Court File and Parties

Ontario Court of Justice

Date: March 5, 2020

Court File No.: Toronto D21522/18

Between:

Saeef Ibrahim Applicant (father)

— and —

Jasmine Mahdi (mother), Linda Mahdi (grandmother), Anthony Mahdi (grandfather) Respondents

Before: Justice Robert J. Spence

Heard: March 2 and 3, 2020

Reasons for Judgment Released: March 5, 2020

All parties self-represented at trial

Judgment

R. J. SPENCE J.:

1: Introduction

[1] This was a two-day trial which centred on the custody/parenting issues of the natural child of the parents and the natural grandchild of the maternal grandparents. The child, A. turns 10 years old this week.

[2] The father commenced the court proceeding in October 2018, seeking custody, as well as access to the mother.

[3] The mother and the maternal grandparents responded with their own custody/access claims.

[4] At the outset of trial, the mother sought an adjournment in order to try to obtain legal representation. I denied that adjournment request on the grounds that the trial had been set several weeks or months prior and, additionally I concluded it was not in the child's best interests to leave him in litigation limbo, while awaiting another trial date which likely could not occur for several more months.

2: Position of the Parties

[5] As the parties were all self-represented it was not surprising to the court that their pleadings and their various requests of the court were somewhat disorganized. I was seeing the parties for the first time at the outset of trial. So, in order to better understand what they were seeking, I asked each party at the beginning of the trial to tell me as precisely as possible the order that they wanted me to make at the conclusion of trial.

[6] Their respective positions as expressed to me at the start of trial had somewhat evolved from the date of their initial pleadings.

[7] The father said he wanted an order for joint custody with the grandparents, with A.'s primary residence to be with the grandparents and access to the father every weekend. He made no request for any formal order for parenting time with the mother.

[8] The grandparents agreed with the father's request for weekends with him. They preferred that for now, A.'s primary residence remain with them. They seemed flexible regarding the mother's parenting time. In terms of decision-making, the grandparents were content with the mother making decisions together with the grandparents but, in the event of disagreement, the grandparents would have the final decision-making authority.

[9] The mother asked for an order that A. live primarily with her and that the father have access on the weekends. She said she would facilitate access with the grandparents on a flexible basis. She asked the court to make an order granting her final custodial decision-making authority.

3: Brief Background

[10] The parents met each other and were married in Iraq in 2007. The mother says this was an arranged marriage.

[11] The mother – who was born in Canada – then sponsored the father to come to Canada. The parents moved into the grandparents' home in Toronto.

[12] The child was born in 2010. The parties and the child continued to live with the grandparents in the basement of their house until their eventual separation in 2017.

[13] The parents differ on their evidence as to what led to the separation. The father claims the mother was abusive to him and to A. The mother claims that the father was physically and sexually abusive to her.

[14] What is beyond doubt is that the parties were engaged in very high conflict with one another.

[15] The mother also made claims about the father's inappropriate behaviour toward younger females, including her own sister (who is now an adult and who testified at the trial). However, all these claims were denied by both the father as well as by the sister.

[16] Sometime after the parties separated the mother commenced a relationship with another man (Mark).

[17] It is not disputed that Mark had anger management issues. From time to time, he smashed things such as windows or televisions, or other items in the mother's home or destroyed mother's possessions.

[18] Mark had alcohol issues, often resulting in bouts of serious intoxication.

[19] Mark was also physically assaultive toward the mother.

[20] There was some evidence that Mark had spent time in jail on one or two occasions.

[21] The mother testified that on one occasion, about seven months ago, Mark found a USB key which belong to the mother, containing digital pictures of the child, which Mark threw out. The mother characterized that act as "unforgiveable".

[22] It was obviously not a happy or contented period for the mother.

[23] On at least one occasion in April 2018, Mark was criminally charged with theft; the alleged victim was the father.

[24] In March 2018 the mother was also charged with theft, the alleged victim being the father.

[25] The mother acknowledges that, sometime following the parents' separation, she took the child from the grandparents' home and moved in with Mark.

