Court File and Parties

Court File No.: 260/11 Date: August 15, 2013

Ontario Court of Justice

Re: Fatmire Shoshi – Applicant

and

Agron Vuksani - Respondent

Before: Justice Roselyn Zisman

Counsel:

• Monica Lipson for the Applicant
• Respondent - self represented

Heard On: July 26, 2013

Reasons for Judgment

Introduction

[1] This is a summary judgment motion by the applicant ("mother") for an ordered granting her sole custody of the child of the marriage Anabela Vuksani ("Anabela") born November 21, 2004, that the temporary restraining order be made final, an order for supervised access for the respondent and ancillary relief regarding travel and police enforcement.

[2] The respondent ("father") has not filed any responding materials to this motion although he previously filed an Amended Answer and Claim and several affidavits for temporary relief.

[3] The father who resides in British Columbia was until recently represented by counsel and has appeared at prior court attendances either in person or by telephone conference call.

[4] A hearing date for July 29, 2013 was set on May 16, 2013. The respondent was at the time represented by counsel. The respondent participated by telephone conference call with the assistance of an Albanian interpreter. The respondent was advised that he could participate by telephone conference call on July 29th and arrangements were also made for the interpreter to be present.

[5] The respondent confirmed that he had been convicted of charges of aggravated assault and forceful confinement against Gjon Kulla who is his cousin and who he accused of having an extramarital affair with the applicant. The respondent requested that the proceeding be adjourned until after his sentencing hearing that was scheduled to take place on June 24, 2013.

[6] During that hearing his counsel also indicating that she would be bringing a motion to be removed as counsel. Counsel was removed as counsel of record on June 5, 2013.

[7] The respondent sent a fax to the court indicating he could not attend court on July 29th as his sentencing was being heard on the same day. The respondent did not explain why the sentencing hearing had been postponed or why it was scheduled for the same day as this motion.

[8] The applicant wishes to proceed as this matter has been before the court since July 15, 2011 and the respondent has constantly delayed the case.

[9] The respondent in his Amended Answer and Claim seeks an order that joint custody continue but that the child reside primarily with him in British Columbia or in the alternative that he be granted reasonable unsupervised access including Skype access and holiday access.

[10] Based on the length of time this case has been before the court and the need for finality the applicant was permitted to proceed with her motion.

Background

[11] The parties were married on July 5, 2004 in Albania. The mother came to Canada on May 25, 2004 and the father arrived on December 8, 2004. Anabela was born in British Columbia where the parties were residing at the time of her birth.

[12] The parties who were both represented by counsel entered into a separation agreement dated January 25, 2011 (but executed by the mother on January 22, 2011) that stipulated that the parties had been living separate and apart in the same home since January 13, 2010. The mother deposes that the parties actually did not separate until January 22, 2011 but the father told her the easiest way to obtain a divorce was to sign the separation agreement stating they had been separated for a year and then they could be divorced. The parties were divorced in May 2011.

[13] The separation agreement provided that the parties have joint custody and that Anabela would reside exclusively with the mother, that the father would have reasonable access and that both parties could travel with the child outside of British Columbia and Canada at any time with the consent of the party. The mother deposed that the father only agreed that she could leave British Columbia with their daughter if she went to live with her brother in Ontario or her brother in Albania.

[14] The separation agreement stipulated that in the event of a dispute, British Columbia law applied and that the Supreme Court of British Columbia had jurisdiction with respect to all issues arising out of or connected to the agreement. Further, the agreement stipulated that if either party began a proceeding for any claim the agreement could be filed and raised as a defense.

[15] On January 22, 2011 after signing the separation agreement and with the consent of the father, the mother left British Columbia with the child and moved to Halton region and resided with her brother.

[16] The father purchased a computer for Anabela and up to April 2011 he would Skype with her two or three times a week.

[17] The father had arranged to come to Halton region on April 15, 2011. He deposed that it was because the mother had refused to take Anabela to the dentist whereas the mother deposed that he told her that he wanted to reconcile with her and that he told her not to tell anyone he was coming and to meet him without the child. The mother further deposed that she now believes that his real motivation was that he intended to harm her.

[18] The father never came to see the mother as he was arrested on or about April 14, 2011 for aggravated assault and forcible confinement and not released on bail until June 23, 2011.

