SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fathia Omar Jumale, Applicant
AND
Abdillahi Duale Mahamed, Respondent
BEFORE: Blishen J.
COUNSEL: Thomas Hunter, for the Applicant
Diana Aoun, for the Respondent
HEARD: August 31 – September 4 and September 8, 2020 with written submissions.
Additional affidavit evidence June 2021 with written submissions.
SUPPLEMENTARY REASONS FOR DECISION
Introduction
1The issues before the court during this trial continuation were Mr. Mahamed’s parenting time and Ms. Jumale’s request for a permanent restraining order.
2On December 21, 2018, after a four-day trial, final orders were made with respect to: decision making, child support, s. 7 expenses, arrears, life insurance, and costs pursuant to Minutes of Settlement. Most of the trial focused on Mr. Mahamed’s parenting time with the three children of the relationship: his daughters, A. almost 13, N. age 11, and his son, Z. age 5. Ms. Jumale also requested a restraining order against Mr. Mahamed pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c.F.3.
3With respect to Mr. Mahamed’s parenting time, I re-referred the case to the Office of the Children’s Lawyer (OCL) for an updated clinical investigation report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c.C.43, and requested counsel be appointed for the children
pursuant to s. 89 of the Courts of Justice Act. Pending that report and/or counsel being appointed for the children I made a temporary order as follows:
Telephone access to the children as previously ordered is to continue.
Mr. Mahamed is to immediately register in a parenting program.
After Mr. Mahamed has attended the first three sessions of the parenting program, he is to begin to have supervised access a minimum of once every two weeks for a period of two hours through the Supervised Access Program at Family Services Ottawa. The parties are to immediately complete the intake forms required and forward them to Family Services Ottawa.
Ms. Jumale is to encourage the children to attend the visits with their father.
If the older two children refuse to attend visits, Z. is to attend.
4I remained seized with the issue of Mr. Mahamed’s parenting time and indicated that after the OCL clinician completed a report, a mid-trial settlement conference was to be held if necessary. If there was no resolution, the trial of that issue was to continue before me.
5I also made a temporary restraining order pursuant to s. 46 of the Family Law Act as follows:
Mr. Mahamed is restrained from molesting, annoying or harassing Ms. Jumale.
Mr. Mahamed is not to communicate with or contact Ms. Jumale directly or indirectly except with respect to court ordered or agreed upon access to the children and/or the needs of the children. Any such communication between the parties regarding access or the children’s needs are to by email or text message, not by telephone.
Mr. Mahamed is not to communicate with or contact the children except in accordance with court ordered or agreed upon access.
Mr. Mahamed is not to attend within 500 meters of Ms. Jumale’s home or place of employment or the children’s school when they are present or location of their activities, without Ms. Jumale’s expressed written consent.
The necessity of this order continuing is to be reviewed by the parties at the same time the issue of Mr. Mahamed’s access is reviewed, after the involvement of the Office of the Children’s Lawyer. If the parties do not agree, the issue as to whether this temporary restraining order should be made final is to come back before me on a date to set by the trial coordinator.
6At the time of the trial in December 2018, Mr. Mahamed had not seen his children for approximately two years, the last visit being January 15, 2017, which was observed by the clinician from the Office of the Children’s Lawyer.
Overview since December 2018
7Supervised access for Mr. Mahamed did not commence until August 25, 2019, which was an observation visit with Office of the Children’s Lawyer clinician Ms. Mitchell, who had been authorized to do an update of her April 2017 report. There were subsequent visits through the FSO Supervised Access Program in September 2019 and a visit with Z. on October 6, 2019, prior to the release of Ms. Mitchell’s updated report dated October 10, 2019.
8In her report Ms. Mitchell recommended a gradual increase in Mr. Mahamed’s parenting time with Z. commencing with supervised access for a three month period, and working towards every other weekend picking Z. up from school on Friday and dropping him off at school on Monday morning.
9With respect to A. and N., Ms. Mitchell recommended access with their father be according to their wishes.
10It was recommended telephone contact between Mr. Mahamed and the children continue once a week for ten minutes on Friday or at a time convenient and agreed upon by both parents.
11After release of the OCL report, most of the visits arranged through FSO were either cancelled or the children refused to attend. The last scheduled visit was January 12, 2020. Thereafter no further visits were offered by FSO. Telephone access continued but according to Ms. Jumale was problematic.
12The parties could not agree on parenting time for Mr. Mahamed. Therefore, two mid-trial settlement conferences were held before Justice Engelking on January 15 and March 13, 2020.
13On January 15, 2020, Justice Engelking ordered, on consent, that Mr. Mahamed have unsupervised access to all three children every second Sunday from 2:00 pm to 4:00 pm in a public place with the exchanges to take place at FSO. She further ordered A. and N. attend at their own discretion, according to their own wishes.
14As FSO was unable to facilitate exchanges for the times ordered by Justice Engelking, and the parties could not agree, Mr. Mahamed had no parenting time prior to the next mid-trial settlement conference on March 13, 2020. At that time, on consent, Justice Engelking varied the terms of her previous order to allow Mr. Mahamed parenting time with the children from 2:00 pm to 6:15 pm every second Sunday, to fit within the exchange hours offered through FSO. Given concerns that FSO might cease operations due to the COVID-19 pandemic, Justice Engelking recommended three possible private social workers who could be considered.
15FSO did cease operations due to the pandemic. Once again, the parties could not reach an agreement. On June 12, 2020, Mr. Mahamed agreed Ms. Jumale’s mother could facilitate the exchanges. Two visits were attempted in June unsuccessfully, after which Mr. Mahamed retained Brayden Supervision Services to facilitate exchanges for visits with Z. on July 12 and August 16, 2020, both of which were unsuccessful.
16Despite the recommendations of the OCL and two consent orders made in January and March 2020, October 6, 2019 was the last visit of any significance with any of the children, although some telephone contact continued.
17On August 31, 2020, the trial was reconvened before me on the issues of Mr. Mahamed’s parenting time and a restraining order. The trial concluded on September 8, 2020, and written submissions were received from counsel in October 2020.
18Unfortunately, the suspension of regular court operations due to the COVID-19 pandemic continued. On May 31, 2021, a memo was sent to counsel indicating that the technological, administrative, and other challenges resulting from the suspension of regular court operations caused unforeseen and unpreventable delays, earlier in concluding the trial and more recently in drafting and finalizing a judgement. Therefore, given the nature of the issues before the court, I offered to consider reopening the trial and receiving a brief update from both parties as to what had transpired since October 2020, when the trial concluded. Ms. Jumale requested the opportunity to provide further evidence by affidavit and Mr. Mahamed did not object to submitting updated affidavit evidence. Therefore, on June 8, 2021, I provided an endorsement as follows:
In Rana v. Rana, 2019 ONSC 7048, LeMay, J. in dealing with a party’s request to file new evidence while a decision on a motion was under reserve, noted the test
for adducing evidence after a court has reserved its decision, whether after a trial or a motion was outlined in 6711122 Ontario Ltd. v. Sagez Industries Canada Inc., 2001 SCC 59. The court must consider two questions:
Would the evidence have affected the outcome of the hearing?
