Court File and Parties

NEWMARKET COURT FILE NO.: FC-16-52318-00 DATE: 20170320 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Shirli Drori Applicant – and – Marcio Martins Respondent

Counsel: James Herbert, Counsel for the Applicant Stephen Codas, Counsel for the Respondent

HEARD: March 15, 2017

JARVIS J.

Ruling on Motion

[1] The respondent father (“the father”) has brought a motion for a nesting arrangement involving a four-year-old child (“EM”). The applicant mother (“the mother”) opposes the motion and, by cross-motion, seeks an Order that awards her primary care of EM and limited contact between the child and his father.

[2] The mother asked in her motion for additional relief but as delivery of her material did not comply with the directions given by Kaufman J. on January 30, 2017 this court declined to deal with those matters, and proceeded to deal only with the child's parenting and residential arrangements.

[3] There is currently an assessment underway pursuant to Section 30 of the Children’s Law Reform Act R.S.O. 1990, c. C.12.

[4] The mother also sought to adjourn the motions on the basis that the assessor had advised on the day before argument that a disclosure meeting could proceed on or after March 28, 2017 subject to availability of the parties and counsel. A report, if required, would not be available for about four to six weeks after the disclosure meeting. A combined Settlement Conference/Trial Scheduling Court has been scheduled for July 6, 2017. Kaufman J. endorsed the Record at the case conference that the goal is for any trial to proceed during the November 2017 sittings.

[5] For reasons delivered in Court, the mother's adjournment request was denied. The unchallenged evidence of the parties is that the atmosphere in the matrimonial home is toxic: the well-being of EM demands the Court's intervention and direction at this time.

Background

[6] The parties were married on September 5, 2010, separated on May 25, 2016 and continue to reside in the matrimonial home with their son. He was born on March 13, 2013. The mother is a homemaker and the father is a sales manager for a local company. The couple profess different faiths: the mother is Jewish and the father is Catholic. EM has been attending a Jewish daycare for the past three years, is learning Hebrew and is reported by the daycare’s owner and operator to be “thriving in every way; academically, developmentally, and socially”.

[7] A case conference was held by Kaufman J. on January 30, 2017. The parties consented to the Order made directing the assessment. The Order also contained the following terms:

1. The child shall not be exposed to any denigration of either parent, either parent’s family or either party’s religion.
2. The parents shall instill respect for the other parent’s religion.
3. Neither parent shall video-tape or audio-tape the child unless it is for a birthday party, sporting event, religious event, school performance/event or play.

Evidence

[8] This is a high conflict case and, unsurprisingly, the parties’ evidence is contradictory, the language emotional and the allegations provocative. While each party has challenged the other’s credibility and alleged breaches by the other of the terms of Kaufman J.’s Order as noted above, determining that on an interim basis is practically impossible. There is little benefit to parsing through the various he said/she said allegations which each party has made about the other in circumstances where they were alone or when only their child was present. More helpful are the parties’ conduct and communications with each other and third parties as objectively corroborated.

[9] Appended to the father’s affidavit are texts and related communications between the parties spanning a nine month period from shortly after the parties’ separation until shortly before the parties’ motions were argued. The mother acknowledges the authenticity of these communications but asserts, without providing context, that they are unreliable and their probity should be discounted. Examples include,

(a) the day after the case conference, which the mother described to a third party as accomplishing “nothing”, the mother texted the father that “[N]o judge or lawyer can say for me it's my decision for [EM] I'm his mom…”;

(b) less than three weeks after the Order was made by Kaufman J. (paragraph 3) that “neither parent…video-tape or audio-take the child unless…” for a special occasion, the mother video-taped the child making anti-semitic statements and sent “3 videos taken while [she] was driving” to B'nai Brith (her counsel, when asked by the court, was unable to explain how this was done). This resulted in that organization contacting the mother's counsel and confirming that the mother had contacted its offices for “assistance in the on-going matter of her custody/divorce case…”;

