ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARYANA CHYHER Applicant
– and –
AMAL AL JABOURY Respondent
COUNSEL: Alison Campbell, Victoria Kayal as agent, for the Applicant Valerie Akujobi, for the Respondent
HEARD: December 8, 2021.
DECISION
Audet J.
1This is a motion brought by the Applicant mother on an urgent basis, as permitted by Summers J. on October 26, 2021 in the context of a settlement conference. The urgent issue to be dealt with is whether the temporary parenting arrangements in place pursuant to the order of Summers J. made on December 22, 2020 should be varied pending the trial which is scheduled to be heard in May 2022.
BACKGROUND
2The background facts relevant to this motion have been set out in detail in the following decisions of Summers J.:
Her endorsement of December 22, 2020, released following the first urgent motion brought in this proceeding to deal with parenting issues (not published);
Her follow-up endorsement released on January 13, 2021, setting out further reasons (not published);
Her Reasons for Decision released on June 16, 2021, following a second urgent motion heard in this matter to deal with parenting issues, which can be found at Chyher v. Al Jaboury, 2021 ONSC 4358.
3As the background is fully set out in those decisions, it will not be repeated here, other than to provide a very concise summary of what has taken place so far in this proceeding.
4The parties are the parents of two children; A.G. who is 12 and S.G. who is 10. The parties were married in February 2008 and separated in July 2020. Throughout the parties’ marriage, the mother was a homemaker and the father was the family’s financial provider.
5On the day of the parties’ separation, the mother left the matrimonial home because she feared for her personal and physical safety. From that date until Summers J.’s first decision was released on December 22, 2020, the father refused to allow any contact between the mother and the children.
6For reasons set out in her December 22, 2020 and January 13, 2021 endorsements, Summers J. found that it was in the children’s best interests that they be returned to the mother’s care immediately and have their primary residence with her on an interim basis. She ordered that the father was to have interim parenting time with the children as follows, on a rotating four-week schedule:
Week 1: On Tuesday from the end of the school day at approximately 2:30 p.m. until 7:00 p.m. and from Saturday at 6:00 p.m. until Sunday at 6:00 p.m.;
Weeks 2 and 3: From Saturday at 6:00 p.m. until Sunday at 6:00 p.m.;
Week 4: From the end of the school day on Thursday at approximately 2:30 p.m. until 7:00 p.m.
7She also ordered that pick ups and drop offs were to take place at a neutral public location mutually convenient to both parties, as agreed in writing. The mother was to drop off the children and the father was to return them to the agreed location (hereinafter, “the December 2020 Order”).
8On consent of the parties, the Office of the Children’s Lawyer was appointed and asked to consider appointing a clinical investigator for the purpose of completing a s. 112 assessment. For reasons that I am unaware of, ultimately the parties hired a private clinician, Ms. Valerie Morinville, to complete this parenting assessment.
9On May 3, 2021, Summers J. heard another urgent motion, this time brought by the father, seeking to change the children’s primary residence from the mother’s home to his home pending the release of the parenting assessment. For detailed reasons set out in her decision released on June 16, 2021, Summers J. dismissed the father’s motion (hereinafter “the June 2021 Order”).
10By the time the parties attended a settlement conference before Summers J. on October 26, 2021, Ms. Morinville had released her very extensive parenting assessment (98 pages). Based on that assessment, the mother sought leave to bring another urgent motion, which was granted to her. The matter was also added to the May 2022 Trial List, on the basis of the urgency that it presented.
11The content of Ms. Morinville’s assessment, as well as her conclusions, will be discussed in more detail below. For the time being, suffice it to say that she concluded that there was a “very significant risk of ongoing harm to the children” if changes were not made to reduce their exposure to the parental conflict. In addition to an immediate reduction of the father’s parenting time with the children, coupled with the need for all of his time with the children to be supervised, she concluded that the children (and both parents) desperately needed significant services and support to repair the damage already caused or future damage from occurring. She expressed the wish that the Children’s Aid Society would continue to support this family (as it has done for some months now) and that it would be able to ensure that the children continue to receive much needed services. She cautioned that it would be prudent to put the services in place now rather than have to put different services in place when A.G. and S.G. are teenagers if their behaviours escalate to the point that neither parent can provide appropriate care.
