Court File and Parties
COURT FILE NO.: FC-17-1415 DATE: 2018/08/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mohamad A. Sharaf, Applicant -and- Razan Abdul Zahab, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Ceilidh Henderson, Counsel for the Applicant Meagan LePage, Counsel for the Respondent
HEARD: July 17, 2018
ENDORSEMENT
[1] This is a motion by the Applicant seeking interim unsupervised access to the parties’ child, now age 5. The Respondent brought a cross-motion seeking the Applicant’s interim access to continue to be supervised at the Supervised Access Centre or, in the alternative, for the Applicant’s access to take place in a public place, at a local shopping mall, and for an Order requesting the involvement of the Children’s Lawyer.
[2] The parties were able to reach an agreement with respect to some portions of their motions and consented to a temporary order providing that neither party would travel with the child outside of Canada, neither party would relocate the child’s residence outside of Ottawa without the consent of the other party or court Order, and for police enforcement. That consent Order was signed by me on July 17, 2018.
[3] The remaining issue is the Applicant’s request for access and whether such access should be supervised, or be required to take place in public.
[4] For the reasons set out below, I order that the Applicant’s interim access be unsupervised and request the involvement of the Children’s Lawyer.
Facts
[5] The parties were married on April 25, 2011. They separated on November 6, 2014. They have one child, now age 5.
[6] After the parties separated, the child primarily resided with the Respondent with liberal access to the Applicant. The exact frequency and duration of access is unclear. The Applicant states that he did not have any problems “seeing” the child whenever he “was available to parent” and that he “saw” the child “at least every two days”. The Respondent argues that the Applicant’s access was on average once per week. The evidence does support, however, that the Applicant’s access included overnight access, given that both parties agree the child was in the Applicant’s care for a period of five days in December of 2016, while the Respondent travelled outside of the country.
[7] In December of 2016, upon the Respondent’s return, she notified the authorities that she had concerns that the Applicant had behaved inappropriately towards the child. On December 30, 2016, the Children’s Aid Society (“CAS”), jointly with the police, commenced an investigation into these concerns.
[8] Given the investigation, the Applicant’s access was suspended.
[9] The investigation included a review of a number of videotapes made by the Respondent of her interview of the child, separate interviews of the parties and the child conducted by the CAS and police, and a medical examination at the Children’s Hospital of Eastern Ontario.
[10] The investigation concluded on February 24, 2017. The Respondent’s concerns were not verified by the CAS and police. On February 24, 2017, the CAS notified the parties that it did not have any concerns about the safety of the child while in the Applicant’s care.
[11] Despite this conclusion, the Respondent refused to reinstate the Applicant’s access. The Applicant commenced this Application in July of 2017.
[12] On November 22, 2017, the parties consented to a temporary without prejudice order that provided for the Applicant to have supervised access through the Supervised Access Centre. The Respondent insisted on supervised access through the Supervised Access Centre. She refused to agree to alternate supervisors, who would have been able to provide more extensive access, without the delays incumbent in waiting for availability at the Supervised Access Centre.
[13] The Applicant states that the Respondent delayed in applying to the Supervised Access Centre, which the Respondent denies, which lead to further delays. The Applicant’s access was not reinstated until February 25, 2018. Since that time, the Applicant has had supervised access every second Sunday from 2 to 4 pm with some exceptions.
Positions of the Parties
[14] The Applicant seeks interim unsupervised access every Saturday from 1 p.m. to 8 p.m., and every Wednesday and Friday night from 6 p.m. until 8:30 p.m., and that this access be increased after 30 days to include Friday overnights with a return on Saturday at 6 p.m. He argues that this level of access is needed to allow him to heal his relationship with the child, which has been unfairly interrupted since December 30, 2016. He states he was an involved parent since the child’s birth, and that it is in the child’s best interests for his access to be unsupervised and increased in frequency
[15] The Applicant’s position is that the Respondent has made false accusations against him, has been uncooperative and unreasonable throughout this matter, and is attempting to limit and restrict his involvement in the child’s life.
[16] The Applicant does not take a position with respect to the involvement of the Children’s Lawyer except that he does not want this involvement to cause a further delay in the reinstatement of his unsupervised access.
[17] The Applicant proposes that he do the transportation for access pick-ups and drop-offs. He proposes these take place at the main door of the Respondent’s apartment building, which has been his practice when he needs to pick-up or drop-off items relating to the child. The Respondent did not identify any concerns with this arrangement, other than her objections to such access in the first place.
[18] The Respondent admits that the Applicant had liberal access during the period from November 2014 to the end of 2016. She states that she was always the primary caregiver and that the Applicant was abusive towards her during their relationship. She wants access to continue to be supervised by the Supervised Access Centre pending an investigation by the Children’s Lawyer. In the alternative, the Respondent wants access to take place in a public place. The Respondent argues that this is the only way to ensure the child’s safety while the Children’s Lawyer investigates the matter.
[19] The Respondent does not explain why she has delayed seeking the involvement of the Children’s Lawyer, given that the CAS and police investigation into her concerns concluded over 15 months ago.
[20] The Respondent also argues that the notes from the supervised access show that the child is excited to see the Applicant because he is effectively bribing her with various treats, and she questions his commitment to access because he has been late for a few visits, missed one visit, and brought members of his family to visits.
[21] I do not agree with the Respondent’s conclusions with respect to the supervised access. The supervised access notes, attached as an Exhibit to the Respondent’s affidavit, record that the child is excited and happy to see the Applicant. With respect to the Applicant’s attendance at access, the Applicant has provided reasonable explanations. Given the significant legal battle that the Applicant has had to engage in to have access reinstated, I do not find that the supervised access notes support a finding that the Applicant lacks commitment to the child.
