COURT FILE AND PARTIES

COURT FILE NO.: FS-14-394522

DATE: 20141215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jane Knop, Applicant

AND:

William Reza Nezami also known as William Reza Nezami-Nia, Respondent

BEFORE: Kiteley J.

COUNSEL: Gary S. Joseph and E. Gamus, for the Applicant

Meysa Maleki, for the Respondent

HEARD: December 11, 2014

ENDORSEMENT ON MOTION AND CROSS-MOTION

[1] After hearing submissions on December 11, I gave oral reasons for decision. There was no court reporter available until I was about half finished. I indicated to the parties that this written endorsement would be made available as soon as possible.

[2] The parties began to cohabit in June of 2007 and married in March 2008. Their child Mariana was born in February 2012. They separated on April 30, 2014.

[3] This Application was issued on or about May 1, 2014. On May 6, 2014, on an ex parte motion, Paisley J. granted to the Applicant an order for temporary custody and he issued a restraining order. Since then, the matter has been before the court on these occasions: May 8, 2014, May 13 (with endorsement released May 20), June 25, June 26, July 10, September 30 (which was a consent to vary the restraining order to permit mediation), October 24, November 6, November 27, December 9 and today.

[4] In his endorsement dated May 6, Paisley J. wrote:

The Applicant’s evidence is that the Respondent has exposed the child of the marriage to an unreasonable risk of harm by permitting the family pets to be in the presence of the child, notwithstanding his assurance to the Children’s Aid Society that he would not do so. . . .

[5] On May 13, Backhouse J. heard a motion by the Respondent to set aside that order. In her endorsement dated May 20, 2014, Backhouse J. wrote as follows:

4. This case is already out of control with multiple conflicting affidavits. It is conceded that the parties can no longer live under the same roof. Before an informed decision can be reached on custody and access, this case requires a report from an experienced assessor on an urgent basis. If the parties cannot agree on an assessor, I will appoint one. The parties shall report back within a week with respect to the assessor.

5. In the interim, having consented to an order that the Dobermans be removed from the matrimonial home, Mr. Nezami may have access to the child for 4 hours every Tuesday and Thursday and every Friday from 4 p.m. to Saturday at 5 p.m. The nanny agrees to and shall accompany the child during the access visits.

6. Ms. Knop’s family lives in the United States. I am satisfied that she will not abscond with the child. I pose no restrictions on Ms. Knop’s travel to the U.S. with the child to visit her family. Mr. Nezami may retain his passports but cannot leave the jurisdiction with the child without an order of the court or a written consent from Ms. Knop.

[6] The two issues in the motions before me deal with paragraph 5 which provides that the nanny agrees to and shall accompany the child during the access visits, and paragraph 6 with respect to Ms. Knop travelling to the U.S. with the child.

[7] Since that endorsement dated May 20, various orders have been made including the order on consent on July 10 for the appointment of Dr. Rachel Birnbaum as a s. 30 assessor, for listing the former matrimonial home for sale, requiring the Respondent to maintain the mortgage payments, and further restraining orders. The matter came before me on November 27, 2014 at which time I set December 9 for 1 hour to deal with as much of paragraphs 3 – 8 of Tab 61 (Applicant’s notice of motion) as time would permit. On December 9, I made an order that I will case manage this action, I set a timetable for questioning and then the hearing of long motions on March 9, 2015, and I set December 11 for 1 hour for purposes of hearing two immediate issues, namely the Respondent’s motion for access and the Applicant’s motion with respect to travel with the child.

[8] During the attendance on December 9, Mr. Joseph took the position that the Respondent ought not to be given an audience even on his access motion because of his non-compliance with many outstanding orders. On December 9, I advised counsel that I would not entertain that preliminary objection on the Respondent’s motion for access. I am aware that the Respondent has explanations or excuses for his non-compliance. Indeed, he appears to insist that he has largely complied. I do not consider any of that evidence at the hearing of these motions. The one issue of non-compliance that is of the greatest importance is the s. 30 assessment which has not happened because he has not signed the written agreement required by the assessor. That is not on the agenda for today.

