Court File and Parties

NEWMARKET COURT FILE NO.: FC-23-1369 DATE: 20231106 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Sadek Fahmy, Applicant AND: Gioconda Elizabeth Ojeda Mascherin, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Reena Horra, Counsel for the Applicant Jared Persaud, Counsel for the Respondent

HEARD: November 1, 2023

Ruling on Parenting and Support Motions

[1] This Ruling involves parenting and support. The applicant (“the father”) has brought a parenting motion and the respondent (“the mother”) has brought a motion for child and spousal support and for leave to file her responding pleadings.

[2] The father seeks an Order that the parties’ two infant children primarily reside with him and that the mother have supervised parenting time. She seeks an Order for child support ($2,917 a month), spousal support ($4,720 a month) and leave to file.

[3] For the reasons which follow, the father’s motion is dismissed, and the mother’s motion is granted although for different support amounts than requested. Leave is also granted to the mother to file her responding pleadings.

[4] These are the relevant facts:

(a) The parties are not married;

(b) They met in February 2019 in Cartagena, Columbia. The father is Canadian and the mother was born in Venezuela where she lived for twenty-seven years before moving to Columbia sometime in 2019;

(c) When the parties met, the mother was pregnant with a child from another relationship whose biological father did not wish to parent with her. The mother obtained a medical degree in early to mid-2019. There is no evidence that she has ever practiced that profession;

(d) The father sponsored the mother and her son (“RFO”) to Canada. A daughter (“SAFO”) was born to the parties in March 2021 and on or about June 26, 2021, the mother and the children arrived in Canada. There is no dispute that the father stands in loco parentis to RFO;

(e) The mother only speaks Spanish and is unemployed. She has no assets and no family in Canada;

(f) The father is employed by an international provider of professional information, software solutions and services in the health, tax & accounting industries. He works remotely from home and has flexible working hours. He earns a base salary of $137,000 a year and is entitled to a bonus based on his employer’s financial performance. His last three years’ Notices of Assessment disclose net income ranging from $131,097 (2020) to $161,202 (2021) and to $219,784 (2022);

(g) The parties cohabited from June 2019 to June 2023 when mother took the children to a shelter where she and they have continued to reside: the father is living in the matrimonial home (an apartment). This was not the first time that the mother had taken the children with her to a shelter;

(h) There is no dispute that the mother has mental health challenges. Filed as an exhibit to her affidavit sworn on October 16, 2023, are patient records from CAMH. These records disclose that the mother was apprehended in April 2020 and admitted to a Toronto hospital for expressing suicidality to the local child protection agency. [1] She was prescribed medication and returned home. In August 2022 she took the children with her to a shelter where they lived for about a month before she was again hospitalized (three days). She complained about domestic violence and the father claimed that she was paranoid about being deported to Columbia. The patient chart discloses that the mother had no source of financial support and no driver’s licence and that the father had threatened to have her and RFO deported. A CAMH clinician assessed the risk of self-harm to be low, the level of suicide risk low and noted that further diagnostic clarification was needed to verify a suspected Borderline Personality Disorder (“BPD”) with a history of post partum depression. The clinician noted that the mother’s “diagnosis may be more so in keeping with delusional disorder rather than a primary psychotic disorder however it is possible that she is simply a victim of emotional and verbal abuse”;

(i) The mother went to live with the father’s parents while the father lived in Toronto, spending about half of every week with the mother and children;

(j) The parties recommenced cohabiting in early April 2023 and attended CAMH mid-month. The mother wanted a general assessment of her mental well-being. The father did not stay for the assessment. The chart notes that the mother says that she felt unsafe with the father. A Suicide Risk Assessment was “low”, the factors being “depression, lack of family support”. There were “no acute safety concerns regarding harm to self…[s]he has strong protective factors of her children and is help-seeking and future-oriented”;

(k) Although the mother returned to the father’s apartment when the assessment concluded, the parties separated for the final time in June 2023 after the mother made a complaint to the police about an assault by the father, which charges were soon dropped. She took the children to a shelter;

