ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-09-16123
Date: 20120206

B E T W E E N:

Maxwell Elkaim

Applicant/Respondent in the motion

• and -

Olga Markina

A. Abramian and B. Tseitlin, counsel for the Applicant in the motion

Respondent/Applicant in the motion

Heard: January 31, 2012

Kiteley J.

ORDER

[1] On January 31, 2012 I heard a motion brought by the mother in which she sought to reinstate the status quo relating to Rachel’s living arrangements. The father left the courtroom before the matter was finished. I did not make a decision on that date. The reasons that follow explain the orders I make as follows:

(a) The order made October 1, 2010 providing for joint custody is varied to provide that the mother has interim sole custody of Rachel born November 24, 1998;

(b) The order made October 1, 2010 as to the residential schedule is not varied at this time;

(c) The father shall reinstate the residential schedule forthwith, namely that Rachel’s next weekend with her mother shall begin on Friday February 10 th , 2012;

(d) The father shall ensure that Rachel goes to her mother’s home and remains there in accordance with the residential schedule described in paragraph 2(a),(b) and(c) below;

(e) On an urgent and expedited basis, I refer the case to the Office of Children’s Lawyer and ask that the OCL re-open the file and investigate and make a recommendation to the court;

(f) If intake forms are required, the mother shall complete the intake form for herself and complete the intake form for the information required of the father;

(g) Counsel for the mother shall immediately deliver to the attention of Lucy McSweeney, the Children’s Lawyer, a copy of my reasons for decision dated August 18, 2011 and a copy of these reasons for decision and the order of referral, and a copy of the notice of motion returnable January 31 st and the affidavit of the mother sworn January 24 th ;

(h) This motion (including costs) is adjourned to February 16, 2012 at 10:00 a.m. before me at which time the Office of Children’s Lawyer should advise what resources will be made available to this family;

(i) Neither the father nor the mother will bring Rachel to court on February 16, 2012;

(j) Court staff shall forthwith send a copy of this order to the father at his email if an address is available, and at 137 Steeles Avenue East, Toronto, Ontario M2M 3Y5 by ordinary mail and by courier and shall provide written confirmation of same for the court file.

REASONS FOR DECISION

[2] On October 1, 2010, following the involvement of the OCL, the parties reached an agreement as to the parenting arrangements for Rachel. In paragraph 2.1, they agreed to joint custody, subject to paragraph 2.8. In paragraph 2.8, they agreed that if important decisions had to be made about Rachel (examples of which were listed), that the parents would discuss the issue and attempt to agree but failing agreement, the mother would make the decision. In paragraph 2.2, they agreed to the following residential schedule:

(a) Mondays and Tuesdays with mother;

(b) Wednesdays and Thursdays with the father;

(c) Alternating weekends with each party.

[3] In his October 1, 2010 endorsement Justice Grace made an “order to go in accordance with” those paragraphs of the minutes of settlement. Accordingly there is an agreement that has been incorporated into a court order. The signed and entered order is not in the file but a formal order is not essential.

[4] The arrangements described in the agreement and order occurred until August 2011 when conflict led to a motion by the mother for an order to reinstate the status quo. In reasons for decision dated August 18 th , 2011 I outlined the events that had occurred to that point and made an order re-instating the status quo. Since the father indicated an intention to bring a motion to vary the status quo, I directed him to respond by September 9 th to the several affidavits that had been filed by the mother.

[5] The affidavit of the mother dated January 24, 2012 indicates the following: the status quo was reinstated; the father did not respond to the affidavits by September 9 th ; the OCL accepted the referral; a case conference was arranged before me on December 7 th , 2011; the relationship between Rachel and her mother resumed to being stable and affectionate; the father indicated that he would not bring a motion to vary the order; because he was not going to bring his motion and because the status quo was stable, the OCL did not pursue the matter and the case conference was cancelled.

[6] Rachel and her mother went south for a week returning on or about December 25 th and the residential schedule resumed on their return.