[9] The order of Backhouse J. operated from mid-May to November 4, 2014. The nanny “accompanied” the child but she was not with the child all of the time. She did not “supervise” the care by the Respondent. On November 6 she did an affidavit in which she said she would not participate any more. Indeed, she also resigned as nanny. She will only work from time to time as babysitter for the Applicant.

[10] Since November 4, 2014, the Respondent has not seen the child. The Respondent takes the position that “accompany” does not mean “supervise”. And in any event the nanny refuses to continue.

[11] The Applicant takes the position that Justice Backhouse’s order meant that his access should be supervised, and in the circumstances, by a commercial provider such as Brayden. She has refused to make the child available in the absence of arrangements for supervision satisfactory to her.

[12] So there has been a stalemate since November 6: the Applicant refuses to allow access without supervision and the Respondent refuses to agree to supervision. It is a demonstration of the conflict between them that they have not been able to arrive at even a temporary resolution pending this motion. The person who has suffered the most is the child who has not seen her father for over 5 weeks.

[13] In his notice of motion the Respondent asks for an order varying the order of Backhouse J. by “substituting” his mother and father in lieu of the nanny. He also asks in the alternative that the order be varied to delete any reference to accompaniment. In her submissions, Ms. Maleki takes the position that the motion engages the court in an interpretation of the order of Justice Backhouse and what she intended by the meaning of “accompany” and in any event there has been a material change in circumstances because the nanny is no longer available.

[14] Mr. Joseph takes the position that the motion is fundamentally a motion to vary and the threshold is high and the Respondent has not met it. He asserts that Backhouse J. intended there be supervision and in the absence of the nanny, it should be by a commercial provider. He objects to the suggestion by the Respondent that his parents would participate because there is no affidavit from them and because of other reasons having to do with the Respondent’s relationship with his parents. His client would accept the Respondent’s brother (to whose house she went in January, 2014 with the child) but takes the position that the brother should have submitted an affidavit.

[15] This motion engages a number of issues. First, the nanny, who was clearly to be part of the implementation of the order, is no longer available. That might be considered to be a material change in circumstances. Second, the word “accompany” is not defined and therefore it could be a question of interpretation. Without pigeonholing the precipitating factor, I am satisfied that it is in the best interests of this child (who has not seen her father for 5 weeks) that this court change the order to ensure that access will happen.

[16] I do not consider that “accompany” means supervision. When court orders refer to “supervision”, they mean just that: the person is responsible for supervising the activity of the parent. If Justice Backhouse had intended supervision, she would have said so. The word “accompany” had to mean something different from and less than “supervision”.

[17] Counsel on this motion for temporary access and for an order for travel referred to 5 affidavits of the nanny, 4 affidavits of the Respondent, 12 affidavits of the Applicant and 10 affidavits of others. I appreciate that much of the volume of the affidavits also relates to the other motions that will be dealt with on the long motion on March 9, 2015. But this is a motion involving temporary access. I understand that both parties feel strongly about the position each takes and insists that each is acting in the best interests of the child. However, that volume of evidence is not proportional to the specific issues before me on these motions.

[18] From my perspective, the evidence of the nanny is the most valuable. The content of her affidavits depend on which parent or which parent’s counsel recruited her to make the affidavit. I do not accept the submission of Mr. Joseph that I should infer that the affidavit of the nanny dated June 20 (which is most favourable to him) was obtained through intimidation.

[19] What I conclude from those affidavits is that the Respondent has always had an active role in parenting the child. The nanny is somewhat critical of him for example, for giving the child chicken McNuggets. She does complain that on at least one occasion he left her at home while he went out with the child - which the Respondent admits because that was consistent with his interpretation of “accompany”. She does complain that each of the parents used her to find out what the other parent was doing. But the nanny accompanied the child from the middle of May to November 4 and those are the most significant complaints. She has given no evidence of the Respondent having anxiety attacks or black outs or migraines. The dogs were a key issue before Justice Paisley and Justice Backhouse. The dogs are long gone. I see no evidence that warrants a fresh order that the access of this father be supervised.

