ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ABOU SLEIMAN, MURIELLE Applicant
- and -
OTAKI, ABDO Respondent
LUSCOMBE, JESSICA, HUDANI, FARRAH, for the Applicant farrah@bhdllp.com / jessica@bhdllp.com
SINGER, JAMES, for the Respondent jim@jamessingerfamilylaw.ca
HEARD: February 29, March 1, 4, 5, 6, 7, 8, 2024, in person
MOTION TO CHANGE: REASONS FOR DECISION
Table of Contents
I. OVERVIEW... 4 II. ISSUES.. 5 III. WITNESSES.. 6 IV. FACTUAL OVERVIEW... 7 V. MOTION TO CHANGE.. 10 a. Plans Proposed by Parties. 10 b. Factors to Consider 11 i. Section 16(3)(a): Child’s needs, given the age and stage of development, such as child’s need for stability. 12 ii. Section 16(3)(b): Nature and strength of 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. 12 iii. Section 16(3)(c): Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. 16 iv. Section 16(3)(d): History of care of the child. 18 v. Section 16(3)(e): Child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. 19 vi. Section 16(3)(f): Child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage. 20 vii. Section 16(3)(g): Any plans for the child’s care. 20 viii. Section 16(3)(h): The ability and willingness of each person to whom the order applies to care for and meet the needs of the child. 21 ix. Section 16(3)(i): The ability and willingness of each person to whom the order applies to communicate and cooperate, in particular with one another, on matters affecting the child. 22 x. Section 16(3)(j): Any family violence and its impact on, among other things: the ability of the perpetrator of the violence to care for the child and cooperate with others caring for the child. 22 xi. Section 16(3)(k): Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. 23 xii. Section 16(5): Past conduct: section 16(5) requires the court to disregard past conduct of any person unless that past conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. 23 xiii. Section 16(6): Maximum parenting time: the court should have as much time with each spouse as it consistent with the best interests of the child. 27 VI. F’s Best Interests. 28 VII. DECISION MAKER.. 30 VIII.TRAVEL. 30 IX. DOCUMENTS.. 30 X. CONTINUING JURISDICTION OF COURT.. 31 XI. ORDER.. 32 XII. CLOSING COMMENTS.. 34
I. OVERVIEW
[1] The parties married in 2015 and their child, F, was born in 2016. The parties separated in 2019 and consented to a final order.
[2] The applicant, Ms. Abou Sleiman, brings a motion to change that final order. It is agreed that there has been a material change. The issue in this trial is what parenting arrangements are in F’s best interests.
[3] On one hand, F is outgoing, well behaved, smart child who is thriving in school. Except it is not always that way. With Mum, F is unsettled, defiant, anxious, angry and disrespectful. It is heartbreaking and no doubt difficult and uncomfortable for F.
[4] F is eight years old. He did not see his mother in person from January, 2020 to February, 2023. Nobody has addressed the consequences of that circumstance for F.
[5] The respondent, Mr. Otaki, has taken a passive approach, indicating that F does not behave badly with him, he cannot do any more and this behaviour must be evidence of F’s wishes. Mr. Otaki proposes the status quo with some family therapy.
[6] Ms. Abou Sleiman proposes an extreme solution involving a parenting reversal with a blackout period and reunification therapy.
[7] Mr. Otaki’s opened the trial by saying that it was not in his constitution to do anything that would make F uncomfortable. With respect, that position sidesteps parenting responsibility.
[8] Mr. Otaki closed the trial by conceding that F needs professional help, which begs the question why it has not happened yet.
[9] The court finds that neither plan proposed by the parties is in F’s bests interests and has ordered a hybrid plan with continuing jurisdiction for a year to ensure that F gets the reunification therapy he deserves and the parents undertake the therapy needed to optimize the parenting circumstances going forward.
[10] This trial spent a great deal of time focused on the past. That focus was not always relevant or productive. It is time for everyone to focus on F’s future.
II. ISSUES
[11] On this motion to change, the issues are as follows:
a. Motion to Change i. Is there a material change? ii. If yes, what new parenting plan is in the best interests of the child?
b. Should the decision maker change?
c. What travel arrangements should be permitted?
d. Who should hold the child’s identity documents
e. Should the court maintain ongoing jurisdiction?
III. WITNESSES
[12] The following witnesses testified at trial:
| Name | Called By | Description |
|---|---|---|
| Murielle Abou Sleiman | Applicant | Applicant, F’s mother |
| Rachelle Sleiman | Applicant | Applicant’s sister |
| Dr. Aoun | Applicant | Applicant’s psychiatrist |
| Gregory Constantinou | Applicant | Applicant’s current partner |
| Karine Copur | Applicant | Applicant’s friend |
| Officer Krumpek | Applicant | Police officer who attended at home on October 4, 2020 |
| Abdo Otaki | Respondent | Respondent, F’s father |
| Dani Otaki | Respondent | Respondent’s brother |
| Zeina Ballan | Respondent | Respondent’s sister |
| Mr. Otaki Sr. | Respondent | Respondent’s father |
| Father Ayoub | Respondent | Pastor at church attended by Otaki family |
| Shannon Gunn | Respondent | F’s teacher for 2023-2024 school year |
| Vlaidmir Moroz | Respondent | Mr. Otaki’s work colleague/friend |
| Gloria Soldo | Respondent | Mr. Otaki’s work colleague/friend |
| Tracy Majewski | Both | OCL Clinician |
[13] Prior to trial, the parties served and filed affidavits as in-chief evidence. Witnesses were then called in chief in person or via video. They were given a brief opportunity to update their affidavit evidence and then cross-examined.