[26] The mother remained in her relationship with Mark for about 1-1/2 years. She acknowledged at trial that she demonstrated poor judgment by entering into a relationship with this person, and then continuing in the relationship for as long as she did. That poor judgment impacted not only her, but the child as well.

[27] The evidence also revealed that when the mother decided to take the child from the grandparents' home and move in with Mark, she did not inform the father, either directly or indirectly of the child's whereabouts. This resulted in the child not having any contact with his father for an extended period.

[28] Following an admitted physical assault by the mother against the child in 2018, the police and the Children's Aid Society of Toronto (society) became involved.

[29] The father filed a photograph of the child's face at trial. The colour photo was taken shortly after the mother assaulted the child. It is clear from the bruising on the child's face that the assault must have been more than a simple open-handed slap by the mother.

[30] It was not clear from the evidence whether the mother was criminally charged. However, the society told the mother that the child's primary residence henceforth needed to be with the grandparents rather than the mother.

[31] The mother says that she finally ended the relationship with Mark a few months ago. However, before that happened, the child's life had been disrupted by the mother's decision to move him out of the grandparents' home where he had been living since birth.

[32] Over the past two-plus years, since 2017, the child has lived, first with his grandparents, then with his mother and Mark, then with his mother at her apartment and then back to the grandparents' home. The responsibility for these repeated moves lies at the mother's feet.

[33] The conflict was likely at, or near, its height when the father commenced his application in October 2018, seeking sole custody of the child, with specified access to the mother.

[34] That application led to responses from the grandparents and the mother which detailed numerous allegations, most of which were not proven or pursued at trial.

[35] However, what is clear is that the commencement of the court proceeding came about at a time of heightened tensions between the parties.

4: The Court's Impressions of the Parties

[36] This trial was complicated by multiple factors. First, all the parties were ultimately self-represented at trial. Despite directions given to them by the case management judge and the assignment court judge about filing evidence-in-chief by affidavit, and time limits for in-court testimony, only the father complied by filling an affidavit.

[37] None of the parties really wanted their disputes to result in a trial but they were simply unable to settle the issues on their own without lawyers to assist them.

[38] The result of this was a trial where the court was forced to ask questions in order to coax evidence from the parties relevant to the determination of the child's best interests. While all parties did have the opportunity to say whatever they wanted, much of the important information would have remained hidden without the court taking an active role in questioning.

[39] Apart from the issue of self-representation and disorganized/missing evidence, and despite the parents' personal shortcomings, all the parties do have positive parenting attributes to offer the child. In many cases where there is high conflict between two parents, the court may find it easier to decide that one person is more culpable than the other. Here, despite bad behaviour by both parents, the parents have a number of redeeming qualities which can potentially benefit their child.

[40] This presents its own problems. There are now three households – the grandparents' home, the father's home and the mother's home. The question for the court is how best to take advantage of the qualities of the various caregivers and what they have to offer and, at the same time, minimize the potential impact on the child.

[41] Despite all the allegations and counter-allegations – mostly levelled by the parents against each other, I have concluded that, apart from what I have already discussed, it is not necessary for me to decide who is telling the truth and who is lying with respect to the many allegations which were hurled about at trial.

[42] It is sufficient for the purposes of this trial and the decision I must make, to note that the relationship between the parents was one of very high conflict, particularly as matters intensified post-separation.

[43] More importantly, trying to sort out the truth of the various allegations does not take the court very far in making the necessary parenting decisions, particularly when it appears very likely that both parents have engaged in blameworthy conduct, in varying degrees.

[44] The grandparents and the father testified – and the mother ultimately agreed – that the grandparents' home is where the child feels most comfortable. This is the place which the child considers to be his home.

[45] That said, no one disputes that the child also loves his mother and his father, and he wants to spend time with both his parents as well as his grandparents.

5: The Law

5.1: Introduction

[46] The starting point for determining custody and access is the Children's Law Reform Act, which provides as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

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.

[47] The overriding consideration is the best interests of this child.

