ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0020-00
DATE: November 8, 2013
B E T W E E N:
Abdelhamid Tayebi
Tracey J. Nieckarz, for the Applicant
Applicant
- and -
Salima Oukachbi
John G. Illingworth, for the Respondent
Respondent
HEARD: October 11, 2013
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Temporary Custody
Introduction
[1] Dr. Tayebi and Dr. Oukachbi began their married life in Algeria, where they grew up. It is doubtful that they were ever happy in their marriage. They immigrated to Canada some years ago and both are now Canadian citizens. Their children, Aniss Tayebi, born May 19, 2003 (10) and Sara-Lynn Tayebi, born October 25, 2006 (7) were both born in Thunder Bay. The parents are intelligent, well-educated people; the father is a professor, the mother a physician. Unfortunately, intelligence and good judgment do not always go hand in hand in family matters.
[2] The bitterness of the parents’ relationship permeates the custody litigation, each parent refusing to physically separate by leaving the home. The father says that separation occurred in June, 2012; the mother says it occurred in September, 2011. Whatever the case, the tensions in the home are intolerable. The court must determine temporary custodial arrangements for the children. The matter cannot be delayed. The serious conflicts between the parents precludes leaving interim custody open to await involvement of the Office of the Children’s Lawyer. I am mindful that an interim custody order may well influence the outcome at trial. However, each party insists that he or she cannot cooperate with the other over custody. The mother specifically asks that the court not order joint custody or a regime of parallel parenting. The father states that while he had hoped joint parenting would be an option, the hostilities between the parents make this impossible.
[3] When this matter first came before the court on September 5, 2013, the mother had not served her responding affidavits and sought an adjournment. An interim order was granted as a term of adjournment, giving the father responsibility for care of the children for the first half of the week, and the mother for the second half, pending argument of the motion. The order also required each parent to treat each other civilly. The mother has complained that this five-week arrangement has been “hell” for the children because their father does not know how to care for them. The atmosphere in the home remains hostile and combative.
[4] Each parent seeks sole custody of the children, together with an order for exclusive possession of the home, child support, and other relief. The parties have filed voluminous affidavits.
[5] Each parent argued vigorously that he or she was the primary care-giver for the children. The mother also argued that the father has been abusive toward herself, and on one occasion, toward Aniss, such that his ability to care for the children is in question. The father denies these allegations. He alleges that the mother is campaigning to destroy his relationship with the children. The court is placed in the invidious position of trying to weigh credibility of the parents based on conflicting affidavit material.
[6] I recognize the urgency of this matter to the parties and the children and regret that the delivery of these reasons has been delayed because of other court obligations.
The Law
[7] The test to be applied in deciding any order for custody, whether temporary or final, is the best interests of the children. Subsection 16 (8) of the Divorce Act, R.S.C. 1985, c. 3 adds that the best interests of the children are to be determined “by reference to the condition, means, needs and other circumstances of the child.”
[8] Two other subsections of section 16 are relevant to this case. Subsection 16 (9) provides:
In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
[9] Subsection 16 (10) states:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[10] Each parent argued that he or she is the primary caregiver for the children and is entitled to have interim custody of the children based on the status quo. The importance of maintaining the status quo in deciding interim custody is highlighted in Kimpton v. Kimpton, 2002 2793 (ONSC) at para. 1. Mr. Justice Wright observed:
There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendent lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof…. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.
[11] The mother argued strenuously that the father has been abusive towards herself and Aniss and is therefore disqualified from being the custodial parent. A useful discussion about domestic violence is found in L. (N.D.) v. L. (M.S.) 2010 NSSC 68. At para. 34, Madam Justice MacDonald describes the range of conflict that may occur in a home and its legal implications for custody:
In order to understand whether domestic violence exists within a family it’s [sic] definition and effect must be stated clearly and comprehensively. Unfortunately the words “domestic violence” do and have defined a number of behaviours including isolated or rare incidents in a relationship – a push, a shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” towards others may be quite different from those designed for persons who resort to abuse as a mechanism of coercive control.
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.
[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour. That is what has occurred here. The parents were ill-matched from the start and the history of their marriage is one of confrontation. The final chapter in the conflict will be written over who gets the children.
Status Quo
[14] As I have noted, each parent has argued strenuously that he or she is the primary caregiver for the children and therefore he or she should have interim custody of the children based on the status quo. The father adds that since separation in June, 2012, the mother has attempted to alienate the children from him and has attempted to create a new status quo.
