Father”) and the Respondent Nataliya Ratayeva (the “Mother”) started living together in October 2014, were married on March 7, 2015, and separated on November 22, 2015. The parties have one child who was born on August 21, 2015 and is now 9 years old (the “Child”). Since 2019, the parties have followed an interim week about parenting schedule for the Child. Since 2018, the parties have exercised parallel decision-making.

[2] The Father seeks primary residence of the Child and for the Child to live secondarily with the Mother on Wednesday evenings and alternate weekends. The Father is asking for a week about equal time-sharing schedule. The Mother opposes the Father’s request and seeks a 2-2-5-5 schedule as recommended by the Office of the Children’s Lawyer (“OCL”) or a schedule that gives the Mother at least 50% of parenting time with the Child. I order on a final basis that the parenting time be on a 2-2-5-5 schedule during the school year and week about schedule in the summer because it is in the best interests of the Child.

[3] The Father also seeks an order that after consultation with the Mother, the Father has the authority to make final decisions affecting the Child regarding her health, education, religion, and significant extracurricular activities. The Mother seeks joint decision-making responsibility except for religion for which the Father shall have final decision-making authority and for education for which the Mother shall have final decision-making authority. During the trial, the Mother agreed to many aspects of the decision-making regime proposed by the Father. I grant the order requested by the Father to have final decision-making responsibility over health, religion, and significant extracurricular activities, after consultation and input from the Mother. I order that the Mother continue to have final decision-making responsibility over education, after consultation and input from the Father.

II. Background Facts

[4] The background facts and procedural history were set out in detail by Himel J. in Mokhov v. Ratayeva, 2021 ONSC 5454.

[5] The Father commenced proceedings in 2016 alleging that the Mother was withholding access. The parties were ordered to attend a case conference and then the court requested that the Office of the Children’s Lawyer conduct an investigation.

[6] The parties were divorced on February 22, 2018.

[7] Many issues have been resolved. Equalization of net family property was resolved on a final basis by consent order dated September 21, 2018. The court also ordered on consent interim joint custody of the Child to her parents and divided decision-making regarding the child’s health and education. The court order dated September 21, 2018 provides that the parties shall consult on all major decisions affecting the child, including education, religion and non-emergency health care. Paragraph 9 of the order states that “After consultation, if the parties cannot reach a final decision through mutual agreement on the issues of education (up to and including grade 8), the [Mother] shall have the final say and will provide her decision in writing to the [Father].”

[8] Parenting time was resolved on an interim basis on May 29, 2019, with shared residential parenting time on a week about schedule.

[9] The choice of school for the Child was also resolved by court order dated August 10, 2021.

[10] On December 20, 2022, the court dismissed the Father’s motion seeking to vary the equal time sharing parenting schedule and to provide the Father with primary residence of the Child.

[11] Child support and section 7 expenses were resolved on a final basis by court order dated April 19, 2024.

[12] The only remaining issues between the parties are parenting time and decision-making responsibility on a final basis. The court ordered the OCL to update its investigation on the family on December 21, 2022. On June 16, 2023, the OCL recommended transitioning the parenting schedule during the school year to a 2-2-5-5 parenting schedule but maintain a week about parenting schedule in the summer months. Laura Barlas, Clinician, in the OCL recommends a “continuation of a shared parenting plan”. The Child would live Monday/Tuesday with one parent, Wednesday/Thursday with the other parent, and alternate weekends with each parent. Ms. Barlas recommends that the parties keep the week about schedule in the summer.

[13] The OCL also recommends that for day-to-day decisions, the parent caring for the Child should make the decision. For major decisions, the OCL recommends that the Father have final decision making authority if the parties were unable to reach a mutual decision.

[14] The Father alleges that the Mother has repeatedly breached court orders, substantially interfered with the Father’s parenting time, overheld the Child, travelled with the Child without authorization, and not taken the Child to school.

The Father lives in Mississauga and the Mother lives in North York. The Child attends school in North York. The Father has re-partnered and the Child now has a step-mother. The Mother lives with her father, the paternal grandfather of the Child.

III. Law

Parenting Time

[15] Parenting time is defined in the Divorce Act, s. 2(1) as follows:

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.

