Court File and Parties

COURT FILE NO.: 26/20 DATE: 2020 06 09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Fazilat Fatima Ishkanian, Applicant AND: Dr. Adrian Shea Ishkanian, Respondent

BEFORE: Chozik J.

COUNSEL: Harold Niman, Richard Niman and Patricia Gordon, for the Applicant Gary Joseph and Serena Lein for the Respondent

HEARD: May 11, 2020 by teleconference

REASONS FOR DECISION ON Motion

Introduction

1On May 11, 2020, I heard oral submissions by teleconference on the urgent motion brought by the Applicant. She seeks a temporary order setting out a parenting schedule for the parties’ two young children, Aila Ishkanian (born November 10, 2015) and Aiven Ishkanian (born February 8, 2017) (“the children”). She asks that the children be returned to her primary care. She seeks to set the Respondent’s parenting time as alternate weekends from Friday at 6:00 pm to Sunday at 6:00 pm, and every Tuesday and Thursday from 6:00 pm to 8:00 pm.

2The sole issue on this motion is what temporary parenting schedule is in the best interests of the children.

Positions of the Parties

3The Applicant’s position is that she has been the children’s primary caregiver all of their lives and that they are closely bonded with her. Prior to the parties’ separation, she was the parent who took the children to their various activities. She also home schooled the children using the Reggio Emilia Method. She is very familiar with techniques to support Aila’s speech therapy and dyslexia treatment programmes. She proposes to continue to do so, adjusting to the current restrictions as a result of COVID-19.

4The Applicant adduced evidence, including affidavits from her sister, Dr. Arshiya Hakim, and the children’s “morning” nanny, Stacy Brooks. Both of these witnesses confirm the Applicant’s evidence as to her role as the children’s primary parent and her involvement in their education, therapy and other activities. Those witnesses also confirm that the sudden separation from their mother has taken an emotional toll on the children. The Applicant argued that it is in the children’s best interests that the status quo prior to parties’ separation, continue. To this end, she argued, the children must be primarily resident with her, with the Respondent having access on alternating weekends and two non-overnight evenings during the week.

5The Respondent opposed the motion. In his affidavit of April 20, 2020, he stated that he has significant concerns with the Applicant’s ability to parent the children. He pointed to what he says are her serious and long-standing mental health issues. He disputed the Applicant’s contentions she was the children’s primary caregiver and that they are bonded to her. He maintained that the Applicant exaggerates her ability to home school the children. He simultaneously denied that she home schooled them and claimed that her home schooling was too onerous on the children. He refused to acknowledge that the children missed their mother, and denied that they have suffered any negative emotional consequences as a result of their sudden separation from her. Most significantly, he asserted that the Applicant’s parenting time with the children had to be severely limited and supervised. He swore that he did not think the children were safe in her care.

6The Respondent adduced evidence from his brother, Dr. Ryan Ishkanian, his mother Rosemary Ishkanian, and a babysitter he hired post-separation, Maria Araceli Podsiadly. These witnesses supported the Respondent’s claims about the Applicant’s deteriorating mental health, her lack of involvement with the children and her shortcomings as a parent.

7The Respondent’s allegations do not align with the position that he took in the argument of this motion. His evidence is that the children were not safe in the Applicant’s care and that her parenting time had to be both limited and supervised. Yet, at his questioning two weeks after swearing his affidavit and then at the hearing of this motion, the Respondent argued that the parenting time should be split 50/50 with a 2/2/3 schedule. Those positions are mutually inconsistent.

Interim Order Made

8On May 14, 2020, I made an Interim Order that the children be returned to the primary care of the Applicant and that the Respondent’s parenting time be every other weekend from Friday at 6:00 pm to Sunday at 6:00 pm, and every Tuesday and Thursday from 6:00 pm to 8:00 pm. I indicated that my Reasons for the decision would follow.

9These are those Reasons.

Procedural History

10The parties separated on March 9, 2020. On that day, the Applicant was charged with assaulting the Respondent and removed from the family home. On April 14, 2020, counsel for the Applicant wrote to the court according to the Superior Court of Justice Practice Direction dated March 15, 2020 to request that this motion be heard on an urgent basis.

11April 14, 2020, I ordered that this matter proceed in writing. I was satisfied that the requirement for urgency was met at the threshold stage. I provided directions with respect to the materials for the motion, including limits as to their size and a timetable for filing.

12The matter then came before Conlan J. on April 22, 2020. He had the benefit of seeing all of the motion materials. Conlan J. concluded that the matter could not proceed in writing and ordered a case management conference.