[15] I have concluded that, over the course of their young lives, the children have been cared for by both parents such that neither one has been the primary caregiver. I am drawn to this conclusion by the evidence of third parties who have been in a position to observe the parties as well as by the evidence of the parties themselves.
[16] Not all of the affidavits filed by third parties are helpful. Elizabeth Maxwell, a friend of the mother, described seeing the mother perform housekeeping chores and cooking when she visited at the family home, but it appears that her contact was primarily with the mother, often outside the home in the absence of the children. Thus, her opportunity to observe the parent-child interaction was limited. Likewise, the affidavit of a nurse practitioner, Donald Hutchinson, is not particularly probative. He has known the mother through work for approximately three years but his contact is largely work-based. Much of his affidavit consists of hearsay evidence from the mother. These affiants reflect that the mother expresses commitment to the children and that they are important to her.
[17] More helpful are the affidavits of the parents of the children’s friends. These individuals have had a better and more consistent opportunity to observe parent-child interaction, often over a period of years. For example, Celine Fisk described meeting the mother at the children’s school, gymnastics lessons and at sleep-overs to which her son was invited. She describes the mother as a devoted parent and observed the children to be “happy, confident, relaxed and attentive” in their mother’s care.
[18] A statement of the children’s babysitter between 2004 – 2010 confirms that the father would drop off the children in the morning and pick them up in the afternoon. She noted that the father would take Aniss to his soccer practices after picking up Sara. She described the children as always being happy around him, and the father as caring and loving. She also commented on the mother being busy with her studies which sometimes took her out of town for extended periods.
[19] A statement from Aniss’ hockey coach confirmed that the father was in attendance at Aniss’ games, practices, and functions during the 2010-2011 season, often with Sara in tow. It would have been preferable that these statements had been sworn, rather than appended as exhibits to the father’s affidavit. Nevertheless, the mother concedes that the father takes Aniss to hockey practice.
[20] Alaine Auger described her two year acquaintance with the father. The families and their children met as a result of the older boys playing on the same hockey team. The children’s relationship continued through play dates and hockey social functions. She also reported seeing the mother at a hockey tournament out of town. Ms. Auger described the father as a “caring and devoted parent” who encourages and motivates other children as well as his own.
[21] Mr. Figliomeni has known the father for at least ten years. He meets him at dance classes and soccer where Aniss and Sara participate in the same events as Mr. Figliomeni’s children. He describes the father as looking out for his two children and encouraging them.
[22] Sheila Wilhelm is the director of the daycare centre the children attended between September, 2005 (Aniss) and September, 2012. She described the father as being the primary drop-off and pick-up parent who attended family functions at the centre such as family picnics and Christmas parties. She indicated that the children arrived at the daycare clean, neat and well-fed. She observed that the children were very attached to their father, who was loving, caring and involved. The children were happy to see him at pick-up times. He also picked the children up if they were sick.
[23] Cindy Spackman’s son, Robin, is a close friend of Aniss. She has known the family since December, 2008. The boys attend the same school and have participated in swimming, skiing, movies, summer camps, play dates and occasional sleep-overs, with Sara accompanying Aniss at times. She described the father as “quite often” being the parent who “independently supervised the children.” She described him as a “sober, reliable, loving and devoted parent who has given his time to ensure that his children have had the opportunity to enjoy numerous activities with their friends.”
[24] Lisa Wabange is the mother of two children who are friends with Aniss and Sara. All four children attend the same school, daycare, and extra-curricular events. She has known the family since 2006. Ms. Wabange describes celebrating birthdays, attending countless soccer games and practices, skating parties and Christmas parties together. She stated that until September, 2012, the father did most of the pick-ups and drop-offs at the daycare centre but that the mother has done most pick-ups and drop-offs since that time. She also noted that the father was often the only parent to attend school functions, parties, practices and games with the children. She described him as loving and attentive to the children, bringing water and snacks to the soccer field. She observed that the children were happy in his care.
[25] The children’s music teacher described both parents dropping the children off for music lessons although she felt the mother was more interested in the children’s musical education. She described the children as having a “strong and loving relationship” with their mother. The father’s colleague, Professor Uddin, who was present at times between February, 2011 and June, 2013, contradicted the music teacher’s evidence that the father did not remain during lessons, as the mother did. Professor Uddin also described the father attending piano recitals for the children.
