Da Silva v. Quevedo, 2025 ONSC 968
Court File No.: 569-24
Date: 2025-02-12
Court: Superior Court of Justice - Ontario
Applicant: Carla Patricia Ferreira Da Silva
Respondent: Ramon Arturo Gomez Quevedo
Before: A. Pazaratz
Counsel:
Derek Ang, Counsel for the Applicant
Matthew Newton, Counsel for the Respondent
Endorsement
Introduction
Work schedules and parenting schedules are often inextricably linked. When one parent’s employment commitments change unavoidably, both parents have an obligation to be creative and flexible, to maximize opportunities for parent-child interaction.
This is a bitterly contested motion about a three-year-old boy and a July 14, 2023 Parenting Plan.
a. The nine-page plan deals with multiple topics including parenting time (equal); decision-making (equal); child support (set-off); exchanges; social media; extra-curricular activities; information sharing and communication; medical and dental appointments; documentation; vacation and travel; restrictions on travel; life insurance; and an acknowledgement of continuing efforts to work toward a comprehensive separation agreement.
b. The child’s routine has been in place for about a year and a half.
c. But recently the father’s work schedule changed. He’s now asking to spend roughly the same amount of time with his son, except on a different schedule.
d. The mother never liked the Parenting Plan and wants to set it aside. She now wants sole decision-making authority, with the father’s time to be significantly reduced.
e. Both parties agree the father’s new work commitment will require changes. And now they’re spending thousands and thousands of dollars arguing whether the changes should be minor or major.
f. (Hint: Small changes are generally better for young children than big changes.)
Chronology and Procedural History
A brief chronology:
On October 8, 2024 the parties attended a Case Conference. Justice Chappel’s endorsement included:
a. Case conference held. Opinions given.
b. Adjourned to March 10, 2025 2:30 p.m. for a Settlement Conference.
c. No costs.
d. Order for Questioning, if requested by either party, provided that Questioning is completed and all undertakings are addressed/resolved by February 7, 2025.
The Parties' Motions and Affidavits
The father’s January 14, 2025 motion includes requests for the following temporary relief:
a. Shared parenting modified from the 2-2-3 schedule set out in the July 14, 2023 Parenting Plan, as follows:
i. Mother to have Monday pick up from daycare until Thursday dropoff at daycare,
ii. Father to have Thursday pickup from daycare until Saturday 9 a.m.,
iii. Parties to alternate weekends Saturday 9 a.m. until drop-off Monday at daycare.
b. If father’s employer allows him to work from home on either Wednesdays or Mondays, his weekday parenting time to commence a day sooner or a day later.
c. Balance of July 14, 2023 Parenting Plan to remain in place pending further agreement or court order.
d. Costs.
The father’s January 14, 2025 affidavit includes the following narrative:
a. The parties were married July 1, 2021.
b. They separated May 12, 2023.
c. They have one child, Rafael, who just turned three.
d. The parents have been equal caregivers since the child’s birth.
e. On July 14, 2023 the parties signed a Parenting Plan which included joint decision-making and equal time.
f. In late 2023 as a result of downsizing the father lost his job as a chemical engineer. The father notified the mother soon after.
g. Also in late 2023 the mother’s former counsel stopped responding to letters from the father’s counsel. In the spring of 2024 the father learned the mother wanted to start a court action because she wanted to move to Portugal with the child.
h. Despite being laid off, the father continued to pay child support. The mother stopped paying her corresponding child support based on equal time. The father also continued to pay the child’s daycare expenses.
i. The mother owes the father more than $2,200.00 as her share of daycare expenses and more than $5,000.00 in child support arrears.
j. During the extended period the father was unemployed, the mother asked him to care for Rafael on many occasions during her time, and he was happy to do so.
k. The father diligently sought employment. He finally found a job in London, Ontario.
l. Despite the new job entailing a commute, the father is able to maintain a shared parenting arrangement.
m. The father advised the mother of the new job and attempted to rearrange the parenting schedule to accommodate his new work situation. The mother refused to commit to anything.
n. His proposal is straightforward and entails minimal disruption from the schedule in the Parenting Plan.
