Court File and Parties

COURT FILE NO.: FS-21-99902-00 DATE: 2023 08 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sabahat Jamal Sadikali Applicant V. Sehdev, for the Applicant

- and -

Navidhusein Sadikali Respondent Self-Represented Respondent

HEARD: June 28, 2023, in person

Endorsement

Fowler Byrne J.

[1] Two motions were argued before me on this day.

[2] The Applicant Mother seeks the following orders:

a. An order that she be given temporary sole decision making with respect to the children’s healthcare, vaccinations, education and general well-being. b. An order requesting the involvement of the Office of the Children’s Lawyer (OCL). c. An order that the Peel Children’s Aid Society release their unredacted notes and records to the parties.

[3] The Respondent Father seeks the following orders that can be summarized as follows:

a. A gradual expansion of his parenting time so that it be equal with the Mother, by July 1, 2023 (this was requested when the motion was first returnable in April 2023). b. An order that the Mother’s parenting time be conditional on her obtaining education and coaching on alienation and the prevention of trauma to children through the “Pathways Through Conflict” programme. For this she will need to provide proof of completion, a letter confirming “her sincere progress”, and that she will participate in individual counselling if so recommended. She will bear ninety percent (90%) the cost of this programme, and will also have a member of her family, or a therapist, to support her in stopping any further alienating behaviours and trauma to the children. c. An order that the Mother cooperate with the Father to produce a list of five rules (eg. no rudeness, no walking away when an adult is speaking) and five discipline consequences (eg. loss of video game time) to correct the children’s behaviour. The list will be posted for all to see and the children will be advised.

[4] On the initial return date of this motion, the OCL was requested, and agreed to become involved. Unfortunately, their recommendations were not available when this motion was argued. Similarly, Children’s Aid Society’s records were requested but not yet available. The Mother believes that for these reasons, the motion is premature. Nonetheless, both parties agreed to proceed.

[5] On the date of the hearing, for reasons that follow, I ordered that the Mother have temporary sole decision making with respect to all vaccinations, including both regularly scheduled vaccinations, and COVID and flu vaccinations. I have incorporated my reasons for that decision in this endorsement.

Issues

[6] Accordingly, I am to decide the following issues:

a. Should the Mother have temporary sole decision making authority for the children in all areas? b. Should the Father’s parenting time be increased, and if so, by how much? c. Should the Mother be compelled to complete the Pathways Through Conflict programme? d. Should the Mother be compelled to agree to a list of mutual rules and disciplines for both her and the Father to follow?

Evidentiary Issue

[7] The Mother objected to a great deal of the affidavit evidence proffered by the Father on the basis that it is hearsay. This included audio recordings.

[8] Affidavit evidence on a motion should only contain information within the personal knowledge of the person signing the affidavit. It may also contain information that the person learned, but only if the source of the information is indicated, and if the information is not likely to be disputed: r.14(18)(19), Family Law Rules. It is fair to state that the majority of the information in the Father’s affidavit, which was obtained through another party, is highly disputed.

[9] Also, there are sound public policy reasons to discourage the use of surreptitious audio recordings in family law proceedings. They are often taken out of context and encourage poor behaviour between the parties: Sordi v. Sordi, 2011 ONCA 665 at paras. 11-12; Van Ruyven v. Van Ruyven, 2021 ONSC 5963 at paras. 30-43.

[10] Presumptively, these types of recordings are not admissible. This is rebutted only if they show evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children: Van Ruyven at para. 41; Wilson v. Sinclair, 2022 ONSC 820 at para. 19. In the case before me, I see no reason to consider any of the recordings filed.

[11] Also, the evidence proffered by the Father from conferences and purported experts is clearly inadmissible. The evidence cannot be accepted as fact without proof. Academic articles are inherently controversial and are subject to critique and challenge by other scholars. The statements made in academic articles are not the subject of judicial notice: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172 at paras. 42-43.

Background

[12] The parties were married on October 27, 2007 and separated on February 22, 2021. There are two children of this marriage, who are currently 12 and 8 years old.

[13] The Mother is a family physician, who graduated in 2015. She had her children in 2011 and 2014, before her graduation. During that time, the parties had the services of a part time nanny to assist. She started working part time in 2017. She claims she was the primary parent throughout. She worked part time only after graduation so as to meet the needs of the children.