[48] In looking at the child's "needs and circumstances", I consider all of the factors listed in subsection 24(2) of the Act to be relevant to this case. That said, the court has very little evidence regarding the child's views and preferences, which are not expressly before the court. However, I was able to glean, in a limited way, the child's views, particularly, as I noted earlier, he considers the grandparents' home to be his home, the place where he is very comfortable.

[49] The following section of my reasons will consider A.'s needs and circumstances with reference to subsection 24(2) of the Act.

5.2: The Child's Needs and Circumstances

[50] Love, affection and emotional ties – None of the parties suggested that the child does not have a strong emotional connection to any other party. The grandparents in particular were clear in their evidence that the child loves and is attached to both the mother and the father – as well as to the grandparents themselves.

[51] The child's views and preferences – There was no report from the Office of the Children's Lawyer or any other source which would have permitted the court to ascertain the child's specific views and preferences. However, as I noted earlier, neither parent disputed the grandparents' assertion that the child feels very comfortable living in the grandparents' home. That is helpful for the court to know.

[52] Length of time child has lived in a stable environment – The evidence on this point was quite clear. Apart from a period of some months, the child has lived primarily with his grandparents. Certainly, for the first seven years of his life until the parties separated, the child lived in the grandparents' home, together with his parents. Following separation, the mother moved him to live with Mark for an extended period. In addition, the mother now has her own apartment where the child has spent nights from time to time. Nevertheless, since separation I conclude that the child's primary residence has been with his grandparents.

[53] Ability of each person to provide for the child's needs – The father does not suggest he is able to provide more than regular weekend visitations because of his employment responsibilities. No one suggested that for the 24-36 hours the father spends with the child each weekend, he is unable to appropriately care for A.

[54] The grandparents have been providing the bulk of the child's needs over the years. However, the grandmother has a few – albeit not overly serious – physical limitations, and the grandfather works as an Uber driver five or six days each week. So, there are some limitations in what the grandparents can do for A.

[55] The mother's situation is more complex. Had this trial taken place six to nine months earlier, I would have concluded that the mother's life was too chaotic to provide for the child's needs in any meaningful or prolonged way. However, in the past several months, the mother has made a number of positive changes in her life, including:

(1) She broke up with Mark;

(2) She said at trial that she recognized the need to make changes in her life and the way that she behaves;

(3) She acknowledged the unacceptable behaviour of assaulting the child. Since then, she has completed the Aislings Discovery Positive Parenting Program. She described what she learned from that program in terms of managing stressful situations with children and how to respond to those situations in a non-reactive, positive way;

(4) She has found a math and English tutor for the child and she pays for that tutor out of the limited funds she receives from the Ontario Disability Support Program; and

(5) She is spending more time with A., taking him to extra-curricular activities, libraries, the Science Centre, as well as other child-friendly places and activities.

[56] The mother does appear to have begun to move in a very different direction than where she was at just a few months ago.

[57] These changes not only accrue to her personal benefit but, more importantly, to A.'s benefit. The child may now have a more actively involved parent in his life, a parent who can provide him with the guidance which he requires now and in the coming years.

[58] This is particularly important because as the grandparents age, it may be that whatever the grandmother's physical limitations are today, will only intensify with time.

[59] Based on the evidence, the court can be cautiously optimistic about the mother and her ability to provide for the child's emotional and instrumental needs in the longer term, in a way which is positive and child-focused.

[60] That said, in my view, it would be overly hasty to burden the mother with too much responsibility all at once. Instead, there should be a passage of some time to ascertain whether the mother's changes take hold on a more permanent basis.

[61] My final order will reflect these considerations.

[62] The plan proposed by the parties for custody and access – The father's plan for weekend access reflects what has been going on for some considerable time. No one objects to that. However, the father's proposal for joint custody with the grandparents may not be realistic. The father stated that he has received a job offer which would require him to move to Oman. If he accepts this job he would move sometime in the next six to eight months. In my view it would not be realistic for him to be a joint custodial parent if he were living in a different country, particularly in a country which, because of its distance from Canada, would seriously limit even further his ability to spend time with A.

[63] The father did say, in the alternative, that he would not strongly oppose a joint custodial arrangement between the mother and the grandparents, provided the grandparents have the final say in the event of a disagreement.

