COURT FILE NO.: 04-FP-296021FIS
DATE: 20120627
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEANNIE MARTINEZ
Applicant
- and -
IBNEE HOSEIN
Respondent
Louis Mostyn, for the Applicant
in person
HEARD: June 20 – 22, 2012
MESBUR J
Introduction:
[1] The primary issue in this trial is the final disposition of the issues of custody and access in relation to the parties’ ten year old son, Abraham. The court must also determine child support on a final basis. The final issue is the respondent’s claim for a finding of contempt against the applicant.
Factual findings:
[2] The parties were married in March of 1994. Their son Abraham was born on April 12, 2002. The parties separated in February of 2003 following a violent incident between them. Since then, Abraham has resided primarily with his mother, the applicant. The parties have been divorced for some years.
[3] Early in the separation, the respondent father exercised access to Abraham on alternate weekends from Fridays at 9:00 a.m. until Sunday at 6:00 p.m. as well as on alternate Thursdays from 6:00 p.m. to Friday at 6:00 p.m. The access arrangements were made in a temporary order of Bolan J. on August 23, 2005.
[4] The next court order in this action was dated December 1, 2006. In it, Harvison-Young, J made a final order, on consent, regarding Christmas access, father’s access to the child on Eid, and for group counselling for the parties and the child. The order specifically stated that the issues of custody, access, further holiday access and child support “continue to be live issues and will be dealt with at a later date.”
[5] This arrangement continued for nearly two years. In the meantime, the father re-partnered, and started a new family. He now has three young children with his current wife.
[6] On October 28, 2008 the access arrangements changed. The mother brought an urgent motion to restrict father’s access to Abraham and provide supervised access only. Abraham had come home from an access visit complaining that father’s wife had pushed him to the floor, kicked him and stepped on his back. Mother called the Children’s Aid Society, who investigated the issue. The CAS determined that the incident did take place, although it was not clear as to the force that was used with Abraham.[^1] The Society worker cautioned father and his wife about all forms of physical discipline. The Society also cautioned father and his wife about risk of emotional harm to Abraham because of ongoing conflict between father and the mother. The Society provided father with contact information for a number of sources for parenting education.
[7] After this incident, mother also consulted with a social worker, Lillian Freedman MSW, who conducted a home study. Abraham reported to Ms. Freedman that his father and stepmother regularly “berate him, express anger with him, hit him, and force him to recite the Koran”. Abraham told Ms. Freedman he has fantasies of “finding a way to make his stepmother and three year old step brother ‘disappear into outer space, never to return.’” Abraham reported he would like to have quality time with his dad, but not be caught in the middle.
[8] Ms. Freedman’s report recommended a psychiatric evaluation and family counselling. Until that occurred, Ms. Freedman recommended that Abraham have time with his father at a time when “his father is not at work, and actually available to his son. Abraham should not have to compete for attention with three or four others”.
[9] The combination of the CAS involvement, and Ms. Freedman’s report resulted in mother’s bringing an urgent motion to change access. Horkins J agreed. She viewed the situation as urgent, granted an interim order changing access to Saturday and Sunday between 1pm to 5 pm at the home of the mother’s mother, Agnes Martinez, and in her presence. The order went on to provide that father would exercise access without his current wife/partner and children. Since the father had not had counsel at the return of the urgent motion, Horkins J made the motion returnable on November 13, and set a timetable for the father to deliver responding material.
[10] It does not appear that the motion went ahead on November 13. The parties did, however, attend a case conference on November 17, 2008. At that time, on consent, the parties agreed to proceed with a referral to the Hincks-Dellcrest Centre. The supervised access order was to continue, with the additional provision that access could include father playing with Abraham in Agnes Martinez’ back yard, as long as Agnes Martinez could continue to supervise. The order went on to provide that the terms of supervision and whether it should continue could be addressed on motion with proper material, outlining evidence of any changed circumstances or the recommendation of any professional involved with the family. No one launched such a motion.
[11] Mother went to Hincks-Dellcrest and completed their intake process. They advised her that they did not think their agency was the right service for the family. Instead, they recommended the Families in Transition programme offered by Family Service Toronto.
