Court File and Parties

COURT FILE NO.: FS-16-303-00 DATE: 2019-03-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

R.J. Andrew Sudano, for the Applicant Applicant

- and -

S.D. Ian D. Kilgour, for the Respondent Respondent

HEARD: March 14, 2019, at Brampton, Ontario Price J.

Reasons For Order

NATURE OF MOTION

[1] S.D. moves, pursuant to Rule 16 of the Family Law Rules , for summary judgment granting him sole custody of the two children of the marriage, who are now 15 and 17 years old, respectively, and for the children’s mother, R.J.’s access to the children to be in accordance with their wishes.

BACKGROUND FACTS

[2] S.D. is 55 years old; R.J. is 38. S.D. was born in India; R.J. was born in Somalia. They were married in Dubai, in the United Arab Emirates (“UAE”) in 2001. They have two children, A.D., who is now 17 (born […], 2002), and F.D., who will be 16 in three months (born […], 2003).

[3] Under UAE law, R.J. was considered an Arab National; S.D. was not. Non-Arabs like S.D. were forbidden from owning property or a business in that country. S.D. and R.J. opened a commercial security business together in Dubai. S.D. was the general manager. He had extensive experience in that area and was a former captain in the Indian Army. However, he was not an Arab and so R.J. was the sole signing officer for the business.

[4] The family business, known as B[…], was an unincorporated business with 800 employees and profits of approximately $450,000.00 per year. S.D. and R.J. had a three bedroom apartment, three cars, and S.D. earned approximately $20,000.00 per month ($240,000 per year) tax free.

[5] S.D. and R.J. travelled throughout the region and stayed in 5 star hotels. However, they would never be allowed to become citizens of the UAE. They developed a plan to leave Dubai and expand their business to Canada.

[6] Then, in 2008, after S.D. and R.J. had made their travel arrangments for moving to Canada, R.J. collapsed at a school function in Dubai. She was taken to hospital where it was determined that blood flow to her brain had been cut off. The sudden change in R.J.’s condition turned the family’s life upside down.

[7] R.J. was to be hospitalized for six months, but as the family had made prior travel arrangements to Canada, the doctor released her after three months and gave her medications for a further three months.

[8] S.D. and R.J. came to Canada in 2010, when A.D. was 8 years old and F.D. was 7. R.J. was taking her medications in Dubai and brought them with her when the family came to Canada. Unfortunately, R.J. had difficulty getting a psychiatric appointment in Ontario and her prescriptions ran out. On October 17, 2010, one week before she was to meet with an Ontario psychiatrist, R.J. stabbed her son, A.D., in the neck with a kitchen knife. S.D. dialed 911 for an ambulance, but police also arrived and arrested R.J.

[9] R.J. was charged with aggravated assault and was taken into custody. She remained in jail for several weeks, and later spent 2 ½ weeks in the Milton General Hospital, where she became acutely psychotic and was treated with antipsychotic medication for schizophrenia. She was later released on bail with provisions that she have no contact with her family.

[10] During R.J.’s probation, she was allowed to go to Dubai for several months. The family’s visas would expire if they did not return every six months for at least one day. R.J. did not believe that she suffered from a mental illness and was not compliant with the medications she was prescribed. Her condition deteriorated. In the UAE, she was diagnosed as suffering from Bipolar Disorder with Catatonic symptoms.

[11] A letter dated November 3, 2010, from Dr. Talaat Matar, a Consultant Psychiatrist at Obaid-Alla Hospital RAK states that R.J., who was referred to Dr. Matar by her physician in the medical ward, was completely mute, immobile, with a staring look, and refusing to eat. She was given Midazolam and began to respond. Transient response occurred and she was given some food. The procedure was repeated several times, just to feed her and give her medications, including Olanzapine and Valium. She began to improve gradually. She showed some paranoid ideation and following administration of Rispiridal, she improved significantly. She was discharged with prescriptions for Olanzapine (10 mg), Rispiridal (2 mg) and Valium (2 mg) was given an appointment for follow up at the Hospital Clinic, but was never seen after discharge. She was diagnosed by her doctor as a case of Pulseless Syndrome “Takayasu Disease”. Dr. Matar believed her to be suffering from Bipolar Disorder with Catatonic symptoms.

