Hatab v. Abuhatab, 2022 ONSC 1560
COURT FILE NO.: FS-22-289269 DATE: 2022-03-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abu Hatab, Applicant AND: Lama Abuhatab, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Gary Gottlieb, for the Applicant Liza Bakhshi, for the Respondent
HEARD: March 8, 2022
Corrected Endorsement
Nature of the Motion
[1] This is the return of the applicant father’s emergency ex parte motion, initially heard by me on March 1, 2022.
[2] The issues to be determined on this motion are:
a) What temporary parenting schedule is in the child’s best interests?; and
b) Should the mother’s parenting time with the child remain supervised until further evidence is obtained about her mental health?
Ex Parte Motion – March 1, 2022
[3] In support of the father’s emergency ex parte motion, he swore an affidavit stating that he had serious concerns for the 3-year old child’s safety due to the respondent mother’s erratic and volatile behaviour; the fact that she had called the police on seven occasions since December 25, 2022, five times in February alone; her own admitted struggle she was having with depression and debilitating headaches; her belief that the “evil eye” was following her; and the fact that the child was being unnecessarily exposed to the police; paramedic services and the CAS because the mother was having difficulty coping. He appended a number of text messages exchanged between him and the mother corroborating his concerns. Each time the mother called the police for assistance, the father was forced to undergo police interviews and faced the risk of being arrested.
[4] Giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being, as required by s.16(2) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), I found the father’s motion to be urgent where the giving of notice by service of the motion materials itself would probably have serious consequences: M. (A.) v. M. (J.), 2016 ONCA 644.
[5] Accordingly on March 1, 2022, as a holding order only until the matter could be returned before the court and both sides of the story would be on the record, I made an entirely without-prejudice, temporary order, transferring the care of Y. from the mother to the father; granting the father temporary decision-making for emergency medical decisions concerning Y.; granting the mother daily supervised parenting time with Y. from after work at 6:15 to 6:30 p.m. to 8:30 p.m., to be supervised either by the father’s mother or a third party chosen by the wife; ordering that neither party remove Y. from the city of Toronto; and ordering the mother to provide the father with all government-issued documentation for Y., including his health card and passport. I also made a temporary restraining order that the mother not communicate directly or indirectly with the father and come within 100 metres of the father, the terms of which restraining order expired today at 10:00 a.m., unless the court decides to continue the restraining order.
[6] In accordance with my Endorsement, dated March 1, 2022, the parties attended an urgent case conference, three days later, on March 4, 2022 before Papageorgiou, J. By the time this case conference took place, the mother had filed a responding affidavit, sworn on March 3, 2022, in which she refutes the various concerns raised by the father about her mental health and/or fitness to parent their child. The mother raised her own concerns about the father’s parenting of the child and alleges she was psychologically and financially abused by the father during the marriage by his control and isolation of her. The Endorsement of Papageorgiou, J. indicates that the mother consented to an order that the CAS, police and paramedic records be obtained; and that the mother was to make a proposal in writing to the father regarding the master key to the matrimonial home (in which the mother was residing) and the key to the mailbox, failing which the mother was granted leave to bring a motion on short notice before the motions judge hearing the return of the father’s motion on March 8, 2022.
[7] The father served and filed a reply affidavit, sworn on March 5, 2022.
[8] Counsel confirmed that the father provided the mother with the key to the mailbox. The father demies that he has a master key to the matrimonial home.
[9] Counsel also confirmed that over the past six days, between March 2, 2022 and March 7, 2022, the mother has had parenting time with the child daily as per my Endorsement, dated March 1, 2022 without any issue and that her parenting time has been supervised by the paternal grandfather.
Coming Back Motion – March 8th, 2022
[10] The father now seeks a new parenting-time schedule that considers the safety of Y. He proposes that the mother have parenting time with Y. on three evenings a week, from after work at 6:100 to 6:15 p.m. to 8:30 pm., and on alternate weekends for day visits only, with no overnight time. The father submits that until the records from the CAS; police and paramedics and/or information from the mother’s doctor are obtained so the status of the mother’s mental health issues can be assessed, the mother’s parenting time has to be supervised on some basis. He suggests a relaxed supervision regime, however, where the mother would check-in and check-out with the paternal grandfather at the beginning and end of her scheduled parenting time, pending the receipt of these records and a fulsome case conference is held.