12Ultimately, she made the following recommendations:
Decision Making
Education: the mother is to have final decision-making authority with respect to the children's education. She will advise the father of all decisions before finalizing them. The mother will be permitted to change the children’s school if she believes it is in the children's best interest.
Religion: the father is to have final decision-making authority with respect to the children's religion, in consultation with the mother. The mother will support the children's religion in her home, in a reasonable fashion, although the father may not insist on how the children's religion is supported in the mother's home.
Physical Health: The mother and the father are to have joint decision-making authority with respect to the children's health. Either parent may make and take the children to medical appointments. Each parent will keep the other parent informed of any appointments the children have, the name and contact for any medical professionals, and the outcome of any medical appointments for the children.
Mental Health: The mother is to be responsible to make all required appointments for the children with respect to their mental health. This includes not only psychologists or social workers, but also groups for the children who have been exposed to domestic violence, or working through parents' separation, among other services, The mother may make the appointments she feels are appropriate without the father's consent. The mother will provide the father with contact information for any such professionals.
It is not desirable for the parents to attend medical appointments together for the children due to the current conflict. However, in the event of emergency, the parent who does not have scheduled care may briefly visit the child to reassure themselves and the child.
Extra-curricular activities: The mother will consult with the father about extra-curricular activities for the children. In case of dispute, the mother will have final decision-making authority, within the confines of the family's financial structure.
It is recommended that the children do not return to Zen Studio for their extra-curricular activities or camps, unless the children expressly wish to return.
Parenting Schedule
The children will reside primarily with the mother.
A.G. and S.G. will be with their father as follows:
a. Wednesday each week from after school (or 3:00 pm) until 7:00 pm.
b. Sunday each week from 2:00 pm until 7:00 pm.
c. In the event that the father is able to afford supervised access for a longer period on Sundays, the children could be with him for 10:00 am until 7:00 pm.
Additionally, the children will be with the father a minimum of 4 hours for each Eid celebration. The father will provide the mother with his requested time a minimum of seven days before Eid.
At a minimum until September 2022, all the father's parenting time will be supervised by a professionally trained supervisor. If the Children’s Aid Society cannot provide supervision, the family might contact either Muslim Family Services Ottawa, Brayden Supervision Services, or any other professional service the family is aware of.
At a minimum until September 2022, the children will not have telephone, text, or social media contact with their father during the mother's parenting time.
Additional Recommendations
The children's passports should be kept with the mother's lawyer for safekeeping. Any travel with the children outside of Canada requires a notarized letter of permission from the other parent.
The father will participate in individual therapy to address his reported history of trauma. He is to begin within three months and attend regularly. The father might want to contact Muslim Family Services Ottawa to find a faith-based therapist. It is important that the therapist be experienced in trauma-based therapy. He might connect with Men and Healing Ottawa for the Emotional Integrity course or individual trauma counselling. The father could also reach out to Mr. Fouad Khan for assistance in finding appropriate services if he so desires and if it is appropriate.
The father will participate in the New Directions course when there is an opening available at no cost to him.
No sooner than three months and no later than eight months (if possible) after completing the New Directions course, the father will complete the Caring Dads program again, when there is an opening available at no cost to him.
Within the next six months (or as soon as possible) both parents will participate in the Parenting Through High Conflict course at Family Services Ottawa.
Within the next nine months the father will take parenting education classes on raising adolescents (or pre-adolescents).
The father might wish to participate in the Circle of Security course at the Parent Resource Centre.