[12] Peel Children’s Aid Society undertook a child protection investigation concerning the family. In a letter dated December 8, 2010, the Intake Supervisor of the Agency, Heather Paterson, wrote a letter to S.D., co-signed by the Intake Worker, Denise Redhead, in which they stated that the CAS had concluded its investigation and had verified the information, which indicated that A.D. had been inappropriately disciplined and harmed by his mother due to a mental health condition. The letter continued,

The file has been closed because you are being protective and supportive of your children, and there are no child protection concerns at this time….

It is the Society’s undertstanding that [R.J.] is not to have any contact with her children at this time due to a court order. Should she be granted access to see her children, an assessment will take place from the Society at that time. The Society is requesting that you contact us should [R.J.] be given access to F.D. and A.D. again. At this time, however, there will be no further involvement with the Society and your family.

[13] The charge against R.J. proceeded to trial before Justice Gage of the Ontario Court of Justice, who found her guilty of Assault Causing Bodily Harm. On September 6, 2011, the Court placed R.J. on probation and made a Weapons Prohibition Order against her.

[14] During R.J.’s probation, she was allowed to go to Dubai for several months. She was prohibited from going to S.D.’s and the children’s residence but after approximately a year, her probation was varied and she was allowed to return home. S.D. supported her efforts to vary her probation.

[15] R.J. was reunited with her family and moved into their condominium apartment. While R.J. was in custody, S.D. had bought the condominium in Mississauga. As a result of R.J.’s circumstances at the time, the apartment was registered in his name alone.

[16] It was a source of arguments between R.J. and S.D. that the condominium was in S.D.’s name. R.J. told S.D. that she wanted a house and wanted it in both their names. The family bought a house in Brampton that R.J. selected but it was more costly than the family could afford, which caused additional stress on the family.

[17] In December 2012, R.J. became violent again. She destroyed some family belongings and threatened the family. She called the Peel Police and told them that A.D. had threatened to kill her and was possessed by the devil. The police attended and advised S.D. to apply to the court to have R.J. detained under the Mental Health Act. He did so and she was detained on December 12, 2012.

[18] On January 25, 2013, R.J. was discharged from Brampton Civic Hostpital with a Community Treatment Plan. The Plan provided that Dr. T.K. Banik or his delegate would be responsible for her general supervision and monitoring for the next six months. R.J. was to take medications prescribed by Dr. Banik or his delegate, which would include an injectable long-acting anti-psychotic medication, Paliperidone Palmitate (Invega Sustenna) 100 mg to be given every four weeks, and an oral anti-psychotic medication, Olanzepine (Zyprexa) 10 mg nightly. S.D. was to notify the Case Manager or his delegate if he became aware of non-compliance by R.J. with the medications.

[19] On January 25, 2013, Dr. Banik prepared a Mental Health Final Summary. It stated that:

(a) R.J. had a past history of psychiatric treatment for schizophrenia;

(b) She apparently had not been taking her prescribed psychotropic medication for a number of months;

(c) For over a week prior to her admission, she had become quite disturbed at home with disorganized thoughts, scattered and fragmented ideas, screaming and yelling, running up and down the stairs, having severe insomnia, talking to herself, and being paranoid about the family, symptoms similar to those which had led to her hospitalization in Dubai and at the Milton General Hospital in Ontario.

(d) During her stay in the Milton General Hospital in October 2010, R.J. had been treated on an involuntary basis. She had appealed her Form 3 and Form 33. The Consent and Capacity Board upheld the involuntary status and her incapacity to consent to treatment. Her husband, S.D., was named her substitute decision maker.

(e) R.J. was guarded, evasive, and superficial most of the time. She would not discuss her previous treatment or her non-compliance with her medication. She denied any symptoms suggestive of delusions or hallucinations. Her insight remained poor.

[20] On February 13, 2013, Dr. Banik noted in R.J.’s Mental Health Progress Report that she had attended her first outpatient appointment after her discharge from Hospital on January 25, 2013. She reported feeling better and, according to Dr. Banik, was reluctant to take medications. He wrote, “She does not have the understanding that she has to continue with the treatment as prescribed.” Dr. Banik advised that R.J. “will continue with Invega Susteena 100 mg every 4 weeks and Zyprexa 10 ms h.s. Her next appointment is on March 14 at 4:45 p.m.”