[11] The mother seeks the following orders on this motion: 1) a temporary order that the parties have joint decision-making responsibility for Y.; 2) her parenting time with Y. be pursuant to set schedule; 3) the parties share all holidays, school breaks and special days equally with Y.; 4) neither parent discuss any aspect of the litigation with Y. or disparage the other party in front of Y.; 5) neither party travel with Y. outside of Ontario without the written consent of the other parent; 6) a parent who wishes to travel with Y. provide the non-travelling parent with a copy of their itinerary at least 21 days prior to the scheduled department date; that the travelling parent provide the travel consent form to be signed 14 days in advance of the proposed travel and the non-travelling parent signs and returns the travel consent to the travelling parent seven days in advance of the planned travel; 7) neither party be permitted to obtain government issued identification for Y. without the written consent of the other parent; 8) both parents be permitted to consult with and obtain information directly from Y.’s teachers, doctors or other professionals; 9) the applicant pay ongoing and retroactive child sport in accordance with his income in accordance with the Guidelines; 10) the parties share the child’s s.7 expenses equally; and 11) the parties exchange financial disclosure by June 1st in each year to recalculate the child support.
[12] I have determined that the mother’s parenting time no longer needs to be supervised and I have established a parenting schedule where both parents will have parenting time with Y., including on an overnight basis. The matter is to return before the court for a fulsome case conference on issues relating to child support; disclosure; and the remaining incidents of parenting. My reasons for this Endorsement and my Order are set out below.
Background
[13] The parties were married on May 22, 2015.
[14] They have one child, Y., who is 3 years and 10 months old.
[15] The parties separated on December 25, 2021.
[16] The mother resides in the parties’ matrimonial home located at 725 Don Mills Road, Apart. 703, Toronto ON. The father has moved into his parent’s home, located in the same apartment building, in unit 204.
[17] Until my order of March 1, 2022, the parties were sharing parenting time with Y. but there was no set parenting time schedule in place. As result, there was considerable conflict between the parents.
[18] The father works from home and, as such, he has been caring for Y. with the assistance of his parents during the day from Monday to Friday, while the mother works full-time. The mother cares for Y. from after her workday overnight to the following morning at 8:00 a.m. The parties shared parenting time with Y. on the weekends.
[19] According to the mother, the specific parenting schedule followed by the parties was that the father and his parents would look after Y. during the week days when she was at work from 8:00 a.m. every day until 6:00 – 6:15 p.m. during the week. The mother submits that the parties shared parenting time with Y.’s on the weekends, with the father caring for Y. one day on the weekend and her caring for Y. on the second day on the weekend, but that Y. only had overnight parenting time with her.
[20] According to the father, the mother was very restrictive in the parenting time she would allow him to have. He argues that he and his parents were relegated to looking after Y. as if they were a daycare only when the mother was not at work. The father deposes that the mother would call the police or threaten to call the police when she demanded that he return Y. to her care and he questioned her or asked for more parenting time. This took place even though there was no agreed upon temporary parenting schedule. Rather, the father argues the mother dictated the parenting schedule and he was left with no choice but to accept whatever time with Y. that he was given.
The Father’s Position on the Motion and his Concerns Regarding the Mother
[21] The father is concerned that there something going in the background that is outside of the mother’s control which is impacting her mental health and behaviour such that her sleep is dysregulated; she is suffering from debilitating headaches; she believes she is being followed by evil spirits; and she is behaving irrationally.
[22] The evidence on the record is that since the separation 2 ½ months ago, the mother has called the police on seven occasions; made allegations against the father to the CAS on one occasion; and called the ambulance twice, as follows:
a) On December 25, 2021, the mother called the police as she wished to separate from the father and believed she required assistance to do so. The father woke up to find police officers in the matrimonial home. The father did not resist the separation. He voluntarily left the matrimonial home and moved to his parent’s condominium which is in the same building. Even though the father left the matrimonial home, the mother left with Y. for two days. She deposes that she went to a hotel;
b) On December 31, 2021, the mother called the police again. She advised the father that she had a debilitating headache and asked his mother to bring diapers for Y. to her. The paternal grandmother brought the diapers to the matrimonial home and knocked on the door. The mother did not answer the door but called the police alleging that the father and his father were harassing her;
c) On February 3, 2022, the mother called the police. The mother admits in her affidavit that she did so to get some help in managing her stress. The parties had an argument because the mother insisted that the father’s parenting time with Y. had ended. Y. was exposed to screaming and yelling and parental conflict. The father was interviewed by the police. No charges were laid;
d) On February 9, 2022, the mother called an ambulance to assist her in taking Y. to the hospital. This call necessitated the fire department to be called. The father had suggested to the mother this same day that he take Y. to the hospital as Y. was congested and ill but the mother would not consent to him doing so. Later when she returned home from work, the mother called the ambulance and would not allow the father to accompany her and the child to the hospital. According to the father, Y. saw the father as he was leaving with the paramedics and he was crying asking for the father to come to the hospital with him. The child was released from the hospital the same day and was diagnosed with croup. The father had offered to take Y. to the doctor which would have avoided Y. being exposed to the chaos of being taken to the hospital by paramedics and the firefighters.
