Court File and Parties
Ontario Court of Justice
Date: 2020-07-21
Court File No.: Toronto D40480/20
Between:
M. R. (Applicant/Mother)
— and —
A. R. (Respondent/Father)
Before: Justice Robert J. Spence
Motion heard: July 20, 2020
Reasons for Decision released: July 21, 2020
Counsel:
- Ms. Glenda Perry — counsel for the applicant
- Mr. Jas Dhaliwal — counsel for the respondent
Reasons for Decision
Introduction
[1] This is the return of mother's motion dated July 10, 2020. In that motion she claims various heads of temporary relief including sole custody, a restraining order and a no-access order in respect of V., the parties' 7-year-old daughter.
[2] The matter first came before Justice Sherr on July 10, 2020 on a without notice basis. Justice Sherr made a temporary without prejudice order which included: a non-removal order, a locate and apprehend order and a no-contact order against the father pursuant to section 28 of the Children's Law Reform Act (Act). Justice Sherr made certain ancillary and procedural orders, including filing timelines for the parties. He ordered the mother to serve the father and he then adjourned the motion to July 14, 2020.
[3] Counsel for both parties appeared on July 14th, as scheduled. Father's counsel sought and obtained an adjournment, on terms, on a without prejudice basis. Those terms included the continuance of the July 10th order, an order that the father deliver up the child to the mother by July 15th and the child to remain in the mother's care pending further court order.
[4] The father subsequently delivered his responding material to the motion and the mother delivered her reply.
[5] At the return of mother's motion argued on July 20, 2020, she continued to seek, inter alia, a temporary order for custody, a restraining order against the father and a no-access order – although as it unfolded in the course of argument, she was prepared to accept some form of supervised access order for the father.
[6] The father did not file a cross-motion. However, in his responding affidavit, he seeks a 50/50 shared parenting schedule, with pickups and drop-offs to be either at a police station or facilitated by another mutually agreeable person or at a mutually agreeable public place. He asks the court to refrain from making a temporary custody order and a restraining order.
Brief Background
[7] The parties were married in India in 2007. They came to Canada in 2009. Their child was born in May 2013 in the United States where the father has family residing.
[8] The parties first separated in January 2020, but they subsequently reconciled. They separated again on June 2, 2020 following an incident which led to criminal charges, first against mother and then subsequently against the father.
[9] On June 2, 2020, the father alleges that the mother began to hit him, unprovoked. He said that the situation was "out of control" and he "needed assistance" and because he felt he had no alternatives, "I called the police."
[10] Mother's version is markedly different. She says the father woke her up on June 1st in the morning and asked her to leave the house. When she refused, she later went into the apartment lobby (or corridor). When he came into the lobby he began to shout "stop hitting me, stop hitting me" or words to that effect. She denies hitting him.
[11] On June 2nd three police officers came to the apartment and they told mother that the father made a complaint that she had assaulted him. Mother denied this and she showed the police certain photos that were on her computer that revealed injuries to her person. The police nevertheless arrested the mother and removed her from the family home.
[12] Several days later the mother was contacted by a worker from the Children's Aid Society (Society). The worker told mother that she had seen the child and the child appeared happy.
[13] Mother's subsequent complaints to the police led to the father's arrest on June 15th. He was charged with three counts of assault against the mother.
[14] Except for a brief visit back to the apartment accompanied by a police officer on June 29th, the mother did not see the child after June 2nd, until Justice Sherr ordered the father to return the child to the mother on July 14th.
Mother's Position
[15] Mother claims that almost since the beginning of the marriage she was the victim of abuse. She claims that the father regularly inflicted physical abuse on her. She states that she never complained to the police or to close family and friends because she wanted to protect the integrity of the marriage, and for the child's sake as well.
