Arbitman v. Lee, 2021 ONSC 315

COURT FILE NO.: FS–20–20186

DATE: 20210115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY ARBITMAN

Applicant

– and –

ANNESSE YOOMEE LEE

Respondent

Avra Rosen, for the Applicant

Michael Stangarone, for the Respondent

HEARD: January 12, 2021

ENDORSEMENT

P.J. Monahan J.

1Gregory Arbitman (the “Applicant”) and Annesse Yoomee Lee (the “Respondent”) (collectively, the “Parties”) were married in 2010. They have two children, ages 6 and 3. On November 8, 2020, the Respondent left the matrimonial home with the two children and, since that time, the Applicant’s access to the children has been extremely limited.

2On November 20, 2020, the Applicant brought an urgent motion seeking a “2-2-3” equal parenting schedule for the children. The Respondent opposes the Applicant’s motion, seeks an order that the children primarily reside with her and, further, that the Applicant have limited parenting time with the children and only in the presence of a mutually agreeable monitor. The Respondent also seeks an order for a s. 30 custody and access assessment.

Background

3The Respondent is a medical doctor employed at a medical clinic in Toronto while the Applicant is a recruiter who works from home. Since 2015 the Parties had been residing with the Applicant’s parents at the parents’ home in North York. The Parties have also employed a nanny on a full-time basis since February 2015.

4The Parties have filed numerous detailed affidavits on this motion. As might be expected, the Parties paint radically different views of the nature of their marriage as well as of their relationship and involvement with their children.

5The Respondent alleges that she has been primarily responsible for caring for the children over the course of their marriage and that the Applicant provided minimal assistance. The Respondent also alleges that the Applicant has frequently provoked arguments with her and escalated parental conflict in the presence of the children. This culminated in an incident on the evening of November 7, 2020 when the Respondent alleges that the Applicant physically grabbed their younger daughter and forcefully pushed her down into her crib. That same evening the Respondent tape-recorded a number of arguments between her and the Applicant regarding sleeping arrangements for their daughters. The next morning the Respondent fled with the children and reported the incident to the police and the Toronto Children’s Aid Society (the “CAS” or the “Society”).

6For a period of approximately two weeks after the Respondent removed the children from the matrimonial home on November 8, 2020, the Applicant had no access to them apart from a number of telephone calls. Commencing in early December, the Respondent agreed to permit the Applicant limited access to the children, on Saturdays from 10 AM until Sunday morning, and on Wednesdays between 11 AM and 6 PM. However, the Respondent only agreed to this arrangement on the basis that the Parties’ nanny would supervise the Wednesday access and the Applicants’ parents would be present during the weekend access at his parents’ home.

7The Applicant acknowledges that the Respondent loves their children very much and he further concedes that he is not a perfect parent. However, he denies the allegations made against him by the Respondent and contends that he is a responsible, loving and engaged father who has played a central role in their children’s lives since birth. He claims that the children are deeply bonded to him and denies having grabbed their younger daughter or restraining her in her crib on November 7, 2020.

Events Subsequent to November 8, 2020

8On November 20, 2020 the Applicant brought an urgent motion seeking equal parenting time. A Case Conference was held before Nishikawa J. on November 27, 2020 and a further teleconference with counsel was convened by Nishikawa J. on December 1, 2020. Despite significant efforts the parties were unable to agree to a parenting schedule. They did agree to counselling for the children, and counsel for the Respondent proposed that the Parties participate in mediation. In addition, Justice Nishikawa encouraged the parties to continue working toward a without prejudice parenting schedule for the immediate future.

9The CAS investigated the allegations made by the Respondent against the Applicant. In a January 5, 2021 email to counsel for the Applicant, a CAS Legal Counsel reported that the investigation file into the Respondent’s complaint had now been closed. The principal findings reported by the Legal Counsel as a result of the Soceity’s investigation were as follows:

a. the children have been exposed to conflict between the parents on a regular basis. The older daughter reports that her parents typically fight at night, using loud voices and swear words. As a result, the older daughter feels scared and cannot sleep and is at risk of emotional harm;

b. the conflict between the parents has continued postseparation. The parents have very different ideas as to what is in the best interests of their children moving forward when it comes to custody/access. The Society is worried that if nothing changes the children will continue to be exposed to conflict between their mother and father, impacting their ability to sleep at night and creating a risk of emotional harm;