[19] The father alleged that the mother had an affair with one or both of his cousins one of which was the victim in the criminal charges. The father alleged that his cousins and his wife intended to murder him and any injuries to the victim were as a result of him defending himself. The mother alleged that it was her understanding the father beat his cousin in order to try to obtain a confession from him that he was having an affair with her.

[20] When the mother was advised of the allegations against the father, she became very concerned about her safety and the safety of her daughter. Based on advice she received from the police, she moved to a woman's shelter. Her concerns were further heightened as the terms of the father's release prohibited him from having any contact directly or indirectly with her except in accordance with a court order to exercise access, custody or guardianship. The mother deposed that this condition was imposed without any consultation with her or the victim witness program It was her belief that as she was listed as a person the father was not to have contact with because she was somehow involved as being the reason for this violence.

[21] The terms of the father's bail were varied to permit counsel for the parties to negotiate access but they were unsuccessful in making any arrangements.

[22] The father filed a motion returnable December 2, 2011 for an order dismissing the proceedings in Ontario or in the alternative staying the proceedings or declining jurisdiction in favour of the British Columbia. In the interim he also sought an order for access as he had specifically travelled to Ontario to see his daughter and deal with these legal proceedings.

[23] I held that there has been a material change in the circumstances since the execution of the separation agreement in view of the serious criminal charges facing the father and the mother's legitimate concern about the safety of herself and the child. There was no dispute that the father had agreed that the mother and child could permanently move to Ontario.

[24] The father has not seen the child for almost a year, all of the evidence regarding the child was available in this jurisdiction and the mother was of limited means and it would be financially prohibitive for her to travel to British Columbia for a court hearing to enforce the terms of the separation agreement. I held that pursuant to section 22 (1) (a) of the Children's Law Reform Act the child was habitually resident in Ontario at the commencement of the application.

[25] Pursuant to section 56 (1) of the Family Law Act the court may disregard any provision in a domestic contract regarding custody or access to a child where it is in the best interests of the child to do so. In this case, even though the parties agreed to the British Columbia Superior Court retaining jurisdiction, it is in the child's best interests to determine the issues of custody and access where the child's resides and where the best evidence is regarding her schooling, medical and dental issues. This is significant especially as the father raised issues regarding the mother's ability to care for the child and her neglect of the child's dental needs. Therefore, I found that this court is the proper forum to adjudicate any issues regarding the child.

[26] There was also an order that the father have Skype access three times a week at specified times and that the mother not be present during the calls and on a without prejudice basis the father was to have supervised access while he was in this jurisdiction.

[27] The mother sought and obtained an emergency restraining order to prevent the father from having any contact with her or the child except in accordance with the family court order. The mother provided a police occurrence report regarding the father's pending criminal charges and a copy of a photograph of the father's cousin that he was charged with assaulting. The mother alleged that she feared that the father was planning to come to the jurisdiction and remove Anabela and that he was asking her detailed questions regarding her school, her address and telling her that he was planning to come and take her on a vacation. The mother also discovered that the father has installed spyware on the Anabela's computer and was obtaining personal information about the mother, that he had access to her email communications with her solicitor, her contact information and her social information. The mother's motion was adjourned to permit the father to respond.

[28] After several adjournments sought by the father, on October 31, 2012 the father agreed that the temporary restraining order would continue. He also agreed to pay the cost of removing the spyware he had installed on the computer. He alleged that he gave Anabela the computer when she left for Ontario and he had installed the spyware as he assumed only Anabela would be using the computer and not the mother and he wanted to ensure that Anabela was not going on to inappropriate websites. The father's Skype access to Anabela was then reinstated subject to several conditions namely, that he not ask any specific questions regarding where they lived or questions about her school's location or any questions about the mother. The mother was permitted to terminate the Skype access if the father breached any of these conditions.

[29] The father's criminal trial was held on January 28 and 29th, 2013. A transcript of the Reasons for Judgment dated March 14th, 2013 was attached to the mother's affidavit. Justice D.M. Steinberg on the Provincial Court of British Columbia found the father guilty of the charges of aggravated assault against Gjon Kulla and of unlawfully confining Gjon Kulla.

