COURT FILE NO.: FC-21-00000201 DATE: 20210316

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

R.C. Applicant

– and –

L.C. Respondent

Counsel: Gonen Snir, for the Applicant Holly Langille, for the Respondent

HEARD: March 10, 2021

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The applicant father (the father) has brought an urgent motion seeking parenting time with the four children of the marriage. The respondent mother (the mother) moved out of the matrimonial home with all four children on December 2, 2020, without notice to the father. The mother also transferred two of the children to a different school without telling the father. The father seeks an order that the children be returned to the school they were registered in prior to the mother’s departure.

[2] The mother takes the position that she left the matrimonial home after years of physical and emotional abuse. She seeks sole custody of the children and submits that any parenting time with the father should be supervised.

Procedural History

[3] This motion first came before MacPherson J. on February 4, 2021. He determined that the matter was urgent and scheduled it for February 10, 2021.

[4] The motion returned on February 10, 2021. The mother sought an adjournment to allow her to file police records from New Brunswick and York Region, and to permit the Jewish Child and Family Services (JCFS), which became involved on January 27, 2021, to complete their investigation.

[5] Bird J. granted a brief adjournment to permit the JCFS to complete their investigation. Both parties consented to an Order requesting the involvement of the Office of the Children’s Lawyer, and that order, together with a number of ancillary orders relating to procedural issues, were made.

[6] This matter is scheduled to return for a Case Conference on June 15, 2021.

Facts

[7] The parties were married in Israel in 2004. They are both now 50 years of age.

[8] There are four children of the marriage: S. (age 15), N. (age 13), T. (age 12) and A. (age 9). Two of the children have special needs: N has been diagnosed with autism and ADHD, and A is blind and has also been diagnosed with autism.

[9] The parties moved to the United States in 2007, first living in Los Angeles, and in 2011 moving to Brooklyn.

[10] The parties lived in the United States illegally. As part of an immigration scam, the parties were divorced in Las Vegas in March 2008, with the intention that one of them, or perhaps both, would marry an American citizen and be permitted to remain in the United States. The parties remained together and did not obtain a religious divorce.

[11] The father contends that the mother attempted to marry an American citizen, but the prospective groom declined to participate in the fraud.

[12] The mother contends that the father did marry an American woman, but immigration officials discovered that it was a fraudulent marriage and refused to grant him citizenship. The father was then divorced from his American wife.

[13] The parties remained together, moving to Canada in February 2014, first living in Nova Scotia, and then moving to New Brunswick in February 2015.

[14] The family moved to Ontario in 2016, finally settling in Richmond Hill in 2017.

[15] The parties separated on December 2, 2020. On that morning, the father went to work. When he returned home in the evening, he discovered that the mother had left the family home with the four children. The father did not know where she went, and he was unable to reach her. He called the police, who located the mother and the children on December 7, 2020.

[16] The mother has refused to disclose her location and initially would not permit the father to contact the children. He was permitted to have telephone contact with them in mid-December, and he was advised by T. and A. that their mother had moved them to a different school. They would not disclose the name of that school to the father, and the mother has refused to disclose that information in these proceedings. Since mid-December the father has remained in telephone contact with the children.

[17] The mother alleges that she has been subjected to physical, verbal and emotional abuse throughout the marriage, and that the father displays controlling behaviour. She alleges that the father has been physically abusive to the eldest son, N., hitting him when he does not comply with orders.

[18] The mother alleges that the father abandoned the family for several months in October, 2013, when he returned to Israel (he was not permitted back in the United States because of the immigration fraud), until the family moved to Canada in February 2014.

[19] The mother has attempted to leave the father in the past. In 2018, the mother left the home with the children while the father was working out of town, but she returned to him and the couple reconciled.

[20] On December 2, 2020 the mother decided to leave the relationship on a final basis, taking the four children with her, because she did not believe that they would be safe with the father after she left. She has moved into a women’s shelter. The mother states that she chose to leave on that date because the family had just been evicted from their apartment for non-payment of rent.

