Court File and Parties
Newmarket Court File No.: FC-22-1252-00 Date: 2023-03-09 Ontario Superior Court of Justice
Between: Tina Mirfakhraie, Applicant And: Shervin Mizani, Respondent
Counsel: Meysa Maleki and Maria Belfon, for the Applicant Marlene Kazman, for the Respondent
Heard: March 1, 2023
Reasons/Ruling
Jarvis J.
[1] This ruling involves temporary parenting arrangements for a two-year old daughter of the parties (“VM”) who has primarily resided with her mother (“the applicant”) since her parents physically separated in November 2021. The respondent (“the father”) seeks a triaged increase in parenting time leading to a shared parenting regime. The mother is not opposed to an increase, in principle, but disagrees with the timing of the increases, their scope and the outcome that the father proposes. In January 2023 the parties consented to a s. 30 Children’s Law Reform Act (“CLRA”) assessment but that process has not formally begun and, once begun, is not expected to conclude until mid-fall of this year, about eight to nine months from now, due to the assessor’s schedule.
[2] Currently the mother only permits the father to have nine hours parenting time a week, no overnights.
Preliminary Matters
[3] Prior to argument the parties agreed to have paragraph three of the father’s reply affidavit sworn on February 22, 2023, struck as being non-compliant with Family Law Rules (“FLR”) R. 14(20) restricting reply evidence, except for the last sentence. So ordered.
[4] The father objected to the court admitting an “information and belief” affidavit from a clerk in the office of the mother’s lawyer that dealt with her discussions with the mother’s criminal lawyer who spoke about his discussions and an agreement with the local Crown Attorney. While an email exchange between the lawyer and the Crown was appended to the clerks’ affidavit, there is no explanation from the mother why her criminal law counsel could not provide his own affidavit. The court gives little weight to this evidence. [^1]
Procedural Background and Overview of Parties’ Evidence
[5] On January 26, 2023, Bird J. held a lengthy case conference. The issues canvassed involved disclosure, decision-making, parenting time, ownership and the sale of property, equalization of the spouses’ net family properties, and child and spousal support. Leave was given to the father to bring this motion for increased parenting time returnable as soon as that could be arranged with the court. The mother was given leave to bring a support motion but not until after disclosure had been completed.
[6] This case represents what may be described as “high conflict” over the parenting issue.
[7] Bird J. noted in her endorsement that “both parties seem more interested in calling the police on each other than they are in resolving their issues. If they persist in the course of conduct they have engaged in thus far, they will be frequent flyers in court and will spend the entirety of their daughter’s childhood arguing with each other.” Having read the parties’ affidavits, and heard the submissions of counsel, this court views what Bird J. posited as an understatement.
[8] The parties have had extensive involvement with the local child protection agency (the “Society”). Each has used Society notes to buttress their allegations and impugn the other’s credibility.
[9] Both parties allege inappropriate parenting of the child by the other, including injuries to the child while in the mother’s care.
[10] Both parties allege family violence by the other.
[11] Both parties have been involved in criminal charges involving the other (and members of the mother’s family), none of which has led to a criminal conviction, some of which charges have not been finally resolved.
[12] Both parents have involved third parties, such as the police, the Society, a supervised access facility and the child’s pediatrician to support their position that they, not the other parent, have the child’s best interests uppermost in their minds. They have tried to weaponize the Parenting Plan Guide of the Association of Family Child and Conciliation Courts to support their dispute with the other’s parenting proposal, a first in this court’s experience.
[13] Both parents have made serious allegations about the other’s credibility and invited the court to conclude that the other parent is either a liar or acting maliciously.
[14] The mother (and/or members of her family) at one time placed tracker devices on the father’s car (since removed). The mother disputes the inference to be drawn from this event.
[15] Exchanges of the child are now taking place inside a police station.
[16] Both parents are highly educated and intelligent people.
[17] Both parents should be ashamed of themselves.
[18] A dispute involving a child’s best interests should be about addition, not subtraction.
[19] This child deserves better from her parents than they have been acting. Surprisingly, it does not appear that her parents’ behaviour is harming her at this time but she is still very young.