[16] The Divorce Act, s.16(1) provides that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Subsection 16(2) states that when considering the factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Subsection 16(3) sets out the factors to be considered as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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.

[17] The past conduct of a parent is not to be considered unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order (s.16(5)).

[18] The Divorce Act, s. 16(6) stipulates that parenting time should be consistent with the best interests of a child:

Parenting time consistent with best interests of child

(6) 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.

[19] The Children’s Law Reform Act, s. 24 requires the court to consider the best interests of the child in making a parenting order and the factors related to the circumstances of the child.

Decision-making Responsibility

[20] Decision-making responsibility with respect to a child is defined in the Divorce Act, s. 2(1):

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities;

[21] Subsection 16.1(1) permits a court to make an order for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by either or both spouses; or a person who is a parent of the child who stands in the place of a parent.

[22] Either or both spouses may be allocated decision-making responsibility pursuant to s. 16.3:

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons

[23] Day-to-day decisions are allocated to the parent who has parenting time unless the court orders otherwise pursuant to s.16.2(2):

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

IV. Analysis

What parenting arrangement is in the best interests of the Child?

[24] The 2-2-5-5 parenting schedule in the school year and week about schedule in the summer are in the best interests of the Child. I have set out below the analysis of each of the factors that the court is required to consider in determining the best interests of the Child.

Best Interests Factors: The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[25] The Child is 9 years old which is still young. The Child needs stability and time with both parents in the opinion of Ms. Barlas. The 2-2-5-5 schedule and week about summer schedule sought by the Mother and recommended by the OCL provide the Child with equal time with both parents. The schedules also provide stability to the Child who currently sees each of her parents 50% of the time.

[26] Ms. Barlas observed that the Child appears to be struggling, emotionally, with the alternate week about schedule. Ms. Barlas states that the Child is expressing that seven days is too long to be away from her mother, in particular. Both parents acknowledge that the Child struggles to adjust after a week apart.

[27] The paternal grandfather, who was a credible witness, testified that while the Child is able to live in two separate homes, he is concerned that any change in the current schedule would be damaging to the Child including emotionally damaging. The paternal grandfather states that he observed when the Child is required to transfer to another house,she knows that she is supposed to change houses and she has an internal “switch” that goes on. The paternal grandfather, however, worries that a transfer every two days would not be very good for the Child. The parenting schedule recommended by the OCL and sought by the Mother includes five days with one parent and another five days with the other parent so the Child would not be continually changing residences every two days. As the paternal grandfather has observed, the Child is accustomed to changing residences.

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

[28] It is clear in the evidence that the Child has a strong relationship with the Mother, the Father, the paternal grandfather, and the step-mother. The Father states that he knows that the Mother loves the Child and that he also has the same unequivocal love and support from the Child.

[29] Ms. Barlas observes that both parents love and adore the Child and want to be actively involved in her day-to-day life. Ms. Barlas observed that the Child is very connected with both parents and enjoys spending time in both homes. Ms. Barlas states that the Child has a close relationship with her mother, father, and step-mother and those relationships should continue to be developed, despite the conflict between the adults.

Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[30] The parties agree in the Statement of Agreed Facts that the Mother is supportive of the Child’s relationship with the Father and the paternal family. The Father states he knows that the Child is bonded to the Mother and it is important that the Mother be involved in the Child’s life. The Father further states that while he is afraid of the Mother and the harm that she has and continues to cause to his relationship with the Child, he supports the Child’s relationship with the Mother.

[31] Ms. Barlas notes that the Mother has failed to value the Child’s relationship with the Father. The Father states that there is an eight-year long record of the Mother interfering and marginalizing the Child’s time with the Father. There is evidence that the Mother has withheld and interfered with the Father’s access to the Child. The court has expressed concern about the Mother’s refusal to support the Father’s relationship with the Child and the continuation of the conflict between the parties has had and will continue to have on the Child’s well-being. The Father argues that the record demonstrates that “the Mother has made life as difficult as possible with respect to coparenting of the Child.”

[32] On cross-examination, the Mother explains that everyone makes mistakes and the Father has proven that he is capable of being a father.