[16] The abuse, which began early in the marriage, continued after the child's birth. And the father had little or no regard for the presence of the child when he assaulted the mother. The child was often witness to these assaults with the result that the child would become very upset.[1]
[17] As the child became older and started attending school, the mother reinforced to the child the importance of maintaining an all-is-fine outward demeanor to friends and teachers. She told the child never to report these incidents to anyone.
[18] On a number of occasions, the mother took pictures and videos of the injuries she says she suffered at the father's hand, but the father would take her phone or computer and delete the evidence of these assaults.
[19] However, there were a number of occasions when the mother was assaulted in more recent months when she did manage to take pictures and save them. I will return to these pictures later in these reasons.
[20] The over-arching theme of the mother's story as she has related it to the court is that she was a long-standing victim of spousal abuse, a victim who simply endured it in silence, someone who was afraid to ever report the abuse to anyone in a position of authority.
Father's Position
[21] The father has a very different story to tell. First, he absolutely denies ever engaging in assaultive behaviour toward the mother.
[22] He attributes the mother's story to what he claims are long-standing mental health issues that the mother has suffered throughout the marriage. He says that the mother has "previously told me that she has had suicidal thoughts". He claims that in 2016 a family doctor prescribed certain medications for the mother, but she would not take them regularly.
[23] He says she would "randomly disappear and run away from home without any reason". The picture that father paints of mother is someone who was disturbed by her mental/psychological problems and that whatever fears she claims to have of him are not based in any reality.
[24] His position regarding mother's claimed injuries starts with this statement: "[mother] on several occasions has threatened me that she will hit herself and get me in trouble. These threats have now materialized into her sworn affidavits".
[25] Referring to one of the photographs of an injury on mother's neck, the father says he remembers asking mother about this and she responded that it occurred because of her "long nails".
[26] He says he doesn't know anything about certain other injuries which are depicted in photographs. One of the photographs in mother's affidavit reveals what appears to be abrasions and bruising on her feet. Father's response is that they look to him like "common scratches". He also wondered if perhaps she suffered these injuries during her Zumba (exercise) classes.
[27] I will return to these photographs and discuss them at greater length further on in my reasons.
The Law
[28] In deciding issues of custody and access, whether at trial or on a motion, the court must have regard to section 24 of the Act and, in particular, subsection 24(2) which sets out the various factors for the court to consider in deciding what is in the best interests of a child. Section 24 of the Act provides:
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). 2006, c. 1, s. 3 (1).
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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
[29] Some of the questions raised by these factors are not answerable at this early stage of the proceedings, for example, the views and preferences of the child (para. 24(2)(b), love and affection (para. (a), as well as other paragraphs.
[30] Paragraph 24(2)(c) requires the court to consider the length of time the child has lived in a stable home environment. That consideration has some applicability to this case in that the father remained behind in the family home when the police removed the mother from the home on June 2nd. The child remained in the home with the father. On the father's proposal, the child would continue to go to the same school she was previously attending before the onset of the pandemic; whereas on the mother's proposal the child would live with her and would begin to attend a different school. If stability alone were the only consideration, the father's position might prevail over the mother's position.
[31] However, there is more for the court to consider in section 24 of the Act. Subsection 24(4) states [my emphasis]:
Violence and abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).
[32] In the particular circumstances of this case, I am of the view that the Violence and abuse issue is the main consideration at this stage of the proceedings. At first blush, this may appear to be a case of he-said, she-said, particularly as there is no third-party or independent corroboration of mother's claims. However, a careful analysis of the evidence leads to the conclusion that the mother's version of the facts is more credible than the father's version.
Assessing Credibility
[33] For the following reasons, I have concluded that mother's assertion that she has been the repeated victim of spousal abuse is more credible than father's denial.
[34] In mother's affidavit sworn July 11, 2020, she has attached as exhibits seven colour photographs. I will refer to each of the seven photographs by the date they were taken and the description of each photograph as stated by mother in her affidavit, together with father's responses.
