Naadira Mungal v. Darryl Shazad Mungal

Court File and Parties

Court File No.: Brampton 65/10 Date: 2013-02-14 Ontario Court of Justice

Between:

NAADIRA MUNGAL Applicant,

— AND —

DARRYL SHAZAD MUNGAL Respondent.

Before: Justice S.R. Clark

Ruling on Motion by Applicant for an Order Suspending the Respondent's Access, or Alternatively for Supervised Access

Motion heard: January 30, 2013 Ruling released: February 14, 2013

Counsel:

• Ms. Bonnie Caplan-Stroeder, for the applicant Naadira Mungal
• Mr. Peter Dubas, for the respondent Darryl Shazad Mungal

CLARK, J.:

1:0 INTRODUCTION

1The applicant mother, Naadira Mungal (hereinafter referred to as the "mother") brings a motion, dated January 21, 2013, seeking to either suspend access or to specify terms of supervised access by the respondent father, Darryl Mungal (hereinafter referred to as the "father").

2The subject children are Nabil, born June 21, 2006, presently age 6, and Nafis, born November 9, 2007, age 5 (hereinafter referred to as the "boys").

3They continue to reside with the mother. The father has alternate weekend and mid-week access.

4The impetus for the motion is based on the mother's concerns about the father's emotional stability and his continued demonstration of irrational behaviour, which she alleges is negatively impacting on the boys.

5Although she appreciates that a suspension of access is a rather drastic step, she is so concerned for their welfare that the time has come where the Court should consider this as a viable alternative before the emotional harm to the children becomes irreparable.

6Alternatively, she is seeking an order that the father have supervised access to the boys for a minimum period of six months. His inappropriate behaviour only seems to take place during access exchanges. She contends that access at a supervised access centre will force him to change his behaviours.

7Not surprisingly, the father disagrees with her position. He submits that a suspension of access is not warranted or justified in the circumstances, and supervised access is not necessary.

2:0 BACKGROUND

8The history and sequence of the various proceedings in this file is somewhat confusing.

9The father has brought his own motion to change, dated September 6, 2012, the final orders of Justice Dunn, dated April 29, 2011, and January 13, 2012, granting sole custody to the mother. He is now seeking joint custody of the boys with primary residence to him. In his view, the mother should have the alternative weekend access.

10This has not yet been dealt with by the Court on a final basis. It is still in settlement conference mode.

11The mother then brought the within motion (January 21, 2013) which is, effectively, also a motion to change.

12The two perhaps ought to have been heard at the same time.

13The father also brought a separate motion for contempt, dated August 27, 2012, claiming that the mother had not facilitated his access on Father's Day in 2012. He withdrew this, however, on January 30, 2013.

14The final order of Dunn J., dated April 29, 2011, provides, inter alia:

1. Sole custody to the mother.
2. The mother shall confer with the father with respect to major decisions regarding religion, education and medical treatment, and if agreement cannot be reached, she can make the decision.
3. The father shall have access on alternate weekends from Friday at 4:30 p.m. from daycare or school until Sunday at 6 p.m., and each Tuesday from 4:30 p.m. until Wednesday morning at which time he will then drop the children off at daycare or school. Furthermore he shall have access to the children on Father's Day as well as summer and Christmas holidays.
4. The father is to pay child support in the amount of $330.00 per month.

15The final order of Dunn J., dated January 13, 2012, provides, inter alia:

1. Arrears of child support are fixed at $2,870.00 as at December 1, 2011, and shall be enforced by federal garnishment and by partial assignment of any motor vehicle accident proceeds.
2. Ongoing child support of $330.00 per month shall be terminated as at December 1, 2011.
3. The father shall notify the mother when he is no longer on public assistance and shall provide employment particulars.

16The parties were married on July 3rd, 2004. They separated on September 19, 2009.

17The father's grounds for bringing the pending motion to change include wanting more involvement in the medical and educational needs of the boys. He claims that he has been denied information about their medical appointments and diagnoses; information about the schools they will be in enrolling in; and not being able to speak to teachers about their well-being. Furthermore, he seeks to be more intimately involved in their religious upbringing. He contends that they have been unable to participate in any extracurricular activities due to the mother's long work day. He is not presently working and is on a disability. He now has the time to take them to their medical appointments as needed.

