ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
COURT FILE NO.: F923/11
DATE: February 4, 2013
BETWEEN:
Emir Zejnic
William R. Clayton for the applicant
Applicant
- and -
Mirzeta Jaskic
Respondent
David Winninger for the respondent
HEARD: October 24, 25, 26 of 2012; November 13, 14, 27, 28, 29, 30 of 2012; and December 3, 2012
HENDERSON J.
[1] In these proceedings the parties each seek custody of their children, Alen Zejnic, born March 3, 2002, and Demir Zejnic, born January 31, 2004.
[2] The children’s applicant father seeks sole custody with specified terms of access for their mother. He also requests child support. Their respondent mother in her answer requested sole custody and, alternatively, joint custody. In argument at the end of trial, she pressed for joint custody based largely on the recommendations of the clinical investigator for the Office of the Children’s Lawyer (“the OCL”). She too seeks child support.
BACKGROUND
[3] The applicant is Muslim and, with his parents and sister, emigrated from war-torn Bosnia in 1995. They initially moved to Winnipeg, then eventually to London in about 2001. The respondent, who is also Muslim, emigrated from Bosnia in 1993 with her father, who raised her. Her father now lives in Scandinavia and she has had little or no contact with her mother since her birth.
[4] The parties met on a chat line while the applicant was living in Winnipeg and the respondent in Vancouver. The respondent moved in with the applicant and they were married June 23, 2001. But for a period of time, when they lived in the other half of a duplex, the parties lived with the applicant’s parents until they separated in July 2005.
[5] Both parties were working when Alen was born. The respondent returned to work afterward and the applicant’s mother (“the grandmother”) began babysitting while the parties worked. The respondent would work through the day and come home for supper. This pattern continued after Demir’s birth and throughout the marriage.
[6] The marriage ended in July 2005 when, according to the respondent, the applicant was drinking and threw a glass at her. The respondent moved in with a workmate for a couple of weeks, then into her own apartment. For several months after the separation, the respondent testified she continued to see the applicant when he brought the children over to visit.
[7] The parties entered a separation agreement dated March 2, 2006. Among the terms, the parties agreed to share joint custody of the children with the children residing primarily with the applicant. The respondent was to have specified access. The parties were later divorced. The divorce order was silent regarding corollary relief.
[8] There was dispute as to the frequency of the access exercised by the respondent following the separation agreement but it was agreed that from November 2010 access was exercised as agreed in the separation agreement.
[9] These proceedings were initiated by the applicant after an incident that occurred on the May 24th long weekend in 2011. The children were with the respondent in accordance with the agreement. The respondent did not return the children as scheduled because, as she testified, the children had accused their father and grandmother of physical abuse. The applicant obtained an ex parte order and the children were returned by the following Friday.
[10] Since this incident, but for two occasions which will be discussed in more detail later, access has been exercised as scheduled.
DISCUSSION
[11] The parties’ respective claims are governed by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1]. I will consider first the custody claims, followed by the child support claim.
Custody
[12] Section 16 of the Divorce Act addresses custody and subsections (1) and (8) are relevant to these proceedings:
(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
[13] The determination of the best interests of Alen and Demir require a consideration of the role of their paternal grandmother, the relationship of the parties and, finally, the evidence of the clinical investigator for the OCL.
Paternal Grandmother
[14] The paternal grandmother, Habida Zejnic, who will be referred to as “the grandmother,” testified through an interpreter. Although she knew some English, she felt that for this important task she required an interpreter.
[15] As this trial wound its tortuous way to its inevitable conclusion, it became clear that the grandmother was an integral piece of the picture. As noted in the Background, the grandmother has been responsible for the day to day care of the children from the birth of Alen. She, more than either parent, has been the children’s primary caregiver on a day to day basis. Her role is not unusual where both parents work and, indeed, both parties availed themselves of her willing service. It also made practical sense when the two families lived together.
[16] The grandparents’ continuing care giving role was ensured by paragraph 4.9 of the separation agreement as follows:
The parties agree that the children shall be left in the care of EMIR’s parents from time to time. The parties agree that EMIR’s parents are suitable third party caregivers for the children.
[17] Since 2006, the applicant has taken full advantage of his mother’s services:
a) He relies on her daycare services daily. He works as an auto body technician in St. Thomas Monday to Friday. His day starts early in the morning and he is home between 5:30 p.m. and 6:00 p.m. depending on his workload.
b) In 2010, the applicant went to Bosnia for two weeks and the children remained in the care of his parents. The respondent was told he had gone on a hunting trip and was not given the opportunity of caring for the children.
c) The grandmother testified that she walks the children to and from school. She brings them home for lunch and takes them back.
d) She helps them with their homework. In particular, she has helped Demir prepare for his spelling tests and sometimes with his math.
e) She prepares all of the children’s meals.
f) Although she denied using physical discipline on the children, she does administer discipline by denying TV and gaming privileges. She testified that the boys were generally compliant but recently have started to exhibit some defiance which she attributes to their mother’s influence.
[18] The applicant is quite accepting of his mother’s involvement. In an intact family, this may be workable but the extensive involvement of an in-law can create complications in a separated family. This is the present case, where there is bitter animosity between the respondent and the grandmother.