c. the Respondent’s allegation that the Applicant has limited caregiving skills in relation to the children has not been verified;

d. despite the conflict between the Parties, both parents love and care deeply for their children;

e. the Society is worried that the parents will continue to disagree in terms of what is best for the children now that they have separated. This could result in the children continuing to be exposed to conflict between their parents. The Society will be less worried when the children feel that they are able to have a safe and loving relationship with both parents;

f. the investigation file into the Respondent’s complaint has been closed. Both parents have agreed that the file should be transferred to a family service worker who can provide support to the family. However, if either party withdraws their consent to this ongoing support role by the Society, the file will be closed;

g. the Society has no protection concerns with respect to either parent. The Society is aware of the fact that the parties are engaged in litigation regarding custody and access to the children. Regardless of what order is made in that litigation, the Society will not be commencing a protection application.

Parties’ Position on this Motion

10The Applicant seeks a temporary without prejudice order for a “2-2-3” parenting schedule, providing each parent with equal time with the children. He also seeks a temporary order that the parties shall have equal decision-making responsibility for the children of the marriage.

11The Respondent seeks an order that the Parties’ children reside primarily with her, subject to the Respondent having parenting time with the children on Saturdays from 10 AM to 6 PM in the presence of a mutually agreeable third-party, and on Wednesday evenings from 3 PM to 6 PM in the presence of the Parties’ nanny or an alternate third-party. The Respondent also proposes that a s. 30 assessment be conducted with the cost shared equally by the Parties.

Best Interests of the Child

12Both the Divorce Act and the Children’s Law Reform Act make it clear that the sole criterion for determining custody and access issues is the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child ¹ Section 24 of the CLRA sets out the various considerations that must be taken into account in determining the child’s best interests, including the following:

a. the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child, as well as other members of the child’s family who reside with the child;

b. the length of time the child has lived in a stable home environment;

c. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

d. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

e. the permanence and stability of the family unit with which it is proposed that the child will live; and

f. the ability of each person applying for custody of or access to the child to act as a parent.

13Section 24 (4) also expressly provides that in assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or a child. The importance of factors relating to family violence in determining the best interests of the child has also been reinforced by amendments to s. 16(4) of the Divorce Act, which come into force on March 1, 2021.

14The parties also agree, in accordance with s. 16 (10) of the Divorce Act, that the “best interests of the child” includes the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.² As McLachlan J. (as she then was) explained in Young v. Young, the so-called “maximum contact” principle is not absolute. Contact with a parent may be restricted to the extent that it conflicts with the best interests of the child, but only to that extent.³ At the same time, the parent seeking unequal contact has the onus of rebutting the presumption of maximum contact, and the greater the restriction sought the more important it becomes to justify that restriction. This was clearly and cogently articulated by McGee J. in Fraser v. Fraser as follows:⁴

Separation is a fundamental disruption in parenting roles. Almost everything changes. Sometimes prior parenting patterns continue, but more often, parents have to step up to a new reality. Ongoing relationships with each of one’s parents is a child’s right. When a parent argues for unequal parenting time, the onus is on that parent to demonstrate why the proposed schedule is in the child’s best interest. The proposal must be forward-looking. We must never rob from a children’s future to pay for a parent’s past.

Analysis

a. The Need for Caution in Dealing with Untested Affidavit Evidence

15As noted above, detailed and contradictory affidavit evidence has been filed on this urgent motion. In addition to affidavits filed by the Parties themselves, both Parties have filed affidavits from third parties who have had varying degrees of involvement with this family, in an attempt to corroborate their respective positions and rebut the position of the other Party.

16It should be emphasized that the conflicting allegations and rebuttals in these various affidavits have not been tested in cross-examination. In these particular circumstances, extreme caution is required before making factual findings on disputed matters without the benefit of cross-examination.

17The difficulties that arise in this regard are illustrated by the Respondent’s attempt to introduce into evidence a number of tape recordings she made of arguments between the parties on the evening of November 7, 2020. The recordings vary in length from 40 seconds to approximately 17 minutes long.

18I note that there are strong policy reasons discouraging the use of surreptitiously recorded interactions in family law litigation, except in cases where the probative value of the evidence is compelling.⁵ Courts have found that the admission of surreptitiously obtained evidence tends to undermine the goals and values of family law, since the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future.⁶ Courts have also found that admitting evidence obtained through surreptitious practices sends the wrong message by appearing to reward the behavior, whereas such practices should be discouraged.⁷ Because the introduction of such material will generally be contested, it is likely to unnecessarily prolong the case, with added costs to the parties as well as to the administration of justice generally.

