German v. Alhaj, 2025 ONSC 882
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michelle German, Applicant
AND:
Mo Farida Alhaj, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Kateryna Yanovsky, for the Applicant
Shilpa Mehta, for the Respondent
HEARD: February 4, 2025
ENDORSEMENT
Nature of the Motion
1This is the respondent father’s motion to vary an interim parenting order of Schabas, J., dated August 9, 2024 (“Schabas Order”) so that he has increased parenting time with the parties’ son, O., who is almost age 3. Pursuant to the Schabas Order, the child has parenting time with the father on Wednesdays, after daycare to Thursday mornings, and alternate weekends from Friday, after daycare to Monday mornings – 5 overnights out of 14 days. The father seeks to increase his parenting time, pursuant to a step-up gradual parenting plan, such that within two months, O., will have equal parenting time with him. following either a 2-2-3 or a 2-2-5 parenting schedule.
2The mother does not believe it is in O.’s best interests to increase his parenting time with the father. She asks that the father’s motion be dismissed and that the current parenting schedule remain in place. She is agreeable to moving the Wednesday overnights to Monday overnights and to changing the Wednesday overnights to Wednesday dinners.
Issues to be Decided
3The issues for me to decide are:
a. Whether the father has to establish a material change in circumstances to seek a change to the Schabas Order?
b. If the answer to a. is no, is it in O.’s best interests to have increased parenting time with the father?
Parties’ Positions
4The mother argues that the father has not met his onus of establishing that there has been a material change in circumstances since the Schabas Order was made. She submits that neither O.’s needs nor the father’s ability to meet O.’s needs have changed since August 8, 2024. Rather, the father simply wants to spend more time with O. and is focused on his right to have “equal” parenting time with O., without regard for O.’s needs and best interests. Further, the father’s proposed parenting schedule which requires a step-up schedule will require O. to adjust to three separate parenting schedule changes over the next three months, which will result in O. having to undergo numerous unnecessary transitions.
5The father argues that he does not need to meet the threshold of a material change in circumstances to seek increased parenting time because the language in the Schabas Order allows the parenting schedule to be reviewed. The father submits that it is in O.’s best interests to have increased parenting time with him.
Brief Background
6The parties were married on September 21, 2021. They separated two years later on September 29, 2023. They have one child of their marriage, O., who is almost 3 years of age.
7At the time of separation, the mother left the parties’ matrimonial home with O. out of fear resulting from what she describes to be a marriage plagued with family violence perpetrated against her by the husband. The father denies the family violence. He does acknowledge that he had a severe emotional reaction to the mother leaving the home with O. and that the separation was sudden and traumatic for him.
8The father continues to reside in the matrimonial home. The mother and O. reside in a new home in the beaches neighbourhood in Toronto. O. has attended the same daycare since he has been 1 year of age.
9Given the trauma he experienced, the father sought support for his mental health at St. Michael’s Hospital and voluntarily enrolled in an anger management program. He also shared his initial mental health assessment with the mother and her family. He submits that the mother used the mental health assessment against him to “suggest that [he] was an unfit parent.” This is entirely denied by the mother. The mother submits that she raised the father’s mental health concerns out of her concern for the child’s well being.
10Five months after separation, in February 2024, the father was charged with criminal harassment arising from communications from him to the mother. In his affidavit, the father admits that he allowed frustration and anger to get the better of him and he engaged in behaviour of which he is not proud. As a result of the charges, the father cannot have any direct or indirect contact with the mother, except through an agreed upon person to arrange for parenting time. Further, the father cannot come within 200 metres of the mother’s place of work or home, or anywhere she is.
11From the date of separation until April 2024, the parties arranged parenting time between them but due to unilateral actions on the part of the father which were disruptive to the child and mother, the mother brought a motion seeking primary residence of O. and a parenting schedule where O. would have parenting time with the father on alternate weekends from Friday, after day care to Monday morning. The father sought equal parenting time. That motion was returnable on August 6, 2024.
