Court File and Parties
Court File No.: FS-18-003302 Date: 2019-06-03 Ontario Superior Court of Justice
Between: BF, Applicant – and – AN, Respondent
Counsel: Marlene Kazman, for the Applicant Zahra Taseer, for the Respondent
Heard: May 2, 2019
Before: C. Gilmore, J.
Ruling on Motion
Overview
[1] This is the respondent father’s motion for access to his daughter EFN (“the child”), aged 19 months.
[2] The father seeks access every Saturday from 11:00 a.m. to 1:00 p.m. and every Wednesday from 5:00 to 7:00 p.m. He asks that access take place at the Lamp Community Centre as that Centre is not far from where the applicant mother lives.
[3] The respondent is content that access be supervised by his mother although his Notice of Motion did not specify this. The Notice of Motion indicates that the father’s family may be present for access visits without restriction.
[4] In the alternative, the father is prepared to exercise access at a supervised access centre every Saturday or Sunday for two hours. A supervised access centre is not the father’s first option given the lack of flexibility and the delay he has experienced in obtaining access.
[5] The mother opposes access other than supervised access at a supervised access centre. She brought a cross motion requesting that if the court orders access at an access centre, access should not take place unless the following conditions are met:
a. The father participate in a mental health assessment performed by a psychiatrist at CAMH at his own cost;
b. The father agrees that he will not give the child food, drink or medicine during access;
c. The father agrees that he will not pick up or carry the child at a height of more than one foot off the ground; and
d. The father agrees to provide all test results and records of his treating physicians, counsellors and therapists relating to his anger issues including the records of his therapist Dr. Evette Meikle from March 2018 to date.
[6] Certain relief sought by the mother in her cross-motion was agreed to by the father including:
a. Surrendering his passport to the mother’s counsel;
b. Providing an OHIP summary for the period of January 2015 onward; and
c. That the mother would have temporary sole custody of the child.
[7] During the course of the motion, the father proposed that his mother, AA, (“the grandmother”) supervise his access. Given the mother’s strenuous objection to this, the court requested to hear oral evidence from the grandmother. The court asked her some questions and she was cross-examined at length by the mother’s counsel. Both counsel also provided written submissions on the oral evidence of the grandmother.
Litigation History and Factual Background
[8] The parties met on an online dating site in September 2015. They started dating but did not move in together until March 2017. They were married secretly on September 24, 2016. The parties separated and reconciled several times throughout their tumultuous and drug-ridden relationship. They did not tell their families about their marriage until January 2017. The father kept the wedding from his parents because he was concerned that his parents would think he had married too quickly. The mother kept the wedding from her parents for fear of their reaction to her marrying a Muslim.
[9] The father is 33 years old. He was born in Damascus, Syria and moved to Ontario when he was 16. The father’s family is Muslim. The father is a non-practicing Muslim. He is currently employed as a hedge fund administrator earning $60,000 per year. He has been employed with the same company since 2013. He is enrolled in a part-time MBA program and expects to graduate from that program in 2022.
[10] The mother is 32 years old. She was born in Sarajevo, Bosnia and came to Ontario in her early teens. The mother is a nurse and works full time at Trillium hospital in Mississauga. The mother’s family is Catholic.
[11] At the beginning of the parties’ relationship they spent significant time partying and doing drugs such as cocaine. In December 2016 after the mother fainted at work, she went to her doctor and admitted her drug use. The mother was panicked when she realized that the doctor suggested he may have to report her to the College of Nurses due to concerns about protection of the public. Despite this scare, the mother and father continued to use drugs. In fact, it is uncontested they spent over $50,000 on this lifestyle during 2016. In October 2016 the mother became pregnant but had an abortion due to her concerns about the effects of her drug use on the fetus. The mother did not tell the father about the abortion until after the procedure. The mother became pregnant again in January 2017 and the parties decided to discontinue their drug use for the sake of their child.
[12] The parties moved in together in March 2017. They agreed to cease their party lifestyle and focus on their child. However, this commitment to a more serious life resulted in tension in the relationship. Their carefree life was over. They argued about money and were jealous of one another’s whereabouts. Both lashed out at the other threatening to kill themselves, hurt the other, end the relationship or in the case of the mother, have an abortion.
[13] The communication between the parties by text during their relationship is nothing short of shocking. They were aggressive, insulting, racist and cruel to each other. Their relationship can only be described as turbulent and, frankly, dysfunctional.