S.G. and A.G. will participate in reunification therapy with both of their parents. They are to begin as soon as the family can find an experienced therapist who can take them. The therapist will determine when it is appropriate for each parent to participate in therapy.
The mother will request further services and participate with in-home support services from the Family Resiliency Program at the Parent Resource Centre.
Within the next nine months, both parents will participate individually in parenting classes with a goal of education on disciplining children.
As soon as possible. A.G. and S.G. will be registered with a homework club or after school program that supports their educational needs. One possibility is the Western Ottawa Community Resource Centre or the Muslim Family Services Ottawa centre. If required, they will work with a tutor.
A.G. and S.G. will participate in weekly Arabic classes, either with a private tutor or through a community organization.
As soon as there is an opening. A.G. and S.G. will participate in the Child Witness Program at the Western Ottawa Community Resource Centre.
The mother will participate in services with the Western Ottawa Community Resource Centre for individual or group therapy in the Violence Against Women program.
Beginning immediately the mother and the father will communicate via Our Family Wizard or Our2Homes. They will keep all communication respectful and focused on the children's needs.
PARTIES’ POSITION
The mother seeks to vary the existing temporary parenting order so as to immediately implement some of the assessor’s recommendations pending trial, including the following main ones:
1- That all of the father’s parenting time with the children be supervised by a professional supervisor;
2- That the father’s parenting time be reduced as per the assessor’s recommendations, being:
a. Wednesday each week from 3:00 pm until 7:00 pm.
b. Sunday each week from 2:00 pm until 7:00 pm
c. Additional parenting time on Sundays if the father is able to afford additional supervision.
3- That the children have no contact with the father while they are in their mother’s care (emails, social media, telephone, etc.);
4- That the children immediately begin reunification therapy with Ms. Victoria Hasbani, with the parents participating as needed and required by her;
5- That the children participate in the Child Witness Program at the Western Ottawa Community Resource Center as soon as there is an opening;
6- That she be permitted to register A.G. at Merivale High School and S.G. at Carlton Prince of Wales for the January 2022 school term;
7- That the cost of therapy and supervision be covered by the father.
13The father objects to all of the orders sought by the mother, with the exception of reunification therapy with Ms. Hasbani which he says he supports fully. He takes significant issue with the conclusions and recommendations of Ms. Morinville, and he asks that the parenting regime ordered on December 22, 2020 remain in place until the conclusions and recommendations contained in the parenting assessment can be fully tested at trial.
14Both parties also sought various orders which were not related to parenting, including a request to impute income on the mother, disclosure of third-party records, and the children’s need for tutoring. I advised the parties at the outset of this urgent motion that I would deal only with issues related to the parenting of these two children.
LEGAL FRAMEWORK
15Summers J. concisely set out in her June 2021 decision (2021 ONSC 4358) the legal test that must be met for a temporary order to be varied pending trial. I reproduce her legal summary here, and adopt it as mine:
22 The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:
26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.
16It is not disputed that this motion is brought as a result, solely, of the release of Ms. Morinville’s parenting assessment, which was not available at the October 2020 motion or at the June 2021 motion.
17Whether or not it is appropriate to use a parenting assessment to support a motion to vary a temporary parenting order before trial has been discussed in many court decisions in the past few years. In J.D. v. N.D., 2020 ONSC 7965, Mackinnon J. summarized the applicable legal principles as follows:
10 Grant v. Turgeon, [2000] O.J. No. 970 (Ont. S.C.J.) is authority for the propositions that the status quo will generally be maintained on a temporary motion in the absence of compelling reasons indicative of the necessity of a change to meet the children's best interests and that an assessor's recommendations ought only to be acted upon before trial in exceptional circumstances where immediate action is mandated by the report.
16 Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes. […]
17 The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v. Genovesi, [1992] O.J. No. 1261 (Ont. Gen. Div.). While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (Ont. S.C.J.) (child significantly impacted by parents' inability to make timely decisions for child's mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (Ont. S.C.J.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved. In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:
[23] ... In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances" as set out in Genovesi. ...
