ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY LAW
COURT FILE NO.: FS-12-18263
DATE: 20120918
BETWEEN:
ANA SHAHINI Applicant – and – GEORGIOS KETIS Respondent
Dennis Apostolides, Counsel for the Applicant
John P. Schuman, Counsel for the Respondent
HEARD: September 18, 2012
ENDORSEMENT: Greer J.:
[ 1 ] The Applicant, Ana Shahini, the Wife (“Wife”) brings on a Motion, on an Emergency basis respecting temporary custody of the 2 children of the parties’ marriage; namely Andrea
B. November 21, 2009 (now 3) and Raphael B. October 26, 2011, (now 10 months). The Respondent, Georgios Ketis, the Husband (“Husband”) opposes the Motion being heard, saying it is not an emergency.
[ 2 ] I find on the evidence before me that this is a case that must be brought before the Court on an emergency basis for the following reasons:
The parties’ separation on August 14, 2012 took place under circumstances, which saw the Wife removed from the matrimonial home by the police, as she was about to breast-feed the parties’ infant son, leaving him and the 3-year old daughter in the home with the Husband.
The Wife has been the children’s primary caregiver since birth. She is presently on maternity leave and has been having to pump breast milk to try to feed the infant. The situation is untenable.
The Wife’s access to the children has been restricted and is unsatisfactory.
The parties are not communicating effectively and there is urgency to the situation.
[ 3 ] Rule 14(4.2) provides that a court may hear a Motion prior to a Case Conference if there is urgency or hardship or it if is in the interests of justice to do so. In my view, the case meets all 3 criteria. The best interests of the 2 children require that the Motion be heard. No child should be literally torn from the Mother’s arms in a situation like this where there is a family crisis. The infant was not, at the time, on regular milk.
[ 4 ] No available Case Conference date was available until October 22, 2012. Although some attempts were made by the parties to seek mediation, they were unable to agree. The Wife was abruptly put out of the matrimonial home and charged by the police with assault, based on the Husband’s torn shirt (front and back) and no injuries, while the Wife also had a torn garment plus some marks to her skin. Both parties had called 911. This is not the situation in Rosen v. Rosen , 2005 480 (ON SC) , [2005] O.J. No. 62 (O.S.C.J.), where there was no urgency to the husband’s Motion for exclusive possession and issues of child custody and support.
[ 5 ] In T.L.W. v. J.T.W ., [2011] O.J. No. 4409 (O.S.C.J.) , Mr. Justice McDermot said in para. 4 that custody of the children and issues relating to the matrimonial home are “urgent in nature and, considering the behaviour of the parties, required immediate intervention by the Court, prior to a Case Conference.” I adopt that wording as applicable to the case at bar.
[ 6 ] Orders to go in terms of paras. 1 and 2 of the Wife’s Notice of Motion.
[ 7 ] In paras. 3 and 4 of her Notice of Motion, the Wife asks for the temporary custody of the parties’ 2 children and for an order that they reside primarily with her. In the alternative, she asks that they be placed in her care, with an order that they reside with her until further Order of this Court. The Husband opposes this and wants the Court to dismiss the Wife’s Motion, leaving the children with him in the matrimonial home.
[ 8 ] The parties were married on January 25, 2003 and separated on August 14, 2012, after 9 years of marriage. Both parties work, the Wife at a major accounting firm and the Husband at a major bank. The matrimonial home is jointly owned by them, with the Wife having contributed $45,000 to the down payment of the home.
[ 9 ] I have read all of the Affidavits filed by the parties, examined most exhibits and read their lengthy facta in this matter. There is no evidence to show that the Wife was not the children’s primary caregiver. She has taken 2 maternity leaves to be with them. The Husband, she believes is trying to disrupt her status with the children and trying to establish his status quo where the children remain in his care and control, and trying to restrict her access. He was fully aware the night of the incident that the Wife was breast-feeding the infant son and that she planned on doing it until he was a year old.
[ 10 ] The Wife says the Husband made allegations against her to both the police and the CAS, that she suffered from post-partum depression and that the children were at risk. She believes he did this to get her out of the house and to get control of the children. There is no medical evidence to show that the Wife suffers from post-partum depression. She saw her family doctor on August 16, 2012, 2 days after her expulsion from the home and in his letter of August 21, 2012 Dr. Wilton says she is in good health and does not suffer from any medical conditions. He confirms that she has ‘small bruises over both triceps as well as an abrasion over her lateral left arm”. He notes that the Wife’s sister took pictures of the Wife’s injuries, suffered on the evening in question.
[ 11 ] The Husband, on his own and without provocation, went to the police station the evening before the altercation, to ask what he should do about the Wife’s post-partum depression. In my view this raises a reasonable suspicion that he was preparing to get her out of the house and get control of the children. Why did he not call the Wife’s relatives in the City, to ask about it and seek their help? Why did he not speak to mutual friends about what he says was her condition? Dr. Wilton is also the children’s doctor.