[20] Despite convincing themselves otherwise, neither parent is acting in their daughter’s best interests. They dislike, possibly even hate, the other more than they love their child.
[21] And despite this court indicating to the parties before argument of the motion that it was unimpressed with their conduct and that neither would likely be pleased with what the court was inclined to order, giving them some direction on what they might wish to consider and an opportunity to reflect, the parties opted to proceed with argument, as is their right.
[22] These are just some of the court’s concerns about the parties and their evidence:
(a) The mother alleges that the father meets several of the factors of pathological child alienation listed in L. (A.G.) v. D (K.B.), 2009 ONSC 943, at para. 92. Table 15 referenced in that trial report lists fifty-eight factors. The examples provided by the mother are that the father: removed all pictures of the mother in his home; has persistently vilified the mother and the members of her family as dangerous and all suffering from unspecified mental health challenges (none verified) and; resisted enrolling in a co-parenting course recommended by the Society, also insisting that there was no point in communicating with the mother and members of her family (this was before there were criminal charges) because “they do not tell the truth anyway”. The father declined the mother’s suggestion to update him about the child, insisting that be done through the Society. There are other examples, most of which, prima facie, are captured by the Table 15 factors;
(b) The father alleges that the mother and her family have tried to alienate the child from him, citing as examples the mother trying to have the child’s pediatrician support her breastfeeding objection to overnight parenting time (the doctor was unsupportive) and sarcastically refusing to accept e-transferred child support (inadequate in her view);
(c) Equally as concerning are the mother’s allegations, often repeated, that the father suffers from undiagnosed mental health and substance abuse challenges, again none verified by the Society;
(d) The mother is critical that if the father was as concerned about the restrictions on his parenting time as he has told the court then he should have either brought an urgent motion for, or agreed, well before the January 2023 conference to an assessment;
(e) In her Application under Important Facts supporting her other claims (paragraph 4) the mother claimed that the father’s “abusive conduct dominated the parties’ relationship” and she set out in her Form 35.1 Affidavit of Custody and Access what she described were particulars of the father’s “physical, mental, verbal, psychological, and sexual violence”. In a Society report dated July 26, 2021, the York Regional Police reported that the mother had told the investigating officer that the parties had been “together for ten years, there has never been any abuse.” Despite this report accompanying the father’s motion affidavit (not the reply), the mother never addressed the stark inconsistency in her representations to this court and the authorities about domestic abuse; and
(f) It was the father who insisted that exchanges of the child take place inside a police station because he refused to contribute to sharing the cost of a supervised access facility. So cost trumps VM’s best interests? The father’s September 14, 2022, financial statement discloses an income in excess of $55,000 and a net worth of over $550,000. This is child-focused parenting?
[23] The litany of each party’s description of the human and parenting deficiencies of the other (and their family members) is tireless and merits no further comment. Bottomline is that what goes around, comes around: treat the other parent with disrespect and that’s what you will get in return.
Disposition
[24] The father seeks a gradually increasing parenting schedule that would result in the child spending three overnights a week with him whereas the mother proposes that the overnights occur bi-weekly starting in mid-April then increasing to weekly in mid-June 2023.
[25] Accordingly, the following is ordered:
(1) Paragraph three of the father’s affidavit sworn on February 22, 2023, is struck, except for the last sentence;
(2) By March 14, 2023, the parties shall agree upon a supervised access facility (“SAF”) as a location for the exchange of the child, the cost for which shall be equally shared by the parties;
(3) Until further Order, the parties shall share decision-making for the child;
(4) The parties shall communicate through Our Family Wizard or other comparable service only on matters relating to the child, the cost for which service shall be equally shared. The parties will be expected to act reasonably and respond in as timely a manner as the circumstances demand;
(5) On a temporary and without prejudice basis, pending the results of the CLRA s. 30 parenting assessment by Dr. Shely Polak, VM shall be in the mother’s primary care and shall be in the care of the father as follows:
Stage 1: Commencing March 13, 2023 (a) Sundays 11:00 a.m. – 7:00 p.m.; (b) Wednesdays 5:00 p.m. – 8:00 p.m.; and (c) Thursdays 5:00 p.m. – 7:30 p.m.