(c) in a series of text communications between the parties, the mother described EM as “ my child” or “my son”. For example, “You’re just a selfish man who doesn't care about MY SON… Eat your heart out”. Another text (not the only one) stated “…I’m his mom moms get more rights then (sic) you”;

(e) other text messages from the mother to the father before and after she started these proceedings on November 28, 2016 involved exchanges where the mother threatened that if the father does “things without my approval I have the right to call the cops”. Or “You can't always think you can do stuff with him with out (sic) me”. One text states that the father will have “a lot of surprises coming your way this year enjoy your 36 th birthday and good luck surviving”;

(e) Jewish Child and Family Services (“JF & CS”) was involved with the family due to concerns about the child being exposed to partner violence. In light of the assessment ordered, JF & CS closed its file on or about February 10, 2017. There is no evidence as to the date when, how or by whose complaint, this agency became involved. The father said it was not him;

(f) in her affidavit the mother stated that the father had “not earned the respect” of EM. Elsewhere she stated that EM told her that “…daddy’s going to keep on playing with my head”. EM is 4 years old;

(f) a letter from EM's daycare described the mother as a loving, involved, committed and caring parent.

[10] The excerpts quoted above are but a few selected from the many appended as exhibits to the father’s affidavit. They are consistent in the accusatory and threatening tone shown by the mother and they contrast starkly with the father’s more measured and child-focused language.

[11] The father details in his evidence a claustrophobic, and toxic, atmosphere in the matrimonial home characterized by the mother's obsessive oversight of the child's time with him, and her unsupportive, in fact obstructive, attitude about the child having a relationship with him and his family. The mother denies these allegations. She states that she is being manipulated by the father to act, or react, in ways which depict her in an unflattering light. Yet, and tellingly, there is virtually no statement in her affidavit that is not accusatory of the father, or which does not demean his parenting skills.

[12] Most disturbing are the mother’s allegations that EM made to her and to her mother anti-semitic statements of an offensive, and frankly appalling, nature. The mother accuses the father and his family of being the source of the child’s statements. She says that this behaviour began in September 2016, several months after the parties separated and that these show that the father was “…using religion against me-as a method of driving a wedge between EM and me”.

[13] The father vehemently denies the mother’s allegations. Affidavits from his mother, and a paternal uncle (by marriage), and who identified himself as a practicing Hindu of Indian descent, attest to a frequency of interaction with the child and both of his parents and the absence of any suggestion of the kind of intolerant behaviour alleged by the mother.

[14] Allegations such as those made by the mother must be approached with caution in high conflict cases especially where there is no evidence of anti-Semitic behaviour by the father or any member of his family before the parties separated. There is no evidence that the father ever disagreed with the mother about EM attending a Jewish daycare or that important Jewish customs were not supported by the father and his family. The father points to the absence of any concern about the child’s behaviour and language in the February 24, 2017 letter from EM’s daycare which accompanied the mother’s affidavit (“He enters the classroom with confidence and joy”). Viewed in the context of the tone and content of the mother’s communications with the father in the months before and after September 2016 during which the mother was resisting the father’s requests for more time with “her son”, this court is not prepared to speculate as to the source of the child’s statements.

[15] Affidavits from each of the child’s grandmothers attest to their profound distress that anti-Semitic comments were heard (the maternal grandmother) or deeply offended (the paternal grandmother) that allegations of racism or of an anti-Semitic nature were being made. Both grandmothers affirmed their belief that they embrace and respect religious differences and likewise encourage those beliefs with their grandson.

[16] The husband also pointed out several occasions where the mother refused to permit EM to spend time with the father and members of his extended family or restricted contact. The mother either imposed conditions or advised that she had other plans for the child and her. Her request that the child have limited contact with the father and his family is, when viewed in the totality of evidence before the court, revealing and deeply concerning.