[14] As a general observation, the non-party, non-family lay witnesses testified in a forthright way. They all spoke positively of their interactions with F. The witnesses called by Mr. Otaki acknowledged that they did not know the entirety of the family situation. As a result, their evidence was of limited use.
[15] The non-party family witnesses were more helpful. The applicant’s family witnesses described F’s behaviours and difficulties in detail (outlined below). Although Mr. Otaki denies that F exhibits the same behaviours at his home and at school, his family members described their own observations of F expressing reluctance to attend his parenting time with Ms. Abou Sleiman.
[16] Mr. Otaki did not call evidence from his mother, who lives in the same house as Mr. Otaki and F (along with Mr. Otaki’s father and other family members). Mr. Otaki’s mother has been a primary caregiver for F since 2018. Evidence from Mr. Otaki’s mother would have been useful to the court.
IV. FACTUAL OVERVIEW
[17] This is not a recitation of all the evidence heard during trial. Rather, it is an outline of major events in the chronology. Both parties spent considerable time at trial covering the events of 2014 to 2023. While context is appreciated and often important, much of this information was not relevant to this motion to change.
[18] The parties met in 2014 in Lebanon. They married in 2015 and their child, F, was born in 2016. At the time of releasing these trial reasons, F is eight years old.
[19] F was born in Dubai, where both parties worked. The family moved to Ontario in February, 2018. The parties and F moved in with Mr. Otaki’s parents.
[20] The marriage deteriorated in 2019, resulting in the final order of April 25, 2019, which was the subject of this trial. The parties consented to this order.
[21] The April 25, 2019 order contemplated that Mr. Otaki and F would live in Ontario and Ms. Abou Sleiman would reside overseas. Mr. Otaki was the decision maker and full-time parent with Ms. Abou Sleiman being entitled to daily video communications and twice-yearly in-person visits (two weeks each) in Canada and visits in Dubai or another mutually agreed location.
[22] In early January, 2020, Ms. Abou Sleiman exercised supervised parenting without incident. Mr. Otaki insisted on supervised parenting although the April 25, 2019 order did not require it. The visits over the days in January, 2020 would be the last time that Ms. Abou Sleiman saw F in person until February, 2023.
[23] In April, 2020, Ms. Abou Sleiman advised that she was in Ontario. Mr. Otaki denied in person visits due to Covid.
[24] Ms. Abou Sleiman brought this motion to change in August, 2020.
[25] The court ordered supervised visits on October 8, 2021. Mr. Otaki admits that he did not comply with this order. Between October 8, 2021 and February, 2023, Mr. Otaki was in contempt of court. There were multiple hearings and endorsements related to this issue. It is not necessary to review the entire history of the contempt proceedings. The court orders relevant to this trial were made on November 9, 2022[^1], as follows:
a. The Office of the Children’s Lawyer (OCL) was asked by the court to undertake an investigation.
b. The parties were ordered to immediately engage in reunification counselling. Mr. Otaki was ordered to pay for the reunification counselling.
[26] Mr. Otaki was found not to have complied with the reunification counselling order and the court made a further order to compel reunification counselling on February 21, 2023[^2].
[27] The OCL conducted a disclosure meeting in late April, 2023, at which time the OCL recommended decision making by Ms. Abou Sleiman with a graduated transition to a 2-2-3 shared parenting schedule. The OCL expressed concern with F’s lack of emotional resilience and tethering to Mr. Otaki.
[28] The reunification counsellor (Marie Dolson) was eventually hired in April, 2023 and started her parental interviews in May, 2023. Ms. Dolson’s retainer ended in October, 2023. Since then, there has been no counselling or therapy in place for this family. Mr. Otaki conceded that the goals of reunification therapy were not met.
[29] As noted above, Ms. Abou Sleiman resumed in person parenting in February, 2023. F stays with his mother 5/14 nights and with his father 9/14 nights. (There is a specific schedule in which F spends a few days with each parent). Mr. Otaki drives F to and from all transitions.
[30] While F has been attending his parenting time with Ms. Abou Sleiman, she is increasingly concerned regarding F’s behaviours with her. Mr. Otaki reports that F does not exhibit the same behaviours in his home.
V. MOTION TO CHANGE
[31] A motion to change has a two-step test:
a. First, the onus is on the parent seeking the change to demonstrate a material change in circumstances; and
b. Second, if the first step is met, the court must embark on a fresh enquiry regarding the best interests of the child[^3].
[32] The first step of the test is easily met in this case. Ms. Abou Sleiman’s return to Canada in 2020 and the events leading to the contempt finding against Mr. Otaki meet the test of material change in circumstances (regardless of whether these two developments are taken separately or together). Indeed, in his closing submissions, Mr. Otaki reasonably conceded a material change in circumstances. Both parties tried this case on the basis that a material change had occurred since the 2019 order.
[33] The second step requires the court to consider the new circumstances. Both parties bear the evidentiary burden of demonstrating where the child’s best interests lie[^4].
a. Plans Proposed by Parties
[34] Each parent provided a lengthy, detailed draft order at the outset of trial. Broadly speaking, the plans can be summarized as follows:
[35] Ms. Abou Sleiman asks the court to make her the sole decision maker for F and order a parenting reversal and blackout period for six weeks. The court will maintain jurisdiction. A therapist will work with the family for a year (paid for by Mr. Otaki) and advise the court on contact with Mr. Otaki following the blackout period.
