Court File and Parties

COURT FILE NO.: FC-21-2029 DATE: 2022/02/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ramin Danjeh, Applicant -and- Afshan Gaouspoor, Respondent

BEFORE: Anne London-Weinstein J.

COUNSEL: Odette Rwigamba, for the Applicant Rebecca Rosenstock, for the Respondent

HEARD: February 18, 2022

Endorsement

[1] The Respondent mother and Applicant father were married in August 2014 in Tehran, Iran. They began to live together in July of 2016. There is one child of the marriage who is now three.

[2] The parties separated on April 23, 2021. The father has been unable to have any communication or parenting time with his daughter since the date of their separation. The father brings this urgent motion seeking parenting time with the child who he has been unable to see since April of 2021.

Position of the Parties

[3] The father proposes that he see the child three times a week for four hours, and Saturday and Sunday from noon until 7 p.m. The mother requests that the father’s parenting time be not every weekend and that it be supervised.

[4] The father wished the parties to separate. He indicates that he also advised the mother that he intended to care for the child on a full-time basis. The father maintains that he was the primary caregiver for the child prior to the separation. The mother disputes this assertion and maintains that she was the primary caregiver for the child prior to the separation.

[5] On the very day that the parties separated and went to the courthouse to obtain the paperwork required to obtain a divorce, the father learned that he had been charged with assault. The father denies assaulting the mother. He indicates that the mother had him charged as a ploy to get the upper-hand in the proceedings relating to parenting time with the child.

[6] The father is contesting the criminal charges. His terms of release do not prohibit him from seeing the child.

[7] The father maintains that the mother has ongoing mental health issues which pose a risk to the child’s safety and well being. He alleges that there were three fires that were started in their apartment on various occasions when the neighbors had to call the fire department. The father claims that the cause of the fires is related to the mother’s mental health issues. He alleges that the mother blamed the child for the fires. The mother denies these allegations.

[8] The father has attempted to arrange parenting time with the child to no avail. The father proposes that he have time with the child on Mondays, Wednesdays and Fridays from 3:30 p.m., to 8:30 p.m. and Saturday and Sunday from 12 p.m. to 7 p.m.

[9] The father proposes that commencing March 1, 2022, the parties will follow a 2-2-5-5 parenting schedule and that he have parenting time on Mondays at 3:30 p.m. to Wednesday at 3:30 p.m. and every second weekend from Friday at 3:30 p.m. to Wednesday at 3:30 p.m. He proposes that the parties share all holidays.

[10] He seeks the assistance of the police if the mother declines to co-operate with the parenting schedule.

[11] The mother argues that the father’s parenting time with the child should be supervised as he has screamed at the child and forcefully covered the child’s mouth to silence her when she cried. She maintains that she has been physically assaulted in the presence of the child which has made the child insecure and clingy.

[12] From the date of separation to now, the mother admits that the child has not seen the father. The mother attempted to file an application first, however, she learned that the father had already filed.

[13] In December of 2021, she was served with the father’s application. She received correspondence indicating that the motion was proceeding. She did not understand that her lawyer was not receiving the correspondence or not answering on her behalf. She did not understand the content or the process.

[14] The motion was adjourned to permit the mother to respond and seek a translator.

[15] The mother immigrated to Canada from Iran in 2016. She alleges that the father has abused her and treated her in a verbally and physically abusive manner in the presence of the child. She detailed several incidents of abuse by the father in her affidavit. The mother maintains that the mother-in-law acted in a denigrating manner toward her. The mother fled to a shelter with the child after the separation.

[16] The mother indicated that she solely cared for the child while the father smoked cigarettes and marijuana all day. The mother maintains that the father has never fed the child or changed a diaper. She described the father as always angry and impatient. The mother maintains that the child demonstrates discomfort in the presence of the father.

[17] The child is three years old and is suspected to be on the autism spectrum, however she is too young to have a full diagnosis. The child is now in daycare and is reportedly doing well. The mother maintains that the child is happier now that she is no longer exposed to conflict. The mother denies that her own mental health issues have interfered with her parenting abilities. She sought assistance for depression and took her medication as prescribed. The father and his family did not support her in this regard. She is taking courses so that she can become employed. She denied setting fires, or that police were called for any reason other than the neighbour’s concern regarding the father screaming or throwing things in the home. The mother notes that the father is not paying child support toward the child.

Legal Analysis

[18] The court must decide whether parenting time with the father needs to be supervised or not. The court must also decide on a parenting schedule which is appropriate given the child’s age and the fact that she has been separated from her father since April of 2021.