18The mother's response, dated October 4, 2012 to the pending motion to change, sets out the following position:

1. The father's access should be varied to being supervised for a minimum period of 6 months.
2. She should be entitled to apply for travel documents and passports for the children and to take vacations with them without the consent or approval of the father.
3. The term should be specified that access will take place each Father's Day from 10 a.m. to 6 p.m.
4. Summer holiday access by the father should be reduced to two non-consecutive weeks on the basis that he continues to alienate the children from her by speaking about her in a disrespectful manner and telling them they do not have to listen to her.
5. Absent an emergency, the father is to notify her if he intends to take the children to any medical or holistic practitioner.

19Her reasons for this position include the following:

1. She has endured nothing but problems from the father since the Office of the Children's Lawyer recommended that she have sole custody of the children.
2. In December, 2010, the father was involved in a minor motor vehicle accident and suffered a fractured wrist. He did not exercise access to the boys for a period of 17 weeks after the accident.
3. The father has not worked since October, 2010. He was terminated from his employment at a Dollar Store due to a breach of company policy. He presently resides with his mother.
4. On Father's Day, 2012, she was prepared to drop the children off at his residence at 10 a.m. provided he return them by 6 p.m. He did not agree. In the result, he did not see the children. The reason why she wants to specify a return time is because there was a previous incident on Eid when he was to have returned the boys by 6 p.m., but did not do so until the next morning.
5. There have been at least 8 occasions when he has not returned the boys to the daycare centre by 9:00 as required by the terms of the order. His blanket explanation is that the boys were "sick", however, at no time has there been any written medical confirmation of same.
6. She could have, but did not bring her own motion for contempt, as she was trying to avoid the costs of doing so. She was also hoping that the Children's Aid Society, whom she had contacted, could assist in having the father comply with the access terms, and that he would refrain from his verbal abuse of her and his efforts to turn the boys against her.
7. It should be noted that the final orders were made as a result of consent minutes of settlement, and after the parties had attended mediation.
8. The father had been unemployed and at home on a full-time basis for almost 7 months by the time the minutes of settlement were signed in April, 2010. His "spare time" that he refers to in his motion to change should not, therefore, represent a material change in his circumstances.
9. The parties were to use a log book. However, the father has not been documenting the medical status of the boys, which, she submits, illustrates his lack of concern for them.
10. The father has used racial epithets against the mother in the presence of the children.
11. He holds an irrational and ongoing belief that she participates in "voodoo" and "black magic".

3:0 THE POSITIONS OF THE PARTIES ON THE PRESENT MOTION

3:1 The Mother

20The mother's position on suspending access is based on her sworn affidavits of January 21 and January 28, 2013. They include the following salient points:

1. They attended mediation on November 28, 2012. However, the mediator was unable to continue because she had serious safety concerns about the children as a result of what the father said. The Court now knows from hearing the oral evidence of the mediator, Rosanna Breitman, on January 30, 2013, that there had been a marked change in his behaviour. He became agitated toward the mother, raised his voice and became very threatening. He insisted that the mother was putting "devils" and "demons" in the boy's stomachs and killing them over time. Furthermore, he indicated that his own father had died of a heart attack, and he believed that this was due to the mother practicing "black magic". The Peel Children's Aid Society has now been notified of this incident.
2. He continues to believe, and demonstrates by his actions and words that he is "above the law" and does not have to abide by Court orders. In the result, his actions are not consistent with the best interests of the children.
3. Both the Office of the Children's Lawyer and the Children's Aid Society have previously recommended that he take a parenting course to address his limited understanding of child development, and to learn more strategies in dealing with the boys' behaviours. However, he has either refused or been unwilling to do so. As a follower of Allah, he seems to take the position that no one can tell him what to do, including the Court. He maintains that he is superior to everyone because of his religions stature.
4. He continues to materially misrepresent facts to the Court in an effort to accomplish his goal of wresting the children from her sole custody. He apparently still has unresolved issues relating to her, and that these are, unfortunately, being shared with the children.
5. He continues to claim that she is an unfit mother, and that Allah will punish her for this.
6. He has written in the log book that she has no brain, no common sense, has poor parenting skills, and that she does not love the boys. The log book is only supposed to be used to document their needs.
7. She is concerned about his ability to remain rational, given his strong religious beliefs.
8. She wishes to enrol the boys in extracurricular activities. She submits that he refuses to take them to soccer, for example, because he believes it is too late for them on a school night.
9. He continues to send emails criticising the way in which she addresses the boys' medical needs. The tone of many of the emails suggests that he cannot communicate civilly with her.
10. She has tried everything to have him comply with the Court orders and to stop engaging in conduct which is harmful to the children, but to no avail.