[64] The grandparents are content with the father continuing to have weekend access from Saturday to Sunday, as currently arranged.

[65] They continue to say that they would like joint decision-making with the mother, but with final decision-making to them, in the event of a disagreement.

[66] In terms of residency time, the grandparents would like to see the mother spending a bit more time with A. This would enable her to become a more actively involved parent and, at the same time relieve the grandparents from some of the more onerous physical tasks. For example, the grandmother said that walking around all day at Canada's Wonderland would be difficult for her. However, the grandmother is fine with the normal everyday tasks, such as shopping, cooking, housekeeping, and so on.

[67] The grandparents have taken a realistic approach certainly to the parenting/residency issues by recognizing their own limitations. At the same time they understand that A. has a certain comfort level by being in the grandparents' home, and they do not wish to disrupt this any more than necessary.

[68] The permanence and stability of the individual family units – The father's plan for weekend access will likely remain permanent, at least in the short to medium term. However, that could change in the event he accepts the employment offer in Oman.

[69] The grandparents have lived in their home for a considerable number of years. Their living arrangement is a permanent and stable one. There is no reason to conclude that their own relationship is other than stable and permanent.

[70] The issue of permanence and stability is more of a question for the mother. As I discussed earlier, she has certainly shown that she is beginning to move in the right direction. Whether that will take hold permanently remains to be seen.

[71] Ability to act as a parent and familial relationships – In the court's view, these last two considerations overlap with the earlier discussion under the previous sub-headings of subsection 24(2) of the Act.

6: The Parenting/Caregiving Order Which Meets A.'s Best Interests

[72] As I noted earlier, the difficulty in crafting an order for A.'s residency stems from the fact that there are not two households to deal with (as is typically the case), but three households. Parenting/caregiving which involves three households by necessity leads to more moving around for a child than would be the case if there were only two households.

[73] The mother had suggested a plan something like this:

Father picks up child from grandparents on Saturday. He returns them to grandparents on Sunday, where he stays overnight. Mother picks up child from school on Monday and keeps him until Thursday morning. Child then remains with grandparents on Thursday and Friday nights, until he is then picked up by father on Saturday.

[74] While this scenario would seem to address the notion that everyone who loves A. gets their "fair share" of A.'s time, in my view this plan would require too many moves, and too much disruption for the child.

[75] When I asked the mother if she would like to move her own sleeping arrangements four times in the space of one week, she candidly admitted she would not. I asked why she thought A. would like it any more than she. To her credit, she did recognize that four moves in the space of one week would likely be too much for A. to have to endure.

[76] There is little the court can do about the father's time with A. given his work commitments. Accordingly, the court must work around that weekend time to allocate sufficient and appropriate time between the other two households.

[77] One of the ways this can be done is by mother spending an overnight or two at the grandparents' home. She has lived in that home in the past and the grandparents have made it clear that she is welcome to do so as often as she likes. While that might not be a perfect arrangement for the mother, it would afford A. with greater stability and less disruption.

[78] I see this as a sort of "nesting" arrangement, where it is the parent/caregiver who is required to move around, with the child remaining put.

[79] Long-term it may be appropriate to lessen the residential overnights A. spends with his grandparents and increase those overnights with his mother, at the mother's apartment, independent of the grandparents. However, this is not the time, for two reasons. The first reason is based on my earlier discussion about it being early days for the mother's behavioural changes. The second reason has to do with the mother's attitude toward her parents.

[80] The mother clearly took a confrontational attitude toward her parents during the trial. In particular, she sees the maternal grandfather as being more aligned with the father than with her. My concern is that unless I specify residency time with the grandparents, the mother might take whatever steps she is able to minimize that time.

[81] Having regard to all the foregoing, I make the following order regarding the child's residency and decision-making:

(1) The father to be with the child each weekend, commencing at 2:00 p.m. on Saturday until 5:00 p.m. on Sunday. The father shall be responsible for pickups and drop-offs at the grandparents' home. The grandparents shall exercise reasonable flexibility on both the pickup and drop-off times, particularly as required from time-to-time to accommodate the father's work schedule.

