Court File and Parties

COURT FILE NO.: FC-20-1120-00 DATE: 20220218 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Zantinge, Applicant AND: Nassar Abdulrahman, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: David Tobin, Counsel for the Applicant Annette Goldberg-Schreiber, Agent for the Respondent

HEARD: February 17, 2022 via Zoom

Ruling on Motion

[1] This was a motion brought by the Applicant Mother to temporarily implement certain parenting time recommendations contained in an Office of the Children’s Lawyer (“OCL”) investigative report that the parties received on February 8, 2022.

[2] Alternatively, the mother seeks an interim order to have the present 2-2-3 parenting time arrangement converted to a week about shared arrangement.

[3] By way of background, when these parties separated in December, 2020, they quickly served motions concerning parenting time to their daughter, Sophia, who is now only five years of age. Much of the first volume of the continuing record is taken up by that motion material which is extensive. The motion was heard by Douglas J. on December 22, 2020, and he ordered, without prejudice, that the parties would share care of Sophie on a 2-2-3 schedule.

[4] Unfortunately, that did not work out. Although the parties did share care for some period of time, it was not without incident or problem. Mr. Abdulrahman says that he discovered bruises on Sophie after parenting time with her mother (he says he counted 64 bruises). He called the C.A.S. in Barrie and then in Toronto where the Applicant resides and they conducted an investigation in August, 2021. That investigation did not verify the father’s concerns about abuse to Sophie by Ms. Zantinge. He says that the Toronto C.A.S. supervisor called him to apologize for the investigation having been done in a “lazy and unprofessional manner”.

[5] Mr. Abdulrahman says that in October, 2021, Sophie began to express that she did not want parenting time with her mother. This quickly turned into an absolute refusal by Sophie to see her mother or even leave the vehicle at parenting time exchanges. I have reviewed recordings of the most recent of these exchanges and they are troubling. Sophie is obviously agitated and in distress. She is adamant that she will not leave the vehicle, and is completely hysterical at points during these recordings. She hangs onto the door handle so that the car door cannot be opened. It is the Respondent’s evidence that this results from the abuse that Sophie suffers in the mother’s care.

[6] An OCL investigation was completed by Linda Bleau, Social Worker. Ms. Bleau says that there are serious concerns with the veracity of the position of the Respondent Father. She points out in the report that when she interviewed Sophie that Sophie had an agenda, and that was to tell the assessor about how little she wanted to see her mother. When the child was asked about her “favourite subjects”, Sophie told the clinician that she was there to tell her “why I don’t want to see Mommy. Deddy said I need to tell you that she yells at me, screams at me, hits me and pinches me.” When the clinician tried to speak with Sophie about Christmas or school, she was redirected by Sophie back to “why she does not want to go her mother’s home.”

[7] The assessor concluded that the responsibility for Sophie’s refusal to go on visits rested with the Respondent. She summed up by pointing out that the allegations of abuse were not verified by the C.A.S. She says that Sophie’s statements lacked context or consistency and that Sophie was a five year old who should not be allowed to “dictate the parenting plan”. She points out that when she assisted in a parenting time exchange, Sophie was upset but quietened down in five minutes and enjoyed the rest of the visit. She says that the father has encouraged and condoned Sophie’s behaviour and says that the Respondent Father has “created a toxic sea that Sophie swims in every day.”

[8] She recommends a return to the shared arrangement by way of a week about basis after a 30 day “detoxification” period of time when Sophie would live with the Applicant Mother with limited contact between the Respondent Father and Sophie. Eventually, Ms. Bleau suggests primary residence of the child with the mother once Sophie begins school with Mr. Abdulrahman having parenting time three of four weekends. She suggests that Ms. Zantinge have decision making authority concerning the child as Mr. Abdulrahman will otherwise not encourage parenting time between Sophie and her mother.

[9] It is these suggestions that Mr. Tobin urges me to implement on this motion. If I am not willing to implement the 30 day “detox” period with the mother, he asks that I implement the week about parenting time as proposed by the clinician.

[10] Ms. Goldberg-Schreiber says on behalf of Mr. Abdulrahman that he wishes the opportunity to cross examine Ms. Bleau on her recommendations. She says that Ms. Bleau got it wrong and that she was well aware of the allegations of abuse by the child who spoke of them during her interview with Sophie. She says it would be contrary to the best interests of the child to “rubber stamp” the report. Mr. Abdulrahman says that he is suggesting visits in the community and then eventually that Ms. Zantinge be given weekend parenting time. He does not suggest any means to return to the shared care arrangement ordered by Justice Douglas or recommended by the OCL clinician. She says any changes should only be made once there is a trial of the issue and after cross-examination of the clinician and she expressed her client’s willingness to immediately set the matter down to the May sittings.

