Court File and Parties
COURT FILE NO.: FC-21-801 DATE: 2022/04/28 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sherzad Abdulaziz, Applicant AND Razane El Zahabi, Respondent
BEFORE: Mackinnon J.
COUNSEL: Yanik Guilbault, for the Applicant Enoch Anekwe, for the Respondent
HEARD: April 5, 2022
Endorsement
[1] The applicant is the moving party seeking an order that the respondent vacate the home at Grey Seal Circle, or alternatively for an order for its sale; and for shared decision making authority and increased, unsupervised parenting time with their children. The respondent opposes this motion. She had delivered her own notice of motion seeking a continuation of his supervised contact with the children and for child support. For reasons given orally related to serious deficiencies in the materials filed on her behalf, I did not allow her motion to proceed, but did allow her to rely upon her own affidavit, all of the exhibits to her third party affidavits, and portions of those affidavits relating to direct observations and attendance at an alleged religious marriage ceremony.
Background
[2] The parties lived together during the ten years up until their separation in March 2021. The relationship was marked by a disputed number of separations. The applicant maintains that the couple only lived together in the same residence for about four years. Whereas the respondent says they lived together for ten years, the applicant says that since 2011, the respondent has applied to Ontario Works, Social Assistance, and Ottawa Community Housing as a single parent and that if she produces her applications and annual reviews since 2011 these documents will support his contention. During their relationship the applicant has been consistently employed. The respondent has not worked outside the home.
[3] The parties have two children, who are going on four and nine years of age.
[4] The family lived together at different locations in Ottawa until 2019 when the applicant purchased the home at Grey Seal Circle and registered it in his name as sole owner. He paid the down payment, is the sole mortgagor and has made all of the mortgage principal, interest, property tax, insurance, and water bill payments on the home since purchase, including after separation. The respondent used the Child Tax Benefit to pay the children’s expenses, groceries, heat, and hydro.
[5] The separation occurred on March 13, 2021, when the applicant was arrested and removed from the home. The respondent and children remain there. The applicant was released on conditions including to stay away from the respondent’s place of residence unless permitted by an order of this court. He has asked numerous times through counsel that she vacate his home on sufficient notice to find other accommodations.
[6] The Application, issued on April 29, 2021, described the relationship between the parties as one of common law cohabitation. The respondent did not dispute this in her Answer, however she amended her Answer on March 1, 2022, to allege that the parties were married on November 11, 2011, and to seek a divorce, equalization of net family property, or alternatively a trust claim to the Grey Seal home, to be remedied by a monetary award. The amended Answer does not include a claim for exclusive possession of the Grey Seal home, rather seeks an order for the sale of family property.
[7] The applicant delivered an amended Reply denying a marriage ceremony had ever taken place and defending the respondent’s other claims.
[8] A case conference was held on August 23, 2021. Justice Audet endorsed that the parties were never married, and that one of the main issues discussed was their rights in relation to the family home. She requested the involvement of the OCL, noting that, “The court would be greatly assisted if the OCL agreed to get involved with this family to complete a clinical investigation into the children’s needs and the parents’ ability and willingness to meet them. This is a case involving two young children (8 and 3) in which there are allegations (and in some respect clear indicia) of alcohol misuse, family violence and high family conflict.”
[9] The OCL declined the case because the applicant’s intake form was not delivered on time, something he suggests was due to inadvertence. I agree that a clinical investigation would be valuable. An order shall issue on the date these reasons are released, asking the OCL to reconsider. Both parents shall deliver the required intake forms on time.
[10] Justice Audet also provided parenting time for the applicant on Sundays from noon until 5 pm and on Thursday’s from after school until 6:30 pm. On a without prejudice basis, she required the parenting time to be supervised by the applicant’s sister Layla, with transportation for the visits to be facilitated by Layla or a specified brother of the applicant.
[11] The visits have taken place except when Layla has not been able to arrange her work and family obligations to accommodate them. More recently the mother agreed to add the father’s sister in-law, Tiffany as a supervisor, and those visits have also gone ahead, but subject to the same limitations that Tiffany is not always available either.