13A telephone case conference before Fitzpatrick J. was held April 29, 2020, with a follow up on May 1, 2020. There was no resolution of any of the issues. In his endorsement of May 5, 2020, Fitzpatrick J. ordered questioning of the parties prior to the motion. He also allowed the parties to file supplementary factums and relevant transcripts. He set the motion for an oral hearing on May 11, 2020.

14On May 6, 2020, the Respondent requested to adjourn that motion. He argued before me that the Applicant had improperly refused to answer certain questions at her questioning. She did refuse to answer some of his questions about the underlying events that are the subject matter of the criminal assault charge before the courts. She also refused to disclose the advice she received from her criminal lawyers regarding the assault charge and a careless driving charge, also before the court. She refused to produce her criminal lawyer’s file to the Respondent. She asserted solicitor-client privilege.

15While the Applicant undertook to provide some recent therapeutic records, she refused to produce the records of a consultation and assessment with other health service providers and refused to answer questions about the contents of some counselling sessions. Most but not all of these questions were about her post-partum therapy or treatment.

16In light of her refusals, the Respondent argued that this motion could not proceed. The Applicant opposed the adjournment. I heard oral submissions by teleconference on May 7, 2020. On May 8, 2020, I dismissed the Respondent’s adjournment request. I was satisfied that the motion could be adjudicated on the merits based on the materials and evidence filed. The materials he requested, if not privileged, were not material to the central issue on this motion: the best interests of the children. I left it open to the Respondent to bring a separate motion at a future time with respect to the refusals and undertakings.

17Having now heard the motion, I remain satisfied that it proceeded on a complete record of relevant evidence and that the refusals and undertakings had no bearing on my ability to adjudicate the merits of this motion.

Motion Record and Other Material Received by Email

18For this motion, I have received electronically and considered the following materials:

(a) Letter dated April 14, 2020, requesting the motion to be heard on an urgent basis; (b) Endorsement of Conlan J. dated April 22, 2020; (c) Endorsement of Fitzpatrick J. dated May 5, 2020; (d) Motion Record in three volumes, which included:

Volume 1

1. Notice of Motion dated April 14, 2020
2. Applicant, Dr. Fazilat Fatima Ishkanian’s Affidavit dated April 14, 2020
3. Applicant, Dr. Fazilat Fatima Ishkanian’s Form 35.1 dated April 14, 2020
4. Dr. Arshiya Hakim’s Affidavit dated April 13, 2020

Volume 2

5. Stacy Brooks’ Affidavit dated April 13, 2020
6. Affidavit of Service of Genevieve Bergeron-Warren dated April 14, 2020
7. Respondent, Dr. Adrian Shea Ishkanian’s Affidavit dated April 20, 2020
8. Respondent, Dr. Adrian Shea Ishkanian’s Form 35.1 dated April 20, 2020

Volume 3

9. Dr. Ryan Alexander Ishkanian’s Affidavit dated April 20, 2020
10. Rosemary Ishkanian’s Affidavit dated April 20, 2020
11. Maria Araceli Podsiadly’s Affidavit dated April 20, 2020
12. Applicant, Dr. Fazilat Fatima Ishkanian’s Reply Affidavit dated April 21, 2020
13. Affidavit of Service of Genevieve Bergeron-Warren dated April 21, 2020
14. Applicant, Dr. Fazilat Ishkanian’s Statement of Law dated April 14, 2020
15. Applicant, Dr. Fazilat Fatima Ishkanian’s Book of Authorities
16. Respondent, Dr. Adrian Shea Ishkanian’s Statement of Law dated April 20, 2020
17. Draft Order of the Applicant, Dr. Fazilat Fatima Ishkanian.

(e) Supplementary Factum of the Applicant dated May 7, 2020; (f) Supplementary Factum of the Respondent dated May 7, 2020; (g) Transcript of the Questioning of the Applicant dated May 4, 2020; (h) Transcript of the Questioning of the Respondent dated May 5, 2020; (i) A Chart of Undertakings, advisements and refusals given by the Applicant; (j) A Chart of Undertakings, advisements and refusals given by the Respondent (k) Draft order submitted by the Respondent on May 11, 2020.

19These materials are to be made part of the continuing record once regular operations of the court resume.

Narrative Background

20The parties began cohabiting in 2010 and were married in June 2013. Both are doctors, specializing in Radiation Oncology. Their two daughters, Aila and Aiven, are four and three years old respectively. Since 2015, the parties and the children relocated more than once. In October 2017 the family moved from Miami, Florida to Ontario. Although she had a career in Radiation Oncology, the Applicant has been a ‘stay at home’ mother since the birth of their first child in November 2015. The Respondent works full time as a Radiation Oncologist.

