Court File and Parties

Newmarket Court File No.: FC-22-00001185-0000 Date: 2023-01-25 Ontario Superior Court of Justice

Between:

R.S. Applicant – AND – N.B. Respondent

Counsel: Vic Sehdev, for the Applicant Poroshad Mahdi, for the Respondent

Heard: January 18, 2023

Ruling

JARVIS J.

[1] The applicant (“the father”) has brought a motion for an Order granting him primary residence of the parties two children (AS and JS, also collectively “the children”). In the alternative, he seeks specified parenting time and the authority to decide counselling/therapy for AS. The respondent (“the mother”) opposes the relief claimed.

[2] The children have been primarily residing with their mother since the parties physically separated on May 22, 2022 after the father was charged with an alleged 2019 assault of the mother, which charges were withdrawn by the Crown in July 2022. The father alleges that, even before the parties finally separated, the mother had been actively engaging in what he described was alienating and gatekeeping behaviour. She alleges that there has been a history of domestic violence in the family and that the children have been negatively impacted. AS (and to a lesser extant, JS) is exhibiting disturbing behaviour. Each party, sometimes with third party involvement and/or presence, has been audio and video-recording their exchanges and the children’s reactions. Along with her own evidence, the mother has filed several affidavits from third parties replete with hearsay but, parsing through both parties’ evidence, it is clear that this case, if not already high conflict, is well on its way to deserving that description.

[3] Pursuant to an Order made on December 12, 2022 but not issued until January 17, 2023 the appointment of the Children’s Lawyer was requested to undertake a s. 112 investigation. This court expressed its concern, noting (in paragraph 7 of the prescribed form) that there was “serious parental conflict, allegations of domestic violence and gatekeeping. The older child is acting out at school and displaying concerning behaviours (recently observed by the school)… The [mother] is alleged to be withholding records access too from the [father]” among other things.

[4] It is not possible at this juncture to confidently conclude whether there is, or has been, alienation and the extent to which that may be continuing. But as Gray J. observed in Hazelton v. Forchuk, 2017 ONSC 2282 at para. 75 it is imperative that quick and consequential action be taken where alienation is suspected: inaction poses serious risks to children’s relationship with their parents,

“…[W]here parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse… At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible. (bolding added)

[5] The mother points to a history of domestic violence. The incident in 2019 for which the father was charged involved her having to attend a local hospital for treatment of a split lip caused by the father allegedly striking her. A picture of her lip and hospital admission bracelet were made exhibits. The mother’s later admission of this injury to the police in early May 2022 is what led to the father being charged with her assault (he said that the mother had been getting aggressive with him and his elbow had accidentally made contact with her). The mother had gone to the police to inquire about her privacy rights after she became aware that the father was planning to install “spy cameras” in their home and, in answer to a question about her concerns, she told the police about physical violence in the home: the father denies these allegations. Even so, the unchallenged evidence is that the police have been in contact with the family on three occasions (although the mother alleges, and the father disputes, that there have been many more incidents of abuse and violence not reported to the police).

[6] The mother’s affidavit and those of other witnesses also disclosed conduct of concern to the court purporting to demonstrate the father’s anger and the children’s distress. The mother filed as exhibits a series of audio and video recordings to corroborate her allegations, several of which involving the father were made surreptitiously and others, audio-recordings of her interactions with the children about parenting time with their father. According to the father, these recordings were provided to the police and the local child protection agency, but no action was taken. The agency had become involved on May 4, 2022. This contact was the result of a police referral about domestic conflict concerns after the mother had reported her injury (as above) to the police; the file was closed in early July 2022 after the children and the parties were interviewed.

[7] The father filed supervision notes from a local supervision service for August 19, 21, 24, 26, 28, 31, October 8, 15, 19, 22 and 26 2022 and generously (and selectively) referenced excerpts of those notes in his evidence. He also included a YouTube link to a video showing a June 2022 supervised parenting time with JS which he said demonstrated his strong bond with the children.

[8] Neither party raised any issue about the admissibility of any of the recordings or the hearsay nature of the statements allegedly made by the children to third parties in the affidavits filed by the mother. But this court does not need to address these issues for the purpose of this motion anyway. In Arbitman v. Lee, 2021 ONSC 315, a case which involved surreptitious recordings and third party affidavits, Monahan J. cautioned that the court should be very circumspect in making factual findings on conflicting affidavits and rebuttals untested by cross-examination, particularly where admissibility was contingent on a proper voir dire being held where the issues could be explored through viva voce evidence and cross-examination. Like that case, this court can make certain factual findings on the basis of the record filed.