o. On January 8, 2025 the mother provided her delayed response. She said the father would only be permitted to have alternate weekends.
p. The father had consented to the mother travelling with Rafael to Portugal for three weeks over the 2024 Christmas holidays. Upon her return she refused to allow the father time with the child.
q. The mother is using the father’s new employment situation to try to reduce his time to alternate weekends, as part of her objective of relocating with the child to Portugal.
r. Rafael has been doing very well in the shared parenting arrangement. His proposal merely changes the days for parenting time.
s. The father’s schedule maintains the status quo while allowing the father to be employed.
t. The father’s new employer has been accommodating. The father believes after he has been working three to six months, he will be able to get more days when he can work from home.
The mother’s January 22, 2025 motion includes requests for the following temporary relief:
a. Sole decision-making to mother.
b. July 14, 2023 Parenting Plan to be varied. Father to have time with Rafael alternate weekends Friday 5:30 p.m. to Sunday 7:30 p.m.; 4 weeks summer vacation; 2 weeks during winter break.
c. Father to pay table child support arrears retroactive to August 1, 2023 totalling $16,374.00 within 30 days.
d. Father to pay $1,472.00 per month ongoing child support.
e. Disclosure, including details of his new employment and earnings.
f. Restraining order.
The mother’s January 22, 2025 affidavit includes the following narrative:
a. Her pregnancy with Rafael was out of wedlock. Due to her Catholic beliefs she was pressured into entering a marriage agreement with no financial disclosure, under unfavourable terms, two days before the wedding.
b. The relationship was tumultuous. The father was verbally, emotionally, financially and physically abusive. She set out details in paragraphs 4(a) to 4(f).
c. The father’s manipulation and anger issues are linked to his inability to maintain employment.
d. She is concerned about the father’s anger and mistreatment of Rafael. He physically punished Rafael from a young age, including hitting him in the face and mouth during a trip to Colombia.
e. In January 2024 the mother called the police after the father pushed her while he was holding the boy in his lap.
f. She believes the father is fighting for equal parenting time because he enjoys having control and power over her life. He would often take advantage of her financially.
g. In June 2023 she retained a lawyer to negotiate a separation agreement but they could not finalize terms.
h. As a result of the father’s harassment, the mother entered into a July 14, 2023 Parenting Agreement so that the father would leave the premises. As a result, their “separation date” is one day after they signed the Parenting Agreement.
i. The parenting plan provides for shared parenting under a 2-2-3 arrangement:
i. Monday drop-off at daycare to Wednesday pickup after daycare.
ii. Wednesday pickup after daycare to Friday drop off at daycare.
iii. Friday pickup after daycare to Monday drop off at daycare.
j. Her application seeks to set aside the marriage contract; vary the parenting plan; and she seeks child support.
k. Despite the parenting plan, the parties developed a different status quo: The father would have every other weekend from Thursday after daycare until Monday drop-off at daycare.
l. Rafael has been primarily in the mother’s care. The father has shown little interest in time, outside of his designated time. She has offered extra time for special occasions which the father has declined.
m. The father’s change in employment and ability to work from home does not justify changing the existing parenting plan, and his proposal is not in the best interests of the child.
n. The father’s new job, including a lengthy commute, makes it difficult to maintain the current plan, let alone maintain a 50/50 arrangement.
o. The long commute (150 km from the daycare and the mother’s home) makes it difficult for the father to pick the child up by the daycare closing time of 6 p.m. Similarly, in the mornings the father would have to wake the child around 4 a.m. in order to drop Rafael off and make it to work in London.
p. She denies being uncooperative since her return from her Portugal vacation.
q. It is unclear if the father will be able to get more days working from home in the future. This is speculative.
r. The equal time parenting agreement says the mother owes $561 per month in child support and the father owes $1,385.00 per month, commencing August 1, 2023.
s. Until December 16, 2023 the father was a chemical engineer at Bartek, earning $174,072.00. After he lost his job he reduced his net support payment to $301.00 per month as of February 1, 2024.
t. He was unemployed between December 16, 2023 and December 10, 2024.