Issues to be decided
[12] Whether the respondent’s allegation that the parties are married and /or her alternative claim for unjust enrichment have sufficient merit that they should result in the dismissal of the applicant’s motion for an order that she vacate the home or for its sale before trial, until her claims have been adjudicated at trial?
[13] If not, should the court order her to vacate the home so that the applicant may occupy it, or order the property to be sold, (in which case the applicant has not argued against the respondent remaining in the home pending sale).
[14] Is an order for decision making authority necessary at this point ? If so, is this a suitable case for shared decision making?
[15] Are the circumstances such that the applicant’s parenting time requires supervision? If not, should his parenting time be increased?
Impact of the respondent’s claims on the relief claimed re Grey Seal Circle
[16] Mere assertion of the claims to be a married spouse or alternatively, for a remedy for unjust enrichment is not sufficient to warrant dismissal of the applicant’s motion so that the claims may fully adjudicated at trial. The claims must have merit and must be such that if successful at trial, would result in a legal entitlement that ought to have been considered in relation to the issues raised by the motion.
[17] For example, in Gonzales v. Trobarovic, [2014] O.J. No. 4384 the court found that the claim for a constructive trust did not have sufficient merit to prevent restoring the owner to her home before trial, in a case of a short cohabitation and where the non-owner had not substantiated his claim to have contributed financially to the acquisition and maintenance of the home. Conversely, in Morningstar v. Holley the court declined to evict the non-owner with no legal right to an interest in the property where after a twenty year cohabitation, the non-owner’s claim for a constructive trust interest in the property was not frivolous and was supported by evidence that if accepted at trial, might result in a finding of unjust enrichment and consequently a declaration of a constructive trust.
[18] Souleiman v. Yuusuf, 2021 ONSC 6994 connects the potential impact of success at trial to the issues in the motion:
[11] I view the cases relied on by the applicant as examples of courts properly exercising inherent jurisdiction to decline to order a common law spouse out of a family home pending trial of her meritorious claims that if successful could result in a declaration of ownership, from which rights of possession would flow. These decisions essentially delay enforcement of the owner’s legal right to possession, rather than standing for the authority that the court may create a substantive right to exclusive possession by use of inherent or equitable jurisdiction.
[19] The cases referred to in Souleiman were Joyce v. O’Neill, 2008 ONCA 894, 2008 CarswellOnt 7956; Morrison v. Barbosa, 2017 CarswellOnt 12197; Anness v. Kovacs, 2012 ONSC 7298; and Lewis v. Oriji, 2009 CarswellOnt297 (S.C.J.). In all but Anness an unmarried non owner of a family home claimed a trust interest in it and opposed the owner’s motion to remove them from the home before trial. In Joyce, Morrison and Lewis, the decisions in favour of leaving the non-owner in the family home were made on the balance of convenience and due to the desirability, that meritorious claims from which rights of possession might flow were adjudicated at trial before a sale or eviction was ordered.
[20] The facts in Anness were different in that no claim was made for a trust ownership interest. There was no issue for trial from which rights of possession could flow. The court delayed the issuance of a writ of possession in favour of the owner for two months to provide the occupying parent time to relocate with the parties’ child.
[21] The difficulty the respondent faces is that even if she succeeds at trial in establishing a legally valid marriage or alternatively succeeds on her unjust enrichment claim, that success would not achieve legal entitlements connected to her defense of the motion before the court. Nor would any claim advanced in her pleadings be prejudiced. A married spouse could claim exclusive possession of the home on a temporary and final basis, but the respondent did not claim exclusive possession in her amended Answer or in her notice of motion. If the marriage is established at trial her claim for an equalization of net family property, including the value of the Grey Seal home, will be determined. This claim is not impacted by which party occupies the house until trial. If the house is sold before trial, her equalization claim, and her alternative trust claim can both be protected by an order to hold a portion of the proceeds of the sale in trust pending trial. In her amended Answer the respondent sought a monetary award to remedy her trust claim, not a declaration of ownership. She also sought an order for the sale of the family property. The claims she has made that flow from married status or unjust enrichment, are in no way prejudiced or impacted by determining the applicant’s requests before trial.
[22] I turn now to the merits of the claims put forward by the respondent. I will explain my conclusion that they lack sufficient merit to warrant denying the applicant any relief in relation to the Grey Seal home until after adjudication of the marriage validity and trust issues at trial.