[14] Prior to the pandemic, the Father worked outside of the home. The Mother claims he travelled approximately 25% of the time, however the Father states it was never more than “three weeks at a time.” Since the pandemic, the Father has worked from the home.

[15] The Father was charged with assault against the Mother on February 22, 2021. The charges were withdrawn when the Father entered into a peace bond. On June 19, 2022, the Father allegedly breached the terms of the peace bond and was charged with that offence. That charge had not been resolved as of the date of this motion. The Children’s Aid Society has become involved as a result, but as indicated, the notes were not yet released. I understand that their file is currently closed.

[16] The Mother’s Application is dated March 11, 2021. The Father’s Answer was served over a year later, in May 2022. Shortly thereafter, the Father brought a motion on short notice to allow him to take the children to dental appointments. In his endorsement on that day, Justice Stribopoulos indicated that on a de facto basis, the children resided with the Mother, with the Father having parenting time on an informal basis. He permitted the Father to bring the children to the dentist.

[17] The parties attended an early case conference in February 2023. The Mother wanted to conference interim decision making and the Father wanted to conference shared parenting. Neither issue was resolved and this motion was scheduled.

[18] In general, the Mother’s materials allege that the Father has been mentally, emotionally, verbally, and physically abusive towards her throughout the marriage. She additionally alleges that the abuse regularly played out in the presence of the children. The Father’s materials allege that the Mother is mentally unstable because she was sexually abused as a child. The Mother does not deny her abuse as a child but argues that she has never been diagnosed with a mental illness. She further argues that the Father is using his own diagnosis of her “trauma” to further abuse her and denigrate both her and her mental health in this litigation, without any evidentiary foundation.

Analysis

1. Interim Sole Decision Making

[19] Each party wants sole decision making.

[20] My authority to make an order for interim decision making comes from s.16.1(2) of the Divorce Act. As in all matters of parenting, I am to only consider the best interest of the children. The particular factors to consider are those set out in s.16(3) and 16(4).

[21] Joint decision making is not appropriate where there is no evidence of historical cooperation and appropriate communication between the parties, or because it is hoped that it will improve communications between the parties: Kaplanis v. Kaplanis, [2005] OJ No. 275 (Ont. CA) at paras. 2, 11.

[22] Joint decision making does not have to be ordered if there is some evidence of communication. I must assess whether the parties’ ability to cooperate and communicate effectively in making major decisions warrants a finding that joint decision making would be in the children’s best interests: Berman v. Berman, 2017 ONCA 905 at para. 5.

[23] In this situation, I have no evidence that these parties are able to make joint decisions. In these circumstances, and as detailed below, I find that it is in the children’s best interest for the temporary sole decision making authority in all areas be granted to the Mother. I make this finding after considering the aforementioned factors in the Divorce Act.

[24] Firstly, I find that the Father is not willing to communicate and cooperate on matters that affect the child. He claims he has attempted to cooperate with the Mother, but his own evidence is that he does not believe the Mother is capable of sound decision making. His efforts to communicate and cooperate are in reality, efforts to control parenting.

[25] The Father claims that if the Mother has sole decision making authority, that the children’s “safety is threatened.” He wants to protect the children from conflict, and claims she is alienating the children against him. I have no evidence of any safety threat to the children.

[26] The Father also maintains that the Mother is not mentally sound. In support of that conclusion, the Father relies on his own observations, his discussions with a “trauma-focused” psychologist, Mr. Hugo Stevenson, who he spoke to alone, and as part of couples counselling. I have no direct evidence of any kind from Dr. Stevenson. The Father has provided many paragraphs of his interpretation of what was said by the Mother and Dr. Stevenson in their meetings and also what a therapist, Kevin Dunn, has stated. All of this is hearsay and cannot be admitted for the truth of its contents.

[27] The Father wants to control parenting issues. He wrote his own 4-step plan requiring 3 months to complete regarding post-traumatic stress disorder that he wished to impose on the Mother and children. To be clear, there has never been a diagnosis of post-traumatic stress disorder for any member of the family. The Father has included a great deal of information in his affidavit about what trauma or stress he believes the children are under. He attended a conference “Men and Families” in September 2022, which led him to believe his children are being alienated against him. He also attended the “Boys Initiative Conference”, from which he concludes that he needs equal time with his children. He relies on information by lawyer Brian Ludmer who allegedly claims the OCL will not investigate alienation. None of these people have ever met the Mother or the children. Again, this is inadmissible hearsay.