u. The father owes $16,374.00 in child support arrears up to February 1, 2025. He should pay $1,472.00 per month on an ongoing basis, pending further disclosure.
v. The father has been harassing the mother about altering the parenting arrangement. On January 6, 2025 he attended her residence unannounced, after trying to call her 11 times. She seeks a restraining order.
w. Recently Rafael’s picture was displayed on a mega-screen advertisement in a public setting, without the mother’s consent. This violates the Parenting Agreement.
x. The mother seeks sole decision-making.
y. The father should have alternate weekends Friday 5:30 to Sunday 7:30; four weeks summer vacation; and two weeks during the winter break.
The father’s January 31, 2025 affidavit includes the following narrative:
a. He denies the mother’s allegations.
b. The mother was abusive and threatened him with a knife.
c. She had a lawyer when they signed their marriage contract, after an exchange of disclosure.
d. The mother was never the primary caregiver. If anything, the father has had the child more since separation, particularly since he was unemployed for a period of time, and cared for Rafael on extra occasions.
e. The mother’s allegation that the father’s proposed schedule will negatively impact the child are completely unfounded.
f. The father can work from home on Fridays, allowing him to pick Rafael up on Thursday evenings. He anticipates that when he has been with his employer longer, he’ll be able to work from home at least one additional day, which would allow a 2-2-5-5 schedule.
g. He denies being disinterested in the child since the mother’s return from Portugal.
h. Their three-year-old son should have as much involvement with both parents as possible.
i. The father will be commuting from Hamilton to London so that he can maintain a residence close enough to be regularly involved in the child’s life.
j. The parties have been doing parenting exchanges for more than a year and a half without incident. His parenting proposal would only require that they have one in-person exchange every two weeks.
k. There is no need for a restraining order.
l. The mother owes the father at least $6,732.00 in child support arrears, plus $3,178.00 toward Rafael’s daycare expense.
m. The father paid $552.92 per month for a whole life policy for Rafael. Since separation the father has paid $11,611.25. The mother’s share is at least $5,186.00 which she has not yet paid.
n. The parenting plan sets out that the mother’s income is $60,500.00. The father’s new income is $150,000.00 which is similar to the previous income set out in the Parenting Plan. In an equal time-sharing arrangement, the father should be paying $1,299.00 and the mother should be paying $561.00.
The mother’s February 3, 2025 affidavit includes the following narrative:
a. She denies being abusive.
b. The father was abusive. He would physically strike Rafael to discipline the child. He would yell at the mother, pin her down and strike her.
c. The father previously declined extra time with the child, viewing it as a burden.
d. Rafael has been on a waitlist for over a year to see a developmental pediatrician. He’s also waiting for an ADHD and autism assessment. He is also scheduled to have surgical procedures, including surgeries for his adenoids, tonsils and possibly tubes in his ears.
e. Despite the child’s extensive medical needs, the father has not been involved. Since the child’s birth, the mother has been solely responsible for all medical appointments.
f. The mother is also responsible for the child’s extra-curricular activities.
g. The father wants 50/50 time but he isn’t interested in the responsibilities that come with that arrangement.
h. Rafael’s daycare has noted the child has experienced some issues. The boy has been diagnosed with anger and behaviour problems. He requires a calm and stable environment and positive role models. The father is unable to provide this environment.
i. The father has significant investments. The mother requires disclosure.
Applicable Law
The applicable law is set out in the Divorce Act.
Section 16.1(1) allows the court to make a “parenting order” to deal with the two fundamental areas affecting children’s lives:
a. Decision-Making responsibility.
b. The exercise of parenting time.
The court has broad powers to:
a. Allocate parenting time and decision making.
b. Impose a schedule.
c. Provide means of communication.
d. Make any other orders to secure the child’s best interests.
Best Interests of the Child and Status Quo
Parenting orders are fact specific. Each case turns on its own unique circumstances. Gordon v. Goertz; N.S. v. A.N.S., 2021 ONSC 5283. The court’s function is not to pronounce on what is in the best interests for all children in a general sense, but rather what is in the best interests of the child before the court. Deschenes v. Medwayosh, 2016 ONCJ 567; A.P. v. P.P., 2021 ONSC 6540.