[14] The mother gave birth to the parties’ daughter on October 23, 2017. The parties separated on January 14, 2018.
[15] The father was permitted one access visit on February 3, 2018. He has not been permitted to see the child since.
[16] The father requested further access after the February 3rd visit but was denied. He retained counsel and his counsel wrote to the mother requesting access in April 2018. When no response was received, he commenced an application for access in the Ontario Court of Justice in May 2018.
[17] On May 14, 2018 the father was charged with five counts of assault, two counts of threatening death, two counts of threatening bodily harm and one count of criminal harassment. All of the charges related to the mother. The father’s bail conditions did not permit him to communicate with the mother or be 500 metres from her home, work or any place she frequented.
[18] In November 1, 2018 the father pleaded guilty to the charges of uttering threats and criminal harassment. The balance of the charges were withdrawn. The father was fined $200 and sentenced to 27 days in jail which he served on weekends. His sentence was completed on November 30, 2018. His probation terms do not allow contact with the mother except through a family court order for access purposes.
[19] The mother did not file an Answer to the Ontario Court application. Rather, she commenced this application in June 2018 which had the effect of staying the Ontario Court action. There had been no appearances in the Ontario Court action before it was stayed.
[20] The first case conference in this matter took place in August 2018. The father was given leave to bring a motion for supervised access. A timetable for the motion was set and questioning was ordered to take place on November 7, 2018. The motion was scheduled for ½ day on November 29, 2018. Unfortunately the father became ill and the long motion was adjourned to March 21, 2019 and then June 13, 2019. The parties agreed not to pursue questioning at that time.
[21] The matter came before me on April 3, 2019. The father wanted to proceed on that date, stating that a long motion date was not necessary and the issue of access was urgent. The applicant had just retained counsel and wanted an adjournment. The mother’s new counsel wanted to pursue questioning. The matter was adjourned to May 2, 2019 before me for a long motion and questioning was ordered to take place on April 10, 2019 for both parties. The June 13, 2019 long motion date was vacated.
The Positions of the Parties
The Father
[22] The father wanted the court to be clear that he took responsibility for his actions, both in terms of the criminal matter and his insulting texts to the mother. He was ashamed of his actions and concerned about how the drugs he was taking at the time affected his personality and fuelled his inappropriate behaviour.
[23] He concedes that his relationship with the mother was toxic and that he used foul language towards her, sent her inappropriate photos and barraged her with racist and sexist remarks. His texting was harassing and insulting. His relationship with the mother was a dark one and uncharacteristic of how he acts when he is not around her.
[24] However, he has stopped using drugs and moved back with his parents in May 2018. He is focused on obtaining his MBA and living a healthy and drug free lifestyle. His parents are supportive of him and his efforts to gain access to his daughter.
[25] The father has been in counselling since March 2018. He was also required to attend the PARS program (a form of anger management counselling) as a result of his criminal convictions. He has attended numerous parenting courses and has engaged in self-study on caring for infants and toddlers.
[26] When the father met the mother she was heavily into drugs. During the dark times in their relationship, the mother would threaten to leave the father, block him on social media or her phone, abort their baby or kill herself.
[27] Excerpts from text exchanges from the parties are instructive. Some from the mother are as follows:
I just took twenty Advils Today I destroyed everything there is to destroy everything burning. I even took one of my eyes out. Suicide is on my mind. I want to die. Take care. Thanks for everything. I’m crazy psycho jealous when it comes to you. I never acted psychotic like this. Imagine having a baby, we would be lost and more miserable. You make me sick you dirty pig. DON’T EVER CONTACT ME AGAIN. You want to fuck with me I’ll ruin you. Just know that. I promise you I’ll cheat on you. Not my fault that you’re retarded. Threaten with divorce again I’ll beat you up. You dirty disgusting loser. I’m having an abortion and am divorcing you. Mark my words. I’ll ruin you. You’ll wish you were never born. I’m fucked up and I’ll ruin you. Go to hell. I will smack you across the face. I swear, you act like this I will punch you in your face. If I find out you cheated on me or are cheating on me I’ll ruin you. You better follow my rules or I’ll ruin you. You disgusting ugly broke person with the worst job in the universe. I am having an abortion and moving all my things out today. For sure I will never see you again. I’m sorry for physically hurting you. You can forget about me you retarded person. I want you out of my life. Go fuck whoever you wish you sleazebag. Dirty disgusting pig. You’re a fucking retard. I am not having a baby. I am going to get rid of it as soon as I can. I hate everything about you. I wish I never met you. I wish I never married you. You dirty disgusting loser. I am having an abortion and am divorcing you. The next person I’ll be with will break you heart. I’m fucked up and I’ll ruin you. You’re dumb and I hate you so much. You don’t deserve my child or for me to be pregnant. Find someone else. We are done. You won’t have any rights on my child. It will never meet your family. And I will make sure to distance you as far as I can. You’re not good for anyone, let alone a child. If I am pregnant you’re never seeing me or my kid. We are done pregnant or not.
