Court File and Parties
Date: June 5, 2020
Court File No.: D21130/18
Ontario Court of Justice
Between:
A.T.
Applicant
-and-
M.H.
Respondent
Counsel:
- Ayesha Hussain, for the Applicant
- Ryan Manilla, for the Respondent
Heard: June 3, 2020
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The parties are the parents of three children, ages 9, 7 and 4 (the children). Both parties have brought motions seeking temporary custody of the children, or in the alternative, seeking generous parenting time. The applicant (the mother) also seeks a police enforcement order.
[2] After hearing the motions, the court gave brief oral reasons and ordered the respondent (the father) to return the children to the mother by 6 p.m. that day. The parties were advised that written reasons for decision, which would include the parenting time order, would follow shortly.
[3] This is that decision.
[4] The court reviewed two affidavits from the mother, two affidavits from the father, and an affidavit from the father's mother (the paternal grandmother), and heard submissions from the parties.
Issues for Decision
The issues for the court to decide on these motions are:
a) What temporary parenting orders are in the best interests of the children?
b) Should a police enforcement order be made as requested by the mother?
Part Two – Background Facts
[5] The mother is 35 years old. The father is 48 years old.
[6] The parties were married in 2009 and first separated in June 2018. They are now divorced.
[7] The parties are the parents of the children.
[8] The parties first separated after the father was charged with threaten death and assault against the mother. The father's criminal release terms prohibited him from having contact with the mother.
[9] The mother issued an application for custody and child support in this court on July 17, 2018. The father did not file an Answer.
[10] The mother withdrew her application on August 29, 2018.
[11] The father then entered into a Peace Bond for one year and the criminal charges against him were withdrawn. The parties briefly reconciled.
[12] The mother moved with the children into a woman's shelter for women having experienced domestic violence on September 26, 2018. She resided there with the children until September 1, 2019, at which time she moved into her present home with the children in Toronto.
[13] The mother claims that the children have primarily lived with her and that the father would irregularly take the children on weekends from Friday to Sunday. The father says that the children have spent equal time with both parents since their final separation in September 2018.
[14] The mother says that on April 7, 2020, she reached an oral agreement with the father about where the children would live during the COVID-19 pandemic (the pandemic). She says that they agreed that the children would rotate spending 30 days in each home, with the first 30 days in the father's home.
[15] The father says that there was no such agreement. He stated that the mother dropped the children off with him on March 28, 2020, saying "you can keep them". He deposed that she had limited contact with the children until she asked for them to be returned to her on May 7, 2020. He refused.
[16] The father and the paternal grandmother allege that the children have made allegations of abuse against the mother and are scared to be with her.
[17] The mother has not had in-person contact with the children since April 7, 2020. She has been permitted little telephone contact with them.
[18] The mother issued this application on May 22, 2020. On May 26, 2020, the court granted her request to bring her urgent motion.
[19] On June 1, 2020, the court granted the father's request to bring his urgent motion.
[20] The father contacted Durham Children's Aid Society (Durham) after the mother issued her application. He says that Durham interviewed the children on May 26, 2020.
[21] The court was advised by counsel for the parties during submissions that they were sent an email on June 2, 2020 by Durham's counsel. They were advised that Durham had interviewed the children and were taking no position on this motion other than Durham supporting the children having regular contact with both parents. Durham indicated it was prepared to support the family on a voluntary basis.
[22] The court was also advised during submissions that on May 30, 2020 the father called the Toronto police and set up an appointment for the children to be interviewed by them on June 5, 2020.
Part Three – Position of the Mother
[23] The mother says that she has been the primary caregiver for the children and has cared for all of their physical and emotional needs.
[24] The mother alleges that she was the victim of serious domestic abuse by the father. She deposed that the criminal charges arose out of an incident where he assaulted her and threatened to kill her by shooting her with his hunting gun. She says that this happened in front of the children.
[25] The mother says that she was pressured by the father and his family to withdraw her application for custody and child support and to request the withdrawal of the criminal charges. The father promised to change, so she decided to give him another chance. She says that he immediately resumed his abuse and she left the home with the children to live in the women's shelter.
[26] The mother says that when she asked for the children to come to her home on May 7, 2020, further to their oral agreement, the father refused. She said he insisted that she first sign a separation agreement giving him custody of the children, with no child support payable by either party, before she could see the children.
[27] The mother says that the father has frustrated her ability to have time with the children since May 7.