[ 12 ] The Husband’s mother from Greece was in the home at the time. The Wife says the mother encouraged the Husband to call 911. The Wife says “his parents have wanted us divorced since our marriage 10 years ago.” This mother is now, essentially the caregiver for both children. She is 63 years of age and not in good health says the Wife. She is alleged to suffer from depression and takes thyroid medication. She is in Canada on a visitor’s visa. There is no need for her to be caring for the children when there is no reason that they should not be in the Wife’s care.
[ 13 ] The Wife has concerns about the Husband’s health issues, which I make no comment on, given that his medical records are not before the Court.
[ 14 ] The Husband has a son in Greece from a previous relationship. He also has a brother in Greece he wants to bring to Canada to sponsor him and to live with them. These could be reasons why the parties argued and why the Husband wants the Wife out of the house. They also argued, she says, about provisions of guardianship in their Wills.
[ 15 ] The CAS was called in, given that the children remained in the home without their mother. The Wife says that at first the CAS said the children should be with her and then stepped back because of the police involvement.
[ 16 ] It is clear from the Husband’s Affidavit evidence that he wants to continue to control the children’s lives with only short access visits by the Wife and no overnights. The infant has been given formula and solid foods, as the Wife’s milk is not sufficient. If she were with the infant on a more permanent basis, she would be able to breast feed him regularly. The Husband says he would like to resolve these matters but in reality, he wants to remain in the home, leave his mother to care for the children when Andrea is not in daycare, and he wants to be the primary parent.
[ 17 ] I am not sure that the children are “thriving” in the Husband’s care anymore than they did in the Wife’s care. I accept that the infant has gained weight after he had initially lost it. Much of the Husband’s Affidavit goes into a great deal of background issues between the parties. The Motion before me, however, is not about that. It is what is in the best interests of the children in the circumstances of this case.
[ 18 ] The Wife has had sporadic access to the children since August 15, 2012. She has had no overnight access but is now residing in a 3 BR. Apartment where she has room for them. She has been their primary caregiver. I accept her evidence that the children have been traumatized by the incident which took place on August 14, 2012, about being wrenched from their mother’s care and put into grandmother’s care. I am cognizant of the fact that the Husband has reorganized the children’s lives and schedules, to suit his needs, but he was not the children’s primary caregiver in their lives until this point.
[ 19 ] Attached to the Husband’s last Affidavit are 2 articles entitled “Divorce in the Nursery: On infants and overnight care” by George, Solomon and McIntosh, and “Using Child Developmental Research to Make Appropriate Custody and Access Decisions for Young Children”, by Kelly and Lamb. The articles make the following points about caregiving:
a) being away overnight from your primary caregiver is additionally stressful.
b) evidence that clear attachments are formed by children between 7 and 24 months.
c) benefits of maintaining contact with both parents – interaction should occur in many ways.
d) children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically.
e) infants and toddlers get used to transitions.
f) transitions should be accomplished without overt conflict.
[ 20 ] The wrenching of the children away from the Wife and the sporadic access has, in my view, been sufficient to traumatize them, although they are adjusting to changes as they may be able to do so.
[ 21 ] I am satisfied, for the reasons as set out herein that the Wife be given temporary custody of the two children, Andrea and Raphael. They shall be immediately turned over to the Wife with clothing, toys, car seats, beds and other possessions so that she may set up her apartment for them. The Wife shall be the children’s primary caregiver. The transition should take place on WEDNESDAY, SEPTEMBER 19, 2012. Orders to go accordingly.
[ 22 ] The Husband shall have generous access at reasonable times to be worked out between the parties. They should consider getting the help of a mediator or parenting co-ordinator to work with them. The parties shall confer about daycare for the children, given the distance that now exists where each parent resides. They must try to co-operate on all these issues.
[ 23 ] The parties shall set up an early Case Conference to be held and shall begin the process of full financial disclosure.
[ 24 ] Order to go that neither party remove the children from the jurisdiction of Ontario.
[ 25 ] The Husband’s Motion is adjourned to a new date to be set. If the parties agree on the relief requested by the Husband, they may send an Order to me for signature.
[ 26 ] The issue of Costs shall be dealt with by way of written submissions to me no longer than 3 pages, if the parties cannot otherwise agree on Costs.
Greer J.
Released: September 18, 2012
TYPED VERSION TO FOLLOW
COURT FILE NO.: FS-12-18263
DATE: 20120918
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY LAW
BETWEEN:
ANA SHAHINI Applicant – and – GEORGIOS KETIS Respondent
ENDORSEMENT
Greer J.
Released: September 18, 2012
TYPED VERSION TO FOLLOW