[36] Mr. Otaki seeks an order for the status quo: the current schedule shall be maintained (five nights with Ms. Abou Sleiman, nine nights with Mr. Otaki) and family counselling shall be added, with the cost shared between the parents proportionate to income.
[37] The court is not obligated to accept one plan or the other in its entirety. Rather, the court’s obligation is to arrive at a remedy which promotes the bests interests of F[^5]. The court can make orders about almost any aspect of the child’s life, including an order for counselling or therapy[^6].
b. Factors to Consider
[38] Because the parties divorced by order dated May 3, 2021 (the divorce took effect 31 days later), the relevant factors for a parenting/contact order are in section 16 of the Divorce Act: These factors are considered through the lens of two statutory directions:
a. The only consideration is the best interests of the child[^7]; and
b. The court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being[^8].
[39] The section 16 factors are not an exhaustive list. The weight to be given to each factor will depend on the specific circumstances of each case[^9].
[40] Neither party focused on the section 16 enumerated factors in their closing, focusing instead on specific topics that they thought advanced their position. The topics raised by each party are reflected in the relevant Divorce Act factor.
[41] The section 16 factors which are relevant to this case are analyzed in the following pages.
i. Section 16(3)(a): Child’s needs, given the age and stage of development, such as child’s need for stability.
[42] During the contempt proceedings, the court ordered that F spend equal time with his parents. The parties later agreed to the schedule of five nights with Ms. Abou Sleiman and nine nights with Mr. Otaki over each 14-day period. (This parenting time is not done in blocks but split into a few nights with each parent over the two weeks).
[43] The court finds that both parents are able to keep F safe and provide the necessaries of life. In Mr. Otaki’s evidence, there was some focus on the number of times Ms. Abou Sleiman changed residences and the fact that her sister and sister’s child were living with them. Families move. Families live in different configurations. The court finds that all of this evidence was well within normal limits. There is no basis to criticize Ms. Abou Sleiman’s housing choices. Economic advantage does not equal good parenting.
[44] Both Mr. Otaki and Ms. Ahou Sleiman love F. They say they want to promote a strong and healthy relationship between F and both of his parents. Mr. Otaki’s statements at trial on this topic were undercut at different times and in different ways during the trial, as discussed below.
ii. Section 16(3)(b): Nature and strength of 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.
[45] F is an only child. He has a closer relationship with Mr. Otaki and the Otaki family; this is not surprising given the history noted above. F also has a close relationship with Ms. Abou Sleiman and her family members who reside locally, including her sister, Rachelle, Rachelle’s son, C. (who is F’s cousin) and Mr. Constantinou, Ms. Abou Sleiman’s current partner.
[46] F behaves differently with each party. Mr. Otaki has no behavioural concerns with F. Mr. Otaki and his family members say that F does not always want to go see his mother. When F expresses resistance, Mr. Otaki encourages F to see his mother.
[47] In contrast, Ms. Abou Sleiman and her family/friends experience that, at times, F can be defiant, rebellious, agitated and upset. To their observations, he seems conflicted about spending time with his mother, almost as if it would represent some sort of unfaithfulness to his dad.
[48] Ms. Abou Sleiman and her witnesses testified about the following examples of F’s behaviour:
a. F does not hesitate to compare households.
b. F will be defiant and disrespectful to Ms. Abou Sleiman.
c. F is also capable of showing love, care and happiness to his mother. This intermittent affection was described by Ms. Abou Sleiman as F “loving her in secret”.
d. F will say “My dad says I don’t have to listen”.
e. F will say “I make decisions, not you; just you wait, I will tell my Dad”.
f. F struggles with self-regulation. F can have episodes screaming at full volume, with clenched fists. He can also display childish and/or competitive behaviours – acting like dog, speaking gibberish, struggling with sharing. These behaviour changes can be extreme and rapid, with F contentedly playing and then screaming and shouting at Ms. Abou Sleiman.
g. F will also display outright defiance, such as yelling “no” and throwing things in response to the simplest request, such as to wash hands prior to a meal or to go to the washroom before leaving the house.
h. Ms. Abou Sleiman testified that F has spit on her and kicked her.
i. F calls his mother “kaki”, which he used as a negative and insulting descriptor). Mr. Constantinou also testified that he heard F call his mother “cocksgirl”.
j. On occasion, Ms. Abou Sleiman says goodbye at the end of a visit, F will say “I don’t want to see you again. I don’t love you. You are not my mother”.
k. F does not wish Ms. Abou Sleiman to participate in school activities. He declines to work on school projects (Valentine’s and the Name project were two mentioned in detail). On one occasion, when Ms. Abou Sleiman wrote in F’s school agenda, he told her that she was not allowed to do so.
l. Exhibit KK: On January 4, 2024, F was speaking with his mother. Ms. Abou Sleiman was so concerned about F’s comments that she made an audio recording. It was disclosed to Mr. Otaki and the court admitted it as evidence at the trial. The recording is heartbreaking and consists of a seven-year old boy using very adult language and saying things like he does not love or like his mother and if he does not love his mother, he does not have to see her.
[49] The court is cautious, to be point of being loathe, to admit recordings of children[^10].
