ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-2265
DATE: 20131029
BETWEEN:
SEYED ADNAN TALAGHANI
Applicant
– and –
TAHANI SOBOH
Respondent
Michael Wonham, for the Applicant
Odette Rwigamba, for the Respondent
HEARD: October 23, 2013
decision ON A MOTION
lalibertÉ J.
[1] Hawra Adnan Talaghani was born on December 17, 2010. She is the sole child of the Applicant (father), Seyed Adnan Talaghani and the Respondent (mother), Tahani Soboh. These individuals were married in Jordan on April 23, 2009. Being sponsored by the Applicant for immigration purposes, the Respondent moved to Canada on March 25, 2010.
[2] The parties have separated twice since Hawra’s birth. The first separation was for a short period of time soon after the child’s birth. They resumed cohabitation and subsequently lived separate and apart since May 23, 2012. There certainly appears to be permanency to this breakdown.
[3] While it is difficult, if not impossible, for the Court to make findings of facts based on the contradictory affidavit evidence relied upon by the parties in this motion, at a minimum, it is possible to conclude that the parental arrangements have been as follows since the May 23, 2013 separation:
• The child has been under the primary care and de facto custody of the Respondent (mother).
• While there have been interruptions resulting from the mother’s unilateral withholding of the child, for the most part, the child has add access to her father on Fridays, Saturdays and Sundays from noon to 6:00 p.m.
[4] Thus far, Hawra has been subjected to investigations by the police and the Children’s Aid Society of Ottawa (CAS). There is very little information before the Court concerning these investigations.
[5] The reality is that both parties paint a very different, and for the most part, irreconcilable picture of Hawra’s young life. Unfortunately, neither version can be seen as being good for any child. The evidence suggests that Hawra has already been harmed by all of this. In her letter dated November 22, 2012, CAS worker Gifty Arkorful states:
The concerns regarding emotional harm to Hawra were verified. During my involvement with you and Ms. Soboh, it was apparent that the relationship between you and Ms. Soboh is acrimonious and this is compounded by the current custody and access arrangement.
[6] The parties’ respective versions or facts can be summarized as follows:
Father’s version
• During cohabitation, the child was being cared for by him, the mother and the paternal grandfather; he was always involved in the child’s life;
• The mother did not pay much attention to the child; she was not taking proper care of her; she would often leave her alone in her bed; did not show any responsibility towards the child,
• Mother took money from child’s account and is not concerned with child’s best interests;
• Mother refuses to cooperate; she does not follow agreements; she always changes her mind;
• Mother thinks of herself and not the child;
• Mother is using the issue of overnight access as a tool to obtain financial concessions;
• Mother is actively alienating child from father by:
(i) preventing acces;
(ii) making false allegations that he was violent with mother in front of child;
(iii) making false allegations that child was sexually abused by the paternal grandfather during access.
• Mother is deliberately creating conflict and breakdown of communication to get sole custody.
Mother’s version
• During cohabitation, the father was rarely involved with child; he was rarely home; he would barely spend any time with child;
• She has always been the primary caregiver for the child; she was solely responsible for care, education and medical care; she has always made all of the decisions relating to child;
• She has been physically abused by both the father and the paternal grandfather; she was punched, kicked and beaten to the ground; she was injured; she was struck to the face, head and shoulder;
• She has been emotionally abused by being yelled at, being controlled and punished;
• The child has witnessed this physical and emotional abuse;
• The child has uttered words and behaved in ways that are suggestive of having been sexually abused by the paternal grandfather; this includes the following:
(i) complaints of pain in genital area and stating it was caused by grandfather;
(ii) use of “sexual words in Arabic”;
(iii) inserting small toys in her private parts and stating that “grandfather did it and it hurt”;
The Court notes that these allegations of sexual abuse were investigated by the police and the CAS; no charges were laid; the allegations were found not to be confirmed.
• The parties cannot talk to each other; they cannot agree on simple basic issues such as toilet training and naps.
[7] It is in this maze of uncertainty that the Court is being asked to determine which temporary parental arrangement would be in this young child’s best interests. The Respondent (mother) is also seeking an order under s. 89 and s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. for a request to the Ontario Children’s Lawyer.
Relevant considerations
[8] The Court’s response to this motion must lie in what is seen as being in Hawra’s best interests at this moment in time based on the evidence available. As is most often the case in interim parenting motions, the Court is provided with limited, contradictory and untested information upon which to base such an important decision. The reality is that the Court is unable to make findings of facts with respect to the serious allegations raised in this motion by both parties. The Court must therefore proceed with caution.