[21] Following the mother’s departure, the father returned to Israel on December 13, 2020, and remained there until the beginning of January. The mother would not permit the father to see the children while he was in the two-week COVID quarantine after his return.

[22] On January 19, 2021, the mother took the children to see the father for what she expected to be an overnight visit. The father refused to return the children the next day. Counsel for the father advised the mother that the father would return the children on January 24, 2021. On January 23, 2021, the father emailed the mother and advised her that he would not return the children unless she agreed to a week-on, week-off parenting schedule. The York Regional Police Service (YRPS) were called, and they facilitated the children’s departure on January 24, 2021.

[23] Following this incident, the JCFS were called and began an investigation. The JCFS reports were provided to this Court for this motion. I will return to these reports later in these reasons.

Police Reports

[24] All police reports relating to the parties from both the Fredericton and York Region police departments have been provided to the courts. The reports reveal that the parties have been involved in several fraudulent schemes, including insurance fraud and charities fraud. The details of these fraudulent schemes are set out in the police report and other documents filed. It is not necessary for the purposes of this motion to review those details.

[25] The parties don’t deny the frauds, but each party blames the other. The father’s affidavit takes the position that the mother was the author of the frauds, the father simply an innocent bystander. The mother takes the position that she was coerced by the father to perpetrate the frauds.

[26] Following the mother’s departure from the home on December 2, 2020, the police records indicate that the father went to the York Region police with evidence of these frauds in an effort to persuade them to arrest the mother so that the children would be returned to him.

[27] Since this is a motion, and neither party has been cross-examined, I am not in a position to resolve many of the factual disputes raised in the competing affidavits. I have, however, approached the claims of both parties with some scepticism. It appears from the material filed by both parties on this motion that, regardless of which, if either, party was “primarily” responsible for the frauds, the other party participated, and both parties have a long history of dishonesty. Neither party reported any of these frauds until after these family law proceedings were commenced.

[28] The police records also indicate that the mother has threatened to leave the home or left the home with the children on two previous occasions, calling the police and telling them that she was being emotionally (but not physically) abused by the father.

[29] One incident is of particular significance. On November 20, 2018, the mother took the children and went to a shelter, where she called the police. After spending three days at the shelter, the mother returned to the father.

[30] Following her return, on February 10, 2019, the mother made a video recording in which she states (translated from Hebrew): “The fact that I left home was a dreadful mistake on my part. I sincerely regret and feel sorry about it, and I won’t do it again”.

[31] She then wrote, and signed a note, dated April 19, 2019. I set out the entire letter, because I believe the contents are significant. In the letter the mother states (translated from Hebrew):

To Whom It May Concern:

I left home because I worked in the abused women’s shelter in Fredericton.

I felt confident to do that. I did not have any real reason to do that – to leave home.

My husband – [R.C.] - was in Montreal at that time. He was working. He did not do anything bad to me. He did not abuse me. He did not spit at me. He called me on the phone to speak to me. It was sheer stupidity on my part. I did not think of my children and their special needs. I was thinking only of [mother’s name].

I told my girls to lie to my husband. I was not thinking of my husband and the fact that he is diabetic. I took $4,000 dollars from home. I did not leave him any food, money or vehicle. I abused my husband. My husband asked me to return home and I did not return. Only the following day, after I spoke to my husband’s sister, I agreed to come home. I caused an infection to my husband’s nail.

I promise not to do that again. If we divorce it will be in Israel at the Rabbinical Court of Law.

Everything I wrote in my letter is true and I mean every word I said.

After I had left home without any reason I transferred my husband’s information to police.

If I had been in another place, I would not have done it.

If it was in Brooklyn, I would not have left the house.

L.C.

[32] The father kept the video and the letter and has relied on them to support his position on this motion.

[33] The mother alleges that she was forced by the father to record the video and write the letter.

