COURT FILE NO.: FS-21-00024657-0000
DATE: 20210921
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAN MATHEW
AND:
REBECCA BARAZMI
BEFORE: Justice J. Steele
COUNSEL: Desi Nikolova and Veronica Marson, for the Moving Party
Katharina Janczaruk for the Respondent
HEARD: September 16, 2021
ENDORSEMENT
The Motion
Motion heard via zoom on September 16, 2021.
The applicant, San Matthew (“San”), seeks an order for equal parenting time with the parties’ two children and/or any other parenting time this court deems just and in the children’s best interest.
San has not had in-person parenting time with the two children since April 22, 2021.
Background
The parties met in March 2010 and married on November 2, 2013. The respondent, Rebecca Barazmi (“Rebecca”), sponsored San, who obtained Canadian Permanent Resident status on October 26, 2015. The parties have two children – A.M, born June 13, 2013 (age 8), and R.M., born May 2, 2018 (age 3) (the “children”).
The parties separated in or around March or April 2021. They had been leasing an apartment located at 701 Don Mills Road in Toronto, which was the matrimonial home.
On April 22, 2021, Toronto Police attended at the matrimonial home and charged San on a domestic assault report made by Rebecca, which San denies. The criminal matter is outstanding. The criminal release conditions restrain San from communicating, directly or indirectly, with Rebecca or from being within 50 metres of 701 Don Mills Road, Toronto. There are no restraining conditions with respect to the children.
Following the alleged domestic assault, the Children’s Aid Society of Toronto (“CAS”) became involved, on or about April 26, 2021. The CAS spoke with the children in private. At the end of May or early June, CAS contacted Rebecca to advise that the file was closed.
The children currently reside with Rebecca. Rebecca has withheld all contact between the children and San since April 22, 2021.
San currently resides with his parents.
San brought an urgent motion seeking leave for it to be heard before a case conference given that he has been denied any parenting time with the children for the past 5 months. The Court scheduled an urgent case conference on August 24, 2021, at which the parties consented to an order seeking the assistance of the Office of the Children’s Lawyer (“OCL”). San also consented to commence payment of child support, on a without prejudice basis, based on his stated income of $87,336.27. No agreement was reached with respect to parenting time.
I heard San’s motion for parenting time on September 16, 2021. I reserved my decision. This is my Endorsement and reasons for the Order I have made.
Issue
- The only issue before me today is what parenting time order is in the children’s best interests?
Analysis
Applicable Law
- The relevant sections of the Divorce Act relating to parenting are:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) 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;
(i) 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;
(j) any family violence and its impact on, among other things,
i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. 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; and
(i) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
The amendments to the Divorce Act provide that there is only one applicable standard: the best interests of the child. The interests of the parents are secondary. In determining the best interests of the child(ren), the court must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. Further, the court is required to consider all the factors related to the circumstances of the children.
The list of best interest considerations set out in section 16 of the Divorce Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also “not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her”. See: Phillips v. Phillips, 2021 ONSC 2480 (at para. 47).
The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only where there are demonstrated circumstances of danger to the child’s physical or mental well-being. Further, the child has a right to contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.
Section 16(6) of the Divorce Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This was recently interpreted by the Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305 as follows:
Maximum contact
[30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.
[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:
16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[32] The current provision of Divorce Act, is more direct:
16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.
[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
Rebecca’s evidence is that currently the children are living with her and are doing well. Her position is that changing this would be disruptive to their well-being and security, particularly given the allegations of family violence.
It is trite to say that minor-age children with attachments to both parents need contact with both parents, without prolonged separations (subject to their best interests), to maintain meaningful and close relationships with them. The Divorce Act provides that a child should have as much time with each parent as is consistent with the child’s best interests.
The respondent submits that there should be only zoom parenting time for San for the time being. I first note that the parties had previously tried to negotiate zoom parenting time for San, which did not work. Although both parties logged in to zoom for the parenting time, the call was aborted after less than two minutes, and no further zoom calls for parenting time were facilitated by Rebecca. Second, given the ages of the children, face to face time with both parents is important and in their best interests.