Events on March 9, 2020

21On March 9, 2020, the parties had an argument and the Respondent called the police. Three police officers attended. One officer spoke with the Applicant and another spoke with the Respondent. The Applicant was arrested and charged with one count of simple assault, contrary to s. 266 of the Criminal Code.

22In their sworn evidence on this motion, the parties offer divergent accounts of what happened. The Respondent alleges that the Applicant assaulted him by scratching his neck and tearing his T-shirt. In evidence before me is an email from the police confirming that a Scenes of Crime officer took photos of both the Respondent and the T-shirt he said that the Applicant tore. The reported injuries are described in the email as scratches to the left side and rear of the Respondent’s neck.

23The Respondent also put into evidence a photo of himself taking a photo in a mirror. It depicts a visible a scratch on his upper arm. The ‘selfie’ is not dated. The email from the police makes no mention of the Respondent reporting an injury to his arm.

24The Applicant denies assaulting the Respondent. She states in her affidavit that the Respondent has deliberately fabricated the criminal allegations against her. She believes that he did so in order to gain an advantage in this family litigation.

25The children were in the home at the time of the argument. The parties do not agree whether the children were aware of the conflict between them. The Applicant says they were downstairs watching television. The Respondent says they were upstairs, crying. The babysitter, Ms. Podsiadly, who arrived a short time after the incident, said that the children were in their beds.

26The Applicant was released by the police on her own undertaking (one of the least onerous forms of release available under the Criminal Code). Conditions of her release included that she not attend at the matrimonial home or communicate directly with the Respondent. She was required to attend court for a first appearance on April 7, 2020. In light of the subsequent shutdown of regular court operations due to COVID-19, it may be that this date was postponed.

27Significantly, the release terms placed no restrictions whatsoever on the Applicant’s ability to parent or access the children. Despite this, the Respondent took it onto himself to severely limit the children’s time with their mother post-separation.

Post-Separation Events

28After her arrest and removal from the matrimonial home, the Applicant stayed with her sister, Dr. Arshiya Hakim, for a few weeks. The Applicant believed that she and the Respondent would reconcile, that the criminal charges would be dropped, and that she would return to the matrimonial home. Her hopes in this regard were proven wrong when she received a letter on April 7, 2020, [1] in which the Respondent’s lawyer at that time (not Mr. Joseph) states that the Respondent “considered the marriage was over on a final basis on March 9, 2020 […]”.

29Until she received that letter, the Applicant had tried to negotiate a parenting schedule with the Respondent through her sister, Dr. Hakim.

30Dr. Hakim indicates in her affidavit that, in the days following the Applicant’s arrest, she attempted to negotiate the children’s access to their mother. She believed she was dealing with the immediate issue of the Applicant not being allowed to return to the matrimonial home, not a long-term separation. Emails and text messages between her and the Respondent confirm this.

31The Respondent initially refused to allow the children to see their mother. According to Dr. Hakim, he offered various excuses. Some of the reasons he gave were that he was busy, he had to think about it and that he was not sure what to do. On March 14, 2020, the Respondent texted Dr. Hakim stating: “[…] it is not her legal right to have any access to them right now…[v]isitation is completely up to me and whatever I’m comfortable with until the court date and decision”.

32I infer that the “court date and decision” relied on by the Respondent in this text message to Dr. Hakim must be for the criminal assault charge. There were no family law proceedings at that time. I infer from his text message that the Respondent meant that he could dictate the parenting schedule until either the first appearance in the criminal matter or a final resolution of that charge. (The Applicant’s criminal lawyer, Frank Addario, estimated that a trial or conclusion of the criminal matter, would be 7 to 12 months later. I accept this as an accurate estimate).

33The Respondent allowed the children to see their mother for short periods of time starting March 11, 2020. The first three visits were unsupervised at the Applicant’s sister’s home. Then, the Respondent insisted that the Applicant’s time with the children be supervised. He hired Ms. Podsiadly as a babysitter and to attend with the children at their mother’s residence for the day and to take notes during the visits. Ms. Podsiadly’s first day on the job was March 16, 2020.

34The Respondent would not allow the children to have any overnight visits with their mother. In an email to the Applicant’s sister dated March 11, 2020, he maintained that the children were “mandated” to stay with him overnight. This was not true. There was nothing mandating the children to stay with him overnight.

35The “supervision” of the Applicant’s parenting time with the children stopped after the case conference with Fitzpatrick J. By the time of the hearing of the motion, the Respondent permitted the children to see the Applicant roughly Mondays, Wednesdays and Fridays from 10:30 or 11:00 am until 6:00 or 7:00 p.m.

Analysis

36As set out above, the only issue on this motion is what parenting plan is in the best interests of the children. Because the parties offer divergent accounts of their roles and abilities to parent, much of the determination of this issue turns on an assessment of their credibility.