[34] While I am sceptical of many of the mother’s statements, I have no hesitation finding that the video and this letter were coerced by the father. Why would the mother write or video a “confession” of this sort? It is not written to the father as an apology, it is written “To Whom It May Concern”. Whom would this concern, except the father? This note, and the language used, looks like something a hostage might write at the behest of her captor. It has all the earmarks of a coerced document, in which the father dictated the language to the mother, so that he could use it against her in some future legal proceeding.

[35] Far from exculpating the father, this video and letter support the mother’s allegation that the father was controlling and, if not physically abusive, then emotionally abusive.

JCFS Reports

[36] The JCFS has provided the Court with two reports. A preliminary report dated February 24, 2021, and a final report dated March 3, 2021.

[37] The February 24, 2021 report outlines the JCFS history with this family, dating back to April 2020, when the JCFS received a referral form the YRPS after the police were called to the family home by the oldest daughter because the parents were arguing and the children were frightened.

[38] A second referral was received from a community professional working with one of the children and who was concerned that the children’s exposure to adult conflict was harming the children emotionally.

[39] The JCFS received another call from the YRPS on December 8, 2020 after the father called the police to report that his wife and family were missing. The police attended the mother’s residence and the children were deemed safe and no concerns were noted.

[40] The February 24, 2021 Report indicates that the JCFS was investigating three specific allegations with respect to the family:

1. S. and T. are at risk of harm due to [the father’s] actions;
2. S. is at risk of harm due to [the father’s] cruel/inappropriate treatment; and
3. All of the children are at risk of harm due to an exposure by both [the mother and the father] to post separation conflict.

[41] The JCFS conducted interviews with the children in February 2021, and made the following observations:

S. …indicated that she has a positive relationship with both parents and feels safe with both of them, but feels caught in the middle. S. indicated that her mother worries when she speaks with her father as [the mother] is protective of their address and school locations and does not want this information revealed. S. shared her father often buys her gifts, but then feels that he later says she “owes him” when he asks for help with translating. S. felt frustrated when [the father] would not let the children leave after the access visit until there was a formalized access arrangement. S. said that [the father’s] lawyer said that he had the right to keep the children there, at which point S. yelled at the lawyer from the background while her dad was on the phone.

T. reported a positive relationship with both parents and said she feels safe with both of them. She reported feeling scared when police attended [the father’s] home.

N. reported enjoying talking with both parents and said he feels safe with dad “sometimes”. N. reported feeling safe with his mother. N. said he knows what his parents argue about as they speak via e-mail and [the father] uses speech-to-text to compose his emails, so N. can hear everything [the father] says.

A. reported feeling safe with both of his parents, and did not report any concerns.

The children denied any physical discipline by either parent.

[42] The report continues:

I conducted a virtual follow-up visit with the children on February 16, 2021. Both N. and A. reported looking forward to seeing their father. T. reported that she speaks with [the father] multiple times a day and while he would previously send messages to [the mother] through T., now he only says that he wants to see her and asks T. to tell [the mother] that she (T.) wants to see [the father]. T. indicated she did not know when she would see her dad, but that it might be fun to see him. T. suggested more time with her mother, and perhaps alternating weekends with her father. S. indicated that she speaks to her father regularly and that he got upset when she said she would not help him complete government documents as [the mother] felt it was inappropriate. S. says she feels her father is always trying to gain something for court and provided an example that [the father] responds to things by saying he will tell his lawyer. S. also suggested a schedule of alternating weekends, and suggested supervised visits to ensure her siblings are not “sucked in” to [the father] trying to obtain information on [the mother].

[43] The report also includes the following statement, which is significant for the conclusions in the final report:

I spoke with S. on February 22, 2021. She advised that around early February, 2021 she spoke with her father who said that he was so sad that he hasn’t seen her that he may as well jump off his balcony. S. responded by saying that if he did that he really would not see the children.