In this case, the mother seems to gravitate toward the archaic notion that the father should simply be an alternate weekend parent. The idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents. E.M.B. v. M.F.B., 2021 ONSC 4264.
Section 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order.
a. The ‘best interests’ test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child whose well-being is under consideration. De Souza v. De Souza, 2023 ONSC 2457; Lang v. Qureshi, 2025 ONSC 585.
b. Case by case consideration of the unique circumstances of each child is the hallmark of the process. Van de Perre v. Edwards, 2001 SCC 60; O’Connor v. Duguay, 2023 ONSC 2374.
c. The analysis must remain centered on the rights of the child, from a child-centred perspective. The ‘rights’ of a parent are not a criterion. Young v. Young.
d. The focus is on the child, not the parent. S.S.L. v. M.A.B., 2022 ONSC 6326.
Section 16(2) says when considering best interests factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. Pierre v. Pierre, 2021 ONSC 5650; Churchill v. Elliot and Ward, 2024 ONSC 1907; Mougoui v. Sekkat, 2025 ONSC 303.
It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q., 2021 ONCJ 334; N.S. v. A.N.S., 2021 ONSC 5283; A.S.A. v. T.I., 2025 ONCJ 51.
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.
The court is required to undertake a broad analysis of each child’s specific situation.
a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41; Seyyad v. Pathan, 2022 ONCJ 501.
b. None of the listed factors are given priority, except the primary consideration in section 16(2) is overarching. O’Connor v. Duguay, 2023 ONSC 2374.
c. No single criterion is determinative. The weight to be given to each factor depends on the circumstances of the particular child. Dayboll v. Binag, 2022 ONSC 6510.
d. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480; W.H.C. v. W.C.M.C., 2021 ONCJ 308; Harry v. Moore, 2021 ONCJ 341; McIntosh v. Baker, 2022 ONSC 4235; Brownson v. Brownson, 2022 ONSC 5882.
e. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454; Machado v. Viera, 2025 ONCJ 49.
f. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. Gordon v. Goertz; Mattina v. Mattina, 2018 ONCA 641; E.M. v. C.V., 2022 ONSC 7037; Lang v. Qureshi, 2025 ONSC 585.
g. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Shah v. Shah, 2025 ONCJ 5.
Family Violence
In determining the best interests of a child, section 16(3)(j) mandates that the court must specifically consider whether there has been any family violence -- and the impact of that violence on the child; and on the ability and willingness of any parties to care for and meet the needs of the child.
a. Section 2(1) sets out an expansive definition of what constitutes family violence.
b. Section 16(4) sets out an additional list of best interests factors which the court must consider related to family violence.
c. These provisions highlight the importance of family violence in assessing the best interests of a child, and to address the reality that family violence is often hidden or unreported despite its insidious nature. V.M.W. v. J.Mc-M., 2021 ONCJ 441.
The court must be mindful family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this.
By the same token, at the interim stage the court must be cautious in making findings of family violence where the evidence is based on untested affidavits with no opportunity for oral evidence. The court should seek documentary evidence such as emails or text messages or some other type of corroborative evidence to allow the court to make at least an initial finding regarding these very serious allegations. Bhadauria v. Cote, 2022 ONSC 3088.
Parenting Agreements and Status Quo
In this case, an important starting point is the parents’ July 14, 2023 Parenting Plan.
Where parents entered into a private agreement on parenting issues prior to seeking a court order on the same issues, the considerations include the following:
a. Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus; M.S. v. D.F.M.A., 2020 ONCJ 497; A.P. v. J.G., 2023 ONSC 1416.
b. An earlier agreement can also be reflective of the status quo, which is an important best interests consideration in the current judicial analysis. B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.
c. It is sound public policy that parenting agreements be encouraged and respected, unless they are demonstrably contrary to the best interests of children. If the contents were simply ignored, it would eliminate any incentive to negotiate them. M.S. v. D.F.M.A., 2020 ONCJ 497.
d. The court must consider first and foremost the best interests of children, while being mindful of the importance of parents' autonomy in making their own arrangements to resolve their parenting issues. Blois v. Gleason.