[12] Mother immediately called Families in Transition, placed herself on the lengthy waiting list, and eventually participated in a six-week programme, as did Abraham. Father was invited to become involved in the programme, but declined. He testified was not prepared to pay the roughly $2 to $5 per session. He testified he was financially strapped at the time, because he had two more young children at home to support.
[13] Supervised access continued at Agnes Martinez’ home. Often the father was late. Frequently he brought tools, and insisted on fixing things around her house, even though she did not want him to. He cooked – preparing gourmet meals of lobster and crab – using her kitchen. He trimmed her trees, using a machete, or even a chain saw. Father testified that he would “do this freely” without Agnes Martinez’ permission, “in the interests of the family”. He mowed her lawn, even though she asked him not to. All this suggests to me that father has the attitude he can do whatever he wants, whenever and wherever he wants, regardless of the wishes of others. This gives me concern about both his judgment and his ability to respect boundaries.
[14] Both mother and grandmother had concerns about some of the activities father would indulge in with Abraham. For example, he would watch movies with the youngster that gave Abraham nightmares. Clearly, these movies, such as “2012” were inappropriate for a boy of eight or so. Father would have Abraham assist him with mowing the lawn, using a power mower. He tried to teach Abraham how to use the machete. On day when mother came at the end of access to pick up Abraham, she found him on the porch, sitting on his father’s knee, with a large machete on his lap. The blade was exposed. On another occasion, father brought hair shears to the access visit, and forcibly held Abraham down and shaved his head because he did not like Abraham’s “mini-Mohawk” haircut.
[15] Mother testified that Abraham had chosen the hairstyle himself, and was very excited about it. Father testified that as Abraham’s father he did not think it was an appropriate haircut for the boy. He felt it was disrespectful to him as Abraham’s father. Given what father described as the history of the Mohawk and the haircut as a transition from boy to man, he did not think his son was worthy of the haircut or old enough to carry it. Therefore, he forcibly shaved his head, over the protestations of both Abraham and his grandmother, Agnes Martinez.
[16] Agnes Martinez testified that it was very difficult for her to supervise, because father would not follow the terms of the order. For example, he would take Abraham to the park, even though it was not allowed. He would take Abraham across the street to a neighbour’s house, even though it was not allowed. On at least three occasions, he brought his other children to access, even though it was specifically prohibited in the order. Father testified in relation to these breaches that in his view an “unjust law” is no law at all. He excused his breach because it was his holiday of Eid, and his children are just “little children” not “thugs”. Again, this is another indicator of father’s propensity to do as he pleases, regardless of court orders. He seems prepared only to follow those provisions of orders with which he agrees.
[17] The last supervised visit at Agnes Martinez home occurred on September 19, 2010. Although the visit was to occur between 1 and 5, father did not arrive until well after 4 pm. He did not give Agnes Martinez any notice that he would be late, or how late he would be.
[18] After the father finally arrived, the mother went to her car which she had parked across the street. Given the time, she decided to simply wait there until the visit was over. After she left her mother’s home, she saw the father go to his van and take his three other children from the van and into Agnes Martinez home. Mother took her camera, and went to the house so she could take pictures of father’s three other children and have evidence that father was in clear breach of the order.
[19] Father forcibly tried to take the camera from mother. When he could not, he picked up a baseball bat that the children had been playing with, raised it above his head and began to threaten the mother with it, in front of all the children. Agnes Martinez tried to stop him, but he would not listen, and continued to taunt the mother and Agnes Martinez until he left at 5 p.m. Mother testified she was very frightened by this incident.
[20] At this point, Agnes Martinez felt she could not longer offer supervision. She had tied up her weekends for nearly two years to accommodate Abraham seeing his father. Instead of complying with the court order, father was frequently late, or did not show, and concentrated more on puttering around the house instead of playing appropriately with his son. As Agnes Martinez put it, the incident with the baseball bat was the last straw for her. She was afraid for Abraham. She declined to supervise after this point.
[21] Father sets much store in the fact that the police were not involved in the “baseball bat” incident. Mother says she did not want to call the police and have them arrest the father in front of all his children. She felt it was bad enough that the children had seen their father threatening her and Abraham’s grandmother. In my view, she exercised reasonable judgment in making that decision. I have no doubt the incident occurred, much in the way the mother and grandmother describe it. Father repeatedly pointed out to the court that he is five foot ten or six feet tall and weighs two hundred pounds, while mother is less than five feet. I accept that father raised the bat in a threatening manner toward the mother, and continued to taunt her until it was time to leave. Given his size, loud voice and domineering presence, particularly compared to mother’s small stature, I am sure she felt extremely threatened by his behavior. I am also sure all the children were frightened by what they saw.
