Rajani v. Rajani, 2021 ONSC 4784

COURT FILE NO.: FS-21-21157

DATE: 20210706

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OMAR RAJANI, Applicant

AND:

NATASHA RAJANI, Respondent

BEFORE: Glustein J.

COUNSEL: Chelsea Hooper, for the Applicant

Kenneth Snider, for the Respondent

HEARD: June 29, 2021

ENDORSEMENT

Nature of motion and overview

1The applicant, Omar Rajani (Omar), brings a motion asking the court for a temporary order for a shared parenting plan with respect to the two children of the marriage, Zain Khalil Vernon Rajani (Zain) and Malai Raine Falisha Rajani (Malai) “in accordance with a shared 2-2-3 schedule, with overnights to be phased in if necessary”.

2The respondent, Natasha Rajani (Natasha) opposes the motion. Natasha submits that the current parenting arrangement, under which Natasha permits Omar four hours of parenting time on Tuesday and Thursday, and Sunday from 10:00 am to 7:30 pm, should be maintained.

3The parties have consented to the following relief sought by Omar:

(i) “[A] temporary Order that neither parent will speak negatively about the other parent or their extended family members to the children. Neither parent will discuss the litigation with the children”;

(ii) “[A] temporary Order that the parties will use Our Family Wizard (OFW) to communicate about the children. Both parents will share information through OFW with respect to the children’s schedules (appointments, activities, etc.)”; and

(iii) “[A] temporary Order that the child, Zain, will be enrolled in in-person learning [at his elementary school] in September 2021”.

4Omar also seeks the following relief in addition to the shared parenting plan, which is opposed:

(i) “[A] temporary Order that, pursuant to [the shared parenting plan], all exchanges shall occur to/from the children’s school, daycare or camp, if applicable. If the children are not in school, daycare or camp, the parent whose parenting time is ending will drop off the children to the other parent, or otherwise as agreed to by the parties”; and

(ii) “[A] temporary Order that neither party will enroll the children in camps, extracurricular activities, counselling, therapy, or make medical or educational decisions for the children without the other parent’s express written consent”.

5Consequently, the principal issue before the court is whether a shared parenting plan should be ordered.

6For the reasons that follow, I order a shared parenting plan on a 2-2-3 schedule, phased in as follows:

(i) for the first six weeks beginning from the date of this endorsement, Omar will:

(a) have the children for one overnight during the two-day weekday period, and

(b) have the children on alternating weekends; and

(ii) at the end of the six-week period, a full 2-2-3 schedule will apply.

7Further, I order that Omar and Natasha share decision-making as set out at para. 4(ii) above, with exchanges to take place as set out at para. 4(i) above.

Background

8Omar and Natasha were married in July 2010. They have two children together, Zain and Malai.

9Zain was born on April 13, 2015 and Malai was born on January 19, 2018.

10As seen below, health complications have afflicted the children with Zain being born premature and Malai requiring surgery for a heart abnormality.

11Omar and Natasha separated on September 10, 2020.

The applicable law

12The factors to be considered by the court to address a parent’s entitlement to decision-making responsibility and parenting time are set out in s. 16 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 as amended. Sections 16(1) and 16(2) mandate that the court only consider the best interests of the child in making a parenting order, with primary consideration given to the child’s physical, emotional, and psychological safety, security and well-being.

13The factors relevant to this motion to be considered in determining the best interests of the child are:

(i) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability (s. 16(3)(a)),

(ii) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse (s. 16(3)(c)),

(iii) the history of care of the child (s. 16(3)(d)),

(iv) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child (s. 16(3)(h)),

(v) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child (s. 16(3)(i)), and

(vi) any family violence and its impact on, among other things:

(a) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(b) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child (s. 16(3)(j)).

14Factors relating to family violence are set out at s. 16(4) of the Divorce Act.