[19] The child’s best interests are the only consideration in the analysis. Gordon v. Goertz, [1996] 2 S.C.R. 27 at para 28; Mattina v. Mattina, 2018 ONCA 641.

[20] The court must ascertain the best interests of the child from the perspective of the child, not the parents. Gordon v. Goertz, supra.

[21] Exposure to conflict has been called the “single most damaging factor for children in the face of divorce” Graham v. Bruto at para 65. To that I would add that the negative effects of domestic violence on children are well known.

[22] There has been no cross-examination on these affidavits. The mother wants the father’s parenting time supervised. However, the allegations of family violence have not been corroborated at this stage. A supervision order of a parent is an exceptional remedy. The maximum contact principle applies on a temporary parenting motion and it is in the best interests of the child to have parenting time with both parents.

[23] Suspicion of risk concerns, without evidence, is not a proper basis for ordering supervised access. The mother bears the burden of establishing on a balance of probabilities that supervision is necessary. In this case, there have been assertions, and no evidence. In some cases, where a child is being reintroduced into the life of a parent after a significant absence, supervised access may be justified. In this case the absence is 10 months and the child is three. However, the child also enjoyed a close relationship with her paternal grandmother and extended paternal family which was abruptly terminated by the mother.

[24] From the perspective of the child, it may be less disruptive to resume parenting time with her father without having to attend a supervision centre, which will be a foreign experience for her.

[25] Children should have maximum contact with both parents if it is consistent with the child’s best interest. Maximum contact with both parents is presumed to be beneficial. M.C. v. P.P., 2021 ONCJ 219.

[26] The father has been absent from the child for almost a third of the child’s life through the mother’s unilateral actions. The mother claims that the father abused her in the presence of the child. However, whatever problems the mother had with the father; it was not in the child’s best interest that she was unilaterally deprived of seeing her father for 10 months. It was also not in the child’s best interest that she be deprived of seeing her extended paternal family, with whom she was previously close.

[27] In all of the circumstances of this case, I am of the view that supervised parenting time is not in the child’s best interest for the reasons I have outlined.

[28] Having determined that the parenting time with the father shall not be supervised, I turn to the issue of how parenting time should be structured so that it is in the best interest of the child.

[29] In J.N. v. A.S., 2020 ONSC 5292 the court relied on the Association of Family and Conciliation Courts (AFCC-Ontario) Parenting Plan Guide. It sets out that preschoolers can tolerate longer absences from a parent, but the child’s temperament and pre-separation parenting arrangements must be considered.

[30] The parenting plan guide suggests that if one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent with a possible plan of step-up care for the other parent. This might start with a few four hour blocks of parenting time each week, building up to a longer block, on the weekend and may include an overnight. As the child becomes more comfortable moving between the two homes, one or two overnights a week may be added.

[31] I am unable to determine which parent was primarily responsible for the child’s care, given that both parties claim to be the primary caregiver. While I am not of the view that this is a case where supervised parenting time is warranted, the parenting schedule suggested by the father is too abrupt a change to the child’s present routine, given that she has not seen her father for 10 months.

[32] I have attempted to craft a parenting schedule which will gradually reintegrate the father’s parenting time with minimal disruption to the child. Therefore, I order that the father is to have parenting time with the child as follows:

1. On Monday, Wednesday and Friday for the next 30 days from the issuance of this order, the father shall have a four hour block of parenting time with the child on each of those days. This order issued on Wednesday, February 23. The first parenting time between father and child will occur on Friday, February 25 for four hours.
2. After 30 days have elapsed, in addition to having the child on Monday, Wednesday and Friday for four hours, the father shall have the child every second weekend from Saturday at 9 a.m. until Sunday at 7 p.m. The exact timing of the parenting time during the week is to be worked out by the parties through counsel. If this proves problematic, the matter can be brought before me on an expedited basis by contacting my assistant Tina Gloyn at Tina.Gloyn@Ontario.ca
3. Neither party is to speak ill of the other in the presence of the child. The parties are to arrange for the transfer of the child in a harmonious manner which will not involve the father having to be in contact with the mother. The mother alleges that the father smoked marijuana in front of the child. Neither party should smoke marijuana or consume intoxicants when involved in caring for the child. This order is made on a temporary and without prejudice basis.

Costs

[33] If the issue of costs cannot be agreed upon, I shall determine it by written submissions. These shall not exceed three pages plus attachments of Bills of Costs and Offers to Settle the motions. The applicant’s submissions are due by March 9, 2022 and the respondent’s by March 23, 2022. If necessary, the applicant may deliver a brief reply by March 30, 2022. Costs submissions are to be sent to my attention and emailed to scj.assistants@ontario.ca.

Anne London-Weinstein J. Date: February 23, 2022