[44] The JCFS preliminary report noted the following recommendations:

1. [The father] should not rely on S. to translate for [the father], particularly for matters related to any court proceedings.
2. T. and S. are to continue to access counselling services through their school social work program, or alternatively are able to access counselling services through JFCS.
3. Both N. and A. should be connected to services that will address their Autism Spectrum diagnoses…
4. Neither parent should involve the children in post-separation conflict.
5. [The mother and father] should create a parenting plan that supports the best interest of their children. The JF&CS does not take a position on the specifics of the parenting plan.
6. At this stage, the JF&CS does not have safety concerns for the children in the care of either of their parents. [Emphasis added]

[45] The final JCFS report to the Court is dated March 3, 2021. The report verified the concerns relating to two of the three allegations listed in its February 4, 2021 report:

Based on the evidence gathered during the investigation, JFCS has verified the concerns related to the cruel/inappropriate treatment as well as exposure to ongoing post separation conflict, but did not verify the concerns related to a caregivers actions. The agency has determined that your children are in need of protection and will moving the file to ongoing service.

[46] The reference to “cruel/inappropriate treatment” is not specifically identified in this report, but appears to refer to the allegation that the father told S. that “he was so sad that he hasn’t seen her that he may as well jump off his balcony”.

School Evidence

[47] The mother has provided a letter dated February 11, 2021 from the school now attended by A. and T. The letter states:

A. is a grade 4 student who is thriving in our ASD Community Class to support his exceptionalities. The transition into our school’s community was managed by our Student Services Department and similar to his previous placement …is one of the Community Class option in this area of the school board…A. is also supported by an itinerate vision teacher and staff several times a week, which is a continuation of the programming he was receiving at his prior school. A. has quickly adjusted to being a student in our school…as well as beginning to make connections with some of the other students in this class.

T. is a grade 7 student who is also thriving in our school. She joined one of our grade 7 homerooms and has quickly acclimatised to her new school environment, making friends along with continually demonstrating above average academic skills…

Both A. and T. have adjusted well and integrated positively into all the aspect of the learning and social environment…

[48] The letter has been redacted so as not to identify the school or the author.

[49] Both the children’s previous school and their current school are part of the York Region District School Board.

Positions of the Parties

[50] In his Notice of Motion, the father has requested week-on, week-off parenting, or, in the alternative, alternate weekends and two days during the week. He has also asked that the children, A. and T., be returned to the school they were attending prior to the mother removing them.

[51] The mother has proposed supervised access every Saturday. By “supervised access” she means that the children can go to the father’s residence, but the father will have to leave his computer on so that he can be remotely monitored by a supervisor. The mother takes the position that A. and T. should remain in their new school since they are doing well, and they should not be transferred in the middle of a school term.

[52] The mother argues that the evidence indicates a history of family violence by the father, relying on the recently expanded definition of violence in s. 18(1) and (2) of the Children’s Law Reform Act, R.S.O. 1990 c. C12 (CLRA), which provide:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person; (b) sexual abuse; (c) threats to kill or cause bodily harm to any person; (d) harassment, including stalking; (e) the failure to provide the necessaries of life; (f) psychological abuse; (g) financial abuse; (h) threats to kill or harm an animal or damage property; and (i) the killing or harming of an animal or the damaging of proper

[53] The mother contends that there is evidence to support her allegations of physical and psychological abuse. In particular, she points to the evidence of coercive and controlling behaviour by the father. As indicated above at para. 34, I have already accepted some of this evidence. The balance of her evidence discloses a worrisome, high conflict relationship between the parties.

[54] The father argues that the JCFS report indicates that the JCFS had no safety concerns for the children in the care of either of the parents, and this support his position for equal parenting time and that there is no need for supervision. He notes that the JCFS investigation found that the primary risk to the children arose from exposure by both parents to post-separation conflict, which he blames on the mother for removing the children from the home without any notice to him, and for her refusing to let him see the children except under terms dictated by the mother.

