ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F1223/13
DATE: 2015-11-03

BETWEEN:

James Miner

Jerry Chaimovitz for the Applicant

Applicant

• and -

Haseena Mandel

Self-Represented

Respondent

HEARD: October 5, 2015

The Honourable Mr. Justice R. J. Mazza

1This is a motion brought by the Applicant for a temporary order that the order of Justice Chappel be changed so that the children will primarily reside with the Applicant.

2At the present time, their primary residence is with Ms. Mandel. However, pursuant to the temporary order of Justice Reid, which was without prejudice, the children are currently residing with Mr. Miner, and Ms. Mandel is currently enjoying the access which was ordered by Justice Chappel.

3Mr. Chaimovitz on behalf of the Applicant, Mr. Miner, submitted that Mr. Miner is bringing the motion because of concerns that the children could be placed in harm’s way in their current residence with Ms. Mandel because of what he is indicated is Ms. Mandel’s failure to meet the children’s educational needs.

4He further submitted that the reason that the Applicant has brought this motion is because a trial is now scheduled for February of 2016; therefore for the sake of the children it was imperative for the court to deal with the residency issue now.

Background

5The parties commenced a relationship in 2006 and began cohabitating in 2007, but were never married.

6The two children, who are the subject of this particular motion, were born May 15, 2008, and April 3, 2009.

7As a result of a “very tumultuous relationship” (Paragraph 13 of the Applicant’s Factum), the parties separated on March 11, 2014, on a final basis.

Mr. Chaimovitz’s Submissions

8Mr. Chaimovitz submitted that one of the primary concerns and the motivating factor behind this motion is the children’s education needs.

9Both the children are attending R.A. Riddell elementary school, which is located near Mr. Miner’s residence, and as a result of Justice Reid’s order, Mr. Miner has assumed the primary responsibility of assuring the children attend school. Originally that responsibility had been assigned to Ms. Mandel under Justice Chappel’s order, but as already indicated, Justice Reid’s order simply exchanged the respective responsibilities of Ms. Mandel and Mr. Miner.

10Mr. Chaimovitz further submitted that in spite of the fact that Ms. Mandel now has the access previously enjoyed by Mr. Miner and has limited responsibility to assure the children attend school, nevertheless the children still arrive late under her care.

11Ms. Mandel’s explanation for the children’s late attendance at school, according to Mr. Chaimovitz, is Justice Chappel’s refusal to change the children’s school as requested by Ms. Mandel. It should be noted that R.A. Riddell is located in Hamilton and Ms. Mandel resides in Burlington.

12Mr. Chaimovitz went on to submit that in July of 2014 Mr. Miner started his application, although his factum indicates July of 2013, which appears not to be chronologically correct since Mr. Miner was charged with three counts of assault on March 11, 2014, the day of final separation.

13It was only because of the outstanding charges, Mr. Chaimovitz submitted, that on March 27, 2014, Justice Chappel ordered that the children reside with Ms. Mandel.

14However, Mr. Chaimovitz further submitted that the charges have now been addressed. All three charges were withdrawn, but Mr. Miner was required to enter into a peace bond with respect to the third charge.

15Mr. Chaimovitz further submitted that the reason for the Crown’s decision to withdraw the charges was with respect to the credibility issues related to Ms. Mandel, and although the Crown was willing to also withdraw the third charge, Ms. Mandel refused. And in order to finalize all matters, Mr. Miner agreed to enter into a peace bond.

16He emphasized that the children’s educational needs are being jeopardized. Mr. Chaimovitz referred to Paragraph 37 of Volume 2 of the Continuing Record and drawing the court’s attention specifically to each of the children’s school records located at Tabs I, J., and K of Tab 37 of Volume 2 of the record.

17Although the Office of the Children’s Lawyer had been ordered to prepare a report, which was done by one Kim Martin, which has been disputed by Mr. Miner for a number of reasons in addition to the outstanding criminal charges set out by Ms. Martin. Ms. Martin had accused him of lying about prescription medication, but failed to perform “due diligence” and properly following up with the Applicant’s doctors.

18However, to address this outstanding allegation, Mr. Miner was able to produce medical evidence refuting Ms. Martin’s allegation that he lied about his prescription. Moreover, Mr. Chaimovitz submitted that Ms. Martin failed to speak to Patricia Mandel, Ms. Mandel’s sister, despite requests by Mr. Miner to investigate Ms. Mandel’s family background. Ms. Martin was also not aware of Ms. Mandel’s extensive involvement with the York Region CAS.