[30] In his reasons for judgment Justice Steinberg found that, "What happened here was a one-sided savage beating of Kulla." He held that the father had lured Mr. Kulla into his basement, pepper sprayed him, hit him in the face and stomach, bound his feet and hands, dragged him along the basement floor, continuously struck him, stuffed his head first into a garbage bag and tied it up, attempted to use his pliers to extract his teeth, cut his ankles and finally released him after a few hours. Mr. Kulla, who was found to be credible by the court, testified that when he kept asking the father why he was doing this to him he told him that it was because he and his brother had an affair with his wife and continually made threats against him and his brother. Despite Mr. Kulla denying any such affair the father kept hitting and punching him. The father made Mr. Kulla promise that he would marry his former wife as a condition of his release.

[31] Justice Steinberg rejected the father's version of events, which was the same version as in his affidavit filed with this court, namely that it was the victim who attacked him and that they were just fighting and the father was only defending himself. He maintained that the victim was one of two men who had an extra-marital affair with his wife and were responsible for their separation. The father also testified that in accordance with Albanian customary law, adultery is the most serious crime and that if someone is an adulterer both should be put to death. He believed that Mr. Kulla or his brother or both had committed adultery with his wife.

[32] As previously indicated, the father is still awaiting sentencing for these crimes.

[33] The mother deposed that in view of the nature of these charges, the findings of fact and the reasons the father attacked the victim, she fears for the safety of herself and her daughter and further she questions the father's mental stability.

[34] The mother also produced and was given leave to file a summary letter from the Halton Children's Aid Society that counsel had received subsequent to serving and filing the mother's affidavit. On a previous court attendance both parties had consented to obtaining a summary of the society's involvement with the mother and child. The father had alleged that the mother was neglecting the care of the child by not attending to her dental needs and also that she physically hurt the child as she had a black eye. After investigation, the society reported that the child was hurt while playing in the living room and the mother did not cause her to have a black eye and that the mother was caring appropriately for the child. The file was closed and the allegations not verified.

[35] The mother submits that she is meeting all of the child's emotional and physical needs. The separation agreement is filed in British Columbia for enforcement of the father's child support obligations and accordingly she is not pursuing child support in this proceeding. She further deposes her daughter is doing well in school and is happy and well adjusted. She submits that given the distance between herself and the father, his accusations against her and the serious charges he has been convicted of that it is in the child's best interests that she be granted sole custody.

General Considerations on a Summary Judgment Motion

[36] Rule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[37] Rule 16 (2) provides that a motion for summary judgment is available in any case.

[38] Rule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[39] Rule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[40] Rule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[41] Rule 2(5) is also relevant as it require that a court manage a case to promote the primary objectives of the rules which is to enable a court to justly deal with cases.

[42] It is well established that summary judgment is available in custody and access matters.[1] In determining whether or not a genuine issue for trial exists, the court is not to assess credibility, weigh evidence or find the facts. The court's role on such a motion is narrowly limited to assessing the threshold issue of whether or not a genuine issue exists requiring a trial.

[43] The court must take a hard look at the merits of the case to determine there is a genuine issue for trial. The onus is on the moving party to show there is no genuine issue for trial on a balance of probabilities. The court must review all of the evidence to determine whether there is a basis for the final order sought. A proper consideration of the record is necessary. Then the court must determine whether there are specific facts that support a triable issue. A "genuine issue" must relate to a material fact. A mere factual conflict does not, in and of itself, lead to the necessity of a trial. It is not sufficient for the responding party to make mere allegations or blanket denials or self-serving affidavits that are not supported by specific facts to defeat a claim for summary judgment.

Application of Legal Principles to the Facts

[44] I find that the mother has met the legal onus of proving that there is no genuine issue for trial.

[45] The mother seeks an order for sole custody. She is also content that the father exercise supervised access when he is in this jurisdiction and that he continue to be permitted to communicate with their daughter by Skype with the conditions already in place.

[46] Despite the fact the father has not filed any responding affidavit as he is self-represented I have considered the previous affidavits he filed in these proceedings. He seeks an order either for custody or a continuation of joint custody or in the further alternative, an order for access to be exercised outside of this jurisdiction that is, in British Columbia where he resides.

[47] I find that if this case proceeded to an oral hearing that there is no other realistic outcome than an order for sole custody to the mother and an order for supervised access to the father. The mother has met the onus of proving that there has been a material change of circumstances that justify a change from joint to sole custody and that the father only exercise supervised access.