[27] It must be cautioned that the existence of an assessment report should not make it "open season" for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court's discretion.
18 The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:
a. How significant is the change that is being proposed as compared to the interim status quo?
b. What other evidence is before the court to support the change?
c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?
d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?
19 Other decisions agreeing with Bos include CHELSOM v. HINOJOSA-CHELSOM, 2020 ONSC 6926 (Ont. S.C.J.); Krasaev v. Krasaev, 2016 ONSC 5951 (Ont. S.C.J.); and Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.).
ANALYSIS
18I come to the clear and unequivocal conclusion, based on all the evidence before me, that the children will be at risk of severe emotional harm if the current parenting arrangements remain in place for any length of time, and if the children do not immediately access the services that they need to repair the damages they have already suffered, and avoid the complete and irreparable breakdown of their relationship with their mother.
19While I appreciate that Ms. Morinville’s conclusions and recommendations have not yet been tested in the context of a full-blown trial and in light of a full evidentiary record, its content is supported by a significant amount of documentary evidence and third party collateral evidence – which includes many neutral professionals such as doctors, police officers and counsellors – and her conclusions are fully supported by the observations and views expressed by Ms. Kyte, the child protection worker who has been involved with this family during the eight months preceding Ms. Morinville’s report (and who continues to act in that capacity to the best of my knowledge).
20In the context of completing her assessment, Ms. Morinville conducted various interviews and observation visits with the children and the parents, as is the norm. But she also interviewed many other people and reviewed extensive documentary evidence, including the following:
Information provided by the parties and children’s family doctor, the children’s school principal, a crisis counsellor and case worker at the Immigrant Women’s Services of Ottawa, a Family Resilience Program Coordinator at the Parent Resource Centre, a counsellor and coordinator with the Caring Dads program, and two counsellors in the Violence Against Women program at the Western Ottawa Community Resource Center;
Information provided by the Ottawa CAS, including telephone interviews with Ms. Kyte, the family’s main worker;
Ottawa CAS records, which included police reports and records of interviews with various professionals involved with the family;
Ottawa Police Services records;
The children’s medical records from CHEO;
The parties’ pleadings in this matter, as well as all affidavits and decisions released by the court in this matter.
21In addition to all of the above, Ms. Morinville listened to more than five hours of video and audio recordings of telephone conversations between the father and the children, of conversations between the children and their mother, and of conversations between the parents, and she reviewed countless emails, text messages and other communications exchanged between the parents and/or the children.
22The following is a summary of her most concerning conclusions about this family;
A.G. and S.G. are engaging children who are most definitely caught in the middle of their parents' conflict. It is disheartening to see the negative impact of the parents' relationship on these boys;
Both children are quite bright and used to do quite well in school. However, these children have not done well in school this past year;
Both children participated in martial arts for several years, but both now state they do not want to continue;
The children have been interviewed many times in the past year, by many different professionals, and they have made very serious allegations of abuse perpetrated against them by their mother. Unfortunately for the children, their allegations about their mother are not believable;
It was exceedingly obvious across all information reviewed, which included very serious allegations of domestic violence by a former partner, and reports of controlling and coercive behaviours by the mother, that the father is used to being listened to and getting his way, which is extrapolated to "controlling";
The father exerted an enormous amount of pressure on the mother and the children to do his bidding in telephone calls to the children post separation. The father insisted that the children always have access to the telephone he provided and that he be able to reach them when he wanted. The father incited the children to disobey their mother about the telephone;
The father’s messages to the children, whether explicit or subtle, encouraged them to be belligerent and impudent with their mother;
The father is putting enormous pressure on these children to grow up faster than they are able and fails to understand that they are not “men” as he asserts. The father’s messaging to the children is received by them as meaning that no one can tell them what to do, which now expands into other areas of A.G.'s life when he behaves rudely or belligerently with other professionals, not just with his mother. Ms. Morinville stated that this behaviour was extremely alarming;
The father spoke openly and without reserve to the children about their mother in very negative ways (including by telling them that he did everything for them, that it was he and he alone who taught them to learn and be responsible, that their mother was “the problem”, etc.). The father showed no compunction in discussing the mother’s many failures to third parties including neighbours, friends, police officers and CAS workers in front of the children, and no insight into the negative impact of these behaviours on the children or their relationship to the mother;