21She claims that he has consistently called her a "kafir", which is a highly offensive and derogatory term meaning "disbeliever", or "infidel", or one who denies or covers the truth, and who rejects God.

22She is unable to maintain a working relationship with him because of his aggressive and accusatory behaviour. It has reached the point where she is fearful of the boys being in his care.

23She submits that he is a different person when he comes before the Court. However, once beyond the scrutiny of the Court, he reverts to his aggressive behaviour, which he has consistently been doing since 2010.

24In the alternative, she submits that supervised access will assist in addressing the following concerns:

1. To eliminate the boys and the father speaking disrespectfully about her when in his home.
2. To avoid the father's continual verbalizing to the boys that she is "evil", that she practices "black magic" and "voodoo", and that she can do harm to people.
3. His consistent irrational belief that she is somehow "killing" the children could result in him fleeing with them.

25She, therefore, asks the Court to either suspend access altogether until the father undertakes a thorough psychiatric assessment, or, alternatively, since he only shows his irrational behaviour when in her company, his access should be varied to be supervised.

26In her oral submissions, counsel for the mother summarized the reasons why suspended or supervised access is required:

1. The father repeatedly initiates the conflict between them.
2. Even after 2 ½ years he still cannot "let go".
3. He goes out of his way to create conflict.
4. He continues to accuse the mother of having been involved in an incestuous relationship with her own father.
5. He fails to appreciate or have any insight into the fact that any form of denigration of her impacts the boys negatively.
6. The mother fears that his behaviours and actions are forming the foundation of an alienation situation.
7. He continues to maintain a belief that she practices "black magic" and continues to tell the children that this is so.
8. His behaviours in this regard have been unrelenting for at least two years.
9. The log book is rife with negative entries and references to voodoo and black magic.
10. He believes that he is the only one who knows what is best for the children.
11. He has refused or ignored the recommendations that he take a parenting course. He believes that because he is a counsellor himself, he does not require this.

27Accordingly, she submits that nothing short of at least supervised access will suffice, if for no other reason than to force the father to change his behaviours. By doing so, this will provide a "record" as to how he interacts with the children and will provide an evidentiary foundation as to whether he is able to refrain from criticizing her. Counsel stresses that something must be done immediately to change the dynamics of this disturbing situation in an effort to address what is in the best interests of the children. Since the father has demonstrated time and time again that he ignores the terms of the Court orders, a supervisory component is necessary.

28In due course, she intends to ask the Court to dismiss the father's pending motion to change. Joint custody is untenable because they are unable to cooperate or communicate with one another. Although she believes she is capable of doing so, she claims that he cannot or will not. She will be relying on the contents and recommendations of the report of the Office of the Children's Lawyer, dated October 13, 2012, which identifies the issue of conflict and mistrust between the parties, and the fact that they are unable to agree on what is in the best interests of the children. Joint decision-making has not been effective.

3:2 The Father

29He is a graduate of Hitaz Islamic University in London England. He is a Muslim priest, qualified to conduct services in a mosque and to perform marriage services in the Muslim faith.

30His position is that access should be neither suspended nor supervised. He intends to ultimately seek joint custody of the boys, with primary residence to him and weekend access by the mother, in his own pending motion to change.

31Therefore, until such time as this motion to change can be determined, the Court should, at the very least, maintain the status quo.

32He submits that any form of medical/psychiatric assessment of him is not required or necessary. He has provided a letter from his family doctor confirming that he has never suffered from any mental health issues.

33He believes that the mother is attempting to attack his good character by making the log book "public". It was his understanding that this was to be treated as a confidential document, as if it was between a priest and his parishioner. In any event, he will now restrict his comments to the children's welfare, and will not use it for personal comments.

34He apologizes if she somehow believes that comments he was making to her were insulting, hurtful or derogatory. He claims that any words or terms he has used are cultural in nature, and have different meanings in Trinidad, their country of origin.