[9] These are the findings: (a) The local child protection agency had to become involved with the parties due to conflict between them; (b) The police have had to be involved on at least three occasions, one of which this court views little more than retaliation by the father for the mother’s refusal to permit parenting time. The father made a wholly unfounded request to the protection agency and the police in June 2022 to conduct a welfare check on the children; (c) Each party has accused the other of child abuse and inappropriate parenting behaviour; (d) Each party has demonstrated anger and hostility to the other, some (in the mother’s case, although very dated) shockingly obscene and, in the father’s case disingenuously dismissive of the impact of his behaviour on the children and, by extension, the mother; (e) While the mother was prepared to permit the children to have supervised time with their father, she “gatekept” in that there was a significant period of time after early May 2022 that the children were not permitted to spend time with their father and, afterwards parenting time had to be supervised by a local supervision service; (f) The supervision notes are especially concerning. They consistently record AS (in particular, sometimes aggressively) and JS (less so) either being reluctant or outright refusing (AS) in spending time with his/their father. The manager of the supervision facility had to become involved on several occasions; (g) The school reported concerning behaviour about AS involving profanity and disobedience in late November 2022 which the mother claimed never happened before she allowed unsupervised visits; (h) The mother expressed concerns about the children’s mental health. In mid-June 2022 she initiated efforts to identify and engage a qualified Child Psychologist. The father refused to agree to the mother’s choice (Dr. Susan Kennedy) because he understood that Dr. Kennedy only conducted closed therapy. The father also stated, without any helpful detail, that Dr. Kennedy was apparently assisting a friend of the parties who provided one of the affidavits used by the mother for this motion and that he (the father) had spoken to Dr. Kennedy about that person’s matter; (i) The mother’s evidence is unchallenged that, despite repeated requests made to the father to refrain, he has sent “endless” emails to her, her friends, and her family members in which he has insulted (and allegedly intended to intimidate) her, insulted them and shared copies of the pleadings in this case.

[10] There is evidence of domestic violence involving both parties impacting the children and the parties’ decisions involving them. The father’s request to be awarded primary residency of the children is ill-conceived at this time given the contents of the supervision notes and the record before the court. The mother’s hesitancy about parenting time may be rooted in a history of domestic violence or her antipathy to the father and his family. But this court is not prepared to conclude, again at this time, that she is alienating the children. More so than the father she has acted pro-actively in seeking third party professional assistance. The father’s objections to engaging Dr. Kennedy are unpersuasive.

Disposition

[11] The following is ordered: (a) On a temporary and without prejudice basis, the primary residence of the children shall be with their mother; (b) On a temporary and without prejudice basis the mother shall have sole decision-making authority with respect to the children’s medical needs; (c) On or before January 30, 2023 the mother shall advise the father in writing of the particulars (names and addresses) of all the children’s caregivers. The father shall provide to the mother by February 2, 2023 draft authorizations directing the caregivers to communicate with the father on the same basis as with the mother. These shall be signed by the mother and returned to the father by February 7, 2023; (d) On a temporary and without prejudice basis, the father: (i) shall have parenting time with JS on every Wednesday starting on February 1, 2023 from 2:30 PM to 6:30 PM and on every second weekend from Friday after school to Saturday at 8:00 PM starting Friday, January 26, 2023; (ii) the Wednesday pickup shall be from school and drop off shall take place at the Shell Gas Station located at 9270 McCowan Road, Markham ON L6C 2L1. (iii) the Friday pickup shall be from school and Saturday drop off shall take place at the McDonald’s located at 3140 Rutherford Rd, Vaughan, ON L4K 5R3. (e) No Order is made at this time involving parenting time for AS but it is to be encouraged by the mother; (f) The parties shall engage Dr. Susan Kennedy to determine whether the children require therapeutic treatment, its parameters and to undertake such therapy if indicated. Dr. Kennedy shall not be required to provide a report but shall provide her therapeutic recommendations to the court and to the Office of the Children’s Lawyer (if that appointment is accepted), as may be required and if felt appropriate by Dr. Kennedy. Dr. Kennedy’s costs shall be equally shared by the parties, with the ultimate allocation of those costs between the parties being reserved to final disposition of these proceedings. If Dr. Kennedy is unable or unwilling to be retained by the parties and they are unable to agree on a substitute, counsel may arrange a ZOOM conference with the court (no clients) through the judicial assistant upon joint request; (g) A copy of this Ruling is to be provided to the Office of the Children’s Lawyer and the therapist engaged by the parties; (h) Neither party shall audio or video record the children, nor permit third persons to do so, for any purpose related to this case; (i) Neither party shall share on social media any information about this case or permit third persons known to them to do so either; (j) Neither party shall disparage the other parent in the presence of the children or permit third persons to do so either; (k) A party may be held accountable for breach of this term by a person known to them who contravenes subparagraphs (h) to (j) of this Order; (l) The parties shall not communicate with each other for any purpose not related to the children at this time. Communications involving the children shall be done using Our Family Wizard (“OFW”) or other suitable service, the cost for which shall be shared equally by the parties.

[12] There shall be no costs of this motion to either party. Both exceeded the Practice Direction involving the pleadings to be filed for a regular motion. Neither sought leave of the court before filing.

[13] Lastly, the parties are being sent with this Ruling copies of the AFCC-O Parenting Plan Guide, a 10 principle guide “For Kids’ Sake”, a tip sheet prepared by Himel J. of this court “33 TIPS for Parents Experiencing High Conflict Situations” (2023) and “How to give a BIFF (Brief, Informative, Friendly and Firm) Response” by Bill Eddy. The parties would do well by reviewing these enclosures as their future dealings with each other and the court could very likely be assessed with these in mind.

Justice David A. Jarvis Date: January 25, 2023