Court File and Parties
COURT FILE NO.: 44/19 DATE: 2019-08-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alma Duka, Applicant AND: Agim Duka, Respondent
BEFORE: Seppi J.
COUNSEL: Edosa Adams-Idode, for the Applicant Brian Ludmer, for the Respondent
HEARD: August 12, 2019
Endorsement
[1] As often happens after a marital separation where the custody of children is involved, both parents’ conduct in this case has become subject to criticism by the other. While the relationship was in tact there was a mutually working routine in the care of the children and management of the household and responsibilities, despite what appears to have been a tumultuous relationship throughout the years. Now, however, both parents claim to have been the primary caregiver, the respondent claiming he chose to work from home to enable that role; the applicant claiming she has been the children’s primary caregiver since birth and the respondent only began his involvement after the marital breakdown for tactical reasons.
[2] The applicant seeks to have primary residence of the children with her. The respondent claims equal sharing of parenting time on a week-about schedule. At issue before me is what parenting and residential schedule is in the best interests of the children pending trial or other final resolution of this application.
[3] The parties have resolved the interim support issues and agreed to the respondent’s interim exclusive possession of their home by a consent in July 2019, terms of which were made an order on July 29, 2019. In addition, I am informed by both counsel that terms regarding parental covenants regarding behaviour and communication between the parties have been settled. Accordingly, those agreed-upon parenting terms shall be incorporated in this order on consent.
[4] There is a dispute regarding the marital status of the parties. The applicant has deposed the parties were married in Albania on December 31, 2001. She produced a marriage certificate in support of that fact. The respondent states they merely got engaged in December 2001 in Albania, following which he returned to Canada.
[5] The applicant immigrated to Canada in June 2003, and was sponsored by the respondent. She states the respondent has taken her passport from that time to prevent her from showing that she immigrated as Alma Duka not as a single person. What is not in dispute is that the parties had a religious ceremony in Toronto on September 20, 2003. They never applied for a marriage certificate in Canada in connection with that ceremony. However, the official Certificate of the Marriage, confirming the religious ceremony of marriage also indicates that they “were civilly married on December 31, 2001.” This supports the applicant’s evidence of the marriage taking place in Albania.
[6] There are two children of the relationship: Justin Duka born December 26, 2004; and, Jessica Duka born November 28, 2007.
[7] The parties also dispute the date of separation. The applicant indicates they separated on June 15, 2018 when she moved into a second bedroom and they continued to live separate and apart under the same roof until March 31, 2019. That day the police were called and the husband was charged with assault, uttering threats and criminal harassment, charges which are still pending. The wife and children left the home to live in a shelter after that incident where they remained until July 19th.
[8] The respondent denies the criminal charges and says this incident was overblown and fabricated by the applicant to gain advantage in their custody dispute and to keep him from the children. It is his position the parties were together as husband and wife, working on their problems until this incident at the end of March which he says was the date of their separation.
[9] The applicant alleges extremely controlling behaviour by the respondent towards her, including his name calling of her as “stupid”, “garbage”, and “dumb”, and his constantly putting her down in front of the children and controlling her paychecks and personal movements. She also alleges ongoing violence in the marriage. The respondent claims he endured years of the applicant’s verbal, emotional and physical abuse, expansive temper and refusal to contribute economically to the family.
[10] The respondent’s recognizance of bail terms include a requirement that he “not attend any place where you know Alma Duka to live, work, go to school, frequent or any place you know the person to be…”. Conflicts arose a few days following the arrest when the respondent attended at the children’s school, which the applicant believed to be off-limits due to his bail terms. As confirmed by the respondent’s own text message to Justin he planned to unilaterally take him from the school which the applicant reports was upsetting to the child. Contrary to the respondent’s allegations that he was prevented by the applicant from having access to the children it is clear from correspondence between counsel as filed in the evidence that arrangements for regular access were made and implemented within a week of the alleged assault and separation, despite the challenges caused by the recognizance limitations. For the children’s summer vacation, the parties agreed to a week-about schedule.
[11] The access however has not been without conflict. Not only between the parties but also added to by the respondent’s family members’ intervention. This conflict has created much trauma to the children. The applicant reports, as written in a letter to the respondent’s lawyer at the time, that the respondent used his first access with the children on April 3, 2019 to re-hash the events of the assault incident on March 31, 2019, repeatedly telling their son to deny he saw the respondent grab the applicant’s neck during the alleged assault. The respondent’s lawyer in his correspondence indicates the first access was a great time together and the respondent provided Justin with print outs to prepare for his soccer referee course. Both parties have accused the other of inappropriately involving the children in their conflict. The respondent through his lawyer from the beginning has taken the position he is entitled as a right to equal time with the children which statement the respondent often repeated to the children as admitted in correspondence from his counsel. The respondent also alleges the applicant questions the children about their time with him and that she restricts their time with him.