[50] In this case, I accept the recording of F. as his statements on one date, in one situation. He did not know he was being recorded. He was not being interviewed by a professional. He was simply speaking to his mother.
[51] We have no information about when the recording was started or stopped relative to when the conversation began and ended. Both parties argued that the recording supported their position: Ms. Abou Sleiman said it constituted evidence of alienation; Mr. Otaki said it was evidence of his son’s wishes.
[52] In the final analysis, I do not give that much weight to the recording due to the lack of controlled circumstances, including the recording setting and the lack of professional involvement. The court’s view is that it represents F, trying to navigate a situation entirely made by others with a complete lack of professional assistance, which he should have had.
[53] The court’s biggest concern about the recording was Mr. Otaki’s urging that I should take it as evidence of F’s wishes. In my view, no objective listener could hear that recording without concluding that F needed professional help as soon as possible.
[54] On cross, Mr. Otaki denied seeing F threaten his mother, spit, throw things, etc. but conceded that professional help is needed “if those things are happening”. He also agreed that goals of reunification therapy were not met.
[55] It is of concern to the court that Mr. Otaki qualified his evidence (“if” those behaviours are happening). This one phrase underscores his lack of trust in Ms. Abou Sleiman and his lack of support for her in a parenting role, despite his other statements to the contrary at trial.
[56] Mr. Otaki’s witnesses (Mx. Gunn, F’s schoolteacher, and Mr. Otaki’s friends) emphasized that F is good at school and good at interacting with others. The court accepts that F is an outgoing boy who does well at school. However, that is not the full picture. Indeed, all of these witnesses conceded that F never mentions his mother.
[57] Doing well at school and being able to converse with adults are not the only barometers of success. At the same time that F can do these things, he is violent and disrespectful towards his mother.
[58] Mr. Otaki (and his family members who testified) deny that he overtly encourages F’s problematic behaviours exhibited with Ms. Abou Sleiman. That said, there is also no evidence that he is doing anything to try to address them. Passivity is no longer an option.
[59] Mr. Otaki also placed emphasis on the importance of the “psychological parent”[^11]. The court agrees that Mr. Otaki is currently F’s psychological parent. However, that does not mean that F cannot and should not have an opportunity for good relationship with both parents. That does not mean that the psychological parent may change over time.
[60] The court also must consider how and why Mr. Otaki is the psychological parent. Ms. Abou Sleiman contributed to this situation with her original decision to depart Canada and consent to 2019 final order. However, the court finds that Mr. Otaki was also a major contributor with this decision to withhold in-person visits with Mum for three years.
[61] I find that F will benefit from assistance in strengthening his relationship with Ms. Abou Sleiman and her side of the family so that the relationship has an opportunity to be as strong as with the Otaki side.
iii. Section 16(3)(c): Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.
[62] There is no evidence that Ms. Abou Sleiman has done anything but support and encourage F’s relationship with his father and the father’s family.
[63] The story is different for Mr. Otaki. While he acknowledges his period of contempt, Mr. Otaki maintains that he is entirely in compliance with the current court orders. Indeed, in closing submissions, Mr. Otaki submitted that he “cannot be faulted post February, 2023”. The court disagrees with this conclusion. Mr. Otaki has not been blameless since February, 2023 and is not in compliance with the order for reunification therapy. This will be discussed further below.
[64] Mr. Otaki says that he wants F to have a relationship with his mother. He needs to consider the big picture. Mr. Otaki agreed that Ms. Abou Sleiman was a good mother who made child-focused decisions for F. However, he seemed to undermine those answers with other evidence which seemed needlessly antagonistic.
[65] Mr. Otaki took time in his evidence to criticize Ms. Abou Sleiman for the most minor issues, such as not having a tissue for F to blow his nose on one car trip. He stated that such a circumstance would never happen with him;
[66] Mr. Otaki was extremely critical of Ms. Abou Sleiman for not attending F’s activities such as basketball and school events, despite the clear evidence that F did not wish his mother to participate;
[67] A prior court order granted the parents 50/50 parenting time. Ms. Abou Sleiman did not immediately use 50%; she testified that she later asked Mr. Otaki for more time and he refused. Mr. Otaki’s response was to ask “but you didn’t bring a motion?”
Parental Alienation
[68] The parties spent considerable time and effort arguing whether this was a case of parental alienation. Each parent asks me to find that the other has alienated the child based on psychological literature both parties handed up with their caselaw, yet none of that literature was put into evidence through the literature authors or other experts.
[69] Ms. Abou Sleiman relied on cases of extreme parental alienation: for example, cases in which sexual abuse was alleged, the CAS was considering protective proceedings and/or the police had regular involvement in family life. Those are not the circumstances in this case. That said, there are many behaviours of concern.
[70] Another important difference between the alienation cases relied on by the parties and this motion to change is that the vast majority of cases provided professional evidence to the court: evidence from treating clinicians or experts. That vital opinion evidence was missing in this case.
[71] Notwithstanding the urging of both parties and the considerable time spent on this issue, it is not necessary for the court to make a finding on the allegation of alienation. Finding or rejecting alienation is not a precondition to the court deciding the motion to change.
iv. Section 16(3)(d): History of care of the child
[72] At the time of the final order in 2019, Mr. Otaki was the primary caregiving parent, although he was not a solo parent in that he was assisted by his family, particularly his mother.
[73] Mr. Otaki cites cases which emphasize the importance of the status quo[^12]. The court certainly recognizes that legal principle. At the same time, the court is not obligated to give effect to a status quo which arose through self-help remedies and/or parental conduct which was not in the best interests of the child.