[28] The father denies that he ever physically hurt the applicant. He reminded the court that all of the assault related charges against him were withdrawn.
[29] During the relationship the mother threatened the father that if they separated he would only have visitation rights or be the “deceased father” and that the child would never see his family. This is borne out by texts from the mother to the father as follows:
Maybe daddy can give you some money for lawyers but I promise you that you won’t have rights for this child. I won’t even add your last name. Just like in that movie you’ll be the deceased father. Which you practically are. You won’t have any rights on my child. It will never meet your family. And I will make sure to distance you as far as I can. You’re not good for anyone, let alone a child. Now fuck off and stop wasting my battery.
[30] The mother was always vocal about her views about the father’s cultural background and would frequently make derogatory remarks about Muslims. Examples of the shocking texts from the mother are set out below:
Fucking nasty Muslim pig. Nasty dusting Muslim pig. The women from your countries are the biggest drama queens I’ve ever met. Is this what your fucking Islam teaches you? I don’t give a fuck you balding loser. Like I really don’t. I want your nasty Muslimness away from me. As far as possible. Dirty Muslim man, just like all the rest. You’re lower than any man. But for your culture this is expected. Bastards who leave women to raise their children while they go fuck around. Abusive villager. I never want to see you again.
[31] The father filed affidavits from his mother and sister, NN. She has lived in Canada since her parents moved here in the early 2000’s. She has a M.Sc. in Pharmaceutical Sciences from the University of Toronto. She and her husband have a three-year old daughter. NN testified that her brother is a loving and caring uncle whom she has left on his own to care for her daughter on many occasions. She has found her brother to be attentive and responsible in caring for her daughter.
[32] The father’s mother, AA (“the grandmother”) has worked with children for 16 years. She is a registered early childhood educator and taught in a Montessori school for five years and then worked in an infant room for 11 years. She was then promoted to facilitator of the EarlyOn program. She must undergo a police and health check every year in order to retain her status in that program. The grandmother has not seen her granddaughter since December 2017.
[33] The grandmother is a practicing Muslim and wears a hijab. However, she does not expect her granddaughter or daughter to do the same. She respects the mother’s religious background and has always taught her children to respect all religions and cultures. She recalled being surprised by the comments of the maternal grandmother that her family was “nice” even though they were Muslim. She denies any of the allegations made by the mother that she and her family intend to take the child back to Syria. There is nothing for them there. They have left Syria deliberately in order to make a new life in Canada. It would be unwise and unsafe to take a child back to Syria.
[34] The grandmother describes reaching out to meet and get to know the mother’s family on several occasions, however they always gave reasons why such meetings were not possible.
[35] The grandmother is willing to help facilitate access including the supervision of visits. She is willing to help her son learn how to take care of a toddler.
[36] The father’s friend AT also provided an affidavit. The father and AT have known one another for about eight years. AT is a practicing Muslim. He deposed that the father’s friends were worried when he started dating the mother, as he disconnected from his friends. He described the father as being sad about his inability to see his daughter. He explained that the father is not a practicing Muslim and has no extreme religious views. He described his friend as easygoing and very close to his family.
[37] The father’s position is that the mother’s family did not accept him because of his religious and cultural background. He and his family were never welcomed into the mother’s parent’s home.
[38] The father denies that he assaulted the mother. In fact, he deposed that in April 2017 the mother assaulted and scratched him. She also continuously threatened to abort their child which was very stressful for the father. The father acknowledges that his communications with the mother could have been perceived to have been harmful. He has apologized and acknowledged his ill-advised behaviour. He did not intend to hurt or harm the mother.