15Similarly, s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 provides that the court shall only take into account the best interests of the child in making a parenting order, with primary consideration given to the child’s physical, emotional and psychological safety, security and well-being.

16Sections 7.1 and 7.2 of the Divorce Act and subsection 33.1(2) of the CLRA address the importance of the parties protecting children from conflict. Those sections require a parent to exercise their decision-making responsibility, parenting time or contact with a child in a manner that is consistent with the child’s best interests and to protect a child from conflict arising from the case, to the best of their ability.

17At the hearing of the motion, only Omar filed a factum. Natasha did not challenge the legal submissions relied upon by Omar, which I find are supported by the case law cited by Omar. Consequently, I adopt the following principles governing parenting issues:

(i) Contact with both parents is the children’s right. If a parent objects to a child’s increased contact with the other parent, the onus is on that parent to rebut the presumption: Cocimiglia v. Simonini, 2010 ONSC 488, at para. 26;

(ii) It is important to maximize contact between parents and young children: Bazinet v. Bazinet, 2020 ONSC 3187, at paras. 181-87;

(iii) Overnight access is also particularly important for young children:

In applying logic and common sense … the adjustment for very young children in feeling comfortable settling in and falling asleep in the home of the other parent may well become more difficult with each passing day, as their level of consciousness of their surroundings grow. Surely, delaying the inevitable, in this sense, is contrary to most children’s best interests: Burley v. Bradley, 2019 ONCJ 624, at para. 360;

(iv) If the court has concerns that a parent is unreasonably resisting meaningful parenting time, it may be appropriate to order increased parenting time, including overnight visits, to ensure that the child has the opportunity to enjoy the love and support of a parent and to build and maintain a strong, healthy relationship with them: Barbieri v. Vistoli, 2019 ONSC 5636, at paras. 47-52.

18Further, in my analysis below, I review the evidence upon which I rely to make the parenting and decision-making orders summarized at paras. 6 and 7 above.

Application of the facts to the best interests of the child

19I review the applicable evidence in light of the factors relevant to the best interests of the child and the applicable case law.

Needs of the child (ss. 16(3)(a), (d), and (h))

20Based on the evidence on this motion, I find the history of care for Zain and Malai demonstrates that Omar played a significant role in parenting, is equally able to meet the children’s needs, and should participate in a shared parenting plan, with overnights to be phased in over a six-week period.

21Omar provided extensive detail as to his parental involvement, supported by compelling evidence. I summarize the key aspects of his evidence as follows:

(i) He actively assisted with IVF treatment, including seeking medical referrals and administering hormonal injections;

(ii) He stayed in the hospital with Zain for five days when Zain was born premature;

(iii) Once Natasha became pregnant, he attended numerous appointments with her doctors and specialists;

(iv) Once the children were born, he attended at numerous doctor appointments, particularly as Malai had a heart abnormality;

(v) He stayed at the Hospital for Sick Children for three days when Malai was admitted for surgery;

(vi) He attended at school meetings;

(vii) He enrolled the children in most of their extra-curricular activities; and

(viii) He participated in all aspects of the children’s lives from the time of birth including changing diapers, bathing, feeding (including night feeds), dropping off and picking up the children from childcare, bedtime routines, hygiene (such as cutting nails, brushing teeth and administering daily vitamins), staying home with the children when sick, taking the children to extracurricular activities, purchasing clothing for the children, participating in toilet training, changing the children’s bed sheets, waking up with the children in the night, administering medication when the children were sick, teaching Zain to ride a bike, enrolling the children in daycare, and participating in parent-teacher interviews and communicating with the children’s school.

22Further, in 2020, Omar took a three month leave of absence from his work at Canada Post to care for the children while Natasha was working long hours in her position as the Director of Procurement for the Region of Peel, with extensive demands on her time arising out of the COVID pandemic. During this time, Omar was the parent primarily caring for the children during the day while Natasha was working.

