COURT FILE NO.: FS-20-14671 DATE: 20230517 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Manna Begum Applicant – and – Luke Klippenstein Respondent

Manna Begum for herself Luke Klippenstein, for himself

HEARD: May 8 through 12, 2023

FL Myers J

Reasons for Judgment

This Proceeding

[1] This is a high conflict case. The principal issue in this trial was whether parenting responsibilities and authority over the parties’ six-year-old daughter would be shared or vested in one party alone.

[2] Equalization and arrears of spousal and child support were also in issue at the outset of the trial. Mr. Klippenstein acknowledges owing arrears of support. However, he submits that his support obligations are dwarfed by the equalization payment that he is due by Ms. Begum.

[3] Ms. Begum does not seek ongoing child support or spousal support. She recognizes that she has successfully become self-sufficient. The child will be living with each parent 50% of the time. Both parties agree that there is no need for ongoing child support in the circumstances. They agree as well to share s. 7 expenses in proportion to their annual incomes. While Mr. Klippenstein makes considerably more income than Ms. Begum at the moment, I am satisfied that their financial agreement provides reasonable support for their child. Even if setoff child support was due from Mr. Klippenstein to Ms. Begum, the equalization payment due the other way would provide many years of set off in any event.

[4] Ms. Begum presented very little evidence on financial matters. In closing argument, Ms. Begum was content for whatever arrears she may have proven to be set off against the $98,000 that remains in trust for the parties from the sale of their home. Mr. Klippenstein submits that he is due about $270,000 as an equalization payment. Even taking support arrears at the highest possible amount asserted by Ms. Begum, a setoff leaves him owed far more than the $98,000 that is being held. He seeks the release of that money to him in full satisfaction of his entitlement to any excess.

[5] At the end of the trial, I granted the parties a divorce with immediate effect. Both waived any appeal rights they might have had on the divorce issue. In light of the degree of conflict between the parties, there is no doubt that a divorce was appropriate. Moreover, it seemed to me that each of the parties breathed a sigh of relief when they realized they were divorced.

[6] As the trial focused on the parenting of the child, I will deal with that in the main. In view of the amounts in issue, I need to make very few findings on the financial issues. So, I will deal with that last below.

Parenting

[7] The Divorce Act, RSC 1985, c3 (2nd Supp) provides that in determining parenting issues, I am to consider only the bests interest of the child. The relevant provisions say:

Best interests of child

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.

Primary consideration

(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.

Factors to be considered

(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.

Factors relating to family violence

(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.

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

Parenting time consistent with best interests of child

(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.

[8] The child is a six-year-old girl. She resides primarily with her mother although the father’s parenting time has climbed to nearly 50/50.

[9] By all accounts, the child is healthy and happy with one big proviso. Mr. Klippenstein says that the little girl suffers some emotional distress concerning the parties’ separation and, especially, concerning his new spouse. Mr. Klippenstein submits that Ms. Begum is engaged in negative gatekeeping that is preventing the child from accepting that she has two happy families instead of one unhappy family.

[10] Mr. Klippenstein wants the child to have access to therapy or professional input to help her adjust and cope with the vitriol between the parents. Ms. Begum says that the child is happy with her and in school. Ms. Begum has educated herself in how to manage the child’s emotions. Therapy, she submits, will expose the child to trauma. It is the parents who need to find a way to communicate and that will then solve any issues for the child (if any exist).

[11] The parties engaged Mr. Howard Hurwitz to conduct a s. 30 assessment. I have the benefit of his report and having heard his oral testimony. Interestingly, his report was concluded in late 2021. The evidence that I heard from the parties before hearing from Mr. Hurwitz dealt with many matters that occurred later and were not before Mr. Hurwitz. Yet his observations fit to a “T” what I heard in the courtroom and read in the documentary evidence.

[12] Before discussing Mr. Hurwitz’s observations and recommendations, I will provide some history to set the scene. I am by no means reciting all of the evidence that was before the court. There was much to and fro over minor points that do not affect parenting rights and responsibilities except to the extent that the parties could not agree on even the littlest things. I will recite only so much as is needed to help understand my conclusions.

The Parties’ Stories

[13] The parties met at work in Calgary, Alberta in 2015. Ms. Begum worked directly under Mr. Klippenstein.

[14] Mr. Klippenstein grew up in a Mennonite family in Alberta. His parents lived in Edmonton when the parties were in Calgary.

[15] Ms. Begum is Bengali. Her family is largely in Toronto. They practise Islam.

[16] The parties married on April 3, 2016. Mr. Klippenstein converted to Islam and immersed himself in Bengali culture to fit in with Ms. Begum’s family.

[17] Mr. Klippenstein’s family was less accepting. He was very critical of Ms. Begum for posting a picture on social media of the two of them in full Islamic garb while on a pilgrimage to Mecca. His family did not know of his conversion or the extent of his commitment to Islam at that time.

[18] Mr. Klippenstein and his father do not have much of a relationship. I do not know if it is due to the marriage or otherwise. But Mr. Klippenstein’s father has never met or spoken to his granddaughter.

