ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS – 10 - 358390
DATE: 20130426

BETWEEN:

Grace Shalma
Applicant

– and –

Victor Shalma
Respondent

Aurelio Pascuzzi, counsel for the Respondent

HEARD: March 25, 26, 27, 28 and April 2, 2013

KITELEY J.

[1] The issues in this trial focused primarily on access, child support, and spousal support.

BACKGROUND

[2] Ms. Shalma was born in Japan in 1962 and is now 51 years old. Mr. Shalma was born in Morocco in 1948 and is now 64 years old. They met in 2000 when Ms. Shalma rented an apartment in Mr. Shalma’s house with her daughter Leah who was then 2 years old. They began to live together early in 2001 at which time Ms. Shalma was approximately 40 years old and Mr. Shalma was approximately 53 years old. Eric was born November 11, 2003 and is now 9.5 years old. The parties married on April 1, 2004. Ms. Shalma was not employed. Mr. Shalma was a carpenter. He also had an ownership interest in residential properties.

[3] In December 2004, Ms. Shalma and her daughter were deported to South Korea. Mr. Shalma cared for Eric and worked full time. Mr. Shalma made efforts to have Ms. Shalma return to Toronto. In September 2006, he took Eric to Israel and arranged for Ms. Shalma and her daughter to move to Israel to care for Eric while Mr. Shalma returned to Toronto. Ms. Shalma and Leah and Eric lived in Israel until June 2008 when Ms. Shalma and Leah were able to return to Toronto. The family lived together in one of the houses Mr. Shalma owned.

[4] On June 10, 2009, Ms. Shalma took Eric from school and left the matrimonial home without notice to Mr. Shalma. She initially lived in a shelter.

[5] Mr. Shalma started proceedings in the Ontario Court of Justice because of Ms. Shalma’s disappearance with Eric. On August 17, 2009, Zuker J. made an order appointing the OCL. He also directed that Mr. Shalma would have access which consisted of the first three weekends of every month from Fridays after school to Mondays at the commencement of school with pick up and drop off at McDonald’s. On September 9, 2009, Sherr J. made an order giving Ms. Shalma temporary custody. He ordered that Mr. Shalma would have Eric on three consecutive weekends out of four from Fridays at school to Mondays at school. He permitted Mr. Shalma to take the child to synagogue. On a without prejudice basis he directed Mr. Shalma to pay child support of $462 per month commencing September 15, 2009 based on imputed income of $50,000 annually.

[6] In 2009, Mr. Shalma issued an Application for divorce. In that action, Ms. Shalma obtained an ex parte order from Goodman J. dated October 22, 2009 restraining Mr. Shalma from disposing of his interest in properties municipally known as 813, 815 and 817 Sheppard Ave. The motion was adjourned to November 5th.

[7] On November 9, 2009, Zuker J. made an order effective July 1, 2009 directing Mr. Shalma to pay spousal support of $2,000 per month and child support of $845 per month based on imputed income of $96,000.

[8] On November 19, 2009, Paisley J. continued the order restraining Mr. Shalma from transferring his interest in his three properties and on November 26, 2009, Czutrin J. continued it as well.

[9] In late 2009, Ms. Shalma began a relationship with Tom Muffoletto.

[10] In April 2010, Mr. Shalma did not return Eric to his mother’s home and then refused to do so. He said he kept him because he was trying to register him in a Jewish school and he needed to wait until the principal was available. He said that Ms. Shalma had disappeared with Eric in 2009 and he thought he could do what he wanted as well.

[11] In response, Ms. Shalma issued an Application in this court and on April 26, 2010, she obtained a restraining order as well as an order requiring Mr. Shalma to immediately return Eric to his mother with police authorized to enforce the order. Paisley J. stayed access pursuant to the order made by Sherr J. On April 29, 2010, Paisley J. made a referral to the Office of Children’s Lawyer.

[12] On April 30, 2010 Paisley J. issued a divorce judgment in the action that Mr. Shalma had commenced.