[12] Despite access having been promptly arranged for the respondent, he made several attempts to take the children with him from school. He signed the children out early without the applicant’s permission under the pretext he was taking them to a doctor, apparently unbeknownst to the applicant. The applicant through her lawyer asked that she be able to return to the matrimonial home with the children without the presence of the respondent’s father who also lived there. The respondent’s brother lives next door with his family, and it was suggested that the grandfather move to live with the brother, his other son. This request was denied on the basis that the father was elderly and there was no bed for him next door. The respondent also claimed his father co-owns the house with him although the respondent is the only titled owner. The applicant claims not have been informed of this alleged co-ownership. The respondent has produced a trust agreement dated October 15, 2010, stating he holds the property in trust fifty per cent to himself and fifty per cent to his father, a document which the applicant believes is false.
[13] As the applicant has limited financial means and she was fearful of returning to the matrimonial home while the respondent’s father was there, she and the children lived in a women’s shelter until July 2019 when she finally settled in her own accommodation.
[14] Over the course of the three months following the applicant’s move out of the matrimonial home there was a great deal of bitter conflict between the parties, each accusing the other of inappropriate conduct such as yelling at the children and interfering with the other’s parenting time. This conflict took a toll on the children. One weekend Jessica abruptly left her paternal uncle’s home without explanation. She was located with police assistance at her school. Justin was involved in an altercation with his uncle and is facing charges of assault and uttering threats as a result. This was just a few weeks after the applicant had asked the respondent to agree to counselling for Justin, which request was not agreed to by the respondent until the parties attended at their first court appearance in July. In a note Justin left in the matrimonial home he threatened to run away and live on the streets after learning that he needed to go to summer school. In relation to this event, Justin wrote his uncle kicked him in the liver and ear, a statement the respondent says was influenced by the applicant regarding conduct that the uncle denies. The applicant accuses the respondent’s family members of taunting Justin about having to go to summer school. All of this is strong evidence of a need for a separation of the two branches of the family in the best interests of the children.
[15] There are also texts from the respondent to Justin in May 2019 whereby he tried to force his son to leave the school with him. Justin texts: “I am not coming with u” “I am going with mom”.
[16] After the respondent tells him he has the right of equal time and it is time for his two weeks, presumably to scare and pressure the child the respondent texts to Justin: “I went and notified the police.” The respondent in this series of texts keeps pressuring Justin. Ultimately Justin texts: “I don’t wanna come with u. Stop forcing me.” The respondent answers “I want you to come with me right now.” Justin: “No. Stop.”
[17] Following that incident, the applicant’s counsel writes immediately to respondent’s counsel asking that the respondent stop manipulating the children by his desperate actions to force them to live with him half of the time.
[18] Regardless of the seriously harmful events and conduct, and the numerous untested allegations by both parties against the other, I am satisfied both parties are capable and loving parents to their children. The high conflict continues however. On the evidence it is exacerbated by the litigation in which the respondent has also involved his family members who filed affidavits in support and praise of the respondent while denigrating the children’s mother and criticizing her parenting. No weight is given to these untested and partial statements of opinion in praise or denigration of one parent or the other by family members. As a result of this obvious imbalance of power in the relationship, and also due to the extent of the respondent’s loyalties to his father and brother who live in close proximity, the applicant is not only in conflict with the respondent, but also with his family members, enlisted by him to act against her. This supports the evidence of the power imbalance and control, of which the applicant complains as being an impetus for the breakdown of their marriage.
[19] I do not accept the respondent’s claim that the applicant is manipulating the situation to keep him from his children. He has had generous time with the children without her opposition, despite the effective eviction from her home of herself and the children. The respondent was content to leave the children in a shelter despite reasonable alternative accommodation being at least temporarily available for his father while a substitute home could be found for the applicant and children.
[20] Much of the respondent’s conduct following the separation is of concern as appears from the documentary evidence filed. A few days following the physical separation the respondent is shown on the Land Registry Office registration record to have taken a $1,010,000 mortgage encumbrance against the matrimonial home. He claims he only took $175,000 mortgage. Nevertheless, this was unilaterally removing equity from the matrimonial home without the consent of the applicant and contrary to her rights. He claimed he did this to pay off the lines of credit and debts to his family. He in effect depleted the home equity on April 23, 2019 days after the criminal charges were laid. To do so he unlawfully declared that he is “not a spouse”, which as shown in the documentary evidence filed, appears to be an untrue statement. Hoping to disentitle the applicant to her equalization rights, the respondent now denies the existence of the parties’ marriage of about 17 years. The marriage certificate, the original of which was filed by the applicant in the court record is dated December 31, 2001 and appears to be authentic. When the parties sold a previous matrimonial home in 2010 the respondent, in direct contradiction of what he is saying in this application, declared himself as married indicating the house transfer was consented to by his spouse. He specifically declares “Alma Duka is my spouse.” The marriage certificate issued by the Church at the parties’ religious ceremony on September 20, 2003 evidences the prior existence of their civil marriage entered into on December 31, 2001. Either the respondent was lying when he gave the priest or other church officials that information which is reported on the official certificate, or he is lying now when he claims there was no marriage on December 31, 2001. He also declared that he was “married” in his Income Tax Returns as filed.