[26] The family doctor confirmed that the father attended appointments for the children, and was involved in their care as infants and toddlers. He also knew the family socially and observed the father in the community with the children, actively parenting. He indicated that he was an “excellent father,” and “very caring and emotionally invested in his children.”
[27] The parents disagree on their roles raising the children. The father states that he has provided all aspects of the children’s care since their births,
…including bathing, feeding and clothing them, arranging haircuts, arranging medical appointments and scheduling and attending all extra-curricular activities, volunteering at school events and meeting their educational needs. I also got the children ready for school and daycare, made their lunches, dropped the children off and picked them up.
[28] He adds that prior to separation, the mother would not generally participate in evening routines, meal preparation, house cleaning, or extra-curricular activities. The parties’ accounts of who gets the children up and off to school conflict.
[29] The mother states that she fulfilled the role of the traditional Algerian woman in the home, in that she kept house, cared for the children and cooked for the family and did not work outside the home. She describes breast and formula feeding the children, changing diapers, bathing the children, putting them to bed, attending almost all of the children’s extra-curricular activities and volunteering at the school when she was able.
[30] The father is a professor of engineering with responsibility for teaching and research. Some of his work took him out of town for professional obligations.
[31] The mother is a physician. She was so qualified before she left Algeria for Canada. She then spoke French and a Berber dialect. Since arriving in Canada, she took English classes. The mother completed a three year Bachelor of Science degree at Lakehead University over a period of seven years. She qualified as a medical doctor in 2008, commencing a residency that year. The residency involved out-of-town placements from time to time. The parties disagree on the extent of the mother’s out-of-town practicums, examinations, evening and weekend work, etc., but it is obvious that the mother was not always home with the children. She was licensed to practice medicine in 2010 and is employed as a hospitalist at the Thunder Bay Regional Hospital. In 2013, she became the lead hospitalist.
[32] Each parent has taken a role in caring for the children. As the evidence from the babysitter and daycare provider suggests, no parent on the career paths chosen by these parents can always be with his or her children. Some of their care is necessarily delegated to others. These parents have achieved academically and professionally because they have had child care help from those outside the home and, whether they will admit it or not, from each other.
Past Conduct Relevant to the Ability to Act as a Parent
[33] The mother alleges that the father treated her with violence from the inception of the marriage. She states that the father has repeatedly slapped, punched, kicked and choked her. She claims that he has threatened to kill her more than once and has been verbally and physically abusive to the children.
[34] The mother says that the father punched her in the eye once in 1999. She says the argument escalated when she objected that he invited a friend to dinner on short notice. The father explains that his friend (a distant relative of the mother), and his spouse, arrived in Ottawa from France and called on short notice. The father wanted to invite them for a visit. He says there was a loud argument but no violence. The mother insisted that the visit not take place and it didn’t.
[35] I conclude from this and other examples that the mother did not adopt a subservient role in the marriage. Her role as a physician requires her to show leadership and her evidence proves that she is an independent woman who was well aware of her rights.
[36] The mother described the father slapping her hard across the face in the spring of 1999 when she objected to the husband sponsoring his brother to come to Canada. The father counters that this allegation is concocted; he has no relatives living in Canada and has never agreed to sponsor anyone.
[37] After the parties moved to Thunder Bay in 1999, the mother described speaking on the telephone to the father’s aunt when the father took the phone out of her hands and hung up. She said that an argument ensued and he slapped her across the face.
[38] The mother states that when pregnant with Aniss, she rented a room and lived apart from the father for four months. She claims that in May, 2003, the father pushed her against a wall when she was pregnant with Aniss, leading to a rupture of her membranes that triggered Aniss’ birth. The father admits that they argued but denies assaulting her.
[39] The mother alleges that in June, 2003, she was breast feeding Aniss and talking on the telephone. She describes the father twisting her arm to gain control of the phone and then hanging up. Then, she says, he slapped her face. She called the police and the father was charged. The mother recanted her complaint and the charge was withdrawn. She explained that she recanted under extreme pressure from her family and the father’s Muslim friend.
[40] The text of the recantation is appended to the mother’s affidavit. In it she explains that she experienced a difficult time during her pregnancy with Aniss and post-partum. She was feeling stressed because of her inability to breast feed and her mother-in-law’s interference in their marriage which she blamed on the father because she felt he did not control his mother. The mother described the circumstances leading to the assault charge as follows:
On July the 3rd my husband came from work and found me talking on the phone. He asked if the pediatrician called because the day before our family doctor called and said that our 6 weeks old son has a medical condition that may result in surgery. He asked me to hang up the phone in case the pediatrician call, [sic] but I was too upset and I refused, then out of frustration my husband tried to take the phone from my hand and unfortunately he touched the wrong button and hang up on my mom which made me angry and upset. I asked him to leave the house but he refused, and I called 911. My attention [sic] was to have my husband leave the home in order that things might cool down.