The history of care of the Child

[33] The Mother was the primary caregiver of the Child from her birth until April 2019 when the court ordered equal time sharing. The Child is on a week about shared residential parenting schedule.

[34] The Father states that he has “lost thousands of hours of parenting time” over the years which he will never recover. The Father has had to bring motions to secure make-up parenting time. The Mother has removed the Child from school on the Father’s parenting days without notice to the Father.

[35] The Mother has travelled with the Child without the Father’s prior consent and knowledge in 2015 and 2022. The Mother has also travelled without the Child for one month in the summer of 2016.

[36] The Father states that his family has played an integral role in helping to raise the Child from her birth and the Child has excellent grandparents.

The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[37] There is evidence that the Child is deeply concerned about leaving her mother. She explained to Ms. Barlas that she worried about her mother when she was not with her. She shared with Ms. Barlas that spending more time with her mother would be a 6, and more time with her father would be a 4. Ms. Barlas explained to the Child that it was not her job to take care of the Mother and the Father and then the Child said that she wanted to spend time with both the Mother and the Father. Ms. Barlas thought the Child is emotionally perceptive and very aware and able to express her emotions and how she is feeling.

[38] Ms. Barlas reports that the Child spoke positively of the Mother. The Child described her as kind, giving her everything she wanted, and taking her to gymnastics, Kumon, and Russian classes. The Child also spoke positively of the Father. She described him as kind, liked that he told her she was pretty, and made her tea when she was sick. Ms. Barlas further reports that the Child stated that she wished the Father didn’t get upset when she didn’t want to watch a “kids show” because she is now older. The Child also shared that the Father hits her – she could only recall one incident when they went camping and he hit her on the mouth.

[39] The Child also spoke positively of her step-mother, describing her as funny and that they liked to draw together. The Child stated that her step-mother answered any questions she had. Ms. Barlas stated that the Child loved her step-mother and they had a close relationship.

[40] The Child expressed that she was confused by the conflict between her parents. The Child also expressed that the alternate week schedule was too long and that she wished she could talk on the phone with her mother when she was with her father.

[41] I accept the Child’s views and preferences as expressed to Ms. Barlas. I find that a decrease in the parenting time with the Mother would not be consistent with the Child’s views and preferences.

The Child’s cultural, linguistic, religious and spiritual upbringing and heritage

[42] There is consistency in the Child’s cultural, linguistic, religious and spiritual upbringing and heritage. The Child speaks English and Russian. The Child’s primary language at home is Russian and so, the Child is an English as a Second Language student. The Mother is fluent in English and Russian.

[43] The Child has a Ukrainian heritage. Both parents were born in the Ukraine.

[44] The Child has been baptized Christian Orthodox and the parents agree that the Child will continue to be raised in the Christian Orthodox religion and traditions.

Any plans for the Child’s care

[45] The Father lives in a one bedroom, plus den condo in Mississauga. The Child’s bedroom is set up in the den. The Child’s school is approximately a 45 minute drive from the Father’s home. The Father or the step-mother drive the Child to and from school during the Father’s parenting time. Occasionally, the paternal grandfather helps out with the driving as well.

[46] The Mother lives in a three bedroom, main floor apartment with her father and the Child. The Child has her own bedroom. The Mother drives the Child to and from school and sometimes relies on her father or mother to help care for the Child after school if the Mother is working late. The school is a less than a five minute drive from their home.

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

[47] In my view, both the Father and the Mother have demonstrated the ability and willingness to care for and meet the needs of the Child.

[48] The Father took parenting classes and anger management courses and states that he is willing to do what it takes to be a capable parent who is willing to learn and improve.

[49] The Father criticizes the Mother’s care of the Child. He states that the Mother will continue to keep the Child out of school or take her to school late. There is evidence that the Child is absent or late mostly during the Mother’s parenting time. I accept the Mother’s explanations that the Child was kept out of school when she was ill or for medical appointments or for medical reasons. The Mother alleges the Father takes the Child to school when she is ill and the Child is ill when she is returned to the Mother. I accept the Mother’s evidence about the Child’s illness and medical reasons for the absences. I also accept that the Mother did not take the Child to daycare because of public health guidelines. I further accept the Mother’s evidence in school and tutoring report cards that the Child is currently doing well at school despite being repeatedly late and absent.