Both children have been significantly exposed to their parents’ conflict, much more significantly so by the father. It was overwhelmingly clear that, based on the information reviewed, the father had consistently and deliberately continued to expose the children to the adult conflict, despite being admonished on several occasions by various professionals against doing this. The father was even observed denying he was doing this, while doing it… His lack of insight or compliance to stop this behavior was considered alarming by Ms. Morinville;
It was clear that the father had shown the children court documents, and discussed their content with them;
A.G. and S.G. feel caught in the middle of their parents' conflict. It was disheartening to see them struggle the way they have been as a result of their torn loyalties;
The children were observed by many professionals to behave in an “outrageous and dreadful” manner towards their mother. They defy and disobey her, refer to her as “her”, “she” or as “Maryana”, accuse her of “being the problem”, and generally make repeated and serious (and baseless) allegations of abuse against their mother to their father, karate instructors, police, CAS workers, the assessor and to anyone who will listen to them. Each time, the children’s allegations were investigated by OPS or CAS, and each time they were unverified;
The father believes the children’s allegations, despite the fact that those allegations have been found to be inconsistent and without any sort of credibility, and as a result, the children continue to make them;
A.G. has made comments on several occasions that he wants to kill his mother. His belligerence and aggression towards his mother was considered alarming. He was observed to behave with impertinence towards other authority figures as well, including OPS officers and CAS workers, and the school noted that when A.G. is with his mother, he can be less respectful towards staff;
According to A.G.'s February 2021 report card, he was not doing his work, not acting responsibly and rarely followed instructions. It was Ms. Morinville’s view that if A.G.'s behaviour is not well managed, the worry would be that he could become a youth who acts out and resorts to more violent means of communication;
Although S.G. seemed to have been almost forgotten in the chaos of this family's situation, he is now acting out with his mother more than A.G.. S.G. did very poorly over this past school year. He displayed a lot of sadness about his family's situation and he was reported to be quick to cry or to anger. His family doctor expressed concern about his mental well-being, and it was reported that S.G. now has trouble sleeping, is more withdrawn at school, has to be reminded by his teacher to eat his snacks, and punched his mother in the jaw when she spontaneously kissed him. He appears to be confused about whether to love his mother and respect her or not;
Neither children could describe anything positive about their mother. They not only reject her, but everything about her including her language, her family, and the people that gravitate around her (such as the karate studio). They call her names and belittle her regularly;
There are clear signs of the children being parentified in relation to their father. They are very worried that something bad will happen to him because the father discusses his general health with the children in such a fashion as to cause them to worry (despite there being no medical information suggesting that he is in poor health). The children feel that the father should not be working as hard as he is (blaming the mother for this), and they regularly check in with their father to see if he has eaten or drank anything;
The children are convinced that their mother is having an affair with another man, and this belief clearly comes from what their father has reported to them;
The children's relationship with their mother has been enormously damaged since she left (which the children consider to be "the problem"). To Ms. Morinville, it is clear that the father played a part in destroying the mother/child relationship. At the same time, she acknowledges that the children feel their mother abandoned them when she left them with their father on the day of the parties’ separation, and they struggle to reconcile their emotions about this;
Ms Morinville was of the view that the children’s current school had not done enough to support the children, nor had it adequately met the children’s academic needs during the pandemic. Further, there were concerns about the school’s alignment with the father, who pays for their tuition (this is a private school), and concerns about the impact of having the children continue to attend their current faith-based school in light of the fact that the mother no longer practices the Muslim faith, and the children’s expression of being embarrassed by her for that reason;
There is no question that A.G. and S.G. are truly loved by both of their parents. They have a strong bond with their father, although there are questions about how healthy that bond is given the above. Ms. Morinville had multiple concerns about the father’s deliberate sabotage of A.G. and S.G.'s relationship with their mother and felt that his behaviours had been have been detrimental to their well-being and their adjustment to the parents' separation. Although the father completed the Caring Dads program, he did not appear to have benefitted from it. His ability to change was therefore questioned;
The children clearly love their father and there was concern that if they could not see him at all, they would continue to run away (which they have done on at least one occasion) and place themselves at considerable risk. For that reason, the recommendation was made that the children continue to see their father on a regular basis, but under the supervision of a qualified supervisor;
It is imperative that the children be given the opportunity to repair their relationship with their mother. Since the father has directly interfered with that and, given his unhealthy connection with the children and his inability to stop giving negative messages, Mr. Morinville felt that it was necessary for the children to have no contact with their father (via telephone, social media or any other form) during the mother’s parenting time with them.