[41] The mother was shocked when the police arrested the father, handcuffed him, and charged him with assault because she only wanted the police to take him away for the night. Her statement concluded:
The only problem I was having with my husband is the usual problems that every married couple is having. My pregnancy and my post partum didn’t help our situation. Our relationship suffered from lack of communication but not from abuse. I believe that my language difficulties led to the misunderstanding with the police.
[42] The mother’s recantation contradicts her evidence that a pattern of abuse began earlier in the marriage; it also casts doubt on her credibility.
[43] The mother stated that she and Aniss stayed at the women’s shelter in 2003 and 2004. The father agrees that there were several separations, some of brief duration. The mother says the 2004 stay related to an assault on her after the previous assault charge had been withdrawn. The father alleges that after the charge was laid, they argued and the mother called 911. When the operator answered, she explained she had meant to call 411.
[44] The mother alleges that when she was pregnant with Sara, the father threw her against the wall in the bathroom and she hit her head. She admits that she scratched the father but says it was only once and in self-defence.
[45] The father claims that the mother struck him and cut his lip such that a suture was required. The mother disputes this account, saying that the cut resulted from the telephone antenna striking him.
[46] In response to the mother’s allegations of assault, the father says,
“I categorically deny every [sic] having punched or slapped the Respondent in the head, let alone having done so on so many occasions that she has hearing difficulties.”
[47] The mother stated that she took the children and briefly moved to stay with her brother in Montreal in 2007 as a result of violence in the home.
[48] The mother also claims that the father assaulted Aniss in January, 2013. When Aniss was brushing his teeth, she states that she heard yelling and a bang in the bathroom. She ran upstairs to find Aniss yelling at his father saying, “You hit me. You hurt me.” She states that Aniss related that the father pushed him against the towel bar and that he banged his head. She observed a red bump on Aniss’ forehead. The father was yelling at Aniss and accusing him of lying.
[49] The father specifically denies that he assaulted Aniss, saying that he has never used corporal punishment on either of the children. There is no evidence that a report to the Children’s Aid Society or the police was made. There is no medical verification of an injury. The third party evidence confirms that the children are happy with their father and not afraid of him.
[50] The mother says that she sought legal advice in Algeria in 2002. She retained counsel in Thunder Bay in 2003 and in 2008 but did not proceed with separation. Significantly, she did not initiate these proceedings.
[51] The mother complains that the father treats her as the inferior parent and denigrates her to the children. The father makes the same complaint about the mother. It is evident that some hurtful, demeaning words have been exchanged by the parties, including in front of the children.
[52] There are significant credibility issues in this case on the question of inter-spousal violence. If I accept the mother’s evidence, the violence went both ways. If I accept the father’s evidence, he was the only party assaulted. The mother alleges that she contacted the police several times during the marriage but there is only one documented occasion when the father was charged.
[53] Subsection 16 (9) of the Divorce Act directs the court to consider conduct relevant to the ability to parent. In my view, this direction is broader than simply considering violence by one or both parents; it encompasses conduct that demeans a parent in the eyes of the children or undermines a parent.
[54] The evidence suggests that the mother’s angry approach to the father has the effect of undermining him in the eyes of the children and that Aniss is beginning to resist his father’s authority. A prolonged course of this behaviour can destroy the parent-child relationship. The mother is angry about a number of things. She perceives that the father did not support her in her efforts to re-qualify as a doctor in Canada. It is also her perception that she had no money, and the father would not permit her to drive so that she was isolated, without friends or family, and alone. She is angry that he took a teaching post in Thunder Bay when she wanted to remain in Ottawa.
[55] The objective evidence about the mother’s claims is to the contrary. She is intelligent and was highly educated and independent before she came to Canada. The father provided income and child care that allowed the mother to obtain her qualifications as a physician in Canada. The mother had access to a joint bank account and credit cards throughout the marriage. She took English lessons and mastered the language. She drove in Algeria and took driving lessons in Canada, practicing with the father before she obtained her Ontario driver’s licence. She had telephone contact with her family and the parties returned to visit both families in Algeria from time to time. Now she is in the position of having significantly greater income than the father. She is an accomplished woman.