35He claims that their marriage over 7 years was a happy one, until their respective parents became involved in their affairs.

36He denies her suggestion that he has administered medicine and medications to the boys inappropriately. The only directions he has ever followed is on the advice of the family doctors.

37He denies having made any references to "black magic" other than just making passing comments.

38He acknowledges that they have different approaches to raising the children. Nonetheless, they are both well-qualified parents. He contends that she has a relaxed attitude toward discipline, and lets the boys "run wild". He also believes that she is quick to show angry emotions when some of his actions or decisions do not suit her.

39She makes many references to him being late in returning the boys after access. This only happened once, while celebrating Eid (August 31, 2011), the last day of Ramadan, when the fasting ends. His family and friends were celebrating. He was unable to leave without insulting everyone at the gathering. Otherwise, he submits that he has always returned the boys by 6 p.m., notwithstanding that this has prevented him from being able to have Sunday supper with them. He believes that the "usual" time to return the boys after weekend access should be 8 p.m. and not 6 p.m.

40He has come to accept the recommendations of the Office of the Children's Lawyer report, and the terms of the final orders. However he now wishes to expand access to have more overnights and return the boys to school the next morning. By doing so, not only will this allow him to see them more, but will allow him to prepare meals and lunches for them. He also believes it will give the mother a "break" so she can rest up and get ready for her work.

41He refutes her suggestion that he refused his consent to sign travel documents. The impasse arose, unfortunately, from her wanting him to pay the legal fees for the preparation of the necessary documents. Had he known it would create all this trouble, he would have relented. Instead, he submits that she acted impulsively and abruptly, and was not willing to compromise or talk the matter through.

42He denies he ever called her racial names such as"blackie".

43After he sustained the injury from the car accident, he claims that she kept the boys away from him, knowing he could not get around. He submits that it is erroneous for her to say that he was avoiding the boys and not wishing to exercising access.

44He claims that his religious training requires him to be humble, and full of humility with his parishioners. He believes that he carries this through with his own family.

45Although willing to improve his parenting skills, he claims that nothing has been offered to him in this regard.

46He denies that he has not, or would not follow Court orders because of his belief in Allah.

47Although he acknowledges that the mother is capable, her emotions can sometimes get in the way to the point where she acts irrationally and denies him access.

48He did not mean to ever say that she was an unfit mother. However, she is sometimes too tired to look after the boys because of her work schedule.

49He claims that shortly after he sponsored her to come to Canada, and once she obtained her citizenship, she took advantage of the first excuse to leave him. He believes she used him as her "ticket" to get into the country.

50In his oral submissions, counsel for the father summarized the reasons why the father believes that suspended or supervised access is not required:

1. He is trained as a counsellor and can use these skills to assist in raising the boys.
2. He is quite prepared to have the Children's Aid Society involved in this matter.
3. He is capable of refraining from using expressions which may appear to be derogatory in nature, although, given their respective family backgrounds, these are not meant to be insulting.
4. He has never misused or abused antibiotics on the boys, nor has he ever employed self-help remedies to treat them.
5. He believes that the main issue between them is their different philosophies in raising the boys. Whereas his approach tends to be somewhat more religious, hers is a more relaxed attitude towards discipline.
6. He disputes that returning the boys on time has ever been an issue.
7. Although he will not submit to any form of medical or clinical assessment, he is quite prepared to take a parenting course if ordered to do so.

51In conclusion, he sees the dynamics between them as "pushing each other's buttons". That said, he undertakes to find a way to make access more meaningful.

3:3 Reply Submissions by the Mother

52Counsel submits that the mother has not been involved in "game-playing", nor has the mother tried to "push his buttons". In fact, the mother claims it is he who has done so. The mother cited in her evidence the example when the father would not give her his consent to travel in the summer of 2011, as well as 2012. His materials indicate that she brought the matter to Court because he would not agree to pay the minimal fee to have the travel documents prepared and signed by legal counsel. She submits that this is not only erroneous, but is yet another misrepresentation of the facts. The log book clearly demonstrates that he was given the option to attend at her lawyer's office and the necessary documentation would have been signed without fee. However, he did not act on this.