19These concerns are manifest in relation to the tape recordings which the Respondent seeks to introduce through affidavit on this motion. First, the circumstances under which the recordings were made and, in particular, whether they were made surreptitiously, is not clear. The Applicant maintains that he was unaware he was being recorded by the Respondent. On the other hand, the Respondent alleges that the Applicant was aware of the first recording being made since she claims the Applicant observed her press the record button on her phone. The Respondent does not indicate whether the Applicant was aware of the other two recordings that she made at some later time that evening.

20The probative value of the recordings is also unclear. The Respondent claims that the recordings speak to whether the Applicant is a safe caregiver for the children, and demonstrate his coercive controlling conduct in relation to the Respondent. The Applicant disputes this characterization, arguing that the recordings show the Respondent was focused on trying to gather evidence to deprive him of access to the children, and that there were important facts captured in the recordings which the Respondent did not highlight in her affidavit.

21Having listened to the three recordings in question, I note that they do not capture the incident in which the Applicant allegedly restrained their younger daughter in her crib. Rather, they record a series of arguments over sleeping arrangements for their daughters that took place between the Parties after the incident in question. In the shorter 40-second recording, children can be heard crying while adults are arguing. The other two recordings capture whispered arguments between the Parties over whether the Respondent should sleep with the children, and whether the children should sleep together or apart.

22There is extensive evidence on the record confirming that this is a high conflict marriage in which the Parties repeatedly exposed their daughters to parental conflict. There is thus no need to adduce this recorded evidence to confirm the existence of such conflict. On the other hand, to the extent that the Respondent seeks to introduce statements made by one or both parties during these arguments for the truth of their contents, the evidence is hearsay. As such, it is only admissible if it falls within a traditional exception to the hearsay rule, or the proponent is able to establish that the twin requirements of necessity and threshold reliability are met.⁸

23Given these concerns, I find that the recordings which the Respondent seeks to introduce would only be admissible through a proper voir dire where these issues could be explored through viva voce evidence and cross examination. I decline to admit them in the manner proposed by the Respondent since it is simply not possible to make the necessary findings regarding admissibility through a review of competing and untested affidavits.

b. Findings of Fact that can Appropriately be Made

24Recognizing the need for caution as described above, I am nevertheless of the view that it is appropriate to make certain factual findings on the basis of the record filed on this motion.

25First, despite the fact that the Parties disagree on numerous issues, there are a number of matters which are not disputed. Factual findings that are based directly upon areas of common ground can appropriately be made.

26Second, the CAS has investigated the allegations made by the Respondent in relation to the Applicant, with that investigation having been undertaken by qualified professionals who are independent of both parties. The primary concern of the CAS is the welfare of the two children in this family. CAS professionals are trained in and sensitive to issues of domestic violence identified in s. 24 (4) of the CLRA as well as in the recent amendments to s. 16 (4) of the Divorce Act. The CAS has also provided recommendations with respect to how these Parties can best serve the interests of their children going forward.

27Accordingly, I find that the assessment and recommendations of the CAS are entitled to considerable weight in determining interim parenting arrangements that will best serve the interests of the children in this matter.

28With these considerations in mind, I make the following factual findings:

i. the Parties have a high conflict marriage and they have exposed their children to partner violence on a regular basis. This has included arguments in which the Parties have been yelling and swearing at night in front of the children, which has scared the children and impacted their ability to sleep at night;

ii. notwithstanding the high degree of conflict between the Parties, I find that each of them loves and cares deeply for their children and is concerned for their welfare. This is reflected not only in the assessment provided by the CAS but also in the affidavits filed by the Parties themselves, in which they both express deep concern for their children and the impact of the separation upon them;

iii. I accept the CAS finding, made upon the conclusion of their investigation into the allegations by the Respondent, that there are no child protection concerns with respect to either parent at this time. I would note that this finding in relation to the Applicant is confirmed by the fact that over the last month the children have spent overnights with him at his parent’s home without evidence of any incident;

iv. I accept the CAS finding that there is no reason to believe that the Applicant is not capable of providing appropriate care for the children;

v. the continuing conflict between the Parties over custody and access arrangements for their children is causing the children considerable confusion and distress; and

vi. I accept the CAS finding that it is in the interests of the children to be able to have a safe and loving relationship with both parents.

c. Interim Parenting Arrangements

29A number of conclusions follow directly from these factual findings, considered in the context of the relevant legal principles identified above.