[19] The parties’ daughter was born on February 3, 2017. Ms. Begum felt very isolated in Calgary during her pregnancy. She had expectations of receiving active support from Mr. Klippenstein’s family. They did not share her view of the role of in-laws in another city.

[20] Ms. Begum told a nurse of her feelings of isolation and about frequent arguments with Mr. Klippenstein while they were alone in Calgary. The nurse reported Ms. Begum’s concerns to the Children’s Aid Society. Ms. Begum assured the CAS that she was safe with Mr. Klippenstein and the matter was closed. According to contemporaneous CAS notes in evidence, Ms. Begum told the CAS, “I am perfectly safe and very happy: It is you guys who is making me unhappy:"

[21] While Ms. Begum was still pregnant, the parties agreed to move to Toronto so she could be supported by her family. Mr. Klippenstein sold his property in Alberta and bought a residence here with Ms. Begum’s approval.

[22] The parties were very close with Ms. Begum’s family. The family accepted Mr. Klippenstein warmly. He speaks very highly of them. Ms. Begum’s niece and a close family friend both testified at the trial that Mr. Klippenstein was a practising Muslim as part of Ms. Begum’s family.

[23] Mr. Klippenstein has a temper. Both witnesses saw him angry at Ms. Begum at times. His psychological tests confirm that he spends emotional energy trying to control his temper. He does not always succeed.

[24] Ms. Begum says that Mr. Klippenstein tried to control her through his anger, through a conservative view of the gender roles of Muslim married couples, and by “gaslighting” her. She refers to “gaslighting” as an act of trying to convince Ms. Begum that she was mentally ill by, among other things, making contradictory demands on her. For example, he is alleged to have refused to leave her spending money but then objected to her getting a job. He left her notes that made rude and aggressive demands of her. He threatened to take away her phone. As the relationship soured, he threatened to take away the child.

[25] Ms. Begum submits that Mr. Klippenstein’s “whole case is based on illusions” by Mr. Klippenstein’s persistent gaslighting.

[26] This is a very different picture of Mr. Klippenstein than is painted by his current spouse Ms. Ponte. She is a senior civil servant in the Ontario government. She says that her Mr. Klippenstein is supportive and optimistic. He keeps her feeling good about herself. He has fit in with her family and friends readily. He is calm and avoids conflict. She says he is a peacemaker.

[27] In February, 2019, Ms. Begum’s parents accepted that under Islam, they could separate for up to three months. They allowed Ms. Begum to move in with them.

[28] The parties made efforts to reconcile and did reconcile for some time later.

[29] The parties agree that the final separation was December 8, 2019.

[30] At the outset of their first separation, Ms. Begum was unhappy that Mr. Klippenstein was not seeing their daughter enough. On May 25, 2019, she attended at the parties’ home to discuss their affairs with Mr. Klippenstein. He became angry and told her to leave. She did. But then she returned and brought the child with her.

[31] At some point they were in the kitchen, and Mr. Klippenstein told Ms. Begum to get out. He then used his elbows to push her out of his way and out of the kitchen.

[32] Ms. Begum called the police. They attended (while the child was still there) and they charged Mr. Klippenstein with assault. Mr. Klippenstein says that Ms. Begum was smiling broadly when she called the police. She denies this.

[33] Ms. Begum’s brother was Mr. Klippenstein’s surety. Mr. Klippenstein initially lived with Ms. Begum’s parents while adjusting to his bail conditions.

[34] Mr. Klippenstein’s bail conditions required that he have no contact with Ms. Begum. Nevertheless they were in contact fairly frequently. They sold their property together and bought another for example. Mr. Klippenstein dropped by at will to see the child. The parties agree that they were trying to reconcile during at least a part of this period.

[35] Toward the end of 2019, Ms. Begum’s lawyer insisted that Mr. Klippenstein stop contacting her at his convenience and that he adhere to a schedule for parenting time. In December, Mr. Klippenstein had to go to Alberta to attend his grandmother’s funeral. As he was set to leave, Ms. Begum’s brother called him and told him not to come to the parent’s house as he would be arrested. Ms. Begum had complained to the police that Mr. Klippenstein had contacted her in violation of his bail.

[36] On Mr. Klippenstein’s return from Alberta on January 3, 2020, he was arrested and spent a night in jail for breach of his bail conditions.

[37] Mr. Klippenstein resolved his criminal charges by entering into a Peace Bond. The parties agree that for the next year or so, he scrupulously observed the terms prohibiting him from having contact with Ms. Begum.

[38] In a letter dated January 30, 2020 Ms. Begum had her lawyer advise Mr. Klippenstein’s lawyer that she still wanted to try to reconcile. Mr. Klippenstein was no longer agreeable.

[39] In March, 2020 Ms. Begum agreed to grant supervised access to Mr. Klippenstein. She says she offered him weekend time and then to add weekday access. She criticized him for saying that he then preferred to conduct his parenting time on the weekends. She says his claim that from January to March she limited his access is another act of gaslighting because he turned down time she offered during the week. This misses the point that there is no explanation as to why Mr. Klippenstein did not have parenting time for a significant period and why supervision was necessary.