[39] The mother alleges that the father’s father (“the grandfather”) is a member of ISIS. Unfortunately, the father did send some messages to provoke the mother (as the mother did to the father) claiming his father was a member of ISIS fighting in the name of Islam. This was completely false and only part of the dysfunctional repartee between the parties. The father deposed that he did not, in fact, have a religious upbringing and he and all of his siblings attended Canadian schools and universities where they were exposed to Canadian education and multiculturism.
[40] It is true that the father’s father returned to Canada only recently but that is only because his employment to support the family was in Dubai. He continued to work in Dubai and visit and support his family regularly. He returned to Canada permanently upon his retirement. His reasons for being out of Canada had nothing to do with any religious extremism. The paternal grandfather made sacrifices for his family so that his children could be educated in Canada and benefit from all that Canada has to offer. The mother’s allegations about her father-in-law’s religious extremism are without foundation.
[41] The father is accused of being a bad or neglectful parent. Nothing could be farther from the truth. When the parties were together he cared for the child when the mother would let him. The mother would not listen to the father about any parenting issues and minimized his input and role as a parent. He has not seen his daughter since she was three months old. She is now 19 months old.
[42] The father is very concerned about the effect that mother’s refusal to agree to reasonable access will have on his ability to bond with his daughter. Given his mother’s qualifications and the support of his family he sees no reason why access cannot take place immediately with supervision provided by his mother.
The Evidence of the Respondent’s Mother, Ms. AA
[43] Given the mother’s vehement refusal to allow supervision by the grandmother, and given her presence in court during the motion, the court requested that she provide oral testimony. She was questioned by the court and cross-examined by counsel for the mother.
[44] The grandmother is 56 years old and has lived in Canada for 17 years. She works as a facilitator at the EarlyOn child drop in centre for children 0 to 9 years of age.
[45] Her son began living with his parents again in May 2018. He has been polite and helpful since moving in. He often asks her questions about childhood development. The grandmother has reviewed some of the court material in this matter and she is shocked by it. She could not explain why her son wrote some of the texts that he did. She feared that that he was very influenced by the mother and both of them were acting out of character when together.
[46] She has not been to the community centre where access is proposed to take place and she has no specific plan as to what will happen during access. She was unable to comment on whether the community centre was either safe of appropriate for a 19 month old child. She has not seen her granddaughter in a long time so she believes some time will be needed for her and her son to re-acquaint themselves with the child. She agreed that she has no specific training as an access supervisor nor has she ever written a report on access supervision.
[47] The grandmother agreed that the mother had contacted her complaining about her son’s behaviour towards her. She tried to contact the mother’s family to see if a solution could be worked out but her family did not respond. She did not ignore the mother’s concerns but she was frankly unsure what to do. Her son is 32 years old and there is only so much involvement she can have. She will be as supportive as she can without interfering in his life.
[48] The grandmother was somewhat flustered at times in her testimony. This was not unexpected given that the court requested that the grandmother give evidence and she had no notice this request would be made.
The Mother
[49] The mother’s position is that her child is a stranger to the father and any access must be approached with caution. Further, the father’s access plan is fraught with problems. Neither he nor his mother have ever been to the Lamp Community Centre. Further, it is a drop in centre not a proper supervised access centre. Given the father’s past behaviour the only possible way in which access can proceed is at a supervised access centre with properly trained supervisors.
[50] The mother submits that the father has made 32 very explicit death and related threats against her. The mother is also concerned about the father’s numerous threats to commit suicide while they were together. She is concerned that the father would hurt the child as a way to hurt the mother.
[51] The mother attaches numerous texts containing the father’s threats to kill himself between June 2016 and January 2018. Some excerpts are as follows:
Can you kill me please…I will find a gun…I want to fall into a ditch and die. I’m going to kill myself I can’t handle this anymore. I hate my existence and going to bed like this…I wish I’m dead. I’m taking all the pills mark my words…You will never hear from me again. I want to drive the car into something to kill myself now… I swear on my life I will kill myself right your House tonight….I swear on everything I will kill myself tonight….in your area…I don’t give a fk anymore. I will swallow a bottle of Advil and go to ER…You will see…I’m buying it right now. Suicide is not a bad option. It ranks high in my life as we speak. I’m so heart broken that’s it going to kill mysedntoday….Please take care of E. I wish you the best.
[52] The last threat was made on January 26, 2018 when the baby was young and the parties were still together. The mother found it particularly upsetting. The threat was accompanied by a photograph of the father holding a knife to his chest.