e) On February 12, 2022, the mother contacted the CAS alleging sexual interference by the father against Y. The CAS investigated the matter and closed their file;
f) On February 13, 2022, the mother called the police because she alleged the father was not following the parenting plan she had imposed on him;
g) On February 14, 2022, the mother called the police again. The father deposes that the mother told him he would have to explain himself to the police and attend on the 7th floor of the condominium. However, nothing came of that call; and
h) On February 21, 2022, the mother called the police alleging she does not feel safe because the father has the master key to the matrimonial home and the key to the mailbox, allegations she had not made earlier. The husband was interviewed by the police and advised that he did not have a key to the matrimonial home. He confirmed that he would not enter the matrimonial home uninvited.
[23] The concerns raised by the father about the mother are as follows:
a) The mother’s anxiety, particularly, in the month of February 2022, escalated to the point where the police were called repeatedly by her, despite there being no allegations of abuse against her by the father. Instead, the mother was enlisting the police for assistance in looking after the child and herself. The father is concerned that it is not in Y.’s best interests to continually be exposed to the police coming in and out of the home;
b) The mother’s behaviour has been volatile including yelling and screaming; pushing the father and his mother; throwing items; threatening to call the police on the father if he does not agree with her imposed parenting schedule; erratic mood swings; withdrawing funds from his bank account without his consent; and acting in a paranoid manner;
c) The mother expressed to the father that she is having difficulty sleeping and sent the father a picture of Y. eating in the middle of the night, demonstrating that she cannot regulate Y.’s sleeping;
d) The mother expressed to the father that she is suffering from debilitating headaches and she called the ambulance for assistance;
e) The mother has expressed to the father that she believes she is being followed by the “evil eye” and asked the father to obtain holy water from their mosque to cure her;
f) The mother is admittedly not receiving any ongoing treatment for her anxiety and depression, such as seeing a therapist. She is however, taking anxiety medication. She minimizes her mental health struggles and lays blame for her circumstances entirely on the father and his family. The father is concerned that she is unable to place the child’s needs ahead of her own needs;
g) The mother blames her mental health issues on the fact that she has been abused and controlled by the father and isolated by him. The mother provides no particulars in her materials about the abusive or controlling behaviour but makes bald allegations that the father and his family have tried to control her and insisted on her not socializing with anyone; and
h) The child has been exposed to parental conflict; to police authorities; an ambulance twice and the fire department unnecessarily by the mother.
[24] The father submits that the mother’s allegations of controlling behaviour on his part or that of his family are false. The father deposes that the mother had access to his bank account with a bank card he gave her and she withdrew over $7,340.76 without his consent. Further, he deposes that the mother was never required to be isolated as she alleges. In fact, the mother has been working full-time since October 25, 2021 as a building manager, giving her free opportunities to connect with, socialize and meet other people outside of the father and his family. Finally, the husband deposes that the wife has 2 Visa credit cards in her own name with a credit limit of $16,000, making her allegations that she was financially controlled by him blatantly false.
[25] Despite the police being called by the mother on seven occasions, the police have laid no charges against the father and have not expressed any concerns about Y.’s safety when he is in the care of the father.
Mother’s Position on the Motion and response to the Father’s Concerns
[26] The mother believes the father has created a narrative where the mother is seen as unstable or unreliable to parent Y. to gain a litigation advantage. She submits that she does not have any mental health concerns that impact her ability to care for Y.
[27] The mother submits that:
a) The parties come from a religious Islamic background in which she fulfilled a traditional role of looking after Y. since he was born;
b) She was not allowed to work outside of the home. She cooked and cleaned for the father and his family;
c) She was isolated during the marriage, expected to stay inside and have no friends;
d) She first tried to separate in December 2017 but the parties reconciled;
e) Since separation on December 25, 2021, Y. has been looked after by the father and his parents every day while she has been at work. She has concerns about the father’s ability to care for Y., particularly without his parents. She believes that Y. does not eat when he is in the father’s care; Y. does not nap when he is in the father’s care; and the father is a smoker and exposes Y. to second hand cigarette smoke;
f) She acknowledges that she is experiencing anxiety and depression. She has seen her family doctor and deposes that she began taking medication to assist her at the end of January 2022. Her counsel made submissions that she has no diagnosis of a mental health condition and that the mother’s family doctor has not recommended that the mother engage in counselling. [There is no evidence on the record to confirm this.];
g) She acknowledges that she has not suffered any physical abuse by the father but submits that she has been emotionally abused and controlled by him throughout the marriage;
h) She has no family or friends in Canada. Her only connection is to the father and his family;
i) She was not allowed to have her own bank account. She deposes that when she started to work full-time in October 2021, she deposited her income into the father’s bank account and the funds she withdrew was her earnings from employment;
j) She submits that the father and his parents enter the matrimonial home when they wish without telling her that they are coming over, as the father has a master key to the unit. The father and his family are financially controlling and forced her to transfer title to the matrimonial home out of her name in 2017; and
k) Her belief in the “evil eye” and bad spirits is common in the Muslim community. However, these beliefs do not mean that she is imagining things that are outside of her control.