If so, was the evidence discoverable prior to the hearing? In this case I note the following:
Given the nature of the issues before the court i.e. parenting time and a restraining order, I find an update as to what has happened over the last 7 months could affect the outcome of the trial and would clearly be new evidence not discoverable prior to the trial.
The COVID-19 pandemic has resulted in significant changes in the way the court operates and has caused an unprecedented upheaval in the lives of all those involved in court operations and of the parties appearing before the court and their families. This often results in delays in many aspects of a case before the court.
The parties’ consent to providing the court with an update by way of updating affidavits.
Therefore, I will reopen the trial for the very limited purpose of receiving affidavit evidence but ONLY with respect to what has transpired since the trial concluded and ONLY relevant to parenting time and a restraining order.
19I received updating affidavit evidence from both parties and submissions by June 30, 2021.
20According to the updated affidavit evidence, Mr. Mahamed has had no additional parenting time with any of the children since the trial concluded in October 2020. He has had some telephone contact with the children but has been in East Africa since February 2021 and there has been little or no telephone contact since then. He expected to return to Ottawa in September 2021.
21In summary, Mr. Mahamed’s parenting time with the children has been inconsistent, sporadic, and supervised. There have been three lengthy gaps in his parenting time since Z.’s birth: from mid 2014 - May 2016 (2 years), January 2017 - August 2019 (2 years 8 months) and the latest from Oct 2019 to present. (2 years 3 months).
22The questions are: Why? What has been the impact on the children? What form of parenting time, if any, is now in their best interests?
23I note the COVID-19 pandemic caused some of the delay from March to June 2020. In addition, Mr. Mahamed was out of the country from February 2020 until at least September 2020 (seven months).
Positions of the Parties
24Ms. Jumale argues any parenting time or contact between A., N., and their father should be at their discretion and in accordance with their wishes. At this point in time, given their ages -
A. is now 16 and N. is 14 - Mr. Mahamed agrees, although he would like a term that Ms. Jumale encourage them to have a relationship with him and for some form of reunification counselling.
25Ms. Jumale argues Mr. Mahamed has serious anger management and parenting issues and
Z. is not safe when alone with his father. She submits that despite taking parenting and anger management programs in the spring of 2019, his behaviour has not changed. He does not accept responsibility for his actions, which she argues continue to cause physical, psychological, and emotional harm to the children.
26When the trial ended in October 2020, Ms. Jumale requested an order for supervised access with conditions deemed appropriate. She also requested an order for counselling or appropriate programs to be completed by Mr. Mahamed prior to any unsupervised access to Z. Finally, for the health and safety of herself and the children, she requested a final restraining order.
27Mr. Mahamed argues that Ms. Jamale has coached, manipulated, and alienated the children against him. He states they are fine when alone with him either in person or during telephone contact. At the end of the trial in October 2020, he requested an order implementing the recommendations outlined in the October 2019 OCL report by Clinical Investigator, Ms. Mitchell.
28As previously noted, both parties submitted updating affidavits and made further brief submissions to the court in June 2021.
29Mr. Mahamed’s position remains the same, but Ms. Jumale now deposes, despite encouraging the children to have a positive relationship with their father, the situation has continued to deteriorate. She argues there would be no benefit to any of the children, including Z. from any kind of parenting time with their father.
Evidence
30During the continuation of the trial, the court heard from the applicant, Ms. Jumale, her mother Ms. Khadija Haji-Abukar, and Mr. Mahamed. In addition, Ms. Barbara Mitchell, Clinical Investigator from the Office of the Children’s Lawyer, provided an updated report and was cross- examined by counsel for both parties. Additional documentary evidence was provided including notes from the supervised access program at FSO, notes from Brayden Supervision Services and numerous WhatsApp messages, text messages and email exchanges between the parties and some between Mr. Mahamed when he was unrepresented, and counsel for the Applicant.
Credibility and Reliability
31Not surprisingly, the parties completely disagree as to why there continues to be little parenting time between Mr. Mahamed and his children. A careful review of the evidence reveals difficulties with the credibility and reliability of both parties. The report of Office of the Children’s Lawyer Clinical Investigator, Ms. Mitchell, her testimony, the notes from Family Services Ottawa and the exchange notes from Brayden Supervision, provide the most objective and reliable evidence. Unfortunately, Ms. Mitchell’s report was written over two years ago as were the notes from FSO. Some of the circumstances have changed.
Mr. Mahamed
32Mr. Mahamed presented as grandiose and self aggrandizing in his testimony. He stated he was working on a “$500 million project for the election” but still attended the parenting and anger management programs. At one point he stated, “I think highly of myself” and went on to indicate he planned to teach Z. and shape his future so he can be as successful as his father. He testified “My French is super good. I could teach at the University level.”
33Mr. Mahamed frequently raised his voice and had difficulty controlling his emotions while testifying. He refused to accept any responsibility for his estrangement from his daughters or insight into their feelings, emotions, and perceptions. He continued to indicate he had done nothing wrong and would not apologize. Even after two OCL reports and the testimony of Ms. Mitchell he maintained that position, stating he strongly disagreed with Ms. Mitchell and he would never accept responsibility for what he did not do.
34Overall, I did not find Mr. Mahamed’s testimony reliable. His credibility is questionable given some inconsistencies and contradictions in his evidence outlined in the review of the evidence below.
Ms. Jumale
35Ms. Jumale was at time unresponsive while testifying. She presented as a quiet, passive individual. This fits with the description by the Brayden supervisor of her remaining passive when
Z. refused to go for a visit with his father.
36Ms. Jumale testified she encouraged the children, particularly Z. to attend visits and have a relationship with their father. I do not find her testimony in this regard persuasive or credible. There is no evidence that she actively and consistently encouraged her seven-year-old son to visit with his father as per the court order. She brought him to the visits but her lack of encouragement, control, and parental guidance when Z. refused to visit is significant. This little boy lived in a household with two women, Ms. Jumale and her mother, who were fearful and had negative feelings towards Mr. Mahamed. His two older sisters, with whom he is very close, refused to see their father and focused their telephone conversations and communications with him on gifts. Active, strong parental encouragement was needed and was not provided. Ms. Jumale abdicated her parental role in this respect and did not follow the court order.
37As with Mr. Mahamed there are some inconsistencies and contradictions in her evidence which are noted below. She too was not always a credible or reliable witness.
Parenting Time
Parenting time January 2019 – October 2019
38Following the court order of December 21, 2018, Mr. Mahamed registered for the Family Services Ottawa program Parenting Through High Conflict Separation and Divorce, which he completed on March 6, 2019. He also attended an Anger Management course designed for parents through Family Services Ottawa, which he completed on April 25, 2019.
39Both parties completed intake forms for the Supervised Access Program at Family Services Ottawa (FSO) but due to a waiting list, the first supervised visit scheduled between the children and their father was August 25, 2019.
