SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 47043-12
DATE: 2012/11/29
RE: Waleed Rashad Gallo, Applicant
AND:
Sharon F. Abraham, Respondent
BEFORE: The Honourable Madam Justice D.L. Chappel
COUNSEL: Gerry V. Shaffer, Counsel for the Applicant
Brian R. Kelly, Counsel for the Respondent
HEARD: November 14, 2012
ENDORSEMENT
I. INTRODUCTION
[ 1 ] This was the hearing of a Motion brought by the Applicant Waleed Rashad Gallo (“the Applicant”) for an order for access to the children of the parties’ marriage. The Applicant requested regular access to the children on alternate weekends, from Friday at 6:00 p.m. until Sunday at 6:00 p.m., as well as a mid-week overnight visit every week from Wednesday after school until school on Thursday morning.
[ 2 ] The Respondent Sharon Abraham (“the Respondent”) is agreeable to access occurring between the Applicant and the children. However, she requested that this access consist of visits every Tuesday and Thursday from 6:00 p.m. until 8:00 p.m., and daytime visits only on alternate weekends, on both Saturday and Sunday, from 12:00 noon until 8:00 p.m. She also seeks an order that the Applicant’s access occur in a public place, with her present to supervise.
II. BACKGROUND
[ 3 ] The Applicant and the Respondent were married on August 29, 2001 in Egypt. They immigrated to Canada in 2002. The Respondent was already a Canadian citizen when the parties came to Canada.
[ 4 ] There are two children of the parties’ marriage, namely Merna Gallo, born […], 2002 (now ten years of age) and Laura Gallo, born […], 2005 (now seven years old).
[ 5 ] The parties separated on May 29, 2012. The Respondent left the matrimonial home on that date with both children, and the children have remained in her primary care since that time.
[ 6 ] The Applicant commenced the Application herein on October 3, 2012. As of that date, he had not seen the children since the separation date, despite efforts on his part to negotiate access through counsel. In his Application, he has requested, inter alia, orders for joint custody of the children and reasonable and generous periods of care and control of the children on reasonable notice.
[ 7 ] This Motion was originally returnable on October 11, 2012. The matter was adjourned and came on for a hearing before Broad, J. on October 31, 2012. On that date, the case was referred to the Office of the Children’s Lawyer, for that office to determine whether its involvement would be appropriate. The Applicant was granted leave to proceed with a hearing of this Motion prior to a case conference being conducted. In addition, the parties consented to a temporary order upon the following terms and conditions:
The children’s passports were to be held by the Applicant’s counsel pending further order of the court or the consent of the parties in writing.
On a without prejudice basis, the Applicant was to have the children in his care on Saturday November 3, 2012 from 12:00 p.m. noon until 2:00 p.m., on Thursday November 8, 2012 from 6:00 p.m. until 8:00 p.m., and on Saturday November 10, 2012 from 12:00 noon until 4:00 p.m. This time with the children was to occur at a specified McDonald’s restaurant or at such other location as agreed upon between the parties through counsel. In addition, the Applicant’s parenting time with the children was to occur in the presence of the Respondent.
[ 8 ] At the hearing of this Motion, counsel for the parties advised that the Applicant had time with the children on the dates set out in the October 31, 2012 order, but that the visits were much longer in duration than specified in the order. Specifically, it is acknowledged that the November 3, 2012 visit was four hours long, the November 8, 2012 visit was eight hours long and the November 10, 2012 visit was also at least eight hours in duration. All three visits occurred in a public place, with the Respondent present. Both parties acknowledged that there were no concerns respecting these visits.
II. POSITIONS OF THE PARTIES
[ 9 ] As noted above, the Applicant is requesting an order for regular time with the children on alternate weekends, from Friday at 6:00 p.m. until Sunday at 6:00 p.m., as well as a mid- week overnight visit every week from Wednesday after school until school on Thursday morning. He alleges that he had a loving and positive relationship with the children during the course of the parties’ relationship, that he was a very involved parent, and that the Respondent has engaged in a campaign to undermine his relationship with the children since the separation. He opposes the Respondent’s request that his contact with the children occur in the Respondent’s presence, stating that there are no grounds to require that his time with the children be supervised. The Applicant is currently residing in the matrimonial home,
[ 10 ] The Respondent is asking that the Applicant have daytime visits only with the children, and that these visits occur in her presence. She alleges that she was the primary caregiver for the children during the course of the parties’ relationship, and that the Applicant’s role with the children was minimal. She states that the children have not seen the Applicant since the separation because they are very fearful of him. According to the Respondent, this fear is based on the children’s exposure during the parties’ marriage to regular verbally and emotionally abusive behaviour towards both her and the children. The Respondent states that the Applicant has made comments about wishing to completely detach himself from her and the children. She raises serious concerns regarding the Applicant’s history of aggressive, irrational and unpredictable behaviour, and states that she worries about the safety and well-being of the children if they were to have visits with the Applicant without supervision.