[28] The mother denies ever having abused the children. She says that the eldest child told her that the father and the paternal grandmother were pressuring him to say "stuff".
[29] The mother alleges that the father has a history of inappropriately punishing and ridiculing the children.
[30] The mother says that she is agreeable to the father having parenting time from Fridays to Mondays. She wants to facilitate the children's relationship with him.
[31] The mother does not believe that the father will comply with a court order and seeks a police enforcement order.
Part Four – Position of the Father
[32] The father denies the mother's allegations of domestic violence and claims that she had him falsely charged.
[33] The father says that he has exercised equal parenting time with the mother since their last separation.
[34] The father said that he has been caring for the children since March 28, 2020 and that there was no oral agreement to return the children to the mother. He says that the mother did not seek access to the children from March 28 until May 7.
[35] The father says that he asked the children if they missed the mother and they said no. He says that the children reported to the paternal grandmother that the mother hits them and locks them in a dark closet forcing them to learn the Qur'an and that the eldest child threatened to commit suicide if he was forced to go back and spend time with the mother.
[36] The paternal grandmother deposed that the eldest child told her about the mother's abuse and threatened to kill himself if he had to go to her.
[37] The father said in his initial affidavit that he does not feel comfortable giving unsupervised access to the mother. In his second affidavit, he deposed that he believes the court should order equal parenting time, but only after it is determined that the children are safe with the mother.
[38] The father lives with his parents in Pickering and says that together, they can safely care for the children.
Part Five – Temporary Custody
5.1 Legal Considerations
[39] Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application, whether temporary or final, shall be determined on the basis of the best interests of the child.
[40] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.
[41] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27 at paragraphs 50 and 54.
[42] The status quo is a very important consideration on temporary motions for custody and access. See: McEachern v. McEachern; Panaia v. Alves, 2020 ONCJ 255. The status quo whereby the children were enjoying maximum contact with their parents should not be lightly interfered with unless there are compelling reasons to do so. See: Lafond v. Blouin, 2020 ONSC 2396.
[43] Parties should be discouraged from using self-help to establish a new status quo. See: Howard v. Howard, [1999] O.J. No. 3164 (Ont. Fam. Ct.); Nyari v. Velasco, 2008 ONCJ 272. In Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.), it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.
[44] In C.Y. v. F.R., 2020 ONSC 1875, the court ordered the children returned to the mother when the father unilaterally attempted to alter the status quo.
[45] In Raifi v. Raifi, 2014 ONSC 1377, the court stated the following at paragraphs 21 and 22:
The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be trusted with custodial authority they would likely abuse. Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113
Where only a short amount of time has elapsed between the deliberate creation of a new status quo in the hearing of the temporary motion, the court will be more inclined to presume that her restoration of a previous successful status quo is appropriate. Kennedy v. Hull, 2005 ONCJ 275, 2005 O.J. 4719.
[46] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
[47] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962.
[48] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.
[49] Children should have maximum contact with both parents if it is consistent with the children's best interests. See: Gordon v. Goertz, supra.
[50] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.
5.2 Who Was the Primary Caregiver for the Children Prior to the Pandemic?
[51] The evidence supports the mother's position that she has been the primary caregiver of the children. In making this determination, the court found evidence from independent sources to be the most reliable.
[52] The mother filed a letter from the program and services coordinator from the women's shelter she resided at with the children. It confirmed that she and the children lived there for almost one year – until September 1, 2019. It set out that the older two children stayed with the mother from Monday to Friday and the youngest child was with her every day – corroborating the mother's evidence. The youngest child attended daycare while her mother and siblings attended school.
[53] The letter described how the older two children participated in programming at the shelter.
[54] The mother also filed a letter from the children's school principal dated May 13, 2020. It set out that the mother cared for the children during the week and the father cared for them on the weekends. The principal observed that the mother would usually drop off the children in the mornings and pick them up in the afternoon, with the father picking up the children on Friday afternoons - again, corroborating the mother's evidence.
[55] The father issued an application for divorce on August 4, 2019 in the Superior Court of Justice. The application includes statements that the father exercised equal parenting time with the mother. No corollary relief was sought in this application. The mother did not contest the divorce. The father claims that this proves that he equally parented the children. The court does not draw that conclusion, just as it does not draw the conclusion that the father agreed that the mother was the children's primary caregiver when he did not file an Answer to her original custody application. When no corollary relief is being sought, it is not unusual for a divorce application to go uncontested.[1]
[56] The father also presented a chart of days he says that the children spent with each parent after November 7, 2019 to support his position that he exercised equal parenting time. The court finds the chart to be self-serving and therefore not reliable.