[28] The Father’s desire to control all aspects of parenting is also seen in his communication with the children’s school. He has not provided his consent for the children to be vaccinated as required by their school. The Father is against masks and against the use of hand sanitizer. On or about November 14, 2022, he wrote a letter to the school demanding that one of the children not be allowed to use them:

Just wanted to mention [the child] has a medical exemption that means she will never be wearing a mask. Let me know if you need me to contact anyone to ensure this is understood!

Big picture level you should know that masks are depositing microplastics in lungs and the population is unaware.

Sadly when I was unaware, [the child] got a rash from indiscriminate use of sterilization chemicals that we now know are very toxic and many are now recalled by Health Canada.

The frontline workers (teachers) can literally be held up in court for uninformed consent and practice of a medical intervention pumping sanitizers on kids (it sounds good and innocuous, but toxins can trigger lifelong autoimmune diseases). If someone gets injured (which has already happened), I don’t think anyone in Peel Public Health will be compensating them!

[29] I have been provided with no evidence that any of the children have a medical exemption from wearing masks.

[30] I note that the Father’s has previously worked as a Product Manager with Canon Medical, a medical imaging company. He has also worked with Toshiba. He has a Bachelor’s degree in neuroscience and another in computer science. He also has a Master’s degree in computer science. In his submissions, he called himself an expert of medical observation. I am not sure what that is, but it in no way permits him to provide expert opinion evidence in this motion on the medical health of his children, the efficacy of the COVID-19 and other vaccinations or other COVID-19 protective measures, and certainly does not qualify him to provide any mental health diagnosis of the Mother. He can provide evidence as a father and participant only.

[31] The Father has stated in his affidavit that he believes the appointment of the OCL was a delay tactic on the part of the Mother. He again relies on the views of Brian Ludmer, “a Canadian lawyer and expert on alienation.” He is relying on general opinions by Mr. Ludmer in support of his belief that the children are being alienated. Mr. Ludmer has never been counsel in this matter, nor has he ever been qualified as an expert on alienation or provided any opinion evidence in this matter. All of what the Father attributes to Mr. Ludmer is hearsay and inadmissible.

[32] Whether or not the children are being “alienated” against him, is not something that can be decided on an interim motion. That being said, the children have been regularly spending parenting time with the Father since May 2021. That is not typical in an “alienation” case.

[33] Secondly, I have also considered the impact of family violence on this family. The Father adamantly denies that there has been any family violence by him. The Mother, however, has provided evidence that would suggest that there has been at least some physical violence against her and a child.

[34] The Mother has produced text dated November 25, 2019, wherein she states that the Father “rages” and shoves her. He does not deny it in his response. In another message, dated August 15, 2020, the Mother states that the Father pushes her and shoves her and never apologizes. His response is:

My anger is justified from this situation and what it makes you believe about me. You can play out the whole physical abuse thing it will never fly.

[35] The Mother also gave examples of physical abuse against the children by the Father. In a text in or around January 30, 2021, the Mother relayed that she learned from her son:

You pushed him [the son] he cried out. He was hurt. You hurt his rib.

[36] The Father responded:

I pushed him to make him see his disrespect in my face was not ok.

[37] I also see that the Father was charged with assault and breach of a peace bond. The assault charge was withdrawn because the Father agreed to a peace bond. That peace bond has been allegedly violated at least once and that matter is still before the court.

[38] It is very difficult to consider allegations of family violence based only on conflicting affidavits. That being said, I do not need to make any finding that family violence actually occurred. I must only consider the impact of any family violence on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child: Pereira v. Ramos, 2021 ONSC 1737 at para. 25.

[39] The impact of the alleged family violence is evident. The Mother has clearly made allegations of family violence. The Father claims violence against himself in the form of parental alienation on the part of the Mother. He claims her mental instability is affecting the family. The Father claims the children are suffering from trauma. He wants to enforce anti-alienation therapy on her without any evidence at all that the children are being alienated from him. He appears unwilling to consider any other scenario. This is not meeting the needs of the children.

[40] With respect to vaccinations, the Court of Appeal for Ontario has made it clear that there is a COVID-19 pandemic, that it kills people, including children, and that the vaccines that are available in Canada for children ages five and older have regulatory approval. It is not necessary to relitigate the science of vaccination or the legitimacy of public health recommendations every time there is a disagreement between parents about vaccination: J.N. v. C.G., 2023 ONCA 77 at para. 29.

