Court File and Parties

Ontario Court of Justice

Date: 2019-06-28

Court File No.: Toronto DFO-18-15265 B1

Between:

Mojgan Rahbari-Jawoko Applicant

— And —

Kennedy Jawoko Respondent

Motion heard: June 24, 2019

Ruling on Motion, dated: June 28, 2019

Parties:

• Ms Mojgan Rahbari-Jawoko...on her own behalf
• Mr. Kennedy Jawoko...on his own behalf

Before: O'Connell J.

Introduction

[1] This is my decision on the father's motion for a temporary order for summer holiday parenting time with the child, Oriek Nima Jawoko, born […], 2015 ("Oriek"). Oriek will be four years old in September of this year.

[2] The father brought his motion on June 11, 2019 but it was not heard until June 24, 2019, as the mother sought adjournments to file materials and the court was unavailable on June 20, 2019.

[3] Both parties filed extensive materials on this motion, which was argued on June 24, 2019.

[4] This case is what is appropriately described as a "high conflict" custody case. There have been multiple court appearances and motions in this case since it started. The parties are proceeding to trial on the issues of custody and access and are scheduled on the August 10, 2019 trial assignment court list.

Background

[5] The parties began cohabiting in July or August of 2013 and married in September of 2014. Oriek is their only child. The father has one other child, Victoria, born […], 2011, of a previous relationship. Victoria is almost 8 years old. The mother has no other children.

[6] The parties separated in 2016 (there is a dispute between the parties regarding which month), but remained living separate and apart in the same residence until the mother left the residence with the child on or about January 9, 2018. The mother commenced this application for custody on January 18, 2018.

[7] The mother alleged that the father had assaulted her and the father was charged with assault. The father states that the Crown is now agreeable to withdrawing the criminal charge and it is in the process of being withdrawn. The mother disputes this.

[8] The current governing order is the Temporary Order of Justice Ellen Murray, dated April 23, 2018. Following a contested hearing, Justice Murray, for written reasons, which provides that the parties have temporary joint custody and that the father exercise parenting time with Oriek as follows:

1. Other than as set out below, Oriek shall reside with Mother.

2. Oriek shall live with Father as follows:

   • a. Week 1
     • i.) Monday from 9 a.m. to Tuesday at 9 a.m.;
     • ii.) Friday from 9 a.m. to 6 p.m.
   • b. Week 2
     • i.) Monday from 9 a.m. to Tuesday at 9 a.m.;
     • ii.) Friday from 9 a.m. to Saturday at 6 p.m.

3. Transfers of the child shall take place at his daycare, Kids and Company, except for the transfers on Saturdays or Sundays, which shall take place at the children's play place at Indigo Bookstore at 55 Bloor St. W., Toronto.

4. The above-noted schedule shall commence with Week 1 on Monday April 30, 2018.

5. If Oriek is not otherwise with Mother on Mother's Day, May 13, 2018, he shall be in her care on that day from Sunday at 9 a.m. to Monday morning at 9 a.m.

6. If Oriek is not otherwise with Father on Father's Day, June 27, 2018, he shall be in his care on that day from Sunday at 9 a.m. to Monday morning at 9 a.m.

7. Father shall have Oriek with him for vacation from Sunday June 17, 2018 at 9 a.m. to Sunday June 24, 2018 at 5 p.m. Mother, if she wishes, may have an equal period of exclusive time with Oriek for vacation on prior written notice to Father.

8. The parties shall communicate with each other about important issues related to Oriek by email or text.

9. Oriek is not to be removed from the province of Ontario without further court order or prior written agreement by each party.

10. Neither party shall move the child's residence a distance greater than 15 km from his/her current resident without further court order or prior written agreement of the parties.

[9] On August 24, 2018, the court referred this case to the Office of the Children's Lawyer for a section 112 custody and access investigation and report, given the ongoing conflict and the serious allegations raised by both parties. On December 31, 2018, the clinical investigator, Ms Dawn Tracz, released her Report and recommendations to the parties.

[10] Ms Tracz recommended that the mother have sole custody of Oriek. She stated at page 15 of her Report that "the dynamic that exists between these two parties is such that successful, constructive co-parenting seems unlikely."