[56] The mother alleges that before this litigation, the father didn’t care about the children. She states that he suffers from a “mental/personality disorder.” She alleges that for reasons of control, he is trying to put on a public face in order to win custody of the children. At para. 57 of her affidavit sworn September 11, 2013, she stated:
Since separation, and only since then, my husband has become more involved in the children’s lives. I only wish that his interest in the children was genuine….
[57] She claims that he does not relate well to children and was never involved in raising them since they were born. She alleges that the father terrorizes the children and that they are frightened of him. These allegations are not borne out by the evidence of third parties, who describe the father as consistently engaged with and loving toward both children over a long period of time, and in a variety of settings, well in advance of the litigation. These witnesses describe the children as flourishing in the father’s care, and relating well to other children.
[58] I accept that the home environment is turbulent and stressful. At times, there has been violence. There have been many nasty arguments. All conflict has a negative effect on children. However, I am not persuaded that, on the evidence before me, the father has behaved with violence toward the children.
[59] It is probable that the mother’s very negative view of the father has prompted her to undermine his parenting and demean him to the children. Her affidavits contain demeaning language. Her vitriolic perception of the father has a negative impact on her ability to parent and interferes with the children’s ability to have a relationship with their father.
The Best Interests of the Children
[60] The father states that the mother’s regular work schedule is weekdays from 8 a.m. to 5 p.m. as well as some evenings and weekends. The mother states that her work schedule is flexible, although not as light as the father’s work schedule, and does not require evening or weekend work.
[61] The father states that he teaches approximately six hours per week during the daytime hours with the majority of his work time devoted to research. He, too, says that he has flexibility to schedule around the children’s commitments.
[62] The parents have each filed access proposals. The mother proposes that the father have the children on alternate weekends from Friday after school until Monday morning plus an overnight mid-week during the week he does not have access. She asks for an equal sharing of statutory and school holidays and for March Break, which the father does not take off. The father proposes that the mother have the children two overnights each week, with one of these periods to fall on the weekend plus an equal sharing of statutory and school holidays.
[63] The children’s lives need to be normalized, free of parental conflict. While some communication between the parents will be necessary on an ongoing basis, it is advisable, in my view, that the parents have minimal contact with each other. What contact there is should be limited to e-mail or text messaging, unless there is an emergency.
[64] Without doubt, both parents love their children. It may be that, upon a physical separation taking place, tensions will ease and the parties will become better parents. Until that happens, if it ever does, it is in the children’s best interests that their relationships with both parents be preserved. Subsection 16 (10) of the Divorce Act recognizes this value by directing the court to take into account the willingness of a parent to facilitate contact with the other parent.
[65] Neither parent is without fault. The father should not have recorded the parties’ arguments; that is simply provocative. However, in this case, there are warning signals about the mother’s conduct. Sometimes they come from what seem like small matters. For example: the mother insists on retaining possession of the children's health cards and passports. She says she does this because she has always made the children’s medical and dental appointments. Yet when the father asked for a health card in order to complete a school form, she refused to provide it. In order to avoid an argument, the father gave the form to the mother to complete. This is an indicator of control.
[66] The mother refuses to let the children speak to their paternal grandmother. Perhaps it is a bit of retaliation for her mother-in-law’s interference in the marriage. This suggests that she places little value on the father’s extended family or the children’s relationship with them.
[67] The mother purchased a dog for the children shortly after separation, over the father’s objections. This purchase may well convey a subtle message to the children that the mother makes the decisions and there will be more treats if they take their mother’s side.
[68] The father complains that the mother signed the children up for activities without consulting him. She took his cell phone after separation and denied that she had it. When the father advised her that he had located it in her possession by its GPS chip, she returned it. This is petty behaviour.
[69] The mother became very angry with the family doctor, whom she felt was “taking sides” in the custody litigation. She withdrew the children from his practice and lodged a complaint against him with the College of Physicians and Surgeons. There is no indication as to whether the children now have a family doctor. It is certainly not in their best interests to be without one.