[20] Having said that, it is clear that these parents ought not to be in the vicinity of each other and therefore there must be a plan for transitions. As indicated in a moment, I accept the brother of the Respondent for that purpose, unless the parties can agree to someone else.

[21] I turn now to the Applicant’s motion to be allowed to travel to California to visit with her family. On December 9 when I set this date for the motion and cross-motion, I allowed the Respondent to file a responding affidavit unless he had already done so. He did file an affidavit dated December 10. Mr. Joseph made a preliminary objection that indeed he had already responded and I ought not to receive that affidavit, particularly since the Applicant had not had an opportunity to respond.

[22] While two of the Respondent’s prior affidavits did touch on the subject of travel, they did not respond to her affidavit in support of her motion dealing with travel. I accept the affidavit of December 10. In that affidavit, the Respondent consents to the Applicant taking the child to California for a visit in December to see her family but he asks that any other visits await the long motion now scheduled for March 9.

[23] Justice Backhouse made it clear that the Applicant could travel with the child. Because of the stalemate over access since November 6, the Respondent has refused to remove obstacles to the trip. The Applicant has understandably not gone (even though Backhouse J. said she could) because of the risk of something happening at the border. Hence the stalemate over access has led to the stalemate over whether the Applicant could go to visit her father who had an operation in November and cannot travel to Canada.

[24] There is no question that the Applicant will go to California with the child. The issues are when and what make up arrangements are to be made.

[25] I intend to make the necessary orders. However, in order to give these parents an opportunity to actually agree on something, I am about to articulate principles on which I expect the lawyers and their clients will try to develop a schedule.

[26] I will make an order that incorporates the following elements.

[27] The Respondent shall have temporary access without supervision during access. The transitions from mom to dad and from dad to mom will be supervised. I will order that the Respondent’s brother supervise those transitions unless the parties agree to someone else. Unless it is on consent, I will not order that a commercial provider supervise the transitions.

[28] The regime established by Justice Backhouse was Tuesday and Thursday evenings and Friday overnight to Saturday. That has to be altered because there has been no access since November 4. Temporary access shall begin on Friday, December 12 at 4:00 p.m. and end Sunday, December 14 at 5:00 p.m. and on Tuesday, December 16 and Thursday, December 18 from 3 – 7 p.m.

[29] I will order that the Applicant can go to California in December for a period not exceeding 8 days with day 1 being the day of departure and day 8 being the date the child is returned to Ontario; in other words 6 non-travel days. I expect counsel and the parties to negotiate when that will be, provided that they also negotiate the make-up time. The child must be with her father for either December 25 or January 1.

[30] I will not order that the Applicant can take a second trip to California at the end of January. The Applicant continues to be permitted to take the child out of Canada in accordance with the order of Backhouse J. but it must not interfere with the usual routine or the make-up time. On March 9 I will consider the motion for other travel to the extent that it conflicts with the Respondent’s regular access time.

[31] In summary, the outcome of this motion will be that supervision of the Respondent’s access is not required although supervision of transitions is required; and the Applicant may take the child to California for a single visit although it will conflict with the regular schedule established by Backhouse J. Having dealt with those two issues, I am optimistic that the parties will be able to establish a regime that suits both of them and benefits the child.

[32] I will now hold the matter down while counsel meet with their clients and attempt to arrive at a schedule, failing which I will make the necessary orders.[^1]

[33] Before recessing, I return to the allegations of non-compliance. The failure of the Respondent to comply with the consent order appointing Dr. Rachel Birnbaum is very serious. I make no order today. I observe, however, that there may be significant consequences for that non-compliance.

[34] Costs of these motions was reserved to costs on the hearing of the long motion on March 9, 2015.

Kiteley J.

Date: December 2014

[^1]: Following the recess, counsel did report that they had agreed on a schedule which resulted in the modification of some of the elements above. The consent prevails over those paragraphs of this endorsement where they are in conflict.