[28] In response to the concerns raised by the father regarding the mother involving the police and other authorities since the separation, the mother admits that she involved the police on too many occasions and submits as follows:
a) She contacted the police on December 24, 2021, because she wanted to leave the matrimonial home with the child and telephoned them to inquire if she was able to do so. She acknowledges that she left with Y. and stayed with him at a hotel for two days and then returned to the matrimonial home on December 26, 2021 and the husband had moved into his parent’s home;
b) She acknowledges that she has relied on the police heavily since the separation. She explains that she has done so because she lacks a support system and cannot rely on the father. She specifically deposes that “when in need or despair, I would contact the police”. She goes on to submit that when she contacted the police she never did so in order to lay charges against the father, she called the police “when [she] had serious concerns or needed assistance with any pressing issue”;
c) She deposes that she has been subjected to emotional and financial abuse by the father. She asserts that she has been isolated from her family and friends; she was not permitted to socialize with anyone; the father and his family have conservative ideologies and believes she should stay indoors, care for the family and look after the child; and she felt she had no alternative but to resort to the police and justice system to fend for herself;
d) She acknowledged that she once called the police because she asked the father to return Y. to her and when he did not, she called the police to tell them the father was overholding the child but by the time the police arrived the father had given her the child as per her request;
e) She deposes that “any mood swing or outburst she has had took place during arguments she had with the father and [his] pattern to control every movement of [hers]”.
f) She admits that she suffers from bouts of sadness or depression but this was “only due [to] extreme emotional turmoil [she] was subject to by the [father] and [their]constant arguments”.
g) She contacted the CAS because when she returned home from work, Y. asked her if she liked his “private area” three times. She was concerned that the child had been exposed by the father or sexually interfered with by the father;
h) She admits that she and the father had arguments in front of Y, but blames this happening on the father and his family’s abusive and controlling behaviour; and
i) She deposed that she called the paramedics on two occasions, once when she was suffering from debilitating headaches and the second time when Y. was unwell.
[29] The mother argues that other than sadness and anxiety arising from the separation and abusive and controlling behaviour she claims to have suffered at the hands of the father, she is perfectly capable of looking after Y.; she is employed full-time without difficulty; and her stress is exacerbated by the fact that she has no support system in Canada. She argues that that the father has raised these concerns to support his narrative that she is unfit to parent Y.
[30] The mother’s proposal for a temporary parenting plan is as follows:
a) She will pick up Y. from the lobby of the apartment building daily on Mondays through Fridays, at 6:00 to 6:15 p.m. when she returns home from work and cares for him overnight to the next morning at 8:00 a.m.;
b) The father (and his parents) will have parenting time during the day on Mondays through Fridays from 8:00 a.m. to 6:00 p.m.;
c) The mother will have parenting time on Saturdays; and
d) The father will have parenting time on Sunday from 8:00 a.m. to 7:30 p.m.
[31] The mother does not propose that the father have any overnight parenting time with Y. at present, but that there be a gradual increase of time to include overnight time.
Analysis
[32] On the urgent ex parte motion, I had concerns about the child’s safety in the mother’s care given the concerns raised about her mental health and her ability to look after Y. Now that the mother has filed material and the court has both party’s stories on the record, I am faced with untested, affidavit evidence from each party that paints a starkly different picture of the other parent.
[33] Parenting determinations at temporary motions pose an added challenge in that decisions are being made without the benefit of a full evidentiary record. Temporary orders are “band-aid” solutions pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children requires a change.
[34] In making a parenting order, the court shall only take into consideration the best interests of the child; s.16(1) of the Divorce Act.
[35] In considering the best interests factors referred to in s.16(3) of the Divorce Act, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s.16(2) of the Divorce Act;
[36] The factors relating to the circumstances of the child in determining the best interests of the child are listed in s.16(3) of the Divorce Act which provides as follows:
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
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[37] In considering family violence, s.16(4) of the Divorce Act, sets out the following considerations the court is required to take 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.