III. ANALYSIS
[ 11 ] As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act . [1] Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(2) stipulates that where an application is made for an order for custody and/or access, the court may make a temporary order respecting custody and/or access pending determination of the application. Section 16(4) of the Act clarifies that in making an order under section 16 , the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.
[ 12 ] Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. [2]
[ 13 ] Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child. [3]
[ 14 ] The Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability. [4] However, in an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the “best interests” analysis may be referred to as guides in deciding cases under the Divorce Act. [5] The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act , [6] which provides as follows:
Merits of application for custody or access
- (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 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1) .
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) .
[ 15 ] I have considered the principles summarized above in reviewing the evidence which has been adduced in this case. I am faced with the challenge in this case of having two extremely divergent versions of the family dynamics which existed during the parties’ relationship, and about events which occurred prior to the separation. The Respondent has made a number of very serious allegations of physical aggression towards her, and verbal and emotional abuse by the Applicant towards both her and the children, which the Applicant adamantly denies. There are therefore significant credibility issues which will ultimately need to be resolved in this case by a judge who has had the benefit of hearing all of the evidence, with a full opportunity for cross examination.
[ 16 ] As the Motions judge, I have had to carefully balance all of the evidence, as yet untested, in order to craft a solution which is in the children’s best interests. For the reasons set out below, I have concluded that it is in the best interests of the children that a graduated arrangement be implemented over the next several weeks for their time with the Applicant to be increased, so as to allow them an opportunity to develop a greater comfort level with the Applicant. I am not satisfied that the Applicant’s access needs to be supervised at this time by the Respondent or any other individual or agency.
[ 17 ] One of the concerns which the Respondent has raised in this case is that the children are fearful of the Applicant. The evidence before me indicates that although both children have expressed fear about their father to their mother and their counsellor Ms. Huber, and Merna has relayed fear to her family physician, Dr. Quartermain, neither of the children has apparently expressed any significant concerns about the Applicant to two child protection workers with the Family and Children’s Services of Waterloo (“FCSW”) who have been involved with the family. By correspondence dated July 8, 2012, FCSW Intake worker Ms. Anne Newton confirmed that agency was not restricting the Applicant’s access with the children. FCSW worker Ms. Zisca Findlay also confirmed by email dated September 6, 2012 that she had met with the children, and that based on her interview, she did not feel that any restrictions of the Applicant’s access were necessary. FCSW is specifically mandated to investigate protection concerns respecting children, and it has carried out two separate investigations since the parties separated, with no protection concerns respecting the Applicant being identified.
[ 18 ] Despite the conclusions which FCSW has reached, it is clear that the children have been expressing anxiety about their father. The source of and reasons for that anxiety are unclear at this time. The report of Dr. Quartermain does not elaborate on any reasons which Merna gave for her anxiety around the Respondent. Ms. Huber notes that both children described their father as being a very angry man. However, she indicates that Laura spoke about both of her parents arguing, and her father doing “ most of the yelling” (emphasis added). What is clear from the evidence is that there was a significant amount of conflict between the parties during the period preceding the separation, and that the children were exposed to this conflict on a number of occasions. It appears from the evidence that both parties have played a part in the development of this conflict.
[ 19 ] I am satisfied based on the evidence before me that the Applicant has acted inappropriately towards the Respondent on a number of occasions, including making many concerning comments to her or about her. With respect to some of the actions and comments which the Respondent alleges occurred, the Respondent has argued that they are particularly demeaning having regard for the family’s culture. The Applicant denies having engaged in the alleged commentary and actions, and disagrees with the Respondent’s interpretation of the cultural implications. He also disagrees with the translation of some of the comments which the Respondent alleges he made. These discrepancies again raise credibility issues which simply cannot be fully resolved in the context of a Motion. If the allegations of the Respondent are true, they raise concerns respecting the Applicant’s ability to provide a physically, emotionally and culturally safe and protective environment while the children are in his care. However, I must again consider the Respondent’s allegations in light of the evidence that two FCSW workers interviewed the children, and did not have any concerns based on those interviews that the children would be at risk of harm in the Applicant’s care. This evidence is so contradictory to the Respondent’s allegations about the children’s alleged fear of their father that it raises concerns about the Respondent’s evidence and/or about the reliability of the children’s statements to her about their perspectives of their father.
