Court File and Parties
Court File No.: FS-23-00000124-0000 Date: 2024-01-11 Superior Court of Justice - Ontario
Re: Y.S., Applicant And: J.S., Respondent
Before: Kurz J.
Counsel: James B.C. Edney and Joseph Slaved, for the Applicant J.S., Self-represented
Heard: January 8, 2024
Endorsement
[1] The Applicant father (the “Father”) moves for an order of unsupervised parenting time with the parties’ two children, H. (age 8) and O. (age 4). The Father has not seen the children since his arrest on charges described below, on May 31, 2023. He seeks parenting time:
a. Until the end of January 2024: Tuesday and Thursday from after school to 7:30 p.m. and Sunday from 12:00 – 7:30 p.m.
b. For February 2024 until further order: every Tuesday overnight plus alternating weekends from Friday to Monday.
c. This parenting time to be revised (and presumable increased) in a hearing held in April 2024.
[2] Because of his bail terms, the Father offers two friends to perform the pick up and returns of the children: Mahmoud Kassem and Mohamed Yousef. He has also advised the court that he is living with his surety, Manjit Saini.
[3] The Respondent mother (the “Mother”) resists this motion. She insists on supervised parenting time in a “supervised access” centre. She is also willing to offer him regular virtual contact with the children. She has offered these parenting terms since shortly after separation. He has not agreed to her proposal since separation. Hence, he has not seen the children at all since then. The Mother is unwilling to even agree that his two proposed drivers, Mr. Kassem and Mr. Yousef, or his surety, personally supervise his parenting time. She offers no alternative supervisors, other than a supervised access facility.
[4] The Father is facing thirteen criminal charges, including assault and sexual assault of the Mother, sexual assault of her now eighteen year old daughter (of another relationship), assault of O. and three counts of breach of recognizance. He claims that the charges are all false and laid against him in bad faith. He says that the Mother only went to the police after he refused to sign a one-sided domestic agreement that she had presented to him. She then influenced her daughter to do the same and is seizing on minor or even completely false issues to have him charged with breaching his bail terms.
[5] The Father claims that he was an equal parent of the children before separation. Rather than him, it was the Mother who is jealous and controlling, demonstrating problems controlling her temper. He points to the somewhat limited and partially redacted records of Dufferin Child and Family Services (“DCAFS”) that he has produced to the court. He says that they demonstrate that he poses no risk to the children despite the charges he is facing.
[6] The Mother says that she is resisting this motion only out of concern for the protection and welfare of the children. She claims to be the victim of long-standing family violence; physical, sexual and verbal. She adds that the Father has regularly used excessive corporal punishment on the children. She denies that he was an equal caregiver to the children. Rather, she has always been their primary caregiver. The Father could have had contact with the children since shortly after his arrest but refused to accept her proposals for supervised contact.
[7] On December 8, 2023 Barnes J. made an order, requesting OCL involvement in this case. I am informed that the OCL has refused intervention. I understand that it did so in part because of the criminal charges that the Father faces. As set out below, I am asking the OCL to reconsider its stance as a s. 112 clinical investigation would be of immeasurable assistance to this court.
[8] For the reasons set out below, I am not willing to agree to the Father’s request for unsupervised parenting time. I am willing to instate some supervised parenting time, which may expand if it is successful. However I am not willing to name supervisors whom the court has not heard from and knows little of. Accordingly, I adjourn this motion to allow the Father to file further evidence regarding his potential supervisors and to allow the Mother to respond to that issue.
Background
[9] The parties married on July 21, 2013 and separated on May 31, 2023, the date of the Father’s arrest. As stated above, they have two children, H. and O., while the Mother has a third child, eighteen-year old S.
[10] The Father is an imam of three mosques, which he has founded in the Dufferin region. In that role, he is called upon from time to time to speak on behalf of his community. He is also a construction worker, businessperson and restauranteur. He and the Mother jointly own some income properties.
[11] The Father mainly ran the parties’ restaurant in Orangeville. It is now closed because the Father is afraid to work there. He fears being criminally charged for another breach of recognizance should the Mother attend at the restaurant. She has already contacted the police about his use of the restaurant. At the hearing of this motion, the Mother informed the court that she does not intend to attend at the restaurant, presumably leaving it open to him to reopen it. I suggest for the benefit of both parties that they enter into a more formal agreement that can be presented to the Crown and which may result in a bail variation to allow the father to reopen and run the restaurant.