(2) The child shall remain with the grandparents from Sunday at 5:00 p.m. until the child is dropped off at school Thursday morning.

(3) The child shall be with the mother at her home from after school on Thursday until Saturday morning drop-off at the grandparents' home no later than 11:00 a.m. The mother shall be responsible for the pickups and drop-offs at the grandparents' home, unless she and the grandparents otherwise agree.

(4) The mother and the grandparents are at liberty to agree to different dates for the mother's mid-week parenting time provided however that any such agreement shall not require A. to change his residential overnights more than three times during the week.

(5) Regardless of the weekend schedule with the father, the child shall be with the mother on Mother's Day each year, from 11:00 a.m. until 7:30 p.m.

(6) The mother and the grandparents are at liberty to agree that, on any school day, the mother may attend at the grandparents' home to pick up the child from their home and take him to school, and to pick up the child from school and bring him to the grandparents' home. Failing any such agreement, the decision of the grandparents shall prevail.

(7) Other than those days when the child is to remain overnight with the mother at the mother's apartment, the mother and the grandparents are at liberty to agree that the mother may take the child to her apartment for homework or other activities, or meals during the week, provided that the mother returns the child to the grandparents' home no later than 7:30 p.m. In the event the mother and the grandparents are unable to agree, the decision of the grandparents shall prevail.

(8) The mother and the grandparents may agree to such additional parenting time – including overnights – with the mother on holidays and special occasions. In the event the mother and the grandparents are unable to agree, the decision of the grandparents shall prevail. Any such arrangement will be subject to the requirement that the child shall not be required to change his residential overnights more than three times in any one week.

(9) Parenting time in the summer shall follow a similar pattern of parenting/caregiving for the child, with the exception that if the child is in a summer camping program – whether overnights or not – or any other summer program, the requirements of any such program shall prevail over any other parenting time otherwise provided for in this order.

(10) Decision-making shall be the joint responsibility of the grandparents and the mother. However, in the event of disagreement, the decision of the grandparents shall prevail.

(11) Apart from day-to-day decisions which will be made by the person(s) having care of the child at the time, the grandparents shall consult with the father and shall give the father a reasonable opportunity – not to exceed seven days - to provide his input. However, the final decision shall be left to the grandparents and the mother jointly, subject to the grandparents' authority to make the final decision, as set out above.

(12) Both the father and the mother shall keep the grandparents advised of his/her current residential address as well as contact information such as telephone/text and email address, where applicable.

(13) The ability to travel, as well as the ability to obtain passports and other government-related documents for the child, shall be within the sole purview of the grandparents, and they need not obtain anyone else's consent for any of these.

(14) Neither the father nor the mother shall travel outside Ontario without the written and notarized consent of the grandparents.

(15) The original of the child's health card shall remain with the grandparents, with a copy to be provided by them to each of the father and the mother. In the event either parent requires the original health card for a specific medical purpose or appointment, the grandparents will give that parent the health card on condition that immediately afterwards, the parent shall return the original health card to the grandparents.

7: Child Support

[82] I turn briefly to the issue of child support. Normally, the court would make a formal child support order, recognizing the father's obligation to assist in supporting A.

[83] However, I was told during trial that the father has been giving the grandparents $400 each month to assist in supporting the child, as well as additional monies for clothes and incidentals.

[84] He also e-transfers money to Nadia on a regular basis to assist in paying for the child's extra-curricular activities such as karate and swimming.

[85] The father has been doing this on a voluntary basis without the need for a support order. He said he is willing to continue this arrangement without a court order.

[86] I asked the grandparents if they were confident that the father would continue as he has been doing, or did they instead require a formal court order. They expressed confidence in the father's willingness to help support A. without the need for a court order.

[87] In the circumstances of this case I am satisfied that a child support order is not necessary. However, if circumstances change then the grandparents are at liberty to return to court to seek child support on a motion to change.

8: Final Words

[88] This child is very fortunate to have a constellation of family members in his life, all of whom love him and want him to be in their lives.