The Respondent’s Credibility

37There are obvious and important differences in the narratives provided by each party in their evidence. That is why credibility becomes so significant an issue. Having considered all of the evidence provided to me, I am unable to accept any of the evidence offered by the Respondent where it diverges from that of the Applicant.

38In my view, his evidence is deeply flawed. First, it is fundamentally inconsistent with his ultimate litigation stance. Second, it is seriously undermined by prior inconsistent statements he has made to the court. Third, it is internally inconsistent on the question of homeschooling.

39In his affidavit sworn April 20, 2020, the Respondent made very serious allegations that the Applicant is mentally unstable, that these mental health issues are long-standing and that he has concerns about the safety of the children when they are in the Applicant’s care. He insisted in that affidavit that her time with the children had to be severely limited and supervised. He put forward the evidence of his brother, a psychiatrist, to confirm the Applicant’s long-term mental illness and deteriorating mental state.

40In his affidavit, the Respondent stated that he has spoken with the Applicant many times about seeking professional help, which she refused. He stated that she self-medicates with alcohol in her bedroom and that her behaviour is “manic” and “aggressive.” He concluded, at para. 22, he has “no confidence the children are safe in [the Applicant’s] unsupervised care.” Emphatically, he states that she needs psychiatric help and that she has needed it for “a long time” (at paras. 23 & 46).

41The Respondent’s brother, Dr. Ryan Ishkanian, is a licensed and practicing psychiatrist in Kelowna, B.C. He had never treated the Applicant. Based on his observations and interactions at family visits, during two weeks each year from 2017-2019, Dr. Ishkanian offered sworn evidence that in his opinion the Applicant displays “erratic, paranoid, aggressive behaviour”. This led him to conclude that she struggles with mental illness. In his sworn affidavit, Dr. Ishkanian warned that if the Applicant is untreated, she would become “increasingly erratic and potentially violent”. He opined that she suffers from “paranoid constructs” and has “a worsening psychiatric disorder”.

42Dr. Ishkanian’s opinions are clearly inadmissible and I have disregarded that aspect of his evidence. He is not and could not qualify as an independent expert under rule 20.1 of the Family Law Rules, O. Reg. 114/99. He is the Respondent’s brother and does not provide an opinion that is “fair, objective and non-partisan” as required under the rule. Not having treated the Applicant, Dr. Ishkanian is also not a participation expert. Further, I cannot ignore the fact that his evidence is fundamentally inconsistent with the litigation stance taken by the Respondent during the argument of this motion. That must mean that the Respondent does not accept his brother’s “diagnosis”.

43Fourteen days after the Respondent and his brother swore their respective affidavits, the Respondent testified at questioning. He stated that a 50:50 parenting arrangement with the Applicant was acceptable to him. At around the same time, the Respondent stopped insisting that the Applicant’s time with the children be supervised. [2]

44Even before preparing and swearing his affidavit, the Respondent indicated that he had no concerns with a 50:50 parenting arrangement. In an email to the Applicant’s sister dated March 11, 2020, the Respondent stated” “My lawyer suggested tonight most situations like this we set up a 50:50 arrangement which I’m ok with ” [emphasis added].

45The Respondent’s evidence is also inconsistent with representations he made to court on a prior occasion. The Applicant was charged with careless driving as a result of a motor vehicle collision in the fall of 2019. The matter was heard in the Ontario Court of Justice. The Respondent wrote a letter to that court, on his professional letterhead, in support of the Applicant, making a number of factual representations.

46In his letter, dated February 8, 2020 – a month prior to the parties’ separation – the Respondent told a judge the following:

Dr. Ishkanian has taken temporary leave from her clinical duties to care for and homeschool our now 3 and 4 year old daughters. Our children rely on her daily for their wellbeing, and all daily activities. She personally drives them to approximately ten educational, musical and physical activities each week, and has had to go above and beyond to care for our oldest with special needs including taking her to therapeutic programs. She has been maintaining this schedule now for over two years. She does this by herself, and with their safety as her first priority. In fact, on the day of this accident, she was driving to meet her sister and niece for a day at the science museum. It is implausible to me how a mother with two children in her car would drive in a manner required to receive a criminal traffic offence or drive in a manner that would put her own children in harms way.

Dr. Ishkanian is of sound mind and character. She has been an exemplary driver for over two decades. She is a mother and an oncologist, and has innate empathy and sensibility. She has never acted in a criminal manner, nor every been charged or convicted with criminal traffic offences. [Emphasis added]

47The Respondent argued before me that it is unfair that the letter he wrote to the court in February was not adduced by the Applicant with her initial affidavit, but only in her reply. This gave him no opportunity to respond, so he was improperly “ambushed”.