23In her responding affidavit, Natasha sets out a blanket denial that Omar shared parenting responsibilities. However, she does not address any of the particular assertions made by Omar, nor has adduced any evidence to support her bald assertion. At no point in their relationship did Natasha express concern about Omar’s ability to care for the children.

24Based on the above evidence, I find that there has been a shared parental relationship between Omar and Natasha with respect to their children. The general assertions made by Natasha are either poorly supported, or not supported at all, by evidence before the court. Omar’s evidence establishes that he has shared parenting responsibilities and is able and willing to care for and meet the needs of Zain and Malai.

25As a young child, it is important that a parenting plan take the children’s needs into account. Natasha failed to lead sufficient evidence rebutting Omar’s evidence of shared parenting and also failed to establish that the children’s needs at this stage of their development are best served by prohibiting overnight visits and significantly restricting Omar’s parenting time.

26Consequently, this factor strongly militates in favour of a shared parenting plan with joint decision making as sought by Omar.

Relationship between spouses (ss. 16(3)(c) and (i))

27Parenting a young child raises important concerns about the ability of each parent to encourage the child’s relationship with the other spouse. Civil communication between the spouses is critical to the best interests of the child.

28I now address the evidence relevant to these factors.

29The separation between the parties arose due to an incident which took place on or about September 10, 2020. Each party alleges that the other struck them, and Omar was charged with assault after Natasha called the police. While I address the issues arising from Natasha’s claim of family violence below, I first address the communication issues which arose after the separation.

30Natasha unilaterally terminated overnight parenting after October 10, 2020. Natasha took the position that it was too risky for the children to stay with Omar since his father was a physician with a COVID risk from seeing patients. However, Natasha maintained that position even though Omar’s father agreed to stop seeing patients to assist Omar’s desire to have overnight parenting.

31In the fall of 2020, Natasha also enrolled the children in the “Here to Help” program that provides services to women and children of abuse and did so without consulting Omar. The program does not require any independent confirmation of the alleged abuse. Consequently, the program faces challenges in working with children if they are inappropriately placed in the program by the mother.

32Courts have raised concerns that in such cases, it makes it much more difficult for a young child to “resist the belief that his father has harmed him”, if the child is exposed to the program with an organization that is designed to act as an “institutional ally” for the mother: Children and Family Services for York Region v. A.S., [2009] 79 R.F.L. (6th) 282, 2009 CanLII 79436 (Ont. S.C.), at paras. 91-94 and 121-24.

33Despite being ordered to produce that information at a case conference before Leiper J. on May 26, 2021, Natasha failed to produce any details of the program until she filed her affidavit on June 24, 2021.

34While I make no finding on the veracity of the abuse allegations (as I discuss below), Natasha’s unilateral decision to stop overnight access and enroll the children in the program, with no evidence of any new developments which could have justified such drastic steps, raises significant concerns about her ability to communicate with Omar in the best interests of their children.

35Further, it is not contested that Natasha has told Zain that Omar is in a “time-out”, suggesting improper conduct on the part of Omar.

36Natasha also called the police when Omar sought to place his winter tires in the garage of the jointly owned matrimonial home, in the presence of the children.

37In the face of the above evidence, Natasha does not raise any instance of Omar making any inappropriate comments about Natasha’s parenting to the children, nor acting in any way to prevent communication.

38Consequently, regardless of the veracity of the abuse allegations, the evidence is that Natasha has not acted in a manner that encourages cooperation.

39For the above reasons, this factor also militates in favour of a shared parenting plan with joint decision making as sought by Omar.

Family violence (s. 16(3)(j))

40Natasha relies on this factor as the primary basis to deny any overnight parenting to Omar, let alone a shared parenting plan. At the hearing, her counsel urged the court to be “cautious” about allowing any overnight access based on the allegations.

41Natasha makes numerous allegations of physical and emotional abuse against her. Omar vehemently denies those allegations.