[11] I suggested at the motion that the parties’ time may be better spent by conducting a Trial Scheduling Conference and placing the matter on the May trial list. Mr. Tobin for the Applicant Mother was not willing to abandon the motion; his concern was that there had never been a settlement conference and that Mr. Abdulrahman’s counsel was on a limited scope retainer. His concern was that they would be called for trial and then Mr. Abdulrahman would ask to adjourn the trial because he was not represented and that if nothing changed, Ms. Zantinge would end up having no parenting time until the November sittings, more than a year after the initial refusal by Sophie to go with her mother.

[12] In issue therefore is whether the court can adopt the recommendations made in an assessment or investigative report on a temporary motion.

[13] The case law has always been clear that the court should be cautious before relying upon an assessment report at an interim stage of the proceedings. Traditionally, the courts have determined that an assessment report is only one piece of evidence in a proceeding and should not be adopted without a trial and cross examination of the assessor or author of the report. The only exception was where immediate action is mandated which is a rare occurrence: see Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) following Genovesi v. Genovesi, [1992] O.J. No. 1261 (Gen. Div.).

[14] MacKinnon J., who decided Grant v. Turgeon has now pointed out in J.D. v. N.D., 2020 ONSC 7965 that the criteria for the use of an assessment report at a temporary motion have changed. She cited the case of Bos v. Bos, 2012 ONSC 3425 in which Mitrow J. suggests that an assessment report may be adopted on an interim motion in exceptional circumstances as follows:

a. The court should consider how significant a change is being requested as compared to the present status quo; b. Is there other evidence before the court to support the change? c. Is the court being asked to consider the report in its entirety or only certain isolated parts including the statements made by children or observations of the assessor? d. Are the portions of the report that are being relied upon contentious and if so, has either party requested an opportunity to cross-examine the assessor?

[15] It is clear that Mr. Abdulrahman demonstrates a complete lack of insight into the situation concerning Sophie. In his affidavit, he says that she is “thriving” in his care; as pointed out by Mr. Tobin, nothing could be further from the truth based upon the investigation and Sophie’s hysterical reaction to being asked to visit her mother. It is also clear that he is willing to do almost anything to discredit the clinician and her conclusions. This includes an attempt to surreptitiously record an interview between the clinician and the child through a hidden webcam which he then urged the court to review to prove that the assessor was lying. I noted that the interception of a third party’s private communication is an offence under s. 184(1) of the Criminal Code and refused to allow it into evidence. It was clear from his reaction that he did not agree with this and thought that it should be used. He also made a blanket statement without any supporting evidence whatsoever that Ms. Bleau and Ms. Zantinge were friends and Ms. Bleau had a conflict of interest. His position regarding Ms. Bleau’s conclusions are a mix of inadmissible and illegally gathered evidence and unproven allegations.

[16] As well, there is outside evidence to support the investigator’s conclusions. At one point, Ms. Zantinge confirms that the Respondent had said that he wanted her to move back in with him, presumably so that she can resume her relationship with Sophie. He made a number of unfounded allegations of abuse by the Applicant to Sophie to the C.A.S. which remain unverified. He has continued on a campaign to deprive the Applicant of parenting time which culminated in Sophie’s unwillingness to go for parenting time with her mother. As long as Mr. Abdulrahman remains involved in the pickups and drop-offs, I agree with Mr. Tobin that there will be no parenting time between the Applicant and Sophie.

[17] However, I believe it to be clear that the conclusions of the investigator are contentious and would normally be the subject matter of vigorous cross examination at trial. Ms. Goldberg-Schreiber did not request cross examination of the investigator for this motion. The basis of the investigator’s conclusions is that the Respondent’s actions have resulted in Sophie being immersed in a “toxic sea” of the Respondent’s construction. For Sophie, the idea of visiting her mother is terrifying as evidenced by her panic when being dropped off by her father and by Braden’s inability to ensure that the exchange took place. From the child’s perspective, even where the fear that she has results from the father’s alleged toxicity, the situation is intolerable.

[18] For that reason, the investigator was sufficiently sensitive to the child’s needs to recommend therapy to be in place prior to the 30 day sojourn in the Applicant’s care. Ms. Bleau stated in paragraph 1 of her recommendations that “Family therapy should be in place and all access with her father should occur only in the context of the family work being done.” She says that the therapy should take place in Vaughan “which is halfway between parents’ homes.”

[19] When I asked Mr. Tobin whether therapy had been arranged, he pointed out that his client deposed that she was looking for a therapist for Sophie but could not do much more than that when she did not have decision making authority concerning the child.

[20] I am going to provide decision making authority to the Applicant for that reason. The Applicant will be granted temporary decision making authority concerning the child so that she can arrange for therapy to assist the child in the distress that she is suffering and so that she can assist the child if and when the therapists recommendations are implemented.