[21] Dr. Banik told R.J. that she had to take her medications, but after two injections, she refused further treatment. S.D. informed her that he had to call the hospital and Peel CAS because of her non-compliance. She then left the home and moved to her aunt’s house. S.D. and the children visited her there three or four times a year, but she would not move back to their house because she was unwilling to take her medication.

[22] S.D. and R.J. separated in November 2013. From then until December 2015, R.J. visited the children at S.D.’s home, which was approved by the Peel Children’s Aid Society. S.D. last saw R.J. on December 30, 2015, when the Brampton house in which he and the children were living was sold under power of sale and they moved to their present apartment.

[23] R.J. began the present proceeding on December 12, 2016, by an Application in which she claimed custody of, or access to, the children, child support, spousal support, and equalization of net family property. She also sought an Order for involvement of the Office of the Children’s Lawyer.

[24] On the same date, R.J. made a motion without notice, and prior to a Case Conference, to remove Andrew Sudano as her counsel of record and for an Order pursuant to Rule 2(1) of the Family Law Rules designating R.J. a special party and an Order, pursuant to Rule 4(2) and 4(3) of the Family Law Rules, appointing the Public Guardian and Trustee as her legal representative.

[25] In a supporting affidavit, Mr. Sudano stated that R.J. had advised him that she had not been followed by a doctor after her appointments at Brampton Civic Hospital on February 14 and March 14, 2013, and was not taking any medication. R.J. refused to sign further authorizations allowing him to obtain her records from the Peel Children’s Aid Society, and Mr. Sudano questioned whether she could understand and instruct counsel. He stated that she exhibited some of the symptoms described by Dr. Banik in his 2013 final discharge summary report, including disorganized thoughts, scattered and fragmented ideas, and an overall evasiveness regarding any questions with respect to her mental health.

[26] On February 7, 2017, Justice Trimble directed that R.J.’s motion be served on S.D. After being served on him, the motion was returned on March 7, 2017, before Justice Bloom, who declared R.J. a special party and appointed the Public Guardian and Trustee to act on her behalf. Mr. Sudano continued to represent R.J. personally in relation to the custody and access issues and, on behalf of the Public Guardian and Trustee, undertook representation of her as a special party on the financial issues.

[27] At a Case Conference on October 11, 2017, this Court made a request for involvement of the Office of the Children’s Lawyer to conduct a clinical investigation pursuant to s. 112 of the Courts of Justice Act. Additionally, it ordered that the parties exchange financial disclosure and then return for a further Case Conference.

[28] At the next Case Conference on June 1, 2018, it was evident that R.J.’s mental illness was impeding the Public Guardian and Trustee from obtaining the financial disclosure that R.J. was ordered to provide. Both counsel were of the view that the custody and access issues needed to be resolved before the support issues could be determined. They and the Children’s Lawyer believed that the custody and access issues could best be resolved by a motion for summary judgment.

[29] The Court granted the Children’s Lawyer leave to bring a motion for summary judgment on the custody/access issues, and granted the Public Guardian and Trustee leave to submit a Form 14A Affidavit from an informed person in place of a form 13.1 Financial Statement and Net Family Property Statement from R.J. personally.

[30] At a Settlement Conference on July 11, 2018, Justice Baltman noted that Mr. Sudano thought he would be unable to get instructions from R.J. regarding the custody and access issues and, in any event, was not opposing the OCL’s recommendation that S.D. have custody and that R.J. have access in accordance with the children’s wishes.

[31] A further Settlement Conference took place on January 18, 2019. On that date, counsel agreed that S.D. would bring the motion for summary judgment for custody of the children, and that the Children’s Lawyer would submit an affidavit in the nature of a “Voice of the Child Report” concerning the views and preferences of the children, who are now 15 and 17 years old. They expressed the hope that once the custody/access issues were resolved, the parties would be able to agree on the resolution of the financial issues.

[32] Counsel for all parties confirmed that they were content with my hearing the proposed motion for summary judgment, after presiding at the second settlement conference. The Court therefore gave directions regarding the bringing of the motion today, to be followed by a further Settlement Conference on the financial issues. The Children’s Lawyer was granted leave to submit its evidence on the motion by affidavit.