[74] In this case, the status quo arose because Mr. Otaki did not comply with numerous court orders, including the original 2019 court order, as it relates to parenting time for Ms. Abou Sleiman. I therefore give this factor little weight.
v. Section 16(3)(e): Child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
[75] Mr. Otaki urges me to take into account the wishes of the child, which he says are certain, based on three sources:
a. OCL: F told the OCL that he misses his Dad; the OCL reported that Mr. Otaki is the primary caregiver and F looks to Dad when F is in distress.
b. F’s psychological parent continues to be Mr. Otaki.
c. Exhibit KK: recording of F in January, 2024 in which Mr. Otaki submits F is “pleading to go home”.
[76] Mr. Otaki’s position ignores:
a. F was only seven years old when he expressed these feelings;
b. the impact of F not seeing his mother in person between January, 2020 and February, 2023; and
c. the absence of any therapy for F, ever.
[77] Mr. Otaki’s arguments on this point show a lack of insight and reflection about his child’s wellbeing and circumstances.
[78] I find that Mr. Otaki’s argument that the recording of F (Exhibit KK) represents F’s “wishes”, is an avoidance his parenting responsibilities. In doing so, Mr. Otaki appears to rest this entire case on F’s shoulders, an unfair and inappropriate burden.
[79] To the extent F expresses a preference for his father, this court sees that preference through the lens of a little boy, who was withheld from his mother for a period of time, who has had no professional supports in helping him to reunite with his mother. F should be given those resources.
vi. Section 16(3)(f): Child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
[80] I find that both parents are capable of raising F in a way that is supportive and respectful of his culture, language (English, Arabic and French) and religion (Mr. Otaki is Orthodox Christian and Ms. Abou Sleiman is Catholic).
vii. Section 16(3)(g): Any plans for the child’s care
[81] As noted above, the parties seek two very different orders from the court.
[82] Ms. Abou Sleiman asks the court to make her the sole decision maker for F and order a parenting reversal and blackout period for six weeks. The court will maintain jurisdiction. A therapist (Howard Hurwitz) will work with the family for a year (paid for by Mr. Otaki) and advise the court on contact with Mr. Otaki following the blackout period. F will change schools.
[83] Mr. Hurwitz is a social worker who works with high conflict families. He has been accepted by this court as an expert. Mr. Hurwitz did not testify at trial, but Ms. Abou Sleiman says that he is willing to work with this family.
[84] Ms. Abou Sleiman also asks the court for orders permitting her to travel with F and giving her responsibility for F’s government/identity documents.
[85] Mr. Otaki seeks an order for the status quo: the current schedule shall be maintained (five nights with Ms. Abou Sleiman, nine nights with Mr. Otaki) and family counselling shall be added, with the cost shared between the parents proportionate to income. F will continue to attend his current school.
[86] During the trial, Mr. Otaki suggested a name of a family therapist (Marvin Arthur), but had not contacted Mr. Arthur and was relying on the therapists website which stated that new clients were being accepted.
[87] Mr. Otaki will remain the decision maker. Ms. Abou Sleiman may travel (on notice) within Canada or to a Hague country.
[88] Ms. Abou Sleiman argues that the court must prioritize the child’s long-term interests and that it is an error to over-focus on the short-term drastic impact that a change in parenting will have[^13]. Mr. Otaki argues that the plan for a parenting reversal and black out period would be devastating for F.
[89] I agree that the court’s primary focus should be on the long-term interests[^14], but the court cannot disregard the short-term health and well-being of a child.
[90] The court must also be satisfied that the radical short-term change proposed by Ms. Abou-Sleiman will not result in long-term or irreparable harm to F. This is not to suggest that Ms. Abou Sleiman wants or intends such a result; quite the opposite. The difficulty is that there was a complete absence of evidence on the anticipated reaction of F to the changes proposed by Ms. Abou-Sleiman. The court is extremely concerned about this evidentiary vacuum.
viii. Section 16(3)(h): The ability and willingness of each person to whom the order applies to care for and meet the needs of the child
[91] This court finds that there is no issue with either party’s ability to parent F.
[92] The court notes several instances at trial when it was suggested (overtly or implied) that Mr. Otaki was the better, more stable parent because of his family’s economic status and consistent housing. The court does not accept that position. Economic advantage does not guarantee good parenting. Having the same address year over year does not guarantee good parenting. There is nothing about the Ms. Abou Sleiman’s financial circumstances or housing that causes the court any concern.
[93] At other points in the trial, Ms. Abou Sleiman’s mental health was under considerable scrutiny. There is no evidence that Ms. Abou Sleiman’s mental health poses any limitation on her ability to parent F.
[94] Although Mr. Otaki is the psychological parent, there is absolutely no reason why F cannot have an equally loving and meaningful relationship with Ms. Abou Sleiman.
ix. Section 16(3)(i): The ability and willingness of each person to whom the order applies to communicate and cooperate, in particular with one another, on matters affecting the child.
[95] Ms. Abou Sleiman and Mr. Otaki communicate effectively enough regarding the tasks of everyday life.
[96] What is missing is collaboration and support for raising F to have a loving, respectful relationship with both parents.
x. Section 16(3)(j): Any family violence and its impact on, among other things: the ability of the perpetrator of the violence to care for the child and cooperate with others caring for the child.