[ 20 ] While the Applicant’s treatment of the Respondent is an important consideration in determining the issue of time-sharing for the Applicant, I must also consider the evidence respecting the Applicant’s direct conduct and attitude towards the children. There is no evidence before me indicating that the Applicant has ever been physically aggressive towards the children. The Respondent alleges that the children have been exposed to verbally and emotionally abusive commentary from the Applicant about or directed towards them. Again, however, this information must be considered in light of the assessment of the FCSW workers about the relationship between the Applicant and the children. Furthermore, there is no indication in the reports from Dr. Quartermain and Brigitte Huyer which suggests that the father has made verbally or emotionally abusive commentary about or towards the children directly.
[ 21 ] In reaching my decision respecting the Applicant’s contact with the children, I have considered the parties’ evidence respecting the history of the Applicant’s relationship and role with the children. Again, the evidence on these issues is starkly contradictory. The Respondent alleges that the Applicant had no significant parenting role, whereas the Applicant alleges that he had an extensive part in the children’s care, including taking the children to most of their appointments. The Applicant further alleges that in many respects, the Respondent was derelict in carrying out her parental responsibilities.
[ 22 ] There is some evidence respecting the Applicant’s involvement with the children, which the Respondent does not dispute and which in my view is significant in considering the issue of contact between the children and their father. First, the Applicant alleges that he spent extensive time alone with the children outdoors during the weekend just prior to the Respondent leaving with the children on Tuesday May 29, 2012. In addition, he states that he spent a great deal of time alone with the children over the March Break in 2012. He has produced a number of photographs which indicate that he has engaged in activities with the children. The Respondent did not dispute the Applicant’s evidence respecting his time with the children on these occasions. The question that arises is why the Respondent would permit this type of unsupervised time between the children and the Applicant if she has such significant concerns regarding the children’s safety in the Applicant’s care. There is somewhat of a disconnect between the undisputed evidence regarding these contacts between the Applicant and the children and the Respondent’s allegations against the Applicant.
[ 23 ] I have also considered the information made available to me at the hearing of this matter respecting the visits which occurred between the Applicant and the children in November, 2012, pursuant to the order of Broad J. dated October 31, 2012. These visits apparently went well, with no incidents of concern. The Respondent was present during all visits, and no issues arose regarding the Applicant’s treatment of her or his care and treatment of the children. In fact, the Respondent permitted significantly longer periods of contact than were ordered by Broad, J.
[ 24 ] Having regard for all of the foregoing considerations, I conclude that it is in the best interests of the children that they see their father on a regular basis, and that there is insufficient evidence to support an order for ongoing supervision of the Respondent’s time with the children. However, given the anxiety which the children have expressed to two professionals about their father, and the fact that they have had minimal contact with him since May, 2012, it is in the children’s best interests that the Applicant’s contact with them evolve on a gradual basis over a period of several weeks, with the goal of working towards full alternate weekend visits and one mid-week overnight visit. The hope is that this type of arrangement will allow the children to gradually develop a comfort level with their father before weekend access occurs. In the event that any concerns arise regarding the Applicant’s time with the children, the concerns can be addressed by way of further Motion to change the arrangements.
IV. ORDER TO ISSUE
[ 25 ] Based on the foregoing, pending further order of the court, a temporary order shall issue upon the following terms and conditions:
The children Merna Gallo, born […], 2002, and Laura Gallo, born […], 2005 (“the children”) shall remain in the primary care of the Respondent Sharon Abraham (“the Respondent”).
