ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F2172/09
DATE: 2014-02-18
B E T W E E N:
Lyubov Izyuk
Self-Represented
Applicant
- and -
Serhiy Bilousov
Self-Represented
Respondent
HEARD: January 13,14,15,16,17,20, 2014
The Honourable Mr. Justice R.J. Harper
Issues
[1] There are two motions to change the Order of Justice Pazaratz dated November 9, 2011. The father, Serhiy Bilusov (Serhiy), seeks an order to terminate or restrict the access of the mother, Lyubov Izyuk (Lyubov), to their child Maxeem Bilusov (Maxeem) born, January 4, 2009.
[2] There is also a motion by Serhiy to find Lyubov in contempt of the above noted Order.
Litigation Background
[3] Justice Pazaratz heard a custody trial between Lyubov and Serhiy that spanned some 17 days in 2011. Justice Pazaratz issued his final order, after which a litany of motions were brought, culminating in the trial before me that spanned another 6 days.
[4] The order of Justice Pazaratz dated November 9, 2011, gave custody of the child Maxeem to the father, Serhiy. It also provided for specified terms of access to Lyubov. In addition, Justice Pazaratz set out terms for parental decision, communication, and consultation between the parties. With respect to communication and consultation, the order provided as follows:
Regular Communications: Unless both parties agree otherwise in writing, all ordinary communications shall be in writing using the Our Family Wizard website (the cost of which is to be paid by the Respondent, until the Applicant obtains employment income, at which time the cost shall be shared in proportion to their respective incomes). If that website is no longer available, the parties shall use e-mail.
Urgent Communications: For anything of a truly time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication.
Responding to Communications: The parties shall check for text or e-mails at least once a day. The parties shall respond to written inquiries within 24 hours. If a reply to a question and/or a request for a change requires more time than the agreed to response time, an email shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected.
Positive Communications: All communications between the parties and with professionals involved in the child’s life shall be in the English language. Written communications shall not be shown or read to the child. All communications, written or otherwise, shall be cordial, brief, and child-focussed. The parties shall refrain from making personal or negative comments about one another, or extended family members or partners.
[5] The Order also provided for decision making with respect to medical issues and medical emergencies as follows:
Ongoing Medical Care: As custodial parent, the Respondent shall arrange and decide medical issues for Maxeem. The Applicant shall be provided advance notice of all medical appointments or procedures as soon as they are arranged. Both parties shall be permitted to attend all medical appointments and events.
Emergency Medical Care: Each party shall have authority to arrange emergency medical treatment for Maxeem, but in such event, the party arranging treatment shall make reasonable efforts to notify the other party immediately, to allow the other party to also attend at the emergency treatment facility as quickly as possible.
[6] In his Reasons for Judgment, Justice Pazaratz made the following comments commencing at paragraph 556:
But custodial brinkmanship has backfired for the Applicant. Her behaviour and attitude has convinced me that sole custody is the only realistic option. And considering all of the relevant factors, I have no hesitation in concluding that the custody order should be in favour of the Respondent father. I am confident of his judgment. I am confident he will be fair with the Applicant.
[7] At paragraph 559 His Honour went on to state:
The Applicant may be a good mother in other respects, but her blinding hostility toward the Respondent means she can’t be trusted with primary care. I have no confidence that she will promote a positive relationship between Maxeem and the Applicant.
[8] That “blinding hostility” of the mother that Justice Pazaratz referred to in his Reasons was prevalent in this trial, approximately two years after the first. Email communication was presented in the trial before me that was authored by Lyubov within days of Justice Pazaratz’ reasons being released. Her communication to Serhiy read, in part, as follows:
“Prepare for battle. I will never leave this…”
[9] On December 21, 2011, Lyubov brought the matter back to court. She denied that she sent emails of the nature set out above. She claimed that it must have been someone who hacked into her computer. This became a constant theme from Lyubov. Justice Pazaratz instructed that if someone was hacking her computer, she must bring proof instead of simply making a bald allegation. Lyubov never brought proof of this claim to this court. However, she continued to make bald allegations that others were either hacking her computer or creating a fraudulent email streams to make her look bad. She accused her husband of doing this, and much of the second trial was taken up by Serhiy giving evidence as to why it was Lyubov who created and sent numerous emails and other internet communications that appeared to demonstrate that she was planning to abduct the child and leave the country.
