Court File and Parties
COURT FILE NO.: FC1062/20
DATE: December 24, 2020
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Eman Mabed, applicant
AND:
Hadi Alshawaf, respondent
BEFORE: TOBIN J.
COUNSEL: Kristine Jackson for the applicant
Salim J. Khot for the respondent
HEARD: December 16, 2020 by Zoom conference
ENDORSEMENT
[1] There are two motions before the court. Both parties want:
a) interim custody or primary care of their three children;
b) defined access for the other; and
c) exclusive possession of the matrimonial home.
[2] The respondent’s notice of motion requests an order that the matrimonial home be sold. However, this relief was not requested when the motion was argued.
[3] The basis of the applicant’s (the mother’s) request is that: she has always been the children’s primary caregiver; the father has long been abusive to her; the children are suffering because of the ongoing conflict between the parents; and she has no other place to go with the children.
[4] The basis of the respondent’s (the father’s) claim is that: he has been an equal participant in the care of the children; the mother abuses him; she is trying to alienate the children from him; the children are caught in the middle of this conflict; and he has nowhere else to go.
Background Facts
[5] While living in Saudi Arabia, the parties married in 2003 and divorced in 2005. They remarried in May 2016.
[6] They are the parents of three children, ages 14, 11 and 6.
[7] In August 2013, the parties and the two older children moved to Canada. Their youngest child was born after they arrived in Canada.
[8] Sometime after their arrival, the father returned to Saudi Arabia to find employment so that he could support the family. He remained there for three years, returning in 2016. The family visited with each other on occasion during this period.
[9] Neither party was able to obtain employment in their respective professions in Canada, so they returned to school. The mother expects to complete her qualifications in the new year, as does the father. The mother attends school, including online. The father has part-time employment outside of the home.
[10] The parties separated in June 2019, reconciled briefly and finally separated in December 2019. They have lived separate and apart in the matrimonial home since separating.
[11] Despite living together under the same roof for over one year, they have not been able to resolve issues arising from their separation.
[12] Now, both parties want the children to remain in their respective care and have the other leave the matrimonial home.
Evidentiary Issues: Contradictory Evidence and Videos
[13] There is much contradictory evidence, especially regarding domestic violence and conflict. None of this evidence has been tested by cross-examination. Also, the affidavit evidence contains argument and conclusory statements. These statements are not admissible evidence that the court can rely upon. As will be set out below, there are certain facts which are not in dispute and upon which a decision on the issues raised, can be based.
[14] In addition to the affidavit evidence filed, the father wants the court to admit four videos he took. In the four videos, the language spoken is Arabic. Counsel for the father filed an English language transcript of what was said by the persons shown in the videos. The accuracy of this transcript was not challenged by the mother.
[15] The father claims that these videos and the transcripts are probative of the issue of domestic conflict which has been raised in this case. He states that these videos show the mother to be the aggressor and that she involves the children in the parties’ conflict.
[16] The mother did not raise concerns about the authenticity of the recordings: see Evidence Act, R.S.O. 1990, c. E. 23 s. 34.1. However, she does argue that the videos are not a complete representation of the incidents purported to be shown. Without seeing or understanding the entirety of the events, context is missing and the conclusions to be drawn will be misleading. As a consequence, she argues, the videos are not reliable evidence.
[17] The mother also argues that the videos should be excluded for policy reasons: the prejudicial effect of the videos outweighs their probative value.
[18] Before these videos can be admitted in evidence, they must be found to be relevant to the matter that is in issue. The conflict between the parties, and in particular who was to blame for causing the domestic conflict, and whether the children have been exposed to it, are in issue. These videos are relevant to the issues before the Court on this motion.
[19] Courts have strongly discouraged the use of surreptitious recordings in family law matters: Hameed v. Hameed, [2006] ONCJ 274 and DeGiorgio v. DeGiorgio, 2020 ONSC 1674. The use of this type of evidence which violates a person’s privacy tends to increase conflict and mistrust between persons who should work together for the benefit of their children. It also sends the wrong message to the parties by rewarding and condoning a deceitful practice: DeGiorgio, at para. 12.
[20] Videos 1, 2 and 3 were not taken without the mother’s knowledge. The father had his cell phone in his hand while engaging with the mother. It is clear from the videos she was aware he was taking them. She did not want him to continue taking video pictures. I am satisfied that the probative value of these three videos outweighs the prejudice to the mother by reason of their being admitted into evidence.
[21] The weight and interpretation to be given to this evidence are separate considerations and which are dealt with below.
[22] The mother’s evidence is that video 1 took place the day after the father had assaulted her. On the day the video was taken, the father “did everything to push [her] to lose control of [her] temper.”[^1] The video does not show the events leading up to the time of the recording being made. The father says he took the video to protect himself.