[40] The parties enshrined a parenting schedule in a court order on April 24, 2020.

[41] On May 23, 2020, Mr. Klippenstein introduced the child to Ms. Ponte. They went swimming together.

[42] In an email to her lawyer on May 24, 2020, Ms. Begum advised that Ms. Pointe had told the child not to like Ms. Begum because she was “different”. She said that Ms. Ponte had laid down on a bed with the child. She said that the child had come home from the visit with filth in her private parts and the child complained that Mr. Klippenstein had pressed hard to try to clean her.

[43] On May 26, 2020, Ms. Begum reported to her family doctor that the child said that Ms. Ponte had licked her tongue. She also said the child told her that her father touched her private parts. The doctor made a report to the CAS and advised Ms. Begum to withhold Mr. Klippenstein’s parenting time. Whether the doctor knew there was a court order for Mr. Klippenstein’s parenting time is not known.

[44] Ms. Begum says she relied on the doctor’s advice and withheld the child from Mr. Klippenstein for ten weeks while CAS did a review. The claims of sexual abuse could not be verified by the CAS after interviewing the child and others.

[45] Ms. Begum restored Mr. Klippenstein’s parenting time in August after the CAS had completed its investigation. Mr. Klippenstein’s lawyer had to threaten to bring a contempt motion against Ms. Begum before she relented.

[46] Ms. Kwon, a case worker from the CAS testified at the trial. She told of the coordinated efforts of the police and the CAS to investigate the allegations of child abuse. They were unable to verify complaints of sexual abuse largely due to the child’s young age. The child was not able to articulate facts with context or details.

[47] The CAS did verify one risk to the child, however. They found that she was at risk of harm due to the parental conflict to which she was exposed. They recommended counselling for the child among other things.

[48] Ms. Begum made or caused to be made at least two other complaints to the CAS alleging sexual abuse of the child by Mr. Klippenstein and Ms. Begum. The CAS did not verify any of the allegations.

[49] In all, Ms. Ponte and Mr. Klippenstein tell of being victimized and terrorized by at least three false complaints of sexual abuse to the CAS.

[50] Ms. Ponte also received a disturbing anonymous text message from a telephone number with a Bangladesh country code. She also received an anonymous Facebook post. Both were nasty attacks on her relationship with Mr. Klippenstein.

[51] A theme running throughout Ms. Begum’s testimony that she was not responsible for events or actions taken. Rather, she just does as she is told by others - including the child. As noted above, she refused to allow Mr. Klippenstein to have parenting time due to the doctor. She says professionals made the CAS complaints and she just documented and reported to them what her child told her. She denies authoring or causing the poison pen messages to Ms. Ponte and oddly suggests they might have been from Mr. Klippenstein’s friends.

[52] In fact, it was Ms. Begum’s reports to assorted professionals that led to each CAS complaint. It is apparent from the CAS files and affidavits as well that Ms. Begum played an active role in pushing each investigation.

[53] Ms. Begum says she simply accepts what the professionals decide. Yet she does not accept the outcomes of the CAS investigations or the recommendations in Mr. Hurwitz’s report. She says she put the child in therapy after the CAS recommended it. But she did not deny that she cancelled the child’s therapy after three sessions when the therapist would not verify allegations of sexual abuse against Mr. Klippenstein and Ms. Ponte.

[54] Ms. Begum continues to insist through the trial that the CAS decisions not to verify a complaint is not the same as finding that the allegations did not happen. That is true. But she is hardly accepting the professionals’ conclusions when she persists in asserting safety concerns for the child after the CAS and others have found otherwise.

[55] During the CAS investigations, the child referred to Ms. Ponte as the “stranger”. She also used a Bengali word that translates either to “stranger” or “crazy stranger” depending on whose translation one accepts.

[56] Ms. Begum does not deny that she refers to Ms. Ponte in that way. She has refused to acknowledge Ms. Ponte as the child’s stepmother. She refuses to meet with or to speak to Ms. Ponte. She says that it is up to Mr. Klippenstein to speak to Ms. Ponte. She fears that until she and Mr. Klippenstein learn how to communicate better, any recognition by her of Ms. Ponte would just lead to greater conflict for the child.

[57] I am very concerned by Ms. Begum’s dehumanization and marginalization of Ms. Ponte. Ms. Begum and Mr. Klippenstein are not going to reconcile. The child has two families not one. Waiting for unwilling parents to develop better communication skills has no bearing on the role of Ms. Ponte in the child’s life. I agree with Ms. Ponte that perhaps with her involved, she might be able to facilitate better communication for all.

[58] Mr. Klippenstein is concerned that Ms. Begum continues to want to reconcile and treat the parties as a family to the exclusion of Ms. Ponte. He points to the fact that Ms. Begum objected when he expressed the desire to bring Ms. Ponte with them to the child’s first day of Senior Kindergarten. Ms. Begum gave the child a picture of the three of them as a family to post on a school board when Mr. Klippenstein had given the child a picture of himself with Ms. Ponte with the child.

