Superior Court of Justice - Ontario
COURT FILE NO.: FC-21-96
DATE: 2022/10/18
RE: Marie Botros, Applicant
AND:
Melad Botros, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Angela Daniels, for the Applicant
David Sinclair, for the Respondent
HEARD: September 27, 2022
ENDORSEMENT
[1] Both parties have brought motions seeking interim relief. As framed by the Respondent at the hearing of the motions, the issues for me to decide are as follows:
a. Whether the Applicant should be granted interim decision-making;
b. The allocation of parenting time;
c. Once the allocation of parenting time is decided, the amount of child support owing going forward;
d. The amount of retroactive child support owing;
e. The wording of a s. 7 expenses order;
f. Any outstanding financial disclosure required;
g. The handling of the children’s passports;
h. The division of remaining household contents; and
i. Costs
[2] By way of background, the parties were married on October 10, 2004 and separated on June 26, 2020. The parties have two children from their marriage: Emily Botros, born on November 2, 2007 and Eva Maria Botros, born on April 8, 2011.
[3] The Applicant commenced this case on January 11, 2021. Although the matrimonial home has been sold, the parties could not agree on parenting time, decision-making and child support and so they jointly scheduled this motion, which was heard on September 27, 2022 and at which time I reserved my decision.
[4] It is important to note at the outset that I have been provided numerous affidavits from the parties which contain often very different accounts of events that have occurred both before and after separation. Given that this is an interim motion and the parties have not been cross- examined on their affidavits, it is next to impossible for me to make findings regarding the credibility and reliability of the witnesses. As a result, I am left to make my decisions on evidence that is largely uncontroverted or comes from reliable outside sources.
[5] With that caveat in mind, I will address the various issues raised in the order as set out by the Respondent.
Decision-Making
[6] The Applicant is seeking sole decision-making but says she will inform the Respondent of all the major decisions she will be making on behalf of the children. It is submitted that there can be no order for joint decision-making as the parents are not able to communicate. All of their communication is through legal counsel or third parties. The Applicant further submits that the Respondent lacks the mental maturity required in making joint or sole decisions about the children, that the children do not trust his judgment and do not respect him due to his treatment of them and their mother.
[7] The Respondent submits that there is no evidence that the parents have been unable to agree upon a major decision such as health care, education, or extracurricular activities for the children. Nor is there evidence that the Respondent has prevented a major decision involving the children from being made. It is submitted that there is evidence that the Applicant has prevented the Respondent from playing a meaningful role in the children’s lives. The Applicant’s position is that the Court should not make any order as to decision- making on this interim motion. The issue should be left to the trial judge to decide.
[8] It may be ultimately determined after a trial that a joint custodial regime is not appropriate given the high level of conflict between the parties. However, I am unable to make that determination at this stage. Although I cannot say on the evidence before me that the Applicant has prevented the Respondent from playing a meaningful role in the children’s lives, I do agree that there is insufficient evidence to establish that it would be in the best interests of the children for the mother to have sole decision-making responsibility. There is simply an absence of evidence as to any issues that have arisen or are anticipated to arise with respect decision making (see Miller v. Jonathan, 2020 ONCJ 359 at paras. 15 to 17).
[9] Nor can I make an interim order for joint decision making when, as here, there may not be a good history of communication between the parties (see Goodyear v. Burton, 2016 ONSC 4583 at paras. 46 to 48).
[10] Therefore, there will be no order as to decision-making pending further order of this Court.
Parenting Time
[11] The Respondent seeks an order that the parties should return to the parenting time schedule that was in effect for the first six months after separation. It is submitted that it is in the best interest of the children to reside with the parties on an equal basis. In particular, the Respondent argues that the Applicant has actively alienated the children from him. An order for equal time is required to address this alienation despite the fact that the children do not wish further time with their father at this time. It will be in their long term best interests to order more parenting time at this stage.