[23] In video 2, the father filmed the mother while she was not wearing her hijab. She viewed this as him invading her privacy. In this video, the mother appears to be trying to take away the father’s cell phone.
[24] In video 3, the mother was angry with the father. Her evidence is that, just before returning home and the father beginning to video, she learned that he copied some of her personal documents without her permission. She also learned that the father’s family were led to believe that the mother and father had been divorced religiously for two years. She felt that her reputation was impugned. The video shows the mother trying to push the cell phone out of the way.
[25] I agree with the mother that the manner in which these videos were taken by the father appeared to escalate the conflict between them. In all three videos, the mother did not want the father to be filming. His actions in doing so appeared to be provocative and inflamed the situation. While it is clear that the mother was upset in these videos, she explains why she had good reason to be so.
[26] In one of the videos, the children are present and were engaged by the mother. The father continued to film.
[27] Though admitted in evidence, I place little weight on these videos to support the father’s proposition that the mother is responsible for the domestic conflict. I am not able to determine, on the basis of these videos, that the mother is solely responsible for the conflict between the parties as claimed by the father.
[28] Both parents are responsible for this conflict.
[29] Video 4 was recorded without the mother’s knowledge. In that video, one can hear that the mother demands that the father leave the house. He refuses. The mother believes that the father had married somebody else. He denied it. However, the affidavit evidence filed discloses that the father had in fact married his cousin in a religious ceremony. When the mother learned about this, she was upset.
[30] I find that, for policy reasons, video 4 is not to be admitted in evidence. The prejudicial effect outweighs any probative value. The court does not condone the deceitful behavior by the father in recording this conversation.
Parenting
[31] The issue of the parenting arrangements for the children is to be resolved having regard to their best interests.
[32] As stated above, there is much contradictory evidence. However, the following evidence appears not to be in dispute:
Shortly after the parties arrived in Canada, the father returned to Saudi Arabia for approximately three years. But for the times they were able to visit, the mother was responsible for the care and upbringing of the children for those three years.
The father has always been the parent primarily responsible for providing financially for the family.
The mother was primarily responsible for caring for the children and the family home.
Following the father’s return to Canada, the father did participate in caring for the children. He attended appointments and engaged in recreational activities with them. He participated in meeting their educational needs.
The mother acknowledged that the father could be a fine parent, good with the children and affectionate with them.
The mother was not regularly employed outside of the home. She has attended school, including online. She was and will remain available to care for the children. She has the support of her extended family when help is needed.
On one occasion, the father left the family home to return to Saudi Arabia for approximately 45 days. The children remained in the mother’s care.
When the police were involved on the day the parties first separated, it was the mother who left with the children, although they subsequently returned.
The parties have lived separate and apart under the same roof since December 2019.
After the parties separated, the father married his cousin in a religious ceremony. In October 2020, he obtained a religious divorce from her.
Since the parties separated, on occasion the father would leave the home for a few days at a time. The children remained with the mother.
The father occupies the basement of the matrimonial home. The mother occupies her bedroom.
The parties share the kitchen and other living space in their home.
On October 14, 2020, the police were called to the matrimonial home again. The mother and children left the home for a brief period.
There has been domestic conflict between the parties. The children have been exposed to this domestic conflict.
The parties agree that the children have been adversely affected by this domestic conflict. The children are spending more time in their rooms and the school performance of the eldest and youngest has suffered.
The father is employed on a part-time basis. He does not have extended family readily available to help him care for the children.
In his affidavit evidence, the father states that he has not left the home because he “wanted to continue to be involved with the children and see them regularly. [He] verily believe[s] that the [mother] would withhold the children from [him] …”[^2]
[33] The best interests of the children will be met; by them no longer being exposed to domestic conflict, seeing both parents being respectful of the other and supporting the other’s relationship with them, and with a regular and predictable schedule of time each parent is to be responsible for the care of them.
[34] On the evidence before the court, I find that the mother has been and continues to be the parent primarily responsible for the care of the children.
They have consistently remained with her when the parties were apart.
The father, as the parent primarily responsible for financial support of the family, has not been and is not at home the same amount of time as the mother to care for the children.
The father’s evidence that he wants to remain in their lives is most revealing. He claims that if he is their primary parent, this will ensure that the mother does not interfere with his relationship. On the evidence before the court, I am not able to find that that is the mother’s intent. In her evidence, the mother recognized the father’s strengths as a parent. In the father’s evidence, he did not do the same with respect to the mother.
The parties claim that the other is responsible for the domestic conflict in the various forms they describe. On the contradictory evidence before the court, I make no finding that one parent is more responsible than the other. However, it is clear that the children have been and continue to be exposed to this conflict.
[35] I find that it is in the children’s best interests that they reside in the primary care of the mother:
This will continue what has been the long-standing parenting arrangement.
The mother recognizes the father’s strengths as a parent.