48I do not accept this argument. The Respondent knew that he wrote that letter when he swore his affidavit on April 20, 2020. In that affidavit, he mentioned the accident that led to the careless driving charge in para. 47. He swore that his concerns with the Applicant’s mental health “deepened” after she was charged as a result of that motor vehicle accident. He wrote the February 8, 2020 letter to the court just over two months prior to swearing his affidavit. Having raised the issue of the accident, it was completely proper for the Applicant to use his letter to reply to his allegations. So his own contradictory statements to a court about this same incident can be no surprise to him.

49At questioning, the Respondent also claimed that he wrote the February 8, 2020 letter to appease the Applicant and to keep his family together. I do not accept this explanation either, for two reasons. First, it makes no sense. On February 8, 2020 his family was together.

50Second, what is he saying is that when it is in his interests, he is willing to lie to a judge in a court proceeding. His explanation that he is prepared to make self-serving statements to a court without regard for their truth when it suits him cannot but detract from his credibility.

51Ultimately, I am unable to accept any of the evidence put forward by the Respondent. His evidence and that of his brother is fundamentally inconsistent with his litigation position, the views he expressed to Dr. Hakim prior to the commencement of the litigation and what he told the court on February 8, 2020.

52Given that the Respondent’s ultimate litigation position is that a 50:50 parenting schedule is in the best interests of the children, his sworn evidence to the contrary must be rejected as false or grossly exaggerated. Given the very serious concerns I have about his credibility I am unable to accept any of the Respondent’s evidence on any issues before me. It is simply not credible or reliable.

53Further, the supporting evidence of the Respondent’s mother and the babysitter, Ms. Podsiadly, is unhelpful, given their limited interactions with the Applicant and the children.

The Status Quo Prior to Separation

54Based on the evidence I do accept, I find the status quo prior to the separation saw the Applicant as the stay at home parent. The Applicant earned a Ph.D. in Medical Biophysics from the University of Toronto. She also holds an M.D. from McMaster University. After the birth of the first child, she became pregnant with the second child while on maternity leave. She then gave up the practice of medicine. She devoted herself to be a fully engaged parent and educator for her daughters.

55The evidence before me establishes that the Applicant read widely and attended multiple lectures and workshops about early childhood education. She studied the Reggio Emilia approach to learning. She travelled to Italy to take an international workshop in this method. She then created a classroom in her home for the stimulation and education of the children, in accordance with the recommendations of this method. Photographs of this classroom and the description of the Reggio Emilia method are put forward in the evidence. I am satisfied that the Applicant’s engagement with the children in this fashion is genuine and beneficial for the children.

56The eldest child required speech therapy to address stuttering: the Applicant took her to the speech pathologist and worked with the therapist to learn the recommended Lidcombe therapy method. She employs the method with Aila on a daily basis. The Respondent did not take the training and is not able to reinforce the therapy in the same way.

57The eldest child may have early signs of dyslexia. The Applicant attended a training program in the Davis Dyslexia Correction Method. The Applicant works with the child daily using this method. Again, the Respondent did not attend the training and is not able to reinforce the therapy in the same way.

58Stacy Brooks was hired by the parties to assist the Applicant some mornings. Contrary to the Respondent’s claim that this was necessary because the Applicant does not get up until 10:00 am, both the Applicant and Ms. Brooks attest that the nanny assists so that the Applicant can work with each child one on one, and to individualize the children’s learning.

59The Applicant also engaged the children in gymnastics, tennis, violin, French and even sign language. She has put forward a plan for how to maintain as many of these programs as possible during the COVID-19 pandemic.

60The fact that the Applicant is the primary caregiver to the children, is deeply bonded with them and very much engaged in their education and development is supported by the affidavit evidence of Dr. Hakim and Stacy Brooks. These facts are also confirmed by the Respondent in his letter to the court dated February 8, 2020. During questioning, the Respondent confirmed much of what he said to the court in the letter.

61I accept that the Respondent provided important supports for his family and these children. He participated in their direct care by being involved in their morning breakfast routines and evening bedtime routines. I accept that he did some of the grocery shopping, some meal preparation and laundry. With two young children close in age, who are busy with learning and activities, his support and participation was vital.

62At the same time, the Applicant was responsible for the overwhelming majority of the children’s daily care. The Respondent worked full time in a challenging professional capacity. His job is demanding and requires long hours. While he obviously participated in and contributed to the household, the status quo prior to the separation left the children primarily in the Applicant’s care.