[41] The Father’s position on vaccines is nonsensical. He appears to doubt public health authority, the children’s own doctors, the schools, and even the Mother, who is a medical doctor. In his submissions, he claimed to not be “pro” or “anti” vaccination, but states the issue is a moving target. He stated he was in favour of meningococcal vaccination but still wants to discuss it further with the children’s doctor. He refused to confirm that he is in favour of COVID vaccinations.

[42] The Father’s refusal to consider the efficacy or safety of the COVID-19 vaccinations, or of any of the children’s regular vaccinations, is not in their best interests. No medical evidence has been provided as to why the children should not receive their regular vaccinations. The Father appears to be more concerned about his control over the children’s vaccination, than whether it is in their best interest. It would also not be in the children’s best interests to delay this issue to trial. It is for that reason that I have already granted the Mother interim sole decision making authority with respect to all vaccinations.

[43] Bearing all these factors in mind, I find that these parties are simply unable to communicate and cooperative effectively in order to make major decisions jointly. Based on the evidence provided, I find that the Mother would be the best party to make major decisions pending trial. The children live primarily with her, and she has ensured that parenting time continues and is flexible in permitting more when requested. On the other hand, the Father is refusing to follow medical direction regarding vaccinations, claiming alienation despite having regular parenting time, and is claiming the Mother is mentally unwell, despite no evidence to support this.

[44] The Mother is required to keep the Father up to date on all major decisions. The Father will continue to have access to all third-party providers for the children, such as doctors, dentists, teachers, coaches, and therapeutic professionals, and is free to be provided with information regarding the children and to provide his views.

2. Should the Father’s Parenting Time be Increased?

[45] When parties first separate, it is best that the children’s lives be impacted as little as possible. There will be some change, of course, but the status quo with respect to the children will generally be maintained on interim parenting orders pending trial, in the absence of compelling reasons indicating a change is necessary to meet the child’s best interests: Papp v. Papp, [1970] 1 O.R. 331; Grant v. Turgeon. This principle has been referred to as the “golden rule”: Kimpton v. Kimpton, 2002 CarswellOnt 5030 at para. 1.

[46] The status quo is established by reference to the parents’ practice or the child’s routine prior to separation: Batsinda v. Batsinda, 2013 ONSC 7869 at para. 28; Gray v. Canonico, 2020 ONSC 5885 at para. 48. It can also be established by evidence of a consensual arrangement made after separation, or by court order: Batsinda at para. 28; Gray at para. 48; Wu v. Yu, 2022 ONSC 3661 at para. 117.

[47] The status quo is not established by any self-help actions taken by one parent, nor is it established if any previous agreement or order is made on a “without prejudice” basis. Once an interim order is made, it should remain in place, absent a change in the circumstances of the children that materially affects them, until the matter is tried or is otherwise resolved on a final basis: Thomas v. Wohleber, 2022 ONSC 1258 at paras. 40-45.

[48] In the case before me, from the date of separation until May 2021, the Father has no parenting time. The Father indicates that the children were withheld from him. The Mother states the Father never asked for parenting time in this period. From May 2021 to July 2022, the children resided primarily with the Mother. The Father had parenting time on Tuesdays from 4:30 p.m. to 8:00 p.m. and Saturdays from 10:00 a.m. to 7:30 p.m.

[49] In July 2022, the Father’s parenting time increased such that his Saturday parenting time was extended from Saturday at 10:00 a.m. to Sunday at 3:30 p.m. It has remained the same since then. The Father argues that this was not on consent, but all that the Mother would allow. The Father does concede though that he has been allowed to take the children on multi-day trips to see relatives in Ottawa. The Mother indicates that the Father has more parenting when he requests it.

[50] The Father maintains that he has always been the primary caregiver for the children throughout the marriage. He adamantly denies that the Mother did as much as him. The Mother claims that the parties employed a part time nanny until she graduated in 2015. From that time onwards, she only worked part time so as to care for the children, especially when the Father travelled for work. The Father does not deny that the Mother worked part time during this period.

[51] It is clear is that in the years leading up to the separation, the children were used to seeing both parents every day.