[48] I base this conclusion on the following uncontradicted facts:

1. The child has been in the sole physical care of the mother since on or about January 22, 2011. The father has only seen the child once since that time;

2. The father has accused the mother of having an extra-marital affair and of trying to have him murdered;

3. The father has accused the mother of neglecting the child's dental needs and of physically harming her; he reported those concerns to the Children's Aid Society, Region of Halton and the mother and child therefore needed to be investigated. The allegations were subsequently found to be unverified;

4. The father put spyware software on the computer used by the child and mother;

5. The father has been convicted of two serious criminal charges and is awaiting sentencing;

6. Based on the findings at the criminal trial, the father engaged in a premeditated extremely vicious assault based on his belief that the mother had committed adultery with the victim;

7. The father has engaged in bizarre behaviour by telling the victim that he would only release him if he promised to marry his former wife;

8. The father has not proposed any specific plan as to how he would care for the child if he was granted custody;

9. The mother is meeting all of the child's needs and the child is doing well in her care;

10. The mother has made all of the parenting decisions regarding the child;

11. The mother and father do not communicate regarding the child and there is no basis to assume they will do so in the future in view of the father's mistrust of the mother and his unfounded allegations against her. There is no evidence to suggest that the parties have in the past or will in the future be able to jointly make decisions regarding their child's upbringing; and

12. Based on the father's bizarre behaviour and criminal convictions, it is in the child's best interests that any access, either by Skype or in person be supervised.

[49] Before there is a consideration of any unsupervised access, the court should be advised of the outcome of the criminal sentencing and should be provided with evidence regarding the father's mental health as the nature of his actions that resulted in the serious criminal convictions raises concerns about his stability.

[50] The mother also seeks a continuation of the restraining order currently in place. For the same reasons articulated, I find that the mother has met the onus on her to prove there is no genuine issue for trial and that after a trial the only realistic outcome would be for a continuation of a restraining order. It is clear that the mother has a reasonable fear for her safety and the safety of the child.

Final Order

[51] There will be a final order as follows:

1. The Applicant, Fatmire Shoshi shall have custody of the child, Anabela Vuksani born November 21, 2004;

2. The Respondent, Agron Vuksani shall have supervised access to the child as arranged through Braydon Supervision Service or any other supervised access centre; the Respondent shall advise the Applicant, by email at least 30 days prior to his intended visits of the days and times he is requesting access. The Applicant shall within 7 days advise the Respondent if these arrangements are agreeable; the Respondent shall be responsible for making the necessary arrangements and for the cost of the access visit;

3. The Respondent shall have Skype access to the child for up to 30 minutes, on Saturdays at 4:00 p.m.; Sundays at 12:00 p.m. and Wednesdays at 6:00 p.m. all at Toronto time; if the child requests to Skype the Respondent, to the extent she requires assistance to contact the Respondent by Skype, the Applicant shall assist the child;

4. The Respondent shall not ask the child about specific locations such as the Applicant's address or any personal questions about the Applicant; The Respondent shall not ask the child about her school location and her classroom number or any other specific questions that would reveal with exact whereabouts of the child's school or the residence of the child and the Applicant or about the workplace of the Applicant;

5. The Applicant shall be permitted to terminate the Skype session if the Respondent breaches any of the terms of paragraph 4 above;

6. The Applicant shall not be in the same room as the child during Skype access except to facilitate setting up or adjusting the Skype equipment or taping equipment;

7. The Applicant and Respondent shall be permitted to record the Skype access from their own location;

8. A separate and final restraining order will issue in terms of the temporary order made on June 18, 2012;

9. A copy of these reasons and this order and the restraining order shall be served on the Respondent by the Applicant's counsel at his last known address by ordinary mail and an affidavit of service filed with this court;

10. As the successful party the Applicant is presumed to be entitled to costs. If costs are being sought, the Applicant shall within 30 days of the release of these reasons serve and file a brief written submission as to costs with a Bill of Costs and any Offer to Settle attached and the Respondent shall have 14 days to file his written response regarding the issue of costs.

Zisman J.

Date: August 15, 2013

Footnotes

[1] See for example, Barry v. Morgan (2005) Carswell Ont 1793; L. (Y.Q.) v. H. (T.T.) (2006) CarswellOnt 2389; Minawi v. Minawi (2002) CarswellOnt 4426; Gardner v. Gardner (2005) CarswellOnt 3938.