[97] Neither parent perpetrates violence against F, which is the primary concerns of this section.
[98] As noted above, Ms. Abou Sleiman testified that F hits her and spits on her, behaviours which should be a priority for both parents to address.
[99] At the time of trial, Ms. Abou Sleiman’s sister (Rachelle) and Rachelle’s child, C, were living with her. C is F’s cousin. There was evidence that C bit F on two occasions. Ms. Abou Sleiman acknowledged that this should not have happened, and action was taken with C.
[100] Mr. Otaki placed considerable weight on these events. The court disagrees. There was appropriate intervention. The fact that this occurred does not mean that F is in an unsafe environment or being parented poorly by Ms. Abou Sleiman
xi. Section 16(3)(k): Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[101] The court considers the November 9, 2022 order to be relevant to F’s well-being. This order is addressed in the next section.
xii. Section 16(5): Past conduct: section 16(5) requires the court to disregard past conduct of any person unless that past conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[102] At trial, the parties spent enormous time on the past conduct of each other. As noted above, while context is always appreciated, this evidence, at times, seemed to be an opportunity for the parties to litigate the trial they did not have in 2019 at the time of the consent order.
[103] In accordance with section 16(5), the court has ignored any past conduct which is not relevant to the parenting abilities of the parties. Of all the evidence from both parties on past conduct issues, there are three issues that warrant comment:
a. The Ring doorbell recording;
b. Mr. Otaki’s past contempt; and
c. The absence of reunification therapy.
The Ring Doorbell Recording
[104] In 2019, when the marriage was deteriorating, Ms. Abou Sleiman was considering returning to Lebanon. At one point she had a telephone conversation with her sister that was captured on the home’s Ring doorbell video and audio recording. The sister suggested that Ms. Abou Sleiman procure a forged passport for F. Ms. Abou Sleiman testified that her response was that she could never do that.
[105] An enormous amount of trial time was spent on this exchange. All of the evidence boiled down to the following core facts:
a. The sister, Rachelle, testified that she made this suggestion in a moment of rash frustration and regretted it.
b. Ms. Abou Sleiman says that what she meant by she could not “do it” was that she would never take F illegally.
c. Mr. Otaki thinks that what Ms. Abou Sleiman meant was that she would not be able to procure a passport for F.
d. Nobody ever tried to improperly remove F from the jurisdiction.
[106] The court finds that this 2019 exchange is wholly irrelevant to the motion to change. The court is dealing with the fresh inquiry of the child’s best interests.
[107] If this finding of irrelevance if wrong, then an adverse inference should be drawn against Mr. Otaki for failing to produce the recording. Mr. Otaki is in possession of the Ring doorbell recording. In chief, Mr. Otaki maintained that the audio was so poor it could not be translated and that the recording was in a dialect that could not be translated. There was no evidence of this. These are not Mr. Otaki’s determinations to make. In cross, Mr. Otaki agreed that Ms. Abou Sleiman’s counsel requested the recording but he did not produce it.
Mr. Otaki’s Past Contempt
[108] Mr. Otaki concedes that period of contempt (October, 2021 to February, 2023) impeded relationship between F and Ms. Abou Sleiman. In closing he said that he could not quantify the impact, but took responsibility for it.
[109] Mr. Otaki submits that his campaign of alienation stopped in February, 2023. I agree that F. started to see his mother as of February, 2023. However, Mr. Otaki’s position shows no nuance, insight, reflection or inquiry about the impact of the period of contempt on F, and more concerningly, no effort to address that impact.
[110] In his closing, Mr. Otaki submitted that he recognized his shortcomings and did more than what the court order required. That submission encapsulated Mr. Otaki’s impassive and flawed approach to his case. There was no evidence of any insight of the impact his actions might have had on his son.
[111] This court’s consideration of Mr. Otaki’s past conduct has nothing to do with punishing him for his past contempt; that occurred in another proceeding. The court’s examination of the past conduct and the impact that conduct had on F is about determining F’s best interests and getting the best care for F.
The Absence of Family Reunification Therapy
[112] The court ordered family reunification therapy in November, 2022. It did not start until May, 2023. The parties chose Marie Dolson as the therapist.
[113] There was a letter from Ms. Dolson’s letter in the trial record. She was not called at trial due to a scheduling issue.
[114] Ms. Abou Sleiman and Mr. Otaki disagree about the how the court can use Ms. Dolson’s report. In essence, Ms. Abou Sleiman wants me to find that Mr. Otaki was the cause of the termination. Mr. Otaki submits that the report from the therapist is not credible so that such a finding is not open to me.
[115] The fact that therapy was terminated in October, 2023 is not disputed. It is not necessary to make findings on who or why the Dolson therapy retainer was ended. That matter is irrelevant to the issues on this motion to change.
[116] However, the court is enormously concerned about what occurred after the Dolson retainer ended. Even assuming that Mr. Otaki is correct and Ms. Dolson was somehow biased against him, that does not change the facts:
a. The parties were ordered, on November 9, 2022, to immediately engage in reunification counselling with Mr. Otaki to pay the costs.
b. The court had to make another order on February 21, 2023, because therapy had not been started.
c. Ms. Dolson did not start her retainer until May, 2023. The delay was of concern to Ms. Abou Sleiman, not so much to Mr. Otaki. .
d. After Ms. Dolson ended her retainer in October, 2023, Ms. Abou Sleiman noted regressions in F’s behaviour; she informed Mr. Otaki verbally and later in writing. Mr. Otaki’s response was to say that he did not see those same behaviours at his home or school.
e. On November 21, 2023, Ms. Abou Slieman asked Mr. Otaki to hire a new therapist and suggested four alternatives. Mr. Otaki had his lawyer respond on December 1, saying “if these behaviours are indeed happening, they are happening only at your home” and “The reunification therapy was carried out in earnest by Mr. Otaki and for reasons that are beyond this email, the reunification therapist saw fit to terminate”.