Family Violence Allegations
Rebecca has made uncorroborated allegations of a domestic assault against the applicant, which he has denied. The criminal charges have not yet been heard.
I agree with San that Gonzalez v. Trobradovic, 2014 ONSC 2468 is instructive. In that case, the mother had been arrested for assault based on a complaint made by the father. The court stated (at para. 57):
“The bail order made in relation to Ms. Gonzalez is the only judicial determination made thus far in the criminal proceeding against her. The bail conditions restrict her communication with Mr. Trobradovic, but not her access to Lara. I infer from the criminal court’s failure to place any restrictions on Ms. Gonzalez’ access to Lara that it did not find that the allegations against her to raise a concern about Lara’s safety in her presence. I also do not find a basis for such a concern.”
As stated above, the bail conditions that were imposed following San’s arrest for alleged assault on Rebecca do not put any restriction on San’s ability to see the children. The fact that there is an outstanding criminal proceeding related to an alleged assault, which did not include any concern about the children’s safety, is not a reason to deny the children parenting time with their father.
There is an allegation by Rebecca, that has not been tested on cross examination, that San has struck A.M. and that A.M. is afraid of San. Rebecca stated that “[t]he week before our separation, he had slapped her thigh and threatened to hit her. He is impatient with her and gets angry easily. She is afraid of him. This was not the first time he has struck our daughter.” In response to the concerns raised by Rebecca, San stated that “such concerns are without any basis. I have never yelled at our children or exposed them to any harm”.
I have considered section 16(4) of the Divorce Act, particularly with respect to the impact of the family violence Rebecca alleges to have suffered at the hands of San, and the concerns raised by Rebecca regarding her allegations of San hitting A.M.. Due to the concern raised by Rebecca, I have determined that San shall have supervised access for a period of time, to be stepped up to unsupervised access. Rebecca has included untested evidence on an interim motion, which is denied by San. Her evidence is not corroborated. In the circumstances, this is not enough to justify an order denying the children time with their father. It is important, and in the best interests of the children to maintain contact with both parents and for them to have meaningful relationships with both parents.
Further, while the children have been exposed to parental conflict, it appears to me that both parents have contributed to that exposure and that, while such exposure to parental conflict is not the children’s best interests, this exposure ought not to lead to the children having virtual parenting time only with their father, which is supervised, as Rebecca has proposed.
The definition of “family violence” in the Divorce Act encompasses conduct beyond physical violence, and includes psychological abuse and financial abuse:
“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour that causes that other family to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes
(f) psychological abuse;
(g) financial abuse;
Both parties have made uncorroborated, untested, allegations against the other party of controlling and/or abusive behaviour.
Rebecca has made allegations of verbal, financial and emotional abuse against San and alleges that the children have witnessed abuse and aggression by San. Rebecca deposed that San constantly berated her, typically in front of the children, and that he was critical of her, her language and religion. She stated that San sought to isolate her from everyone and that she “was not allowed to see [her] mother or to see any friends.”
San denies “all allegations of abuse, aggression, hostility and/or control [on his] part against the Respondent or the children”. San deposed (in his reply affidavit):
“I have never abused or been aggressive towards the Respondent, nor have the children witnessed such hostile or abusive behaviour. The children have never been afraid of me and I have multiple relatives and friends willing to confirm this based on their own observations. It is my genuine belief that the Respondent has waged a campaign of parental alienation where she tries to influence the children, distort their perception about me and pressure them into adopting her own views and preferences with regards to child-relate issues.”
San also alleges that Rebecca is controlling and abusive, isolating him and the children from their paternal grandparents and extended family and insulting and threatening him in the presence of the children. His evidence is that during confrontations Rebecca “would openly use derogatory language, insults, and profanities against me, again, in the presence of the children”.
Based on the evidence before me, it seems that both Rebecca and San have been critical of the other and the others’ culture and/or religion in front of the children. The children’s exposure to parental conflict is not in their best interests.