[59] Ms. Begum also tells the child that she loves Mr. Klippenstein. She says that she cannot keep the child out of the divorce but then say that she does not love the father. In any event, she says that the child wants her to say she loves the father. So, she is just doing what the child tells her to do.

[60] It is clear that Ms. Begum is not willing to recognize, let alone promote, the idea that the child has two families. Her continued refusal to recognize Ms. Ponte as the child’s stepmother and referring to her as a “stranger” is no doubt felt by the child and places her in a loyalty bind between her two families.

[61] Schooling presents another issue. Ms. Begum kept the child home for JK. Mr. Klippenstein insisted that she attend SK in a school rather than being home-schooled by Ms. Begum. Mr. Hurwitz recommended that Mr. Klippenstein be given authority over education.

[62] Leiper J. ordered that Mr. Klippenstein be given decision-making authority for education issues on an interim basis provided that the school be approximately equidistant between the parties’ residences.

[63] The parties agreed in writing that the child would attend Etienne Brule school for SK. Ms. Begum lived in the school’s catchment area. The school was 3 km from Ms. Begum’s residence and 5 km from Mr. Klippenstein’s residence.

[64] Ms. Begum then moved out of district to Scarborough. As a result, the school rescinded its approval of the child’s enrolment there. Ms. Begum only stayed in Scarborough for two months before agreeing to move in with her brother. She then moved into Regent Park to be closer to her parents on River Street.

[65] As a result, the child now attends Nelson Mandela School in downtown Toronto. It is 400 metres from Ms. Begum’s residence and 24 km from Mr. Klippenstein.

[66] Mr. Klippenstein says this is an example of Ms. Begum refusing to allow him to participate in or exercise any authority or to even keep the child equidistant. She moved twice to control the education decision and to keep the child near her to Mr. Klippenstein’s exclusion. Ms. Begum notes that she did disclose to the court that she was proposing to move. She criticizes Mr. Klippenstein for failing to consult with her about her disclosed intention to move. But she had already agreed, in writing, to the child attending Etienne Brule. It was her unilateral and exceptionally brief move to Scarborough that caused the issue with that school.

[67] Ms. Begum says she moved to Regent Park because the child wanted to be near to her grandparents. The continued denial of agency by Ms. Begum is apparent.

[68] Mr. Klippenstein lives in Mississauga and has a local school very nearby in a neighbourhood without busy streets.

[69] Ms. Begum asserts that Mr. Klippenstein did not disclose his own move to Mississauga in a later motion about schooling. His unchallenged evidence is that his new house is equidistant from Ms. Begum. Nothing turns on this in my view.

[70] Ms. Begum criticizes Mr. Klippenstein for failing to consult with her as required by court orders. For example, the judge’s order at the exit TMC required the parties to consult on delivery of affidavits for two CAS workers. Mr. Klippenstein simply went off and obtained the affidavits.

[71] In this proceeding it is clear that despite judges’ best intentions, there is little communication and no cooperation between these parties.

[72] Mr. Klippenstein and Ms. Ponte point to several recent signs that the child is suffering distress. Although she is a joy 90% of the time, she breaks down at times and launches into uncontrollable hysterics screaming about how Ms. Ponte has prevented them from being a family. She continues to refer to Ms. Ponte as a “stranger” despite having a seemingly close relationship with her the majority of the time. The child has developed a tic with her lips. She also was experiencing stomach aches last fall which she attributed to problems with children at school.

[73] On February 28, 2023, Mr. Klippenstein took a video of an especially bad breakdown. This was unfortunate although it did provide tangible evidence of the child’s distress. During the time that the child was expressing great unhappiness about Ms. Ponte’s presence in her life, Mr. Klippenstein told the child that her mother should not be saying such things to her. The child said that her mother never said this and that it was the child speaking. This seems to me to be a clear example of the loyalty bind into which the child has been thrust due to Ms. Begum’s marginalization and expressions of disdain for Ms. Ponte.

[74] Ultimately Mr. Klippenstein took the child to the ER at Sick Kids to try to have her seen by a psychologist or a psychiatrist. By the time the doctors saw the child, it was after midnight, and she was asleep. Someone from the hospital called Ms. Begum the next day at Mr. Klippenstein’s request to ask Ms. Begum to agree to a referral of the child to be seen by a mental health professional. She refused.

[75] Ms. Begum rightly criticizes Mr. Klippenstein for videoing the child in distress and trying to interrogate the child to see if Ms. Begum was coaching her. That was not child-focused in my view. The child was in extremis. It was not the time to be questioning her for evidence.

[76] But, by contrast, Ms. Begum says she never questions the child. She merely documents and reports to professionals whatever the child says. That too is not child-focused in my view. Ms. Begum criticizes Mr. Klippenstein for involving the police and wanting to traumatize the child with therapy. Yet, she unquestioningly and repeatedly passes on a small child’s utterances knowing that doing so would result in a formal investigation. Surely a parent has some duty to perform some due diligence on the child’ statements before subjecting her to a formal police and CAS inquiry – let alone three of them.