[55] While the JCFS report indicates that the daughter S. suggested supervised visits with the father, the father argues that this is evidence that the daughter was coached by the mother, arguing that a 15 year old is not likely to have heard about supervised visits without coaching from an adult. This point may very well be true.

Analysis

[56] The issue before the court is the temporary custody and access to the children.

[57] In assessing custody and access issues under the CLRA, Section 21(1) provides that a parent of a child or any other person may apply to a court for an Order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

[58] The court must make this determination based on the best interests of the child. In this regard, the Court is governed by the considerations regarding the child’s needs and circumstances set out in s. 24(2) of the CLRA, which reads:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[59] In Wilson v. Wilson, 2015 ONSC 479, at para. 62, Price J. stated (citations omitted):

No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence in the court’s determination of custody and access. But the court pays particular attention to:

(i) the level of hostility between the parties, the extent to which that hostility could undermine the child’s stability, and what measures, if employed, would likely strip the hostility from the environment; (ii) the extent to which a person seeking access has used contact with the child for a purpose collateral to the child’s best interests; for example, to try to control or denigrate the other parent; (iii) the extent to which the person displaying objectionable conduct is capable of altering the behavior and motivated to do so; and (iv) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in determining what is in the child’s best interests.

[60] While there is no presumption of equal parenting time (Bembenek v. Bembenek, 2019 ONSC 4050, at para. 96), there is a presumption that regular access by a non-custodial parent is in the best interests of children: V.S.J. v. L.J.G., at para. 128; C.A.S. v. C.F., 2020 ONSC 3755, at para. 32.

[61] To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein.

[62] Often in these cases, “best interest” is determined by maintaining the status quo. The status quo is particularly important in an interim motion because the court is often not able to make factual findings if there are, as in this case, conflicting affidavits: Pancel v. Henri, 2012 ONSC 546, at paras. 25 and 26. McPhail v. McPhail, 2018 ONSC 735, at para. 15.

[63] The cases are abundantly clear, however, that the status quo cannot be established or altered by the unilateral “self-help” conduct of one parent. A parent cannot be permitted to gain a litigation advantage by unilateral action: See Rifai v. Green, 2014 ONSC 1377, at para. 25.

[64] Even if there is an alleged safety issue, a parent taking steps to ostensibly protect the child must still come to the court at the earliest opportunity on an urgent basis: Skitch v. Hiscock, 2018 ONSC 5581, at para. 15; Bloom v. Bloom, 2017 ONSC 1568, at paras. 36-38; McPhail, at para. 17; N.D. v. R.K., 2020 ONCJ 266, at paras. 80, 82.

[65] Having reviewed the reports provided by the JCFS and the other evidence available to me on this motion, and taking into account the level of conflict that has marred this relationship even before the parties’ separation, I have concluded that it would not be appropriate to provide week-on, week-off parenting at this stage. In this regard I am influenced by the evidence of the father’s controlling behaviour, and the concerns relating to his inappropriate treatment of the children.

[66] That said, given the JCFS report, I am satisfied that there are no real safety concerns for the children such that supervised access is appropriate in this case.

[67] During the argument of this motion, I raised with both parties the possibility that some of the father’s parenting time with the children might take place with two children at a time, rather than all four. Four children at a time can be particularly challenging, since children of varying ages and genders often have vastly different interests. Reducing the number of children at any one time will give both parents an opportunity to bond with the other children in a more age or interest appropriate manner. Both parties agreed that there could be some advantage to dividing the children up for at least some of the parenting time.

[68] The father indicated that if the children were to be divided, his preference would be to divide the children by age, so that he would have the two oldest (S. and N.) on some days and the two youngest (T. and A.) on the other days. The mother indicated that her preference would be to divide the children by gender, so that the father would get both girls (S. and T.) on some days and both boys (N. and A.) on the other days. There are advantages to either of these combinations. In the absence of agreement between the parties, I am inclined to give the father his choice, since he will have something less than equal parenting time under the arrangement I will order.