[50] I note that the paternal grandfather admits that he is partially responsible for the Child being late to school. I conclude that the lateness of the Child is not completely attributable to the Mother.

[51] The Father complains that the Mother has taken the Child outside the country without his consent or regard for his parenting time and contrary to court order. The Mother admits that she has travelled with the Child during school time and without the Father’s consent. The Mother admits that it was wrong for her to go on unauthorized travel with the Child and that she is sorry. The Mother explains that when she travelled with the Child to the Dominican Republic in 2022, she had to extend her travel due to testing positive for COVID-19. I find that there is supporting evidence for the Mother extending her travel due to being ill with COVID-19.

[52] Ms. Barlas notes that the travel incident in November 2022 appears to have had a significant impact on the Child as she became afraid of the Father. Ms. Barlas also notes that according to the child’s grade 2 teacher, the Child displayed some emotional difficulties in the Fall of 2022. The Mother suggests that the emotional difficulties are due to the Father hitting the Child during this period which the Child reported to her grade 2 teacher. Ms. Barlas reports that the concerns about the Child’s emotional difficulties have subsided.

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

[53] The ability and willingness of each of the Mother and the Father to communicate and cooperate are inconsistent and challenging to them. The parties currently use Our Family Wizard to communicate with one another as well as texts. The Father reported that he has been using the calendar while the Mother reports that she has not. Ms. Barlas observes that phone calls to the other parent do not appear to be occurring consistently in either party’s home. The Mother complains that she makes numerous efforts to consult and get input from the Father but her emails and Our Family Wizard messages have not been replied to or answered or any medical issues have been ignored. There is evidence that the Mother misspells the Father’s name in the messages. The Father states that the Mother fails to disclose important information to him such as the Child’s whereabouts at scheduled parenting time transfers. The Mother has claimed that she has missed messages about parenting transfers because she was sleeping or her phone was on silent. There is evidence that the Mother insults and denigrates the Father by text message and during phone calls.

Any family violence and its impact

[54] There is no concern about family violence toward the Child since separation. During the marriage, there were allegations of assault by the Fatheragainst the Mother but charges were withdrawn. There is also a historical allegation by the Child that the Father hit her. The allegation was not verified by the Children’s Aid Society in its investigation but the Children’s Aid Society did express concerns about the Child being caught in the middle of the conflict. The evidence on the record confirms that the Child has loving parents and extended family.

Best Interests of the Child

[55] Based on the consideration of these factors and all the circumstance of the Child, I find it is in the best interests of the Child to follow a 2-2-5-5 schedule and week about summer schedule as sought by the Mother and recommended by the OCL. Also as recommended by the OCL, the Child shall have a phone call of up to 15 minutes with the other parent during the five-day period. Ms. Barlas notes that phone calls do not appear to be occurring consistently in either party’s home. She recommends that the parties structure the phone calls with specific days and times. In particular, she recommends one phone call in the middle of the five days on a 2-2-5-5 schedule. I agree that a phone call would help the Child maintain contact with the other parent. I am mindful of the Father’s concern that a phone call with the Mother during his parenting time may impact the Child emotionally. Accordingly, I order that each parent encourage the Child’s parenting time with the other parent during those calls. I accept the Father’s request and order the Father’s proposed structure of the phone call. I agree with the Father that the purpose of the call is to check in with the Child, to remind her that the Child is loved, and to wish her a nice evening. I agree with the Father that the parties shall exchange a brief, amicable greeting before passing the telephone to the Child if the parties find themselves in communication. I also agree with the Father that the parties shall not use their calls as a way to seek information as it pertains to the other parent or the other parent’s parenting practices.