12On August 6, 2024, Schabas, J. made a temporary parenting order (“Schabas Order”) granting primary residence of O. to the mother and ordering the father to have parenting time on Wednesdays, from after day care at 4:00 p.m. to Thursday morning, drop off at daycare and alternate weekends from Friday, after daycare to Monday morning, drop off at daycare. This schedule results in O. residing with the father on 5 overnights out of 14 days. Paragraph 7 of this temporary parenting order specifically states:
“The above is ordered on an interim and without prejudice basis, which shall be reviewed and revisited in a few months to assess whether the parenting time for the Respondent can be expanded.”
13In addition to setting out parenting time, the Schabas Order requires that all communications between the parties take place through counsel, and that on an interim without prejudice basis, the father is to pay child support to the mother in the sum of $745 a month, based on his projected income of $80,000 a year. The parties are each to pay $400 a month toward O.’s daycare fees. A case conference was scheduled on December 20, 2024, at which the issues of the parenting schedule and the child support including the proportionate sharing of O.’’s s.7 expenses were to be addressed.
14The Endorsement of Schabas, J., dated August 6, 2024, states at para. 5
“I am satisfied that since the separation, the Applicant has been the primary caregiver for the children, who has spent more than 75% of nights with her between September 29, 2023 and April 21, 2024.”
15The Endorsement goes on to note, that while the mother’s parenting time with O. was reduced after April 21, 2024, that was “not on a cooperative basis and rather, was the result of the father acting unilaterally and uncooperatively in not following or respecting a schedule for parenting time since April 2024.”
16Schabas, J. made findings in the Endorsement that the father had engaged in disruptive, unilateral conduct as follows:
“This has included unplanned and unannounced pick-ups from daycare, dictating changes to the schedule with little or no notice, not returning the child to the Applicant when planned, and not showing up to pick up the child when planned. There is evidence that the Respondent has made excuses for failing to pick up the child which are untrue.”
17Paragraph 11 of the Endorsement states, among other things, that it was his view that the mother had established that she should continue to be the primary caregiver for the time being. Further findings regarding the father’s “troubling”, “erratic”, and “coercive and controlling behaviour” were made by Schabas, J. as follows:
“The child needs stability and has a history of being predominantly in the care of the Applicant. The respondent’s conduct raises concerns about his ability to responsible, safely, and cooperatively co-parent the child on an equal basis. There is evidence of a pattern of coercive and controlling behaviour by the Respondent, as well as troubling behaviour that has risked contact with the Applicant despite a court order arising from the criminal harassment charge. The erratic behaviour of the Respondent is also a concern when the child is in his care, as it is relevant to the child’s need for stability.”
[Emphasis added]
18On December 20, 2024, a case conference was held and the parenting schedule was discussed. The parties did not reach an agreement about a parenting schedule which resulted in increased parenting time for the father. According to the mother, the father would not agree to any change in the parenting schedule that did not provide him with equal parenting time.
19As a result this motion was brought by the father.
Issue One: Does the father have to establish that there is a material change in circumstances to change the Schabas Order in terms of parenting time?
20I find that the father does not have to meet the onus of establishing a material change in circumstances to change the Schabas Order because the language of the order itself contemplates a review of the parenting time in December 2024.
21The court did assess what was in O.’s best interests at the time it made the temporary without prejudice parenting order and determined that it was in the child’s best interests for the court to assess and review the schedule four months later.
22However, a review of the parenting time does not mean that the father’s parenting time automatically increases. Rather, it means that the court is meant to assess whether it is in O.’s best interests to have increased parenting time with the father.
Issue Two: If the answer to issue one is no, is it in O.’s best interests to have increased parenting time with the father?
23Given that the parties are married, the applicable statute for parenting is the Divorce Act, R.S.C. 1985. c.3 (2nd Supp.).
24In making a parenting order the only consideration for the court is the best interests of the child: s.16(1). When considering the best interests factors, the court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s.16(2).
25The best interests factors are set out in s.16(3) and include the following:
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.
26In terms of family violence, the court is also required to consider the following:
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.
27There is no presumption of equal parenting-time in the law. Rather, in allocating parenting time, the court is to give effect to the principle that a child should have as much time with each spouse as consistent with the best interests of the child: s.16(6).
28When the Schabas Order was made, the court considered the best interests factors and determined that a parenting schedule which afforded the father parenting time of 5 overnights out of 14 days was in O.’s best interests. In coming to this parenting schedule, the court considered the fact that the mother had been O.’s primary parent and that given his age and stage of development, the mother was better suited to provide him with stability and predictability by continuing to be his primary parent. Having made that determination, the court recognized O.’s cultural, linguistic, spiritual upbringing and heritage and the ability and willingness of the father to care for and meet O.’s needs. As a result, significant parenting time was afforded to the father.