[12] The Father claims to have been an equal caregiver of the children during the marriage. I do not accept that claim as it is contrary to the admission that he made to DCAFS social worker, Grace Appiah, on June 14, 2023. According to the DCAFS records that he presented to the court, on that date he told her that the Mother “stays at home and cares for the children”.
[13] The parties have been involved in an acrimonious relationship. While the Mother says that there is a long history of family violence directed at her, the DCAFS records produced by the Father offer only partial support for her claims. They show a four-year old claim by H. that the Father had struck her, which was investigated by the CAS. During the investigation, the Mother supported the Father and helped present the investigating worker with a picture of a happy and pacific domestic relationship. The investigation was soon closed.
[14] Regarding the more recent allegations raised against the Father, DCAFS “verified” a “ risk of mental and emotional harm as a result of child exposure to partner violence.” But did not verify a risk of sexual abuse by the Father. The Society appears to have now closed its file. I will have more to say about the DCAFS finds below.
[15] The parties strongly differ on the events that led to their separation. The father portrays the Mother as an angry, jealous and rapacious woman, who was engaged in a campaign of separating him from his interest in their shared assets. She portrays herself as the metaphorical lobster, slowly boiling in a pot of abuse, only becoming increasingly aware of her circumstances with the passage of time and increase of abuse. Rather than try to coerce the Father to sign a one-sided agreement, he was the one who tried to get her to sign such an agreement.
[16] In her affidavit, filed on the Friday before this motion was argued on the Monday [1] the Mother attaches an affidavit of Gurjot Kaur, a tenant of the matrimonial home in the days prior to separation. In sum, Ms. Kaur stated that:
d. The Mother “was working from home while she was always taking care of the kids, running the household”.
e. The Mother “had to ask [the Father’s] permission for everything”. She had to seek permission to walk with Ms. Kaur, which was denied;
f. The Father “generally became easily upset and angry, showing arrogance, but he was nice to [her husband and herself]”.
g. She opined that the children “were afraid of [the Father], always worried to make him upset.
h. She “personally witnessed [the Father] hitting his children … [and also] using derogatory words.
i. She “noticed the disturbances upstairs were getting worse with time and [the Father] becoming increasingly regular in raising his voice saying things which were hurtful to anyone and insulting words, shouted loudly followed by the kids crying loudly and complaining being hurt or hit by their dad”.
j. On several occasions, she noticed bruises on the Mother and “noted her demeanor as broken and sorrowful”.
k. She once witnessed the Father hit H. on the arm, “hardly”, with a wooden spoon;
l. O. spoke to Ms. Kaur about his Father hitting him, which he tried to prevent by kissing his Father. The child also explained hitting his sister with a wooden spoon, stating that his Father does the same to both of them.
m. Ms. Kaur witnessed an angry Father taking the children up the stairs from her basement residence by pulling on their ears and telling them that he would hit them with a stick when they got there.
n. In May 2023 she witnessed the Father throw his work gloves at H. while he was cutting the grass. One glove hit the child on the back, causing her to run back into the house, crying.
o. She never heard the Mother “shouting or yelling” or “abusing [the children] in any way”.
[17] The Father did not have time to reply to this affidavit. But his counsel stated, without evidence, that there may be a business relationship between Ms. Kaur and the Mother. The DCAFS do not appear to have interviewed Ms. Kaur.
Applicable Law
Best Interests
[18] It is axiomatic that all parenting decisions must be solely based on the children’s best interests. Under the Divorce Act, S.C. 2019, c.16, the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being", while considering "all factors related to the circumstances of the child": ss. 16(2)- 16(3).
[19] The factors that relate to a child's best interests are set out in s. 16(3) as follows:
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.
[20] As I wrote in Phillips v. Phillips, 2021 ONSC 2480, at para. 47: “[t]he list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her.”
Family Violence
[21] The Divorce Act expressly directs the court to consider family violence in its many manifestations as a factor in determining parenting. As I wrote in Epshtein v Verzberger-Epshtein, 2021 ONSC 7694, at paras. 108 – 111:
108 The court is required to consider family violence in making any parenting decision. Here, the mother has made some historical allegations of abuse while the parties were together, although she does not explicitly rely on them in this motion. She does though imply, without explicitly using the term, that the father is emotionally abusive to the children. She certainly believes that the father has said things to the children that require an apology without considering whether she has a concomitant obligation to do the same.