[12] The Applicant denies that she is alienating the children from their father. On the contrary, she says she continues to encourage visits despite the fact that the children do not wish to spend time with the Respondent. In addition, she says she did most of the parenting during the marriage. It is therefore submitted that the parenting time should continue as set out in the endorsement of Justice Labrosse dated April 13, 2002. Pursuant to the endorsement, the Respondent has the children each Tuesday from 5:30 pm to 9:30 pm and each Saturday from 10:30 am to 8:30 pm.
[13] Parental alienation has been defined as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship” (see Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097, at para. 3.).
[14] The central issue on this application is whether I can make a finding of alienation at this interim stage based solely on conflicting affidavits and in the absence of expert evidence.
[15] A finding of parental alienation can be made at the interim stage and on a written record, particularly where the evidence overwhelmingly points to this conclusion (see Hajji v. Al- Jammou, 2020 ONSC 6403 at para. 37).
[16] Furthermore, parental alienation is a legal concept as opposed to a mental health diagnosis. As such a Court can make a finding of alienation based upon the analysis of the facts alone without expert evidence (see A.M. v. C.H., 2018 ONSC 6472 at paras. 107 to 108).
[17] However, just because a court “can” make an order, does not mean that it “should.”
[18] The evidence of alienation here is limited and conflicting.
[19] The Respondent’s position relies primarily on two propositions: 1) that parenting time was unilaterally stopped on December 31, 2020 and 2) that the children now have a strained relationship with him. According to the Respondent, he has not done anything that would cause the children to not want to be with him; that he was an integral and important part of their life from the day they were born until December 31, 2020. The only explanation for this rejection, he says, is that the children have been in the almost exclusive care of the Applicant and that she
has negatively influenced them and filled their heads with hatred towards him and his family. In essence, he is asking me to infer that alienation is occurring based on these two propositions.
[20] In addition, he points to the following:
a. On visits during April and May of 2021, he noticed that his children had become more distant. They were heavily guarded, less affectionate, cold, hostile and at times very disrespectful. During the visit, they used profanity and used words that the Respondent says “they must have heard” their mother use.
b. The children initially agreed to obtaining passes for Calypso but then a few weeks later told him they had no interest;
c. During an incident on May 15, 2021, one of the children was disrespectful towards him. The Respondent says he was shocked as to how the Applicant handled the incident; and
d. There is evidence that the Applicant was blatantly discussing parenting issues with the children and actively encouraging them to become involved.
[21] As previously noted, the Applicant denies that she is alienating the children with respect to the Respondent. Her evidence with respect to many of the events that the Respondent relies on in support of a finding of alienation differs from his.
[22] The parties jointly retained Chantal Bourgeois to prepare a parenting assessment (the “Bourgeois assessment”). The report was completed on January 17, 2022. Addressed in the report are the factors contributing to the children’s resistance/refusal to seeing their father. Key observations made include:
a. Initially the resistance to contact with their father was reflective of when their father made negative comments about their mother, their maternal side of the family, asked questions about Mom, or made them feel like they could not mention her name in his home, or communicate with her freely;
b. As time progressed the children became more discontent and anxious with the situation, which in turn made their mother worried that their father was repetitively exposing them to stress and anxiety;
c. In the current situation, there are mutual allegations of parental alienation/parental influence. The factors contributing to the breakdown in the contact between the Respondent and his daughters was and are not black and white nor simple;
d. It is clear from interviews with the parents, children, professionals, friends, and family that these children have been directly exposed to a high level of conflict between their parents pre- and post-separation;
e. They are showing alignment with their mother and are estranged to alienated from their father;
f. Both parents have engaged in negative talk and behaviours. The Applicant, however, appeared to welcome and seek out guidance and advice, which demonstrated an openness to alterative ways of thinking or doing things. The Respondent’s negative insults, questioning, non-adherence to visit time and blocking of the children’s communication with their mother appears to be more persistent, ongoing and strong.
g. The Respondent believes that forcing the children to return to 50-50 will fix the children’s resistance to seeing him, but he has not done the therapy necessary to work on his rigidity and inability to move on emotionally from the Applicant’s infidelity; and
h. The children do have some justifiable concerns about their father and increases in parenting time needs to be done carefully when parents and children are emotionally ready to ensure success.