19Mr. Chaimovitz went on to submit a further concern was the fact that Ms. Mandel is currently residing with her step-father, who has a history of being involved with the York CAS over allegations of physical assault against Ms. Mandel’s sister Theresa; incidences taking place between the ages of 9 and 12.

20Although initially Ms. Martin had contacted the York Region CAS to request those records, she was told no records existed, until it was discovered by Mr. Miner’s previous counsel that the confusion was over the misspelling of Ms. Mandel’s last name, which had been recorded as M-A-N-D-A-L rather than the correct spelling of M-A-N-D-E-L.

21A consent signed by Ms. Mandel enabled the York Region CAS to provide a summary of Ms. Mandel’s involvement with that Society and being the subject of physical abuse by her biological father and mother.

22In addition to the allegations of physical abuse upon Ms. Mandel by her biological father, there were allegations of sexual abuse against the step-father, Mr. Rahim, who denied such involvement when he appeared before Justice Pazaratz on January 9, 2015.

23Mr. Chaimovitz further submitted that to confirm these allegations which currently have been unfounded, the affidavit of Patricia Mandel indicates that she witnessed these assaults by Mr. Rahim, but was coerced into not disclosing the assaults to the authorities.

24Mr. Chaimovitz further submitted, therefore, that his client is concerned about the same kinds of pressure and tactics being imposed upon these young children. And although there have been no sexual allegations, nevertheless given Mr. Rahim’s history, the risk to the children exists.

25Mr. Chaimovitz also submitted that in spite of Mr. Miner’s position that he would never leave the children alone with Mr. Rahim, Ms. Mandel’s position is that she allows Mr. Rahim to assists in taking them out of the bathtub (but appears to be in her presence).

26Regarding the credibility of Ms. Mandel, Mr. Chaimovitz went on to submit that she has lied to Justice Chappel and has lied to the clinical investigator so that her credibility is seriously an issue. Moreover, Mr. Rahim has lied to the clinical investigator and has lied to Justice Pazaratz, and these lies are confirmed in the transcript, which have been attached as exhibits to Mr. Miner’s affidavit.

27Accordingly, therefore the court must ask itself why would Mr. Rahim lie? Why would Ms. Mandel hide a lie if they had nothing to hide?

28Mr. Chaimovitz further pointed out that there is no affidavit filed by Mr. Rahim explaining why he lost contracts over inappropriate sexual harassment allegations towards Mr. Miner’s customers. None of these allegations have been denied by Mr. Rahim.

29Mr. Chaimovitz further submitted that Ms. Mandel was also provided with $15,000.00 to move from Mr. Rahim’s residence, but chose not to. She also did not comply with the most recent order not to leave Mr. Rahim alone with the children, and yet the evidence would show that he dropped the children off at the school the other day unaccompanied by Ms. Mandel.

30As for the children’s current circumstances, Mr. Chaimovitz submitted they are living in the home where they grew up, where they were raised. The parents have been actively involved in their lives in both school and extracurricular activities. And Mr. Chaimovitz would ask the court to conclude that the only reason that Justice Chappel’s order exists is because of the outstanding charges, which have now been resolved.

31Should the court not make the order as requested by Mr. Miner, that then places the children in a position where they will be living with Ms. Mandel for at least another year.

32With respect to Ms. Mandel’s reply affidavit, Mr. Chaimovitz indicated that she does not address the concerns as set out in his client’s affidavit, and that the affidavit of Ms. Mandel is more factual, but not very responsive to Mr. Miner’s concerns.

33Mr. Chaimovitz also asks this court to read the affidavit of Winnie Capriotti at Tab 39 of Volume 2 of the record. He also indicated that the children do not have proper sleeping arrangements at Ms. Mandel’s current Burlington residence.

34In summary, Mr. Chaimovitz submitted that three things happened since the order. First, frequently Ms. Mandel has not been able to bring the children to school on time; second, she has not complied with the provision that Mr. Rahim not be alone with the children; third, she has kept the children longer than she was supposed to in accordance with the court order and indicated to Mr. Miner that she did not require anybody’s permission to do so, and therefore Mr. Chaimovitz submitted she cannot be trusted.

35Mr. Chaimovitz makes reference to Page 11 of his client’s affidavit, which sets out the reasons for his client’s request for the change.