[11] Regarding "parenting time", as she described it in her Report, Ms Tracz recommended that the mother's home be the primary residence for Oriek and that "parenting time with the [father] would be:

1. Week 1: Tuesday 9:00 AM to Wednesday 9:00 AM and Friday 9:00 AM to 6:00 PM;

2. Week 2: Tuesday 9:00 AM to Wednesday 9:00 AM and Friday from 9:00 AM to Saturday at 12 noon, with a view to moving to every other weekend from Friday to Monday as Oriek gets older. [paragraph 2, page 17 of her recommendations].

[12] Regarding summer vacation, Ms Tracz recommended the following at page 18 of her Report:

"Paragraph 9: At this point in time Oriek may not benefit from being away from either parent for more than a few days. It will be important that the parents prepare Oriek for separation, advising him, briefly, of the schedule. When Oriek is a little older, perhaps in another year, he might be able to tolerate a longer separation from his parent."

[13] The father disputes the OCL's final recommendations regarding custody and access and has filed a dispute with the Office of the Children's Lawyer. The clinical investigator will be summoned as a witness at trial and the father intends to cross-examine her on the findings and recommendation made.

[14] The mother also disputes a number of the findings that the clinical investigator has made regarding the father's parenting and the child.

The Position of the Parties on this Motion

Father's Position

[15] The father's proposal for summer holidays is set out at paragraph 120 of his affidavit in support of his motion for summer holidays as follows:

i. Oriek shall have seven (7) uninterrupted days of vacation with the Father, commencing from Sunday June 16 at 9:00 a.m. until Saturday June 22 at 5:00 p.m. for the first part of summer holidays.

ii. Oriek shall have five (5) uninterrupted days of vacation with the Father from Monday July 22 at 9:00 a.m. until Friday July 26 at 5:00 p.m. for the second part of the summer holiday.

iii. Oriek shall have five (5) uninterrupted days of vacation with the Father from Monday August 26 at 9:00 a.m until August 30 at 6:00 p.m. for the third part of summer holiday.

iv. All exchanges shall take place in the children's section of Indigo Bay Bloor – 55 Bloor Street West.

v. Oriek shall travel with his father to Montreal for vacation between August 26 and August 30.

vi. The addresses and telephone numbers of places where Oriek will be staying and/or Oriek's itinerary shall be provided to the Mother in writing.

vii. While Oriek is traveling, his father will ensure that Oriek speaks over the phone, Skype or Facetime with his mother a minimum of once in any three-day period, and within 12 hours of arrival in Montreal.

[16] However, after being served with the mother's 174 page responding affidavit to the summer access motion, the father served a reply affidavit in which he revised his proposal to be more in line with the recommendations of the Office of the Children's Lawyer. He proposed that, from July 1 to August 21, Oriek spend time with each parent on a "2-2-5-5" parenting schedule, and attached a detailed calendar setting out the schedule that he is seeking.

Mother's Position

[17] The mother is proposing that Oriek spend 3 days with each parent in a rotating schedule over the summer in line with the OCL recommendations and has also provided a schedule regarding this, although in reviewing the mother's schedule, it appears to be 2 overnights and 3 days on a rotating basis.

[18] However, the mother also raises numerous concerns about the father's parenting in her affidavit materials, including numerous allegations of violence, abuse, neglect and poor parenting.

[19] The father also points out that for the summer of 2018, when Oriek was only three years old, Justice Murray's Temporary Order granted the father summer access with Oriek for a period of 7 consecutive days. He states that Oriek had a great holiday with him, he adjusted very well and there were no issues raised by the mother following Oriek's return to the mother's care.

[20] The mother disagrees, and states that the child had significant adjustment issues after that holiday and that the father did not provide appropriate parenting for Oriek.

Analysis

[21] At this point, given the very high conflict between these parties, the numerous very serious allegations of abuse and neglect that the mother has continually levelled at the father, the only independent evidence that I have, albeit not tested at trial, is the Section 112 Custody and Access Report from the Office of the Children's Lawyer, dated December 31, 2018.