[53] During the course of the motion, the mother’s lawyer played a recording of a conversation between the mother and the father on September 16, 2017. The recording is chilling as the mother was pregnant at the time and the father’s voice on the recording is both strange and threatening. Some excerpts from the transcript of that recording are as follows:
Fucking bitch. You’re like nobody to me. Go to hell you trash monkey. Go monkey go, go back to your tribe. You stupid monkey. You’re like a fucking disturbed retard. You imbecile. You trashed out motherfucker.
[54] Other excerpts of threatening and insulting texts sent from the father to the mother are as follows:
You’re not a wife. You’re a loose cannon that all you did was party fk people over. You suck as a human being. Women like you deeseeve to be killed. I will fkn kill you. It will be nice to die today. I’m so damaged. I will kill you if I can. I know it will never happen again. I can’t even believe that happened. I hope you forgive me. I was crying after you left. I have never done such a thing to a guy let alone a girl. You have all the right to walk out on me. I want to end my life today and it will happen. I’m taking all the pills mark my words. You will never hear from me again. You low life mother fucker. Nobody taught you manners. I want you out of my life. You low life street bitch. You deserve to be killed you stupid botch. You stupid ass cunt. I hate you you stupid cunt. I will kill you if I can. You’re so low and trashy I want to spit in your face. Now run away with your whorish friend and do coke. You seriously make me throw up. I hope you die bitch. Hahahaha die bitch die. You are trash and garbage and dirt. I swear on my entire families life I will beat you up do badly one day. I will flip the fuck out on you. One day I will break your nose I swear on everything. I’m going to make your life hell. If I had a gun I have no problem shooting you. I will burn you alive. I will stick a knife in your eyes. You will never see another sunrise mark my words. I want to fkn kill you right now. I just left work I’m coming to your area I can’t take this anymore. I’m going to find a way to kill you today. I will crack your skull open. I will rip your eyes from your head. Watch your back at night. I’m coming to kill you. You’re a fkd up individual with no shame or manners. I wish I never married a low piece of garbage like that. My daughter I will do my best for her to be far away from you. I never want such a mother to raise my daughter.
[55] These texts are the reason why the mother insists that the father provide a psychiatric assessment before any access can take place. She submits that the father has mental health issues, is unstable and unable to care for a young child. She fears for her child’s safety in the father’s presence.
[56] The mother is confused as to why the father is now insistent that his family be involved in the child’s life. In November 2016 he texted the mother and told her that his plan from “day one” was to keep their child away from his family and their influence. He confirmed that he would have an agreement drafted by a lawyer to show the mother that he was serious and that he was no longer able to “babysit” his parents.
[57] The mother’s father, BF swore an affidavit dated October 25, 2018. He deposed that he sees his granddaughter almost every day and that his daughter is a devoted and caring mother. He and his wife often care for their granddaughter while their daughter is at work.
[58] The mother’s mother, IF swore an affidavit dated October 24, 2018. She felt that the father was a bad influence on her daughter. She described that her daughter came back home at least four times between April and October 2017 complaining of abuse by the father. While at her daughter’s home on October 20, 2017, the couple received a visit from the father’s mother, sister and niece. The mother tried to talk to the father’s mother about his abuse and her concerns about their future with a baby. The father’s mother dismissed the concerns attributing them to pregnancy hormones or provocation by the mother.
[59] Her family is very concerned about the child’s health and welfare if the father and his family are permitted access.
[60] The mother’s position is that not only must access be supervised, it must be supervised by professionals who can take notes and ensure that the father does not threaten or harm the child and that the transition from stranger to father is done in the least harmful way to the child.
[61] The mother is very concerned about the father’s mental health and seeks his counseling records. She is concerned that he wants revenge and will obtain through his actions with the child.
[62] She is reluctant to agree to any access given his past behaviour but will agree to minimal access in a structured and supervised setting with the conditions she requests.
Analysis and the Law
[63] In this case the court must consider the child’s best interests. The required considerations for the court are clearly set out in section 24 of the Children’s Law Reform Act (“CLRA”) and the relevant factors in the Divorce Act.
[64] With respect to the CLRA, the following sections are relevant:
(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody or access to a 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 length of time the child has lived in stable home environment; (c) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (d) the ability of each person applying for custody of or access to the child to act as a parent; and (e) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[65] Considerations under s.16 of the Divorce Act in terms of best interests include the following;
(8) 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. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. (10) 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.