40Ms. Jumale brought the three children to all supervised visits scheduled at FSO except one when the children had a previously scheduled commitment. Mr. Mahamed attended all scheduled visits at FSO except the last on January 12, 2020.
41Office of the Children’s Lawyer clinical investigator Barbara Mitchell attended the first visit on August 25, 2019 as an observer. This visit took place after a gap of two years and eight months, as the last visit between Mr. Mahamed and the children had been on January 15, 2017.
42Although both A. and N. were present, they clearly stated they did not wish to participate in the visit and declined to come in to say hello to Mr. Mahamed. Although Z. initially indicated he did not wish to attend, he changed his mind. The observation notes from Ms. Mitchell and from the Family Services Ottawa supervisor outline a positive visit.
43Six year old Z. had not seen his father since he was three and was somewhat hesitant initially. Mr. Mahamed hugged him, told him he had grown, and said he had missed him. After presenting him with a gift of Pokémon cards, Mr. Mahamed and Z. engaged in various activities with Z. asking his father for assistance at times. Neither Ms. Mitchell nor the access supervisor noted any signs of discomfort from Z. or any behavioural difficulties. At the end of the visit Z. sat on Mr. Mahamed’s knee and when Mr. Mahamed indicated the visit was almost over, Z. indicated he wanted to stay and finish watching a video they were watching together.
44In her report filed as Exhibit 4, Ms. Mitchell noted: “Mr. Mahamed was attentive to Z. and engaged him in play and conversation. Given the length of time since Z. had seen his father in person, his apprehension was not great, and it dissipated over the course of the visit. Towards the latter part of the visit, Z. presented as quite comfortable and was verbal with Mr. Mahamed.”
45The next visit took place on September 8, 2019. Once again, A. and N. decided not to come in for the visit. On this occasion, Z. greeted Mr. Mahamed with a hug. Again, Mr. Mahamed brought Z. a gift of a car. They conversed comfortably and engaged in various activities together. No concerns were noted. It was a positive visit.
46Both A. and Z. attended the next supervised visit on September 22, 2019, but N. refused to see her father. The last time 13-year-old A. had seen her father was in January 2017, when she had just turned 11. Mr. Mahamed and the children played soccer and ping-pong and were observed to be laughing while playing. A. asked Mr. Mahamed to buy her a sweater and Z. reminded his father about buying him a Wi-Fi switch. The visit was positive.
47On October 6, 2019, Z. attended the supervised visit. Both A. and N. declined. Mr. Mahamed brought Z. a remote-controlled car and Z. asked him to get him some Pokémon cards the next time. Once again, they engaged in various activities, smiled, and laughed as they played. It was a positive visit.
Report and evidence of OCL Investigator
48On October 16, 2019, the Office of the Children’s Lawyer’s report was provided to all parties. The report outlined the positive nature of the visits and recommended, once supervised access occurred consistently for a three (3) month period, access could move to unsupervised parenting time which would give Z. the opportunity to develop a positive relationship with Mr. Mahamed which Ms. Mitchell indicated would be beneficial to Z.
49She stated, “a gradual plan of unsupervised access will be outlined with the goal of Z. having every second weekend with Mr. Mahamed.” Given the history of domestic violence between the parents, Ms. Mitchell recommended the use of an access centre to facilitate exchanges as the best plan at that point in time.
50Although Mr. Mahamed’s parenting time with A. and N. who are now 16 and 13, is not an issue, it is clear neither one wishes to visit with their father. They agreed to continuing Friday evening calls although had some concerns about Mr. Mahamed not answering and not calling back when he said he would. Ms. Mitchell recommended telephone contact between Mr. Mahamed and the children continue once a week for 10 minutes on Friday or another time as agreed.
51Mr. Mahamed continued to maintain he did nothing wrong when the parties were together, there was no aggression and A. and N. were coached by Ms. Jumale. Therefore, he had taken no steps to apologize to his daughters which, according to Ms. Mitchell, caused an impasse not likely to be addressed with counselling. She stated: “Mr. Mahamed is encouraged to accept and listen to
his daughters rather than deny and blame Ms. Jumale for their position. This would likely have the most impact in terms of rebuilding his relationship with them.”
52In her testimony Ms. Mitchell indicated she was aware Mr. Mahamed took anger management and parenting courses following the recommendations in her first report. She repeated that unfortunately the difficulty continued to be that Mr. Mahamed. views the events that occurred during the marriage very differently than his daughters. She was clear that he must listen to his children and not present his point of view and blame their mother. He must make the first move, or the impasse will continue.
53Ms. Mitchell did not find any evidence that Ms. Jumale was manipulating or actively discouraging the children from visiting. There was no evidence of parental alienation.
54Ms. Mitchell testified that given no visits have taken place since her report in October 2019, her recommendations could change. She would need to reassess and investigate why there have been no visits which would impact on what steps should now be taken. She made it clear her recommendation for Mr. Mahamed to move to unsupervised and increased access was based on her thorough investigation of the circumstances at the time. The supervised visits with Z. had gone well. She emphasized the consistency of visits was very important in considering a move to the next steps.
Parenting time October 2019 – January 2020
55Mr. Mahamed agreed with all of Ms. Mitchell’s recommendations and was eager to begin implementing them as soon as possible.
56Ms. Jumale indicated that although she would agree to follow the report’s recommendations, she had concerns about where unsupervised access would take place, where Mr. Mohamed was living, with whom and who would be caring for the children. She continued to be concerned about Z.’s safety if alone with his father.
57Five more visits were scheduled through FSO after the release of the report. All three children refused to attend on two occasions. Z. went in to say hello to his father once and on one other visit all three children greeted their father and left. On that occasion Mr. Mahamed gave N.
$60 as a birthday gift, although her birthday is in October. One visit was cancelled by Ms. Jumale and Mr. Mahamed did not attend the visit on January 12, 2020 which was the last visit offered by FSO.
58Ms. Jumale attributed the reluctance of the children, including Z. to attend subsequent visits to the fact that while Z. got gifts and treats on the visits and the girls did not. Z. is very close to his sisters, seeks their approval and was aware of their concerns. She indicated there were discussions in text messages and on telephone access in which Mr. Mahamed indicated the girls would only receive gifts if they attended visits. She could not produce the messages but the fact that N. only received her birthday gift of $60 when she agreed to see her father on December 1, 2021, lends some credibility to Ms. Jumale testimony. In addition, there are several text messages filed as exhibits in which there was discussion between the girls and their father about gifts.
59After completing the courses at FSO and attending supervised visits, Mr. Mahamed sent emails to counsel for Ms. Jumale in early December 2019 indicating his eagerness to begin implementing the recommendations of the OCL for unsupervised visits with Z. When he did not receive a prompt response, he sent Ms. Jumale a text message on December 14 stating “Next Friday December 20, 2019, I’m starting the recommendation from the OCL and will pick him up from school so he can spend the weekend with me. I’ll notify ur lawyer, OCL, Children’s Aid. Thanks!” Counsel responded making it clear the OCL recommendations do not supersede the existing court order. Mr M did not attend at the school. Nevertheless, Ms. Jumale told Z. his father might come to the school on Friday. Although she reassured him the school authorities were aware, he did not sleep well Thursday night and refused to go to school on Friday.