[23] The respondent claims that she and the applicant were married religiously by Sheik Marwan al Husseini, on November 11, 2011, in Ottawa. The respondent does not dispute that there was no marriage license or marriage certificate, or that the marriage was not registered. Sheik al Husseini was not authorized by law to perform marriages.
[24] Section 31 of the Marriage Act, R.S.O 1990, c.M.3 provides as follows:
31 If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. R.S.O. 1990, c. M.3, s. 31 ; 2005, c. 5, s. 39 (5) .
[25] The respondent deposed that she always believed she was married to the applicant up until the commencement of this litigation, when her lawyer told her there may some legal issues arising from the lack of a license, certificate, and registration. She offers this advice by way of explanation for not asserting married status in her initial Answer. She and other affiants who submitted affidavits on her behalf deposed that they were present at a religious marriage ceremony on November 11, 2011, officiated by Sheik al Husseini. The respondent does not describe the actual ceremony; nor do her supporting affiants. No photographs of the ceremony or any related celebration were in evidence. No mention was made of an exchange of a ring or rings.
[26] One of the respondent’s affiants, Heather El Zahabi, describes what took place on November 11, 2011, as a religious blessing of the relationship.
[27] Neither party obtained an affidavit from Sheik al Husseini. The respondent described him as a friend of the applicant, something the applicant denies. In her pleading the respondent alleges al Husseini participated with the applicant in a fraudulent marriage. The applicant maintains he only met al Husseini a handful of times, and that he specifically told the parties they would need a license to marry legally. The applicant says the couple took religious instruction from al Husseini, to know the roles of a man and woman in a relationship. He denies a religious ceremony took place. Neither of his parents, who live in Ottawa, were present at the alleged marriage ceremony. The applicant also denies the allegation that two of his brothers were present.
[28] Speaking for himself the applicant says he never believed they were married. He did not claim married status on any of his Income Tax Returns. He calls on the respondent to produce her own Income Tax Returns because he believes that like him, she did not claim married status. The applicant acknowledges that he covered the respondent under his employment health plan, and that she appears as “spouse” on his pension plan statement, but he submits this is equally consistent with common law status as with married status.
[29] The respondent challenges the applicant’s statement that he did not believe they were married. She produced a text he sent her on November 11, 2020, in which he says, “Nine years ago I married the love of my life. Today we celebrate our anniversary”. He explains the text as sent out of love and affection, but not indicative of actual married status. He also relies on the original Answer that does not refer to a legal or a religious marriage, does not claim a divorce or spousal entitlement to a division of net family property as clearly inconsistent with her claim that she always thought they were married.
[30] The respondent referred to Isse v Said, 2012 ONSC 1829 in support of her position. In that case the parties participated in an Islamic wedding ceremony in Ontario according to Sharia law. No marriage license was issued, nor was the marriage registered under the law of Ontario. The court determined that the marriage was valid under s. 31 of the Marriage Act because the ceremony was solemnized in good faith and the parties intended to comply with the Marriage Act. Importantly, the court accepted that the wife assumed that the religious ceremony legalized the marriage and did not know that any further steps were required.
[31] In Lalonde v Agha, 2021 ONCA 651, a marriage ceremony was performed by the mosque’s Imam. The Imam also signed and gave the parties a marriage certificate bearing his seal as the mosque’s Imam. The certificate stated that they “[h]ave been married according to the Quran and Sunnah and are hereby given the rights and privileges of husband and wife according to the Islamic Shariah”. Both parties testified that they did not know that they were not complying with the relevant statutory requirements and they both considered themselves to be legally married. The husband only took the position that there was no marriage after the wife applied for an equalization of net family property.
