COURT FILE NO.: FC-11-2540

DATE: 2011/08/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fadi Otari, Applicant

AND

Bibi Shameema Cader Saibe Otari, Respondent

BEFORE: Mr. Justice Peter Annis

COUNSEL:
Susan E. Galarneau, for the Applicant
N. Hanna, (Duty Counsel) for the Respondent

HEARD: August 29, 2012

ENDORSEMENT

Endorsement

1This is an emergency motion brought further to my order of April 27, 2012. It required, among other directions, the return of the child, Wassim Anwar Otari, born […], 2011, then residing with the mother in Toronto, to Ottawa, in order to provide the father with access to the child in accordance with previous orders of this Court.

2In those proceedings, I concluded that the father had made out a prima facie case that the mother wilfully contravened the orders of Master Roger and McMunagle J. by her numerous relocations with the child, including her move to Toronto.

3I also concluded that the mother's relocations were not justified by fears for her or the child’s safety. I found that they were undertaken, in part, with the intention of frustrating the father’s access rights to the child.

4Overall, the mother was not credible as revealed by the numerous inconsistencies in her evidence as set out in my reasons.

5In my endorsement, I decided that the best interests of the child would require him to reside in Ottawa with primary residence with the mother, or alternatively with the father if the mother insisted on living elsewhere.

6I rendered a supplementary order on June 14, 2012, in which I refused the father’s request to place the child in his primary care. On information from his lawyer it was indicated that the mother had not had any contact with the child for the more than three weeks while Wassim was in the father’s care and the mother remained in Toronto. The mother also had refused to transmit basic health and other information to the father, or to provide requested supplies and belongings of the child on his return to Ottawa, leading the father to claim that the mother had abandoned Wassim.

7Although rejecting the father’s request for primary care, I provided the parties with comprehensive guidelines used in high-conflict cases to assist in decision-making. These included the standard clauses requiring the exchange of information, as well as facilitating civil and respectful communications between the parties concerning the child.

Credibility and Conduct of the Mother

8Despite my efforts to encourage some degree of cooperation on the mother’s part to enable the father to participate in Wassim’s upbringing, based on the materials presented, I conclude that the mother has continued to advance serious unfounded allegations against the father and to do everything in her power to frustrate his access and the intentions of my orders.

9The most serious conduct of the mother involves continued unsubstantiated allegations of child and spousal abuse against the father. Her evidence contains a hearsay claim of an anonymous complaint to the CAS that the father and his sister were observed shaking and hitting the child near the father’s residence on the day the child was left with the father when the mother was returning to Toronto. The complaint was investigated and quite appropriately dismissed by the CAS. There is no basis from the evidence provided to suggest that the father or his family members would harm the child. Indeed, all the evidence is to the contrary including the mother’s own admission that the father is very devoted to the child.

10Thereafter, the mother sought to have the father charged criminally with respect to an incident she alleged occurred on July 19, 2012. She claims that after returning the child at a McDonald’s, the father “was the person apparently knocking [her] down,” causing her to break her arm. She deposed that he was the only person around other than the person who had accompanied him to the exchange which was done in a public place.

11The vague allegation makes no sense in terms of what the father could gain in a situation where past abuse allegations have been made against him by the mother. The father is employed in the public service and is well educated, holding a post-graduate degree, and there is nothing in the evidence which would suggest any inclination on his part to carry out a form of sneak assault on the applicant.

12As in past incidents previously reviewed and found to be unfounded, she claims that the police advised her not to provide any access to the father unless supervised. Despite repeated requests from the father’s counsel, no evidence has been provided to support these allegations or that directions regarding the father’s access were received from the police.

13The father has been forced to incur further legal expenses to retain a criminal lawyer. He voluntarily provided a statement to the police, along with one in writing from Ms. Maria El Omari. She had accompanied the father and observed the exchange and was with the father during the time when the alleged incident was said to have occurred. No charges have been laid against the father, now more than two months after the alleged incident.

14On the basis of the mother’s past lack of credibility particularized in my reasons of April 27, 2012 and the information provided to the court today, I find no basis to conclude that the father assaulted the mother as claimed. Rather I see her claims against the father as yet another attempt in a pattern of similar false allegations made in the past intended to interfere or prevent him from having access to Wassim. It is noted that in the past the mother succeeded in denying the father access to the child for six months by making similar unsubstantiated allegations against him.

15The mother has also been successful in denying access to the father since my order, necessitating this further motion. She has used the more recent allegations against him to justify her denial of access to the father from July 5, 2012 through to August 16, 2012. In addition, she has required the father to accept supervised access, besides repeatedly changing the times and places of access in an attempt to frustrate his time with the child.

16The mother has made numerous other inconsistent statements that further undermine her credibility: that she was working; had found housing; had communicated information to the father, all of which were untrue or contradicted in the materials.

17Her disinclination to tell the truth included stating to the court that the reason she had not provided medical information to the father was because he had not asked. This statement was made despite the court having before it a series of four e-mails directed to her counsel seeking this and other relevant information to assist the father in caring for the child. None of the requested information was provided, which was also contrary to the detailed guidelines that I provided to assist in decision-making and communications between the spouses.

