Court File and Parties

COURT FILE NO.: FS-22-31596 DATE: 20221223 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tasnim Rezwan, Applicant AND: Warida Rezwan,

BEFORE: Brownstone J.

COUNSEL: Stefan Juzkiw, for the Applicant Ryan Manilla, for the Respondent

HEARD: December 13, 2022

ENDORSEMENT

[1] Two inter-related motions were before me on December 13, 2022, seeking relief in respect of parenting time. The mother’s notice of motion also claimed relief in respect of temporary sole decision-making authority, but the motion itself focused on parenting time.

[2] The parties were married on May 14, 2016 and separated on May 24, 2022. They have one daughter, A, who is five years old.

[3] The parties lived with the applicant father’s parents in Brampton. They have separated and reconciled twice in the recent past. The first separation was in April 2021, the second in March 2022. After each separation, provision was made for parenting time of A, first in the form of an order made by McGee, J. on April 15, 2021 (the “2021 Order”) and second, by way of minutes of settlement dated March 3, 2022 (the “2022 Minutes”)

[4] On May 24, 2022, the respondent mother left the home with A. Neighbours who witnessed the circumstances surrounding her leaving called the police. Charges against the father are outstanding. There is a no-contact order.

[5] The mother moved with A to Scarborough, where they now live with her extended family. The father has not seen A since May 24, 2022. He seeks a regular parenting schedule with A, including weekends and overnights.

[6] The mother opposes this and asks that he be limited to supervised parenting time and virtual parenting time. In addition, she seeks temporary primary residence and an order that the father not attend A’s school.

A’s relationship with her parents

[7] A is clearly very important to both parents. I accept as genuine the father’s desire for an ongoing positive relationship with her. He is very concerned that the mother is alienating him from his daughter. There is some dispute between the parties as to who provided most of A’s care when they lived together. Regardless of that, I find that both parents are attached to and care deeply for A.

The father’s conduct

[8] There are very few facts upon which the parties agree.

[9] The mother has raised concerns about the father’s conduct. In response, the father cautions against weaponizing criminal allegations in family law proceedings.

[10] The father has a criminal conviction for mischief in 2018. The mother states there were other episodes of violence, particularly when she tried to leave the marriage. There is evidence in the form of a medical chart that in July 2021 the father’s conduct at the mother’s doctor’s office was concerning enough to staff there that they called 911. The notes state that he “almost attacked” staff, that he “was behaving very threatening and intimidating”. They go on to state that the wife was very scared of him too, and that the staff was concerned for the wife’s safety. The next day there was another episode and the clinic again called police. In August 2021 the clinic advised the mother they could not treat her anymore due to the father’s behaviour toward staff.

[11] A few months before this, in April 2021, the father overheld A, and the mother had to bring an urgent motion for her return. The father’s position is that the fact that the mother obtained an urgent order in the past shows that she knows how to use the court system should that situation recur. I find that submission troubling. First, an urgent court order for a holdover should be a rare occurrence. It should not be viewed as a routine way in which to ensure compliance with a court order. Second, I find it minimizes the father’s conduct in overholding A.

[12] On the day the mother left the marriage it was not the mother, but a neighbour who witnessed the incident, who telephoned 911. There is no evidence that violence has been directed toward A; however, A did witness the occurrence on May 24, 2022. The father states that there is no history of domestic violence.

[13] I acknowledge that, too often, criminal charges form part of family law proceedings. I agree with the father that the criminal justice system should not be weaponized and used in family law proceedings for strategic purposes to gain leverage. I do not believe that to be the case here, based on the evidence before me as summarized above. The father has engaged in concerning conduct, some of which A has been witness to.

A’s schooling

[14] A started attending school in Scarborough close to the mother’s house in September, 2022. According to the mother, she removed A from school because the father had contacted the school on a number of occasions to advise he would take A out of school without the mother’s consent. The mother provided correspondence from the school principal that indicates the father would have the right to contact A at school, visit the school, and have access to A should he arrive at the school. The father says that the mother fabricated the alleged threat to take A out of school. I agree there is no direct evidence from the principal that the father threatened to remove A from school. Clearly, the mother is concerned about this happening, whether that concern is founded only on the April 2021 holdover or on that incident as well as discussions with the school. She says she has asked the father to agree not to attend the school or remove A from the school and he has not agreed.

[15] The result of the current situation is that A has not been in school since October of 2022. This is clearly not in A’s best interest.

[16] While the mother’s concerns may be exaggerated, I find that the father minimizes his conduct – suggesting that the doctor’s notes are fabricated, that the mother is using the May 24, 2022 incident as a weapon when it was the neighbour who called the police, and stating that the mother knows how to come to court should another holdover occur.

The prior orders

[17] The father places great weight upon the 2021 Order and the Minutes of Settlement, arguing that they provided for equal parenting time and should be restored.

