COURT FILE NO.: FC-20-1221

DATE: 2021/06/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARYANA CHYHER Applicant

– and –

AMAR AL JABOURY Respondent

Alison Campbell, for the Applicant

Valerie Akujobi, for the Respondent

HEARD: May 3, 2021

REASONS FOR DECISION on a motion

D. SUMMERS J.

Overview

[1] There are two children at the centre of this case, Amar, who will be 12 years old in June, and Saad, age 10. This is the fifth time the parties seek the assistance of the court on parenting issues since separating ten months ago. Both the police and the Children’s Aid Society of Ottawa (CAS) have been involved with the family. The CAS investigation is ongoing and there is a parenting assessment underway.

[2] The respondent father, Mr. Al Jaboury moves under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) on an urgent basis to vary my temporary order dated December 22, 2020. He seeks to change the children’s primary residence from the applicant mother’s home to his own pending release of the parenting assessment. In the alternative, he asks for shared parenting on a 2/2/3 schedule.

[3] The applicant mother, Ms. Chyher, opposed the relief sought but did not contest urgency. She brought her own motion requesting an order suspending Mr. Al Jaboury’s parenting time pending the release of the assessment. She also seeks orders that she and the children engage in reunification counselling at Mr. Al Jaboury’s cost, without need of his consent and that he takes part in individual counselling as may be recommended by the reunification counsellor.

[4] Both parties seek disclosure of CAS and police records. I make that order on consent subject to service and any objection the record holder may have. For reasons that follow, I find no material change in circumstance has occurred that results in a compelling reason to change the current interim parenting order. I, therefore, dismiss both motions without prejudice to the parties to bring back either or both motions following release of the parenting assessment, receipt of the non-party disclosure, and the CAS report, as ordered below.

Background

[5] The parties married in the Ukraine in February 2008, within a month of meeting each other. Mr. Al Jaboury returned to Canada shortly thereafter and travelled back to the Ukraine twice to visit. Ms. Chyher was five months pregnant with their first child when she moved to Canada in February 2009. She has not worked outside the home since leaving the Ukraine. Mr. Al Jaboury has been the sole income earner for the family. He worked long hours as a taxi driver, often starting before sunrise.

[6] The day the parties separated, they argued, and Ms. Chyher called the police. She told them no physical violence had occurred but said she was afraid of Mr. Al Jaboury and wanted to leave the marriage. Ms. Chyher left with the police that night. After a couple of days, she found space in a women’s shelter and sought to have the children with her. Mr. Al Jaboury refused, withheld access, and allowed only minimal contact with the boys.

[7] Ms. Chyher started this proceeding in August 2020. Each party made allegations of domestic violence and said the other mistreated the children. Through no fault of Ms. Chyher, several months passed before the court heard her substantive motion.

[8] On December 22, 2020, I made a temporary order that the children would have their primary residence with their mother. Mr. Al Jaboury was to deliver them to her care at once. I also ordered parenting time to Mr. Al Jaboury on a four-week rotating schedule with pick up and drop off to occur at a neutral location, as agreed in writing, and the assistance of the Office of the Children’s Lawyer (OCL) was requested.

[9] I found Ms. Chyher had been the children’s primary caregiver since birth and was not persuaded that she had harmed the children in any way. I found that the allegations made by the children were more likely the result of Mr. Al Jaboury’s negative influence over the five months that he withheld them rather than any maltreatment by her. I also found that Mr. Al Jaboury threatened Ms. Chyher with the loss of her children when it became evident she was not returning to the marriage, despite his initial texts to her saying she was a good mother, the boys loved and missed her, and she needed to come