60Mr. Mahamed testified he was more comfortable communicating in French and his use of the word “will” in the text message was just a suggestion. Given that all written communications between the parties filed with the court were in English and Mr. Mahamed testified in English demonstrating an excellent command of the language, I do not find this explanation credible.
61Mr. Mahamed also indicated the reason he did not attend the scheduled visit on January 12, 2020 was because the FSO staff told him the previous visit was the last as there was a Settlement Conference scheduled and there would be a transition to unsupervised visits. There are no notes from the FSO of this conversation. It is unclear how the staff would know of a scheduled
Settlement Conference and unlikely they would indicate that a transition to unsupervised access would begin. I do not find this explanation credible.
Parenting time January 2020 – October 2020
62As the parties could not agree on parenting time moving forward, a mid-trial Settlement Conference was held before Engelking J. on January 15, 2020. A consent order was made that Mr M have unsupervised access to all three children in a public place from 2 pm-4 pm every second Sunday with exchanges at FSO. A. and N. could attend at their own discretion, according to their wishes. There were to be three visits before another scheduled Settlement Conference.
63None of those visits took place. FSO could not accommodate a 4 pm pick up time and there was no agreement between the parties or court order to extend the time to the regularly scheduled FSO pick up time of 6:15 pm.
64On March 13, 2020 there was another Settlement Conference before Engelking, J. at which time she ordered an extension of Mr. Mahamed’s parenting time from 2 pm-6:15 pm. Given the onset of the pandemic, Justice Engelking suggested if FSO closed and could not facilitate the transfers, private social workers could be retained at Mr. Mahamed’s expense. The names of three possible social workers were provided.
65FSO did in fact close due to the pandemic. Mr. Mahamed indicated a concern about using private social workers as they could be infected with the virus and put the children in danger. He suggested visits at a park or basketball court, although they were closed due to the pandemic. Although there was a restraining order in place, he indicated in an email to Ms. Jumale’s counsel “I can pick my kids up from their home or Ms. Fathia can drop them safely without any other human interaction just like we did in the past.”
66Ms. Jumale indicated that given pandemic restrictions and Justice Engelking’s order that visits take place in a public place; it would be in the children’s best interests that there be no visits with the children. Mr. Mahamed objected and agreed to retain private social workers as had been suggested by Justice Engelking. Ms. Jumale then proposed through counsel visits take place only once an Interim Agreement was signed with numerous conditions, including that visits revert back to 2 pm-4 pm as opposed to 6:15 pm. Mr. Mahamed did not agree.
67On June 10, 2020 Mr. Mahamed’s newly retained counsel suggested in a letter to Mr. Mahamed’s counsel a family friend Khadra, who Ms. Jumale knows very well, facilitate the exchanges. Ms. Jumale indicated she did not know Khadra well. She was a relative or close family friend of Mr. Mahamed and would not be neutral. In her Affidavit Ms. Jumale states, she learned from speaking to Khadra that Mr. Mahamad had never spoken to her about helping with the transfers and he was lying. However, while testifying she acknowledged that Mr. Mahamad had in fact spoken to Khadra. This inconsistency undermines her credibility. Ms. Jumale suggested her mother as exchange supervisor and, although she was not a neutral third party, given months had passed since the last court order for access, Mr. Mahamed agreed.
68Finally, on June 14, 2020 a visit was scheduled at McDonald’s. Z. had just turned seven and had not seen his father in eight months. Ms. Jumale testified Z. was reluctant to go but N. agreed to attend for the transfer, and he agreed. When they were parked beside Mr. Mahamed’s car, Ms. Haji-Abukar, the maternal grandmother, got out of the car with Z. Mr. Mahamed made a joke about Z.’s hair. Z. was upset and stated he did not want to go. He looked at his mother and would not get into his father’s vehicle. The visit did not take place.
69The next visit was scheduled for June 21, again at McDonald’s with the maternal grandmother as exchange supervisor. The grandmother walked Z. halfway between the parked cars to the middle of the parking lot where Mr. Mahamed met them. The evidence of Mr. Mahamed and Ms. Haji-Abukar as to what then occurred differs significantly. A video of some of the interaction taken by Ms. Jumale on her cell phone was entered as an exhibit. What is clear is there was a verbal altercation between them. The video shows the adults facing one another gesticulating and raising voices. Z. is behind his grandmother and looks back towards his mother’s car three or four times. When his father moves towards him, his grandmother gestures to go back and he runs back to the car.
70Before the next visit scheduled for July 12 again at McDonald’s, Mr. Mahamed was able to retain Brayden Supervision Services. The exchange supervisor Kelly Filoso’s notes were filed as an exhibit.
71The supervisor met Z. and his mother who were in the car. Mr. Mahamed was waiting parked at the other end of the parking lot. Z. made it clear he did not want to go with the supervisor
to see his father. He kept repeating “I don’t want to go” and avoided eye contact. Ms. Jumale remained passive. Ms. Filoso continued for 15 minutes to try to encourage Z. to come with her even just to say Hi to his father, but he refused saying “No, I’m not going”. When the supervisor asked Ms. Jumale if she had any suggestions, she quietly stated “Not even for 5 minutes?”. He again repeated several times he was not going.
72Ms. Filoso’s notes indicate Ms. Jumale “remained passive and quiet for the duration”. Ms. Jumale testified that throughout the discussions in the car, she continued to encourage Z. to proceed with the visit. I prefer the documentation of the supervisor in this regard. She made careful notes of what was said by Ms. Jumale and of her demeanour and there was no request for cross- examination. I do not find Ms. Jumale credible in this regard.
73When the supervisor finally indicated to Ms. Jumale, she would not force Z. but the expectation was that he go, Ms. Jumale did not speak to Z. but stated to Ms. Filoso that it was hard to even get him in the car. The supervisor indicated that if the transfer was not going to occur this was the last time she would ask, and Ms. Jumale could leave, and she would inform Mr. Mahamed. Ms. Jumale simply stated, “OK, we will go now” and left.
74Mr. Mahamed was upset but said he understood. He remained in his vehicle the entire time.
75Another visit was attempted on August 16, again supervised by Brayden Supervision Services. Z., his mother and two sisters drove to the McDonald’s location. The supervisor chatted with all three children and Z. said he was excited to return to school. Mr. Mahamed arrived and walked to the door of the McDonald’s as arranged. The supervisor said it was time to see his father.
Z. refused and said “No I don’t want to go”. Ms. Jumale said she would be close by but Z. continued to refuse. The girls refused to walk with Z. to the door of the McDonald’s so he could see his father. Ms. Jumale and the children left, and Mr. Mahamed once again expressed his frustration with the situation.
76There were no further visits or attempted visits prior to the trial ending in October 2020.