42There is no independent evidence to support Natasha’s allegations. There is no record of her raising any such concerns until the separation after which she called the police and Omar was charged. The police disclosure from that incident states that there are no physical injuries and that Natasha was not injured, and the Crown unilaterally withdrew the charge.

43Natasha states in her affidavit that she believes the Crown only withdrew the charge because Omar voluntarily agreed to participate in a “Partner Assault Response” program for those charged with family violence. Omar believes that the charge was withdrawn because there was no reasonable chance of conviction given the police disclosure, the fact that no conditions were imposed on the withdrawal, and that he voluntarily agreed to participate in the program.

44Consequently, on the evidence before the court, I cannot find that there is sufficient evidence to support a finding of abuse by Omar against Natasha, and as such, Natasha has failed to establish that Omar should not have overnight parenting time with the children.

45Natasha raises very serious allegations that Omar physically and emotionally abused the children. However, the uncontested evidence is that the first time any such allegations were raised were in Natasha’s responding affidavit. Natasha and Omar were married for 11 years without any such allegation. Natasha consented to Omar taking a three month leave of absence in 2020 for full-time care of the children, again without raising any concerns.

46This further militates against making a finding of abuse by Omar against the children, and as such, Natasha has failed to establish that Omar should not have overnight parenting time with the children.

47It has always been a critical issue for the court to consider allegations of family violence and their impact on the ability of (i) the alleged perpetrator to care for and meet the needs of the child, and (ii) persons in respect of whom the order would apply to cooperate on issues affecting the child. These principles are now codified under ss. 16(3)(j) and 16(4) of the Divorce Act.

48However, reversing a history of shared parenting, on a motion, on the basis of allegations which are either not supported or raised for the first time, risks tilting the balance of parenting away from the presumption that parenting by both parents is in the best interests of the child.

49Further, in the present case, both parents agreed to an order at the case conference to ask the Office of the Children’s Lawyer (OCL) to conduct an assessment, and that request was without prejudice to Omar’s position on this motion, as set out in the order of Leiper J. There is no certainty the OCL will even conduct the assessment, or the timing of such assessment if conducted. Finally, the results of any such assessment are unknown, and the evidence before the court does not establish that it is more likely that Omar’s parenting would be impugned in any assessment.

50Consequently, I do not find that the consent to request an assessment in any way supports the allegations of family violence.

51As I discuss above, Natasha’s counsel submits that the court should be “cautious” and not grant overnight parenting given the serious allegations of family violence. However, I find that the court must be just as “cautious” not to deprive children of parenting from both parents unless satisfied that the presumption in favour of increased contact with the parent is rebutted on the evidence before the court.

52Consequently, while I recognize the seriousness of the family violence allegations, I do not find that this factor supports the parenting arrangement imposed by Natasha which prohibits overnight visits. The prohibition of overnight visits would not be appropriate here.

Conclusion

53Based on the above factors, I order a shared parenting plan on a 2-2-3 schedule, phased in as follows:

(i) for the first six weeks beginning from the date of this endorsement, Omar will:

(a) have the children for one overnight during the two-day weekday period, and

(b) have the children on alternating weekends; and

(ii) at the end of the six-week period, a full 2-2-3 schedule will apply.

54Further, I order that Omar and Natasha have shared decision-making as set out at para. 4(ii) above, with exchanges to take place as set out at para. 4(i) above.

Costs

55I will fix costs following brief written submissions, if the parties cannot agree.

56Omar is to provide written costs submissions of no more than three pages (not including a bill of costs or any offers to settle), no later than July 20, 2021.

57Natasha shall deliver responding costs submissions of no more than three pages (not including a bill of costs or any offers to settle), no later than July 27, 2021. If a reply costs submission is required, it shall be limited to one page and shall be delivered by Omar by no later than August 3, 2021.

58All costs submissions shall be delivered electronically to my assistant, Roxanne Johnson, at roxanne.johnson@ontario.ca.