53Evidence filed by the mother in support of her view that the father thinks he knows best, relates to the medical condition of the older boy, Nabil. He has problems with his legs and feet. There is an indication that he may have the early signs of cerebral palsy. The father was supposed to take him for an MRI, but did not.

4:0 ANALYSIS

4:1 Access – General Principles

54S.24(1) of the Children's Law Reform Act (hereinafter referred to as the "Act") provides that custody and access shall be determined on the basis of the best interests of the children. The Court shall consider their needs and circumstances including the love, affection and emotional ties between the children and each parent; the children's views and preferences; the length of time the children have lived in a stable home environment; the ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and any special needs; any plans proposed for the children's care and upbringing; the permanence and stability of the family unit; the ability of each party to act as a parent; and the relationship between the children and each party.

55"Best interests" is very much a fact-specific exercise, peculiar to each child and his or her respective circumstances.

56One's past conduct can be considered if it is deemed relevant to the ability to act as a parent, and whether there has been a history of violence or abuse.

57Another consideration is to assess whether each parent is able to foster the children's relationship with the other parent.

58Another relevant consideration is to determine if each party has demonstrated an insight into the dynamics of their relationship as parents, and can manage the conflict.

59A parent's personality traits impact significantly on his or her ability to provide guidance for children. It stands to reason, therefore, that a nurturing disposition and flexible parenting style might better meet a child's emotional needs, as opposed to a manipulative or controlling type of behaviour.

60The Court, therefore, aims to consider whether parents are capable of putting the children's needs ahead of their own. This requires an examination of the respective parenting skills of the parties. Quite obviously, one who is not able to provide structure for children or insulate them from conflict demonstrates weak parenting skills.

61In determining whether access is in the best interests of the children, the Court should not start with the premise that a parent is "entitled" to access. The existence of a biological connection does not, in and of itself, guarantee rights to access. Any "rights" belong to the children, and not the adults.

62It is also important to note that risk of harm to children is not a condition precedent for limitations on access. Many decisions on access may involve no reference to harm.

63Where possible, the mandate of the Court is to promote maximum involvement by both parents in the lives of the children.

64It is only where the best interests of the children have been compromised, where limitations should be put on this approach.

65Religion can also be a factor. To allow one party, on the basis of religion, to attack the morality of the other parent cannot be in the best interests of the children. Therefore, intolerant, extreme or dogmatic religious beliefs by one party can be problematic.

4:2 No Access – General Principles

66Access between a parent and children should only be interfered with in demonstrated circumstances of danger to the children's physical or mental well-being.

67The general purpose for s.24(3), dealing with one's past conduct, is to attempt to separate conduct related to inter-spousal acrimony from conduct that affects one's ability to properly parent their children.

68One such concern is parental alienation. This is a situation where one parent, consciously or unconsciously, attempts to keep the children from the other. This can occur where one parent has a negative or unsupportive attitude toward the other. This can also occur where one's conduct and words in the presence of the children demonstrates one's anger and bitterness toward the other. In circumstances where one consistently denigrates the other, this could tip the balance in favour of such an order.

4:3 Supervised Access – General Principles

69S.34(1) of the Act provides that the Court has the necessary and appropriate authority to order such form of access.

70In general, supervised access is not intended to be a permanent arrangement, but is a short-term solution to a specific set of circumstances.

71Therefore, any such order which does not provide for either a transition to unsupervised access, or a fixed review date, will only be in rare circumstances.

72Supervised access may be necessary to ensure the safety of the children where one party has, for example, shown no insight into his or her behaviour, or where one has been verbally or physically abusive toward the other.

73Supervised access may also be appropriate in circumstances where the children would be subject to potential harm if access was unsupervised.

74Therefore, this form of access is intended to protect children from risk.

75It may also be implemented where it is reasonable to assume that it will result in the required change in the conduct of the access parent.

76This form of access may be beneficial to children if it insulates them from the conflict between their parents or the significant influence of one or the other, and allows them to see a parent in a stress-free environment.

77It is also appropriate for the Court to consider this form of access to facilitate a parent gaining insight into the reasons for the requirement for supervision.

78Therefore, where a parent's conduct has been problematic and inappropriate over a significant period of time, or whether there has been a refusal to acknowledge the impact one's behaviour has on the children, such an order may well be appropriate.