[38] Section 16(10) of the Divorce Act provides that “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 interest of the child”.
[39] The legislation is clear, however, that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests; Tovell v. Jamieson, 2017 ONSC 5079.
(i) Is the continuation of the mother’s supervised parenting time warranted?
[40] My order of March 1, 2022 resulted in the mother’s parenting time with Y. being supervised. This means that the mother has endured seven days of having her parenting time with Y. restricted in its time and supervised by the father’s father, in my attempt to put a stop-gap measure in place to ensure the safety of Y.
[41] The father wants the mother’s parenting time with Y. to remain supervised until he can or the court can properly assess the mother’s mental health state.
[42] Parents are presumed to be capable of exercising their parental responsibilities without the need for supervision. Supervision orders outside of the child protection context are, and should be, rarely imposed. Supervision should only be ordered in “exceptional circumstances” because of the material impact that has on the parent-child relationship.
[43] Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: V.S.J. v. L.J.G., [2004] OJ No 2238).
[44] In BRM v. MAEM, 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child's views and preferences are in favour of supervision.
[45] In V.S.J. v. L.J.G., [2004] O.T.C. 460 (S.C.J.), Blishen, J. found that an order for supervised access, like termination of access, requires evidence of exceptional circumstances as it is just one small step away from a complete termination of the parent-child relationship: at para. 1. At paragraph 135, the court set out factors most commonly considered by the courts in terminating access:
a) Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2001] O.J. No. 3707.
b) History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.
c) Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).
d) Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.): Gorgichuk v. Gorgichu, supra.
e) Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.
f) Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
g) Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).
[46] At paragraph 137, the court in V.S.J. v. L.J.G. found that those factors listed above would also be relevant to a consideration of supervised access. The court also stated:
... It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.
[47] At paragraph 143 of V.S.J. v. L.J.G, the court stated that when terminating or restricting access, it is necessary for the court to weigh and balance numerous factors in the context of the child’s best interests including:
a) The maximum contact principle;
b) The right of a child to know and have a relationship with each parent;
c) A limitation of a consideration of parental conduct to that conduct which impacts on the child;
d) The risk of harm: emotional, physical and sexual;
e) The nature of the relationship between the parents and its impact on the child;
f) The nature of the relationship and attachment between the access parent and the child; and,
g) The commitment of the access parent to the child.
[48] I am not persuaded that the mother’s parenting time with Y. needs to continue to be supervised. The parties’ receipt of records from the police; ambulance or the CAS may shed light on what occurred on each instance the police were called by the mother, but the mother has already acknowledged to this court that she relied on the police for support following the separation and recognizes that she called the police too often. Furthermore, if the police were concerned about the mother’s ability to care for Y., they would have reported the matter to the CAS to become involved. Similarly, if the police were concerned about the father’s abusive behaviour toward the mother, the police would have laid charges against the father. Notably, despite the frequent contact the wife had with the police post-separation, she never reported the father’s controlling or abusive behaviour to the police.
[49] I find that the stress of the separation and the lack of support system in Canada led the mother to experience anxiety and depression and was responsible for her erratic behaviour; her repeated reliance on the police; and her outbursts. I am also mindful of the fact that the mother was aware of her emotional state and she sought assistance from her family doctor and is following the advice of her health practitioner in taking the prescribed medication. The mother should not be admonished for struggling emotionally or for seeking assistance during this difficult transitional time. Rather, the mother should be commended for recognizing she requires some support. I would encourage the mother to continue to avail herself of any support she can find, such as a support group for recently separated spouses. I order the mother to ask her family doctor for references to a therapist and to confirm that she has engaged the services of a counsellor/therapist to the father to assist her in managing her anxiety/stress and depression and to provide the mother with a support as she navigates through the breakdown of the parties marriage, given her admitted lack of a support system in Canada.
(ii) What temporary parenting schedule would be in Y.’s best interests?
[50] The status quo that was in place prior to the father bringing the urgent ex parte motion seven days ago was that the father and his parents were caring for Y. while the mother was at work and the parties were sharing the weekend time, with the exception that the mother did not consent to the father having overnight parenting time with Y. The mother repeatedly stated in her material that she does not want to limit Y.’s parenting time with the father. The father did not dispute that the mother had been Y.’s primary caregiver. His reservations with her parenting Y. was based on recent changes in her behaviour and escalating patterns of conduct which have been addressed above.