[70] After the September 5th interim interim order which divided the week between the parents for purposes of child care, the mother became irate when she learned that the father had made a dental appointment for Sara. The appointment fell during a period of the week when, by court order, the father was responsible for parenting. Notwithstanding the order, the mother insisted on attending the appointment. The mother’s account of this visit, found at para. 8 of her affidavit sworn October 9, 2013 is as follows:
I went to the appointment in my own car. Sara had a filling. As soon as her appointment was over, my husband left the dentist’s office and went outside. He left me and Sara inside. He was up to his old tricks, same as he did in June, 2013. He expected me to pay the dentist and then he would submit the invoice for reimbursement from his benefit’s provider and he would keep the money. This is what he did in June 2013 when I paid $497 for Sara’s dental treatment with my credit card. Copies of that invoice and the credit card receipt are attached as Exhibit “B”. My husband submitted that invoice and kept the reimbursement. I went outside and got in my car. I told my husband to go back in and pay the dentist. I left.
When the mother behaves in this confrontational way, she escalates the tensions to which the children are subject and loses sight of the children’s need for calm and stability. On this occasion, she also lost sight of the requirements of the court order, giving this parenting time to the father.
[71] The mother asks for an order requesting the involvement of the Children’s Lawyer in this case. Her grounds for that request are that the report of the Children’s Lawyer will vindicate her. At para. 10 of her affidavit sworn October 9th, the mother says:
The children need independent representation. They can explain what their life has been like in our home and which parent cared for them. They can explain what they saw when the assault took place. As I stated earlier, I run a big risk in asking for this representation for them. If I have lied in this proceeding, I will be found out. I know that will significantly affect my future rights that I might claim to my children. I am confident that the truth will come out and that I will be vindicated.
[72] Implicit in the mother’s statement is her view that the children will take her side. The risk is that she will manipulate the children and undermine their relationship with the father in order to “win.”
[73] The outcome of this litigation is very important to each party. Critical to the children’s best interests is the ability of the parents to put the children’s interests first, despite the conflict. I am not persuaded that the mother can do so at this point. She is too heavily invested in being vindicated. The affidavits she has filed are replete with hostility toward the father. There is a danger that she does not understand the children’s need to have a relationship with him. The father’s affidavit at least recognizes the desirability of the parents working together to raise the children.
[74] On an interim basis, the father shall have custody of the children. In order not to disrupt the children, he shall also have interim exclusive possession of the matrimonial home and contents. The mother has the income to afford adequate alternative accommodation suitable for the children but she will need some time to locate it. The mother shall vacate the home no later than ten days from the release of these reasons.
[75] Each parent fears that the other may abscond with the children to Algeria and not return. The children’s ordinary residence shall be the City of Thunder Bay, Ontario until further order of the court.
[76] The mother shall forthwith surrender to the father the children’s birth certificates, health cards, passports, and any other documentation related to the children and their activities.
[77] The children need frequent and consistent contact with their mother in order to benefit from her nurture and to sustain their relationship with her. The mother shall have the children two overnights each week, with one of these periods to fall on the weekend plus an equal sharing of statutory and school holidays. If the parties cannot agree on the particulars of this arrangement, I may be spoken to. Communication between the parents shall be by e-mail or text messaging, except in cases of emergency.
[78] The parents shall treat each other civilly. Neither parent shall, in the presence or hearing of the children, talk about or behave negatively toward the other parent nor discuss the court case or custody arrangements with them, nor permit others to do so.
[79] The father is ordered to prepare for the mother a digital copy of all the electronic photographs of the children and the family located on his computer.
[80] As the mother’s income was not verified at the date this motion was argued, a determination of child support will be reserved for argument on a date to be agreed upon by counsel.
[81] The parents are ordered, on an interim basis, to designate the children as irrevocable beneficiaries of their respective life insurance policies, naming the other parent as trustee of the policies, such coverage to continue so long as the children are defined as “children of the marriage” within the meaning of the Divorce Act unless otherwise ordered.
[82] In order to assist the court at trial, the Office of the Children’s Lawyer is requested to become involved in this case, with a request that a social work investigation be conducted.
[83] The respondent is granted leave to amend her Answer as appended to her notice of motion at Tab 19 of the continuing record, with leave to the applicant to reply.
[84] If the parties cannot agree on costs, either may apply to the trial coordinator within thirty days for an appointment to argue costs, failing which costs will be deemed to be settled.
Regional Senior Justice H.M. Pierce
Released: November 8, 2013
COURT FILE NO.: FS-13-0020-00
DATE: November 8, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Abdelhamid Tayebi
Applicant
- and –
Salima Oukachbi
Respondent
REASONS ON MOTION FOR TEMPORARY CUSTODY
Pierce J.
Released: November 8, 2013
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