[21] On balance, therefore, the credibility of the respondent is questionable particularly as he disparages the applicant and her ability and conduct as a parent, and on his promotion of himself as the superior parent. While I accept he has been involved in parenting the children, taking them to soccer and helping them with homework and accept that the applicant too has engaged in harmful conduct following the separation such as informing the soccer coach of the criminal charges the respondent, I find it is in the best interests of the children that their primary residence be with the applicant. When school starts, it is in their best interests to be on a schedule that gives them the security and benefit of a home base. They are extremely stressed and need to have that stability. The manifestation of their stress seems to have been triggered when they were in the respondent’s care, and when he was pressuring them over the issue of “equal” time.
[22] On the evidence, the applicant is the parent better suited to attend to the children’s emotional needs. She has shown concerns and sensitivity to the children’s psychological well-being and over the respondent’s efforts to manipulate the children. This is evidenced by numerous requests on her behalf from her lawyer that this behaviour stop. She immediately recognized Justin’s need for counselling when the child was crying out for help, a recognition that was not shared by the respondent, whose immediate concern appeared to be his own needs, shown in the final resolution of that issue when he consented to the counselling at the first court appearance, only if he could take the child to the counselling appointments half of the time. The evidence shows there is a strong bond between the applicant and the children. During the traumatic incidents immediately following the separation, the children have instinctively understood the determination of the applicant to keep them stable, as they have turned to her in times of crisis.
[23] The applicant was the one who immediately recognized the children’s need for stability when the incident occurred at the end of March resulting in criminal charges. She asked, through her lawyer, to have the children and her return to the home absent the grandfather who she felt put her in danger due to his alleged threats in the past. That request was made for the children’s benefit and for their stability but was rebuffed by the respondent. Despite being evicted without her belongings the applicant has made a home for herself and the children where they can be settled for the coming school year.
[24] The court recognizes the respondent is entitled to maximum contact with the children as may be in their best interest. Despite what has been questionable conduct by him, he obviously cares for his children and wants to remain involved in their lives. It is expected he will continue to be in charge of their soccer and other sporting events that he has been pursuing with them in the past in accordance with the children’s wishes. However, contrary to what the respondent has been repeatedly been telling the children he is not automatically entitled to equal time. The court’s duty is to assess the evidence and determine a parenting schedule which is in the best interests of the children. There is compelling evidence in this case to depart from an equal parenting schedule.
[25] In the present circumstances there is a concern regarding the overbearing pressure tactics on the part of the respondent which have been exerted on the children in an effort to make them believe they must have equal time with the respondent. The degree of his persistence on this singular point has been overwhelmingly manipulative given that he involved the children in this campaign. The evidence as a whole supports the applicant’s claims about the respondent’s controlling behaviour. The respondent also enlisted his brother and other family members who live in close proximity to that end.
[26] More than a reasonable schedule of parenting time for the father in this circumstance has the risk of undermining the mother’s authority with the children and the need for them to have the stability that they can have while they are in her primary care. The parenting covenants that the parties have agreed to regarding the prevention of interference with the other’s parenting time will also help in that regard. Given the problems with the credibility of the respondent as shown by the documentary evidence and as discussed above, I do not accept his allegations of the mother’s inability to parent the children. She has been responsible for their parenting throughout their lives and will continue to do so. Disparaging comments and his insistence by repeated statements to the children that they must spend equal time with him have added to the children’s stress rather than help them adjust to the trauma of their parents’ separation. It is therefore in the children’s best interests to remain primarily in the applicant’s care.
[27] There will be a temporary order pending trial that:
The primary residence of the children shall be with the applicant commencing September 1, 2019. Until then the alternating week schedule in place for summer vacation shall prevail.
The children shall reside in the care of the respondent in alternate weeks from Thursday after school to Monday morning at 9:00 a.m. commencing Thursday September 5, 2019. If the Monday of the respondent’s weekend is a statutory holiday the time is extended to 9:00 a.m. on Tuesday.
Christmas time with each parent for the children shall be as per item 6a. and b. of the applicant’s Notice of Motion. March Break, and the children’s school summer vacation shall be shared equally.
Access exchanges shall be as per item 8 in the applicant’s Notice of Motion.
Major decisions regarding the children’s health, education and religion shall be discussed and made jointly, if possible, provided that in the event of an impasse the applicant will make the decision.
[28] The parties have now agreed to have both children attend counselling, which shall continue as recommended by the counsellor or other accredited mental health professional. As the children are of an age when their views and preferences need to be heard an order shall issue appointing the Office of the Children’s Lawyer in accordance with the usual Form, file herewith.
[29] The request for a custody/access assessment is denied. Such an intrusive investigation is not of value in this case. No clinical issues are raised and the delay in such an investigation would have a negative effect on efforts to achieve an early final resolution of the custody and access issues in this case.
[30] Order accordingly.
[31] Counsel may arrange a teleconference with me at a 9:30 appointment the week of August 19, 2019, through the S.C.J. judicial assistant’s office in Brampton if they wish to make submissions on costs. If no appointment is requested, costs are reserved to the trial judge.
Seppi J.
Date: August 16, 2019