[66] Given the extensive material on this motion, my review of that material and the submissions of the parties, I make the following findings:
a. The child has no medical issues and is developing at a normal rate; b. The child is currently a stranger to her father because she has not since him since she was three months old. The father has not seen his daughter in 16 months; c. The child is attached to and lives with her mother and maternal grandparents; d. The parties did not take drugs during the mother’s pregnancy or thereafter; e. The parties had a dysfunctional relationship which has now permanently ended. There is no evidence that the parties have been in communication since the father’s arrest; f. There was no evidence that either party has been volatile or abusive since the father’s arrest; g. Both sets of grandparents are supportive of their children and are willing to assist with the child’s care; h. Both grandmothers have experience caring for young children; and i. A careful review of the texts between the parties make it clear that they were both physically violent towards the other at various times during the relationship.
[67] The father is rightly concerned that access must take place soon and on a regular basis. He very much wants to “catch up” in terms of developing a bond with his daughter. He must be given the opportunity to do this as soon as possible.
The Paternal Grandmother as Supervisor
[68] The father did not propose his mother as an access supervisor until the motion was heard although his Notice of Motion did advert to having his family present. Given this late request by the father, the court requested to hear oral evidence from the paternal grandmother in order to assess her ability to supervise the child and her son.
[69] After considering her evidence and the submissions of both counsel in relation to that evidence, I find that the paternal grandmother would make a very good access supervisor after certain conditions are met. I come to this conclusion after considering the grandmother’s evidence, credibility and ability to supervise. I do not agree with the mother’s counsel. Specifically, I find as follows:
a. The offer to have his mother supervise access was meant as a way to assuage the mother’s concerns about the access and not to annoy her or cause her concern. b. The mother’s counsel’s cross-examination of the maternal grandmother was bordering on vitriolic and covered areas that appeared to be deliberately intended to belittle or confuse the maternal grandmother. c. The court requested oral evidence with no notice to the witness. If she appeared flustered or hesitant in her answers, some leeway must be given. I reject the mother’s submission that the maternal grandmother’s evidence was meandering, evasive or invented. She did the best she could in the circumstances. d. The suggestion that the maternal grandmother’s alleged lack of command of the English language makes her unsuitable as a supervisor is simply untrue. The suggestion that her hesitation with English makes her less credible is entirely rejected by this court. e. I accept the paternal grandmother’s explanation about her actions when she approached by the mother about her allegations of being abused by the father. The paternal grandmother was unsure what to do. She sent the mother flowers but was torn as to whether she should intervene given the parties were both adults in their 30’s at the time. f. The paternal grandmother has extensive experience with young children through her work. She did not have documents with her to prove this because she had no idea such documents would be required. I accept that she could not work as a facilitator with the EarlyOn program without the proper qualifications including a criminal record check.
The Father’s Behaviour
[70] The mother makes much of the father’s behaviour during their relationship and insists that this must be tied to his ability to parent. However, the most glaring void in this matter is the lack of focus on the mother’s behaviour. While her threats may not be on the same level as the father, her threats of suicide and abortion are shocking and dysfunctional. The mother cannot gloss over her own erratic and bizarre behaviour during the relationship and focus solely on the father.
[71] Further, I am not satisfied that during the short time the father and mother were together after the child was born that the father’s parenting was lacking. His evidence was that he tried to parent but was not “allowed” to by the mother. That attitude on the part of the mother appears to persist.
[72] There is no evidence that the father’s bizarre behaviour extended to the child. He has taken courses and is intent on learning how to be parent. He is in therapy and appears to have accepted that he needs help. On the other hand, there is no evidence that the mother has taken any parenting courses or is in therapy despite the fact that the text messages she sent to the father could be representative of an unbalanced personality.
[73] In short, there is no evidence that the father’s previous unacceptable conduct impacts on his ability to parent. On the contrary, he has taken steps to ensure this will not be the case. He has accepted criminal responsibility for his actions and served his sentence.
[74] The focus must now turn to the child whose needs appear to have taken a back seat to the blaming between these parents. I do not agree with the mother’s counsel that the maximum contact principle does not apply because there is no relationship to preserve. In fact, it is trite to say that contact with both parents is essential for a child’s development. It is in the child’s best interests that she have the opportunity to know her father and have a relationship with him. Further, all of the research in this area is consistent that infants and toddlers need regular interaction with both of their parents to foster and maintain attachments (see Schmidt v. Haley, 2004 CarswellOnt 1149 (ONSCJ) at para 20 and 21).