[52] Following separation, I make no findings as to the first few months after separation. After that, it appears the parties fell into a practice of the children living primarily with the Mother and visiting their Father two times per week. The Father claims that this schedule was enforced upon him, but the evidence does not fully support that. While it may have started that way, the Father did nothing to change it. He claims he tried mediation, but that was not working to his satisfaction. He waited over a year to even respond to this litigation. In that time, he could have had a case conference and argued an interim motion. When he brought an urgent motion in August 2022, it was only with respect to bringing a child to the dentist. It appears that there has only been an early case conference, dealing with the issues before the court on this day, and not a full case conference on all the issues. Until he brought this motion, a full two years after separation, the Father made no formal attempts to secure more parenting time with the children. The children are now accustomed to a new status quo, where they live with the Mother and see the Father one evening and each weekend every week.

[53] I see no reason to alter the status quo pending trial, but parenting time should be adjusted so as to give both parents times on the weekends and during the week. Accordingly, weekends will be expanded to two overnights in a row and mid-week access should be regularized.

3. Should the Mother be Compelled to participate in the Pathways Programme?

[54] The Father seeks that the Mother be compelled to attend a programme titled “Pathways through Conflict”. From their website, this organization appears to offer co-parenting and reunification coaching.

[55] While I accept this is a high conflict situation, the Father has provided no evidence to support his view that the children have been alienated against him. The children see him regularly. He believes they are misbehaving and not respecting him in the manner he wishes, but this is not alienation.

[56] Also, his request for an order that requires the Mother to participate in this programme before being allowed to parent the children without a family member or therapist present to ensure there is no alienating behaviour, would be a significant change to the status quo, and unduly controlling of the Mother.

[57] Accordingly, this relief is denied.

4. Should the Mother be Compelled to Agree to Common Rules and Discipline?

[58] This issue is easily addressed by reference to the Divorce Act. In section 16.2(2), it states:

Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

[59] While a common approach to parenting is always preferred when parents live apart, it is only workable if they are able to communicate in a mature and civilized manner, with the children’s best interests at heart. In this case, I am not prepared to impose a rule and discipline regime upon these children. There is no evidentiary basis to support the argument that the rules and disciplines suggested by the Father are in the children’s best interests. It is not the court’s role to impose themselves into the day to day lives of the litigants. As indicated by the Act, each party will set their own rules when the children are with them.

Conclusion

[60] At the argument of this motion, the Father advised that he served his factum, but was too late to file it. The Mother consents to the late filing of the Father’s factum, and I will make that order.

[61] For the foregoing reasons, I make the following orders:

a. The Father has leave to file his factum for the motion returnable on June 28, 2023, plus his affidavit of service, despite late service and despite the motion already being argued. b. The Mother shall have temporary sole decision making authority for the children in all areas. c. Within 24 hours of any major decision regarding the children, the Mother shall advise the Father, in writing, of her decision and the circumstances surrounding that decision. d. Both parents may ask for and be given information directly from the children's teachers, other school officials, health care providers (including both doctors and dentists), and any other person or institution involved with the children; each parent will sign all necessary consents for the other parent to receive such information, if necessary. e. The Mother shall provide the Father with the names, addresses and phone numbers of professionals or organizations associated with the children including for health care, education and extracurricular activities. f. The children will live primarily with the Mother. g. The Father shall have parenting time as follows: i. Commencing August 18, 2023, Friday at 4:30 p.m. until Sunday at 4:00 p.m., and every alternate weekend thereafter. ii. Commencing August 28, 2023, Monday from 4:30 p.m. to Tuesday 4:30 p.m. and every alternate weekend thereafter. iii. Every Tuesday, from 4:30 p.m. to 8:00 p.00 p.m. iv. As otherwise agreed in writing. h. Exchanges shall remain the same, unless otherwise agreed in writing. i. If one parent is faced with an unexpected situation such as illness or a death in the family, or an irregular special event like a family wedding or other important family gathering, the other parent will make every effort to accommodate a request for a change in the schedule. If the change in the schedule results in the children missing more than one overnight visit with a parent, make-up time will be arranged by the parents within 60 days. j. The children may call the non-resident parent or extended family members as they wish. k. The parties are encouraged to resolve the issue of costs themselves; if they are unable, both parties are to serve and file their Costs Outline, and their written submissions, limited to two pages, double spaced, on or before September 1, 2023; the parties may then serve and file responding submissions no later than September 15, 2023. l. The remainder of the relief sought in the two motions are dismissed.

Fowler Byrne J. Released: August 11, 2023