[51] In applying the best interests factors set out in s.16(3) of the Divorce Act to this case, I find that:
a) Y.’s needs, given his young age and stage of development at age 3, require that he have frequent and consistent contact with both parents to ensure his stability.
b) Both parents have a strong relationship with Y. Y. has become accustomed to being in the care of the father and the paternal grandparents every day while the mother is at work; spending his evenings with the mother; and sharing his weekend time with both parents; Additionally, the paternal grandparents have an important role in Y.’s life as additional caregivers;
c) While the mother deposes that she has no interest in restricting the father’s time with Y., the evidence on the record is that she does not want the father to have overnight time with Y.; that she restricted the father’s parenting time with Y. after separation; and that she was willing to call the police when she felt the father was overholding Y. even thought there was no agreement in place with respect to the parenting of Y.;
d) The history of care of Y. is that the mother was his primary caregiver until the mother returned to work full-time on October 25, 2021;
e) The child is too young to ascertain his views and preferences;
f) The child’s cultural, religious and spiritual upbringing can be supported by either parent;
g) Both parents wish to care for Y. The mother is at work during the day and cannot care for him while she is at work. The father works from home and can, therefore, assist his parents in caring for Y. during the week. Both parents can care for Y. on weekends;
h) I believe both parties are willing to care for and meet Y.’s needs. While the father has concerns about the mother’s ability to care for Y. due to her mental health concerns and erratic behaviour, the mother also has concerns about the father’s ability to feed and get Y. down for his nap when Y. is in his care;
i) I am somewhat concerned about the ability and willingness of the parties to communicate and cooperate with each other on matters affecting Y. but I am hopeful that once a parenting time schedule is defined and can be followed, the parents’ ability to communicate and cooperate with each other will improve.
[52] The Divorce Act defines “family violence” as 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 or that causes that other family member 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:
a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
b) sexual abuse;
c) threats to kill or cause bodily harm to any person;
d) harassment, including stalking;
e) the failure to provide the necessaries of life;
f) psychological abuse;
g) financial abuse;
h) threats to kill or harm an animal or damage property; and
i) the killing or harming of an animal or the damaging of property; (violence familiale)
[53] In terms of family violence, the mother alleges the father and his family have been abusive and controlling toward her. She submits that the father has never physically assaulted her but he has been verbally abusive; he and his family insisted that she stay inside and not socialize with anyone; and that the father has controlled her financially, such as not allowing her to have her own bank account. The father denies any abusive of controlling behaviour on his part. He points to the fact that the mother is working full-time outside of the house; the fact that the mother had access to his bank account with a bank account and she freely withdrew funds from his bank account as evidence that she was not controlled financially or made to isolate.
[54] On the conflicting written record before me it is impossible for the court to determine whether or not the mother was subjected to psychological and financial family violence as described by her.
[55] The texts that were exchanged between the parties and attached as exhibits to the parties’ affidavits demonstrate that the father responds to the mother’s texts in an even-handed, non-aggressive tone. The mother’s texts to the father, on the other hand, are aggressive and demanding.
[56] The mother deposes that when she decided to separate that she did so and that the father agreed to leave the matrimonial home voluntarily. This, in and of itself, demonstrates that there was no need on her part to contact the police to enable her to separate. Yet she made a decision to involve the police and she left with Y. to go to a hotel for two days, demonstrating that she had a plan and was sufficiently independent to take Y. for two days. The father’s evidence is that he did not know where the mother and Y. were for two days. The mother does not deny this in her responding material. Her counsel made oral submissions that the parties were in contact during this two-day period but there is no evidence on the record confirming this.
[57] The mother deposes that she was not permitted to have her own bank account. The evidence however is that she was given a bank card to the father’s bank account and was able to withdraw funds in excess of $7,000 without his consent. She did, therefore, have access to funds by use of her bank card.
[58] The mother deposes that she was controlled by the husband and his family and had to isolate from others and was not permitted to socialize. The husband denies this. The mother has been working outside of the home full-time since October 25, 2021. This decision was made by her while the parties were married. This fact is evidence that the father did not control the mother insisting that she not work outside of the home. Further, her full-time position allows her to create a social network outside of the home, thereby refuting her claims that the father forced her to isolate. Again, the mother sought out full-time work while the parties were still married. The evidence is that she decided to separate.
[59] Whether or not the family violence alleged by the mother took place or not, the parties are separated and the mother is now free to make her own choices. I am not satisfied that there is any risk to Y. experiencing physical, emotional or psychological harm when he is being cared for by the father. The mother, in her agreement that the father and his parents care for Y. daily since the separation, has also not been concerned about Y. suffering any harm.
(iii) Should the Father’s parenting time include overnight time?