[117] I find that the termination of the therapy (even if it was entirely at Ms. Dolson’s instance) did not relieve Mr. Otaki from complying with the court order and obtaining reunification therapy.
[118] Even if that finding is incorrect, the court order aside, this little boy needed help. Even if these behaviours were not witnessed directly by Mr. Otaki, it should have been sufficient that Ms. Abou Sleiman reported the concerns.
[119] In a case which devoted so much time to which parent made child-focused decisions, Mr. Otaki’s inert, lack of action was perhaps the least child-focused of all.
[120] In his closing submissions, Mr. Otaki said that he wants counselling, but just does not want to pay.
[121] If Mr. Otaki did not trust Ms. Dolson, he could have complied with the court order, organized alternative reunification therapy for F, paid for the therapy and, if necessary, litigated the question of which parent should pay. That would have been in F’s best interests.
xiii. Section 16(6): Maximum parenting time: the court should have as much time with each spouse as it consistent with the best interests of the child.
[122] The parties live in the same region with no stated plans to move. F is 8 years old. There is no reason why he should not have equal time with each parent. If this is to be revisited, it should be after an appropriate period of reunification therapy.
VI. F’s Best Interests
[123] It is in F’s best interest to have a strong, healthy, respectful relationship with his mum: one F is not embarrassed about or wants to hide, just like the relationship he has with his dad.
[124] It is in F’s best interests to have an opportunity to repair and rehabilitate relationship with his mum and make up for lost time in a supportive, therapeutic environment with clinical oversight.
[125] It is in F’s best interests to have the reunification therapy ordered by the court in November, 2022 and recommended by the OCL in May, 2023 but still has not occurred.
[126] The only question is how to best achieve that.
[127] Mr. Otaki’s status quo plan with some family counselling is insufficient in these circumstances.
[128] Ms. Abou Sleiman’s model asks for a parenting reversal for six weeks, a blackout period, an order to work with therapist Howard Hurwitz and a change of school.
[129] Ms. Abou Sleiman’s model is more proactive, but the court is concerned that there was no clinical evidence that this plan had sufficient protective measures in place to protect F from short term (and long term harm). Simply put, taking a young child, who is already exhibiting maladaptive behaviours and reserving parenting is too risky, especially in the absence of clinical opinion that there is likely to be a successful outcome.
[130] Tracy Majewski, a clinician with the OCL became involved with this family in December, 2022 on the court’s order. Following her investigation, Ms. Majewski had a disclosure meeting with the parties in late April, 2023 and she issued a report dated May 10, 2023.
[131] In her May, 2023 report, Ms. Majewski noted that F was struggling with the transitions to his mother, although he was not refusing to attend (this was reported by both parents). To Ms. Majewski’s observation, F seemed a bit confused by the two parental figures. She made several recommendations, including for reunification therapy, that Ms. Abou Sleiman become the decision maker and recommended 50/50 time between parents.
[132] Both parties were permitted to cross-examine at trial. Despite the lengthy and vigorous questioning (just over four hours by both parties), the practical reality is that Ms. Majewski’s information was ten months old at the time of trial: this was not the fault of Ms. Majewski.
[133] There was a dispute between the parties as to why an updated OCL report had not been obtained. To decide the issues in the case, it is not necessary to find which party is responsible for the lack of an OCL update.
[134] For all of the reasons set out above, the court finds that the following core plan is in F’s best interests:
[135] F and his parents will immediately start family reunification therapy work with Howard Hurwitz. In the event Mr. Hurwitz is not available, the parties will provide the trial judge with a list of reunification counsellors by September 27, 2024
[136] The therapy will be paid for by Mr. Otaki.
[137] The parties abide by Mr. Hurwitz’s therapeutic recommendations.
[138] The court will receive Mr. Hurwitz’s interim report and recommendations by the end of January, 2025.
[139] Pending the review hearing in January, 2025, Ms. Abou Sleiman may have 50% parenting time.
[140] Ms. Abou Sleiman will have the option of transporting F to and from the transitions. The parties will have to agree on a schedule.
[141] The OCL is asked to remain involved to assess progress and compliance:
[142] Further details are noted in the Order section below.
VII. DECISION MAKER
[143] Neither party seeks an order for joint decision making, nor to they seek an order for parallel decision making.
[144] As a practical matter, the major decisions for F at present pertain to school and health care.
[145] For the time being, until the recommendations from the reunification therapist are received, Mr. Otaki will remain the decision maker.
VIII. TRAVEL
[146] Both parents seek orders pertaining to travel with F.
[147] Given the therapeutic work which needs to be undertaken, travel planning for either parent is premature. Indeed, neither parent spoke of potential travel in their trial testimony.
IX. DOCUMENTS
[148] F’s passport is currently being held by Mr. Otaki’s real estate lawyer. That will continue for the time being.
[149] Mr. Otaki has F’s other government documents (health card, etc).