4:4 Application of the Evidence to the General Principles

79The Court finds that the threshold has not been met to consider an order for no access by the father.

80Although the spectre of alienation has been raised in the mother's materials, the Court wishes to be very cautious before attaching such a label to the dynamics of this relationship. The Court is not presently satisfied that this is a campaign by the father to turn the boys against their mother.

81That said, the Court is satisfied, however, on a clear balance of probabilities, that supervised access is required, at least temporarily, to remind and motivate the father that his behaviours, both attitudinal and actual, must change immediately.

82In reaching this determination, in no way is the Court doubting the unerring love the father has for the boys. In fact, it is because of this that the Court is confident that the father will respond positively to a temporary order of supervision.

83His materials, and the oral presentation of his position in this motion, demonstrate that he is willing to do whatever it takes to maintain some form of access. The Court accepts that he is being genuine and sincere in this position, and takes him at his word.

84The sad irony in this case, at present, is that the father is educated and intelligent, and appears to have an understanding of the human condition, at least when he is acting in his capacity as a counsellor. However, as is often the case with many individuals, he is unable to employ these same techniques and display the same insight when dealing with members of his own family.

85The hallmark of having insight and awareness is to acknowledge that these core areas in one's life can be improved upon.

86Perhaps the most disturbing and obvious example of the father's present inability to have insight, is his thinking or believing that somehow, denigrating the mother, accusing her of practicing "black magic", or in criticizing her for not being as pious as he, is not having some form of negative impact on the boys.

87His materials do not so much refute that he ever denigrated the mother, as much as they attempt to explain that these were mere cultural expressions and were not meant to insult her. This position, in the Court's view, defies logic and credulity.

88The wealth of information provided by the mother in her materials about the father's irrational and abusive behaviour has some substance and cogency. The Court finds, therefore, that her allegations are neither reckless nor indefensible complaints, made by a scorned partner who is merely trying to oust or eradicate the father from the children's lives.

5:0 CONCLUSIONS

89Accordingly, the Court intends to make an order for supervised access by the father. However, this will be temporary and subject to review, depending on the progress made, and in keeping with the best interests of the children. The Court makes this determination on the basis that it will be beneficial for the children, whose safety requires it until such time as the father is sufficiently rehabilitated, and the children are no longer in danger of emotional harm.

90It is presently in the best interests of the children that the father exercise access in a structured, consistent, safe and child-focussed manner.

91This will also assist in eliminating the exposure to conflict which would inevitably result if the parties had contact on access exchanges.

92There is presently no other viable way in which access could continue unsupervised, as neither party has put forward a plan which includes a mutually acceptable third party to facilitate same.

93By making such an order, the Court wishes to encourage the father to take this opportunity to demonstrate that he can put the boys' needs ahead of his own rigid, dogmatic, and inflexible parenting style.

94For this reason, and because he has already agreed to do so, he should enrol immediately in a parenting program. By doing so this will accelerate a change back to unsupervised access.

6:0 ORDER

95The Court makes the following temporary order:

1. The respondent father, Darryl Shazad Mungal, shall have supervised access to the children, Nabil Mungal, born June 21, 2006, and Nafis Mungal, born November 9, 2007, each Saturday or Sunday for a period of two hours, at times to be mutually agreed upon between the said father and the supervised access facility.

2. The father shall pay all access fees and shall provide the Court with copies of the access reports.

3. Access shall be with both children together, unless otherwise agreed.

4. The applicant mother, Naadira Mungal, shall be responsible for all transportation and transportation costs.

5. The father shall not denigrate or speak ill of the mother when exercising access.

6. Unless there are protection issues, the involvement of the Children's Aid Society shall not be a bar to the father exercising access.

7. The father shall enrol in and successfully complete a parenting program forthwith, with emphasis on learning techniques to communicate civilly and respectfully with the mother in the presence of the children.

8. The father shall enrol in and successfully complete a spousal abuse program, with emphasis on learning techniques to control his coercive and controlling behaviour.

9. Either party is at liberty to bring a motion after 4 months to review the status of this temporary order, upon notice. The trial coordinator shall make the necessary arrangements in this regard.

10. The mother shall have 14 days to make written submissions for costs, and the father shall have 7 days thereafter to serve and file responding materials.