[13] On May 11, 2010, Czutrin J. made an order for “temporary temporary access “every Saturday from 9:00 a.m. to 4:00 p.m. with exchanges at the Supervised Access Centre. He also made another referral to the Office of Children’s Lawyer.

[14] The report of the OCL pursuant to the April 29, 2010 order of Paisley J. is dated September 9, 2010. Pursuant to s. 30(9) of the Children’s Law Reform Act, that report is admissible without the author being called as a witness. Ms. Shalma relies on the recommendations contained in the report while Mr. Shalma is strongly opposed to them. I do note the concluding paragraph as follows:

Eric was observed to have a strong, affectionate relationship with his mother, which in the face of intense pressure to speak and act otherwise, strongly suggests that the mother-son relationship is beneficial and intact. However, there is significant risk that the effect of continued negativity from his father could erode Eric’s confidence in and love for his mother. Given Mr. Shalma’s lack of respect for authority, he is not likely to obey a court order to refrain from his negative comments. Having Mr. Shalma’s access supervised and limited would protect Eric somewhat from his father’s adverse influence. Thus it is recommended that Mr. Shalma have reduced access time and that all access be supervised either at an access centre, a synagogue or by a supervisor approved by the court. While supervised access each week will represent a dramatic change in Eric’s life, it appears necessary to address the alienation process that has been ongoing since the separation. If Mr. Shalma wants to parent Eric for longer periods outside of supervision, he should be assessed by a registered psychologist to determine his ability to understand the effect of his words and actions on Eric as well as his ability to make the changes necessary to ensure Eric’s well-being.

[15] And the recommendations were as follows:

1. Ms. Shalma to have sole custody of Eric.
2. All of Mr. Shalma’s access to Eric to be supervised either at an access centre, a synagogue or by someone approved by the court.
3. All access exchanges to be supervised by Access for Parents and Children.
4. Eric to call his father once a week on a Wednesday after school and, if there is no visit on the weekend, also on the weekend.

[16] On January 6, 2011, Paisley J. made an order that provided that Mr. Shalma would have two hours of supervised access each week and he directed that the observation notes be provided to the court.

[17] Mr. Shalma had transferred his interest in the three properties on Sheppard Ave. to Sheppard Heights Developments Inc. On January 11, 2011, Sachs J. dismissed a motion by Sheppard Heights Developments Inc. to set aside the order of Paisley J. dated November 19, 2009 on the basis that she was not satisfied that Mr. Shalma had forfeited his interest in the properties before the making of that order.

[18] On March 3, 2011 Ms. Shalma obtained an ex parte order issuing a certificate of pending litigation against the three properties on Sheppard Ave.

[19] In July 2011, Ms. Shalma amended her Application to seek relief including claims made against Mr. Shalma’s interest in the three properties on Sheppard Ave.

[20] On October 14, 2011, Greer J. held a settlement conference and trial management conference because the trial was scheduled to begin November 28, 2011. Counsel for Sheppard Heights participated. Greer J. was told that the properties were under power of sale, that Sheppard Heights had negotiated a stand-still agreement, and that the properties would be sold. On the basis that the proceeds would be paid into court, the certificates of pending litigation were vacated. Greer J. adjourned the trial to March 26, 2012.

[21] On March 21, 2012 at a case conference that included counsel for Sheppard Heights, a written agreement was made between Ms. Shalma and Sheppard Heights and Mr. Shalma and then was incorporated into a consent order by Herman J. Pursuant to that agreement and order, Sheppard Heights paid Ms. Shalma $300,000 and she released any claims she had or may have had against Mr. Shalma for an equalization of net family property and arrears of child support and arrears of spousal support up to January 1, 2012 and the arrears as at January 1, 2012 were fixed at zero. The trial date was adjourned to October 1, 2012.