Ms. Mandel’s Submissions

36Ms. Mandel submitted to the court that firstly she did not leave the children with Mr. Miner during the summer. She allowed the children to stay with him because he made a request for extended time and Ms. Mandel considered it to be appropriate. But it was also her understanding that when the children were with him for that extended period of time he left them with a nanny.

37And providing an explanation to the court with respect to the children’s lateness at school, she stated that at the time the separation ultimately took place in March of 2014, when she left the house each party had one of the two children.

38The assault charges followed. This resulted in upset to the children. Consequently, the youngest refused to return to school. Ms. Mandel described her, along with her sister, as suffering from anxiety, which made it difficult for her to persuade them to attend school.

39She further submitted that although she tried her very best to have the children attend school and did not deliberately keep them from attending. Nevertheless she found them to be very tired from the night before after visiting with Mr. Miner and had difficulty rising in the morning. As well, she was required to travel from Burlington, where she is currently residing with her mother and step-father, to transport the children to their school in Hamilton.

40Mr. Miner, on the other hand, has the clear advantage of residing in the matrimonial home, which is only a 3-minute drive from the children’s school.

41As for the allegations made by her sister, Patricia, she submitted that those allegations are not relevant to the matter before the court. Patricia currently resides in Montreal. She described her sister as being an instigator. Although she makes these allegations against Mr. Rahim, it was Mr. Rahim who walked her down the aisle. She would spend weekends at the parents’ house after she had her children and she would visit from Montreal.

42With respect to allegations of physical abuse by her biological father, Ms. Mandel submitted that it was a matter of interpretation and understanding the culture of her family and what would appear to be physical abuse to others was merely the biological father exercising discipline.

43As for the allegations that Ms. Mandel lied about the York CAS documentation when she was before Justice Chappel, she recalled that Justice Chappel asked her if she had ever been apprehended by the Children’s Aid Society. Her response she thought was correct when she said she had not been. However, the records which were 30 years old had refreshed her memory.

44With respect to those documents provided by York Region Children’s Aid Society, there is no indication Mr. Rahim was ever interrogated or investigated about the allegations of sexual touching. The issue in fact pertaining to these documents had to do with only her mother and biological father. Moreover, the children have never been left alone in the presence of Mr. Rahim. And regarding the incident in which Mr. Chaimovitz alleged Mr. Rahim took the children to school, he was also accompanied by Ms. Mandel’s 28-year-old brother. She would never place her children in harm in the presence of anyone who would threaten their safety.

45As for Mr. Rahim’s dismissal from Mr. Miner’s employment, she submitted that it happened only after Mr. Miner had been arrested for the assault charges.

46Children at the age of 6 and 7, she submitted, have no reason to lie. This is verified by the CAS in Hamilton, Halton, and the OCL. There is no suggestion that the children were sexually touched by any of their in-laws or her parents, as verified by the OCL report.

47Mr. Miner has had other attendances before family court with his other children, and she made reference to documents back to 1982, which I believe she said she filed as exhibits.

48There is evidence of his volatile behaviour with his second wife.

49$15,000.00 alleged by Mr. Chaimovitz as being paid by Mr. Miner to assist Ms. Mandel in moving from her parents’ home went to legal fees and storage.

50She submitted that the real issue is that Mr. Miner has difficulties in supporting the children. This is why he is asking that they be in his care.

51Regarding her employment, she said she started her own cosmetic firm. The company she was working for was closed down three months ago. She is being stretched; does not have money to pay for legal services. She is self-represented.

52She reiterated she has been the children’s caregiver since birth. Mr. Miner had not been as involved in raising the children because he was busy running his business. As a matter of fact, Mr. Miner now has a nanny.

Reply by Mr. Chaimovitz

53Mr. Chaimovitz replied and reminded the court that Justice Reid’s order indicated that the children were never to be left alone with Mr. Rahim.

54Mr. Chaimovitz went on to say that she still has not addressed the concerns in her affidavit material.

55Moreover, the children are not lethargic and tired because of their time with Mr. Miner, but they are tired because the late attendance would suggest that the children were always with Ms. Mandel.

56Mr. Miner only had the children from Tuesday to Wednesday during the school week. Therefore, the fact that the children are tired and lethargic, or at least as implied by Ms. Mandel, when the children are only with his client from Tuesday over to Wednesday, “makes no sense”.

57Mr. Chaimovitz submitted that Ms. Mandel has really not given a clear explanation as to why the children are late for school.

58He felt that Ms. Martin did not provide a thorough report, having omitted materials and referrals provided to her by Mr. Miner.