[22] Father did very little after this occurred. He did send some emails to the mother’s lawyer, threatening a motion for contempt. He did not seek to change the order to provide for a different supervisor, or to eliminate supervision.
[23] Although it is by no means clear, it seems that father may have launched some kind of motion without notice on June 16 of last year regarding contempt. Czutrin J referred father to duty counsel, and required that father deal with service and prepare proper material. Between September 19, 2010 and this motion in June 2011, a period of nine months, father did not see Abraham at all, and took no steps in court to obtain a new order for access.
[24] The matter came on again in court later in June, 2011. At that time, Sachs J. ordered a trial of the issues of access and contempt, and made an order pending trial that father “is to have access to his son, Abraham Hosein on Saturday and Sunday from 1 p.m. to 5 p.m. at a Supervised Access Centre commencing Saturday, July 30, 2011 as the father is away from July 7, to July 28th, 2011.”
[25] Mother immediately took steps to make arrangements with the access centre. Her counsel learned that the order would have to be amended to state specifically that access was “supervised” before the access centre would begin the visits. Mother’s counsel immediately advised the father, but father refused to consent to any amendment. He took the position that his access was to be unsupervised, even though it was to occur at a supervised access centre. The access centre would not, however, begin the visits until the order had been amended.
[26] Mother’s counsel continued to try to get father to consent to the amendment so that access could begin. Father refused. It was not until mother’s counsel brought a motion in October of 2011 that the amendment was made. At that time, father did not attend, and the court opined that the amendment was appropriate. Once the amendment was made, supervised access could finally begin at the access centre. Because of lengthy waiting lists, the first visit would not occur until March 3, 2012. What this meant is that Abraham did not see his father for a period of about eighteen months, even though mother took every step she could to reinstate access.
[27] Since supervised access has begun, it has gone reasonably well, but not without incident. On the very first visit, father tried to ask Abraham what school he was attending. When staff told him he was not to ask that question, father responded it was his legal right. Frequently father is late for the access visit. From staff notes, it appears father often asks inappropriate questions, or makes inappropriate remarks.
[28] For example, on the visit June 2, 2012, father told Abraham in a week they were going to court and “then I’ll have you on week-ends or even longer in the summer. Probably by the end of this month.” It is completely inappropriate to discuss court proceedings with a ten year old. Father then asked Abraham about mother’s boyfriend. Staff had to tell father not to ask questions about the other party.
[29] On April 28, 2012, on at least two occasions father talked to Abraham about when he would come over in the summer. Abraham has complained on occasion about his father being too rough with him, hugging him too hard, for example. His mother has told him he must tell his father to stop if he is uncomfortable. Mother told staff at the April 28 visit “I know he loves him, and I know he’s doing it playfully, but sometimes he can be rough”.
[30] Father pointed out on several occasions during the trial that he is about five feet ten inches, or perhaps even six feet, and weighs two hundred pounds. He has an intimidating manner and a very loud voice. I am sure he sometimes uses more force in hugging his son than he should.
[31] During the visits, father says things like “you didn’t call me all week. What’s wrong with you?”[^2] Father also seems to prefer his own agenda to following Abraham’s lead. For example, on the April 21 visit, Abraham brought a game that he wanted to play with his father. Instead of playing the game, father told Abraham they could not play the game, but instead had to work on their tree house. The tree house is a project that is very important to father. As far as I can tell, it is something he is building in his yard. These few examples lead me to believe that father is not as tuned into Abraham’s needs as he should be, and prefers to meet his own needs and wishes first, before considering what Abraham would like or needs.
[32] Mother would like supervised access to continue. She recognizes that father loves Abraham, and also recognizes that Abraham needs to have a relationship with his father. She questions father’s judgment – even when access is supervised, she feels he shows a lack of judgment, in such things as letting Abraham play near power tools and machetes, showing him violent, inappropriate movies, and being late and inconsistent in access, as just a few examples. She also points to his disregard of various orders.