[22] In her evidence, Ms. Shalma said that of the $300,000, $200,000 was on account of her claim for an equalization of net family property and $100,000 was on account of arrears of child support and spousal support. She said that the arrears had accumulated at the rate of $2,845 per month from July 1, 2009 until January 2012 and that approximated $100,000. Mr. Shalma did not give evidence on the calculation but in his submissions, Mr. Pascuzzi pointed out that his client did not agree that a substantial portion of the payment should be attributed as an equalization payment.

[23] On July 17, 2012, Wilson J. made a consent order for unsupervised access every Saturday from 9:00 a.m. to 4:00 p.m. with exchanges at the Supervised Access Centre. The order directed both parents to refrain from making derogatory comments about the other and prohibited both parents from allowing the child to watch R-rated movies.

[24] On August 23, 2012, Czutrin J. made an order for access from Saturday August 25 at 9:00 a.m. to August 26th at 5:00 p.m. so that Mr. Shalma could take Eric to Great Wolf Lodge. Mr. Shalma said that he was unable to take advantage of that order because of transportation issues.

[25] On September 18, 2012, Greer J. adjourned the trial to March 25, 2012.

ANALYSIS

Credibility of the parties

[26] In his submissions, counsel for Mr. Shalma took the position that the evidence of Ms. Shalma was not credible or reliable on financial matters.

[27] Ms. Shalma also urged that I not accept Mr. Shalma’s evidence.

[28] I agree with Mr. Pascuzzi that when it comes to her financial situation, Ms. Shalma’s disclosure left much to be desired and her circumstances are by no means transparent. That will lead me to draw inferences as indicated below. Mr. Shalma insisted that Ms. Shalma frequently gambled. She denied it. The credit card statements which she produced indicate two transactions totaling $832 in the month of February 2013. Her own credit card statement appears to corroborate his evidence. Whether Ms. Shalma gambles has no impact on the issues with respect to Eric but may have relevance to the spousal support claim she has made.

[29] As for Mr. Shalma, it is clear that he is very angry with Ms. Shalma for depriving him of Eric and because she managed to secure $300,000 from Sheppard Heights while he received nothing. He almost lost control on Thursday March 28 and at the beginning of the morning on Tuesday April 2nd. He says he is sorry for having kept Eric in April 2010 but he accepts no responsibility for having breached a court order that required him to return Eric to his mother. I infer that he is sorry that his actions caused an interruption in his relationship with Eric and then had such a longstanding impact on access. But he shows no remorse. He blames the judge for making the original order for supervised access and the other judge for finding his income was $96,000. He blames the OCL for the recommendation of supervised access.

[30] In her evidence, Ms. Shalma said that Mr. Shalma had again tried to have her deported and in her document brief she included a letter from Canada Border Services Agency dated February 9, 2010 confirming that she had attended an interview on December 21, 2009 concerning the allegation of misrepresentation and its implications on her status in Canada and that a decision had been made that no further action would be taken at that time. That letter corroborates her evidence and demonstrates the lengths to which Mr. Shalma was prepared to go to eliminate her from Canada.

[31] Based on the foregoing, that I must be guarded about accepting his evidence on issues affecting his relationship with Eric. On the other hand, his financial disclosure is apparently comprehensive, particularly since his income consists of ODSP and CPP.

Custody and Access of Eric

[32] Mr. Shalma had made a claim for sole custody of Eric. However, at the outset of the trial, his lawyer said that custody was not in issue, that a final order giving Ms. Shalma custody was conceded, and that the real issue was unsupervised and extended access. In his evidence, Mr. Shalma was not consistent with that position but I rely on the submissions of his counsel in his opening trial statement and in his closing submissions.

[33] Ms. Shalma agrees that access need not be supervised. However, she urges that pick up and drop off continue to be at the Supervised Access Centre. Her concern is that in the past, Mr. Shalma has used access contacts as an opportunity to abuse her verbally and emotionally and the only reason that that behaviour stopped was because of supervision at the beginning and the end of each visit. She urges the continuation of the status quo until Eric is 14 years old, although she would consider access for a week in the summer.