[56] The Child is still young and needs time with both parents as indicated in Ms. Barlas’ report. The 2-2-5-5 schedule and week about summer schedule will provide the Child with equal time with both parents and also provide stability to the Child who currently sees each of her parents 50% of the time. The Child has a positive relationship with both parents as well as the paternal grandfather and the step-mother as indicated by the evidence. The history of care of the Child is equal time with each parent. The Child has expressed her views to Ms. Barlas that she is concerned about leaving the Mother for periods of time. Spending less time with the Mother would not be consistent with the Child’s views and preferences. The ability and willingness of each person to communicate and co-operate are still inconsistent and challenging particularly for the Mother. However, co-parenting has been successful as evidenced by the parents’ support of the Child’s extra-curricular activities and homework. There are no concerns of family violence towards the Child since the separation.

[57] The parties agree on many of the parenting time related issues. The parties agree that the Father shall be responsible for transporting the Child to/from school during his parenting time, and that the Mother shall be responsible for transporting the Child to/from school during her parenting time.

What decision-making regime is in the best interests of the Child?

[58] The Father is asking for an order that after consultation with the Mother, that he be provided with the authority to make final decisions affecting the Child in regards to her health, education, religion, and significant extracurricular activities. I grant the Father’s order for final decision-making authority over major decisions affecting the Child, except for education which remains with the Mother. The Father shall consult with the Mother and the Mother may provide her input. I grant the Mother final decision-making authority over education after consultation and input from the Father.

[59] The Father proposes a decision-making regime and the Mother agrees with many aspects of the decision-making regime proposed by the Father, as follows.

a. The Mother agrees that the Child’s family doctor shall be Dr. Bondareve; and the Child’s ophthalmologist shall be Dr. Reginald. (The Mother requests confirmation by the Father about the current dentist for the Child and the dentist’s address. The Father confirms that the dentist is the same, Dr. Charbatzadeh.)

b. The Mother agrees that the parties shall continue to follow the recommendations of Dr. Reginald, specifically with respect to the Child wearing her eyeglasses as much as possible and any future treatment recommendation.

c. The Mother agrees that the Child has been baptized Christian Orthodox and will continue to be raised in the Christian Orthodox religion and traditions. The Mother requests that this be qualified until the Child is age 16.

d. The Mother agrees that the parties shall enroll the Child in their own extra-curricular activities without the need to consult one another but the Mother requests that each party informs the other party. The Mother agrees that neither party shall schedule extra-curricular activities during the time the Child is living with or in the care of the other party, unless otherwise agreed in advance, in writing. The other party shall not unreasonably withhold their agreement.

e. The Mother proposes joint decision-making responsibility including decisions about the Child’s health, including major non-emergency health care, as well as emergency health care, education, and significant extra-curricular activities. The Mother suggests a communication protocol that includes timing to exercise joint decision-making.

f. The Mother agrees that the party with whom the Child is scheduled to be according to the parenting time schedule will make the day-to-day decisions affecting the Child during that time.

g. The Mother agrees to the Father’s lawyer instead of the Father holding all of the Child’s important documents including but not limited to the Child’s passport.

h. The Mother suggests that either party may apply for or renew any important documents of the Child.

i. The Mother agrees that all parenting exchanges shall occur at the Child’s school. On non-school days, the Mother requests that parenting exchanges take place in close proximity to the home where she is departing.

j. The Mother agrees that neither party shall be permitted to remove the Child from school on the other party’s parenting day, including for lunch. On Friday exchange days the first half of the day shall be deemed to apply to the parent who is ending their parenting time, and the second half of the day shall be deemed to apply to the parent who is commencing their parenting time. The Mother requests that the exchange occur at 7 pm if it is a work day. The Mother also requests that she be able to provide the Child lunch if the Child has forgotten her lunch on the Father’s parenting day.

k. The Mother agrees that each of the parties may travel with the Child once in the fall school session for a maximum of five school days and once in the spring school session for a maximum of five school days for a total of 10 school days. The Mother seeks the right to care for the Child if the Father is travelling outside the country.

[60] The main issue of contention is the Child’s education. The Father is concerned that the Mother has not taken the Child’s education seriously because of the number of late attendances, absences, and removal of the Child from school for vacation. As discussed above, the Mother has explained the late attendances, absences due to illness, and the fact that there were extenuating circumstances. The Mother now understands that the Child should not be removed from school for travel reasons and agrees to the travel condition in the decision-making regime proposed by the Father.