[69] Accordingly, I will establish a parenting schedule that will give the father every other weekend with all four children, and one evening a week with two children each week.

[70] In terms of returning T. and A. to their former school, the father argues that the court should not reward the mother’s unilateral conduct by permitting her to establish a new status quo. While I agree with this proposition, I am mindful that I must make my decision in the best interests of the children, and not for the purposes of punishing the mother. In my view, given the information provided by the school, it would not be in the best interests of either child to remove them from their new school and send them back to their previous school at this late point in the school term.

[71] I wish to emphasize that my decision with respect to school placement does not establish a new status quo. It is a temporary order based on the exigencies of the circumstances and my concern that there be no further disruption to the children’s education this term. The issue of school placement for the 2021/22 academic year may be revisited at the June 15 Case Conference. Given the age of the children, I am hopeful that the OCL will be able to provide some information with respect to the children’s views and preferences. In addition, I note that both parents have moved from where they resided together before the separation. I do not know whether either parent now resides in the catchment area for T. and A.’s former school.

Forewarning

[72] I understand that much of the post-separation conflict that has arisen in this case arose because there was no court order in place, each parent felt aggrieved by the other, and felt justified in taking some unilateral action. The purpose of this interim order is to establish temporary rules by which the parties will conduct themselves in their interactions with the children and each other. Both parents understand that they must comply with this court order, and that their ability to comply and cooperate will influence the final order.

[73] If either parent fails to comply with this court order, it will inevitably raise serious doubts about their parenting skills and judgment, and whether they can be trusted with custodial authority in the future.

Conclusion

[74] This Court makes the following temporary Order:

a) Commencing March 19, 2021, the applicant father shall have parenting time with all four children (S., dob December 7, 2005; N., dob June 17, 2007; T., dob July 17, 2008; A., dob October 4, 2011), on alternate weekends from Friday after school until Sunday evening at 7:30 p.m.

b) Commencing Tuesday March 23, 2021 the applicant father shall have parenting time with S. and N. every other week from Tuesday after school until Wednesday morning drop off at school.

c) Commencing Tuesday March 30, 2021 the applicant father shall have parenting time with T. and A. every other week from Tuesday after school until Wednesday morning drop off at school.

d) Notwithstanding paragraph a), the four children will spend the first Passover Seder with the father on the evening of Saturday March 27, 2021 and the second Passover Seder with the mother on the evening of Sunday March 28, 2021.

e) Both parents may communicate by Facetime or other electronic communication once per day with any child while the child is in the care of the other parent.

f) The children T. and A. shall remain enrolled in the school which they now attend. The mother shall provide the father with the name of that school.

g) Neither parent will make any other change to the children’s school without the consent of the other parent or order of the court.

h) Neither parent may remove the children from Ontario without the consent of the other parent, or order of the court.

i) Neither parent shall use physical discipline on any of the children.

j) Neither parent shall involve the children in any disputes between the parties. The parents shall not communicate with each other through the children or involve the children in adult matters.

k) The father shall not ask S. or any other child to translate any documents relating to this proceeding, although this does not preclude him from requesting her translation skills for any matter unrelated to these proceedings.

l) Both parents will cooperate with the JCFS and seek to comply with its recommendations.

m) If any questions arise regarding the implementation of this order, which the parties’ counsel are not able to resolve, either party may file a 14B motion to my attention.

n) The Case Conference is scheduled for June 15, 2021 at 2:00 p.m.

[75] The parties have had divided success on this motion. Unless the costs consequences of Rule 18 of the Family Law Rules apply, my inclination is not to order costs. If the parties cannot agree on costs, the applicant may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 15 days of the release of this Order, and the respondent may file costs submissions on the same terms within a further 10 days.

Justice R.E. Charney Released: March 16, 2021