[33] Father brought his other children to access at Agnes Martinez’ home, even though the order specifically forbade this. Father took Abraham away from Agnes Martinez’ home, to the park or the neighbour’s, even though the order was clear he was not to do so.
[34] Father’s non-compliance extends to financial issues as well. Father failed to produce his income tax returns prior to trial, although he had been subject to orders to do so for years. When I told him he could obtain them from the Canada Revenue Agency, he immediately had a copy of his 2010 return faxed to him, but not until his evidence was complete. When I asked father why he had not obtained copies of his 2008 and 2009 returns as well, he had no reasonable answer. After all the evidence was complete, and father and mother’s counsel were about to begin their final submissions, father suddenly announced he had been able to obtain these other returns over the lunch hour. I did not permit their admission into evidence. The fact father was able to obtain the returns during the trial, but had not done so for years before, again reinforces my view that father has a completely cavalier attitude to court orders, and to the court itself.
[35] All of this brings me to a discussion of the issues I must now decide.
Discussion:
Custody and access
[36] In looking at the issues of custody and access, the sole criterion is to determine what is in Abraham’s best interests. Abraham has always lived in his mother’s primary care. Since the parties separated eight years ago, this has been the status quo. The mother has taken Abraham to counselling with Families In Transition, and has participated in the program herself. Father refused to do so.
[37] Although father initially enjoyed generous, liberal overnight access to his son, his actions over the last number of years have quite properly restricted that access. Abraham’s grandmother accommodated the need for supervised access for a period of nearly two years, until she simply could not do it any more. Seeing her daughter threatened with a baseball bat by Abraham’s father was the last straw for her.
[38] What is very telling to me is that father took no steps during those initial two years of supervised access to change the arrangement to unsupervised access. Instead, he came and went as he pleased during the access times, arriving late, leaving early or simply not showing up at all. All this shows a troubling disregard for Abraham, and the disappointment Abraham would have when the expected visit did not occur as it should have.
[39] Similarly, father was unaffected by some of the restrictions the access order placed on him – he simply ignored them, over the protests of Agnes Martinez who gave up her weekends in order to provide proper supervision for the visits.
[40] After Agnes Martinez declined to supervise any longer, father took no steps to secure another person to supervise his visits. He did nothing except launch a motion of some kind for contempt. Again, his concern was focused on punishing his former wife instead of maintaining a meaningful relationship with his son.
[41] Father has been more concerned about having unsupervised access than he is about seeing his son. The most telling example of this relates to the order of Sachs J. As I have said, rather than amend the order so that access could begin at once at the supervised access centre, father refused to do so. Nearly four months went by before the order was changed, and then there was a further waiting period before the visits could actually begin. Father’s stubbornness resulted in his not seeing his son for a further period of nearly nine months. More importantly, father’s stubbornness resulted in Abraham being deprived of a relationship with his father.
[42] I have no doubt that father loves Abraham deeply, and Abraham loves him. I also have no doubt that father would like Abraham to live with him, with his wife and their three children. The only evidence I have about their living situation is from a report from the Children’s Aid Society resulting from an incident in which father’s current wife apparently used excessive force in disciplining Abraham at their home. I have no real sense of what father’s plan for Abraham would be, or how it would be in his best interests to live with his father and his extended family. In contrast, I do know that in mother’s primary care, Abraham is doing well.
[43] Father says that since mother has had Abraham for the last ten years as his parent it is only fair that he get Abraham for the rest of his minor years, for the next ten years. He asks that the court give him back his son. Father’s comments, though extremely heartfelt, do not focus on Abraham’s needs; instead they focus on father’s own needs for what he describes as fairness and vindication of his position. Again, this kind of focus gives me concern.
[44] I have significant concerns about father’s judgment, for all the reasons set out above. He has not had unsupervised access in nearly four years. During those four years there was a period of nearly eighteen months when he did not see his son at all, and took no concrete steps to change court orders so he could do so.
[45] Therefore, mother will continue to have sole custody of the child. She is free to apply for a passport for the child without father’s consent.
[46] As to access, I am not satisfied that father should have unsupervised access. He has not had unsupervised access since sometime in 2008. He has breached prior orders without hesitation. The current notes from the access centre regarding some of father’s behavior in the most recent visits in the last few weeks confirm my view that unsupervised access is not in Abraham’s best interests.