The s. 30 Report

[77] Mr. Hurwitz’s expertise is accepted by both parties and by the court. His specialization in high conflict situations is particularly apt in this case.

[78] Mr. Hurwitz’s report details his numerous interviews of the parties, the child, and collateral witnesses. He provided a much more thorough recitation of the parties’ history and the reasons for the breakdown of their relationship. He recorded an admission by Mr. Klippenstein that he was abusive of Ms. Begum and had hit her. He also recorded Mr. Klippenstein’s allegations that Ms. Begum had hit him and was also abusive.

[79] The recitations in the report are very balanced.

[80] Mr. Hurwitz testified that he gives particular weight to his own observational visits with the parties, the joint meeting he holds with them, the parties’ respective parenting plans, and psychological testing results.

[81] Mr. Hurwitz expressed concern that while he asked the parties to provide him draft agendas for the joint meeting, Ms. Begum sent him a litany of past misconduct by Mr. Klippenstein, and she asked him to keep it confidential from Mr. Klippenstein. The joint meeting was designed to problem solve. She wanted to avoid discussion of moving forward and to focus on her narrative.

[82] Mr. Hurwitz said that he looks to see if parties are able to moderate their positions and be child-focused in their proposed parenting plans. Ms. Begum’s plan perpetuated her entrenched view that the child was at risk despite the CAS determinations to the contrary. She offered no overnight visits. For a 3 ½ year old child (as at September, 2021) that was exceptionally restrictive. She also proposed that parenting time be determined in accordance with the preferences to be expressed by the child.

[83] For his part, Mr. Klippenstein proposed to move to 50/50 parenting right away. That was too quick for Mr. Hurwitz’s view and under-appreciated the attachment between mother and daughter.

[84] Mr. Hurwitz proposed Mr. Klippenstein’s parenting time be increased by one day each year to be 50/50 by the child’s eighth birthday. He recommended against shared parenting as the parties cannot cooperate. He proposed parallel parenting with Ms. Begum to be responsible for decisions about the child’s health and Mr. Klippenstein responsible for education decisions.

[85] In his Clinical Summary, Mr. Hurwitz described Ms. Begum as follows:

Manna Begum is a 33-year-old mother who is currently at home full time. She is of the Muslim faith and her religion and culture are an important part of her identity. She spends most of her time with [the child] and she resides in a 1-bedroom condominium in Etobicoke. She indicated that she wants to move closer to her parents who reside in downtown Toronto. Ms. Begum is very attached to [the child] and is very protective of her. At the final meeting with Ms. Begum, she talked about the importance of her being with [the child] most of the time and efforts she has made to be with her. She talked a lot about the importance of her role. In this discussion, there was an anxiety that was coming through in terms of her needing to be actively involved with [the child], to meet her own personal needs. As a result, I believe she will have difficulty in sharing [the child] parenting with Mr. Klippenstein.

The observation visits showed that she has very good parenting skills and is able to effectively manage [the child’s] behavior. She is nurturing and stimulating of her so that [the child] is exposed to many educational things. The is, however, limited exposure for [the child] in her socializing with other children. While the pandemic has provided little opportunities to do this, these concerns have been identified by Dr. Seat and Mr. Klippenstein prior to the pandemic.

Ms. Begum tends to rely on comments made by [the child] about events that occur at Mr. Klippenstein's home. Particular areas which have raised concern for Ms. Begum is Mr. Klippenstein's girlfriend's interaction with [the child] and Mr. Klippenstein's parenting behaviors. It is hard to really know to what extent Ms. Begum is either coaching [the child] to raise concerns about Mr. Klippenstein and Ms. Ponte or whether [the child] is making random comments that Ms. Begum then questions [the child] about which generate a further worry that Ms. Begum has about child abuse occurring. Ms. Begum has raised repeated concerns about the prospect that [the child] is being abused so this may be inadvertently reinforcing [the child] to continue to make these comments as she knows she gets a lot of attention (and has many interviews with professionals) when she does so.

There has been no verification to any of the abuse allegations. Despite this, Ms. Begum continues to believe that [the child] is at risk of harm. Ms. Begum has made these comments to me, CAS, Dr. Seat and others. There is a concern that given this is still an unresolved issue for her, there may be subsequent allegations of abuse that Ms. Begum makes to CAS and/or police since she ultimately believes that [the child] is at some risk. It is hard to know whether her motivation for continuing to make these allegations is an effort to strengthen her litigation position to have sole custody or to limit [the child] time with her father due to safety concerns. At various times throughout this assessment, Ms. Begum talked about valuing the opinions of professionals yet when CAS, police, SCAN, provide findings and recommendations, she had difficulty believing them and wants to challenge the veracity of these views. What is also concerning is that her refusal to believe professionals has caused further interviewing of [the child] by additional law enforcement, CAS and medical staff. This is never helpful to children having to be reinterviewed in this way.

Ms. Begum talked about "the need to document whatever [the child] is saying that could put [the child] at risk.' I am worried about Ms. Begum misrepresenting comments and information presented by [the child] which suggests that she is at risk, when she is not. This could be a potential problem if there are repeated allegations of abuse or contact with CAS or the police in the future.