[75] There is a concern about the integration of this child into her father’s life since he is currently a stranger to her. However, the mother has only herself to blame for any distress which the child may endure as a result of meeting her father. She refused access when it was requested shortly after separation. She necessitated multiple court appearances because of her insistence on unreasonable restrictions on access. The mother cannot now complain that her daughter is in distress because she is being forced to meet a stranger and go to his home. All of this was completely in control of the mother had she agreed to some reasonable arrangement for supervised access 19 months ago.
[76] I agree with the mother that Lamp Community Centre may not be the best place to conduct access visits. No information was provided at the motion as to what facilities would be available there. A better solution would be to have access take place at the father’s home where he can set up the necessary items (such as a high chair, crib, play pen, change table) and the child will be immediately introduced into the environment in which access will take place over the long term.
The Race Issue
[77] The mother’s attitude towards the father’s culture and religion cannot be labelled as anything except racist and uninformed. Her insulting texts to the father about his “Muslimness” are nothing short of shocking given the mother’s education and integration into Canadian culture. The mother’s intolerant views should not be allowed to impact the child. I agree with the father’s counsel that the child should not be denied the opportunity of learning her father’s identity and culture which she shares.
[78] As per Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 SCR 1014 at para 40, “Race can be a factor in determining the best interests of the child because it is connected to the culture, identity and emotional well-being of the child.”
[79] This child is in the fortunate position of having parents from two different cultures. The child’s development requires that she be exposed to both.
The Mother’s 14B Motion
[80] The mother brought a 14B motion which was treated as a cross-motion at the long motion. Some of the relief was resolved on consent. The relief which remains outstanding is as follows:
a. The father to participate in a mental health assessment at his own cost by a psychiatrist at CAMH and to follow any treatment recommendations of the assessor. b. An order that access not take place until the mental health assessment is completed. c. An order that the father not be permitted to give the child food, drink or any other ingestible substance. d. An order that the father not be permitted to carry the child at a height of more than one foot off the ground. e. An order that the father provide all notes and records from his treating physicians, counsellors and therapists including all records and notes from his therapist Dr. Evette Meikle.
[81] The reasons for the mother asking for this relief are her concerns about the father’s mental health and specifically her concern that doing drugs has damaged the father’s nervous system. Further, she is concerned that he would intentionally give the child a harmful substance and then claim it was given by the mother or abduct the child and take her to Syria.
[82] Some of the relief sought by the mother is, respectfully, hard to understand. How is the father to bond with his child at meals if he cannot feed her? With the supervision required by the mother, the father would be unable to do anything surreptitiously. The relief sought by the mother borders on interfering and preventing the father from developing the necessary bond with his daughter.
[83] I am not persuaded that the father would do anything to intentionally harm the child. Not allowing him the carry the child at more than one foot off the ground means he would be unable to lift her into her car seat, her high chair, her bed or do any of the things which would facilitate bonding between the child and her father. This request is bordering on outrageous and dismissed entirely.
[84] As for the psychiatric assessment, the content of the texts from both parties lead this court to believe that both parties should be encouraged to participate in such a process. Certainly in terms of the blaming battle going on in this case, if the father obtained such an assessment voluntarily, it would assist in confronting the mother’s allegations about his mental health.
Orders
[85] Given all of the above, I make the following orders:
On Consent
a. The respondent shall surrender his passport to his counsel until the parties agree otherwise or further court order; b. The respondent shall forthwith provide to the applicant his OHIP summary for the period of January 2015 to the current date; and c. The applicant shall have temporary sole custody of the child.
Not on Consent
[86] The respondent shall have access to the child every Saturday commencing June 15, 2019 from 11:00 to 1:00 p.m. and every Wednesday commencing June 12, 2019 from 5:00 to 7:00 p.m.
[87] The first four access visits shall be supervised by a private supervision agency such as Brayden, All of You or Access for Parents and Children. Once engaged, the respondent shall provide to his counsel the name of the agency who will be providing the supervision.
[88] The private access service will take notes and the respondent shall provide a copy of those notes to his counsel at the conclusion of the first four visits, who shall forward a copy to the applicant’s counsel. The respondent shall pay for the cost of the supervised visits and the cost of any notes/report prepared by the agency.