[9] In assessing this young child’s best interests, primacy was given by the Court to the following statutory and jurisprudential considerations:
• The child’s need for stability;
• The ability and willingness of each parent to provide for child’s needs;
• The need to protect child from the possibility of abuse;
• The salutary objective of ensuring maximum contacts with each parent;
• The importance of minimizing the prospects of conflict between the parents as a source of harm for the child;
• Violence and abuse and their relevancy to one’s ability to act as a parent;
• A parent cannot be the instigator of high conflict and then argue in favour of sole custody based on conflict;
• The test for joint custody is whether a reasonable measure of communication and cooperation is in place and is achievable in the future;
• The status quo will generally be maintained on an interim custody motion in the absence of compelling reasons which impact on the child’s best interests; the golden rule which governs motions for interim custody is that stability is a primary need for a child caught in the middle of a matrimonial dispute and de facto custody should not be disturbed unless there are compelling reasons which go to the child’s best interests; it is said that all other considerations hang on this consideration;
• Deliberate interference with the access right of a child to a parent is seen as conduct going to the ability to act as a parent; conduct which leads to parental alienation is a significant matter with severe consequences for the parent guilty of such conduct.
How do these considerations apply to the circumstances in this case?
[10] In an ideal world, this child’s best interests rest in a joint custody arrangement with maximum contacts with both her parents who would cooperate and communicate on questions relating to their child. Unfortunately, on balance, this is not the reality in which this child is being brought up. Depending on whose version one looks at, this young child has either witnessed her mother being physically abused or has herself been subjected to sexual abuse or all of these allegations are untrue and the child has been subjected to a systematic campaign of parental alienation at the hands of her mother. Either way, Hawra is being victimized and harmed.
[11] Having considered all of the circumstances and the relevant considerations, the Court is of the view that Hawra’s best interests is found in the following temporary order which incorporates most of the terms agreed upon by the parties in the Minutes of Settlement signed and dated October 23, 2013:
Temporary Order
The Respondent (mother) shall have temporary custody of the child Hawra Adnan Talaghani, born December 17, 2010;
The Respondent (father) shall have the following access to the said child:
• Friday from 12:00 p.m. to 6:00 p.m.;
• From Saturday 6:00 p.m. to Sunday 6:00 p.m.;
• Such other reasonable access as may be agreed upon by the parties by email;
• The exchange of the child shall occur at one designated place agreed upon by the parties;
• At no time shall the child be left alone with her paternal grandfather, Hussein Talaghani.
Each party is to ensure that he/she is the person providing care to Hawra during his/her access time with the child. If the party having care of the child is unable to care for the child, he/she will contact the other parent to offer her/him the right of first refusal, if the other parent is unavailable as well to care for the child, the parent having care of the child shall seek care for Hawra.
The parties will ensure that Hawra continues to attend the daycare.
Both parties will ensure that Hawra has a self contained bedroom. The Applicant shall provide proof to the Respondent, prior to the child having overnight access with the Applicant, and the Respondent shall provide proof 14 days thereafter. Parties will ensure that Hawra is not to share her bedroom with other family members.
Neither party is to remove the child from the Ottawa/Hull region without a court order or the written consent of the other party.
The Applicant shall pay child support to the Respondent in the amount of $180 per month commencing October 1, 2013 and on every 1st day of each month thereafter. This is based on a declared income of $22,000 per year;
The Applicant shall provide a current financial statement, his 2012 Notice of Assessment and reassessment if any, and three of his most recent stubs on or before January 5, 2014.
The Applicant shall notify the Respondent within 30 days of accepting an employment contract from any employer other than his current employer, so that child support can be adjusted;
The police, having jurisdiction, shall assist the parties with enforcement of this order;
The parties shall communicate by email, except in case of an emergency, and will keep their communication to issues related to Hawra. Both parties will be civil in all communications.
The final decision relating to the health, education, dental care, and daycare services of Hawra rests with the Respondent. However, she is directed to ask for and consider the Applicant’s input before arriving at a decision;
The Respondent shall provide the Applicant with all relevant information relating to the child’s health, education and welfare.
[12] The Court is making an order under s. 89 and s. 112 of the Courts of Justice Act for the involvement of the Children’s Lawyer as it is felt that this would be of assistance in ultimately deciding the issue of custody and access.
[13] The parties are invited to resolve the issue of costs between themselves. If unable to do so, written submissions should be provided to the Court on or before November 22, 2013.
Mr. Justice Ronald Laliberté
Released: October 29, 2013
COURT FILE NO.: FC-12-2265
DATE: 20131029
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEYED ADNAN TALAGHANI
Applicant
– and –
TAHANI SOBOH
Respondent
DECISION ON A MOTION
Laliberté J.
Released: October 29, 2013