The Applicant Waleed Rashad Gallo (“the Applicant”) shall have the children in his care as follows:
a. On Saturday December 1, 2012 from 12:00 p.m. until 8:00 p.m.
b. During the week commencing Monday December 3, 2012:
i. On Tuesday December 4, 2012 and Thursday December 6, 2012 from 6:00 p.m. until 8:00 p.m.
ii. On Saturday December 8, 2012 from 12:00 p.m. until 8:00 p.m.
c. During the week commencing Monday December 10, 2012:
i. On Tuesday December 11, 2012 and Thursday December 13, 2012 from 6:00 p.m. until 8:00 p.m.
ii. From Saturday December 15, 2012 at 6:00 p.m. until Sunday December 16, 2012 at 2:00 p.m.
d. During the week commencing December 17, 2012:
i. From Wednesday December 19, 2012 at 6:00 p.m. until Thursday morning, when he shall drop the children off at their school.
ii. From Saturday December 22, 2012 at 6:00 p.m. until Sunday December 23, 2012 at 7:00 p.m.
e. During the week commencing December 24, 2012:
i. From Wednesday December 26, 2012 at 6:00 p.m. until Thursday December 27, 2012 at 10:00 a.m., or at such earlier time as may be necessary in order to accommodate the Applicant’s work schedule. If an earlier time is required, the time shall be arranged by the parties through counsel.
ii. From Saturday December 29, 2012 at 12:00 noon until Sunday December 30, 2012 at 7:00 p.m.
f. As of the week commencing Monday December 31, 2012:
i. Commencing Wednesday January 2, 2013, every Wednesday from 6:00 p.m. until Thursday morning when the Applicant will drop the children off at school. In the event that there is no school on Thursday, the exchange shall occur at 8:30 a.m. at the location referred to in paragraph 3, or at such other time as may be necessary to accommodate the Applicant’s work schedule, with such time to be arranged by the parties through counsel.
ii. Commencing Friday January 4, 2013 and every alternate weekend thereafter, from Friday at 6:00 p.m. until Sunday at 8:00 p.m.
g. During the children’s March Break, provided that the Applicant can make appropriate work schedule arrangements, he shall have an extended mid-week visit from Tuesday at 6:00 p.m. until Thursday at 8:00 p.m. The Applicant shall advise the Respondent through counsel by the Monday prior to the commencement of the March Break as to whether he intends to exercise this right to an extended visit, failing which he shall be deemed to have forfeited this right.
Unless otherwise specified in paragraph 2, the exchange of the children for the purposes of implementing the Applicant’s time-sharing periods with the children shall occur at the Tim Horton’s located at the intersections of Ottawa Street and Fisher-Hallman Road, Kitchener.
The parties shall keep each other apprised in a timely manner of all significant matters relating to the children, including important matters relating to their health, welfare, education, religious instruction and extracurricular activities.
The parties shall advise each other of all important events, functions, or appointments for the children in a timely manner, and both parties shall be entitled to participate in these events, functions or appointments, subject to the recommendations of any third party professionals involved in same.
The parties shall provide each other with the names and contact information for any professionals involved with the children upon request by the other forthwith upon the professional(s) becoming involved.
The parties shall both be entitled to consult independently with and obtain information, including documentation, from all professionals or others involved with the children, including but not limited to the children’s schools, medical professionals, counsellors, or third party caregivers, without the requirement of the consent of the other party, which consent is specifically dispensed with.
In the event that any professional involved with the children requires executed consents, despite the terms of paragraph 7 herein, the parties shall execute the consents required, in a timely manner and in the format directed by the professionals, authorizing the other party to receive complete disclosure of information and documentation regarding the children.
The parties shall arrange a Settlement Conference date in this matter once the Office of the Children’s Lawyer has completed its work and has advised counsel that it is ready to proceed to a Settlement Conference.
If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by December 14, 2012. Any reply submissions shall be served and filed by December 21, 2012.
The Honourable Madam Justice D.L. Chappel
Date: November 29, 2012
[1] Divorce Act, R.S.C. 1985, c. 3 (2 nd Supp.), as amended.
[2] Gordon v. Goertz (1996), 1996 191 (SCC) , 19 R.F.L. (4 th ) 177 (S.C.C.); Young v. Young (1993), 1993 34 (SCC) , 49 R.F.L. (3d) 117 (S.C.C.).
[3] Young v. Young , Ibid, para. 18 .
[4] Gordon v. Goertz , Supra.; Young v. Young , Ibid.
[5] T. (K.A.) v. T. (J.) (1989), 1989 8818 (ON SC) , 23 R.F.L. (3d) 214 (Ont. U.F.C.); K.C.W.V. v. K.L.P. , 2010 NBCA 70 (C.A.).
[6] Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24 .