29At the same time, the court balanced the family violence allegations, the criminal charges pending against the father, its finding that the father had engaged in patterns of coercive and controlling behaviours, the fact that the father had engaged in self-help, uncooperative and erratic behaviours, the risk of any emotional or psychological harm to O., and the mother’s fear for her own safety, as required by s.16(4), in reaching the parenting schedule set out in the Schabas Order.
30As is the case in many family law matters, where there is a young child, under the age of 3, parenting schedules are reviewed to enable a reassessment of the child’s circumstances to address O.’s behaviour adjustments. While the father has taken the purpose of this review to be solely about addressing his desire or “right” to seek more parenting time with O., I am persuaded that the purpose of such a review is about having the court consider the child’s behavioural adjustments to the parenting schedule in the temporary without prejudice order and to assess co-parental relationship considerations.
31The kind of co-parenting relationship considerations which are relevant in my view are whether, since the Schabas Order was made, the parties were
a. able to communicate civilly about and plan for O. together;
b. manage any conflicts that arose and pursuing interventions together;
c. being consistent yet responsive in terms of the parenting schedule;
d. able to value the child’s relationship with the other parent;
e. able to place the child’s needs before their own wishes for time; and/or
f. able to ensure low stress at child transitions.
32Further, when assessing a child’s behavioural adjustments to any parenting schedule ordered or agreed to, it is important for the court to know whether the child showed any persistent behaviours such as:
a. Irritability, frequent unsettling, without a medical cause;
b. Excessive clinging on separation;
c. Frequent crying or other intense upset;
d. Aggressive behaviour, including self-harming behaviour;
e. Regression in established behaviors, such as toileting, eating, sleeping; and/or
f. Low persistence in play or learning;
33The father indicates in para. 19 of his affidavit sworn on January 27, 2025, that he seeks an equal time-sharing schedule with O. that “provides O. with meaningful and equal time with [him]”. He believes that “this arrangement would accurately reflect the active and involved role [he] played in O.’s life prior to separation and ensure that he continues to benefit from a strong relationship with both parents.”
34I agree that it is important for O. to have a meaningful and strong relationship with both parents. I do not, however, agree that an “equal time-sharing” parenting schedule is what is needed for a child to maintain a meaningful and strong relationship with a parent. Currently, the father is spending 5 overnights with O. out of 14 days. That is significant and meaningful time for a parent with a child who is almost 3 years of age.
35During submissions, the father’s counsel argued that the father seeks an equal time-sharing schedule with O. for the following reasons:
a. He has worked hard to co-parent with the mother;
b. O. is the light of his life;
c. He has always been involved with O. integrally since his birth;
d. The mother has tried to unfairly diminish his role and parenting time;
e. He attended prenatal appointments and took two weeks’ off work after O. was born to provide care to the mother and O;
f. He was an equal and active parent;
g. He took paternity leave from January to March 2023 when the mother was transitioning back to work;
h. He has a special cultural connection to O., has travelled with the child to Jordan;
i. He attended every medical appointment of O.;
j. He would like his parenting time to reflect his involvement with the child;
k. He has attended an anger management course through the John Howard Society;
l. He has taken a Triple P co-parenting program through Families in Transition;
m. He is taking a PARS course;
n. He seeks support for his mental health issues;
o. He is not taking any psychiatric medications;
p. He has organized play dates, outings and structured time with O. including taking him to the ROM, the nature exhibit, regularly scheduled visits at the library, cooking him traditional Jordanian meals, taking him to the Buddhist temple and providing him with a safe and stable environment;
q. O. has demonstrated no issues with transitions or adjustments;
r. He has maintained O.’s stability with his bedtime routine, potty-training routines and demonstrated he can parent O. with structure, consistency, and predictability;
s. He has attended to O,’s cognitive growth, exposed him to his Islamic heritage, and the Arabic language;
t. He makes sure O. is swimming, soccer, bike rides; and
u. He is sorry for the mistakes he has made and he has showed meaningful progress.