Parenting Time and Maximizing Contact
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 ONCA 305; O'Brien v. Chuluunbaatar, 2021 ONCA 555.
a. This provision does not override the best interests analysis. Rather, it is part of the best interests analysis. Lang v. Qureshi, 2025 ONSC 585.
b. There is no presumption of equal time-sharing of children after parents separate. Bembenek v. Bembenek, 2019 ONSC 4050; K.M. v. J.R., 2022 ONSC 111; B. v. W., 2022 ONSC 934; Bressi v. Skinulis et al, 2021 ONSC 4874. There is no presumption that having as much contact as possible with both parents will necessarily be in the best interests of the child. Barendregt v. Grebliunas, 2022 SCC 22; Gewurtz v. McGroarty, 2022 ONSC 7148.
c. A child-focussed approach is required, with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child’s best interests. It may end up being equal time. It may end up being some other division of time. Each family is different, and the principle is a general guide set out to benefit children. Knapp v. Knapp, 2021 ONCA 305; R.F. v. J.W., 2021 ONCA 528; Agboola v. Unoh, 2024 ONSC 6191.
d. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Kirichenko v. Kirichenko, 2021 ONSC 2833.
e. The most appropriate allocation of time in any given situation will depend on many factors including the child’s age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child’s best interests. The parenting schedule must accord with the child’s best interests. McBennett v. Danis, 2021 ONSC 3610; Morrison v. Harder, 2021 ONSC 5107; Ammar v. Smith, 2021 ONSC 3204; W.C. v. W.C., 2022 ONCJ 254.
f. Frequent and meaningful parenting time is necessary for the formation and continued development of healthy attachments between young children and their parents. P.C.P. v. L.C.P., 2013 ONSC 2564; Bazinet v. Bazinet, 2020 ONSC 3187; Burley v. Bradley, 2019 ONCJ 624; Rajani v. Rajani, 2021 ONSC 4784; De Souza v. De Souza, 2023 ONSC 2457.
g. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255; Wilson v. Wilson, 2015 ONSC 479; Strizzi v. Traetto, 2024 ONCJ 278.
h. But in high conflict situations, exchanges between parental households are frequently the source of intensified stress and anxiety for children. In those circumstances frequency of contact may have to give way to the need to reduce the number of exchanges – to reduce opportunities for the child to be exposed to unpleasantness, tension, alienation, schedule disruption and inconsistent parenting styles.
i. The allocation of time must address both quantitative and qualitative considerations. Parenting time entails more than simply one-on-one parent and child interaction. It includes parental responsibility and involvement with respect to all aspects of the child’s life – throughout the child’s schedule -- including school-related matters, extra-curricular activities, and other events. S.K. v. D.P., 2022 ONSC 2359; B.M. v. D.M., 2023 ONSC 2068.
j. While maximizing contact is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child’s best interests, it should not be ordered. McBennett v. Danis, 2021 ONSC 3610; Young v. Young; Gordon v. Goertz; B.V. v. P.V., 2012 ONCA 262; Rigillo v. Rigillo, 2019 ONCA 548; Drodge v. Gajadhar, 2025 ONSC 244.
Status Quo and Interim Orders
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.
Courts should be particularly careful about disrupting an established parenting arrangement at the interim stage unless compelling circumstances dictate otherwise. Ceho v. Ceho, 2015 ONSC 5285; Batsinda v. Batsinda, 2013 ONSC 7869; Green v. Cairns; Papp v. Papp; MacDonald v. Cannell, 2021 ONSC 7769; K.M. v. J.R., 2022 ONSC 111; Alves v. Galloway, 2023 ONSC 7209.
a. It is generally not in the best interests of a child to disturb the status quo on a temporary motion pending a trial without compelling reasons. Niel v. Niel; Grant v. Turgeon; Wang v. Tang, 2023 ONSC 3609; Easton v. McAvoy, 2005 CarswellOnt 7379; Levesque v. Bond, 2023 ONSC 1895; Churchill v. Elliot and Ward, 2024 ONSC 1907; Walker v. Innes, 2025 ONSC 329.
