CITATION: Al-Farawi v. El-Farawi, 2015 ONSC 4116

COURT FILE NO.: F45/2015

DATE: 2015-06-26

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Asma Al-Farawi, Applicant

AND:

Nidal El-Farawi, Respondent

BEFORE: Heeney R.S.J.

COUNSEL: Salim Khot, for the Applicant

Alla Kikinova, for the Respondent

HEARD: June 24, 2015 at London

ENDORSEMENT

[1] This is a motion by the Applicant (“Wife”) for interim sole custody of the two children, Ranya El-Farawi, born June 29, 2003, and Rami El-Farawi, born June 16, 2009. The Wife also asks that the Respondent (“Husband”) have supervised access to the children, in accordance with the recommendations of Lori Cunningham M.S.W., R.S.W., the clinical agent who authored the Report of the Children’s Lawyer dated June 12, 2015.

[2] The parties were married on March 31, 2001 in Gaza, Palestine, and began residing together at Kitchener in October 2001. Two children were born of that relationship, as outlined above. They separated on March 7, 2013, shortly after the Husband assaulted the Wife. He was convicted of assault in December, 2013, and placed on probation for two years, which includes a non-association clause.

[3] Both children resided with the Wife following the separation, but in March, 2014, the Wife agreed that the oldest child Ranya could go to live with the Husband. This arrangement was entered into largely as a result of pressure from family elders, after she began a new relationship with Abdulaziz Alkhdidi. They have a child together, Sami, born September 15, 2014.

[4] Another reason that the Wife agreed to having Ranya live with the Husband was that he lived with his mother (the paternal grandmother to Ranya) and his brother. It was the grandmother who would be providing care for Ranya.

[5] On January 21, 2015, Mitrow J. made an order pursuant to a Consent Endorsement Request, on an interim without prejudice basis, that the primary residence of Ranya be with the Husband and the primary residence of Rami be with the Wife. That is the only interim order that has been made regarding interim custody and access. Since it was expressly made on a without prejudice basis, I am of the view that it is not necessary for the Wife to demonstrate a material change in circumstances in order to vary it. The present motion is the first time that a decision on these issues will be made on the merits.

[6] Having said that, it is clear that a material change in circumstances has occurred. The paternal grandmother is now seriously ill and is no longer providing care for Ranya. The Husband is facing serious criminal charges alleging that he choked his brother, and according to the material filed could be facing up to two years incarceration if convicted. He has made no plans for the care of Ranya if he goes to jail. Unsurprisingly, his brother no longer lives with him.

[7] The support of his extended family, which played a key role in the decision to place Ranya with him in the first place, has disappeared. The paternal uncle, Dr. Faraawi, who helped to broker the initial arrangement, agreed to be interviewed by the clinical investigator out of concerns for the well-being of Ranya in the Husband’s care, and concerns for his psychological instability. He reported the children to be “running wild” while at the Husband’s residence, and expressed concerns about undesirable companions who come and go from the house at all hours, among other things. He strongly recommended that both children reside with the Wife.

[8] The most significant change in circumstances is the release of the Report of the Children’s Lawyer, which highlights all of these concerns and more. At page 12, the investigator noted the following:

Concerns were noted about Mr. El-Farawi’s ability to parent the children. He was observed to be emotionally labile, impulsive and disorganized in his thinking. He cried profusely through interviews with the clinician and the child protection worker. He also became enraged when asked to transport Ranya to an appointment. He has a great deal of difficulty managing his appointment dates. There have been allegations about drug use and Mr. El-Farawi’s emotional fragility could be symptomatic of abuse of cocaine. Mr. El-Farawi should address the allegations by completing an addiction assessment and produce a negative hair follicle test to substantiate his contention of abstinence.

[9] The Husband does not accept any responsibility for his behaviour and blames others for his misfortune, including the Wife, his family, and the justice system. The investigator is concerned that there was no condition in his probation order that he attend a partner assault response program, despite having been convicted of a domestic assault. He is now involved in a new relationship and, given his history, there is a concern that the children may witness violence again.

[10] The at-home visit between the children and the Husband was nothing short of a disaster, while the visit at the Wife’s home was tranquil and pleasant. The children were observed to be well-behaved at their mother’s home and, according to the child protection worker who was interviewed, they have firm expectations and regular routines in her care. They have an excellent relationship with her new partner, who is described by the children as “kind to them”. The children have developed a strong connection to their baby brother Sami.

[11] The clinical investigator recommended sole custody of both children in favour of the Wife. She recommended supervised access to the Husband for two hours per week at Merrymount, until he completes a partner assault program or equivalent counselling, the Caring Dads program, and provides negative results in a hair follicle drug test. More extended access was recommended after those conditions are met, along with other terms.

[12] The Report of the Children’s Lawyer is, of course, only one piece of evidence. However, it does represent an independent and impartial assessment of the situation, in contrast to the self-serving affidavits filed by the parties themselves, and at this point represents the best evidence available with respect to the best interests of the children.

[13] While a change in the primary residence of Ranya would represent a change in the status quo, it is clear that that status quo has already changed, to the detriment of the children, as outlined above. The circumstances which justified placing Ranya in her father’s care no longer exist. Instead, she is now in a situation of risk.

[14] On the evidence before me, it is abundantly clear that the best interests of both children will be met by having them reside with their mother in her sole custody. An interim order will go to that effect.

[15] The Husband will receive interim interim supervised access for two hours per week at Merrymount Children’s Services. He shall also do the following:

• Attend a partner assault response program or an equivalent counselling program dealing with assault of an intimate partner and impulse control;

• Attend the Caring Dads program;

• Provide a negative test result in a hair follicle drug test.

[16] Once those conditions have been met, access will be expanded in accordance with the recommendations of the clinical investigator, which will be accomplished by filing a Consent and draft order as a basket motion. If the parties cannot cooperate in that regard, the parties are at liberty to return the matter to court to deal with the issue of expanded access.

[17] Mr. Knot, for the Wife, expressed concern that there may be resistance by the Husband to handing over Ranya in compliance with the order I have just made, but he was not in a position to file any affidavit evidence to substantiate those concerns. In the absence of evidence, I am making no order in that regard, but if resistance is encountered the Wife is at liberty to apply for a police assist order on an ex parte basis.

[18] This is not a case for costs.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: June 26, 2015