Update since October 2020
77As noted above, in June 2021 the parties were granted leave to file further affidavit evidence to update the court. Not surprisingly the evidence is once again contradictory. What is clear is that there has been no in person contact between Mr. Mahamed and his children. The last in person visit Mr. Mahamed had with Z. was October 6, 2019, over two years ago.
78Ms. Jumale deposes the only time the children have had any contact with their father since October 2020 was a telephone call in November 2020. Ms. Jumale received a text message and missed call from Mr. Mahamed requesting to speak to the children. They initially refused. Eventually they agreed to call back on speaker phone. The call did not go well and according to Ms. Jumale ended with Mr. Mahamed getting upset, telling the children in a loud voice to “shut the fuck up” and hanging up. All three children were upset and had to be calmed by their mother and other family members. Based on what they said to their mother, it was clear to her they did not want to talk to their father again. Ms. Jumale indicated Z. was particularly upset and expressed fear of his father. He required reassurance from his mother that he was safe.
79Mr Mahamed states that in fact he spoke to the children almost every Friday for about 10 minutes until February 2021 when he left the country and travelled to East Africa. He denies telling the children to “shut the fuck up” in November and indicates that conversation was about the girls’ request for iPhones which he could not afford. He states he calmly requested they choose another gift.
80Text messages attached to Ms. Jumale’s affidavit support her version of the November 2020 call. In April 2021 when in Africa, Mr. Mahamed sent a text message requesting to speak with the children and asked if A. was available to talk. Ms. Jumale indicated A. did not want to talk. Ms. Jumale wrote: “Kids are upset from what you said to them last time you spoke to them. Specially A. You told them to shut the f up. You should apologize to your children first specially A.” Mr. Mahamed responds, “OK ask her to call when she is ready.” He does not deny that he said those words to the children. I find there was a call as described by Ms. Jumale in November 2020.
81Mr. Mahamed indicates that in April 2021 while in Africa he had a very positive conversation with the children. The girls followed up with a request for new iPhones, but he again
stated he could not afford them. He had a positive conversation with Z. about homeschooling during the lockdowns and what he was doing.
82Ms. Jumale attaches to her Reply Affidavit a proof of purchase of iPhones for the girls in November 2020 and repeats the last time Mr. Mahamed spoke to the children was in November 2020.
83There was no cross-examination on the affidavits submitted in June 2020. I agree with counsel for Mr. Mahamed’s submissions that portions of Ms. Jumale’s affidavits are inadmissible. I will not consider evidence which relates to incidents that occurred before October 2020. The statements that Mr. Mahamed is “emotionally abusive” to the children would require expert evidence which Ms. Jumale is not qualified to provide. However, she can describe the children’s reactions and state of mind regarding involvement with their father. Despite these limitations, based on the all the affidavit evidence and attached exhibits, I find Ms. Jumale the more credible witness as to what has transpired since October 2020.
84In summary, I find there has been no face to face contact between Mr. Mahamed and any of the children including Z. since October 2019. There was one telephone contact in November 2020 during which Mr. Mahamed swore at the children, causing them distress.
85In his June 24, 2021 affidavit Mr. Mahamed notes, he has been in East Africa since February 2021 “to tend to important matters related to my wife’s immigration documents. I am completing documents for her to be able to come to Canada with me.” The fact that Mr. Mahamed has remarried and has been out of the country for many months is a change in his circumstances. He indicates a plan to return to Ottawa by early September. There is no evidence before the court as to whether he is now back in Ottawa, whether his wife is with him nor as to his current living or employment situation.
Restraining Order
86Ms. Jumale testified she continues to be anxious and fearful of Mr. Mahamed as he continued to harass her by text messages and video calls on numerous occasions, other than the calls with the children which were to be initiated by her on Friday evenings. Those calls did not always occur as the children would not want to speak to their father or he would not be there when
they called. At times the calls were initiated by the girls or Mr. Mahamed on different days. The order for telephone contact was not followed by either party.
87The exhibits filed do show numerous video calls from Mr. Mahamed to Ms. Jumale, many of which she did not answer, and texts sent by Mr. Mahamed once as early as 4:30 am. Mr. Mahamed sent a significant amount of information regarding the coronavirus telling Ms. Jumale how to handle it and protect the children. When Ms. Jumale responded asking him to stop sending unnecessary information, he indicated she should move on with her life and that anger was lurking in her heart. In a lengthy exchange on Mar 1, 2020 she continually asks him to stop calling her and sending her messages. Although the frequency and timing of the messages from Mr. Mahamed could be considered harassment and some were disrespectful of Ms. Jumale’s parenting, overall, they were polite, non-threatening and mostly related to the children.
88Ms. Jumale testified that in Feb. 2020 she was contacted by her uncle on Mr. Mahamed’s behalf regarding the court proceedings and in early March 2020 she received a call from Mr. Mahamed’s mother again regarding the court proceedings and Mr. Mahamed’s wish to see Z. She was feeling pressure from family members on Mr. Mahamed’s behalf.
89There is evidence of a WhatsApp communication between the parties in May 2019 regarding Ms. Jumale picking up gifts for the children at Mr. Mahamed’s workplace. Mr. Mahamed argues this exchange demonstrates Ms. Jumale was not fearful of him.
90Ms. Jumale who’s first name is Fathia, initially indicated she didn’t know “Tia 2”, the name attributed to her in the messages. Mr. Mahamed stated this was what he called her as it was her second number, therefore Tia number 2. In Exhibit 30 filed during the earlier part of the trial, Ms. Jumale was referred to as Tia 2. She did not challenge those messages. During her testimony, Ms. Jumale did in fact acknowledge the May 2019 exchange but then testified some of the messages in the exhibit filed must have been altered or manipulated. She was given the opportunity to produce her copy of the exchange but was unable to do so. She indicated she never attended Mr. Mahamed’s office to pick up the gifts and did not remember where or how she received them. I do not find Ms. Jumale’s testimony credible as it was inconsistent and contradictory. I find there was a communication between the parties as to where, when, and how Ms. Jumale would pick up gifts for the children, during which she demonstrated a willingness to attend his office. I note the subject
of Mr. Mahamed providing gifts to the children was a frequent topic of discussion in the calls between the girls and their father and in some messages exchanged by the parents.
91Ms. Jumale acknowledged that since the trial ended in Dec. 2018, Mr. Mahamed has not come to her home or to the children’s school and has not followed her.
Law and Analysis
Parenting Time
92As noted above, the only remaining parenting issue is Mr. Mahamed’s parenting time with
Z. He agrees that any contact with A. and N. be according to their wishes.
Amendments to the Children’s Law Reform Act
93The pleadings in this matter request orders under the Children’s Law Reform Act R.S.O. 1990, c.C.12, as am (CLRA).
94On March 1, 2021, amendments to the CLRA came into force, modernizing the terminology relating to custody and access by replacing it with terminology related to parenting. Custody is now decision-making responsibility and access now becomes parenting time. There are amendments to the list of non exhaustive criteria to consider in determining the best interests of a child and specific factors relating to family violence are listed for the court’s consideration.