b. The status quo – and avoiding reckless creation of a new status quo – are particularly important considerations at the interim stage, because the court is often not in a position to make factual findings based on incomplete and untested evidence. Cosentino v. Cosentino, 2016 ONSC 5621; Cabral v. Parker, 2021 ONSC 4574; Viveash v. Viveash, 2021 ONSC 7456; N.D. v. R.K., 2020 ONCJ 266; R.C. v. L.C., 2021 ONSC 1963; C.C. v. I.C., 2021 ONSC 6471; Dayboll v. Binag, 2022 ONSC 6510; Chaput v. Chaput, 2021 ONSC 2809; Lang v. Qureshi, 2025 ONSC 585.
c. The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change. W.H.C. v. W.C.M.C., 2021 ONCJ 308; Ceho v. Ceho, 2015 ONSC 5285; Batsinda v. Batsinda, 2013 ONSC 7869; Green v. Cairns; Papp v. Papp; MacDonald v. Cannell, 2021 ONSC 7769.
d. Temporary orders are “band-aid” solutions pending a full hearing. The status quo is ordinarily maintained pending trial unless the evidence demonstrates that the best interests of the child require some modification. Sullivan v. Senechal, 2022 ONSC 557.
The onus on a party seeking to disrupt the status quo on an interim basis is high. The moving party must demonstrate that there is material and compelling evidence that the child's best interests demand an immediate change to the status quo or the existing parenting arrangement pending a trial, particularly if the status quo has been in place for a significant period of time. Moniz v. Amyot, 2024 ONSC 5299; Daniel v. Henlon, 2018 CarswellOnt 2901.
Analysis and Findings
- My analysis includes the following findings and considerations:
a. As stated, the starting point is the July 14, 2023 Parenting Plan. Its terms are not binding on the court. But the agreement – prepared with the assistance of lawyers – identifies not only the parenting regime the parties created. It also presumptively reflects an acknowledgement by the parties as to what arrangement was in the best interests of the child -- at least as of that date.
b. The mother seeks to “set aside” the Parenting Plan. More precisely, she submits that she never really thought the parenting plan was in Rafael’s best interests, but she felt pressured to sign the agreement. Notably she is also seeking to set aside the June 29, 2021 Marriage Contract which she signed. All of the mother’s allegations about being pressured or coerced are denied by the father.
c. The complex issue of the dynamics between the parties when these formal documents were signed – and thereafter – cannot be unravelled and resolved at the motion stage based on untested, contradictory affidavit materials. To the extent that the formal status or efficacy of these documents will need to be determined, this will have to be dealt with at trial.
d. But whether the mother really agreed or disagreed with the paperwork she signed on July 14, 2023 – the reality is that thereafter she abided by the terms of the agreement (although she says there were modifications along the way).
e. The mother says during the year and a half since the agreement was signed, the father eventually had somewhat less than half time. The father says he actually had more than half the time because during his period of unemployment between December 2023 and December 2024, he often cared for the child while the mother was at work.
f. I find that the parties basically adhered to an equal time arrangement between July 2023 and December 2024. The schedule only changed when the mother returned from her Christmas vacation in Portugal, and suddenly announced to the father that he was being cut back to alternate weekends.
g. While the mother has made very general complaints that the long-standing equal-time arrangement has not been in Rafael’s best interests, her allegations are denied by the father. Again, the relatively narrow scope of this dispute will have to be sorted out by a trial judge who will have more comprehensive and tested evidence.
h. The father has identified a very narrow scheduling issue which needs to be addressed. The mother has responded with a collection of unrelated issues and allegations. Even taking the mother’s case at its strongest, it still doesn’t justify the dramatic reduction and interference she has attempted to impose with respect to Rafael’s relationship with his father.
i. Pursuant to the July 2023 agreement, the child has been spending seven out of 14 overnights with the father in a two-week period. Of equal importance, under that schedule the child maintains frequent contact with both parents. He is never away from either parent for more than about three days.