63For the reasons set out above, I find that as a fact that there are no genuine concerns with the Applicant’s mental health or her ability to parent these children. The Children’s Aid Society (“CAS”) conducted an investigation when police laid charges, and ultimately closed its file. I also find that the status quo prior to the separation saw the children in the primary care of the Applicant.

The Assault Charge

64In light of serious concerns I have with the Respondent’s credibility, I am not prepared to give any weight on this motion to his assault allegations against the Applicant.

65As noted by Price J. in Gonzalez v. Trobradovic, 2014 ONSC 2468, the “court must be vigilant of the risk that parents may engage the criminal process in order to achieve a strategic advantage in family law proceedings”: at para. 54. The fact that allegations of domestic violence have been made is an important consideration in motions to address temporary custody and access.

66At the same time, as Chappel J. observed in Batsinda v. Batsinda, 2013 ONSC 7869, “the existence of criminal charges and proceedings respecting allegations of violence is not determinative of the issues of temporary custody and residence of the children of the parties’ relationship”: at para. 29. Chappel J. further held at para. 29 that:

The focus of the analysis remains at all times the best interests of the children, and this involves a careful consideration and weighing of all of the evidence and relevant factors. Part of this process involves a careful consideration of the evidence relating to the alleged violence and whether there are any clear concerns on the record before the court regarding the strength of that evidence. If there are concerns of this nature, the court should exercise caution before relying heavily on the existence of the criminal charges. (see Shaw v. Shaw, 2008 Carswell, Ont. 1626 (O.C.J.)). Allowing the existence of criminal charges in such circumstances to dictate the outcome of the motion runs the risk of allowing a party to invoke the criminal law system as a tool to gain an unfair advantage and hijack the Family Law proceedings.

67In any event, even if the Respondent’s version of an assault is true, I find that the incident on March 9, 2020, does not give rise to genuine concerns with the Applicant’s ability to parent or the safety of the children. The past conduct of a person is not relevant to a determination of an application for custody or access to a child unless that conduct is relevant to the ability of the person to act as a parent (s. 24 (3) Children’s Law Reform Act, R.S.O. 1990, c C. 12). I have also considered the incident in light of the amendments to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) to be in force in the not so distant future. In my view, the alleged assault in this case is not relevant to the Applicant’s ability to parent these children. It is no more relevant than the Respondent’s admitted viewing of pornography is relevant to his ability to parent.

68The parties have now separated. The CAS had no concerns and has closed its investigative file. There are conditions in place to restrict contact between the parties. There are no conditions in place restricting the Applicant’s ability to parent the children. I am satisfied that the risk of the children being exposed to further parental conflict is minimal, if any.

A Parenting Schedule in the Children’s Best Interest

69I am of the view that it is in the children’s best interests that the status quo prior to separation be maintained at this time. Stability and continuing of care are primary needs for young children, especially during matrimonial disputes. (Bloom v. Bloom, 2017 ONSC 1568 at para. 38; Gonzalez, at para. 53). Unless there are compelling reasons to change it, the status quo should be maintained on an interim custody and access motion (Bloom, at para. 35; Children’s Law Reform Act, s. 24(2)). In my view, it is in the children’s best interests at this time to maintain the continuity of care, which means remaining primarily in the care of the Applicant.

70While continuity of care is important, it must also be recognized that this does not mean that residence with the stay-at-home parent is presumed to be in the best interests of children. When parents separate, adjustments must be made by the entire family. Access is the right of the child, not the parent. Equal access to both parents may be in a child’s best interest. Decisions made by parents when they are together, such as that one parent will remain at home and one parent with work full time, will be revisited after a separation. Continuity of care must be looked at in the context of the entire family dynamic changing upon separation.

71In this case, my decision that the children should remain in the Applicant’s primary care does not rest on the need to maintain the status quo alone. I considered whether a 50:50 parenting schedule would be in the children’s best interests. I rejected this option because I have serious concerns about the Respondent’s ability to take on a 50:50 parenting role at this time.

72These concerns arise for two reasons. First, I found that the Respondent did not act in the best interests of the children after the separation. Second, his demanding work schedule would effectively mean that the children would be left in the care of a hired babysitter, as opposed to their parent and primary caregiver, if I were to impose a 50:50 parenting schedule at this time.

Decisions Made by the Respondent Post-Separation

73I find that the Respondent tried to take advantage of criminal charges against the Applicant to gain an advantage in this litigation. He unreasonably limited the duration and frequency of the children’s access to their primary caregiver. There were no restrictions placed upon her parenting and contact with the children as a result of the criminal charges. The Respondent acted as if there were. He severely and unnecessarily limited the children’s access to their mother at a time when the children were stressed and vulnerable. In doing so, he did not have regard for their best interests.