59He went on to say that Ms. Mandel denied that Patricia gave a kidney to her father, and that this court should read the transcripts as well to look clearly at the exchange between Ms. Mandel and Mr. Rahim and Justice Chappel and Pazaratz, respectively.

60As for Ms. Mandel’s allegation Patricia is an instigator and a liar, Mr. Chaimovitz submitted Ms. Mandel did not provide the court with any explanation as to why Patricia would in fact be the instigator that she alleges she is.

61Moreover, Ms. Mandel has not addressed the concerns, nor has she addressed school.

62There is no proper response to the allegations, and in view of the fact the trial is not going to be held until February of 2016, that the children cannot be left in the care of Ms. Mandel any longer.

63The only stability that they will experience will be in the care of Mr. Miner.

64With regard to Ms. Mandel saying she agreed to give Mr. Miner expanded time during the summer, in Mr. Miner’s reply affidavit he said Ms. Mandel actually refused him more time because she had concerns.

65The fact that she left the children with his client indicates the children are safe in his client’s care. Can the same be said of leaving them in Ms. Mandel’s care?

Reply by Ms. Mandel on New Matters

66With respect to the kidney issue, Ms. Mandel explained that Patricia did not give her kidney directly to the father, but in fact had to give it to an anonymous donor and then the father in turn received a kidney from another person because it had to be a blood match.

67With respect to the OCL, Ms. Mandel indicated that the OCL and Ms. Martin should only be interviewing people who had direct involvement with respect to care of the children, which meant it would be Ms. Mandel, Mr. Miner, the step-mother, her mother’s step-father, and perhaps Mr. Miner’s oldest daughter.

68Ms. Mandel went on to say that other referrals were not relevant to the circumstances.

Analysis and Conclusion

69It is important for the parties to understand when the court is asked to make a temporary order without prejudice regarding custody and access prior to a trial of that very issue, any decision is not intended to suggest that the court favours one party over the other as the custodial parent of these children.

70The decision, nevertheless, must be one that is in keeping with the best interests of the children.

71I have reviewed the affidavit material provided by both parties, and what is clear to me is that the issue of violence exhibited by both parties against the other is quite prominent. I also note that the order of Justice Chappel from March 27, 2014, was based on Minutes of Settlement and not any argument on the merits.

72Access to and residence of the children has been reversed by Justice Reid’s order, which continues.

73To elaborate, the children currently reside with Mr. Miner, and Ms. Mandel has weekly visits with the children on Friday after school until Saturday to 12:00 p.m. noon and Tuesday after school until Wednesday at school. He also noted the exchange was to take place at Tim Hortons on Walkers Line.

74I find that the primary consideration for this court on this particular motion is to ensure the children’s consistent attendance at school.

75I note from a review of their school reports that they have had as much as 25 days of late attendance and the odd day they have been totally absent from school for medical reasons.

76Although I understand that such lateness began after the parties’ separation, nevertheless it creates an unnecessary stability for the children.

77The cause of the late attendance appears to be a combination of anxiety as described by Ms. Mandel and the distance Ms. Mandel must travel to transport them to school.

78Mr. Miner, on the other hand, resides in the matrimonial home and is only a 3-minute drive from the school.

79I accept Mr. Chaimovitz’s submissions that at least until trial the children will experience the most stability if they continue to reside in Mr. Miner’s home. It will also ensure their prompt attendance at school.

80However, this order is temporary and without prejudice and should not be interpreted as this court rendering custody in favour of Mr. Miner. A number of issues remain unaddressed.

81For example, although the supporting affidavits filed by Mr. Miner describe him as a caring father; this raises the question as to whether or not these affiants have witnessed the anger and violence exhibited by both Mr. Miner and Ms. Mandel.

82The affidavit of Patricia Mandel remains unchallenged, and her relationship with Mr. Rahim appears to be contrary to that relationship as described by Ms. Mandel in her affidavit. As well, the affidavit of Ms. Winnie Capriotti I find lacks context and appears to contain mostly hearsay, and therefore requires further elaboration.

83The report of the OCL recommends custody in favour of Ms. Mandel, and given that Mr. Miner has filed the dispute, the report also requires further exploration by the parties.

84However, for the above-noted reasons and without prejudice, the children will continue to reside with Mr. Miner, and Ms. Mandel will continue to exercise the access as ordered by Justice Reid until further order of the court.

85The current order for child support is temporarily terminated without prejudice.

Mazza, J.