j. The father’s proposed schedule results in him having six out of 14 overnights with the child. (He also proposes that as soon as he can arrange additional days to work from home, a seventh overnight could be added.) In his current proposal, the longest the child would go without seeing a parent would increase slightly to about five days.
k. The mother’s proposed schedule would reduce the father to two overnights in a 14-day cycle, with 12-day gaps between contact with the father.
l. The father’s proposed change would be imperceptible to the child. The mother’s proposed change would completely uproot the child’s life and core relationships. While the mother portrays herself as being more attuned to the child’s needs, she appears to have given little thought to how Rafael would be impacted by such a drastic reduction in time and involvement with the father.
m. The mother keeps insisting the father’s new work schedule will mean that the child’s sleep schedule will have to change, and that the boy will have to get up as early as 4:00 a.m. to get to daycare at the usual time. The father has demonstrated that this is absolutely incorrect. At the end of his alternate weekends the father would return the child to daycare at precisely the usual time on Monday mornings. It is surprising that even during submissions the mother’s lawyer kept advancing this argument when clearly the mother’s facts are simply wrong.
n. The mother tried to justify her alternate weekend proposal on the basis that Rafael needs to be with the mother every single weekday, to ensure that the child can attend various medical appointments. But during submissions her lawyer admitted that there has never been a single instance where the child missed a medical appointment as a result of the equal parenting-time regime. It is transparently self-serving for the mother to basically say: We have to dramatically reduce dad’s time because a problem that’s never happened in the past might happen in the future.
o. There is no dispute between the parties that Rafael has certain medical issues. There is no evidence that the father is not equally aware of these medical issues, or that the father is not equally capable of meeting all of the child’s needs – including medical needs. On this topic – and across the board – the mother portrays herself as a better, more sensitive, more caring parent. But there is no evidence to support any such superiority. I find that by every measure these parents appear to be exactly equal in terms of love, commitment, insight and familiarity with the child’s needs. Indeed, the only negative comparison stems from the mother’s lack of insight in failing to acknowledge the impact of her proposal on her son.
p. The evidence satisfies me that the equal-time arrangement made sense in July 2023 and it continues to be in the child’s best interests today. Rafael appears to be equally connected to both the mother and the father. He has thrived during the long-standing equal time/equal parenting arrangement, and there is no basis whatsoever to suddenly change or jeopardize that success story.
q. I have carefully reviewed all of the mother’s complaints and allegations. I have specifically noted her allegation that the father has been violent toward her and also the child. I have also considered the father’s allegation of violence by the mother toward him. Family violence is an important consideration in parenting cases. The mutual allegations and denials are difficult to reconcile based on untested materials. I note, however, that for both parties the allegations are limited, somewhat vague, and unclear as to date or circumstance.
r. I must consider the timing and context of the mother’s allegations. Many of them pre-date separation. They pre-date the Parenting Plan she signed with her lawyer. They pre-date the equal-time regime she has agreed (or acquiesced) to for 18 months. She does not allege any recent re-occurrence or triggering event which caused her to suddenly seek to reduce the father’s time by more than half. (She complains about an occasion when he telephoned her 11 times, but that was only after she returned from Portugal and started denying him time.)
s. The only real change is the father’s new job which requires him to commute to London four days a week (possibly less in the future). The mother submits that this changes everything, but in reality it hardly has to change anything. Section 2.7 of the parties’ Parenting Plan requires the parents to be “flexible” and “neither party shall take unreasonable positions.” The father is simply asking that he have different days, to accommodate his work schedule. I find that the mother’s refusal to adjust the schedule has nothing to do with Rafael’s best interests. She is simply looking for an excuse to gain an upper hand.
t. There is, however, one aspect of the father’s proposal which I do not agree with. His new job lets him work from home on Fridays. He proposes that if he is eventually able to work from home an additional weekday, his time should be expanded to get him back to seven out of 14 overnights. This issue will be better addressed if and when any such employment changes become permanent. There is currently a great deal of animosity between these parties, and that conflict negatively impacts on the child. For the moment, it is best that both parties have clarity about the parenting schedule, so they can make their own plans on their days. It is unfair to the mother to constantly leave her vulnerable to having to change her plans with the child if, on any particular week, the father announces he’s available for an extra overnight.