[32] In ruling that the marriage was deemed valid by section 31 of the Marriage Act, the Court of Appeal stated:
[63] Here, the parties believed that the marriage ceremony created a binding marriage in conformity with the laws of Tennessee and Ontario, and their subsequent conduct shows they acted on that belief. That belief, as the trial judge found, correctly in my view, indicated an intention to enter into a valid, legally recognized marriage. His finding was grounded firmly in the evidence. Unlike in some of the cases reviewed above, there was no evidence in the present case that either party intended not to be legally married or was deliberately not complying with the law of Ontario. Other than the failure to obtain a marriage licence, the parties complied with all the other statutory requirements for a valid marriage under Tennessee or Ontario law. They were married by an Imam. There were witnesses present at the ceremony. They had the capacity to enter into the marriage and consented to do so. Most important, neither of them knew that a marriage licence was required to create a formally valid marriage. In other words, they believed that they had entered into a legally binding marriage that would be legally binding anywhere, including under the laws of Ontario, where they intended to reside following the ceremony.
[64] There is also no question that the parties complied with all of the other provisions of s. 31 of the Marriage Act: they entered into their marriage in good faith; they were married in a religious ceremony in a mosque by an Imam which was consistent with their religious faith at the time of the marriage; they had the capacity to enter into marriage and consented to do so; and they lived as a married couple following the religious ceremony: the respondent wore a ring and the parties indicated they were married as their status on various legal documents, including income tax returns, hospital records, birth records, and mortgage documents.
[33] The respondent has some evidence that a religious marriage ceremony did take place on November 11, 2011, but the facts she has presented fall short of those in Lalonde. Some of her own evidence argues against her position that the marriage was solemnized in good faith and intended to be in compliance with the Marriage Act, notably her allegation that al Husseini and the applicant essentially conspired to arrange a fraudulent marriage, and her referral of the matter to the police for criminal investigation. She did not describe the ceremony or produce any of her own legal documents in which she set out her belief to be legally married to the applicant. My conclusion is that her claim to be lawfully married or to meet the deeming criteria in section 31 of the Marriage Act lacks sufficient merit to warrant dismissing the applicant’s motion for the orders he seeks in relation to the Grey Seal home.
[34] The respondent’s alternative claim is for a constructive or resulting trust based on a finding of unjust enrichment and her contributions to the Grey Seal home. In her affidavit she deposes that the couple lived together in subsidized housing provided to her by the City of Ottawa, from spring 2016 until the purchase of the Grey Seal home in September 2019. She says the housing subsidy enabled them to save money to make the purchase. While living in Grey Seal, the respondent deposes that she paid for groceries, utilities, and all other child related expenses, whereas the applicant paid for all costs related to the home.
[35] To establish an unjust enrichment the respondent must prove she conferred a benefit on the applicant, that he has retained, sustained a corresponding detriment to herself, and that there is no juristic reason why he should retain the benefit without accounting for it in some fashion. The benefit the respondent claims to have conferred is the savings generated by the housing subsidy. Two issues arise. First, she has not provided any evidence of the amount of the subsidy in relation to market rent, or of the amount of savings that might have been derived from having the subsidy to go towards the acquisition of the house. Second, a claimant for equitable relief must come to court with “clean hands”, which in this case would require some explanation for continuing to reside in subsidized housing having regard to the applicant’s employment income which, in the years in question, appears to have been in the range of $66, 000 to $84,500.
[36] It is also difficult to understand how an entitlement to subsidized housing in and of itself could constitute a financial contribution to the acquisition of the Grey Seal home that could give rise to a resulting trust.
[37] The respondent then relies on the expenses she paid during cohabitation from her Child Tax Benefit, namely groceries, utilities, and children’s expenses. At present the CTB she receives is $1,295 per month. Even assuming this use of the CTB conferred a benefit on the applicant and that the respondent thereby sustained a corresponding deprivation, the maximum amount she may have received over the 19 months in question is $24,605. How much of that might establish a causal nexus between the unjust enrichment and the property at issue was not addressed, and in any event as already noted she is only seeking a monetary remedy.
[38] In conclusion, the respondent has not presented meritorious claims based on unjust enrichment and resulting trust from which rights of possession might flow such that they ought to be adjudicated at trial before a sale or eviction is ordered.
[39] The next issue the respondent raised in connection with her opposition to vacate the home or list it for sale was potential hardship to her and the children. She relied on Kiang v. Shaw, 2017 ONSC 3050. That case addressed a motion by a joint owner for partition and sale under the Partition Act, R.S.O. 1990, c. P.4. It describes the narrow test governing when a court may decline to order a sale of a home jointly owned by unmarried spouses before trial, in favour of continued occupation of the home by the resisting parent and children, based on a finding of hardship that amounts to oppression or renders the bringing of the motion for sale oppressive in the circumstances. It does not apply here.