[89] However, until now the parents have been unable or unwilling to put their personal differences aside and focus on the one thing they have in common – their child.

[90] It is not unreasonable to expect that the parents' conflict – as well as the mother's conflict with her own parents and her sister Nadia – will at some point spill over onto the child, if it has not already done so.

[91] I say these things, not for the purpose of chastising anyone but, rather, with the hope that the parents will take these comments to heart while their child is still young enough that he will not be permanently damaged by the adults in his life who engage in inappropriate conduct toward one another.

[92] But as I said to the parties at the conclusion of the trial, I cannot fix the family dynamics. Courts are simply not equipped to deal with those kinds of issues. The parties are all adults. They make their own choices in life. They need to make the choices that will be best for A., otherwise it will be A. who will suffer the consequences.

[93] In the particular circumstances of this case I will not entertain a request for costs by any of the parties, for a number of reasons:

(1) They are close family members who persuaded me that they made sincere efforts to avoid a trial, but their lack of legal advice was a real factor in making a settlement possible.

(2) None of the parties can claim "success" over the other in the outcome of this case.

(3) In the child's best interests, it is preferable that the family rifts be repaired, as much as reasonably possible. Any costs order would likely further inflame the existing tensions between the parties.

(4) This family constellation needs to move forward without any further legal proceedings or a court making orders against one person, in favour of another person.

[94] While I appreciate that none of these reasons strictly prohibit a party under the Family Law Rules from asking for costs, I rely on the Court of Appeal decision in M. (A.C.) v. M. (D.), 67 O.R. (3d) 181 which confers a broad discretion on the court to decide the issue of costs. In the exercise of that broad discretion, I have concluded that it is appropriate to decide that issue summarily and pre-emptively and for the reasons I have expressed.

Released: March 5, 2020

Signed: Justice Robert J. Spence

Footnotes

[1] There were various claims for child support as well as incidents of custody. However, no one filed financial statements or other material which would have enabled a court to determine that issue. Nor did any of the parties actively pursue their respective child support claims, either in their various case conferences before the case management judge or during the trial. And for reasons which I will set out, I have concluded it is not necessary to make a formal child support order.

[2] I have used the terms "joint custody" and "joint decision-making" interchangeably throughout these reasons even though courts have said that joint custody with final decision-making to one person is not legally joint custody. I have done so because the parties themselves used the terms interchangeably throughout the trial and in their pleadings. However, while I have used the term "joint custody" in the narrative portion of my reasons, I have not used the term "joint custody" in the final order.

[3] The grandparents attempted in their evidence to be as balanced as they could, especially since they were caught in the middle between their daughter and their son-in-law. They testified as to conflict instigated by both parties from time to time.

[4] The evidence suggests that the theft charges against the mother and Mark resulted from allegations that the two of them together stole certain items from the father's vehicle.

[5] During the time of that relationship the mother and Mark lived together, although the evidence suggested that they were living together on an on-again off-again basis.

[6] The child was diagnosed with Attention Deficit Disorder (or Attention Deficit Hyperactive Disorder) around the time that the conflict was becoming increasingly intense. While I do not purport to come to a medical conclusion about the connection between conflict and the ADD, it was clear from the evidence that the child was beginning to experience behavioural and academic challenges at the time the parents' conflict was intensifying.

[7] It was not clear how long a period this was, but it was at least several weeks, possibly longer.

[8] An example of how dysfunctional the extended family unit became materialized during the trial. One of the father's witnesses was Nadia, the mother's sister. In her cross-examination of both the father and Nadia, the mother accused the father of paying money to Nadia to come to court to testify against the mother. Ironically, Nadia's testimony was very balanced and matter of fact. What she had to say did not particularly favour the father in any meaningful way or hurt the mother.

[9] Although the court had to ask her a number of times whether she had insight into the need for a behavior-change. This was something she did not readily admit at the outset.

[10] Because the father sometimes must work on Saturday mornings, he would typically pick up the child from the grandparents' home at approximately 2:00 p.m. and return him to their home on Sunday before supper – generally around 5:00 p.m.