18The mother claims that her fear prevents her from disclosing her address at the shelter where she now lives. She continues to request that her residence not be disclosed to the father on the court file. She only entertained e-mail communications after her counsel withdrew from the file. I will grant her this order, but only on the basis that it not interfere, as it has in the past, with the ability of the father’s counsel to communicate with her for the purpose of these court proceedings.

Best Interests of the Child

19The father requests an interim order from the court awarding him custody and primary residence of the child. He is prepared to provide very liberal access to the mother to ensure that her close bond with the child continues.

20The father submits that the only way that a process can be put in place to allow both parents to participate fully in the life of the child, is for him, on an interim basis, to be in a position to ensure that access occurs and that the guidelines for decision-making and communication that I am imposing on the parties will be adhered to.

21I have already commented that the father has a loving relationship with the child and there is no indication that the child’s safety or welfare would be jeopardized in his care. The mother did not deny that he loves Wassim. Apart from the anonymous allegations made that he and his sister were observed shaking and hitting the child, which I reject completely, there is no evidence to suggest otherwise.

22During the more than three weeks that the child resided with the father, there is no indication that Wassim was not well taken care of and that his best interests were not considered at all times. In comparison, I am particularly concerned by the refusal of the mother to provide basic health information and other necessities to the father to assist in his care of the child, despite repeated requests made to her counsel, who eventually removed herself from the record.

23In all of the circumstances that have been described in some detail in the materials before me, the father has conducted himself in the manner expected of a loving parent, including being respectful and civil in his dealings with the mother as evidenced in the their exchange of emails.

24Nor does the father deny that it is in the best interests of Wassim that the mother be involved in the child’s life. From what I can determine there is no suggestion that the father will prevent the relationship of the parents from evolving, such that joint custody and shared parenting may occur in the near future.

25On the other hand, from past circumstances, I am not satisfied that the mother is capable at this time of acting in the best interests of the child to make an honest effort to allow the father to be involved in the child’s life, even though she acknowledges that he cares very much for Wassim.

26In my previous order I commented that “her conduct in these matters suggests some degree of instability, or at least indecisiveness which if continued will be unhealthy for the child.” I conclude that the mother’s lack of stability and unremitting efforts to prevent the father’s access, which in the instance of not providing information or materials to assist the father care for the child was contrary to the interests of her child, lead me to conclude that at this time it is in the best interests of the child that custody and primary residence of the child be with the father. This should be supplemented by a regimen of liberal access to the mother with the view to establishing a situation of joint custody and shared parenting in the near future.

27On a final point, I award custody to the father without requiring a parental assessment of the parties, which I had ordered in my decision of April 27, 2012. The mother did not respond to requests from the father to move this along and moreover the father has been otherwise challenged in having to respond to the criminal allegations and to enforce the court orders for access to the child.

Order

Order

28I make the following interim order:

a. The father shall have custody of the child;

b. Primary residence of the child will be with the father;

c. Access to the mother shall be as follows:

i. Until the child is placed in daycare, the mother to have access to the child on Tuesdays and Thursdays from 8:30 a.m. until 4:30 p.m. and on Saturdays from 9 a.m. until 5 p.m.

ii. Once the child is in day care, the mother to have access to the child on a two‑week rotation. During the first week access shall be on Tuesday evening from 4:30 to 7:30 pm and from Friday afternoon at 4:30 p.m. until Monday morning, returning the child for the start of day care. During the second week, evening access shall take place on Tuesday and Thursday as described above.

iii. Access exchange shall occur in the foyer of the Ottawa Police Station on Elgin Street, unless the child is picked up from or delivered to the site of the child care services.

iv. If access proceeds relatively smoothly without serious issues occurring, the parties should expand the mother’s access with the view to putting in place a regimen of shared parenting and thereafter, joint custody within a timeframe of 3 to 5 months.

d. My previous orders for child support and the requirement for a parental assessment are vacated.

e. Neither party shall remove the child from the provinces of Ontario or Québec without the consent of the other.

f. These orders shall be enforced by the local, provincial and national police forces pursuant to s. 36 of the Children's Law Reform Act in any jurisdiction where it appears the child may be found.

g. The decision-making provisions in my supplementary order of June 14, 2012 will apply with final decision-making authority described therein to rest with the father. Similarly, the access communications provisions apply, with the exception of the first sentence of paragraph 3. In addition, because of concerns of the mother, the father is to ensure that his family members and friends understand and agree to paragraph 11 of the access communications guidelines.

h. The parties shall cooperate to ensure that requested information is obtained from the CAS, that service on the mother may be effected by e-mail, which service shall be deemed valid for the purposes of these proceedings; that the mother's address is not displayed on the court file materials and that all pertinent health information, i.e. OHIP card and inoculation information, is shared between the parents.

i. Costs of these proceedings are to the father, to be assessed and made payable at such time as the spousal support issues are brought before the court. Submissions on costs may be made in writing.

29The father’s lawyer may provide a formal order for my signature in accordance with the dictates of this decision.