30First, it is in the interests of the children that parenting arrangements going forward provide them with the opportunity to maintain their close and loving relationships with both of their parents.

31Second, it is in the interests of the children that parenting arrangements should be designed so as to ensure that they are not exposed to any further conflict between their parents.

32Third, the children’s lives have been significantly disrupted by the events of the last few months. This disruption has caused confusion and distress for the children. It is in their interests to establish arrangements which are stable and predictable and which, over time, will reduce the anxiety they are currently experiencing.

33I therefore find that it is in the interests of both children that they have generous access to both their parents on a going forward basis. I further find that there is no basis upon which the Applicant’s access to the children should be restricted or reduced as proposed by the Respondent.

34There are a variety of considerations which support these findings, having regard to the factors identified in s. 24 (2) of the CLRA, as well as the “maximum contact” principle in the Divorce Act. In particular, I have found that there are no child protection concerns at this time with relation to the Applicant, nor any reason to believe that the Applicant is not fully capable of adequately caring for his children. Moreover, I note that the Applicant continues to live with his parents, where the children themselves have lived since they were born. Because the children are familiar with the grandparents’ home, the opportunity to return there on a regular basis may assist in restoring a sense of normalcy to their lives. It will also ensure that the children are able to maintain their relationship with their grandparents, with whom they have lived for the past five years.

35Also relevant is the fact that the Applicant works from home, which means that he can arrange his schedule to ensure that he is available to care for the children whenever needed. This is particularly significant in light of the fact that the Parties jointly decided in September 2020 that their older daughter would not attend school in person and, instead, is attending virtually. The fact that the Applicant works from home means that he will be able to assist her as needed.

36Counsel for the Respondent rightly points out that “maximum contact” does not necessarily require equal parenting time. The goal of maximum contact is not absolute, and access may be restricted where there is evidence that equal contact would otherwise conflict with the best interest of the child. For example, in Rigillo v. Rigillo,⁹ the Court of Appeal was concerned over the fact that an equal parenting schedule would have resulted in increased commuting time for the child during the school week, which was not in the child’s interests. The Court of Appeal therefore put in place arrangements which provided for somewhat increased time with the father, without adding to the commuting time for the child.

37There are no such concerns in the present case. As already noted, the Applicant is working from home and can arrange his schedule to accommodate the childrens’ access schedule. I see no reason why it would not be in the childrens’ best interest to have equal access time with their father.

38I have also given careful consideration as to whether there should be a gradual or “stepped” transition from the arrangements that have been in place over the past two months, such that an equal parenting schedule should only be implemented over time. Ultimately, however, I find that such a transition would not be in the children’s best interest for at least two reasons.

39First, the current arrangements whereby the Applicant’s time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent’s right of access to children is to be restricted. If the current restrictions on the Applicant’s access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent’s resort to self-help. The relevant status quo is that which existed prior to separation when both parents were actively involved in the children’s lives.¹⁰

40Secondly, I have earlier found that stability and continuity is in the children’s best interests, particularly given the disruption they have experienced over the past few months. As such, I find it is in the childrens’ best interests to put in place parenting arrangements which, with good will and cooperation by the Parties, can begin immediately the process of reestablishing greater certainty and predictability in their lives. I see no reason why the implementation of an equal parenting schedule should be postponed to some later date, thereby risking further uncertainty and confusion on the part of the children.

41I therefore adopt, on a temporary without prejudice basis, the “2-2-3” parenting schedule proposed by the Applicant, and order that it be implemented commencing Monday, January 18, 2021 at 9 AM. For certainty, there is no need that the parenting time of either parent by “supervised” by a third party.

42I further order that all pick-ups and drop-offs of the children shall be at 9 am on the relevant day, or at such other time during the mornings as is mutually agreed by the parties. The parent who is caring for the children shall be responsible for transferring the children to the other parent’s home. In order to minimize the possibility for conflict between the Parties during these times, the parent receiving the children shall make best efforts to have a third-party present who can receive the children on his/her behalf.

43The children shall have telephone or Facetime “virtual” parenting time with the parent with whom they are not residing each night before they go to bed.

d. Parental Decision-Making

44The Applicant seeks an order for joint decision-making to prevent what he regards as his marginalization in the children’s lives since the separation.

