COURT FILE NO.: FS-12-00074758-00
DATE: 2013-10-07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rawan Jaber v. Haytham Elrayyes
BEFORE: Barnes, J
COUNSEL: Sukhwinder Samra, for the Applicant
Jessie Chui, for the Respondent
HEARD: June 11, 2013
E N D O R S E M E N T
[1] The primary issues in this motion are custody and access. The Applicant (mother) and the Respondent (father) were married on or about June 1, 2007, in Mississauga, Ontario.
[2] The mother and the father were separated either on December 14, 2011, (the father’s version) or on November 1, 2011, (the mother’s version).
[3] The parties have one child, Omar Elrayyes, born January 27, 2010.
[4] Omar was three years old at the time of this motion. Omar has always resided with his mother since birth.
[5] The mother seeks an order for sole custody of Omar. The father seeks an order for joint custody.
[6] Upon reading the affidavits and all other material filed and after considering the submissions of counsel this Court makes the following INTERIM ORDERS:
(a) The parties are awarded joint custody of the child, Omar;
(b) Omar’s primary residence shall be with his mother;
(c) The father shall have primary responsibility for making decisions on educational issues;
(d) The mother shall have primary responsibility for making other decisions affecting Omar;
(e) The father shall have access to Omar on alternative weekends from 6:00 p.m. on Friday, to 6:00 p.m. on Sunday; and on every Wednesday from 4:30 p.m. to 7:30 p.m.;
(f) No party shall take any steps, within their sphere of parental decision making or otherwise, to frustrate the intent of this Court that the primary residence of Omar remain with the mother or that the father have primary responsibility for educational decisions;
(g) The Office of the Children’s Lawyer shall consider examining the issues of custody and access and make recommendations as to whether a different custody and access arrangements would be more appropriate; and
(h) The parties shall keep each other abreast and exchange medical, educational and other information regarding Omar.
These are my brief reasons:
[7] The primary consideration for this Court are the best interests of the child, Omar. See s. 24 of the Children’s Law Reform Act.
[8] A review of the affidavits filed leads the court to conclude that, despite assertions to the contrary by the father, the parties cannot agree on anything with respect to the child Omar, however, with the assistance of the father’s sister, Ms. Leena Elrayyes, the parties have been able to agree to and implement an access schedule for the father.
[9] Examples of the in ability to make joint decisions, with respect to Omar, include an inability to agree on how to mark his first birthday; in ability to agree on how to facilitate medical and dental appointments; an in ability to communicate with each other on issues relating to Omar; in ability to agree on the exchange of basic health documentation such as copies of Omar’s health card.
[10] The mother has made allegations of abuse supported by affidavits of her family members. The father has also filed affidavits refuting such allegations. The parties have provided conflicting affidavits touching on such issues as the date of separation; circumstances surrounding the separation; circumstances giving rise to and the reasons why the father left the matrimonial home.
[11] The mother asserts that the father’s departure was voluntary; the father asserts that he was forced out by the mother’s family. Given the conflicting nature of the affidavits, the fact the affidavits are provided by family members, all with a potential to be biased, this motions Court is unable to make any finding on the issues of abuse, circumstances surrounding separation and reasons for the father leaving the home.
[12] The following is clear:
(a) The mother has been the primary care giver of Omar since his birth; and
(b) Despite direct and indirect assertions by the parties to the contrary, both mother and father have been good parents to Omar.
[13] On balance, there is no credible basis to conclude that Omar’s best interests is not served by continuing to reside with his mother.
[14] The mother has had the unflinching support of her father, sisters and her mother (prior to her mother’s death) in caring for Omar.
[15] Despite assertions by the mother that the father was inattentive to Omar, during the marriage, the father has accepted the mother’s offer to be part of Omar’s life. This has been facilitated through a child access arrangement. The father has had the full support of his mother and sister in this process.
[16] The father’s sister was instrumental in making this possible and there is no basis, at this time, to conclude that the father has not lived up to his responsibilities. This Court concludes that it is in the best interest of Omar to have both parents fully involved in his life. Unfortunately the inability of both parents to make joint decisions on matters relating to Omar remains a stumbling block. Such a circumstance would ordinarily preclude a joint custody arrangement; however, in this case the extended family members on both sides have played and continue to play a significant role in raising Omar and facilitating communication between the parties on Omar.
[17] These extended family members have also made the current access arrangements workable. This is certainly in Omar’s best interest as it enables him to have both loving parents in his life.
[18] The joint custody Order, with primary residence remaining with the mother and an order in accordance with the current access arrangements maintains a status quo, in part, which is in Omar’s best interests.
[19] However, given the important role the father plays in Omar’s life, the fact that he filed a detailed parenting plan and the undeniable fact the parties, at this time, cannot agree on any child care decisions, this Court has carved out primary responsibility for education for the father solely, the mother shall make all other decisions.
[20] The father shall amend his educational plan to account for the fact that Omar shall maintain his primary residence with his mother.
[21] The inability of the parents to make joint parenting decisions should not deprive Omar of the benefit of the input of both parents in decisions affecting his life. Since the parents cannot agree, responsibility for decisions making is carved off as I have described. See Daniel-DeFreitus v. Francis, [2012] O.J. No. 362.
[22] This Court further Orders that the Office of the Children’s Lawyer consider assessing the custody and access issues affecting Omar with the view to making further recommendations to the parties and the Court.
[23] Both parties were somewhat successful on this motion and there shall be no order as to costs.
Barnes, J
DATE: October 7, 2013
COURT FILE NO.: FS-12-00074758-00
DATE: 2013-10-07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rawan Jaber v. Haytham Elrayyes
BEFORE: Barnes, J
COUNSEL: Sukhwinder Samra, for the Applicant
Jessie Chui, for the Respondent
ENDORSEMENT
Barnes, J
DATE: October 7, 2013