u. Unrelated to the father’s changed work situation, the mother now seeks sole decision-making. She has not been able to identify a single issue or problem stemming from the joint decision-making regime which has existed since July 2023. There is no need to change what the parties agreed to, on an interim basis. As stated, the parents are equally capable. Indeed, if the mother keeps insisting that one of them needs to have sole decision-making authority, her recent self-centered behaviour might well rule her out as a candidate.
v. With respect to the mother’s request for a restraining order, the only recent conflict between the parties arose in the context of the father attempting to see Rafael pursuant to the Parenting Plan, while the mother unilaterally refused to allow him to have contact. Clearly, any harassing or annoying behaviour should be avoided. But this appears to have been an isolated incident, and there is no reasonable apprehension that there will be a lack of civility and maturity in the future. A restraining order is not warranted at this time. The issue can be returned if problems arise.
w. The claims for retroactive child support and imputing income should be dealt with at trial.
x. With respect to ongoing child support, time did not permit the issue to be dealt with.
Conclusion and Order
- Temporary order:
a. The mother and father shall share equal parenting time with the child to the extent that their personal and employment schedules allow them to do so. They shall make reasonable modifications to the schedule as may be required to promote this equal time-sharing. In the absence of any other agreement, the default schedule shall be as follows:
i. The mother shall have parenting time every Monday (pick up from daycare in the p.m.) until Thursday (drop off at daycare in the a.m.).
ii. The father shall have parenting time every Thursday (pick up from daycare in the p.m.) until Saturday at 9 a.m. (drop off at a mutually agreeable location – if no agreement, at a McDonalds selected by the father).
iii. The parties shall alternate weekends from Saturday at 9 a.m. until drop off at daycare on Monday morning.
b. The mother and father shall have joint decision-making authority with respect to the child Rafael.
c. Except for emergency or urgent situations, the parties shall communicate about the child in writing. Unless otherwise agreed, they shall use AppClose.
d. They shall confer with one another, in writing, prior to implementing any major decision in the child’s life.
e. Both parties shall be equally entitled to communicate with and instruct all third-party service-providers in the child’s life, including medical, educational and recreational personnel and agencies.
f. Neither party shall arrange a new service provider, professional or agency in the child’s life without the participation of the other parent.
g. The parties shall inform one another prior to arranging any non-emergency appointments for the child. In the event of an emergency they shall notify one another immediately. If either parent has attended an appointment or engaged in communication with a service provider without the other parent’s participation, the parent with the information shall communicate that information to the other parent within 24 hours.
h. Except as set out above, any remaining non-monetary parenting provisions of the July 14, 2023 Parenting Plan shall continue.
i. The mother’s request for a restraining order is dismissed, without prejudice to the issue being returned to court in the event of future problems.
j. All child support issues retroactive to January 1, 2025 are adjourned to be dealt with at trial.
k. On a temporary-temporary without prejudice basis, child support from January 1, 2025 onward shall be determined based upon the set-off formula set out in the parties’ July 14, 2023 Parenting Plan (except with updated numbers). The father shall pay to the mother $1,299.00 per month based upon an income of $150,000.00. The mother shall pay to the father $561.00 per month based upon an income of $60,500. The net payment by the father shall be $738.00 per month. This amount may be subject to redetermination by motion (after the parties attend their Settlement Conference scheduled for March 10, 2025 at 2:30 p.m.) If not addressed by further motion, any retroactive adjustment may be addressed at trial.
l. SDO.
If any issues other than costs need to be addressed, counsel may arrange a time for this matter to be spoken to, by Zoom.
If only costs are in issue, written submissions are to be exchanged (not more than two pages, including hyperlinks, plus offers and bills of costs) on the following schedule for service and filing.
a. Father’s materials by February 28, 2025 4 p.m.
b. Mother’s materials by March 10, 2025 4 pm.
c. Father’s reply (if any) by March 18, 2025 4 p.m.
A. Pazaratz
Date: February 12, 2025