(l) The father started these proceedings in August 2023. In his Application he detailed many concerns about the mother’s mental health and expressed his concerns about the children’s care. Among other claims, the father sought an Order for joint-decision-making and, in the alternative, that the children primarily reside with him. An urgent motion was also brought for parenting time. The father claimed that the mother was withholding the children from spending any time with him. On August 16, 2023, Fraser J. declined to make a parenting Order but directed that an urgent case conference be held;

(m) In a letter to the parties dated August 18, 2023, the York Region Children’s Aid Society (“the Society”) summarized its involvement with the family. There had been six referrals. The Society advised that allegations of partner violence were inconclusive, but allegations about mental health concerns of the mother were verified. The main source of conflict appeared to surround immigration and obtaining appropriate mental health services support for the mother. The Society was aware that the mother had been diagnosed with BPD and post partum depression and was provided with a letter from a doctor in Columbia who had apparently completed an assessment “whereby all clinical criteria compatible with Bipolar Disorder 1: Manic Episodes with Psychotic characteristics and clinical criteria were identified Compatible with Borderline Personality Disorder”. The Society did not remove the children from the mother’s care and encouraged her to support parenting time between the children and their father. No protection concerns were identified for him as a caregiver. The Society also expressed concerns about the mother’s future housing uncertainty, her limited resources and her immigration status;

(n) On August 21, 2023, MacPherson J. held an urgent case conference. The parties agreed to a temporary Order which, among other things, requested the involvement of the Office of the Children’s Lawyer (“OCL”), that the father have parenting time (every Tuesday from 12:00 pm to 6:00 pm and alternating weekends from Friday at 4:00 pm to Sunday at 6:00 pm), child support of $2,077 a month and that the parties could bring the motions now before this court. The parties also agreed to timelines for disclosure (responses by September 29, 2023) and that the Society remain involved with the family;

(o) On or about September 11, 2023, the father served a Request for Information. Much of the request sought information about the mother’s mental health. It is common ground that the mother did not respond to the father’s request or deliver her own Request for Information, but she did append as an exhibit to her affidavit sworn on October 16, 2023, extensive patient records from CAMH (over 150 pages) which, while not responding to all the father’s information requests, provided a robust history of her mental health, along with differential diagnoses and treatment recommendations;

(p) On September 28, 2023, the parties were advised that the OCL had accepted its appointment and would undertake a clinical investigation;

(q) The father served his motion material on or about October 2, 2023, and the mother her motion material on or about October 16, 2023.

[5] The parties were given an opportunity before argument to reconsider their positions and spent much of the day negotiating but without success.

Discussion

Parenting

[6] The relief sought by the father in his Notice of Motion has all the hallmarks of a summary judgment motion seeking a final Order. It goes far beyond the typical temporary Order in that it maps out a parenting regime that is most commonly reflected in a final Separation Agreement or court Order. It does not account for the involvement of the OCL whose investigation is underway. Most of the relief sought is premature, especially where, as here, the mother has been unable to deliver her responding pleadings because she has never filed tax returns in Canada (she has never worked here) and cannot file in their absence without the court Order she is now seeking.

[7] It is noteworthy that the father’s request that the children primarily reside with him is an alternative claim in his Application. Much of the information about the mother’s mental health was particularized in that pleading. The father proposed joint decision-making. He now seeks primary care of the children based on that information supplemented by the CAMH records. In argument, he referred to several excerpts from the CAMH records dealing with incidents and information with which he was involved or of which he was aware when he started these proceedings.

[8] It is relevant that the Society nowhere recommends or even suggests that the children are at risk in their mother’s primary care or that they should be removed from her care. The evidence is that the mother has been, and continues to be, taking steps to address her mental health, a challenge not made any easier (and undoubtedly worse) by her isolation in this country. Putting this in context, the mother has no family in Canada, no assets, no income, is not fluent in English, is close to (and misses) her family in Columbia, her immigration status is uncertain and she is living in a shelter with the children. Given the mother’s troubled personal history (recorded in the CAMH records) and without drawing any conclusions about family violence in this case, it is not an unreasonable inference that the troubled state of the parties relationship was impacted by her mental health and some of incidents where the mother was reported as delusional or suicidal were the consequence of, or exacerbated by, her uncertainty about her future and the future of the children with her.