[47] Therefore, until further order, father will continue to have access to Abraham on Saturdays from 11:30 a.m. to 1:30 p.m.at the Supervised Access Centre for Parents and Children in Ontario and be supervised by a member of the Access Centre.
Child support
[48] The current interim order for child support requires father to pay $403 per month in child support. As I understand it, the amount was based on father’s income of $46,775 and began September 1, 2005. Child support has not changed since then.
[49] Father has failed to comply with numerous disclosure orders. At the commencement of trial he produced a 2011 tax summary regarding his 2011 tax return. He did not produce a copy of the actual return, with all attachments, nor did he produce a notice of assessment. He says he has not yet received a notice of assessment. The 2011 tax summary shows total line 150 income of $55,361.92. I have no idea if that is all T4 income, or comprises some additional income.
[50] Father’s 2010 tax return shows total line 150 income of $38,295. This is made up of T4 earnings of $53,443 and a rental loss of $15,148 on gross rental income of $3,800. Father professes to have no idea of what this rental income is about, or where it comes from. He claims that he gives all his tax information to a friend, who in turn gives the information to a tax preparer who prepares his return. He says he has no idea who this is or how they prepare his return. I find this very hard to believe.
[51] Mother is claiming only table support, and only on a prospective basis. Although Abraham goes to daycare, she does not want any contribution from father to that cost or to any other section 7 expense. On the evidence I have, I can only assume father’s current income is his stated line 150 income, namely $55,362 (rounded). Table support for one child at that level of income is $502 per month.
[52] Therefore, commencing July 1, 2012 father will pay child support of $502 per month for one child, based on his income of $55,362. A Support Deduction Order will issue.
Contempt
[53] As I understand it, father seeks a finding that mother is in contempt. He has failed to articulate which order mother is allegedly in contempt of, and also has failed to articulate with any specificity in what fashion mother has failed to comply with that order. He has therefore failed to meet his evidentiary burden to show:
a) The order alleged to have been breached states clearly and unequivocally what should and should not be done;
b) The party who disobeys the order must do so deliberately and wilfully; and
c) The evidence must show contempt beyond a reasonable doubt.[^3]
[54] In any case, termination of supervised access at Agnes Martinez’ home came about by a refusal of Agnes Martinez to continue to provide supervision. She was not compelled to provide supervision; she was a volunteer who did so to facilitate access in the best interests of her grandson. I cannot see that any action on the part of the mother terminated access improperly, if, indeed, that is father’s complaint.
[55] The claim for contempt must therefore be dismissed.
Disposition:
[56] For these reasons, a final order will go in the following terms:
a) Mother will have sole custody of Abraham Jamaal Hosein born on April 12, 2002. Mother may apply for a passport for the child, without father’s consent, and she may travel outside Ontario without father’s consent provided she gives him written notice of when she will be travelling with the child;
Father will continue to have access to the child on Saturdays from 11:30 a.m. to 1:30 p.m. at the Supervised Access Centre for Parents and Children in Ontario and be supervised by a member of the Access Centre;
b) Commencing July 1, 2012 father will pay table support for the child of $502 per month based on father’s income of $55,362;
c) Support Deduction Order to issue;
d) Father’s motion for contempt is dismissed.
[57] If the parties cannot agree in the issue of costs, they may make brief written submissions to me. Submissions will be no more than three typewritten pages, double spaced. Mother’s will be served and filed within two weeks of the date of these reasons. Father’s will follow within two weeks of that.
[58] Submissions may include a bill of costs, an outline of hours spent by counsel, and counsel’s actual billing rate to his client. Submissions may also include copies of any offers to settle that might bear on the question of costs.
MESBUR J
Released: 20120627
COURT FILE NO.: 04-FP-296021FIS
DATE: 20120627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEANNIE MARTINEZ
Applicant
- and -
IBNEE HOSEIN
Respondent
REASONS FOR JUDGMENT
Mesbur J.
Released: June 27, 2012
[^1]: Letter from CAS to I Hosein, dated Nov 7, 2008 [^2]: Notes of the visit of April 21, 2012 [^3]: See, for example, Prescott-Russell Services for Children and Adults v. G. (N.) 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (O.C.A.)