ISSUES

[33] This motion raises the following issues:

a) Is this an appropriate case for the court to entertain a motion for summary judgment on the custody and access issues?

b) If so, what order regarding custody and access is in the children’s best interests?

POSITIONS OF THE PARTIES

[34] S.D. submits that this is a proper case for the court to grant summary judgment on the issues of custody of the children and access to them. He submits that it is in the children’s best interests that he be granted sole custody of them and that R.J. be granted access in accordance with the children’s wishes.

[35] The Children’s Lawyer recommends that S.D. be granted sole custody and that R.J. have access in accordance with the children’s wishes.

[36] R.J. seeks sole custody and primary residence of the children herself. She seeks an Order that S.D. have parenting time with the children at her discretion and in accordance with the children’s wishes.

ANALYSIS AND EVIDENCE

a) Is summary judgment appropriate?

(i) General principles applying to motions for summary judgment

[37] Rule 16(1) of the Family Law Rules (“FLR”) provides that ether party may bring a motion for summary judgment for a final order without the requirement of a trial. Such a motion can be brought on all or part of any claim made, or defence presented, in the case. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence. [1]

[38] In McSkimming v. Schmuck, 2018 ONSC 4067, (2018), this Court noted that the principles applicable to summary judgment in the civil context are “equally” applicable to summary judgment motions brought under Rule 16 of the Family Law Rules. [2]

[39] In Mattina v. Mattina, 2018 ONCA 641, (2018), the motions judge granted summary judgment regarding custody and access. The decision was appealed to the Court of Appeal for Ontario, which stated the following about the appropriateness of summary judgment in the family law context:

[11] Appropriateness of summary judgment

Rule 16 of the Family Law Rules provides for the summary judgment procedure to be available to the parties and the court in any case other than divorce. The court may make a final order “if there is no genuine issue requiring a trial of a claim or defence”. In response to questions by the motions judge, counsel for both parties were firm in their position that the record contained sufficient evidence to determine the issues by summary judgment. The motions judge was satisfied that the record permitted him to make a final order with respect to the children’s custody and access. There was no requirement to allow the s. 30 assessor to give viva voce evidence, as the father contends. The motions judge reasonably concluded that he required no further clarification or elaboration of her report. The motion judge’s decision to proceed by way of summary judgment is owed deference and I would not interfere with it in the circumstances: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81 [Emphasis added] [3]

[40] The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot succeed, even if granted the right to a full trial. Among the terms used to describe the test are the following:

• "no chance of success", or
• "plain and obvious that the action cannot succeed", or
• "manifestly devoid of merit" [4], or
• “the outcome is a foregone conclusion” [5], or
• no realistic possibility of an outcome other than that sought by the applicant. [6]

[41] The party moving for summary judgment is required to serve an affidavit or other evidence setting out facts showing that there is no genuine issue requiring a trial. [7] Each party to the motion is obliged to “’put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried”. [8]

[42] The onus of proving that there is no genuine issue for trial rests with the moving party. However, in response to that evidence, the responding party may not rest on mere allegations or denials, but must set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. [9] In the oft-repeated maxim of Justice Coulter Osborne of the Court of Appeal, the responding party to a motion for summary judgment must “lead trump or risk losing”. [10]

[43] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. [11] subrule 16 (6) of the Family Law Rules is mandatory when it states:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[44] If the only genuine issue is a question of law, the court must decide the issue and make a final order accordingly. [12]

[45] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute. It may further state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate. [13]

[46] In determining whether there is a genuine issue for trial, the court considers the evidence submitted by the parties. In addition, it may use its expanded powers under subrule 16 (6.1) of the Family Law Rules, which reads:

Powers

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[47] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial. [14]

[48] In Hryniak v. Mauldin, [15] the Supreme Court of Canada set out the process to be followed in applying the corresponding civil summary judgment rules:

1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court’s expanded powers.
2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.
3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [16]

[49] In keeping with the principles set out in Hryniak, the court must also consider subrules 2(2) to 2(5) of the Family Law Rules to ensure that a case is dealt with justly. It does so by ensuring that the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways appropriate to its importance and complexity.