23The impact of the father’s behavior, as described above, is clear when one considers that, prior to the parties’ separation, the mother had always been the children’s primary (if not sole) caregiver – the father worked very long days – and shared a very close and loving relationship with her two boys who were excelling in all areas of their lives including at school and in martial arts. After almost five months of being in their father’s full-time care, with no contact with their mother, and a full year of unsupervised – albeit much reduced – parenting time with their father, the children now engage in what was described by Ms. Morinville and others as “atrocious”, “outrageous” and “dreadful” behaviour towards their mother, showing a belligerence, defiance, impertinence, aggression and a complete lack of respect for her.
24As stated earlier, in the eight months that the Ottawa CAS has been involved with this family prior to Ms. Morinville’s assessment being released, the same conclusions were reached by the Society’s main worker, Ms. Kyte. In an inordinately lengthy report letter dated September 3, 2021, filed with the court at Summers J.’s request, Ms. Kyte reports much of the same concerns as Ms. Morinville, albeit in less details. She confirmed that the Society’s investigations into the children’s allegations of abuse by their mother were not verified, but the risk that the children were likely to be emotionally harmed as a result of their exposure to on-going post-separation caregiver conflict was verified. Her impressions of this family based on her many meetings with each member and the significant information collected in the context of her investigations can be summarized in the following excerpt of her letter:
At my first meeting on January 17, 2021, with Mr. Al Jaboury and the Children, who were at the Father’s home that day, my notes detail many worries including: An unusual level of alignment of the boys towards their Father; the level and content of the contact the Father was maintaining with the Children when they were at their Mother’s home; lack of detail from either Child about specifics related to claims their Mother had repeatedly hit them/been abusive with them, although both Children repeatedly stated they believe their Mother will hurt them; the Father speaking negatively in front of the Children about the Mother while maintaining he does not; neither the Father nor either Child able to state a single positive thing about the Mother; the parent/child dynamic having the appearance of not having appropriate boundaries (i.e., S.G. appeared to be having issues with sleeping since his Mother left in July. He therefore sleeps with his Father. A.G. Jr. described “tucking his Father into bed at night,” the Father openly stating in front of the boys as I was leaving that he hoped I would help him overturn the Court Order). I noted too, a level of hostility exhibited by the boys towards their Mother, which would mean that managing of difficult and complex behaviours could be an onerous task for her.
Since the Family Court Order of December 22, 2020, in which the Court identified there were dynamics of coercive control and had ordered Ms. Chyher to be the designated the primary carer and the Children spend the majority of time with her, the Father has contacted the Children’s Therapist and the Family Doctor, and on multiple occasions, the Society and the Police, with concerns of the Mother, triggering repeated interviews of the Children. There is evidence to suggest that the Children are aware of and even overtly informed or influenced by Mr. Al Jaboury about adult issues including the Court Order, his worries, his feelings about Ms. Chyher, his perceptions of events) all of which are inappropriate and not conducive to a co-parenting relationship and may result in S.G. and A.G. Jr. feeling anxious, distressed, and/or to act out in aggressive ways towards their Mother.