Ms. Begum often misinterprets [the child] reluctance to be separated from her and go to Mr. Klippenstein's home as a sign that something problematic is occurring at his home. It is recognized that [the child] is very attached to her mother and having difficulty separating because she spends such limited time away from her. This doesn't mean, however, that something problematic is occurring at Mr. Klippenstein's home.

Ms. Begum is ambivalent about the type of relationship [the child] should have with Mr. Klippenstein. Initially, she talked about wanting [the child] and Mr. Klippenstein to have a strong relationship, yet she continuously provided information to me to support him being a risk to [the child]. I do not believe that she really supports [the child] having a relationship with Mr. Klippenstein. It is my view that 'negative gatekeeping' is occurring where there is no justifiable reason that Ms. Begum has to prevent increased parenting time between [the child] and Mr. Klippenstein, yet [the child] parenting time with her father is discouraged. The unverified abuse allegations provide another mechanism she has to justify limiting their parenting time.

I am concerned about how honest Ms. Begum has been throughout this assessment. During the joint meeting and the plan of care meeting, Ms. Begum was hesitant to take a clear position about what amount of parenting time Mr. Klippenstein should have with [the child]. She often repeated the same phrase that 'the professionals need to determine this.' This statement was a way to deflect her taking a position about supporting [the child] relationship with Mr. Klippenstein; instead she would often go on to list a number of concerns about the importance of limiting their contact. Ms. Begum has a strong view that she is and should continue to be the primary parent. I am concerned that if there is no expansion of parenting time, [the child] will not increase her comfort at Mr. Klippenstein's home. This would also prevent a normalized attachment and relationship between father and daughter. Also, her plan of care was highly restrictive around the residential schedule for Mr. Klippenstein and [the child].

Ms. Begum raised concerns about domestic violence and being fearful of Mr. Klippenstein. Based on the information provided by both parents, this situation appears to be one of 'situational violence' as part of the Association of Family and Conciliation Courts (AFCC) typology of intimate partner violence or domestic violence. The violence is a result of poor communication and low trust and poor problem solving around parenting or marital issues. Both parents contributed to the conflict and both have been aggressive to one another. It was noteworthy that at the joint meeting Ms. Begum didn't prepare a list of agenda items but sent me a document of concerns that she didn't want shared with Mr. Klippenstein. Her doing this confirmed that she wanted me to know the concems but didn't want to discuss them with Mr. Klippenstein nor did she want me to share them with him. It could be said that she didn't want this shared with him because she was fearful of him yet I did not see any fear or reluctance to communicate with him at the joint meeting.

[86] I witnessed the very same behaviours and submissions by Ms. Begum. She has not moderated her views at all. She continues to assert that her daughter is at risk and that she must have 100% parental authority due to the conflict between the former spouses. She puts great stock in being the “primary parent”.

[87] Ms. Begum says that the child should not reside 50/50 because she will lose her Bengali heritage and language skills. She does not say why the difference between 8 nights of 14 and 7 nights of 14 would make such a dramatic difference. Moreover, she accords no value to Mr. Klippenstein’s support for the child’s relationship with her family and his continuing efforts and commitment to raise the child as a Muslim.

[88] Despite claiming to support the professionals, Ms. Begum contests Mr. Hurwitz's findings because: a. he only met them virtually; b. he has not seen recent events; c. he ignored the child’s dance lessons in saying she had limited socialization before the pandemic; and d. Mr. Klippenstein was under his Peace Bond during the s. 30 investigation, so they were not communicating.

[89] Mr. Hurwitz had no such concerns. As to recent events, Mr. Hurwitz was prescient.

[90] Mr. Hurwitz testified that unchecked, a child whose relationship with another parent is not supported and whose time is restricted will start to act out with the other parent and become fearful. Then the child will resist or refuse parenting time. It becomes a self-fulfilling and self-reinforcing cycle. And this is precisely what appears to have begun here.

[91] Mr. Hurwitz said the child had “limited” socialization; not none. He also said that in view of the pandemic this was a minor point.

Ms. Begum’s Grand Statements

[92] Two remarkably telling events occurred both in court and with Mr. Hurwitz after he finished the s. 30 process.

[93] After Ms. Begum finished cross-examining Ms. Ponte, Ms. Begum felt it appropriate to volunteer a gratuitous statement. She said that she wanted Ms. Ponte to know that she had no concerns about the child’s safety while the child is with Ms. Ponte.

[94] While ostensibly friendly and positive, I found the statement notable by its incongruity with everything Ms. Begum had said to that point. This was the woman whom Ms. Begum refuses to acknowledge. She has twice refused to take telephone calls from Ms. Ponte. She refers to Ms. Ponte only as “the stranger”. Ms. Begum had just finished testifying about her duty to document and report to authorities the child’s repeated allegations of sexual abuse against Ms. Ponte. She had just finished cross-examination pointing toward Ms. Ponte being unsafe for the child. Yet here she was volunteering a magnanimous and positive statement to her.