109 Under s. 16(4) of the Divorce Act, a court must consider the following broad factors in its consideration of 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.
110 As Justice McGee points out in S. v. A., 2021 ONSC 5976, the issue of family violence has always been an important consideration for the court, albeit one more focussed in light of the 2021 amendments to the Divorce Act:
A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child's best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child's other parent.
Children must first and foremost be safe in their parents' care. The Divorce Act amendments recognize this primal need in Section 16(2) by making a child's physical, emotional, and psychological safety, security, and wellbeing the primary consideration. No conduct by a caregiving parent that deliberately undermines a child's sense of safety or self should be sanctioned or permitted to continue.
111 However, as Justice McGee also pointed out at para. 26, the post-separation conduct of a parent who has failed to allow the children to have separate feelings for their other parent can be seen as a form of controlling family violence as well.
Supervised Parenting Time
[22] The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary W.H.C. v. W.C.M.C., 2021 ONCJ 308, Klymenko v. Klymenko, 2020 ONSC 5451.
[23] In Stec v. Blair, 2021 ONSC 6212, paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access and explained the reason that it is not automatically granted:
22 Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.
23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)
24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.
The Parenting Time Factor
[24] What used to be known as the “maximum contact principle” is no longer the law in Canada. As I explained in R.L. v. M.F., 2023 ONSC 2885 at para. 163 – 164:
163 A further parenting factor that this court is called upon to consider is the provision in s. 16(6) of the Divorce Act, which states that "[i]n 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." [Emphasis added.] The previous iteration of this clause of the Divorce Act contained the same wording but also included the heading, "Maximum Contact", to describe it. Some decisions of trial and appeal courts in this province had adverted to the "maximum contact principle" as one which the court must consider in making parenting decisions: see for example, Rigillo v. Rigillo, 2019 ONCA 548; Knapp v. Knapp, 2021 ONCA 305. That view is no longer the state of the law.
164 In Barendregt [2], Karakatsanis J. made it clear that there is no principle in Canadian law which presumes that maximum contact with both parents is in a child's best interests. But as Karakatsanis J. explained:
135 These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the "maximum contact principle" as "[p]arenting time consistent with best interests of child": s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor".
Analysis
[25] On an interim motion, particularly one based upon less than thorough materials, the court must be modest in recognizing that it lacks all of the evidence that is necessary to make a fulsome determination of all of the issues that will be better fleshed out at a trial. The evidence here is incomplete and evolving. It has not been challenged to any great detail, whether through responding materials or cross-examination.
[26] It is for that reason that the Mother asked to be able to file even further evidence. But family law is time sensitive. Children cannot wait indefinitely for perfect evidence or a decision to be made that affects their best interests. That is why the court is required to make interim parenting orders. The Father’s absence from the children’s lives and the scheduling order which set the date for this motion make it necessary for the court to proceed at this time. After over seven months, the parties and children are entitled to have the issue of paternal contact with the children determined in at least an interim basis.
[27] That being said, the court must be careful about making long-lasting decisions on incomplete materials. It has also to be wary of a party attempting to use a motion such as this to establish an artificial status quo or one based on false pretenses.
[28] While I cannot say for sure who is telling the truth, and cannot simply rely on the volume of charges to punish the Father before he has a full day in court, certain factors stand out at this time:
p. Many of the charges that the Father faces are serious. They include physical and sexual assault against the Mother and sexual assault against his teenaged step-daughter.
q. Nonetheless, I have little direct evidence of the facts behind the allegations. The Father points to a malign motivation behind the laying of the charges against him, which I can neither confirm nor deny.
r. I also agree with him that DCAFS has not “verified” the most serious allegations against him, i.e. sexual abuse of his step-child and the Mother or physical abuse of his children and the Mother. But as stated above, it has “verified” a “ risk of mental and emotional harm as a result of child exposure to partner violence.”