[23] An assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding. In rare cases, the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation in the existing
custody arrangement. The general rule that the assessor's recommendations ought not to be acted upon without a full trial should be followed except in exceptional circumstances (see Scutt v. St. Cyr, 2020 ONSC 1159 at para. 10).
[24] The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Batsinda v. Batsinda, 2013 ONSC 7869).
[25] I will not rely on the conclusions or recommendations from the Bourgeois assessment. However, I will consider the assessor’s observations respecting the parties and her impressions regarding the parties’ interaction with the children. At a minimum, the report suggests that the children’s resistance to contact with their father stems from multiple factors, some of which are attributable to the Respondent, some to the Applicant and some to the general situation.
[26] In addition, the Respondent, Applicant and the children have been attending reunification therapy with Renew Supervision Services since March 2002. Periodically, Renew provides Progress Reports that summarize the progress that has been made. Although the reunification therapy was originally requested by the Respondent to help the children adjust to post separation life, the Respondent now says the sessions are counterproductive. An Amended Reunification Therapy Progress Report for the reporting period of June 1 to August 15 was provided to the Court on consent of the parties. The following passage is of note:
Marie has regularly participated in reunification therapy and has made both the children available for regular sessions. Marie is very receptive to therapeutic interventions and compliant with encouraging the children to follow through and practice coping strategies and communication skills at home with the children.
Marie has shared that she wants the children to have an organic and healthy relationship with their father and has shown a willingness to continue with the reunification therapy. She has
supported the children to have joint sessions with their father and is open to having joint sessions with the father to move forward in the reunification process.
Marie has booked and participated in therapy when she is challenged by the children when they refuse to continue with their parenting time visits.
[27] The observations of the therapists with respect to the behaviour of the Applicant is arguably at odds with a finding that she is attempting to actively alienate them from their father.
[28] The evidence clearly established that there had been a fracture in the relationship between the father and the children. However, this is not a case in which the affidavit evidence is not in serious dispute or the evidence overwhelmingly supports a finding that the Applicant has alienated the children from their father (see J.C. v. R.P., 2022 ONSC 2751 at paras. 30 and 66). I am not satisfied on the record before the court that parental alienation on the part of the father has been proven at this stage.
[29] In the absence of a finding of parental alienation, I conclude that it would be in the best interests of the children to continue with the current parenting schedule.
[30] The views of children, particularly those of older children, deserve significant weight. Each individual child’s views and objections are important, but so too is the children’s collective view. Where sibling’s views align, the maturity of the elder sibling may bolster the weight given to the younger siblings’ views (see Mattina v. Mattina, 2018 ONCA 641 at paras. 24 to 27).
[31] Emily is almost 15 years old; Eva Marie 11. Their most recent views are set out in the Amended Reunification Therapy Progress Report:
The children report that they feel dad has lost trust in therapeutic interventions and will make disrespectful remarks about therapy and has asked them to tell the therapists that they want to do overnight visits when they have clearly indicated that they are not ready at this time.
This makes them feel sad, angry and hopeless and they are now reporting that they do not feel like continuing their dad’s phone calls. In addition, they question their mother’s parenting as they relay this information to their mother and shared that they do not want to continue to see their father but they feel that are “forced”
to continue to see their dad. Marie shared that she has to force the children to continue with their parenting time and has addressed this by arranging and participating in therapeutic sessions for children.
[32] It would not be in the long term best interests of the children to accede to their wishes (at least as expressed in this report) to have no contact with the Respondent. As noted by the therapist, they have shared in the past that they want to have a relationship with their father. Momentary frustration should not defeat that laudable goal. However, the children are not yet ready for further parenting time with the father and any change to the current schedule would likely be counter productive. The Respondent’s application for a change to the parenting schedule is dismissed.
Child Support
[33] The Respondent’s application for a change to the amount of child support owing is based on a change to the parenting time. As I have not ordered a change in the parenting time, the Respondent will continue to pay child support as per the order of Justice Labrosse dated February 23, 2022.
[34] The Applicant seeks an order that the Respondent pay lump sum retroactive table child support for the two children of the marriage from February 1, 2021 to February 1, 2022.