[19] The seeds of conflict were sown early. The respondent cited an incident when the parties were living together with the applicant’s parents in Winnipeg. The grandmother believed the respondent had a boyfriend in Vancouver. She packed the respondent’s suitcase and told her to leave. The respondent was eventually able to appease everyone that she did not have a boyfriend and she stayed.
[20] The respondent complained that throughout the marriage the applicant would side with his mother and sister. Although the grandmother testified she had a good relationship with her daughter-in-law, the respondent complained about the intrusiveness of the applicant’s mother. She pressed the applicant to get a separate house. Ironically, they just had when they separated.
[21] The relationship after separation went from bad to worse. The grandmother to this day believes the separation was caused by the respondent’s affair with a co-worker (the one she stayed with briefly after separation). The respondent vehemently denies the accusation. She testified that the co-worker had a girlfriend, the same one he has now. He holds no attraction to her. The reason she moved in with him was purely practical. She could not stay in the house and she had to have a place for a couple of weeks until her own apartment became available. It was then, as the applicant is aware, the respondent moved her furniture from the home into the apartment.
[22] The respondent, in her testimony, provided a litany of examples where the grandmother has displayed lack of respect and outright hostility:
• she has suggested the respondent is not part of the family
• she has sworn and made rude gestures to the respondent in the presence of the children
• when she is angry at the children, she says “You’re no good like your mother”
• she restricts telephone communication with the children
• she does not allow the respondent to pick up the children in her driveway, which forces the respondent to escort the children across a busy street
• she does not let the children leave except on the exact hour and, if the respondent was a few minutes late returning the children, they are kept back the same time at the next visit
[23] The grandmother denied or tried to justify all these allegations. The allegations were often met with flat denials or, when challenged by affidavits of supporting witnesses, the grandmother dismissed them saying they were lying. In fact, she “guarantees it was a lie.” As counsel for the respondent in argument observed, she never admitted to anything not in her interest. There is no doubt that neither woman has any respect for the other. I do accept the respondent’s testimony that, out of spite, the grandmother controlled the departure of the children. I also accept that the grandmother would not allow the children to be picked up in her driveway. She tried to justify this by saying the applicant was not allowed to park in the respondent’s driveway. This was groundless as the applicant never transported the children to or from the respondent’s apartment after the separation agreement was signed.
[24] There was one incident that occurred on August 16, 2011 which highlights not only the grandmother’s perceived role in relation to the children but her lack of respect for and hostility to the respondent. Significant trial time was devoted to this single incident. The evidence was highly conflicting.
[25] The parties had agreed to share the children on a week about basis during the 2011 summer vacation period. August 16th was a Tuesday and the respondent was to have had the children that week. The respondent was to have picked the children up the prior Friday but Demir declined to go. The respondent accommodated his request to stay and said she would pick him up in a couple of days. Alen went then with his mother.
[26] On August 16th, the respondent called Sally Cozens, the OCL clinical investigator, to say she would drop by to pick up Demir. Ms. Cozens called the applicant at work, who called his mother at home. The grandmother understood the respondent was only dropping by to give Demir a hug, not to take him.
[27] The respondent arrived and, coincidentally, was on the phone with Ms. Cozens about the pickup. Demir came out holding the hand of one of his older cousins. According to the respondent, Demir willingly took her hand to go, when the cousin yelled, telling Demir to run. The noise prompted the grandmother to come running out. According to her, she was yelling at the respondent “what are you doing?”
[28] The exact nature of what happened is unclear but both women agree there was a tug of war with Demir in the middle. During the struggle, the respondent was yelling into her cell phone to Ms. Cozens to help. Both women fell with the respondent on top of the grandmother. Demir bolted for the house, protected by a phalanx of his cousins and friends according to the respondent.
[29] The police eventually attended but no charges were laid. Demir did not go to his mother’s for the balance of the weekend but resumed normal access on the next scheduled visit.
[30] There is no doubt the child was traumatized by the incident. This would explain his fleeing as much as anything. The grandmother clearly perceived her role as the child’s protector and was prepared to take very aggressive measures to ensure his protection as she saw it. In this, she was wrong. She was entitled to know whether Demir was going or not. But even if the respondent had only come for a hug, it was not unreasonable for her to try to persuade Demir to come with her. After all, it was her week to have him. The cousin’s involvement was not helpful and suggests the applicant’s family has lined up arm in arm against the respondent.
[31] There is no evidence the applicant challenges his mother in her care giving role. His evidence was unbalanced in that it supported his mother’s evidence throughout. Even though he was not present on August 16th, he believes his mother and says she was right. Elsewhere, they both testified that, despite the young age of the children, they would not encourage them to go to the respondent’s if they did not want to.
[32] Aside from any other reason, it is not unreasonable to expect the applicant to support his mother. If he wishes to continue living the subsidized lifestyle offered by his parents, he would have to be compliant.
[33] Therefore, it is apparent that the grandmother has played a dominant role in the lives of the children. This is partially as a result of circumstance and partially as a result of the applicant’s lack of desire or ability to moderate her role.
(continued exactly as in the source…)
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Released: February 4, 2013
COURT FILE NO.: F923/11
DATE: February 4, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Emir Zejnic
Applicant
- and -
Mirzeta Jaskic
Respondent
REASONS FOR JUDGMENT
HENDERSON J.
Released: February 4, 2013