95This trial began before March 1, 2021 and continued after that date. Therefore, the court must consider what law to apply. Unlike s. 35.3 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am which indicates the new amendments will apply, the transition provision under s. 76 of the CLRA is not clear.
96In L.B. v. P.E., 2021 ONCJ 114, Justice Sherr considered the same issue and applied the new amendments. He states at paras 43 and 44:
[43] In this case, the court will apply the approach set out in the amendments, for the following reasons:
a) The result in this case would be exactly the same – no matter whether the court applied the best interests considerations set out in subsections 24 (2) (3)
and (4) of the Act, as it read before March 1, 2021, or the best interests considerations set out in the amendments.
b) The best interests criteria in the Act, as it read before March 1, 2021, and those set out in the amendments are non-exhaustive – all relevant factors concerning a child’s best interests have been and will continue to be considered by courts. There is nothing that precludes the court from considering the best interests considerations set out in the amendments. This was the case even before they came into effect. One case where a court applied the approach in the amendments was White v. Kozun, 2021 ONSC 41, where Justice Melanie Kraft wrote at paragraphs 174, 176 and 177:
[174] The list of “best interests” criteria in the DA amendments is a non- exhaustive list. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion will depend on the circumstances of the particular child.
[176] Again, the list is a non-exhaustive list. Thus, the court must also consider any other factor that is relevant in the case before the court.
[177] While it is the current legislation that governs this case at this time, the approach taken in the DA amendments is, in my view, a better one generally in cases relating to children as the language, in and of itself, is less adversarial. Although the terms in the proposed legislation do not govern this case, the discretion the Court has under the current provisions of the DA amply enable a judge to make orders using the new language.
c) The amendments modernize the best interests language and are much clearer than some of the clunky and confusing terminology used under subsections 24
(2) (3) and (4) of the Act, before the amendments came into force.
d) The amendments reflect the government’s intention of what is now in a child’s best interests. There is a strong argument that the determination of a child’s best interests after March 1, 2021 should not be decided differently just because the case was started earlier than March 1, 2021.
e) The amendments, to a large extent, codify the existing jurisprudence about a child’s best interests. For instance:
- Subsection 24 (2) of the amendments provides that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
This court has written that a starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See also: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.
Clause 24 (3) (c) of the amendments states that the court should consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. This best interests consideration has often been set out in the jurisprudence as an important factor in making parenting orders. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128; Leggatt v Leggatt, 2015 ONSC 4502; Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.
Subsection 24 (6) of the amendments states that in allocating parenting time, the courts must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of a child. This principle was previously set out by the Ontario Court of Appeal in Rigillo v. Rigillo, 2019 ONCA 548.
f) The amendments provide a comprehensive and useful definition of family violence. They also set out best interests factors relating to family violence. These are reflective of much of the jurisprudence about domestic violence. See for example: M.R. v. A.R., 2020 ONCJ 327; Scarlett v. Farrell, 2015 ONCJ 35; A.T. v. M.H., 2020 ONCJ 277; R.S.K. v. A.M.A., 2012 92361 (ON SC), 2013 ONSC 1148; Al- Hadad v. Al-Harash, 2020 ONCJ 269; G.T.C. v. S.M.G., 2020 ONCJ 511; Lawrence v. Bassett, 2015 ONSC 3707.
g) Section 76 of the amendments provides that starting on March 1, 2021, existing custody orders are deemed to be decision-making responsibility orders and that existing access is deemed to be either parenting time or contact. If this decision were to be written using the language of the Act before the amendments came into force, they would be deemed by section 76 to be the kind of orders authorized under the amendments. It makes sense then to use the new language in this judgment, as the orders will be deemed to be renamed this way anyways.
[44] The court adopts the approach recently taken by the Ontario Court of Appeal in Bourke v. Davis, 2021 ONCA 97. This was an appeal of a mobility case which considered the amendments to the Divorce Act in assessing the best interests of a child, even though they were not yet in force. The court wrote at paragraphs 43 to 45:
[43] The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on
March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:
In deciding whether to authorize a relocation of the child, the court shall not consider if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
[44] While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child.
[45] The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:
Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.
This provision would prohibit courts from considering this question – or the parent’s response – if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.
97I find those reasons to be equally applicable in this case. I adopt the approach taken by Justice Sherr and will apply the new amendments to the CLRA.
Considerations under the CLRA
98Subsection 24(1) of the CLRA indicates that in making a parenting order the court shall consider only the best interests of the child in accordance with the section. The rest of the section states as follows:
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, 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 co-operate 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. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause
(3) (j), the court shall 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 the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6
Maximum Contact
99The child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz, 1996 191 (SCC), [1996]2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.
100Section 24(6) codifies this principle and indicates that in allocating parenting time the court must consider the principle that a child should have as much time with each parent as is consistent with the child’s best interests.
Family Violence
101Family Violence is comprehensively defined in subsections 18(1) and (2) as follows:
18 (1) In this Part,
“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)
“Family violence”
(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself 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. 2020, c. 25, Sched. 1, s. 2.
102Based on all the evidence, I find on a balance of probabilities there has been family violence perpetrated by Mr. Mahamed. in the nature of volatile and threatening behaviour towards Ms. Jumale causing her to fear for her safety and for that of her children.
103Ms. Jumale provided evidence that when the parties resided together, Mr. Mahamed had a bad temper and was volatile and aggressive during verbal disputes. I find her evidence in this regard credible.
104In September 2012 there was an altercation between the parties which resulted in Mr. Mahamed being charged with assault and ultimately signing a peace bond not to communicate or associate with Ms. Jumale except with her written revocable consent.
105A. and N. were present during some of the verbal disputes and observed the conflict between their parents. In addition, they were present during the altercation in September 2012 when the police were called, and their father was charged. Both girls subsequently refused in person access with their father.
106Z. was not born until after the parties separated on September 23, 2012. As stated by Ms. Mitchell in her April 12, 2017 report: “This writer believes Z. is too young to recall any aggression from his father or conflict between his parents and is only refusing access because his sisters are.”
107After separation, Mr. Mahamed continued to lose control and engage in verbal outbursts directed towards Ms. Jumale at times overheard by the children. The Children’s Aid Society was involved in 2018 and expressed concern regarding the exposure of the children to the negative behaviours of their father. On December 21, 2018 I found Ms. Jumale to have legitimate subjective fear of Mr. Mahamed’s outbursts and the impact on the children and I made a temporary restraining order.
108Although he has now taken anger management and parenting courses, Mr. Mahamed has at times continued to be unable to control his emotions and temper in the presence of the children, including Z. The June 21, 2020 interaction between Mr. Mahamed and the maternal grandmother in the McDonald’s parking lot is one example. The video exhibit shows Mr. Mahamed raising his voice, gesticulating and reaching towards Z. when he was hiding behind his grandmother. I note that the maternal grandmother was also gesticulating and raising her voice. The telephone call in November 2020 when Mr. Mahamed swore at the children is another example of loss of control. This kind of interaction is clearly not in the children’s best interests and I find has contributed to Z.’s reluctance to attend visits.