Over the course of the on-going opening, I have continued to observe a very concerning pattern of behaviours by both the boys, and their Father, directed towards the Mother and others in her sphere. This hyper-alignment with the Father, in tandem with the overt disdain and contempt for the Mother, has resulted in the rejection of her as a parent. This rejection is seemingly linked to her abrupt departure from the home (S.G. states for example this is “when the problem started”) and the resulting break in contact during the period she lived in the shelter and before the December 2020 Court Order, rather than based on behaviour so egregious it would result in a complete rejection.
25Ms. Kyte explained that the Society had provided continuous services to the family since the file re-opening in December 2020. During that time, she has observed the mother to consistently offer affection, appropriate structure, and an unwavering commitment to the boys, in the particularly trying circumstances of reintegrating the children who had had no contact with her for an extended period of time. It was Ms. Kyte’s observation that the mother had sought and utilized appropriate supports to assist in this process and had made a valiant effort to work within the current framework of the Court Order. She had shared that there were some “good moments” when the boys were “okay” with her and participate in informal and semi-structured activities with their mother which they indicated to her were fun and enjoyable. However, the children continue to allow very minimal physical touch/affection with their mother and continue to behave in an overtly rejecting and aggressive manner towards her.
26In conclusion, Ms. Kyte expressed that the Society was very worried about the current circumstances and existing custody/parenting time structure, given the detailed observations of ingrained and chronic negativity of the children towards their mother, and especially due to a recent increase in the frequency and escalation of the boys’ behaviours (which included a series of running away incidents, refusal of the boys to cooperate with simple safety rules, and allegations of abuse now expanding towards others within the mother’s circle). She expressed concerns that if things were to remain unchanged, the window where a therapeutic intervention could alter the current trajectory for these children to have other than an estranged relationship with their mother, would expire. This, in her view, was the most worrisome concern which could result in irreparable emotional harm for the children as they enter adulthood.
27As stated earlier in these reasons, there is overwhelming evidence before me that the situation as it exists cannot continue. The window of opportunity for meaningful intervention and, hopefully, lasting change, is very small. If the significant risk of further emotional harm to the children is to be minimized, all the necessary and available services must be put into place immediately, and at once. Otherwise, the situation will only get worse, the hopes to repair the children’s relationship with their mother will be lost, and these children will suffer irreparable harm.
CONCLUSION
28As a result, I make the following temporary order, which is effective immediately:
The children, A.G. and S.G. (“the children”), will continue to reside primarily with their mother.
The children will have parenting time with their father as follows:
a. All of the father’s parenting time with the children will be supervised by a professionally trained supervisor. If the Ottawa Children's Aid Society cannot provide supervision, the family shall use any professional supervised access services such as those provided by the Ottawa Family Services, Muslim Family Services, Renew Supervision Services, Brayden Supervision Services or by any other professional agreed upon by both parties. The supervision services or supervisor chosen must be willing to provide written reports for the visits.
b. The father’s supervised parenting time with children shall be as follows:
i. For four (4) hours on Wednesdays, each week from 3:00 pm until 7:00 pm., or on another weekday or at another time to be chosen based on the supervisor’s availability;
ii. For three (3) to five (5) hours each Sunday, from 2:00 pm until 7:00 pm, or on Saturday or at another time to be chosen based on the supervisor’s availability;
iii. In the event that the father/the parties are able to afford longer supervised parenting time on Sundays, the children may be with him for seven hours instead of three to five hours;
iv. Additional parenting time as agreed upon between the parties through counsel, to the extent that more supervision services are available/can be afforded by the parties;
v. The children will also be with the father for a minimum of four (4) hours for each Eid celebration. The father will provide the mother with his requested time a minimum of seven days before Eid.
c. The transitions between the care of the parents (access exchanges) shall take place between the mother and the professional supervisor at an agreed upon neutral location. The father will not be present at the exchange, and there shall be no interactions between the parents.
d. The children shall not have telephone, text, or social media contact with their father, at any time. In other words, their contact with their father shall be limited to when he has supervised parenting time with them.