[60] The mother does not believe it is in Y.’s best interests to have overnight time with the father. She does not, however, put forward any evidence as to why she takes that position. Y. is three years and 10 months old. He is almost 4 years old. Since October 25, 2021, when the mother began working full-time outside of the home, Y. has tolerated being away from his primary caregiver and he has been cared for by the father.
[61] The parenting plan guide produced by the Association of Family and Concilian Courts - Ontario (“AFCC-O”) has been found by many courts to be of great assistance in determining parenting schedules that are in a child’s best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation parenting: McBennet v. Danis, 2021 ONSC 3610, at paras. 92-93; Armstrong v. Garrison, 2021 ONSC 3986, at para. 38; Southorn v. Ree, 2021 ONSC 7819, at para. 401.
[62] I agree with Chappel, J., in McBennet v. Danis, when she states in paragraph [92] that:
“The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”
[63] Y. is currently 3 years old and 10 months. The AFCC Ontario Parenting Plan Guide, Nicholas Bala, et. al (2021), The Law Foundation of Ontario, pp. 18-19 states as follows:
Schedules for pre-schoolers, aged 3 to 5 years: Preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered. Transitional objects, such as a favorite toy, stuffed animal or blanket, moving between the two homes can help a preschooler manage sadness and anxiety.
If one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight. As a child becomes more comfortable moving between the two homes, one or two overnights a week might be added. If the child has trouble adapting to transitions, or one parent has less time available for child care or less experience with the care of the child, parents may find that a plan that involves a child spending more time with one parent provides greater stability for the child through this stage of development. This arrangement may involve a schedule of care with the other parent having some midweek contact and care every other weekend. The weekend could start with one overnight and may then be extended over time to include Friday night, or Sunday night, or both. If both parents were employed outside the home at the time of separation and were equally involved in the child’s care, it may be appropriate to have an arrangement with roughly equal care, but not more than 3 nights away from either parent. At the early stages of separation, the parents might consider splitting each weekend so that the child has one full stay-at-home day and overnight with each parent as well as some weekday contact. While this may not be the best long-term plan for the parents, it may help the child at this stage of development. This type of arrangement may be a “2-3-2-2-3-2” schedule, with care transition days starting at 10 am or at the end of daycare or school.
Monday Tuesday Wednesday Thursday Friday Saturday Sunday Parent B Parent A Parent A Parent B Parent B Parent B Parent A Parent A Parent B Parent B Parent A Parent A Parent A Parent B Parent B Parent A Parent A Parent B Parent B Parent B Parent A Parent A Parent B Parent B Parent A Parent A Parent A Parent B
If the parents have difficulty in communicating in person, it may be preferable to have as many exchanges of care as possible done by having one parent drop the child at day care and the other pick up the child at the end of the day. This would require shifting the schedule so that it starts on Monday; apart from holidays, transitions take place through day care.
[Emphasis Added]
[64] In Rajani v. Rajani, 2021 ONSC 4784, at paragraph [17], Glustein, J. adopted the following principles governing parenting issues, which I adopt as well:
a) 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: Concimiglia v. Simonini, 2010 ONSC 488, at para 26.
b) It is important to maximize contact between parents and young children: Bazinet v. Bazinet, 2020 ONSC 3187, at paras. 181-187;
c) Overnight access it 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;
d) 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.
[65] The mother has not raised any concern about the father’s parenting skills or lack thereof. Yet, she resists Y. having overnight time with the father. The mother has not, for example, given evidence that the father is unable to follow the feeding routines for Y.; or that he has been unable to soothe Y.; or that he is unable to put Y. down for his nap; or that he is not attuned to his emotional or physical needs. Rather, the mother has placed Y. in the care of his father, with the assistance of his parents, for ten-hour periods during the weekdays when she is at work.
[66] I am also not persuaded that the father ought not to have overnight time with Y. Y. is accustomed to spending at least 10 hours away from the mother, his primary caregiver, five days a week. He has also grown accustomed to spending time with the father and the paternal grandparents when he is not with his primary caregiver. In the circumstances, it makes sense that the father’s time expand to overnights.
[67] It is important that the father has detailed information about Y.’s sleeping and feeding routines. Accordingly, I order the mother to provide the father with written details of Y.’s bedtime; bath time and night feeding routines, so the same routines can be followed in both households, to ensure predictability and stability for Y.
[68] I also think it is important for the parties to communicate pertinent information about Y. on a regular basis so there is a flow of information between the parents. Toward that end, I order the parties to download the Talking Parents app on their respective cell phones and communicate only on this platform. The messaging features on this application are securable with unalterable records, holding both parents accountable. All communications shall be child-focused.
