Court File and Parties

COURT FILE NO.: FC-22-1587 DATE: 2023/03/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hiba Makieh, Applicant -and- Alain Bou Saab, Respondent

BEFORE: Justice T. Engelking

COUNSEL: Yasmin Abbadi, for the Applicant Gonan Snir, for the Respondent

HEARD: March 14, 2023

Motion Endorsement

[1] On January 10, 2023, a Case Conference was held before Justice Carter, who indicated in his endorsement: “The parties were unable to agree on parenting time for the father. Given that he is not currently seeing the children, a motion for parenting time should be heard within the next 30 or 45 days, if possible.”

[2] The motion was brought and came before Justice Blishen on February 7, 2023. She declined to hear it both on the basis that the Applicant was short served with the motion and that the Respondent had failed to file his materials in CaseLines, as he is obligated to do by the SCJ Notice to the Profession dated August 2, 2022. Justice Blishen did, however, make a temporary order on consent of the parties for the Respondent to have parenting time with the children of the marriage, Johnny and Jenna, on Saturdays. Justice Blishen’s temporary order included the following provisions on and interim, interim and without prejudice basis:

2. Mr. Abdul Rahim Makieh shall pick-up and drop off the children to and from the Respondent father’s parenting time. Mr. Abdul Rahim Makieh shall monitor the visits by checking-in occasionally, approximately 3-4 times per visit at his discretion.
3. The Respondent shall have parenting time at his residence. Should he change the locations of the visit or take the children to an activity, he shall inform Mr. Abdul Rahim Makieh by test message in advance. Respondent shall not change the location without advance notice or consent.

[3] Justice Blishen’s order also indicated at paragraph 4 that “the parties may return to a motion within 30 days if the parenting time issue is not resolved.”

[4] The Respondent returned the motion to today. On March 6, 2023, the Applicant served the Respondent with a Notice of Motion seeking other relief, including a temporary order for sole decision-making authority over the children. The Respondent objected to the Applicant’s motion being heard. Although the Respondent was properly served with the Applicant’s motion, based on the endorsements of Justice Carter and Justice Blishen referencing only the father’s parenting time as the subject of the motion, I declined to hear the Applicant’s motion.

[5] The Respondent seeks a temporary order for, among other things, parenting time every weekend for four weeks, after which his parenting time will progress to week about.

[6] The Applicant opposes the motion and seeks a continued order of more limited “supervised” or at least “monitored” parenting time by the Respondent.

[7] The parties commenced living together in February of 2013. The Applicant had three children from a previous marriage, Youssef, Raneem and Reem, now 22, 17 and 14 respectively. The parties married on January 31, 2015. Johnny was born in January of 2017 and Jenna was born in April of 2018.

[8] The Respondent states that in September of 2017, Johnny started school at St. Anthony School, a private school related to the Lebanese community and culture. While the Applicant confirms that Johnny was in a private school, she indicates that the Respondent has the name of the school wrong.

[9] On April 12, 2022, the Respondent travelled to Lebanon. Sometime during his absence, the Applicant determined that she wished to separate from him. The Respondent alleges in his affidavits that upon his return in May of 2022, the Applicant refused to allow him to see the children. She had, additionally, moved all his clothes to his car, which was in the driveway of their shared home.

[10] On June 3, 2022, the parties signed a Separation Agreement with respect to financial issues and property division. The date of separation agreed upon by the parties was April 12, 2022. In the Separation Agreement, the Respondent agreed to pay the Applicant $1200 per month in child support and $500 per month in spousal support.

[11] The Respondent alleges that he did not understand the agreement and/or signed it under duress. The Respondent alleges that the Applicant would not permit him to see the children unless he signed the agreement; however, he did so and she still did not permit him to see the children. The Respondent states at paragraph 22 of his February 2, 2023, affidavit that after he retained counsel, he « sent a letter to the Applicant voiding the Agreement. »

[12] The Applicant denies these assertions by the Respondent, indicating that the June agreement had nothing to do with decision-making authority or parenting time, and that it was strictly an agreement having to do with the parties’ financial issues.