[61] The Mother states that she still maintains primary responsibility for the Child’s education, health and activities. The Mother states that she has attended all her parent-teacher interviews. The Mother alleges that the Father did not used to attend, including the November 17, 2022 parent-teacher interview. When the Mother raised this in her affidavit of December 2022, the Father began attending after that point. The Mother has proven her commitment to the Child’s education.

[62] The Mother has a roadmap for the Child’s education. The Mother states that she wishes to register the child in a cyber arts program after completing grade 5. I agree with the Father that the cyber arts program is not a specific issue in this trial. I am mindful that the Child is still young and that the education roadmap should have the input of the Father.

[63] I note that the Father argues that it is incorrect that the Child would be required to change schools if she resides primarily with the Father and neither party is seeking a change of school. For the Child’s stability, it is important that the Child remain at her current school. Ms. Barlas specifically states it is recommended that the Child continue in her school until she graduates Grade 5 because the Child has had a lot of turmoil in her life and her school is her place of safety and stability. Both parties have clarified that it is their intention to keep the Child enrolled in her current school. The parties agree and I do so order that the Child shall remain in her current school until she graduates Grade 5 in June 2026. As she completes elementary school, the parties shall consult with each other about which school the Child should attend in her best interests. If the parties are unable to reach an agreement, the Mother shall make a final decision, taking into account input from the Father, the Child’s views and preferences, opinions of her teachers, and any consultation with experts.

[64] In regard to decision-making responsibility for the Child’s health, the parties make allegations about the other’s ability to exercise health decisions and manage the Child’s health. For example, the Mother claims that the Father failed to administer a course of antibiotics to the Child. However, the Father stated that the Child had completed the full course of antibiotics before he had taken her to the hospital to address the antibiotic rash. There are also allegations about the Child’s need for braces but both parties agree that the Child does not require braces at this time. In my view, both the Mother and the Father have made decisions about health care for the Child and managed the Child’s health in her best interests.

[65] However, I agree with Ms. Barlas that joint decision-making over health and other major decisions is not workable in this case due to the high level of conflict, litigation history, and communication challenges between the parties. Ms. Barlas recommends that the Father have the final decision making authority, and for the day to day decisions, the parent who is caring for the Child should make the decision. I agree with Ms. Barlas that the Father should have final decision-making authority over health, religion, and extra-curricular activities, with the consultation and input of the Mother. The Mother agrees that the Father should have final decision-making over religion. I also agree that for the day to day decisions, the parent who is caring for the Child should make the decision.

[66] In my view, the Mother should retain the final decision-making responsibility over education, with the consultation and input of the Father, because of her proven commitment to the Child’s education in the best interests of the Child. “The court has wide discretion to craft a tailor-made decision-making responsibility framework that supports and promotes the best interests of the Child before the court, taking into consideration the unique facts of each case” (Predotka v. Dudek, 2023 ONSC 7025).

[67] I am mindful that the Father states that there is a history of the Mother not demonstrating an ability to put the Child’s interests ahead of her own on any occasion. The Mother makes the same allegation about the Father. The Father points out that the high conflict is precipitated by the Mother and argues that the Mother is driving the conflict. The Father further argues that the parties cannot communicate between themselves and relies on caselaw that where parties cannot communicate other than in a toxic manner, joint custody is generally not appropriate (Polak v. Polak, 2013 ONSC 4670; Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.)). However, many aspects of the decision-making responsibility have now been resolved during the trial and many issues in the dispute have been resolved. There is now more agreement than there is disagreement between the parties which should lessen the conflict and the frequency of communication that is necessary.

[68] In addition, a communication protocol will assist the parties. The Father requests an order that the Mother only communicate with him through Our Family Wizard, save and except for in an emergency. The Father also asks for an order to require the Mother to communicate with him in English in order to stop her from resorting to insults or inappropriate conversation. I grant the Father’s requests and make those orders to improve the communication between the parties.

V. Costs

[69] The parties may make submissions on costs of up to 5 pages, double-spaced, within 14 days if they are unable to agree on costs.

[70] I agree with the Father that the appeal period for the past costs orders made against the Mother has passed and the Mother shall pay outstanding costs, if any, to the Father.

Justice J.S. Shin Doi
Released: January 31, 2025