[22] Ms Tracz makes the following findings in her Report:

1. Oriek is an exuberant child who is highly verbal and active. He appears to be a typical pre-schooler. He is a health boy who is receiving adequate care from both parents. He is a boy who tests limits of his caregivers and needs to know that firm boundaries are in place;

2. Both parents are able to meet Oriek's needs. Oriek's family doctor, the child protection worker voluntarily involved with the family due to conflict, and the child's daycare staff did not report any concerns about the father's ability to parent Oriek and that he appears to be actively involved;

3. Oriek has a significant relationship with both parents and it is important to maintain the relationship with each parent through meaningful contact;

4. Both parents have a strong ability to engage their son and meet his needs;

5. Oriek does react to the change in living arrangements but with appropriate support and consistent routines, he will manage the transition;

6. Both parents have different parenting styles and can disagree on appropriate expectations for a child of Oriek's developmental stage.

[23] In my view, pending a trial, given the significant factual disputes and disagreements between the parties in the voluminous affidavits filed on this motion regarding summer holidays, I must rely upon the only independent evidence before me, although I recognize that there are limitations in relying upon a report in which the clinical investigator has not yet been questioned by the parties at trial.

[24] The father has argued that I should not rely on an OCL report at a temporary motion.

[25] The use of assessment reports or OCL reports on interim motions to change temporary custody and access orders has been canvassed extensively in the case law. I agree that as a general rule, courts should be very cautious about relying on conclusions and recommendations set out in untested assessments or reports at a temporary motion pending trial, and about implementing even some of the recommendations in a report at the temporary motion stage. See Batsinda v. Batsinda, 2013 ONSC 7899, at paragraph 32, per Justice Deborah Chappel; Marcy v. Belmore, 2012 ONSC 4696, at paragraph 16, per Justice Alex Pazaratz.

[26] However, there have been some cases where courts have drawn a distinction between the issues of custody and access. These courts have relied on recommendations of the assessor or clinical investigator on temporary motions for access only. For example, in Abrego v. Moniz, 2006 ONCJ 500, Justice June A. Maresca admitted and relied upon an OCL Report on the father's motion for interim access, without cross-examination. See also Verma v. Chander, 2009 ONCJ 136, per Justice Manjusha Pawagi. In both of those cases, the courts relied upon the clinical investigator's recommendations to expand access.

[27] In conclusion, for this summer, it is in Oriek's best interests to have as much time with both parents as possible in a schedule somewhat similar to that proposed by the clinical investigator. It may very well be that this schedule will expand for next year's summer holiday, pending a full trial with the benefit of all of the evidence in this matter.

Order

[28] Accordingly, I make the following temporary order regarding the summer holiday schedule for the summer of 2019:

1. July 1 at 9:00 AM to July 4 at 9:00 AM, with the mother;

2. July 4 at 9:00 AM to July 7 at 9:00 AM with the father;

3. July 7 at 9:00 AM to July 15 at 9:00 AM with the mother (Father in France at conference);

4. July 15 at 9:00 AM to July 19 at 9:00 AM with the father;

5. July 19 at 9:00 AM to July 23 at 9:00 AM with the mother;

6. July 23 at 9:00 AM to July 26 at 9:00 AM with the father;

7. July 26 at 9:00 AM to July 29 at 9:00 AM with the mother;

8. July 29, 2019 at 9:00 AM to August 1 at 9:00 AM with the father;

9. August 1 at 9:00 AM to August 4 at 9:00 AM with the mother;

10. August 4, 2019 at 9:00 AM to August 7 at 9:00 AM with the father;

11. August 7 at 9:00 AM to August 12 at 9:00 AM with the mother;

12. August 12 at 9:00 AM to August 16 at 9:00 AM with the father;

13. August 16 at 9:00 AM to August 21 at 9:00 AM with the mother;

14. August 21 at 9:00 AM to August 25 at 9:00 AM with the father;

15. August 25 at 9:00 AM to August 29 at 9:00 AM with the mother;

16. August 29 at 9:00 AM to September 1 at 9:00 AM with the father;

17. Transfers of the child shall continue to take place at his daycare, Kids and Company, except for the transfers on Saturdays or Sundays, which shall take place at the children's play place at Indigo Bookstore at 55 Bloor St. W., Toronto.

[29] Any costs that either party seeks regarding this motion will be reserved to be addressed by the trial judge in this matter.

Released: June 28, 2019

Signed: Justice Sheilagh O'Connell