Exhibit A, taken March 19, 2020
Mother states [my emphasis]:
This picture shows my face and neck. There is a red mark on my neck from where [father] choked me and where he hit me with his fist (while wearing his heavy stone studded rings). Taken the day after the incident (March 18).
The photograph is consistent with mother's statement. This is the same photograph that, as I noted earlier, father said mother had told him the injury resulted from scratching herself with her long nails.
Exhibit B, taken November 29, 2019
Mother states [my emphasis]:
[father] hit my arms with his fists. He was wearing heavy rings on his right hand. This photo was taken a day or two after the assault.
The photograph reveals a large, circular, dark bruise in the middle of mother's upper arm. Father says he knows nothing of this injury but he did notice that mother started wearing long sleeve shirts around this time.
Exhibit C, taken November 29, 2019
Mother states:
This is another photo from the same incident and shows a close up of my arm.
The photograph reveals the bruise to be of a deep reddish-purplish discoloration.
Exhibit D, taken October 21, 2019
Mother states [my emphasis]:
This photo shows me taking the picture with my phone (standing in front of the mirror). The photo shows the injuries on both of my upper arms from where [father] hit me with his fists. He was wearing heavy rings (with stone studs) when he hit me.
The photographs do reveal multiple, deeply discolored bruises, two on one upper arm and one on the other upper arm. Father files two pictures of himself with the child and with the mother. He says these pictures show that everyone was happy on that date.
Exhibit E, taken July 12, 2019
Mother states [my emphasis]:
This is a photo of my legs and feet. [father] kicked me on my legs and feet with his leather shoe. He also hit me with his fists on my legs and feet. When he hit me, he was wearing heavy stone studded rings. The pain is constant even today. The pain is worse in winter. This photo was taken a day or two after the assault.
The photograph does reveal both feet and a part of mother's leg. There are multiple bruises showing discoloration as well as abrasions in various locations of her feet and leg. Father's response is that he knows nothing about these injuries. He states: "These look like common scratches".
Exhibit F, taken May 2, 2019
Mother states [my emphasis]:
[father] hit me on the face and mouth with his open right hand. He was wearing stone studded heavy rings on his right hand and the rings hit my face. This picture shows the bruising on my face (above my lip and to the left of my chin). This photo was taken a few days after the assault.
The photograph does reveal a bruise on mother's chin and a more heavily discolored bruise covering about a quarter to a third of her upper lip. Father states [my emphasis]: "I do not know about this injury. I do not wear heavy studded rings as described by Monika".[2]
Exhibit G, taken April 7, 2019
Mother states:
This photo is a picture of my back. [father] hit me on my back with his fists. He wore heavy studded rings. During that particular assault, he squeezed my fingers tightly and one of his rings caused injuries. He also scratched my hand. He pushed me against a table and my knee was injured (bleeding cut and bruise). This photo was taken a day or two after the assault.
The photograph is a picture of mother's back, just below her shoulder, depicting a discoloration and what appears to be an abrasion as well. Father says "I do not know about this injury. I did not see these injuries on her back."
[35] Many of the injuries described by mother were exacerbated by the "studded rings" which mother states father was wearing at the time of the assaults. Father categorically denied wearing studded rings. Specifically, he deposes:
I do not wear heavy studded rings as described by [mother]
[36] However, in mother's Reply affidavit sworn July 17, 2020 she attaches as an exhibit a colour photograph of father with three fingers on display, and a part of a fourth finger. The photograph, dated May 2, 2020, reveals father is wearing rings on three of those four fingers. On two of those rings, there is clearly depicted protruding stones.[3] The third ring on the partially shown finger is only partially displayed so that the court cannot ascertain whether that ring is also studded.
[37] Father's denial that he wears rings which are studded is therefore untrue.
[38] Mother has provided very extensive and detailed evidence about the injuries that the father has inflicted on her. In the exhibits referred to above, and in the narrative of her affidavits she has detailed the repeated assaults at the hands of the father. Juxtaposed to this are the father's claims that the mother has self-inflicted these injuries, or that she injured herself in exercise classes, or that she scratched herself with her nails.