[13] The Respondent alleges that the Applicant removed Johnny from St. Anthony School for the 2022/23 school year and registered him in a public school. The Respondent alleges that this was without consultation with him or his consent. The Applicant denies that the change of school was without the Respondent’s knowledge. She indicates that she advised the Respondent that she cannot afford to send Johnny to a private school, and she does not want to get stuck paying for same, as the Respondent has not been paying any support to her, notwithstanding his agreement to do so in June of 2022, The Respondent alleges that the Applicant also ceased bringing the children to their Maronite Catholic Church.

[14] In July of 2022, the Respondent was charged with one count of assault against the Applicant relating to an incident which she alleges occurred in 2016. His undertaking included a prohibition from communicating with the Applicant, although not with the children. In October of 2022, the Respondent was also charged with three counts of failing to comply with an undertaking.

[15] The Respondent alleges that the Applicant did not permit him to have any parenting time from his return from Lebanon in April of 2022 until the Temporary Order of Justice Blished dated February 7, 2023. This included over Christmas, when family members were requesting to have the children for a Christmas party at which the Respondent would be present.

[16] Pursuant to Justice Blishen’s order, the Respondent began having parenting time with the children with the involvement of Mr. Abdul Rahim Makieh, on February 11, 2023. Mr. Makieh sworn an affidavit on February 29, 2023, in which he described the children’s visits with their father on February 9 and February 11, 2023. The children were happy to see the Respondent, were comfortable with him and “had a hard time to leave” on February 11. They expressed to Mr. Makieh wanting to see the Respondent again after the February 18 visit.

[17] The Respondent relies on three video recordings in support of his position that his parenting time should be expanded. The first is a recording of the Applicant burning a small photo of his at what appears to be a kitchen sink. The Respondent suggests that this was done in the presence of the children, as children can be heard in the background. The Applicant states in her affidavit that she had read on a site that burning a photograph of an ex-partner can assist one in moving on. Additionally, she did not send the photo to the Respondent, but to two friends. It was, thus, not intended for the Respondent. Putting aside for the moment the admissibility of such a video, based on either its’ relevance or the question of whether its’ prejudicial value outweighing its’ probative value, I do not agree that the act demonstrably took place “in front of” or “in the presence of” the children. In fact, I conclude that it did not. The sound of children is in the distant background, the Applicant does not speak during the act, and there is absolutely no evidence that either Johnny or Jenna are seeing it or are anywhere near it. It is, in my view, entirely irrelevant to the decision this court needs to make.

[18] The other two videos are of the ending of the visits of February 11 and 18, in the first of which Jenna tells her father she wants to stay and in the second of which Johnny tells his father that his mother said he can’t take home toys from the Respondent’s house to his house. Frankly, they add nothing to the affidavit of Mr. Abdul Rahim Makieh. Based on Mr. Makieh’s observations and the videos, the children appear to be comfortable with the Respondent during their short visits with him.

[19] The Applicant’s evidence is that she has always been the primary parent to the children and has made all arrangements and appointments for them. The Respondent did travel with Johnny in 2020 and with both children in 2021 to Lebanon, but otherwise, the children have been in her primary care while the Respondent has historically been responsible for supporting the family. Many of the Applicant’s exhibits to her affidavits support this, including certain admissions by the Respondent to the CAS contained therein.

[20] The Applicant has also made allegations of family violence perpetrated by the Respondent, not only with respect to herself, but to and in the presence of Johnny and to her elder children.

[21] The Respondent denies any use of violence against the Applicant and at paragraph 16 of his affidavit sworn on February 2, 2023, states: « However, in order to gain an advantage in this family matter, she recently filed a complaint with the police. »

[22] In fact, there has been a history of allegations of violence by the Respondent against the Applicant or her elder children, which includes CAS file openings in February 2013, May 2013, February 2021 and April/May 2022, and a report made by the Applicant to her family physician in July of 2016. Indeed, at the end of its investigation in 2022, the CAS concluded as follows:

Verification Decision

Code 33F is verified. The children have been at risk of physical harm due to domestic violence. Alain is reported to throw things and broke a glass door, presenting a risk the children would be physically harmed.