[89] The respondent’s mother shall be present at the first four access visits and shall supervise the visits thereafter without the necessity of the access service being present. Supervision by the respondent’s mother means that she will be present with the respondent for the entire duration of each access visit.
[90] The applicant shall provide a typewritten outline of caregiving instructions for the child (“the instructions”) for the relevant times including feeding (including food preparation and preferences), napping, medications and toileting. The father and his mother are to scrupulously follow the instructions to ensure the child’s schedule is maintained. The instructions shall be provided to the respondent’s counsel electronically who shall in turn provide it to the respondent. The respondent shall review the instructions with his mother. The instructions must be provided at least 5 days prior to the first visit and shall be updated as needed.
[91] Any issues arising from the access visits (i.e. refusal of certain foods, toileting issues, behaviour, illness) shall be reported to the applicant by the respondent’s mother by email.
[92] The child shall be picked up from the mother’s home by the respondent’s parents or sister (one or any combination of them). The respondent shall not be present during pick up or drop off.
[93] Access shall take place at the father’s home.
[94] The time to transport the child from the mother’s home to the father’s home and back shall not be counted as part of the access visit. To be clear, the access visit shall not start until the child arrives at the father’s home. The father’s mother shall text or email the mother at the conclusion of the visit to advise the time of departure in order to allow the mother to make arrangements to receive the child upon her return.
[95] The father shall ensure he has a proper car seat, diapers, high chair, bed and toys for the child. The mother to provide the specifications for these items and what is required (crib v. actual bed, types of preferred toys, size of diapers etc.) by way of a typed list sent to her counsel who shall in turn forward it to the respondent’s counsel. The typed list to be provided forthwith to ensure the father has ample time to purchase and/or borrow the required items.
[96] The parties shall speak positively of one another in the presence of the child.
[97] Neither party shall disparage the race, culture or religion of the other in the presence of the child.
[98] Access shall be reviewed after three months of visits to determine if an expanded schedule of supervised access is in the child’s best interests.
[99] The entire access schedule to be reviewed after six months of visits to determine whether further supervision and a further expansion of time is in the child’s best interests.
[100] A further review of access should be undertaken within a year of the first visit with a view to progressing to overnight and weekend visits.
[101] The child shall not be taken out of Ontario on any access visit.
[102] It is recommended that both parties obtain a psychiatric assessment from a psychiatrist at CAMH and that they follow the recommended treatment.
[103] All other relief sought in the applicant’s 14B motion, not otherwise dealt with herein, is dismissed.
Costs
[104] The applicant seeks partial indemnity costs of $15,000 for this motion plus the costs of questioning the respondent and the costs of preparing the applicant for questioning which the respondent never pursued. This would increase the costs sought to approximately $20,000.
[105] The respondent seeks partial indemnity costs of $24,300 plus the cost of submissions on the evidence of the respondent’s mother being a total of $27,000.
[106] The respondent served an Offer to Settle in relation to the access motion originally scheduled for November 29, 2018. The respondent offered to have supervised access in a supervised access centre for one hour once a week. The Offer complies with the rules. The Offer was never accepted.
[107] The respondent did far better than his Offer. In contrast, all of the relief in the applicant’s cross-motion was dismissed other than the relief which was agreed to on consent. The psychiatric assessment was not ordered, only recommended to both parties.
[108] I find that the applicant was unreasonable in her approach in this matter. She failed to fully appreciate the consequences of the child not having a relationship with her father. She refused access from early on after the separation. Once the issue of access was litigated she imposed unreasonable conditions on access, which necessitated a long motion. The access sought by the father was minimal and supervised. There was no reason for the mother to refuse such a modest request.
[109] Further, throughout this motion the mother painted herself as the parent who was without issues. In fact, however, it is clear she sought to carry through with her texted threats to ensure the father was not involved in his daughter’s life. While the father also had significant problems in the relationship and his abusive treatment of the mother cannot be ignored, none of the dysfunction between the parties should be visited on this child who deserves a relationship with both parents.
[110] As such, the mother should pay costs to the father. Her position on access since shortly after separation has been insupportable and feeds into her racist and threatening text messages to the father.
[111] In all the circumstances and in consideration of the fact that the respondent did far better than his Offer to Settle, the mother shall pay to the father the sum of $10,000 in costs. This includes the costs of the contested adjournment from April 30, 2019. The costs are due and owing immediately.