Law

[17] Section 16 (1), (2), (8) and (10) of the Divorce Act (R.S.C., 1985, c. 3 (2nd Supp .) provide as follows:

1. A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
2. Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
3. In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
4. 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. (emphasis added)

[18] In Reeves v. Reeves, 2001 Carswell Ont 277 both parents brought motions for interim sole custody of their children. Mossip J. observed the following (at para. 38):

…Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children … A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.” (emphasis added)

[19] Nothing in the mother’s evidence indicates any intention to support or encourage EM’s relationship with his father. Quite the opposite. Her evidence is an agglomeration of largely gratuitous, unverifiable and scandalous allegations intended to demonize the father and, by extension, his family. To be perfectly clear, the allegations of anti-Semitism made by the mother are very troubling and their source must be thoroughly investigated but the circumstances in which they have been raised and the evidentiary record to date suggest an ill-conceived strategy not mindful of the child’s best interests.

[20] This court has no confidence that the mother supports or would encourage a beneficial and meaningful relationship between the child and his father.

[21] Both of the parties’ parents reside reasonably near to the matrimonial home. The father has proposed a nesting arrangement where the parent with whom the child would not be residing could live with their parents. His employer confirms the father’s flexible work week schedule. An affidavit from the parties’ next door neighbour (since 2010) attests to the father’s attention to the child and describes both parents as “caring and loving”.

[22] The mother has stated that she has no alternative accommodation, that she “cannot just live with my mother anytime I feel like as [the father] suggests”. There is no evidence that the mother could not be accommodated at her mother’s residence. The maternal grandmother’s affidavit is silent on that issue. In addition, the mother’s claim that the father is unable to care for EM because he relies on his mother for assistance is disingenuous in light of the maternal grandmother’s evidence about her involvement in EM’s care (“I have been a heavily involved grandparent…I have helped [the mother] raise EM”).

Disposition

[23] It is unchallenged that both parents love EM. Each has told the court that they are dedicated to his well-being. The court expects nothing less than a co-ordinated child-focused plan for this child and will carefully scrutinize conduct which does not promote the child’s healthy relationship with both parents.

[24] The father has proposed a schedule that separates the parties, allows each of them to care for the child and respects each parent’s religious affiliation. EM can only benefit from an arrangement which will give him meaningful time with each parent in familiar and less conflictual surroundings.

[25] Accordingly, the relief sought by the father in paragraphs 1 and 2 of his Notice of Motion dated February 22, 2017 is granted, effective Tuesday, March 21, 2017 (Week 1). The parent not caring for the child shall forthwith vacate the matrimonial home upon the attendance of the scheduled nesting parent. The relief requested by the mother in paragraphs 1 (d) to (h) of her affidavit sworn March 3, 2017 is adjourned to a date to be agreed by counsel with the court offices and properly accompanied by a Notice of Motion.

[26] Of concern to the court is the mother’s breach of the Order of Kaufman J. about video-taping. Court Orders are not suggestions; there must be consequences to Order non-compliance, especially in circumstances where the welfare of a child is involved. Although the father has not requested an Order that the mother be found in contempt, this court cannot ignore her conduct. The Order now made shall also include a provision that the issue whether the mother should be found in contempt of the Order of Kaufman J. will be referred to him for directions at the combined settlement/trial scheduling conference on July 6, 2017. By that time the assessor’s report should be completed.

[27] Any issue related to implementation of the terms of this Order shall be brought to my attention on six days’ notice to the other party by way of 14B Motion.

[28] Leave is granted to the mother to file the affidavit of Marion Fraser sworn March 14, 2017 in the Continuing Record. Counsel are directed to review with the court filing office the contents of, and index to, the Continuing Record as some confusion was experienced when references to the Record were made during argument.

[29] The parties are also reminded that compliance with all Settlement Conference rules will be expected.

[30] If the parties are unable to resolve the issue of costs then they shall file on or before March 31, 2017 in the Continuing Record their submissions as to costs limited to three double-spaced pages. Any offer to settle, bills of costs and authorities upon which either party may be relying shall be filed by that date as well, although not form part of the Continuing Record.

Justice D.A. Jarvis Date: March 20, 2017