[7] On Saturday January 7 th , 2012, the father came to the home of the mother to talk about Rachel’s report card, clothing and excessive time on the phone. I will not repeat the description given by the mother except to say that it did not go well.

[8] On Tuesday January 10 th , Rachel called her mother and asked her to pick her up from school early because she was not feeling well. Later on in the evening, when mother asked Rachel how she was feeling she said she had not been feeling well for a little while and when the mother suggested that they go to the doctors, Rachael all of a sudden replied “I have a bitch for a mother”.

[9] Wednesday January 11 and Thursday January 12 were Rachel’s usual nights with her father and the weekend of Friday January 13 to Monday January 16 was also her weekend with her father.

[10] On Sunday January 15, 2012, Rachel telephoned and, to quote from paragraph 53 of the mother’s affidavit sworn January 24 th , Rachel said: “I’m living with my dad now. Fk you, fk the judge, f**k the police” and hung up”. The mother immediately telephoned the father who said that Rachel wanted to live with him, that she’s 13 years old, that she’s an adult and can make her own decisions and he hung up the telephone.

[11] The mother immediately brought this motion for an order to re-instate the residential arrangement described in paragraph 2 above; for an order that the police assist in the enforcement of the order, an order permitting the mother to enrol Rachel in counselling with Dr. Yvonne Parnell; an order mandating the father to participate in counselling sessions with Dr. Yvonne Parnell as Dr. Parnell directs. In the affidavit in support of the motion she described the events that had occurred since August 18 th . She indicated that while she was seeking to reinstate the residential arrangement, she would be bringing an application seeking sole custody and primary residence.

[12] The father brought Rachel with him. At my request, she left the courtroom before I heard from counsel for the mother and the father. Her body language indicated that she was very annoyed by my request that she leave the courtroom.

[13] Since he had not filed an affidavit in response to the motion, I directed that the father give evidence. He insisted that Rachel had written out several pages of her own views which he wanted to read to me. I declined to permit him to do so. His position is that Rachel does not want to see her mother and he can’t force her to do so.

[14] In cross-examination, counsel suggested that the father had left at least one inappropriate voice mail message for the mother. He denied that. Counsel played a message recorded on the mother’s cell phone and a transcript was then prepared. The following is the text of the message left on January 26, 2012 at 5:01 p.m:

Olga Markin, the wonderful human being, did you ever stop and think what you are doing to your daughter? You figure she doesn’t wanna live with you for a reason? I guess not, eh? It’s all about Olga Markin, not about Rachel Elkaim, is it? Hmm, that’s too bad, isn’t it? So cut off over there. Yeah I was just talking you about Rachel here. She doesn’t wanna go with you. Ok she’s stressed out and I don’t know the reason (?) are but that’s just the way it is. Anyways I’m sure you don’t care about Rachel too much you care about yourself. Whatever. Goodbye.

[15] In his evidence he insisted that he did not know until Friday January 27 th that this motion had been launched. Since his message was left on the prior evening, I infer that he did know at the time he left the message.

[16] Before taking the lunch recess, I asked Rachel to come back into the courtroom. I asked her to have a visit with her mother during the recess. She said she did not want to talk to her. I said I was asking her to visit which meant she did not have to talk but should listen. She did not agree that she would but she followed my direction that she leave the courtroom with her mother. I directed the father to stay away from Rachel and her mother during their visit.

[17] After the lunch recess I asked Rachel and her mother what had happened. Rachel said she had sat and listened for a few minutes and then left. Her mother said that she had talked about her and Rachel while Rachel texted and then Rachel left. I asked Rachel to leave the courtroom and she did. Once again, her body language indicated her annoyance.

[18] I then heard submissions from Ms. Abramian during which Mr. Elkaim interrupted her repeatedly and said she was telling lies. He was generally belligerent and rude to Ms. Abramian as he had been when speaking of Ms. Markina. At approximately 2:30, while Ms. Abramian was making her submissions, he walked out of the courtroom. I continued to hear submissions from Ms. Abramian as to the order she sought during which Ms. Abramian also said that during their few minutes together at the lunch recess, Rachel and her mother had been sitting in a consulting room and she left when her father appeared at the door to the consulting room. In other words he had ignored my direction that he was to stay away from them during the visit.