[35] In exercising their discretion to order retroactive support, courts must balance the payor’s interest in certainty with the need for fairness and flexibility. In doing so, a court should consider the reasonableness of the delay in seeking support, the conduct of the payor, the circumstances of the child, and the hardship occasioned by a retroactive award. The award should generally be retroactive to the date when effective notice was given to the payor (see S.(D.B.) v. G.(S.R.), 2006 SCC 37).
[36] The court is not precluded from making temporary retroactive support orders where merited – particularly when there is blameworthy conduct. However, the court should be cautious in making such an order since there has been no questioning. The trial judge is in the best position to conduct the necessary holistic analysis of the D.B.S. factors (see Palaganas v. Marshall, 2016 ONCJ 445).
[37] The submissions on this issue set out in the Applicant’s Factum are limited. There is no analysis of the D.B.S. factors. In fact, the Applicant writes that the Respondent must disclose his three most recent December 2021 pay stubs so that a proper child support amount can be calculated.
[38] Under the circumstances, I am not well placed to decide the issue. It should be left to the trial judge.
Section 7 Expenses
[39] Both parties agree that they should share the costs of any future s. 7 expenses in proportion to their incomes. They disagree slightly on the wording. The Applicant’s proposed wording is focused on the Applicant proposing the expense and the Respondent paying. The order should be more geared to a reciprocal arrangement.
[40] The parties shall share the costs of any s. 7 expense in proportion to their incomes. Prior to incurring any s. 7 expense for which they seek reimbursement, a party shall obtain the consent, in writing of the other party to contribute to the expense. Neither party shall unreasonably withhold consent.
Outstanding Financial Disclosure
[41] The Applicant asks for an order that the Respondent provide his 2020 and 2021 income tax returns. The Respondent replies that Justice Labrosse has already ordered financial disclosure but that he is not opposed to an order that each party shall provide any outstanding financial disclosure required by the Family Law Rules O.Reg. 114/99 as am. I order that such disclosure shall be provided by November 31, 2022.
The Children’s Passports
[42] The Applicant seeks an order that the Respondent sign a passport renewal application form for each child within 14 days, failing which the Applicant may apply and renew the children’s passports without the Respondent’s signature. The Respondent is agreeable to a renewal of the passports but asks that they be held in his position. He has provided no rationale for this. There is no evidence that the Applicant may flee with the children. Given that the
children will be primarily in the Applicant’s care, it makes more sense for the passports to remain in the Applicant’s possession.
[43] There will be an order that the Respondent sign passport renewal application forms for each child within 14 days, failure of which the Applicant is allowed to apply and renew the children's passports without the Respondent's signature. The Applicant will retain the new passports in her possession.
Return of Photographs
[44] The Applicant seeks the return of certain photographs that are in the possession of the Respondent. She says they have sentimental value. The Respondent argues that this matter has been disposed of and that the Applicant should not keep returning to court to seek more items. A deal is a deal he says.
[45] It is far from clear on the evidentiary record that these photographs were dealt with in a previous order as alleged by the Respondent. They were certainly not directly referred to. Furthermore, an email from the Applicant to the Respondent on August 1, 2022 suggests that they had actually agreed to share the photographs.
[46] Absent a clear finding that the matter has been previously dealt with (and I cannot make such a finding), there is no compelling reason why the photographs should not be shared.
[47] There will be an order that the Respondent provide the Applicant within 14 days i. half of the Black and White cruise pictures of the children (he can choose which ones to give her). ii. half of the family vacation albums (he can choose which ones to give her).
Costs
[48] he two most significant aspects of this motion were the requests for orders on decision- making and parenting time. The Applicant was unsuccessful on her application with respect to decision making and the Respondent was unsuccessful on his application for parenting time. Success was divided. The parties shall bear their own costs of the motion.
Carter J.
Date: October 18, 2022
Released: October 18, 2022
COURT FILE NO.: FC-21-96
DATE: 2022/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RE: Marie Botros, Applicant
AND:
Melad Botros, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Angela Daniels, for the Applicant
David Sinclair, for the Respondent
ENDORSEMENT
Carter J.