[50] As noted above, the principles governing summary judgment under the Rules of Civil Procedure also apply to such motions under Rule 16 of the Family Law Rules. [17] As Emery J. stated in Afolabi v. Fala, 2014 ONSC 1713, [18] reflecting on the application of the Hryniak principles to family law before the expansion of judicial powers under Rule 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[51] Whereas the Court of Appeal, in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [19] held that a motion judge should not grant a motion for summary judgment unless satisfied that it had a “full appreciation” of the facts, that decision was overturned by the SCC in Hryniak. The SCC replaced the “full appreciation” test with a three part test of whether the summary judgment motion should be heard. Justice Karakatsanis, on behalf of the Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [20] (Emphasis added)

[52] Karakatsanis J. called for summary judgment rules to be interpreted broadly, “… favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” [21] Considering the broad interpretation of summary judgment rules called for in Hryniak, and the need for summary disposition in appropriate family law cases described by Emery J. Afolabi v. Fala, the principle set out in Kings Loft I Ltd. v. Emmons is particularly apposite for Rule 16 motions.

[53] Accordingly, the court may grant summary judgment in the following circumstances:

1. Where the parties agree;
2. Where the claim is without merit;
3. Where the motions judge is able to dispose of the matter and where the trial process is not required in the “interest of justice.” [22]

[Emphasis added]

[54] Justice Karakatsanis held that the judge hearing a summary judgment motion must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial. The judge must determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.) [23] (Emphasis added)

[55] Based on the guidelines set out in Hryniak v. Mauldin, I must first determine, based on the evidence before me, and without using the full fact-finding powers of the court, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure. If there is no genuine issue requiring a trial, I must grant summary judgment. [24]

[56] If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the court’s powers to hear further evidence at the hearing, provided their use will not be contrary to the interests of justice. The use of those powers must lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. [25]

b) Partial summary judgment

[57] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, (2017), the Court of Appeal gave helpful guidance for motions for partial summary judgment. After reviewing the jurisprudence, the Court stated:

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29]… In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial, therefore increasing the danger of inconsistent findings.

[34] … A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. [26]

[Emphasis added]

[58] In the present case, I find that the motion for summary judgment is appropriate for the following reasons:

(a) There is little risk of duplicative or inconsistent findings at trial. The facts pertaining to custody and access are not seriously disputed and do not overlap in any significant way with the facts that will determine the financial issues.

(b) The present motion will not delay the resolution of the main action. A trial of all of the issue in the case would require more than four days. In Central West Region, the earliest that a trial of that length can occur is now January 2020. The present motion will not prevent the balance of the issues from being tried at that sittings of the Court, or earlier.

(c) The present motion will not be very expensive. The Court, in its endorsement dated January 18, 2019, permitted the Children’s Lawyer to submit its evidence by affidavit, and dispensed with factums and Briefs of Authorities.

(d) The reasons for the Court’s determination of this motion will be only as comprehensive as are needed to address the discrete issues of custody and access and will not duplicate the analysis required for the remaining financial issues.

(e) The record available at trial, insofar as custody and access are concerned, would not be significantly greater than the record for this motion, as R.J. effectively ceased exercising access to the children in 2015, the children’s circumstances have been relatively stable since then, and R.J. is likely to be unable, in the foreseeable future, by reason of her condition, to add significantly to the evidence concerning her own capacity to parent the children.

[59] For the foregoing reasons, I find this to be a case in which the issues of custody and access can be readily bifurcated from the financial issues that will remain for determination at trial, and that the issues of custody and access can be dealt with most expeditiously and in the most cost effective manner in this motion.

c) General principles applying to custody and access

[60] “Custody” refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young, “the custody parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health, and well-being of the child.” [27]

[61] The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (“CLRA”). [28]

[62] The Supreme Court of Canada in Young v. Young and Gordon v. Goertz, 1996 SCC 191 (1996) held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child. [29]

[63] Under Section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare. [30]

[64] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) The love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) The child’s views and preferences, if they can reasonably be ascertained; (c) The length of time the child has lived in a stable home environment; (d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) The permanence and stability of the family unit with which it is proposed that the child will live; (g) The ability of each person applying for custody of or access to the child to act as a parent; and (h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and Abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child. [31]

d) Applying the legal principles to the facts of this case

[65] I will review the evidence in relation to each of the above-mentioned factors, insofar as they are relevant to custody of A.D. and F.D. and access of the parties to them.