[21] I have recommended to the parties that they set an urgent Trial Scheduling Conference with a view to having this matter heard during the May, 2022 sittings. Ms. Goldberg-Schreiber indicated that her client was enthusiastic about this matter going to trial and Mr. Tobin indicated that he would participate in that process. If the matter goes to trial, it will be important to have the therapy in place should the trial judge believe that the investigator’s recommendations are to be implemented. If trial does not take place in May, I am going to permit the Applicant’s motion to be returned before me to review the order and to argue the issue of the 30 day “detox” period of time as recommended by the assessor as well as the issue of police assistance.

[22] Ms. Goldberg-Schreiber urged me to avoid making any order in this matter that would amend the time-sharing regime set out in Justice Douglas’ December 22, 2020 order. She said that this would be a substantial change in the status quo, something that is contraindicated under Bos v. Bos. I disagree with her submission that the clinician has recommended a change in the status quo, which is reflected in a temporary order for shared care frustrated only by the Respondent’s pretext of supposed “abuse” of Sophie by the Applicant. The issue is not the status quo but ensuring that Mr. Abdulrahman comply with the orders of this court for time sharing and I note that, perhaps surprisingly, Ms. Bleau did not recommend that the shared parenting time be changed until at least Sophie attends school.

[23] Because there is no therapy in place, I decline to impose the 30 day detox period with Ms. Zantinge. Therapy was, according to recommendation no. 1 in the report, a necessary part of that process. However, I accede to the suggestion that the time sharing be varied on a temporary basis to a week about time sharing regime. It is the exchanges that cause distress for the child, and a week about regime will result in less exchanges for parenting time. I am cognizant of the statement by Justice Graham that week about is “generally” not recommended for children of this age, but that statement in his endorsement of November 22, 2021 does not appear to be directed to this particular child but appears to be a general observation and obiter to the decision that he made at that time, which was to get Braden Access Services involved in access exchanges. In the same endorsement, he says that the current schedule is only “appropriate as long as both parties comply.” That is clearly not the case at present.

[24] I am going to adjourn this matter to an urgent Trial Scheduling Conference to be set through the Trial Coordinator. I understand that there has not been a Settlement Conference but that can be addressed through an eventual Trial Management Conference once the matter is set down for trial. Again, if the trial cannot be set down for the May sittings or is adjourned after the May sittings, and if the Applicant has a therapist in place for the child and is still not receiving parenting time, this matter may be returned before me for an enforcement motion to consider imposing the recommendation concerning the 30 day period of time recommended by the investigator and to also consider police assistance in enforcing the parenting time for the Applicant Mother.

[25] If the matter is set down for trial in May, 2022 and Ms. Zantinge is still not receiving parenting time, this fact will speak for itself for the trial judge’s considerations concerning Sophie’s best interests.

[26] Therefore, temporary order to go:

a. The Applicant shall have temporary sole decision-making concerning Sophie and may arrange for therapy for Sophie as recommended by the report of the Office of the Children’s Lawyer. b. Once therapy is arranged, the Respondent shall cooperate in having the child attend therapy and both parties may be involved in the child’s therapy as recommended by the therapist. That therapy may include reconciliation therapy or therapy to ensure that the child’s comfort level in her parenting time with her mother is addressed. c. The time-sharing arrangement set out in Justice Douglas’ order of December 21, 2020 shall be forthwith varied to a week about arrangement with the child being exchanged on Sunday evenings at 6:00 p.m. The Applicant’s time sharing shall commence on Sunday, February 27, 2022 at 6:00 p.m. d. This matter is adjourned to an urgent Trial Scheduling Conference on a date to be set through the trial coordinator with a view to setting this matter down for trial during the May, 2022 sittings. e. In the event that the matter is not set down for trial in May, 2022 or cannot be heard during the May, 2022 sittings and the child is not receiving her parenting time with the Applicant, and only if the child’s therapist is in place as set out in this order, this matter may be returned on a motion to be scheduled before myself in order to review this order, to consider recommendation no. 1 in the investigator’s recommendations and to consider the issue of police enforcement at that time.

[27] The Applicant was the successful party in this motion and the Respondent was guilty of unreasonable litigation conduct, in particular his surreptitious recording of the conversations between the child and the investigator. The Applicant shall therefore have her costs of this motion. If the parties cannot agree on the scale of costs to be ordered or the quantum of costs, the parties may make written submissions as to quantum only, on a 10 day turnaround with the Applicant making submissions first and then the Respondent. Costs submissions to be no more than 3 pages in length not including Offers to Settle and Bills of Costs

McDermot J. Date: February 18, 2022