Code 33H is verified. The children are at risk of emotional harm due to domestic violence. The children have experienced Alain yelling at Hiba.

Code 11F is not verified. Physical harm toward the children by Alain could not be verified.

[23] The Respondent’s propensity towards anger or violence are also supported by an affidavit from the Applicant’s now adult child, Youssef, and a letter from the notary who assisted the parties with their Separation Agreement in June of 2022, Sarmad Laith. Additionally, the Respondent currently stands charged with one count of assault against the Applicant and three counts of breaches of his undertaking. I cannot ignore this.

[24] When determining a child’s best interests, clause (j) of subsection 24(3) of the Children’s Law Reform Act requires the court to consider:

(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;

[25] Subsection 24(4) provides that in considering family violence under subsection (3)(j), the court is to take into account the particular features of the family violence alleged.

[26] In light of these considerations, I cannot come to the conclusion that it is in the best interests of the children to have extended weekend parenting with the Respondent over four weeks with a view to then moving to a week about schedule. I see no basis on the evidence before me to change the parenting schedule so drastically on a temporary basis.

[27] There is no doubt that the Respondent should have meaningful parenting time with the children. They appear comfortable with him, physical harm pertaining to them has not been verified by the CAS, and the separation of the parties should serve to lessen the risk of exposure by them to domestic violence or adult conflict. I accept, however, based partially on the Respondent’s own admissions, that the Applicant has been the fulltime parent to these children since they were born, and I do not find that it would be in the best interests of the children to disrupt that at this stage.

Order

[28] For the reasons outlined above, there shall be a temporary order as follows:

1. Commencing March 25, 2023, the Respondent shall have parenting time with the children, Johnny Bou Saab, born January 31, 2017, and Jenna Bou Saab, born on April 9, 2018, every second weekend from Saturday at 10:00 am to Sunday at 6:00 pm.
2. Commencing May 5, 2023, the Respondent shall have parenting time with the children every second weekend from Friday after school/daycare to Sunday at 6:00 pm.
3. Commencing March 29, 2023, the Respondent shall have parenting time with the children every Wednesday from after school/daycare to 7:00 pm.
4. If the children are not in school or daycare, the Respondent’s parenting time shall commence at 4:00 pm.
5. The Respondent shall be responsible for picking up the children from their school or daycare at the commencement of his parenting time. If the children are not in school or daycare, and for so long as a no contact condition remains in place, Mr. Abdul Rahim Makief shall transport the children to or from the Respondent’s care. At such time as a no contact condition ceases to remain in place, the parties shall agree on an appropriate neutral and public location for the exchange of the children, or on a third party continuing to assist with the exchanges.
6. The Respondent’s parenting time with the children shall be unsupervised. Mr. Abdul Rahim Makief is no longer required to conduct occasional check-ins on them. Mr. Makief’s role shall be limited to that he may have in driving the children to and from the Respondent’s parenting time, as set out above, or as further agreed to by the parties.

[29] As this motion was restricted to the Respondent father’s request for an order regarding parenting time, I have made no order with respect to the issue of child support. However, given that the children are and will remain primarily in the care of the Applicant, I will say that unless or until the Separation Agreement entered into by parties on June 3, 2022, is set aside or varied by the court or renegotiated by the parties, it remains in full force and effect, notwithstanding the Respondent purporting to “void” it by letter. It would behoove the Respondent, therefore, to abide by the terms to which he agreed pending some further order being made.

Costs

[30] The parties’ success on this motion has been mixed. The Respondent has not received the relief he requested. However, he did obtain an order for unsupervised and more expansive parenting time. The Applicant did not obtain an order for supervision of the Respondent’s parenting time but was successful in defending against his claim for shared parenting on a temporary basis. This being the case, I find that there shall be no order of costs for the motion.

Justice T. Engelking Date: March 21, 2023