[40] The applicant’s proposal is that the respondent vacate the Grey Seal home at which time he will return to live there and will commence paying her child support. Whether his income is $90,000, as the respondent says, or $84,000 as he says, he cannot afford to carry the home and pay child support which will amount to either $1,352 or $1,270 per month. Correcting for a double entry of the expenses related to Grey Seal Circle, the applicant’s monthly expenses total $7,760 without including child support. From this should be deducted the $600 he pays his brother for rent, for an adjusted total of $7,160. Adding on the child support would bring his monthly expense total to $8,512 or $8,430, for a monthly deficit as high as $1,430 per month. The deficit may actually be higher. The income tax expense shown on his financial statement is only $12,576 whereas his T4 slip shows tax of $1,7136 deducted at source.
[41] With no explanation from the applicant as to how he might be able to maintain Grey Seal Circle and meet his support obligations, the alternative relief he requested, namely, to order the sale of the home, is appropriate. I decline to order the respondent to vacate the home at this time. The balance of convenience favours her and the children remaining there pending sale. The respondent shall cooperate with the listing and showing of the home for sale. She shall maintain the home in good order, clean and properly maintained. She shall vacate the premises 14 clear days before the closing date of the sale. On departure she may remove her clothing and personal belongings, the children’s clothing and personal belongings, the items listed at para 16 of the applicant’s affidavit, and any other items that may be agreed to between the parties in writing. The parties shall preserve at their joint expense any other items the respondent claims to have purchased until their dispute over the distribution of the household chattels is resolved. One half of the net proceeds of sale shall be released to the applicant forthwith on closing. The balance of the net proceeds of sale shall be held in trust in an interest bearing account by the applicant’s lawyer pending further order of the court or written agreement of the parties.
[42] The applicant shall produce his 2021 Income Tax Return forthwith, and his Notice of Assessment on receipt. Commencing on day the respondent vacates the Grey Seal property in compliance with this order, the applicant shall commence to pay her the table amount of child support for the two children based on his line 150 income in his Income Tax Return.
Parenting Issues
[43] The respondent has been insistent that the applicant’s contact with the children should be fully supervised. Her two main concerns are alcohol use and anger management issues. It is evident that she had these concerns prior to separation, but the related factual disputes between the parties are many. The mother’s evidence is that the father was a heavy drinker and intoxicated most days. The father strongly disagrees. He admits to some alcohol consumption but denies it is a problem. The mother alleges partner violence in March 2020 and March 2021, and other displays of anger. The father denies assaulting her.
[44] The current terms of the applicant’s supervised parenting time were agreed to on a without prejudice basis at the case conference in August 2021. The father’s time with the children has been on Sundays from noon until 5 pm and on Thursday’s from after school until 6:30 pm, subject to the availability of his designated siblings to supervise. His evidence and that of his brother, Azad, with whom he has been residing since his arrest, and at whose home the majority of the visits have taken place, is that the visits have been positive. The father prepares for the visits, the children are happy to see him and enjoy their time with their father. The father and his brother both attest to the absence of alcohol use by the father during those months. This testimony is not contradicted.
[45] There are two sources of independent information before the court. The Ottawa Police Services incident report from March 13, 2021 confirms that the applicant was charged with one count of assault arising from events that evening. It records the police officer’s observation that the applicant was intoxicated. One count of assault and one count of mischief were also charged against the applicant based on the respondent’s description of an incident in March 2020. The applicant was arrested and released on conditions. His trial is scheduled for May 2022.
[46] The second independent source is the Children’s Aid Society. The file was opened on referral from the police in March and closed on April 27, 2021. At that time the children were not considered in need of protection given that the mother “was protective and has advised that she will not allow unsupervised contact until Sherzad is connected to services for his alcohol use and anger.”
[47] The Society did not impose the requirement for supervision, rather deferred to the mother the type of contact and frequency based on her evaluation of the children’s safety and wellbeing. In terms of alcohol use, the Society said the father should not be consuming alcohol immediately prior to or while having contact with the children. The Society also recommended to the father that he seek community support to manage his alcohol use and referred him to the New Directions program, which addresses emotional regulation in the context of partner violence.