[95] I found myself wondering whether Ms. Begum’s statement was disingenuous and a theatric attempt to appear supportive of Ms. Ponte when her actions say otherwise.

[96] Then, Mr. Hurwitz mentioned, without prompting, an event that he found clinically significant. It was not referred to in his report. He said that after he met the parties and delivered his recommendations, that were decidedly contrary to Ms. Begum’s wishes, Ms. Begum gratuitously sent him an email.

[97] Ms. Begum wrote:

Dear Howard,

I wanted to thank you from the bottom of my heart for all the work you have done to help [the child].

[The child] will do great in life with both Luke’s and my love and care. She really does need us both. We are forever grateful to you.

[98] The parallel here is dramatic. Just like her gratuitous acknowledgement of safety of Ms. Ponte, Ms. Begum volunteered her great gratitude to Mr. Hurwitz while opposing his report. She said she recognized the child’s needs for both parents while marginalizing and minimizing her relationship with Mr. Klippenstein and Ms. Ponte.

[99] Mr. Hurwitz believes that Ms. Begum gives “lip service” to what she perceives will be beneficial.

[100] Mr. Hurwitz was concerned on seeing the video of the child in distress just a couple of months ago. He was not prepared to opine that she needs therapy as he saw only a snippet and has not conducted necessary clinical investigations.

[101] He also said that his initial recommendation that 50/50 parenting wait until the child is eight years old was not unmovable. He said that if Ms. Begum is not supporting the child’s relationship with the father and Ms. Ponte, then he could recommend 50/50 at her sixth or seventh birthday.

[102] Mr. Hurwitz was also prepared to revisit his recommendation that Ms. Begum have responsibility of the child’s health care. He said that a parent is required to obtain health care for a child including mental health care. The failure to do so may make the child in need of protection under child welfare laws.

Analysis

[103] Ms. Begum says that Mr. Klippenstein committed family violence against her. I agree. He was often angry, demanding, and threatening. He withheld sex to try to coerce her to change behaviour. He pushed her with his elbows and was charged criminally. He violated his bail condition.

[104] The commonality of all of this is that it was actions of an angry person against the person with whom he was angry. His psychological testing showed a propensity to anger.

[105] I set out more above about Ms. Begum because her situation is much more complicated. I do not ignore the concerns about Mr. Klippenstein. I weigh them seriously in the factors concerning the best interests of the child set out above.

[106] But anger alone is not violence. I agree with Mr. Hurwitz that the violence was situational. No one involved has verified a concern that Mr. Klippenstein is likely to be violent with the child. To the contrary, everyone who has investigated has been satisfied that the child is safe with Mr. Klippenstein.

[107] Is it possible that he could lash out in anger? If past history is a guide (as it is) then the answer is “yes”. But he took the PARS course as recommended. He speaks of learning to recognize and avoid triggers for his anger. Ms. Ponte does not indicate that there are any issues with anger towards her or the child.

[108] I accept the professionals’ views and do not find any basis in the history to suggest that the child is at risk or unsafe with Mr. Klippenstein.

[109] However, Ms. Begum’s negative gatekeeping is posing a clear and present risk to the child. Dehumanizing the child’s stepmother and unreservedly, unquestioningly reinforcing the child’s allegations against her and Mr. Klippenstein are not child focused. Ms. Begum’s belief that her self-education is sufficient or appropriate to manage her child’s emotional health is not child focused. Refusing to recognize that the child has two families is not child focused.

[110] The child has a strong relationship with her mother and her extended maternal family. She is fluent in Bengali. That won’t change as long as her mother and family continue to speak the language with her. Mr. Klippenstein supports the child’s heritage. By contrast, the child expressed fear that opening Christmas presents with Ms. Ponte and Mr. Klippenstein was “haram” [forbidden].

[111] Both parents are excellent caregivers. Both need to stop engaging the child in their conflict.

[112] The parties are unlikely to be able to agree on an equidistant school especially with the TDSB enforcing residence rules.

[113] Ms. Begum is adamant that I must not divide up parenting authority between education and health as initially recommended by Mr. Hurwitz. She submits that there is too much overlap between the topics and too much conflict between the parties to allow for parallel parenting in the best interest of the child.

[114] I agree with Ms. Begum’s diagnosis although not her prescription.

[115] Ms. Begum has little insight into her own presentation. She demonstrated an inability to place the child’s needs and best interests ahead of her own need to control the child as primary parent. In closing argument, she spoke of her decisions to “allow” Mr. Klippenstein parenting time as if it was hers to give. Her continued insistence that the child is in danger with the father and his spouse shows her “[un] willingness to support the development and maintenance of the child’s relationship with the other spouse”.

[116] I do not for a moment cast blame on Ms. Begum for Mr. Klippenstein’s expressions of anger and the one physical act described above. But I agree with Mr. Hurwitz, that these events are situational and do not reflect Mr. Klippenstein’s behaviour with Ms. Ponte or with the child.

[117] Ms. Begum is unwilling to support a positive relationship between the child and Mr. Klippenstein. Mr. Klippenstein by contrast has great admiration and respect for Ms. Begum’s family and culture.