74First, immediately upon the separation, the Respondent refused access. Then, he allowed three unsupervised visits. Then, he unilaterally imposed supervision by a third party as a condition to that access. He hired a babysitter to do this. The babysitter, Ms. Podsiadly, was essentially a stranger to the children. She had only babysat for the family twice from July 2019 until March 9, 2020. After the case conference on April 29, 2020, he stopped insisting on supervision. His insistence for supervision was entirely without justification.

75The Respondent refused to allow overnight visits. He told Dr. Hakim that the children were “mandated” to stay with him overnight. This was not true. I find that his refusal to allow overnights was also unreasonable and unjustified.

76The Respondent argues that the Applicant’s short-term accommodations – a one-bedroom Airbnb apartment – were unsuitable because it was a one-bedroom apartment. I reject this submission. The Applicant stayed for several weeks with her sister in a home that was more than suitable for overnights for two little girls. She then moved into the one-bedroom Airbnb apartment. This was at the peak of the COVID-19 shutdown at the end of March. Dr. Hakim’s husband is a doctor and a ‘front line worker’ during COVID-19. The Applicant moved to the one-bedroom apartment out of concern for everyone’s safety.

77There is no evidence before me that two young children cannot thrive in the care of a loving mother in a one-bedroom apartment. Many children around the world live, and thrive, with much less. The Respondent’s argument is not based on the children’s needs, but on unproven assumptions and socio-economic prejudices. I am not prepared to assume that a child needs her own bedroom or even her own bed in the short term when she is three and four years old or that this is more important than the stability of relationship with a primary parent. The reasonableness of any living arrangement must be looked at in context, having regard to the age of the children, their needs and their relationship to the parent. I find that these young children would not have suffered had they been permitted to stay overnight with their mother in the one-bedroom apartment.

78The Respondent expressed no concerns with the Applicant’s accommodations when the children spent the majority of their waking hours in her apartment, three or more days a week. Ms. Podsiadly described these children in her affidavit as “energetic”, at time “fussy” and “restless”. Looking after two young “energetic”, “restless”, “fussy” children in close quarters all day during the COVID-19 shutdown is not an easy task. This is especially so when they are not in a familiar environment, lack of their usual toys, arts and crafts, and other belongings and activities. Anyone who has looked after young children in such circumstances knows that the evening and bedtime routines are a welcome respite. If the one-bedroom apartment was good enough for the children to spend their days there, common sense suggests that it was good enough for them overnight too.

79In my view, the Respondent is using the argument that the Applicant’s accommodations were inadequate as an after-the-fact justification for his decision to forbid overnight stays. He did not raise any concerns with the Applicant’s accommodations in any of his communications or discussions with her leading up to this motion. The lack of suitable accommodations for the children was not a legitimate reason to withhold overnight access.

80I add that the Applicant is likely entitled to child support and likely to spousal support for the children on a compensatory basis. Once that support begins, she will be able to afford better accommodations. Indeed, as of the hearing of this motion, she has rented a four-bedroom home.

81I also do not accept the CAS investigation as a legitimate reason for the limited children’s access to the Applicant, supervision or denial of overnights. There is no evidence before me that the CAS had any concerns with the Applicant’s parenting. The CAS investigative file was closed in April. Even after it was closed, the Respondent continued to limit access, insist on supervision and refused overnights.

Refusal to Acknowledge Children’s Emotional Stress

82The Respondent denied that the children missed their mother or that her sudden removal from their home had any negative emotional consequences for them. As previously stated, I am unable to accept his evidence. I specifically reject his evidence in this regard as well.

83It is hard to imagine a situation where young children would not notice or care that their primary caregiver, day and night, is suddenly removed from their home and most of their daily routines are abandoned. I accept the evidence that the Applicant has been the children’s closest bond, caregiver and educator. To suddenly have her removed from the family home would obviously have an impact on the children. It is very troubling that the Respondent, rather than acknowledge the stress the children were under, would choose to diminish it.

84When he made decisions to restrict the children’s access to the Applicant, imposed third party supervision and forbade overnights, the Respondent was not acting in the best interests of these children. He made these decisions despite the stress the children were under. He refused to acknowledge that the children missed their mother. He unreasonably denied that her sudden removal from their home and disruption to their established daily routines had any emotional impact on them. He failed to recognize or refused to act in the best interests of the children at what is undoubtedly a very difficult time for them. It is very troubling that the Respondent put his interests in this litigation above his children’s interests.

85Given his conduct and failure to acknowledge the children’s stress, I am concerned about the Respondent’s ability to make decisions that are in the best interests of the children and to facilitate and foster the relationship with their mother.