Other Best Interests Considerations
109The best interests factors listed under subsection 24(3) are not exhaustive. The court must take a holistic view and consider all the child’s circumstances with the primary consideration being the child’s physical, emotional, and psychological safety, security and well-being. (ss. 24(2)).
110Along with the finding of previous family violence, I have carefully considered the other relevant best interests factors under ss. 24(3) and note the following with respect to Z.:
- Z. is only eight years old. He hasn’t seen his father in over two years. In fact, since his birth, there has been very little in person contact between Z. and his father. Most of that contact has been supervised, the most recent being visits at FSO from August
– October 2019. There has been little opportunity to develop a meaningful relationship with his father. The development of the relationship they do have has been characterized by inconsistency and instability.
- Despite a lengthy gap in time with no visits, the supervised visits Z. had with his father at FSO between August and October 2019 were positive. Mr. Mahamed was appropriate on the visits and Z. appeared comfortable and a times affectionate with his father. Ms. Mitchell indicated in her October 2019 report that Z. expressed no reluctance to seeing his father and spoke positively about the visits. Ms. Mitchell indicated “there appears to be no reason not to move to unsupervised access after the three-month period of supervised access ends. This will give Z. the opportunity to develop a positive relationship with Mr. Mahamed and will be to his benefit.” She emphasized that consistency was important. Unfortunately, after the release of her report, there were no further supervised visits. The three-month period did not finish. Thereafter the attempts at unsupervised visits were unsuccessful and caused
Z. anxiety.
Z. has a secure, stable life with his mother, maternal grandmother, and sisters, who are now 16 and 14 years old. He has strong, close, meaningful relationships with all of them. Ms. Jumale testified Z. is extremely close to his sisters. She stated, “words can’t explain how close” they are. He seeks their approval and appreciation. In turn, they look after him, feel responsible for him and want to protect him.
These strong, stable relationships have served Z. well but have hindered his relationship with his father. All four of the most meaningful people in this child’s life feel negatively towards Mr. Mahamed and are to some extent fearful of him. Ms. Jumale considers Mr. Mahamed physically and emotionally abusive and indicated the children would not be safe with him. She does not trust him. Although there is no evidence of parental alienation, as noted by Ms. Mitchell in her April 2017 report, “Ms. Jumale is protective of her children and may well have, even if unintentional, conveyed to the children her concerns about them seeing Mr. Mahamed.” Not only his mother, but Z’s grandmother and sisters are also very protective of him. I find on a balance of probabilities they have all in some way conveyed their concerns to Z. and have influenced his now expressed wishes not to see his father.
Ms. Jumale testified that she encouraged Z. to attend visits, but I find she did not actively, consistently encourage the children, including Z. to attend the visits after the receiving the OCL report in Oct. 2019. Even after two further court orders for access, Ms. Jumale did not provide meaningful guidance to her son. She abdicated her parental role which was to actively support the development and maintenance of Z.’s relationship with his father and to do all she reasonably could to follow the court orders. There is no evidence that she ever demonstrated she was in control nor that she made it clear to Z. there was no choice and he was required to attend. She was passive during the attempts by Brayden Supervision Services to facilitate the exchanges, offering little meaningful encouragement.
In Godard v. Godard, 2015 ONCA 568 the court stated at para 28:
[28] Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child
who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 43948 (Ont. S.C.);
and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.)
The court indicates that parents are not required to do the impossible but are required to do all that they reasonably can to comply with an access order. More than encouragement is required and was not provided in this case.
As stated above, I find Z.’s expressed wishes not to have parenting time with his father have been influenced by his mother, grandmother, and sisters. He is a young child who needs parental guidance. I do not find this influence direct or malicious but more of a spillover from their feelings towards Mr. Mahamed. Nevertheless, currently Z. is fearful of contact with his father. Not all that reluctance and fear is due to the influence of his family members. Mr. Mahamed’s behaviour during the attempted access exchange in June 2020, on the telephone call in Nov. 2020 and in general towards his mother in his numerous messages have had a direct and indirect influence on Z.’s feelings about parenting time with his father.
Although he is willing, Mr. Mahamed’s ability to care for and meet Z.’s emotional and psychological needs is questionable. He has been unable to control his emotions both during attempted access exchanges and during telephone calls. In addition, his most recent affidavit evidence indicates he is now remarried and has been in East Africa from February 2020 until at least September 2020, completing documents for his wife to come with him to Canada. This is new information and a change in Mr. Mahamed’s circumstances. The court has no evidence about his new wife, her circumstances, whether she is now in Canada with Mr. Mahamed or where they are living. Did Mr. Mahamed take a leave from his employment? Is he still working? There are a number of unanswered questions relevant to Mr. Mahamed’s ability to care for Z. during unsupervised parenting time.
Mr. Mahamed and Ms. Jumale have demonstrated little ability and willingness to communicate and cooperate with one another on matters affecting their son. Mr. Mahamed persisted in sending numerous unsolicited messages to Ms. Jumale at times instructing her on COVID-19, how to handle the virus and protect the children. Although well meaning, he once again demonstrated an inability to stop at her request. Although the communication was mostly polite and relevant to the children, his calls and messages were not within the parameters of the court order. He would call or message whenever he wished.
For her part, it is clear Ms. Jumale wants nothing to do with Mr. Mahamed with respect to the children or otherwise. She considers him physically, emotionally, and psychologically abusive.
- As noted above, I find there was volatile, threatening behaviour by Mr. Mahamed towards Ms. Jumale prior to separation in September, 2012 to which his daughters were exposed. This meets the definition of family violence under ss. 18(1) and (2) of the CLRA. Z. was not affected by this behaviour but has been exposed to some outbursts by his father. That exposure in addition to the negative feelings and fear of Ms. Jumale., the maternal grandmother, and Z.’s two sisters have in turn caused
Z. to be fearful of his father.
Conclusion
111Having considered all the evidence and the relevant legislation and jurisprudence, I find it in Z.’s best interests to have some parenting time with his father on specific terms and conditions, with the goal of once again attempting to establish a meaningful parental relationship.
112This is not a situation where there is a history or a pattern of violence; ongoing persistent uncontrollable behaviour; alcohol or drug abuse witnessed by the child or which presents a risk to his safety. Although there has been harassing behaviour towards Ms. Jumale causing her stress and fear which has impacted on her son, the behaviour is not ongoing or long term. Mr. Mahamed has not severely denigrated Ms. Jumale and has attempted to communicate with her on issues relevant to the children. This is not one of the rare, severe cases where there should be a final termination of any relationship between the child and his father.
113However, given: the fear of his family members and now Z. himself, the problems with communication, the inconsistency and gaps in contact, Mr. Mahamed’s emotional volatility and his lack of insight and acceptance of some responsibility for his estrangement from his children, there will need to be specific terms and conditions in the order for parenting time. Meaningful counselling will be a starting point.