45There was relatively little attention devoted to this issue on the argument of the motion. It is unclear why such an order is necessary at this time. The Parties have agreed on the educational arrangements for their children and there is no indication that they have had disputes in relation to any major decisions regarding the children in the past. To the extent that any such issue may arise in the future, both Parties agree that they will have serious regard to any recommendations that might be made by the relevant professionals.

46On balance, I find that an order regarding parental decision-making is unnecessary at this time, and decline to make any such order.

e. Section 30 Assessment

47The Respondent proposes that an assessment should be ordered in accordance with s. 30 (1) of the CLRA. She argues that such an assessment is appropriate because of her concerns about the Applicant’s ability to meet the children’s basic and emotional needs. She also suggests that the Applicant has anger issues and is controlling.

48A s. 30 assessment is intrusive, time-consuming and expensive. The court should exercise caution in considering whether a requested investigation can be justified recognizing the potential negative impact on the children by being further dragged into the court process. Assessments are not benign and when the advantages of an assessment do not outweigh the disadvantages, a request for such assessment should be denied.¹¹

49I find that a s.30 assessment would not be in the childrens’ best interests in the present circumstances. The CAS has already investigated the Respondent’s allegations regarding the Applicant’s inability to meet the children’s needs, and I see no reason to order a further inquiry into that matter at this time. Nor would I order a s. 30 assessment in order to address conflict between the Parties, since my hope and expectation is that such conflict will be reduced by putting in place a fair, reasonable and clear parenting schedule that minimizes contact (and thus the possibility of further conflict) between the Parties going forward.

f. Counselling for the Children

50The Parties are agreed that counselling should be arranged for the children and I would so order.

Disposition

51A temporary without prejudice order shall issue as follows:

a. effective Monday, January 18, 2021 at 9 AM, the children shall be in the Parties’ respective care as follows:

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week 1

Father

Father

Mother

Mother

Father

Father

Father

Week 2

Mother

Mother

Father

Father

Mother

Mother

Mother

b. a Party’s parenting time with the children need not be supervised by any third party;

c. all pick-ups and drop-offs of the children shall be at 9 AM on the relevant day, or at such other time during the morning as is mutually agreed by the parties. The parent who is caring for the children shall be responsible for transferring the children to the other parent’s home. In order to minimize the possibility for conflict between the Parties, the parent receiving the children shall make best efforts to have a third-party present who can receive the children on his/her behalf;

d. the children shall have telephone or Facetime “virtual” parenting time with the parent with whom they are not residing each night before they go to bed;

e. there shall be no order with respect to parental decision-making at this time. However, the parties agree that in the event that there are significant decisions that arise in relation to either of their children, they will have serious regard to the advice and recommendations of the relevant professionals;

f. the Parties will arrange for and cooperate with respect to counselling for the children, which shall be implemented as soon as possible; and

g. there shall be no s. 30 assessment at this time;

52I leave it to the parties to attempt to settle the issue of costs. In the event that they are not able to so agree, the Parties may file written costs submissions of not more than three pages, along with a Bill of Costs, as follows: the Applicant’s submissions will be due by February 1, 2021, the Respondent’s submissions will be due by February 8, 2021 and the Applicant’s reply submissions, if any, will be due by February 12, 2021.

P. J. Monahan J.

Footnotes

1. 1Divorce Act, RSC 1985, c. 3 (2nd Supp.), s. 16 (8); Children's Law Reform Act, RSO 1990, c. C. 12, s. 24.
2. 2Divorce Act, s. 16 (10).
3. 3Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3.
4. 42016 ONSC 4720 (SCJ), at para 59.
5. 5Turk v. Turk, 2015 ONSC 3165 (SCJ). See generally, Martha Shaffer, "Surreptitiously Obtained Electronic Evidence in Seven Simple Steps", (2019) 38 Canadian Family Law Quarterly 259.
6. 6DeGiorgio v. DeGiorgio, 2020 ONSC 1674 at para 12.
7. 7Seddon v. Seddon, [1994] BCJ No, 1729 (BC SC) at para 26.
8. 8R v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
9. 92019 ONCA 647.
10. 10Vasilodimitrakis v. Homme, 2020 ONSC 2887 at para. 36.
11. 11Glick v. Cale , 2013 ONSC 893 (SCJ) at para 48; Baillie v. Middleton, 2012 ONSC 3728 at para 35.