[34] I am satisfied that the beginning and end of access need not be at the Supervised Access Centre for these reasons.

[35] First, since the September 2010 report of the OCL recommending supervised access, more than 2.5 years have elapsed. At the outset of supervised access, there were some instances where Mr. Shalma was less than co-operative and respectful of the restrictions. However, as the review of the supervisors’ notes from July, 2011 indicate, there have been no problems either during the two hour period of supervised access which continued until July 2012, or at the beginning and end of access since that time. There have been 26 visits between July 2012 and February 9, 2013 and on each occasion, Mr. Shalma was on time at the beginning and at the end of the visit, there were no issues with staff, there were no “critical incidents” and the supervisor observed affectionate behaviour between Mr. Shalma and his son.

[36] I understand Ms. Shalma’s point that there have been no problems because the beginning and end of access have been supervised. I also understand her concern based on Mr. Shalma’s historical behaviour since his bitterness toward her was apparent during his evidence, particularly when she cross-examined him. I am mindful of the observation of the OCL that Mr. Shalma demonstrated a lack of respect for authority which was demonstrated by his loss of control twice during the trial. However, I am satisfied that Mr. Shalma has been persistently respectful of the restrictions on him for almost two years from which I infer that even though he continues to be very angry with her, he has learned that he must modify his behaviour if he is to increase his access with Eric. Notwithstanding his bitterness and resentment toward Ms. Shalma, and his failure to accept responsibility for his past actions, he is highly motivated to have overnight access and I am optimistic that he will be compliant with the order I make in order to accomplish that objective.

[37] Second, Ms. Shalma lives in a condominium with controlled access and Eric is now 9.5 years old and more mature than he was in September 2010 when the OCL made the recommendation. The combination means that Mr. Shalma can drop off Eric at the front door, Eric can enter the lobby, and Ms. Shalma can greet Eric in the lobby. There will be no point when Eric is unsupervised and there will be no point of contact between Mr. Shalma and Ms. Shalma.

[38] Third, there are limitations in dealing with the Supervised Access Centre which means that access must occur on a rigid schedule when supervisors are available. In addition, the S.A.C. closes for two weeks each summer. More flexibility is required in order to provide more opportunities for Eric to see his father.

[39] Being satisfied that the beginning and the end of access need not be supervised, I turn to the details of access. As indicated above, the first order in the Ontario Court of Justice established a regime of Mr. Shalma having the first three weekends of every month and the second order directed that he would have Eric on three consecutive weekends out of four. The current order is every Saturday from 9:00 a.m. to 4:00 p.m. At trial, Mr. Pascuzzi took the position that access should be on alternate weekends from Friday from school to Sunday evening. Mr. Shalma asked for every weekend but said that alternate weekends would be ok. Mr. Shalma also said that after two months, the alternate weekends should end on Monday morning at school. Indeed, Mr. Shalma said that after two months, he wanted full custody. Since that is inconsistent with the legal submissions by his lawyer, I will not consider it.

[40] I am mindful that for two years, Mr. Shalma was the only parent in Toronto. Mr. Shalma took Eric to Israel but then resumed his role as parent in 2008 when Ms. Shalma and Eric and Leah arrived. He has a long standing relationship with his son. The supervisors’ notes of the beginning and end of access visits describe that it is a loving relationship. Ms. Shalma agreed that the relationship with his father is important to Eric. Ms. Shalma also agreed in cross-examination that overnights might start but she insisted that it would only be Saturday night because the Supervised Access Centre is not available on Friday. I am satisfied that it is in Eric’s best interests that access be increased substantially and include overnights. Eric is entitled to have extended visits with his father including over the summer.

(Decision continues exactly as in the source through paragraphs [41]–[108], including the full detailed access schedule and final orders.)

Kiteley.

Released: April 26, 2013

COURT FILE NO.: FS – 10 - 358390
DATE: 20130426

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Grace Shalma

AND

Victor Shalma

REASONS FOR JUDGMENT

Kiteley J.

Released: April 26, 2013