It is not in the children’s best interest to change the status quo by granting the father custody or primary care of the children
The mother is at home and more available for the children. When needed, the mother has the immediate support of her extended family.
The father’s schedule is less flexible, and he does not have supportive family close at hand.
The mother is better able to meet the day to day needs of the children.
[36] The mother is not to make any significant decisions regarding the children’s health, education, or general welfare without first consulting with the father and seeking his input.
[37] The father’s parenting time is to be regular and frequent.
[38] The parties are not to expose the children to any further domestic conflict of any sort.
[39] The parties must understand that a child exposed to conflict between their parents is at risk for psychological and physiological harm. The both have seen the effect that their fighting has on their children. As loving and concerned parents, they must now act in a manner that protects the children from this risk of harm.
Exclusive Possession
[40] Both parties ask for an order for exclusive possession of the matrimonial home.
[41] The mother argues that she should be granted exclusive possession because the children will continue to experience exposure to adult conflict if the father remains in the matrimonial home. Also, she is concerned that if the conflict does not abate, one of the parties will suffer criminal charges and be removed from the home. The mother wants to avoid this from happening.
[42] The mother does not have suitable alternate premises. In the past when she left with the children because of conflict, she went to her sister’s house. This home is not a viable long-term solution as that home is too small for everyone and would be disruptive to the children.
[43] The father does not want to remain in the home for the long-term. He wants it sold or his interest purchased from him. Despite being separated for over a year, the parties have not yet been able to resolve this issue.
[44] The father argues that he should be granted exclusive possession because the mother has available to her other accommodations, including with her family members in the same complex where they now live. As well, she is the person who has caused conflict in the home and upset the children. He does not have suitable alternate accommodations as his family lives overseas. His only relation in London is his cousin, to whom he is no longer married.
[45] In his financial statement sworn December 4, 2020, the father discloses annual income of $35,264, which includes $1800 per month from the Canada Recovery Benefit. He is employed on a part-time basis and is studying for his pharmacy licence, and which I understand he will attempt to earn in January 2021.
[46] I am mindful that an order for exclusive possession is dramatic in effect and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial. An exclusive possession order primarily arises in circumstances where continued joint occupation is a potential or real threat to the safety or well-being of a child: Menchella v. Menchella, 2012 ONSC 1861, at paras. 15 and 16.
[47] In this case, I am able to find as a fact that there is conflict in the matrimonial home to such an extent that the well-being of the children is at risk. The evidence is uncontroverted that the children are adversely affected by the parents’ domestic conflict. The police were called to their home on more than one occasion. The mother left the home on more than one occasion with the children to separate the parents and remove the children from further exposure to conflict. The situation in this home goes beyond unpleasantness, inconvenience, and some tension: Hollinger v. Wang, 2019 ONSC 4807, at para. 29.
[48] I find that it is in the best interests of the children to remain in the matrimonial home with the mother.
She will continue to be the children’s primary caregiver.
The children will be able to continue living in their familiar home, which is near extended family.
On the evidence, I am not able to ascertain the children’s views and preferences.
Remaining in the matrimonial home with the mother will result in the least amount of disruption for the children.
[49] The court must consider the financial circumstances of the parties in determining whether to grant an exclusive possession order and, if so, on what terms. I accept the father’s evidence that he does not have suitable and affordable alternative premises immediately available to him. There is jurisdiction in the Family Law Act, R.S.O. 1990, c. F.3 to order exclusive possession of the matrimonial home to one spouse on a non-immediate basis.
[50] The father requires time to find suitable alternate accommodations. The parties did not make submissions with respect to this issue. I will adjourn this motion to January 12, 2021 at 10:30 a.m. to allow the parties to attempt to work out the implementation of this order. If they are not able to do so, I will decide upon the return of the motion. This determination will include the date for the mother and children to commence exclusive possession of the matrimonial home, and the father’s parenting time prior to the commencement of exclusive possession.
Children’s Lawyer Order
[51] On consent, a Children’s Lawyer order will issue. It will be of assistance to the court to have evidence regarding the children’s views and preferences.
Order
[52] Accordingly, an order shall issue as follows:
The mother shall have interim primary care of the children.
The father shall be consulted by the mother before any decisions are made regarding the health, education, or general welfare of the children.
These motions are adjourned to January 12, 2021 at 10:30 a.m. to address the issues of:
a) the date the mother and children shall commence exclusive possession of the matrimonial home; and
b) the times that the children shall be in the care of the father and any other terms regarding the care of the children prior to the mother and children commencing exclusive possession of the matrimonial home.
- A Children’s Lawyer order shall issue.
Justice B. Tobin
Date: December 24, 2020
[^1]: Affidavit of Eman Mabed sworn December 15, 2020, paragraph 26
[^2]: Affidavit of Hadi Alshawaf, sworn December 4, 2020 at para. 14.