[48] The father denied partner violence. The mother reported two incidents of physical violence during the relationship, in March 2020 and March 2021. She also told the Society that the applicant throws items when he is angry.
[49] The Society verified alcohol use by the father’s own admission and the police observation. The applicant said he had consumed 3 cups of wine on March 13, 2021, and that he drinks 3-4 cups of wine 2-3 times a week.
[50] The Society also concluded the children were at risk of emotional harm and physical harm due to exposure to partner violence which resulted in the father being charged. The oldest child was interviewed. He told the Society that his father was rude to his mother, argued with her, and used bad words to her, making her cry. He knew the police came to the house on March 13, which he said was because his father was hurting his mother’s feelings. These events made him feel sad and scared. The child was not aware of any alcohol use.
[51] There were no reports of physical harm or maltreatment to either child. There were no safety threats identified. The Society noted that current alcohol use does not seriously impair a parent’s ability to supervise the children. This statement appears to have been made in the context that the mother was only permitting supervised contact between the father and the children, and that the parenting issues were before the Family Court.
[52] The respondent produced a letter addressed to the applicant in 2006 about an upcoming summary conviction appeal related to a charge under Criminal Code section 254(5) (failure to blow). She also produced a number of texts between herself and two of the applicant’s brothers in 2020 and 2021, in which she is asking for their help with the applicant’s drinking. I am satisfied that the applicant has regularly consumed alcohol in the last two years in a quantity and frequency that could impair his parenting ability if he is consuming when the children are with him.
[53] I am also satisfied that the father has displayed angry, unregulated behaviour toward the mother, both before and after the separation. He exchanged text messages with a friend, Agnes, in January 2020 wherein he admits he is an angry person and describes anger as his biggest problem. He acknowledged that an anger management course might help. His angry behaviour has occurred post separation, as shown by the social media postings he made which were very inappropriate and derogatory of the respondent and her family.
[54] The applicant says he took anger management therapy. He has not provided any proof of this. He consents not to consume alcohol for six hours before or during parenting time with the children but has not undertaken community support to manage his alcohol use as recommended by the Society.
[55] Supervised access is restrictive. It requires the presence of a supervisor, which generally also results in shorter visits, confined to a specific location(s). In this case the supervision requirement has also resulted in cancelled visits due to the unavailability of the supervisor for one reason or another. Supervised contact is intended to be a temporary measure to resolve a parental impasse or to protect or minimize risk of harm to a child: A. v. D., [2003] O.J. 2946, at paras 25 and 26; Breen v. Laroque, 2012 ONCJ 640, at para 12. The applicant has exercised supervised parenting time for at least eight months. Other than some initial issues when the maternal grandmother was supervising, the visits have gone well. The evidence does not show that the applicant has consumed any alcohol before or during his parenting time. The assurance of sobriety can continue to be provided without fully supervised contact. Nor is full supervision necessary to ensure that the children are not exposed to parental conflict. Supervised exchanges can address this concern. Other conditions can be attached to the exercise of parenting time to provide both temporary and more long term solutions to the issues of alcohol use and emotional regulation that present in this case.