(a) Love, affection, and emotional ties

[66] Ms. Patel, in her affidavit dated July 30, 2018, stated that when she observed S.D. with the children on March 16, 2018, both children appeared to be comfortable with S.D. and to have a good relationship with him. Ms. Patel states that A.D. described his father as “a cool dad and supportive.”

[67] Ms. Patel states that A.D. told her that he does not like recalling the time his mother cut him with a knife. He said he recalls being scared and that when he was seeing his mother he felt on guard and worried that something weird would happen. He stated that he last saw his mother about two years ago. He had received an e-mail from her in the past but chose not to reply “because it was awkward.”

[68] F.D. described her father as always nice, helpful, chill with school, funny, kind, huggable and comforting. She said she turns to her Dad when she is sad.

[69] F.D. advised Ms. Patel that when her mother lived at home, she would stay in her room all day, would criticize what they wore, took their clothes away, would sleep for long periods, would often not speak to her or her brother, and only made food for herself. F.D. recalled being afraid to go into her room. She stated that her father took care of them.

[70] F.D. recalled her mother cutting her brother’s throat with a knife. She stated that she knows her Mom has a mental illness, schizophrenia, but that her mother does not want help. She stated that she thinks this is sad. She stated that she has had some e-mail contact with her mother but that it was very infrequent, the last time being June or July of 2017.

(b) Facilitating contact with the other parent

[71] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must 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”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests. [32]

[72] As for how the parties should share parenting of A.D. and F.D., I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act. [33] Justice McLachlin, speaking for the majority of the Court, said:

... s. 16(10) provides that in making an order, 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." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, " Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children ", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18). [34]

[73] S.D. has fostered a positive relationship between R.J. and the children to the extent possible. R.J.’s access to the children had to be supervised. In December 2010, after R.J. was charged with assaulting A.D., the Peel CAS had directed that they be contacted if R.J. was granted access to the children.

[74] S.D. supported R.J.’s efforts to have her probation varied in 2012 to permit her to return to the home where S.D. and the children resided. On December 12, 2012, R.J. was again detained under the Mental Health Act following her call to the police after threatening the family and destroying property in their home.

[75] Following the parties’ separation in November 2013, he saw to it that R.J. was able to visit the children three or four times a year and they went to her aunt’s home, where R.J. was living, approximately ten times.

[76] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so. [35] In making this determination, I have had regard to R.J.’s past violence toward A.D., and her threats to the family, which have been extremely damaging to the children and have reasonably caused them to be fearful of her. I also have had regard to R.J.’s continued non-compliance with the treatment and medication that would help control her symptoms and lessen the threats they pose to the children’s well-being.

[77] S.D. states in his affidavit that if R.J. is to have access to the children it must be supervised and only if she can provide proof of taking her long term injectable anti-psychotic medication. I agree with this assessment.

(c) The children’s views and preferences

[78] A.D. and F.D. have expressed their own views and preferences as to how much time they wish to spend with each of their parents. Their views were reported by Fawzia Patel, a social worker whom the Office of the Children’s Lawyer assigned to assist counsel for the children, Margarida Pacheco.

[79] In her affidavit sworn July 30, 2018, Ms. Patel reports that she observed S.D. with the children on March 16, 2018. Both children appeared to be comfortable with S.D. and to have a good relationship with him.

[80] A.D. told Ms. Patel that he was doing okay with his Dad and would like to continue to live with him. He stated that he would like his Mom to take her medication and stabilize. He stated that he wanted to continue to live with his Dad and was open to seeing his Mom and communicating with her, maybe once a month, but would like his sister and father to be present and for it to be at his home. Ms. Patel noted that visits at an access centre would be awkward and uncomfortable, given A.D.’s age, but it is unclear to me whether this was her view or what A.D. told her. He said that he would be okay with his Mom attending his performances as long as his parents did not sit together. He was also okay with his mother e-mailing him but did not want her to find him on social media.

[81] F.D. told Ms. Patel that she would like to see her mother, maybe once every two months, but would not want to live with her. She said that she does not want to see her mother alone, but in a public place with her brother.