[19] The current circumstances are alarming. In addition to the concerns raised in paragraphs 11 to 17 of my earlier reasons for decision, the following concerns have arisen. Mother has provided Rachel’s school attendance record since she has been with her dad and she is persistently late and had been absent once. The father’s belligerence towards the mother is palpable suggesting that he is likely influencing Rachel with his perspective on her mother. Given the evidence in the affidavit of the mother as to what had transpired between September when the status quo was re-instated and January 15 th , there is no reason for the change in Rachel’s view about her mother. During the brief periods that Rachel was in the courtroom, she looked to her father before saying anything. Her body language and his response indicated that she looks to him for his approval that she could resist authority. The message that father is giving is that Rachel can do what she wants to do. Rachel is perilously close to being out of control. Although Rachel was not in the courtroom when her father walked out, the message that he gave to her by leaving before the hearing had finished was that he too can do what he wants to do.

[20] Counsel for the mother has asked that I make an order re-instating the residential arrangement and that the police be directed to assist in the enforcement of the order including locate, apprehend and deliver Rachel to her mother. She also asked that I direct the father to ensure that Rachel attends with Dr. Parnell for counselling. Before the lunch recess, I asked father if he would comply with an order that Rachel attend counselling. He agreed that she needed to see a counsellor for what he described as anger issues but he did not agree to initiate or resume counselling.

[21] This situation cries out for supervision by the court. The Office of Children’s Lawyer was originally involved in 2010 and it appears that Andrea Smart contributed to the agreement and court order made on October 1, 2010. Following my request in August, 2011, the OCL agreed to re-open its file and was prepared to proceed until it appeared that the situation had stabilized as indicated in paragraph 5 above. The OCL is in a position to investigate and make a recommendation to the court. I strongly recommend to the OCL that they accept this referral on an urgent and expedited basis.

[22] According to the OCL procedures, both parents must complete an intake form. That may not be necessary since the OCL recently had agreed to re-open its file. I expect that Mr. Elkaim will complete the form. However, I am also directing Ms. Markina to complete the form on his behalf providing the contact information that OCL requires. If Mr. Elkaim does not provide the form in the time required by the OCL, it is in the best interests of Rachel that the OCL proceed on the basis of information provided by Ms. Markina.

[23] While waiting for the OCL to decide whether to re-open its file and if so, to provide resources to the family, I am compelled to take steps designed to protect Rachel. In his behaviour in the courtroom, the father demonstrated that he has no understanding of Rachel’s needs; that he fails to respond to a very basic need such as being at school on time; that he has no ability to manage Rachel’s behaviour in her best interests and that he is in fact provoking and supporting her defiance; that he has no respect for the court or for the legal process in which the parties are involved. He has proved that he is not capable of making sound decisions. The father has demonstrated that he lacks the ability to be a joint custodial parent.

[24] I note that mother indicated in her affidavit an intention to bring an application to seeking sole custody. Under the parens patriae jurisdiction of the Superior Court, I conclude that it is in Rachel’s best interests that mother now be given the rights of sole custodial parent on an interim basis so that she can take steps to protect Rachel and so that she does not have to attempt to negotiate with the father who has clearly demonstrated his inability to share parenting decisions with the mother whom he despises. Interim sole custody will give the mother the authority to make decisions as to counselling for Rachel.

[25] For the time being, the residential schedule will remain unchanged. However, when the mother’s application to continue interim sole custody is heard, the issue of primary residence will also be considered.

[26] As indicated above, Ms. Abramian asked that I make an order directing the police authorities to enforce my order. I am optimistic that that will not be necessary at this stage.

KITELEY J.

Released: February , 2012

COURT FILE NO.: FS-09-16123
DATE: 20120206

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Maxwell Elkaim Applicant/Respondent in the motion - and – Olga Markina Respondent/Applicant in the motion REASONS FOR JUDGMENT KITELEY J.

Released: February , 2012