[9] The paternal grandfather filed an affidavit sworn on October 2, 2023. In that affidavit he said that the mother and children often stayed with him and that it was his opinion that she suffered mental health issues. This court gives little weight to that opinion but what stands out is evidence that when the word “separation” happened to innocently arise in a conversation having nothing to do with the parties’ relationship it triggered a convulsive episode that caused the grandfather to fear for the children’s safety.

[10] While there are concerns about the mother’s mental health, there is no credible evidence that she is not a good and loving parent with whom the children are bonded or that, but for the stressors relating to the breakdown of the parties’ relationship, she cannot appropriately care for the children so long as she takes her prescribed medications (there is no evidence that she is non-compliant in this regard). She is in an environment where there are community and social supports including monitoring by the Society.

[11] Living in a shelter is only a temporary expedient. Pending the outcome of the OCL investigation, the mother needs to develop a plan for herself and the children.

Support

[12] The mother seeks an Order for child support in the amount of $2,914 monthly (table amount, no s. 7 expenses) and high-end range spousal support of $4,720 monthly based on the father’s 2022 assessed income of $219,764. He proposes that the court attribute a $137,138 income to him and that child support and spousal support be $1,926 and $2,256, respectively. The court accepts neither of these positions.

[13] The father sponsored the mother and children to Canada. While he has modest means his average income for the years 2020 to 2022 is $171,136 according to his Notices of Assessment. His base remuneration in 2021 was $132,500 and for each of 2022 and for 2023 it is $137,138. He is entitled to a bonus based on his employer’s financial performance. He received $5,775 for what he describes is “merit pay” in 2023 (which his employer’s letter refers to as “a one-time base pay lump sum payment”) and more recently on October 13, 2023, a bonus of $22,856.33 (gross). The aggregate of these amounts suggests a 2023 income of $165,769.33, say $165,780.

[14] There is no evidence that the father has any other source of income than his employment. In Vanos v. Vanos, 2010 ONCA 876 [2], the Court of Appeal observed that where income being earned during a year is incapable of exact determination the income from a previous year should be used (para. 13). In this case the husband’s evidence about his income and that of his employer is the most reliable indicator of his 2023 income at this time. Accordingly, the amount of table support payable should be $2,266 monthly. The Spousal Support Advisory Guidelines suggest a range between $2,176 to $3,021 monthly spousal support. Given the length of the parties’ relationship, a low-end spousal support amount is indicated: that figure is $2,176 a month.

Disposition

[15] The following is ordered:

(a) Pending the conclusion of the OCL investigation, the father’s parenting motion is dismissed on a without prejudice basis. [3] The children shall remain in their mother’s primary care at this time and shall spend time with their father as set out in the Order made by MacPherson J. on August 21, 2023 with such additional time as the parties can agree;

(b) The father’s 2023 income for support determination purposes is $165,780;

(c) The father shall pay to the mother table child support in the amount of $2,266 a month effective November 1, 2023;

(d) No Order for s. 7 expenses is made at this time;

(e) The father shall pay to the mother spousal support in the amount of $2,176 a month effective November 1, 2023;

(f) No Order for support payable before November 1, 2023, is made at this time. The issue of support payable from and after the parties’ separation is reserved to final disposition;

(g) Leave is granted to the mother to deliver her responding pleadings by November 15, 2023, without filing Notices of Assessment;

(h) The disclosure terms of the case conference Order made by MacPherson J. on August 21, 2023, are varied to provide that the mother shall use her best efforts to provide the information requested in the father’s Request for Information dated September 11, 2023, by November 27, 2023. She shall deliver her Request for Information by November 15, 2023, and the father shall answer that request by December 15, 2023;

(i) The father shall pay to the mother costs of the motions argued in the amount of $2,500, enforcement of which shall be suspended (without interest) to final disposition.

[16] A Support Deduction Order shall issue.

Justice D.A. Jarvis Date: November 6, 2023

[1] There is an inconsistency in the evidence. According to the CAMH records the mother was hospitalized in April 2020 in Toronto but the parties agree that she and the children arrived in Canada in late June 2021. It is not an unreasonable inference that the 2020 hospitalization occurred during a time when the mother and children were visiting the father in Canada.

[2] 2010 ONCA 876.

[3] This means that once the report is concluded no material change will be required for a variation of this temporary Order.