36The mother argues that O.’s parenting time should align with his best interests and not the father’s desire to have “equal” parenting time. According to the mother, O. has experienced difficulty with transitions following the Schabas Order when he goes from the father’s house to the mother’s house and has exhibited signs of stress. For example,
a. Since August, 2024, every time O. returns to the mother’s home after a visit with the father, he wakes up 4-6 times a night, accompanied with hours of middle-of-the-night restlessness;
b. O. exhibits fear of the dark, monsters and animals;
c. After the Christmas holiday period, when O. had 7 consecutive overnights with the father, the mother submits O. expressed fears of the father daily for two weeks; and
d. She has sought the support of a sleep consultant to support O.’s independent sleep and to assist her in helping O. to overcome his fears.
37In contrast, the father denies any adjustments or transitions on O.’s part when he is in his care. He states that “O. transitioned to this extended schedule seamlessly and happily, without any issues”, referencing the 7 consecutive days over Christmas. The father does acknowledge that when O. comes to his home after not seeing him for 7 days, it takes time for O. to “readjust and settle in.”
38The mother also continues to have fear of the father given what she claims is severe family violence she experienced in the relationship which the father outright denies. The mother has concerns about the father, which she deposes he downplays or denies, including the following:
a. He suffered from addiction to sex and pornography, for which he participated in Sex Addicts Anonymous and she participated in S-Anon;
b. He vaped marijuana daily and partake in other recreational drug use;
c. The mental health assistance in which he partook at St. Michael’s Hospital in December 2023, noted that the father maintained a predisposition towards chronic patterns of emotional dysregulation;
d. He breached the criminal conditions of his Undertakings twice, by reaching out to the mother through her sister and attending O.’s daycare knowing the mother would be present;
e. He communicated with the mother and her family in an abusive, nasty manner which was threatening and abusive;
f. He paints a picture of being a “changed” person in his January 27, 2025 affidavit and produces a letter from a physician while completely ignoring the earlier letter from a psychiatrist last December 2023;
g. He just started the PARS course on January 13, 2025, despite having been charged with criminal harassment about a year ago on February 24, 2025; and
h. He claims to have taken significant steps to address his emotional challenges, and those steps appear to be him having taken some co-parenting courses and following a court order. He has not provided any updated information from the psychiatrist who made the initial diagnoses in December 2023, or any follow up from any psychiatrist or mental health professional or provided any evidence of ongoing therapy.
39The father submits that the parties have been able to collaborate on significant parenting matters including attending with O. to his medical appointments; sharing medical and potty-training updates; signing paperwork so the mother can access O.’s medical records; and agreeing on holiday schedules. The mother does not agree. She describes the father unilaterally taking O. to the doctor’s office in October 2024, which is a pattern that took place prior to the Schabas Order.
40On a written conflicted record it is impossible for the Court to be able to determine which of the two parents is accurate in terms of their ability to co-parent. It does appear that O. experienced some stress transitioning after having seven consecutive nights with the father based on the mother’s evidence. Even the father recognized O. having stress transitioning to him after not seeing him for seven consecutive days.
41There is no doubt that both parents love and support O. O. is lucky to have two parents who want what is best for him and are willing to ensure stability and structure when they each parent him. The court, however, does not consider a parenting schedule from the perspective of the parents or from the lens of a parent. The father’s submissions are all centered around the father’s growth and perspective. There is very little submitted by the father that addresses O.’s needs or best interests in terms of why an equal time-sharing schedule is warranted.
42The mother does not believe that it is O.’s best interests to transition to a new schedule. She believes that it is important for O.’s developmental needs to have structure and stability and for the current parenting schedule to be maintained. Further, the mother continues to have serious concerns about the father’s inability to tell the truth and the parties’ collective ability to communicate and co-parent given the conflict and family violence. While the father’s affidavit indicates that he is doing well, the mother does not believe the affidavit rings true when a year ago, the father was having mental health struggles with emotional dysregulation and was placed on medication to assist him. Now the father is no longer on medication and provides no evidence of ongoing therapy to address his dysregulation. Further, the father’s reply affidavit confirms that he does not agree with or entirely diminishes Schabas, J.’s findings on August 6, 2024, that the mother was O.’s primary caregiver. He believes the mother has unfairly vilified him despite the court’s findings of concerning behaviours on his part.