5.3 Was There an Agreement to Share Parenting Time During the Pandemic?
[57] The court finds that on April 7, 2020, the parties orally agreed to rotate the children in their homes during the pandemic for 30-day periods.
[58] The father acknowledged in his affidavit that the parties discussed that the children shouldn't be moved around during the pandemic.
[59] The mother filed texts showing that she expected that the children would come back to her on May 7, 2020. She wrote in the texts that she had given the father the children because she had trusted him.
[60] It is also informative that the father sent the mother texts on May 8, 2020 stating that he was advised not to give her the children unless she signed the documents (this was the separation agreement referred to by the mother). He then blocked her number so she could not speak to the children.
5.4 The Abuse Allegations
[61] The court placed very little weight on the allegations of abuse of the children made by the father and the paternal grandmother. The evidence presented about these allegations is unreliable.
[62] The father and the paternal grandmother provided inconsistent evidence about these allegations.
[63] In his May 22, 2020 affidavit, the father deposed that at the beginning of April 2020 the children approached the paternal grandmother and made the allegations of abuse. He alleged that the eldest child said he would commit suicide if he was forced to see the mother.
[64] The paternal grandmother's evidence was different. She said that only the eldest child (not the children as stated by the father) made allegations against the mother. She said that the allegation about locking them in a dark closet was made on May 3, 2020 – not in early April as stated by the father. She also said that on May 8, 2020 (not in early April), the eldest child said he would kill himself if he had to go to his mother.
[65] The timing of the father reporting the alleged abuse to the authorities is highly suspect. Despite his evidence that the allegations were made in early April 2020, he did not report the allegations to Durham until after the mother issued her court application on May 21, 2020. He did not call the police until May 30, 2020 – only after Durham interviewed the children on May 26, 2020. Durham did not call the police.
[66] It is also informative that after interviewing the children on May 26, 2020, Durham advised counsel for the parties that it was not taking a position on the motion and that it supported the children spending regular time with both parents. It was not seeking to restrict the mother's contact with the children.
[67] The father also made no reference about abuse of the children in his texts that he sent to the mother on May 8, 2020 as a reason for why he was not permitting her contact with the children – he just set out the requirement that she sign the separation agreement that he had had prepared.
[68] The letter from the program and services coordinator from the women's shelter sets out that the mother kept the children "safe, protected, in good health and nurtured". She was described as a good, responsible, nurturing parent and a dedicated mother to the children. This contradicts the father's characterization of the mother.
[69] This all bolsters the mother's evidence that the eldest child told her that the father and paternal grandmother were pressuring him to "say stuff" about her.
5.5 The Ability of Each Parent to Facilitate a Positive Relationship with the Other Parent
[70] The evidence indicates that the mother has always facilitated the children spending generous parenting time with the father. Even now, she is prepared to give him very generous parenting time.
[71] The same cannot be said for the father. He agreed to rotate the children for 30-day periods during the pandemic and then took advantage of the absence of a written agreement to obtain a litigation advantage.
[72] The father claims that there was no oral agreement with the mother. He then says that he didn't return to a shared parenting agreement due to the abuse allegations. Yet, in his May 8, 2020 texts to the mother, he makes it clear that he will not give the mother the children until she signs the separation agreement he had prepared. This is not dissimilar to the facts in C.Y. v. F.R., supra, where the father refused to return the children to the mother unless she signed an agreement for equal parenting time. That form of coercion was not acceptable in F.R. and it is not acceptable here.
[73] The father then blocked the mother's number and did not let her speak to the children. It was only after she called the police and they intervened that she was permitted a telephone call on May 22, 2020. The mother had not been able to speak to the children since May 28, 2020.
[74] The court is very concerned that the father and the paternal grandmother are pressuring the children to make allegations against the mother.
[75] The court is not confident that the father will support a healthy relationship between the mother and the children.
5.6 Domestic Violence
[76] The father says that the withdrawal of the criminal charges against him supports his claim that the mother falsely accused him. That is not the case. The father entered into a Peace Bond and the mother explained why she requested the withdrawal of the charges.
[77] The mother attached a text that supported that the father can be verbally abusive. It criticized how she dressed one of the children. He wrote: "She looks like a slut not a Muslim. You're far removed from being a Muslim. I'm going to take a pic of her and show everybody how to dress her. You're ridiculous".