[39] When the mother's detailed descriptions, including her photographs,[4] are placed alongside father's scant responses, as well as his proven lie regarding the studded rings, the mother's story is credible. The father's responses are not.
[40] For some reason, the father attached as an exhibit to his affidavit an email exchange between the mother and himself. That exchange occurred on August 4, 2019. The father was accusing the mother of "running away" from a park. The last part of that exchange is as follows [my emphasis]:
Father - Don't do that again. Mother - what do you mean, you were beating me so I had to save myself
[41] This exchange occurred about 11 months before the parties separated on June 2, 2020.
[42] I conclude from the evidence that the mother has been the victim of father's assaultive behaviour, and that this violence has been perpetrated by the father for likely many years.[5]
[43] Although the photographs in the exhibits date back to April 2019, I accept mother's evidence that these assaults began long before 2019.
[44] Father's credibility is further undermined by the way he has chosen to address both sets of criminal charges – the charge against mother, and the three charges against himself. His description of the mother's behaviour on June 2nd, which led to her being charged with assault is terse, without detail, and entirely vague. He states:
Contrary to [mother's] affidavit, there is a recording that has been provided to the police. In the recording, you can tell [mother] was hitting me. I did not want to have [mother] arrested but the situation was out of control this time and I needed assistance and I did not know who to turn to, so I called the police.
[45] This is the entirety of the father's version of what he says the mother did to him which led to the assault charge against her on June 2nd.
[46] Then, on June 15th, the father is charged with three counts of assault. Here is the father's entire description of the events which he says led to the laying of these charges:
The police explained the allegations that [mother] was making against me and why I was being charged. I did not take any steps that [mother] is alleging since my arrest.
[47] What were those allegations that mother was making? When did the incidents occur? What was the extent of the injuries that mother complained of? What explanation does father have in response to mother's allegations against him? Father does not attempt to deal with any of these questions. He provides no detail or narrative apart from the brief two sentences referred to above.
[48] Father was certainly aware that the allegations of violence and abuse would be a very significant issue – if not the lynch-pin issue – before the court on the argument of this motion. And yet, he almost-completely failed to address the criminal charges, either the charge against the mother or the three charges he is facing.
[49] All of this further impairs father's credibility.
[50] Father was released either pursuant to bail terms or on a Recognizance. He does not attach those terms to his affidavit. The court has no way of knowing what the terms of his release include.[6]
[51] The father claims that mother has suffered from mental illness "throughout our marriage". He makes the statement that the mother is "attempting to alienate a parent-child relationship" and to "eliminate my role in V.'s life." And yet, he is proposing a parenting scheme in his affidavit which would amount to 50/50 shared parenting.
[52] The father proposes this parenting regime as evidence in the motion that he is supportive of maintaining the relationship between the child and the mother and, thus, he is a more suitable parent than the mother who is proposing either a no-access order or a supervised access order.
[53] However, what the father does not seem to realize is that his proposal has the further effect of undermining his credibility. It undermines his claims about the mother's mental illness and, what he claims, is her stated objective of alienating the child from him, removing the child from his life. In the court's view, if the father were sincere in his belief about the mother's ultimate objective, he would be asking for very restricted access, a form of access which could be monitored closely. He would be asking for tight controls over mother's access in order to prevent what he claims mother is doing, namely, alienating the child from him.
[54] Father stated in his evidence that he wants to support a relationship between the child and mother. And yet, between June 2nd and July 14th – when Justice Sherr ordered the father to return the child to the mother – the father did not permit any contact to occur.[7] He drew up a legal document which he insisted that mother sign before he would allow any access to occur. And in his initial exchanges with mother he insisted that her signature on that document be notarized.[8]
[55] Despite that 42-day period without any access, it seems father would have been content to maintain that status quo had mother not commenced her application and brought an urgent motion. Once again, in the court's view this position undermines father's credibility about his stated perceptions of what is in the best interests of the child.
