Elaziz v. Wahba, 2017 CarswellOnt 573 (Ont. C.A.)

In this recent decision by the Ontario Court of Appeal, the Court provides a concise but helpful guide to parents who are attempting to uphold the best interests of the child during the facilitation of access. This case serves as an important reminder that custody and access issues must remain child-focused, and adjustments to a parenting plan must be determined within the scope of the child's needs, and not the needs of the parents.

Background

On February 28, 2014, following a two-day trial, a final resolution with respect to custody and access was made in this matter providing the father with limited overnight access to the seven-year-old child. On June 10, 2016, the motions judge heard a Motion to Change the final order, during which, evidence was presented to the Court, which appeared to indicate that the child was having difficulties during access exchanges in the evening hours. As a result, the motions judge granted the father enhanced overnight access.

The father appealed the decision to the Court of Appeal, claiming that the motions judge had originally provided him with alternate Monday and Thursday overnight access. However, the father claims that the mother expressed concern to the Court that the child support issues would be complicated from such a change, as a shared parenting arrangement would result. According to the father, after the mother's concern was raised, the motions judge revised the endorsement, and provided only alternate Thursday overnight access. It is the father's position that the motions judge erred by revising the endorsement based upon the impact of the parenting plan on the child support arrangements, and not in consideration of the child's best interests.

Analysis

Upon consideration of the motion judge's endorsement, the Court of Appeal dismissed the father's appeal. The Court of Appeal found that it was the intention of the motion's judge to address the concerns raised by the father with respect to the child's difficulties during access exchanges, not to change the overall access scheme, which was the result of the two-day trial. As the Court of Appeal notes, even within the revised endorsement, the father received enhanced overnight access.

Interestingly, in making its analysis, the Court of Appeal noted the following at paragraph 3:

"as a matter of common sense, change-overs proceed more smoothly if they do not occur at bedtime, but rather, occur in neutral territory at the commencement of the school day"

In making this comment, it appears as though the Court of Appeal is encouraging parents to avoid scheduling access exchanges at inappropriate times, and to consider child-focused strategies for facilitating access, along with each child's specific needs and circumstances. While every family is unique, and access arrangements for children must reflect this, parents should endeavor to maintain the child's best interests as they develop their parenting plans, which includes putting considerable thought into when, where, and how to facilitate access exchanges to minimize stress for the child, and reduce conflict between the parties.