[78] The father's actions in breaching the oral agreement, trying to coerce the mother into a separation agreement if she wanted to see the children and subsequently denying her contact with the children is indicative of a controlling and coercive personality. His actions have only bolstered the mother's claims of domestic violence during their relationship.
5.7 Other Best Interest Factors
[79] The children have had their closest relationship with the mother. The women's shelter observed her parenting over one year and commented positively.
[80] The mother has always looked after the educational, social and health needs of the children and provided them with a secure home.
[81] The children have spent generous parenting time with the father since the parties separated and are comfortable in his home.
[82] The court is very concerned that the father and the paternal grandmother are putting their own needs ahead of those of the children and are attempting to undermine the children's relationship with the mother. That is not good parenting and can cause long-term damage to the children.
5.8 Conclusion
[83] It is in the best interests of the children to grant interim custody of them to the mother.
Part Six – The Father's Parenting Time
[84] The father seeks a minimum of equal parenting time with the mother. He submits that this was the status quo before the pandemic.
[85] The court finds that equal parenting time was not the status quo before the pandemic, although the father had significant parenting time with the children. The court accepts the mother's evidence that she had the children with her during the week and the father had the children with him on most weekends.
[86] The court finds that the mother's oral agreement with the father to share parenting time during the pandemic did not create a new status quo. This is because the father chose not to honour their agreement and instead tried to take advantage of having had the children in his care for the first 30-day-period.
[87] The court is very concerned about the father's behaviour and concerned that he and the paternal grandmother are involving the children in the litigation, undermining the children's relationship with the mother and destabilizing them. It is not in the best interests of children to spend equal time with a parent who acts this way.
[88] The mother has not seen the children since April 7, 2020. It is in their best interests that they spend a dedicated period of time with her before the father resumes his parenting time. Hopefully, this will rectify some of the undue pressure that appears to have been placed on the children by the father and the paternal grandmother.
[89] Once the court resumes the father's parenting time, it is in the children's best interests that parenting time take place on alternate weekends. The court will want to see that the father and the paternal grandmother are acting responsibly and supporting the children with the mother before it considers restoring the weekly parenting time that was taking place before the pandemic. If his poor conduct continues the father should expect his parenting time to be further reduced.
Part Seven – Police Enforcement
[90] The mother seeks a police enforcement order. At the conclusion of the motion, the court indicated that it was not prepared to make such an order at this time.
[91] Police enforcement should be one of the last enforcement tools used by a court. In Mackie v. Crowther, 2019 ONSC 6431, Justice Alex Pazaratz wrote the following about police enforcement orders at paragraph 14:
a) If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?
b) Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between warring parents than to have police officers descend on an already inflamed situation.
c) Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with "bad guys." No child wants to think of their parent as being a "bad guy." And no parent should place a child in such an emotionally conflicted position.
d) If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.
[92] Although the court is not making a police enforcement order at this time, it will issue the same warning that was made by the court in Brazeau v. Lajambe, 2020 ONSC 3117, where Justice Bale wrote at paragraph 44:[2]
If the [Respondent] father is required to return this matter to Court for further enforcement for any reason including the child's 'refusal' to attend, the mother is forewarned that far more drastic remedial measures will likely be ordered by the Court.
Part Eight – Conclusion
[93] Temporary orders shall go on the following terms:
a) The mother shall have temporary custody of the children.
b) Starting on June 19, 2020, the father shall have parenting time with the children from Fridays at 6 p.m. until Sundays at 6 p.m. He shall also have reasonable telephone and virtual contact with the children.
c) The children shall spend all other parenting time with the mother.
[94] The matter is adjourned until August 4, 2020 at 10:00 a.m. for a case conference. Unless otherwise notified, the conference will be held by Zoom video. Court staff will send the call-in details to counsel.
[95] The mother may make written costs submissions by June 12, 2020. The father may make his written response by June 19, 2020. The submissions should not exceed 3 pages, not including any offers to settle or bills of costs. The submissions should be emailed to the trial coordinator at 47Sheppard.ocj.family.trialcoordinator@ontario.ca.
[96] The parties are encouraged to use this adjournment period to negotiate an agreement of the issues before the court in good faith. It is very important that they do their best to resolve these issues and protect the children from further conflict.
Released: June 5, 2020
Justice S.B. Sherr
Footnotes
[1] The mother claims that she was never served with the divorce application, but the determination of that issue is not required to determine the issues on these motions.
[2] A similar warning was made by the court in Gerges v. Ayad, 2020 ONSC 3375.