Application of the Law to the Facts
[56] In their affidavits, the parties have raised other issues, none of which, in my view, are necessary to address at length at this stage of the proceedings.
[57] For example, the mother accuses the father of wanting to relocate the child from Canada to the United States where he has family residing. The child is a U.S. citizen. The father denies this.
[58] The mother states that the father has a well-developed familiarity with how child abduction works; she cites a U.S. reported legal case which she says addresses how the father's brother was involved in a child abduction case. The father denies this.
[59] The parents dispute who acted as the child's primary caregiver prior to separation, who was responsible for schooling, meal preparation, extra-curricular activities, and so on.
[60] The parties both note the involvement of the Society after the initial charge against the mother on June 2nd. A worker has been assigned and it appears from both counsel's comments during argument that the Society's file remains open.
[61] The foregoing issues may become more important as this case progresses toward trial. However, at this stage of the proceedings, the court has concluded that it is not necessary to go beyond the domestic violence issue and how this affects the child's best interests having regard to section 24 of the Act.
[62] As I noted earlier in these reasons, the primary consideration that would support the father's position is set out in paragraph 24(2)(c), that is, the stability of the child in remaining in her present environment and remaining at her present school (father's proposal).
[63] However, given the findings I have made about the father's acts of violence and abuse, in my view section 24(4) of the Act is by far the most relevant consideration for the determination of this motion. These findings of fact inform the court about the father's ability to act as a parent in an appropriate and child-centred way.
[64] Having found the mother's version to be credible and, accordingly, that the father committed repeated acts of violence against her, I also find as credible the mother's evidence that these acts of violence were committed in the presence of the child, including the mother's statements that:
- The child witnessed the beatings from the "time she was born and continued unabated until the separation".
- During the assaults, "some would hit V. and she would cry, run and hide".
- "V. was terrified when [father] was hurting me. I would hug her and cover her ears and eyes while [father] was beating/kicking/hitting me. She would cling to me."
- "I told V. not to tell no one – not in her school or at Kumon or anyone else, and she did not."
[65] There is much more in the mother's evidence about the effect of these assaults on the child. The above-noted examples are sufficient to provide a useful picture at this stage of the proceedings.
[66] The fact of the assaults and the impact of those assaults on the child lead to the conclusion that it would be contrary to the child's best interests to permit a 50/50 parenting schedule. And even though the child's residence with mother will require the child to change schools, it was the father's actions, not the mother's, that forced the mother out of the family home. And it was the father's actions that now lead to the conclusion that there needs to be a very tight contact order between the father and the child. This is necessary to protect the child's emotional wellbeing and to hopefully provide some information about the child's views and preferences.[9]
[67] I am mindful of the considerable body of case law which states that courts should be reluctant to make sole custody orders on a temporary basis, as this often creates a "winner" or "loser" mindset between the parents, or establishes a litigation advantage in favour of one parent over the other. See for example, McLaughlin v. Dance, 2018 ONSC 5440.
[68] However, where there are persuasive reasons to do so, a court will make a temporary order for sole custody in favour of one of the parents. See for example, Woubeshaw v. Workeneh, 2019 ONSC 7192.
[69] In my view, the facts of this case fall into the latter category. There are compelling reasons to make an order for sole custody in favour of the mother.
[70] The mother was forced out of the house by the father's actions. She will now be changing the child's school based on the new catchment area where the mother has relocated. She may have to make other decisions as well. In the context of my findings of violence and abuse, it would make little sense to require her to obtain the father's consent for the various decisions she will have to make for the child.
[71] The mother will require at least a temporary custody order to facilitate this decision-making.
[72] Having found that both the child and the mother have been victimized by the father's assaultive and abusive behaviour, I was initially inclined to make a no-access order. However, I have concluded that some form of highly regulated access which permits the court to assess the dynamics between the child and the father may be of assistance as this case moves forward. My order will reflect this.