43The father’s reply affidavit appears to blame the mother for raising the concerns she has about the father in her responding affidavit, because had those same fears when the motion was heard by Schabas. It makes sense that the mother continues to have these fears and concerns, given that it is only 5 months after the Schabas Order was made and the father has not addressed her concerns in terms of showing he engaged in therapy to address his issues. Rather, the father points fingers at the mother for “attempting to misrepresent” the situation before the court to “gain a tactical advantage.” Again, I find that the evidence on record from the father to be focused on his “rights” and not O.’s needs or best interests. This is best seen by the statement in paragraph 9 of his reply affidavit, “If I am suitable for five days, why not seven?”
44The mother has not taken the position that parenting time for the father with O. should reduce. Rather, she seeks that the current schedule remain in place so O., at his young age, can adjust without further transitions.
45The question for the court is whether it is in O.’s best interests for him to have a further two overnights with the father. The answer, regrettably, is not clear.
46What is known to be true is that the conflicting written record confirms that these parties have a history of conflict and do not see eye-to-eye on how O. has been cared for, or what is in O.’s best interests. That does not bode well for a co-parenting arrangement.
47I am persuaded that the father’s perception is accurate that O. struggles adjusting to having seven days without seeing the father. However, the father’s reply affidavit suggests that any mid-week visits that are not overnight are difficult for him because he does to have a car and because they cause too many transitions for O. I do not agree. I think it would be beneficial for O. to have some parenting time with the father in the seven-day stretch in alternate weeks when the father does not have weekend time with O. Further, if the mid-week overnights were changed to Mondays from Wednesdays, O. would never go more than 4 days without seeing each parent. It is in O.’s best interests to see both parents more frequently, which is accomplished by changing the mid-week overnights and adding a three-hour dinner visit during the mid-week.
ORDER
48This court makes the following order:
a. The parenting schedule set out in the Order of Schabas, J., dated August 9, 2024 in paragraphs 2-4 shall be changed as follows:
The child shall have parenting time with the respondent pursuant to the following two-week rotation:
During week 1, O. shall reside with the father
Wednesdays, after daycare/school at 4:00 p.m. to 7:00 p.m.
Fridays, after daycare/school at 4:00 p.m. to Tuesday morning, drop off at daycare/school
During week 2, O. shall reside with the father,
Wednesdays, after daycare from 4:00 p.m. to 7:00 p.m.
Mondays, after daycare from 4:00 p.m. to Tuesday morning, drop off at daycare.
Monday
Tues
Wed
Thurs
Fri
Sat
Sun
With Father after day care at 4:00 p.m. overnight
Drop off at daycare by Father
Pick up by Mother and overnight
Drop off at daycare by mother
With Father after daycare
4-7 p.m.
With mother overnight
Mother
With father after daycare at 4:00 p.m.
overnight
Father
Father
Father
Drop off at day care by Father
Pick up by Mother and overnight
Drop off at day care by Mother
With father after daycare
4-7 p.m.
With mother overnight
Mother
Mother
Mother
Mother
With Father after day care at 4:00 p.m. overnight
Drop off at daycare by Father
Pick up by Mother and overnight
Drop off at daycare by mother
With Father after daycare
4-7 p.m.
With mother overnight
Mother
With father after daycare at 4:00 p.m.
overnight
Father
Father
b. The parties shall arrange the parenting exchanges of O. on Wednesdays at 7:00 p.m. in a public place where there are CCTV cameras, such as at a gas station or Tim Hortons so there is no breach of the respondent’s criminal Undertaking or they shall agree to some other arrangement that does not violate the Undertaking.
c. If Monday falls on a long weekend (whether due to a Statutory Holiday or Professional Development Day), the respondent’s parenting time shall take place on Tuesday, after daycare to Wednesday morning.
d. All other paragraphs in the order of Schabas, J., dated August 9, 2024, shall remain in full force and effect, except for paragraph 7 and 15 which are no longer operative.
e. The parties are encouraged to settle the issue of costs. If they are unable to do so, they shall serve written costs submissions of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 7 days of the release of this Endorsement and file responding costs submissions of no more than one page within 5 days of being served with costs submissions from the other party.
Justice Kraft
Date: February 7, 2025