Culture, Religion, Heritage
- I think it is important to address the religious and cultural issues raised. Based on the written record and the oral submissions, it is clear that the parties have had religious and ideological conflict. Rebecca’s first language is Farsi and her faith is Muslim. Rebecca states that San would not permit her to speak her own language or practice her faith in the home, and that he would repeatedly tell her and the children that his culture and religion were superior. San immigrated to Canada from India and his faith is Christian. He states that Rebecca’s focus was on his religion, roots and culture, which became a constant source of tension. He states that Rebecca made alienating comments about him, his family and their faith in front of the children. Either party denigrating the other party or the other’s religion, culture, language or roots places the children in the middle of the parental dispute and is not in the best interests of the children. Rebecca and San come from different backgrounds and have two children together. The children share both parents’ roots and culture, and ought to have exposure and involvement in learning about their heritage from both parents. As the children share both parents’ roots and heritage, where one parent denigrates the others’ roots or heritage, they in effect denigrate the children’s roots and heritage, and this is not in the best interests of the children. Hopefully Rebecca and San can learn to view their different backgrounds as an opportunity for their children to learn and understand, not an issue or a contest where one culture or religion has to “win” or be “better” than the other. Instead, hopefully they can embrace a pluralistic approach with respect to their diversity and respect each others’ different cultures, religions and roots.
Other Factors
There is no question that both San and Rebecca love their children and want to spend time with them. It is unfortunate that San has been denied any parenting time since April 22, 2021. This is not in the best interests of the children.
There is nothing in the record to suggest that San would be unable to care for the children. While A.M. has severe allergies and must not be exposed to certain things, San’s evidence is that he is “well-informed and capable of managing the allergies of [A.M.].”
Rebecca argues that the older child, A.M., who is 8 years old, does not want to see her father, San. Rebecca concedes, however, that this is not determinative and is only one factor in the equation. San submits that given the ages of the children, and his concern of parental alienation, very little weight, if any, should be given to the views and preferences of the children. I agree. The views of the children are one factor. However, as the children are ages 3 and 8, little weight should be given their views in determining what is in their best interests. Further, there is no way to know whether A.M.’s resistance to spend time with her father, which Rebecca states she has expressed to her, has arisen because of the loyalty bind in which she has been placed by Rebecca or whether it is due to some discomfort she feels given that she has now not spent any time with, or seen, her father in five months.
The conflict between the parties existed prior to separation and only increased after the parties separated. It seems that Rebecca may have involved the older child in the parental conflict. San stated in his affidavit that he “has personally heard the Respondent coach [their] children, and especially [A.M]., to make statements against [him]. For instance, the Respondent had repeatedly threatened [him] that she can get [him] charged and [he] would never see [the] children again.” Again, this is untested affidavit evidence of San on an interim motion. However, if Rebecca is bringing A.M. into the midst of the dispute with San, this would place A.M. in a loyalty bind between her parents and would not be in A.M.’s best interests.
Parenting Time for San
While I understand that Rebecca and San have had conflict between them and there are allegations of domestic violence by Rebecca against San, as discussed above, in the circumstances there is not enough before the court to justify an order denying the children time with their father. The children have two parents and are entitled to have a meaningful relationship with both parents.
Taking into account the factors set out in Section 16 of the Divorce Act, in my view it is in the best interests of the children to order that San has in person parenting time with them. However, I am mindful of the fact that, regardless of the reason, the children have not seen or spent time with their father in five months. Accordingly, the children have to be given an opportunity to spend time with San gradually and for the periods of time they spend with him to increase gradually over a fairly short period of time.
Supervision
San wants to see his children. His preference is unsupervised access, but he indicated that he would be content with supervised access in the short term.
As mentioned above, due to the concerns of family violence raised by Rebecca, I have determined that San shall have supervised access for a period of time, to be stepped up to unsupervised access.
Rebecca submits that if this court is inclined to order supervised access, it should be through Access for Parents and Children in Ontario (“APCO”). However, in the current circumstances, that would amount to a zoom call facilitated by APCO. In my view, especially given the ages of the children (one being only 3), face to face parenting time is critically important and is in the best interests of the children.