[73] The child is a U.S. citizen. The father has family residing in the United States. The mother believes the father's goal was to permanently relocate the child to the United States. While the father denies this, there is at least a reasonable basis for the mother's concerns. And in the court's view, there is enough evidence for the court to make a non-removal order. The order will not prejudice the father at this stage of the proceedings.
[74] But for the existence of the criminal charges and the almost-certain no-contact order that accompanies such charges, I would have been inclined to make a restraining order against the father. However, at this stage of the proceedings I have concluded that a no-contact order pursuant to section 28 of the Act will suffice. This could change as the case moves forward.
[75] I had been inclined to order either a Voice of the Child Report or a section 112 Report from the Office of the Children's Lawyer. However, it is my understanding that the Office of the Children's Lawyer will generally refuse such orders when there is an open Society file. I will require counsel to follow up on this issue and advise the court when we have a counsel-only check-in by teleconference on August 17, 2020.
Conclusion
[76] For the foregoing reasons, the court makes the following order:
(1) Mother shall have sole temporary custody of the child V.[10]
(2) Father shall have access to the child, to be supervised by a third-party professional such as Braden, the Children's Aid Society, or Access for Parents and Children Ontario. The parties shall organize the form of access with the assistance of counsel. The father shall be responsible for any fees which are incurred in connection with this access. In the event the parties are unable to agree on the mechanics of the access, the court may be consulted about this at the next telephone conference on August 17, 2020.
(3) Both parents shall refrain absolutely from discussing any aspect of this litigation or the criminal court charges or the adult issues in general with the child. Both parents shall ensure that no other person, either directly or indirectly involves the child in any aspect of this litigation or the criminal court charges or speaks ill of either parent to the child.
(4) The father shall forthwith return to the mother any of the child's government-related documents which he has in his possession, including the child's passport and her health card.
(5) The mother is at liberty to apply for any government-related documents pertaining to the child without the father's consent.
(6) Pursuant to section 28 of the Children's Law Reform Act, the father is prohibited from having any contact, direct or indirect with either the mother or the child, except as otherwise permitted by court order. Without limiting the generality of this order, the father shall not attend at the mother's home, her place of employment, the child's school or any other place where the father reasonably expects the mother or the child to be from time-to-time.
(7) The father shall not remove the child from the City of Toronto without a court order.
(8) Pursuant to section 36 of the Children's Law Reform Act, the court orders the Toronto Police Services, the Ontario Provincial Police, the Royal Canadian Mounted Police, Canada Border Services Agency and all other police or law enforcement agencies with jurisdiction to do so, to enforce this order on behalf of the mother.
(9) The issue of costs, if any, arising from this motion may be addressed at a later court date.
[77] A draft of this order shall be forthwith prepared by mother's counsel who shall submit it to father's counsel for approval. In the event father's counsel fails to approve the draft order within four business days, the draft may be submitted directly to me for approval.
Released: July 21, 2020
Justice Robert J. Spence
Footnotes
[1] I will have more to say about the impact on the child later in these reasons.
[2] I will come back to this statement shortly.
[3] Whether these are "stones" or some other kind of "stud" cannot be determined by the photograph alone.
[4] At no time in his affidavit evidence or in the argument raised by counsel on his behalf did the father suggest that any of the photographs were not authentic.
[5] Although for the purpose of this motion I do not have to determine how many years this abuse has been ongoing.
[6] A standard condition would include a no-contact order (possibly with an exception as otherwise ordered by a family court judge).
[7] Except for mother's brief visit to the family apartment on June 29th when she was accompanied by a police officer to retrieve some of her belongings.
[8] Some days afterwards, he removed the requirement that she attend at a notary public's office, stating he was content with her signature alone, on that document.
[9] Paragraph 24(2)(b) of the Act.
[10] The formal court order shall set out full names of the parties and the child, as well as the child's birthdate.