[150] Mr. Otaki shall immediately give Ms. Abou Sleiman colour copies (digital and hard copy) of F’s OHIP card and any other government/identity documents in his possession (including, but not limited to: hospital card, social insurance number card, birth certificate, etc).
X. CONTINUING JURISDICTION OF COURT
[151] The trial judge has inherent jurisdiction to maintain carriage of a matter involving a staged order[^15].
[152] I find that it is in F’s best interests that the court maintain jurisdiction over this matter for the period of a year. It is clear that the status quo is not working. There have to be changes to how the parties function.
[153] This will be a stepwise process. The parents need a forum to come back to. The court needs to be able to rule on any disputes between the parties. The trial judge is best placed to do that.
[154] This matter shall return to me on dates fixed by the parties through the Brampton Trial Coordinator. A day-long hearing should be booked to occur by the end of January, 2025. The purpose is to receive updates regarding the child and evidence from any professionals involved with the family, particularly Mr. Hurwitz and Ms. Majewski. The parties may request 9am attendances before me for any immediate or brief issues.
[155] The court may convene further hearings depending on the status of the case and the court may also amend its order to address the best interests of F.
XI. ORDER
[156] I therefore make the following orders:
[157] Until September 30, 2025, I shall remain seized of this case.
[158] The OCL is requested to continue to monitor and engage with this family in order to counsel the parties and the court regarding F’s best interests.
[159] The parties shall immediately engage the reunification therapy services of Howard Hurwitz. The parties will sign any consents required for Mr. Hurwitz.
[160] If Mr. Hurwitz unwilling or unable to work with family, parties will immediately propose alternative reunification therapists and select one. If the parties cannot consent to an alternate reunification counsellor, the parties will reattend before me.
[161] In providing reunification therapy, Mr. Hurwitz will advise the parties on his opinion regarding the best therapeutic approach and the best outcome for F on the topics of:
a. Decision making;
b. Parenting time;
c. Makeup time;
d. Travel;
e. School placement;
f. Blackout period; and
g. Any other issue relevant to F’s best interests.
[162] Mr. Otaki will pay for the reunification therapy until the first court review in January, 2025.
[163] The parties will communicate using a parting app such as AppCLose or Our Family Wizard.
[164] Neither party shall move outside Peel Region without parental consent or a court order.
[165] Any renewal of any identity document for F, including, but not limited to a passport, OHIP card, birth certificate or SIN card, will require consent of both parents.
[166] Both parents shall have the right to communicate with and receive information from any education, extra-curricular or treatment provider for F.
[167] Both parents shall have the right to participate fully in F’s education and extra-curricular activities.
[168] Each party is to facilitate and promote the arrangements in this court order.
[169] Each party is to facilitate and promote a good relationship between the child and the opposite parent and opposite parent’s family.
[170] Neither parent is to make disparaging remarks about the other or the other’s family in a place or manner that F. may hear or learn of.
[171] Each parent is required to take active steps to prevent any other person from doing anything that the parent is prohibited from doing under this order.
[172] With the exception of emergency motions, any motions pertaining to this matter will be brought before me.
XII. CLOSING COMMENTS
[173] Thank you to counsel for their submissions and to the parties for their candour. The court recognizes that the events of the last six years have been difficult for both parties and for F. Despite their differences, the parties are united in wanting the best outcome for F, which is also the goal of the court.
L. B. Stewart J.
Released: September 13, 2024
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ABOU SLEIMAN, MURIELLE Applicant
- and-
OTAKI, ABDO Respondent
BEFORE: Justice Stewart
COUNSEL: LUSCOMBE, JESSICA, HUDANI, FARRAH, for the Applicant
SINGER, JAMES, for the Respondent
MOTION TO CHANGE: REASONS FOR DECISION
L. B. Stewart J.
Released: September 13, 2024
[^1]: Endorsement of Agarwal, J., released November 9, 2022. [^2]: Endorsement of Agarwal, J., released February 21, 2023. [^3]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at paras. 49-50. [^4]: Webster v. Suteu, 2016 ONCJ 39, [2016] O.J. No. 379, at para. 73. [^5]: K.K. v. M.M., 2021 ONSC 3975, [2021] O.J. No. 3820, at para 713, aff’d 2022 ONCA 72, 466 D.L.R. (4th) 559. [^6]: A.M. v. C.H., 2019 ONCA 764, [2019] O.J. No. 4970, at paras. 34 and 48-54. [^7]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s.16(1). [^8]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s.16(2). [^9]: K.K. v. M.M., 2021 ONSC 3975, [2021] O.J. No. 3820, at para. 714, aff’d 2022 ONCA 72, 466 D.L.R. (4th) 559. [^10]: X. v. Y., 2016 ONSC 545, [2016] O.J. No. 1148, at paras. 80-81. [^11]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 121. [^12]: M.L. v. J.C., 2017 ONSC 7179, [2017] O.J. No. 6603, at paras. 158-159. [^13]: A.A. v. S.N.A., 2007 BCCA 363, [2007] B.C.J. No. 1474, at paras. 26-28; D. v. T., 2021 ONSC 2945, [2021] O.J. No. 2318, at para. 126. [^14]: A.A. v. S.N.A., 2007 BCCA 363, [2007] B.C.J. No. 1474, at para. 27. [^15]: D. v. T., 2021 ONSC 2945, [2021] O.J. No. 2318; X. v. Y., 2016 ONSC 545, [2016] O.J. No. 1148.