Restraining Order
114The temporary restraining order made in December 2018 was made under s 46 of the Family Law Act. Ms. Jumale requests a final restraining order pursuant to s. 35 of the CLRA which reads as follows:
Restraining order
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
Provisions of order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
115At this time Ms. Jumale must prove on a balance of probabilities that she continues to have reasonable grounds to fear for her safety or the safety of her children.
116In Noriega v. Litke, 2020 ONSC 2970, Justice Price emphasized both the subjective and objective elements of the test for a restraining order and adopted the reasoning of Dunn J. in Khara
v. McManus, [2007] O.J. No. 1868, (O.C.J.) who described the test for a restraining order at paragraph 33 as follows:
…it is not necessary for a respondent to actually have committed an act, gesture, or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed … However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to the respondent’s action or words. A court must be able to connect or associate a respondent’s actions or words with the applicant’s fears. [emphasis added]
117In considering what has occurred since the December 2018 restraining order, I note the following:
Ms. Jumale indicated that given Mr. Mahamed’s anger, impulsivity, and volatility, she continues to be fearful and concerned for the safety of her children
On occasion, Mr. Mahamed sent numerous messages and placed video calls to Ms. Jumale on at least one occasion very early in the morning. Most of the messages were polite and were regarding the children. Mr. Mahamed provided information regarding the Corona virus and his views as to how the children should be protected. He felt he knew best. He also at times asked Ms. Jumale to just move on and not have “anger in her heart”. Ms. Jumale found Mr. Mahamed’s persistence harassing and testified she was fearful. Most of these messages were sent in 2019 and 2020, over two years ago.
There is no evidence that since the last order Mr. Mahamed engaged in name calling, belittling, ongoing harassment or physical or emotional abuse of Ms. Jumale.
On telephone calls with the children he would at times raise his voice. In November 2020 he lost his temper and swore at the children during a call.
In February and March 2020, family members contacted Ms. Jumale regarding the court proceedings and Mr. Mahamed’s wish to see Z. Ms. Jumale felt she was being indirectly pressured by Mr. Mahamed.
There is no evidence that Mr. Mahamed attended at the children’s school, Ms. Jumale home or workplace or followed her, since that last order.
There was a WhatsApp exchange between the parties in May 2019 as to when where and how Ms. Jumale would pick up gifts for the children from Mr. Mahamed. during which she indicated a willingness to go to Mr. Mahamed’s office.
Mr. Mahamed was out of the country from Feb until Sept 2021. There is no evidence of harassing calls or behaviour during this time.
118In Yenovkinav v. Gulian, 2019 CarswellOnt 21614 (S.C.J.), Justice Kristjanson considered the type of evidence required for an applicant to establish subjective reasonable grounds to fear as follows:
A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement.
See: Purewal v. Purewal, 2004 ONCJ 1195
119Although Mr. Mahamed at times has difficulty controlling his emotions, this is not a case of lengthy or ongoing harassment or abusive behaviour. There has been limited communication between the parties over the last year. Mr. Mahamed was out of the country for at least six-seven months in 2021. Although Ms. Jumale has subjective fears which are real to her, it is difficult to relate them to Mr. Mahamed’s actions over the past two years.
120Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M. T. C.,2015 ONCJ 242
121A restraining order is a significant remedy with potentially serious criminal consequences and implications for the liberty of the person restrained. Ms. Jumale’s statements that she continues to be fearful are not sufficient to establish at this point in time “reasonable grounds to fear” for her safety.
122There are other protections available. A no-contact or communication order may be made under s. 28 of the CLRA. Ms. Jumale’s request for a final restraining order under s 35 of the CLRA is denied and an order regarding contact and communication will be made under s. 28 of the CLRA.
Order
Mr. Mahamed shall attend individual therapy to deal with anger, emotional control and to gain insight into parenting issues.
With the assistance of his therapist, Mr. Mahamed shall write a letter to his children apologizing to them for his past behaviour.
Mr. Mahamed and Z. shall attend family reunification/reconciliation counselling. FSO may be consulted as to whether they are able to provide such counselling or can recommend a qualified counsellor. The counsellor shall determine the nature of the sessions and who shall attend at what times. Ms. Jumale shall ensure Z.’s attendance when requested by the counsellor. A. and N. may attend if they wish and if deemed appropriate by the counsellor.
After a minimum of four sessions of individual counselling and once deemed appropriate by the reconciliation counsellor, Mr. Mahamed shall have supervised parenting time with
Z. through the supervised access program at FSO a minimum of once every two weeks for two hours. Ms. Jumale is to ensure Z’s attendance.
Once supervised parenting time has occurred consistently for three months, Mr. Mahamed shall have parenting time with Z. every second Sunday from 2 – 6:15 pm in the community, with the exchanges at the supervised access centre at FSO. Mr. Mahamed is to inform Ms. Jumale in advance as to the plan and location for the visit.
Once deemed appropriate by the reunification counsellor, Mr. Mahamed shall have telephone contact with Z once a week on a day and at a time to be agreed upon. The calls are to be initiated by Z. Ms. Jumale is to ensure the calls take place.
Given the uncertainty as to Mr. Mahamed’s current living or employment circumstances, the parenting time shall continue as outlined above.
Mr. Mahamed is to provide Ms. Jumale with his contact telephone number and address.
The parties may agree to other parenting times, location, and duration.
A. and N.’s parenting time and contact with their father shall be according to their wishes. They are to be provided with his email address and telephone number and may contact him if they wish.
Mr. Mahamed is not to communicate with or contact Ms. Jumale directly or indirectly except with respect to court ordered or agreed upon parenting time with Z. All communication is to be using Our Family Wizard which is to be paid for by Mr. Mahamed.
Mr. Mahamed is not to contact or communicate with Z. except in accordance with court ordered or agreed upon parenting time.
Mr. Mahamed is not to contact or communicate with A. or N. except if invited by them via email or telephone call.
Mr. Mahamed may send the children gifts and cards by mail only and only on special occasions such as birthdays, Christmas, and other religious holidays.
On consent, Mr. Mahamed is not to attend at Ms. Jumale’s home or place of employment except with her express written consent.
Costs
123If the parties cannot agree upon costs, Ms. Jumale shall provide costs submissions not to exceed four pages plus a bill of costs and any offers to settle by February 18, 2022. Mr. Mahamed is to provide his costs submissions not to exceed four pages plus a bill of costs and any offers to
settle by February 28, 2022 and reply submissions by Ms. Jumale not to exceed two pages are due by March 11, 2022. Please forward the costs submissions by email to scj.assistants@ontario.ca.
Blishen J.
Date: January 28, 2022
COURT FILE NO.: FC-13-19-1
DATE: 2022/01/28
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Fathia Omar Jumale, Applicant
AND
Abdillahi Duale Mahamed, Respondent
BEFORE: Blishen J.
COUNSEL: Thomas Hunter, for the Applicant
Diana Aoun, for the Respondent
SUPPLEMENTARY REASONS FOR DECISION
Blishen J.
Released: January 28, 2022