s. Of course, a child welfare agency’s “verification” or “non-verification”, in itself, is nothing more than a generally lay opinion and a useful shorthand. The verification test is simply a form of categorization that a child welfare agency utilizes for its own planning and decision-making purposes. What is generally most relevant to the court is not the agency’s opinion of whether it can verify that a certain act or set of acts (or omissions) occurred. Rather, the Court is most concerned with the facts behind that opinion and any steps that the agency may take as a result. Thus, there is only so much that I can make of the somewhat voluminous and redacted Society records before me.
t. The evidence of Ms. Kaur raises some real concerns regarding the Father’s excessive use of corporal punishment against the children and his treatment of the Mother. Ms. Kaur may have a personal or professional relationship with the Mother but I cannot ignore the fact that she is a third party who claims to have witnessed what appears to be family violence against the children and indirectly against the Mother.
u. The Father’s evidence that he was an equal caregiver appears to be false, based on his own admission to DFCS. That fact affects his credibility.
v. The Father was offered a modicum of supervised and virtual parenting time, all of which he has failed to accept to date. That point is made in the endorsement of Barnes J. of December 8, 2023, following a case conference, which states that the Father “rejected an offer of supervised parenting time” from the Mother. The Father may be right that the terms she offered were inadequate but they were better than the parenting time he actually exercised. Had he accepted them until the court could consider his motion for more parenting time, he and the children would have had the opportunity for some parenting time over the past seven months. He could have used the supervised time to demonstrate the appropriateness of his conduct towards the children.
w. As it is, the Father has been absent from their lives for over seven months. That is, for example, over 12.5% of O.’s life. It will likely take come time for the children to adjust to seeing their Father again.
Conclusion
[29] In sum, I find that there is sufficient evidence before me, as cited above, to find that supervised parenting time is necessary and in the children’s best interests. Again, I must, in words of s. 16 of the Divorce Act, “give primary consideration to the child's physical, emotional and psychological safety, security and well-being”.
[30] One weekday evening for dinner and one Sunday for three hours are a reasonable place to start. It can be expanded if it is going well.
[31] That being said, I am not presently able to decide on supervisors. I have not heard from the potential supervisors as to their willingness or ability to supervise the father’s parenting time, to do so for the benefit of the children alone and to report anything untoward that the father may do or say during his parenting time. I would be willing to hear from the Mother as to their qualifications as well as the identities of any other potential supervisors.
[32] In addition, inasmuch as he has already been approved by the court for the serious and responsible task of acting as the Father’s surety, I am willing to consider Mr. Saini as well if he is willing to take on the responsibility upon the terms set out above.
[33] However, before I approve any supervisor, I will need to hear from them, by way of affidavit, that they are:
willing to act as a supervisor;
recognize that they will have a duty to the court and the children to place their protection and best interest before that of the party proposing them; and
to honestly report to the court about the Father’s parenting time that they supervise.
[34] Thus, I adjourn this motion to a date before me in Milton, to be arranged by the parties. That date should be arranged with the Milton trial office and should be in person. The Father will provide the Mother with affidavits from any proposed supervisors by January 19, 2024. The Mother may respond by January 26, 2024. The return date for this motion date shall be no earlier than January 26, 2024. There will be no reply affidavit without my leave.
[35] On the return date, the parties will not attempt to re-argue the issues determined above.
Request for Reconsideration to the Office of the Children’s Lawyer
[36] With this endorsement, I ask the Office of the Children’s Lawyer to reconsider its rejection of Barnes J.’s request for its services. This is a particularly difficult and complex case. It is one where the OCL’s involvement would be invaluable to the court. The children are young and likely would not benefit from a VoC or counsel. But an independent investigation under s. 112 of the Courts of Justice Act is vitally necessary to assist the court in understanding the issues in this case, hearing the narratives of the children, determining the appropriate path through in the tangle of counter-allegations. The DCAFS appears to no longer be involved with this family.
[37] I ask that the parties bring this endorsement to the attention of the Office of the Children’s Lawyer.
Kurz J. Date: January 11, 2024
[1] To be fair, the Father’s materials were served on her on the afternoon of December 28, 2023, six business days before this motion was heard, excluding New Year’s Day. She is self-represented, although her materials were prepared with the assistance of counsel. For his part, the Father blames the Mother for the tardiness of his materials as he only received the DCAFS materials a few days before. He claims that the Mother could have given him a copy earlier as she had it in her possession.