[82] Ms. Patel concludes her affidavit by stating the following:

I have no concerns about the independence of the children’s views as both children are balanced in their views and recollections of their mother. F.D. is consistent in expressing that she wants a relationship with her mother and that she wants contact with her mother to be supervised, in the community, and with her brother. A.D. is consistent in expressing that he is open to a relationship with his mother and that he wants contact to be in the presence of his sister and father and to be at his home. Both children were consistent in expressing that they were open to email contact with their mother.

[83] R.J., in her affidavit dated March 1, 2019, states, “I wish to meet with the children in order to rebuild our relationship and after a while this is when access between the Respondent Father and the children should begin to take place.” R.J. acknowledges that she is not currently taking any medications beyond iron supplements and vitamin B12.

[84] As noted above, the last time S.D. saw R.J. was on December 30, 2015, when he and the children moved out of their home in Brampton. S.D., in his affidavit sworn February 20, 2019, states that the children never express a desire to him to be taken to visit their mother. I accept S.D.’s evidence in this regard, while noting that the children told Ms. Patel that they are open to supervised visits with their mother and to having e-mail correspondence with her. Unfortunately, R.J.’s insight into her condition, and her willingness to comply with the treatment and medication that her doctors have prescribed is so limited that the conditions necessary for such visits to occur in a manner consistent with the children’s well-being do not exist.

(d) Length of time the children have lived in a stable home environment

[85] The children have lived with S.D. since the parties separated in November 2013, when R.J. left to live with her aunt.

[86] Since December 30, 2015, when S.D. and the children moved out of the Brampton house that was sold under power of sale, he and the children have lived in a 2 bedroom apartment. S.D. sleeps in the living room. The children have the rooms.

(e) Ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and to meet any individual needs they have

[87] S.D. is supporting the children to the limit of his circumstances. S.D. did not have employment in Canada and his sole source of support for himself and the children was their family business in Dubai, which R.J. had left in the hands of her brother.

[88] S.D. has supported the children with his income from Ontario Works. His physician has advised Ontario Works that S.D. has diabetes, high cholesterol, hypertension, chronic leg and back pain, and depression.

[89] S.D. goes to the food bank to feed the children. They go to the Knights Table every Wednesday to pick up groceries and F.D. and S.D. go there every day for a hot meal and take a meal home to A.D. They were referred to Knights Table by Ontario Works. Additionally, S.D. has a friend who is also an Indian Army veteran, who assists them with food and necessities, and visits every few days.

[90] R.J. informed Ms. Patel that she is also on Ontario Works. She states that she currently receives $733.00 per month from this source.

(f) Plans proposed for the children’s care and upbringing

[91] S.D. proposes that the children remain in his care and continue to attend their current schools.

[92] The children are now Canadian citizens. A.D. has his passport because he is now over 16 years old. F.D. does not have her passport yet because R.J. has refused to sign the passport application.

[93] A.D. attends M[…] Secondary School where he is a trumpet player in the Music program. F.D. attends T[…] Secondary School in the French Immersion Program. They are both excelling in school in spite of the family’s difficult financial circumstances.

[94] In her affidavit dated March 1, 2019, R.J. states that she intends on getting a larger accommodation if the children are placed in her care. She states, “Once I determine my residence, which may take a few months, I will be able to provide information as to what school I intend on enrolling the children in.”

(g) Permanence and stability of each family unit

[95] S.D.’s family unit is stable and permanent.

[96] R.J. family unit cannot be described as stable and is unlikely to be so for as long as she is non-compliant with the treatment and medication that has been prescribed for her. Ms. Patel, in her affidavit dated July 30, 2018, states that R.J. told her that she was open to begin visiting the children at an access centre but that their visits could not be at her house because it is “garbage”.

[97] In her affidavit dated March 1, 2019, R.J. states that she currently rents a room in a house where many other people also reside. She does not know how the people who reside in the home are related.

h) The ability of each person applying to act as a parent

[98] I find that S.D. offers a warm relationship with the children, and that R.J. is not as capable of recognizing the children’s needs. In Ms. Patel’s affidavit dated July 30, 2018, she states that she observed S.D. to be nurturing and appropriate in his interactions with the children.

[99] Ms. Patel concludes her affidavit by stating, “Both children appeared to me to be responsible, polite and well-adjusted children who are thriving in the care of their father.”