29Ms. Hasbani, a reunification counsellor, has confirmed her willingness to begin reunification therapy with the children and both parents. Both parents consent to this process beginning as soon as possible.
30The mother asks that the father be required to pay all of the fees associated with this therapeutic process whereas the father seeks an order requiring the mother to pay half of those costs. While I acknowledge the father’s claim that the mother is under-employed, and that she should be earning employment income by now, this issue is a complex one given that the mother has been a homemaker throughout the parties’ relationship and has never worked outside of the home (to the best of my knowledge). Further, I do not have the evidence before me to assess this claim and, as stated earlier, I have advised the parties that I would not deal with any other issues than the urgent one that is before me; parenting.
31It is not disputed that the only assets of value owned by the parties is their matrimonial home (worth at least $600,000 – with no mortgage) and the father’s taxi licence, both of which are in the father’s sole name. It is therefore not disputed that the mother will be entitled to a significant equalization payment from the father.
32During the motion hearing, I asked both parents to consider borrowing against the home to fund the costs of reunification therapy and, should I make the order sought by the mother, supervision services for the father’s parenting time. Both parties agreed to this, but the father expressed his wish to first try to secure personal loans from friends and family.
33As a result, I make the following additional temporary order:
The children shall immediately participate in reunification therapy with Ms. Victoria Hasbani (who has agreed to do so). The parents will participate in the process as may be requested by Ms. Hasbani from time to time, in her sole discretion.
The father shall immediately pay the required retainer for the reunification therapy, as well as all therapy costs that may be owing to Ms. Hasbani in addition to the initial retainer.
On a without prejudice basis, and subject to the trial judge’s discretion, for the time being all therapy and supervision costs shall be the equal responsibility of both parents, but the mother’s 50% share of those costs shall be covered by the father in full and deducted from the equalization payment ultimately owing by him to the mother.
If the father is unable to borrow sufficient funds to cover all of the above costs, he shall promptly apply for a loan or line of credit sufficient to pay for those costs and any future therapeutic and supervision costs, which loan may be secured against the matrimonial home. The mother shall give her consent to the matrimonial home being used as collateral for that purpose. The proceeds from the loan shall be paid to the father’s or the mother’s lawyer in trust and the parties shall consent, in writing, to their use for the payment (exclusively) of reunification therapy, supervision services, or any other services as may be recommended by Ms. Hasbani or agreed to by the parties.
As soon as there is an opening, the children shall participate in the Child Witness Program at the Western Ottawa Community Resource Centre.
The mother shall be entitled to register A.G. at Merivale High School and S.G. at Carlton Prince of Wales for the January 2022 school term.
The mother shall also be entitled to register the children in a homework club or after school program to support their educational needs, as she deems necessary. The father’s obligation to contribute to the cost of same, if any, is left for trial.
34Finally, the father seeks an order that the OCL be appointed to represent the children. I decline making an order to that effect at this time. Given the significant negative influence exerted by the father on the children in relation to their living arrangements and their relationship with their mother, it is clear that their views and preferences would have very little weigh on the decision that the court needs to make, and until the court is able to observe a clear and positive shift of the children’s perspectives and behaviours following their participation in reunification therapy.
Madam Justice Julie Audet
Released: December 15, 2021
COURT FILE NO.: FC-20-1221
DATE: 2021/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARYANA CHYHER Applicant
– and –
AMAL AL JABOURY Respondent
DECISION
Audet J.
Released: December 15, 2021