Disposition
[69] Accordingly, a temporary order shall issue as follows:
a) My order, dated March 1, 2022, is hereby vacated;
b) The mother’s parenting time with Y. shall no longer be supervised;
March 14th, 2022 to June 19, 2022
c) For the next 12 weeks, commencing on March 14, 2022, the father’s parenting time with Y. shall take place weekdays, Mondays through to Fridays, from 8:00 a.m. to 6:00 p.m., for as long as he is working from home and provided he has the assistance of his parents.
d) For the next 12 weeks, commencing on March 19, 2022, the father shall have overnight parenting time with Y. every weekend from Saturday, at 6:00 p.m. to Sunday, at 7:30 p.m. The parenting exchanges shall take place in the lobby of the apartment building and shall be facilitated by either of the father’s parents;
e) For the next 12 weeks, commencing on March 14, 2022, the mother’s parenting time with Y. shall be as follows:
i. Sundays, from 6:00 p.m. overnight to Monday morning at 8:00 p.m.;
ii. Mondays, from 6:15 p.m. to Tuesday morning at 8:00 p.m.;
iii. Wednesday from 6:15 p.m. to Thursday morning at 8:00 p.m.
iv. Thursday, from 6:15 p.m. to Friday morning at 8:00 p.m.
v. Friday, from 6:15 p.m. to Saturdays, at 6:00 p.m.
f) All parenting exchanges shall take place in the lobby of the apartment building by the mother and either of the father’s parents;
June 20th, 2022 onward
g) Commencing on June 20th, 2022, the father’s parenting time with Y. shall be a follows:
i. Saturday, from 6:00 p.m. overnight to Sunday, at 7:30 p.m.;
ii. Monday, from 8:00 a.m. to 6:00 p.m.;
iii. Tuesday, from 8:00 a.m. to 6:00 p.m.
iv. Wednesday, from 8:00 a.m. overnight to Thursday at 6:00 p.m.
v. Friday, from 8:00 a.m. to 6:00 p.m.
h) Commencing on June 20th, 2022, the mother’s parenting time with Y. shall be as follows:
i. Monday, from 6:00 p.m. to Tuesday at 8:00 a.m.;
ii. Tuesday, from 6:00 p.m. to Wednesday, at 8:00 a.m.;
iii. Thursday, from 6:00 p.m. to Friday, at 8:00 a.m.
iv. Friday, from 6:00 a.m. to Saturday, at 6:00 p.m.;
v. Sunday, at 7:30 p.m. to Monday, at 8:00 a.m.
i) The parties shall download the Talking Parents CoParenting App immediately. They shall only communicate through this application. All communications between them regarding Y. shall be child-focussed and shall only contain pertinent information about Y. Neither party shall denigrate the other when communication. The parties shall send a message to one another at the end of each scheduled parenting time to advise the other parent of any important information about Y. including information about his sleep; feeding; health, etc.
j) The mother shall advise the father in writing of any and all bedtime, bath time; soothing; and feeding routines that she has put in place for Y. at bedtime and during the night, including what soothes Y. if he awakens in the middle of the night. The father shall follow the same bedtime, bath time; soothing and feeding routines with Y when he has parenting time with him so Y. has stability and predictability in his schedule;
k) The mother shall ensure that Y. takes any soothing toys or objects with him when he has parenting time with the father, particularly for overnight parenting time;
l) If Y. becomes ill with either parent, the resident parent shall advise the other parent of Y.’s symptoms and the parties shall discuss which of them is able to take Y. to his treating physician if necessary.
m) If Y. requires emergency medical treatment while in the care of either parent, the resident parent shall contact the other parent immediately to advise him/her of the emergency.
n) Neither party shall denigrate the other in front of Y. or within a range that Y. could hear him or her. Neither party shall discuss the litigation with Y.
o) The mother shall ask her family doctor for a recommendation to a social worker or therapist to assist her during this transitional period of time. Upon her arranging to begin therapy, the mother shall advise the father in writing that she has done so.
p) The parties shall take immediate steps to schedule a case conference by contacting Toronto.family.caseconferences@ontario.ca to arrange for a case conference in June of 2022. The issues relating to child support, spousal support, property division and the parenting schedule for Y. and whether or not the father should have expanded parenting time will be canvassed at the case conference.
q) The restraining order against the mother set out in my Order, dated March 1, 2022, is hereby vacated;
r) The father shall return all of Y.’s government-issued identification to the mother promptly. The mother shall provide the father with copies of Y.’s health card, birth certificate and passport.
s) Both parties have the right to seek information from Y.’s health care providers and any third party involved with Y.
M. Kraft, J. Released: March 10, 2022