Stage 2: Commencing April 10, 2023 (a) Every Friday from 5:00 p.m. (overnight) – Saturday 1:00 p.m., exchanges at the appointed SAF, until VM is in daycare when pick up shall be at the daycare; (b) Every Sunday at 1:00 p.m. – 7:00 p.m. The transfers shall take place at the SAF; and (c) Every Wednesday from 5:00 p.m. – 8:00 p.m. The transfers shall take place at the SAF until VM is in daycare. The father will pick her up at daycare.
Stage 3: Commencing May 29, 2023 (a) Every Friday – same as above; (b) Every Sunday from 1:00 p.m. (SAF transfer location) through drop off on Monday 9:00 a.m. at daycare; and, (c) Wednesday – same as above.
Stage 4: Commencing June 26, 2023 (a) Friday – same as above; (b) Sunday – same as above; and (c) An additional overnight a week (likely a Wednesday) as the parties can agree.
(6) Both parents shall have access to VM’s health records from any physician or other healthcare professional treating the child and any other caregiver. On or before March 15, 2023, the mother shall provide to the father a list of all healthcare and other non-family caregivers for the child (“the caregivers”). The father shall prepare Directions authorizing the caregivers to communicate with him, and obtain information about the child, on the same basis as with the mother. The signed authorizations shall be returned to the offices of the father’s lawyer within seven days of their delivery to the office of the mother’s lawyer;
(7) The mother shall be the custodian of the child’s OHIP card and passports. The card shall travel with the child;
(8) Brayden Supervision Services Inc. (“Brayden”), or such other supervision facility that provides supervision/parenting time facilitation services, shall facilitate parenting transfers at the Hillcrest Mall in Richmond Hill in front of Indigo Bookstore (when the transfer does not take place at daycare), with the parties equally sharing those costs of the SAF services;
(9) Neither party shall arrange or schedule a healthcare or other therapy appointment for the child without notice to the other parent. As the mother is the primary residential parent, she shall initiate any required appointment;
(10) Neither party shall disparage the other parent nor allow third parties to disparage the other parent in the presence of the child. A parent may be held accountable for the conduct of third parties who disregard this term of the Order;
(11) Neither party shall remove the child from the Province of Ontario without an Order of this court;
(12) Neither party shall videotape or audiotape parenting transfers or permit third parties known to them to do so either;
(13) Neither party shall post on social media platforms anything that identifies the child or that comments on or deals with the issues in these proceedings that would identify the child or the parties; and
(14) If the assessor determines that the terms of this parenting Order should be varied before a final report is concluded or if a final report is delivered and the anticipated time to a likely final hearing is viewed by the assessor as being prejudicial to the child’s best interests, leave is granted to the parties to move this court for a review of the parenting terms of this Order.
[26] Each party has filed with the court a Bill of Costs. In the mothers’ case, the account is detailed and provides a description of the service date and time spent of the lawyers (three) and clerk, their hourly rates and experience. On a full indemnity basis, the account totals $20,819.12 and, on a partial indemnity basis, the account totals $13,948.81, both inclusive of HST, nothing for disbursements. The father’s Bill of Costs is similar in format. Two lawyers worked on the file. Full indemnity is $16,591.90 and partial indemnity is $9,985.87, both inclusive of a modest disbursement and HST.
[27] Each party submitted a FLR R. 18-compliant Offer to Settle, neither of which mirrored, or was as comprehensive, as this ruling. The mother sought an Order that the child have less increased time over a more gradual period than the father wanted and he wanted more time sooner than the mother was prepared to give. The father’s Offer, unrealistically for a temporary motion where an assessment will soon be underway, wanted an equal time parenting disposition, essentially a final trial outcome, by July 3, 2023. Each party succeeded in either striking a portion of the other’s affidavit (mother successful) or persuading the court in giving little weight to certain evidence (father successful). The mother’s Offer made no reference to sharing the SAF costs; the father’s Offer did.
[28] Taking into account the applicable considerations under FLR R. 24 and this court’s concern that an award will only encourage further conflict between the parties, no Order for costs is made. Surely the parties have better use for over $37,000.
Released: March 9, 2023 Justice David A. Jarvis