Hired Babysitter v. Parent and Primary Caregiver

86In addition to my concerns about the Respondent’s decision making, the 50:50 parenting plan proposed by the Respondent would see these young children spend significant periods of time with a hired babysitter rather than a parent. The Respondent works full time as a Radiation Oncologist. During the COVID-19 crisis he spends time working from home. However, he is still working. While working, he is not available to engage with the children the way the Applicant does.

87After the separation, he hired Ms. Podsiadly to look after the children while he was working. He did so despite the fact that the Applicant has historically looked after them and remained available to do so. His and Ms. Podsiadly’s evidence make clear that his interactions with them are limited while he is working. He makes breakfast, checks on them during work breaks, and looks after their evening/bedtime routines. But the bulk of the day, when they are not with the Applicant, they are with the babysitter.

88At this time, given a choice between the children spending time with the Applicant, who is their mother and their primary care giver, or a hired babysitter, it is clearly in the best interests of these children that they spend their time with Applicant. This is what the children were accustomed to prior to the separation, and it is in their best interests for this arrangement to continue at this time.

89As a result, I have concluded that it is in the best interests of the children to remain in the primary care of the Applicant, and for the Respondent to have parenting time as I have set out in the Interim Order.

90I must emphasize that this is a temporary order. As the children age and their routines change, I imagine the Respondent’s parenting time expanding. If these children were older, and in school full time, I would have been more inclined to order a 50:50 parenting schedule provided that the Respondent is able to demonstrate that he is prepared to prioritize the best interests of his children and to facilitate their relationship with their mother.

Exclusive Possession of the Matrimonial Home

91In her Notice of Motion dated April 14, 2020, the Applicant sought exclusive possession of the matrimonial home. Her primary basis for seeking to return to her home was that she had created a classroom/playroom in the matrimonial home for the children in accordance with the Reggio Emilia method. Photographs of the room depict an impressive room, filled with light and activities intended to engage and stimulate the children.

92In the time that it has taken this motion to be heard, the Applicant rented and entered into a one-year lease of a four-bedroom home near the matrimonial home. The Applicant says she can create another classroom/playroom for the children in her new rental accommodations. At this time, she is no longer seeking exclusive possession of the matrimonial. She asks that this part of her motion be adjourned sine die.

93The Respondent asks that this part of the motion be dismissed, with costs. He asserts that the Applicant has acted in bad faith in advancing and then abandoning the request for exclusive possession of the matrimonial house.

94I do not accept the Respondent’s argument in this regard. It was urgent that the Applicant find a suitable alternative accommodation given the delays in having this motion heard. Fortunately, she was able to do so.

95Even if I were to order exclusive possession of the matrimonial home now, the Applicant would require a variation of her release conditions. As set out earlier, the terms of her release prohibit her from attending at the matrimonial home. During the current suspension of normal court operations in both this court and in the Ontario Court of Justice, obtaining such a variation may have taken additional time. The Applicant’s priority was to be reunited with the children.

96I accept that the Applicant’s decision not to pursue exclusive possession of the matrimonial home was made in good faith and for good, practical reasons. I would dismiss her motion (with no order as to costs) in this regard rather than adjourn it, but I do so without prejudice to the Applicant’s ability to seek such relief in the future should circumstances change.

Police Enforcement

97The Applicant also initially sought police enforcement of any terms of access or custody. She no longer seeks such an order. I am of the view, given the current dynamics between the parties, there is no need for police enforcement of any custody or access order at this time.

Conclusion

98For these Reasons, I found that it is in the best interests of the children that they remain primarily resident with the Applicant in the interim, with access to the Respondent on alternating weekends and Tuesdays and Thursdays from 6:00 pm to 8:00 pm.

Costs of This Motion

99The parties are encouraged to agree upon appropriate costs for this motion and the case conference held before Fitzpatrick J. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent shall have a further 14 days to respond; and the Applicant shall have a further 7 days for a reply, if any.

100If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

101If I have not received response or reply submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.

(“ Original signed by”)

Chozik J.

Date: June 9, 2020

COURT FILE NO.: 26/20 DATE: 2020 06 09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Dr. Fazilat Fatima Ishkanian, Applicant AND: Dr. Adrian Shea Ishkanian, Respondent REASONS FOR decision on motion Chozik J.

Released: June 9, 2020

Footnotes

1The letter is dated March 7, 2020. The Applicant states that it is misdated, and that she received it April 7, 2020. I accept her evidence in this regard. It would be very concerning if the letter was actually drafted by the lawyer (not Mr. Joseph) on March 7, 2020 as it would predate the separation and the alleged assault on March 9, 2020.

2I note that sometime after the affidavits in response to the motion were prepared and sworn, the Respondent changed lawyers. The affidavits were sworn before the Respondent was represented by Mr. Joseph.