[18] The 2021 Order, which the mother obtained as a result of the holdover, provided that A would be primarily resident with her mother on an interim and without prejudice basis. The father would have parenting time for 48 hours every other weekend, and for 24 hours mid-week, also on an interim and without prejudice basis. An order for police involvement was made, in the event the father failed to transfer care to the mother.

[19] The 2022 Minutes provided the father with 72 hours of parenting time (Thursday to Sunday) weekly except for the first week of each month, and after-school parenting time until 6:00 pm once a week. The police or CAS were not to be involved other than in the case of emergency. The mother’s evidence is that CAS and other emergency services have been called numerous times by the father. It appears that some of those occasions post-date the 2022 Minutes.

[20] I note that this was not a motion to enforce the 2021 Order or the 2022 Minutes. Since the 2022 Minutes, the parties reconciled and then separated in circumstances that the mother says (and a neighbour appears to have believed) was violent, to which A was a witness. I find that the Orders are evidence of the parties’ views and intentions at a time before May 2022. I do not find that, in these circumstances, failure to abide by the 2022 Minutes demonstrates bad faith, as the father argues. The mother was entitled to change her views given the May 24, 2022 incident viewed in the context of the past behavior. In any event, the only consideration for the court is the child’s best interests.

Child’s best interests

[21] The father cites the maximum contact principle in the AFCC-O Parenting Plan Guide, and asks for a return to what he considers the status quo of three weekends per month, Thursday to Sunday. The mother states that the status quo is no contact, and to the degree the status quo is interrupted it should be only for supervised access.

[22] The father acknowledges that the maximum contact principle is “mandatory, but not absolute” and must be respected “to the extent that such contact is consistent with the child’s best interests.” (Gordon v. Goertz 1996 191 (SCC), [1996] 2 SCR 27; Divorce Act RSC 1985, c. 3, s. 16(6)).

[23] Indeed, the court’s only concern is A’s best interests. When making the determination of what is in her best interest, the factors that are to be considered are set out in the Divorce Act as follows:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(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 their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[24] Applying these factors to the facts outlined above, I find that it is in A’s best interest to be in school, regularly and consistently. In addition to her relationship with her mother and her mother’s extended family, it is in A’s best interest to have a loving relationship with her father and her paternal grandparents, Hameed v Hameed, 2006 ONCJ 274 at para 22. It is in her best interest not to be exposed to aggression or violence.

[25] I am mindful of the caution in s. 16(5) above about the use to be made of past conduct in this decision. Looking at the evidence about the father’s past conduct as a whole, culminating in the incident of May 24, 2022, leaves me with concerns about aggression to which A may be indirectly exposed. Her needs for stability, safety, physical, emotional and psychological well-being require her to have time with her father that is, for the time being, supervised by the paternal grandparents. It is also worth remembering that she is only five and has not seen her father since May 2022. Having some additional virtual contact and having other family members present for their physical parenting time will also assist with the transition to restoring her relationship with her father. In addition, A needs to make a transition to full-time in-person school. It is not in her interest at this time to have overnights in Brampton on weeknights.

The Transportation issue

[26] The mother asserts that she does not drive. The father drives and maintains the family car. She states that she has limited finances, made worse by no child support having been paid to date. She states that her father uses his vehicle for his business and cannot be counted upon to do the driving for A’s visits with the father. Therefore, the father shall pick the child up. Return of the child shall take place either by the father dropping off the child to the mother’s family (given the no contact order) or by the mother or her family picking A up by taxi or rideshare at the father’s expense.

Disposition

[27] Therefore, I make the following orders:

a. Applicant shall have parenting time with A every other weekend, from pick-up at school on Friday until Sunday at 4:00 p.m. Such parenting time shall occur under the supervision of one or both of his parents until changed by agreement of the parties or further order of the court;

b. Applicant shall pick the child up at High Castle Public School on the Fridays he has parenting time with her. Return of the child shall take place either by the Applicant dropping off the child to the respondent’s family (given the no-contact order) or by the respondent picking A up by rideshare or taxi at the father’s expense;

c. Applicant shall not attend High Castle Public School except to pick up A on those Fridays that he has weekend parenting time with her. For that pickup he shall be accompanied by one of his parents or another mutually agreeable third party;

d. Applicant shall have virtual parenting time, arranged through both parties’ extended family members given the no-contact order, three nights a week for 20 minutes each time;

e. A shall return to in-person classes at High Castle Public School as of January 3, 2023;

f. Applicant shall have access to all medical and school information about A; and

g. Neither party shall disparage the other to, or in front of, A.

[28] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at Linda.Bunoza@ontario.ca. The Applicant may have 14 days from the release of this decision to provide his submissions, with a copy to the Applicant; the Applicant a further 14 days to respond. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Brownstone J.

Date: December 23, 2022