[118] Both parents have exercised elements of coercive control over the other. Mr. Klippenstein was louder and more physical. Ms. Begum is more calculated and persistent.

[119] It would not be appropriate for me to make an order requiring cooperation or meaningful communication among these parties. That is an invitation to ongoing and heightened conflict.

[120] If I recognize parenting authority to Ms. Begum, the child will suffer by the lack of development of a healthy relationship with her father. If the father has parenting authority, transitions will be more difficult for the mother, but her relationship will be intact and protected. There is no indication that Mr. Klippenstein or Ms. Ponte have the inclination or the wherewithal to undermine the positive attachment between daughter and mother.

Parenting Order

[121] In my view therefore, looking at all the factors in the statute set out above, it is in the best interest of the child if all the incidents of parenting authority be recognized in Mr. Klippenstein. Moreover, parenting time should switch to 50/50 forthwith to protect the child from further harm by any sense of Ms. Begum being “primary parent”.

[122] The order that I will sign also reflects that Mr. Klippenstein agrees that the child is to be raised as a Muslim. He agrees to Ms. Begum having parenting time for the final seven days of Ramadan to maximize the child’s participation in Ms. Begum’s family observances. Mr. Klippenstein is to take possession of all of the child’s government-issued documentation, including her passport, birth certificate, OHIP card, and social insurance card. He is to provide Ms. Begum with scans of each.

[123] Either parent may travel with the child during their holiday parenting time on giving particularized notice well in advance. Both shall provide consent letters on request. However, neither may take the child to a country that is not a signatory to the Hague Convention on The Civil Aspects of International Child Abduction. The parent who wishes to oppose travel of which he or she is notified has the burden to come to court.

[124] I deal with other more mundane details directly in the order.

Equalization

[125] Mr. Klippenstein created graphs and spreadsheets to evidence the values set out in his NFP statement. Ms. Begum did not contest them. Mr. Klippenstein proved all of the material entries in Exhibit 12 by reference to other exhibits. To the extent that the values of Ms. Begum’s condominium, mortgage, and Mr. Klippenstein’s values of the Snell property and his investment accounts differ from the amounts set out in Ms. Begum’s NFP, I accept the values proven by Mr. Klippenstein from contemporaneous third-party documentation.

[126] The only contested entry involves the parties’ estimates for the costs of disposition of Mr. Klippenstein’s RSP and LIRA. Mr. Klippenstein uses 25% while Ms. Begum uses 20%. The 5% difference on an aggregate value of about $22,000 is a swing of about $1,000.

[127] Based on Ex. 12 and the back-up documents that I accept, Ms. Begum owes Mr. Klippenstein equalization of approximately $270,000. He seeks only the $98,000 being held in trust from the sale of the matrimonial home. The $1,000 issue makes no difference, therefore.

[128] The same is true for support arrears.

[129] At Exhibits 42 and 43, Mr. Klippenstein provides calculations, with back-up, for his child and spousal support obligations. He uses his actual income which exceeded significantly the $150,000 imputed to him for interim support purposes. He provides three scenarios for the income to be imputed to Ms. Begum for spousal support purposes. Imputing zero income to Ms. Begum, Mr. Klippenstein’s arrears amount to just over $93,000. Ms. Begum reports current income of $109,000. Imputing different levels of income to her for arrears purposes yields lower arrears of course.

[130] Given that Ms. Begum owes Mr. Klippenstein an equalization payment of over $270,000 (even using her 20% costs of disposition estimate), her best case on arrears of support leaves her still owing Mr. Klippenstein more than $170,000. As a result, I order the funds being held for the parties as a result of the sale of the matrimonial home in the approximate amount of $98,000 be released to Mr. Klippenstein in full satisfaction of his claims for equalization and in full satisfaction of his arrears of support.

[131] FRO is advised that Mr. Klippenstein has satisfied all of his obligations to pay child support and spousal support to Ms. Begum including all arrears.

Future s. 7 Expenses and the Cost of the s. 30 Report

[132] Mr. Klippenstein reports income this year of about $199,000. Ms. Begum reports income of about $109,000. That works out to a 65:35 proportion almost exactly.

[133] Mr. Klippenstein paid Mr. Hurwitz approximately $41,000 for the s. 30 report. I see no reason for him to bear this expense alone. Ms. Begum is therefore ordered to pay Mr. Klippenstein 35% of $41,000 being $14,350.

[134] The parties agree to bear the child’s s. 7 expenses in proportion to their incomes. This is to be adjusted each year as they continue to report their incomes to each other.

Costs

[135] Mr. Klippenstein may deliver costs’ submissions by June 2, 2023. Ms. Begum may respond by June 16, 2023. Costs submissions shall not exceed three pages. In addition, each party may deliver a Costs Outline and copies of any offers to settle on which they rely in relation to the costs of the trial.

FL Myers J Released: May 17, 2023

COURT FILE NO.: FS-20-14671 DATE: 20230517 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Manna Begum Applicant – and – Luke Klippenstein Respondent

ENDORSEMENT FL Myers J Released: May 17, 2023