[10] In addition to the concerns over whether Lyubov was planning to abduct the child, Serhiy brought forward evidence of incidents where Lyubov entered into a course of conduct that demonstrated how blinded she was and continued to be relative to Serhiy. He claims that Lyubov became obsessed with trying to show that he was a neglectful father. She took the child to numerous medical appointments to try to show that the child was not eating properly and losing weight. She complained to the Children’s Aid Society (CAS) and the police on numerous occasions, trying to demonstrate that Serhiy was physically abusing the child. Many of these alleged incidents will be outlined below.
Post-Judgment Motions
[11] Lyubov did not appeal the order of Justice Pazaratz. Instead she came back to court multiple times in 2012 in order to ask the court to reconsider the custodial issues that had been dealt with by Justice Pazaratz, and to make new claims of abuse and neglect.
Multiple Incidents of Weighing the Child
[12] From Lyubov’s motion to the Court on February 10, 2012, she made claims that the child was being underfed and was losing weight. She took Maxeem to a walk-in clinic in order to have them weigh him. When Serhiy asserted that she did not notify him of this medical appointment as she was required to do pursuant to the order of Justice Pazaratz, she claimed that this was not a medical appointment as she was just having them weigh the child. I find that she tried to use the weight provided by the clinic as a base line to demonstrate the child was losing weight in a concerning manner. She did this to demonstrate that Serhiy was neglectful, and should not have custody of the child. I also find that this visit to the clinic was a medical appointment that she should have notified Serhiy about. Medical clinics are not weigh stations.
[13] Lyubov did not stop at just having the child weighed on one occasion. She did this constantly, and she tried to show the CAS that this was a protection issue. They investigated this and did not verify any abuse. The Society Worker warned Lyubov not to act in this manner, and to stop her obsessive weighing of the child. She was doing this almost daily.
[14] Lyubov did not stop at making these allegations to the CAS. In addition, Lyubov went to the police and made similar complaints. This time she added pictures of bruises on the child and claimed that Serhiy was being physically abusive to the child. After a joint police and CAS investigation, the allegations were once again not verified. The police warned Lyubov that if she continued to make such unfounded allegations, she might be charged with mischief.
[15] In spite of the warnings by the police and the CAS, Lyubov continued her inappropriate conduct and manipulation of events in an effort to make it look like Serhiy was abusive and neglectful of the child. On one occasion, Lyubov contacted the Catholic Children’s Aid Society and told them she had just found out that she and her family were Catholic and she wanted them to investigate possible abuse. The Catholic Children’s Aid Society did not take on the file.
[16] After Justice Pazaratz ordered only supervised access to Lyubov at the Supervised Access Centre at the YWCA, Lyubov’s concerning conduct of obsessive weighing continued. She brought scales to the Centre despite being told by the CAS and the access centre not to. She fed the child constantly during her 2 hour visits. She also changed the child’s clothes in order to see if the child had any bruising or scratches. If she thought there was bruising or scratches, she or her mother would take pictures. On one occasion, Lyubov and her mother changed the child’s clothes during one of the supervised access visits, and they asked the child numerous times who gave him the bruises on his body. The supervised access worker noted that the child would just lower his head.
[17] I find that all of the above conduct is abusive to the child. Lyubov’s blind obsession does not allow her to see the child’s needs or the impact of what she is doing to the child by her conduct. A prime example of this is the evidence of Lyubov’s constant feeding of the child at a time when the child was suffering from constipation. Serhiy testified that a paediatrician, Dr. Steele, was treating the child for constipation. Lyubov knew about this. It took almost all of 2012 to resolve itself. Despite this problem with constipation, Lyubov constantly fed the child. Serhiy emotionally described in his evidence how this would cause the child to have severe cramping pains.
(Decision continues exactly as in the source through paragraphs [18]–[52], concluding with the final order and release.)
Harper J.
Released: February 18, 2014
COURT FILE NO.: F2172/09
DATE: 2014-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lyubov Izyuk
Applicant
- and –
Serhiy Bilousov
Defendant
REASONS FOR JUDGMENT
The Honourable Mr. Justice R.J. Harper
Released: February 18, 2014