[22] The Respondent denies orchestrating the events that lead to the December 30, 2016 investigation that resulted in the suspension of the Applicant’s access. The Respondent denies the motivations attributed to her by the Applicant, which is that she wanted to return to Syria, and orchestrated these allegations when the Applicant refused to allow her to do so.
[23] The Respondent also argues that, since February 25, 2018, the Applicant has had supervised access pursuant to the Order of J. Hurley dated November 22, 2017, which should be considered the status quo and that this status quo should remain in place pending the completion of an investigation by the Children’s Lawyer.
Analysis and Disposition
[24] This is a matter that would benefit from the involvement of the Children’s Lawyer, by way of a clinician’s report, given each parties’ concerns about the others’ conduct. Accordingly, this Court makes an Order referring this matter to the Children’s Lawyer.
[25] The issue is then what interim access should be in place pending a final determination of this matter. On interim custody and access motions, the best interests of the child govern. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the child require a change.
[26] With respect to the status quo, I accept the statements from Batsinda v. Batsinda, 2013 ONSC 7869 (Ont. S.C.J.), affirmed in Balke v. O’Connor, 2017 ONSC 2491 (Ont.S.C.J.), as accurate statements of the law:
[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 1986 6303 (ON SC), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1999 35009 (ON SC), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]
[27] In these circumstances, I do not consider the “status quo” to be the restrictive supervised access regime in place since the CAS and police investigation at the end of December of 2016 and modified by the without prejudice Order of J. Hurley dated November 22, 2017. That Order was made at the first case conference in this matter. The case conference is a required first step in a family court proceeding before a party can bring a motion. The Applicant then proceeded to schedule this motion, by way of a Notice of Motion dated February 15, 2018, and initially scheduled to be heard on April 5, 2018, but adjourned to July 17, 2018. Aside from the fact that the November 22, 2017 Order is without prejudice, the Applicant consented to that Order in the context of it being the only way for him to obtain any access to the child, given that the Respondent was not agreeable to any other form of access. The Respondent cannot create a new status quo due to an investigation by authorities followed by her refusal to reinstate unsupervised access once that investigation was completed without any concerns about the child’s safety in the Applicant’s care.
[28] I do not think it is material, in the above analysis, what level of orchestration the Respondent had, or did not have, in the December 30, 2016 investigation. This may, or may not, be determined at a later date. What is important is the status quo that existed prior to the December 30, 2016 investigation, that the investigation concluded with the CAS taking the position that it did not have any safety concerns for the child in the Applicant’s care, and that I am not persuaded by any other evidence before me that there is material evidence that supports the need, based on the child’s best interests, for the Applicant’s access to be supervised or take place in public.
[29] The Applicant’s relationship with the child has been significantly disrupted since December 30, 2016 and I find that a period of reintroduction is warranted and in the child’s best interests. I therefore order that, effective immediately, the Applicant have interim unsupervised access every Saturday from 1 p.m. to 8 p.m., and every Wednesday and Friday night from 6 p.m. until 8:30 p.m. After 30 days, the Applicant’s access shall be increased to include Friday overnights, such that his access would then be every Wednesday from 6 p.m. until 8:30 p.m., and every Friday from 6 p.m. to Saturday at 6 p.m.
[30] The Applicant advised that he is currently paying child support to the Respondent in the amount of $233 per month, due to an increase in his annual income to $27,759. The Respondent agrees to this amount on a without prejudice basis, as she states she has not yet had an opportunity to review the Applicant’s financial disclosure. On the consent of the parties, on an interim without prejudice basis, I order that the monthly amount of child support payable by the Applicant to the Respondent, pursuant to the Order of J. Hurley dated November 22, 2017, is increased to $233 per month effective June 15, 2018.
[31] At the hearing of the motion, there was also a discussion regarding the disclosure of the videotape recordings made by the Respondent. On consent, the Respondent shall produce to the Applicant, through counsel, copies of all of the videotapes that she made of the child relating to the December 30, 2016 investigation, within 30 days.
Orders
[32] I therefore make the following orders:
The Court requests the involvement of the Children’s Lawyer in this matter, pursuant to s.112 of the Courts of Justice Act;
Effective immediately, the Applicant shall have interim unsupervised access every Saturday from 1 p.m. to 8 p.m., and every Wednesday and Friday night from 6 p.m. until 8:30 p.m. After 30 days, the Applicant’s access shall be increased to include Friday overnights, such that his access would then be every Wednesday from 6 p.m. until 8:30 p.m., and every Friday from 6 p.m. to Saturday at 6 p.m. Pick-ups and drop-offs for access shall be done by the Applicant and shall take place at the front door of the Respondent’s apartment building, unless otherwise agreed in writing, email or text.
On consent, effective June 15, 2018, and continuing on the 15th day of each month that follows, the monthly amount of interim child support payable by the Applicant to the Respondent, pursuant to the Order of J. Hurley, dated November 22, 2017, is increased, on an interim without prejudice basis, to $233 per month, based on the Applicant’s income having increased to $27,759 per year.
On consent, the Respondent shall produce to the Applicant, through counsel, copies of all of the videotapes that she made of the child relating to the December 30, 2016 investigation, within 30 days.
The Applicant may serve and file submissions with respect to costs on or before August 17, 2018. The Respondent may serve and file her submissions with respect to costs on or before August 24, 2018. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4 of the Rules of Civil Procedure.
COURT FILE NO.: FC-17-1415 DATE: 2018/08/09
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Mohamad A. Sharaf, Applicant -and- Razan Abdul Zahab, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Ceilidh Henderson, Counsel for the Applicant Meagan LePage, Counsel for the Respondent
ENDORSEMENT
Justice P. MacEachern
Released: August 9, 2018