[100] With regard to R.J.’s ability to act as a parent, s. 24(4) of the CLRA requires me to consider the fact that R.J. was found guilty of assaulting A.D. by stabbing him in the neck with a kitchen knife. Although the offence was committed nine years ago, it is significant that R.J., in her conversation with Ms. Patel, minimized the offence, and misrepresented the legal consequence that resulted. In Ms. Patel’s affidavit dated July 30, 2018, she states that when she asked R.J. about the assault on her son in 2010, R.J. stated, “I had to harm my son, but it’s all over now, the case was dismissed, I wasn’t charged with anything.” R.J. refused to discuss the issue further.

[101] R.J. continues to have limited insight into her condition and the effect that her symptoms and conduct have had on the children. She states that she is still not on any medication, and told Ms. Patel that she did not require a psychiatrist or counsellors and that her health was “perfect”.

[102] I find that S.D. is able to meet the children’s needs at the present time and that R.J. is not able to do so.

CONCLUSION AND ORDER

[103] I find that there is no genuine issue requiring trial. I find that I can fairly and justly adjudicate the issues of custody and access without recourse to the Court’s expanded fact-finding powers, and that this motion is a timely, affordable, and proportionate procedure for doing so. The court’s exercise of its expanded powers of evidence gathering would not enable it to achieve a more just result, and would have added to the delay and the parties’ expense, without any likely impact on the outcome.

[104] There is no genuine issue requiring a trial, and I must grant summary judgment accordingly. Having regard to the factors set out in s. 24(1) of the CLRA, I find it is in the children’s interests that sole custody should be granted to S.D., and that R.J. should have access to them in accordance with their wishes. The children are at an age and have sufficient maturity to visit with their mother and have e-mail correspondence with her. They are willing to do so provided R.J. takes her medication and is prepared to have S.D. present. It is not clear that she is prepared to take these steps at this time.

[105] I have considered what is impeding R.J.’s more effective involvement in the children’s lives, and what is required to “maximize the children’s contact with each parent” in a way that adds value for the children. Viewing the matter through the children’s eyes, it is more than a matter of the time that each parent is entitled to spend with them. It is a matter of creating conditions of safety for them, and circumstances that give them a sense of control over their relationships and that will not lead to further trauma and confusion for them.

[106] In order to achieve these objectives, R.J. needs to make meaningful changes that will bring her closer to the children without creating chaos in their lives. She needs to become compliant with the treatment and medication that has been prescribed for her.

[107] For these reasons, it is ordered that:

1. S.D.’s motion for partial summary judgment is allowed.
2. S.D. shall have sole custody of/decision-making responsibility for the children: (a) A.D., born […], 2002; and (b) F.D., born […], 2003.
3. The children’s primary residence shall be with S.D.
4. R.J.’s consent to S.D. obtaining passports for the children and travelling with them outside of Canada is dispensed with.
5. R.J. shall have access to the children to the extent and in a manner that is in accordance with their wishes.
6. Both S.D. and R.J. shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the children’s health and general well-being. Each of the parties may prepare a direction and a consent to Disclose Personal Health Information, pursuant to the PHIPA, authorizing him/her to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.
7. S.D. shall ensure that R.J. is kept informed of the children’s school progress, and other circumstances involving their health and well-being.
8. This Order shall be enforced by the Peel Regional Police and any other police service with jurisdiction in the area where A.D. and F.D., or either of them, is believed to be.
9. The costs of this motion are reserved to the judge hearing the balance of issues at trial.

Addendum

[108] Following the release of these reasons, counsel advised me that they were able to reach a settlement of the remaining financial issues. Accordingly, with the consent of the parties, it is further ordered that:

10. No child support shall be payable by R.J. to S.D. for the children, A.D. and F.D.
11. Neither party shall pay spousal support to the other.
12. Neither party shall make an equalization payment to the other.
13. The proceeds of sale of the matrimonial home, held by the Accountant of the Superior Court of Justice, totaling $38,662.17 plus interest, shall be divided equally between S.D. and R.J., as follows: a. S.D.’s share shall be paid directly to S.D., or as he may otherwise direct. b. R.J.’s share shall be paid into court, unless a judge orders otherwise.
14. Each party shall bear his/her own costs of this proceeding.

Price J. Released: March 14, 2019