[58] The applicant’s primary request is for equal shared residential parenting time. Without commenting one way or the other on any future determination, this request is premature at this time. The applicant shall have parenting time with the children, subject to the conditions set out below, on Wednesdays from 4 pm until Thursday morning at 8.30 am, and on alternating Fridays from 4 pm until Sundays at 4 pm. This parenting time may be reviewed after the availability of an OCL report, if one is to be forthcoming, or if not, after the passage of three months in which the applicant demonstrates his compliance with all of the conditions imposed below: a) Exchanges of the children shall be supervised. They may take place at Grey Seal Circle by the applicant father providing 48 hours’ notice to the mother by text or email that he will arrive to pick up or return the children with any of his sister Layla, his sister-in-law Tiffany, or his brother, Kasim present with him. The applicant shall remain in the vehicle throughout the exchanges. b) The applicant’s brother Azad may also supervise exchanges of the children if none of the other siblings are available. c) Supervised exchanges may also take place at Family Services Ottawa or at any private supervision facility at the applicant’s expense, and both parents are ordered to meet the requirements of the particular agency chosen by the father for this purpose. d) The location and conditions of exchanges may be reviewed after the availability of an OCL report, if one is to be forthcoming. Alternatively, after the passage of three months of full compliance with the conditions of the order, the court may be asked to consider whether the parents are able to exchange the children at a neutral community location without exposing them to parental conflict. e) In September 2022, when both children are attending school, exchanges shall take place to and from school when school is in session, and the Sunday return time shall be extended until Monday morning to school. f) The applicant shall not consume alcohol within 12 hours before the commencement of or during his parenting time. He shall submit to three supervised random urine screens on a monthly basis at times requested by the respondent and communicated through the parties’ lawyers. All of the screen reports shall be produced forthwith upon receipt. The requirement for random urine screens may be reviewed after the availability of an OCL report, if one is to be forthcoming, or after the passage of three months in which the applicant produces all clean screens. g) The applicant shall forthwith obtain a specific recommendation from the Society for community support to manage his alcohol use and shall provide proof of his immediate steps to follow the recommendation. h) The applicant shall forthwith provide documentary proof of the date(s) on which the anger management counselling he already had took place. If the counselling predated the social media postings by the applicant concerning the respondent and her family then the applicant shall forthwith register in and complete the New Directions program and produce proof of having done so. i) The applicant shall exercise his parenting time from the home base provided by his brother Azad’s home where he currently resides. The applicant shall forthwith obtain and deliver written undertakings addressed to this court from Azad and his spouse, and any sibling who is accompanying the applicant to pick up or drop off the children. The undertakings shall confirm that the individual has read this endorsement, that they will report any parenting concerns they observe, including if they observe or have reasonable grounds to believe the applicant has consumed alcohol within 12 hours before or during his parenting time, to the Society and the court forthwith. These requirements may be reviewed after the availability of an OCL report, if one is to be forthcoming, after the closing of the sale of Grey Seal Circle, or after the passage of three months in which the applicant has produced all clean urine screens.
[56] At this point this does not appear to be a case for shared decision making. A formal order for decision making authority is deferred until after the availability of an OCL report, if one is to be forthcoming. In the meantime, there shall be no changes made to the children’s school, health, or day care providers. Neither parent may change the children’s residence outside of the City of Ottawa without written consent of the other parent or permission by an order of this court. Both parents are entitled to contact and receive information directly from any third-party service providers to their children. Both children have important medical issues of which both parents should be fully aware. Both parents shall be entitled to receive full information from, to attend separately with the children’s physicians and to provide the physicians with their input on any required medical decisions. Pending future determination of decision-making authority, the parents shall follow the recommendations of the attending physician or in the event of a disagreement, seek an order from this court.
Costs
[57] On the basis of the positions taken before me and the orders made, the applicant has been the more successful party. Subject to the contents of any offers to settle the motion that were exchanged between the parties, he may be entitled to an award of costs. To assist counsel in settling this issue, I note that the applicant’s success has not been complete. He did not obtain shared decision making. Important conditions have been imposed upon his parenting time. The sale of the Grey Seal home is ordered but one half of the net proceeds of sale are required to be held in trust pending final determination of the property issues. Further, if I am asked to rule on costs and were to make an award of costs against the respondent, my current intention would be to defer payment until final determination.
[58] In the event that counsel are unable to resolve the issue of costs of the motion, I will do so by written submissions. These may not exceed three pages in length plus attached Bills of Costs and Offers to Settle the motion. The applicant shall deliver his submissions first, by May 20. The respondent shall deliver her submissions second, by June 10. If a reply is required, the applicant shall deliver it by June 17, not to exceed one page in length.
Case Management
[59] This case should be judicially case managed. The respondent plans on bringing motions for spousal support and for permission to relocate the children to Montreal prior to trial. Both will be contested. As far as I am aware neither issue has been canvassed yet at a case conference. Further if the OCL does conduct a clinical investigation it would be appropriate to conduct a conference to consider its recommendations as soon as the report is available. For these reasons I will be referring the file to Audet LAJ with the request that she appoint a case management judge.
Mackinnon J. Date: April 28, 2022