The respondent further submits that San’s parents, with whom he resides, should not be the supervisors. I disagree. There is nothing in the record that would suggest any safety concern or abuse by the grandparents, or that would otherwise disqualify them from acting as supervisors. The only allegations raised by Rebecca are that San’s parents share San’s views regarding her culture and religion. As discussed above, the issue of respect for the others’ culture, roots, language and religion needs to be addressed by both San and Rebecca.
Based on the record before me and the submissions of the parties, I have determined that initially San’s parenting time shall be supervised by his parents. However, this is a temporary measure and is not a long-term plan for his parenting time.
Disposition
- Pursuant to section 16.2 of the Divorce Act, the applicant shall have temporary, without prejudice, parenting time as follows:
i. For the next two weeks, commencing on September 22, 2021, the children shall reside with San from after school to 7 pm on Wednesdays (or such other weeknight as agreed between the parties) and from noon to 3 pm on Saturdays (or Sundays, if agreed between the parties), with his parenting time to be supervised by one of his parents.
ii. Commencing October 6, 2021, the children shall reside with San from after school to 7 pm on Wednesdays (or such other weeknight as agreed between the parties) and from 11 am to 7 pm on Saturdays (or Sundays, if agreed between the parties), with his parenting time to be supervised by one of his parents.
iii. Commencing November 6, 2021, the children shall reside with San from after school to 7 pm on Wednesdays (or such other weeknight as agreed between the parties) and from 10 am on Saturdays overnight to 10 am on Sundays, with his parenting time to be supervised by one of his parents.
iv. Commencing January 26, 2022, San’s parenting time (as set out in iii above) shall be unsupervised.
The parties shall coordinate pick up and drop off of the children having regard to any applicable bail conditions.
The above parenting time schedule is without prejudice to the applicant’s right to bring a further motion for additional parenting time.
The following is ordered with regard to communication between the parties, subject to any applicable bail conditions:
a. San shall give Rebecca 24 hours notice if he is unable to make a visit.
b. Both parties shall subscribe to the Our Family Wizard (“OFW”) application for a minimum one-year subscription at his/her own cost. All communication between the parties shall be limited to OFW. The parties shall only text or call one another in the event of an emergency with the children.
c. Each parent shall respond to communication from the other parent within 24 hours. If a parent becomes aware or anticipates that he/she will not be able to do so, that parent shall let the other party know. If a reply to a question and/or a request for a change requires more time than 24 hours, the parent shall advise that the requested information cannot reasonably be ascertained in the time frame and advise the other parent when a response can be expected.
d. All communications, written or otherwise, shall be child-focused, cordial, and to the point about the children. The parents shall remain courteous and polite in communications with each other at all times. In addition, the parents shall refrain from including information that reflects his/her personal opinions and feelings about the other party, or his/her culture, language, roots or religion and concentrate on deciding what is in the children’s best interests.
Neither parent shall denigrate or disparage the other parent or members of their extended family, either overtly or covertly, in any communication with the children or in their presence.
Both parents shall request that members of their extended family shall not denigrate or disparage the other parent, or his/her culture, roots, language or religion, in any communication with the children or in their presence.
The parents shall not speak with the children directly or indirectly about any issues related to child or spousal support, property and financial issues between them.
In addition to the parenting time referred to paragraph 40 above, Rebecca shall facilitate the children having virtual parenting time with San via Skype, FaceTime, Zoom, or WhatsApp on Mondays and Thursdays at 5:30 pm (or such other time as may be mutually agreed by the parties), for at least 15 minutes. During the virtual parenting time, Rebecca shall give the children privacy in a separate room so they can speak freely with San.
If the parties cannot agree on costs of this motion by October 31, 2021, the parties shall notify my judicial assistant. A party seeking costs shall serve and file written costs submissions to the other party of no more than 3 pages double spaced (not including a Bill of costs or Offers to Settle) by November 10, 2021. Upon receipt of a party’s costs submissions, responding costs submissions shall be served and filed within 10 days, of no more than 3 pages double spaced (not including a Bill of Costs or Offers to Settle). Reply costs submissions, if any, shall be served within 5 days of receiving responding costs submissions and shall be no more than one page double spaced.
Justice J. Steele
Date: September 21, 2021