Court File and Parties
COURT FILE NO.: FS-24-44224-0000 DATE: 20241113 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moheed Khalid Khokhar, Applicant AND: Bazgha Rehman, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Kirsi Ralko, for the Applicant Ritika Narang, for the Respondent
HEARD: November 12, 2024
Endorsement
Nature of Motion
[1] This was a motion brought by the applicant husband for parenting time with the parties’ two children, S., a daughter, age 6, and J., a son, age 2. The husband has not had any parenting time since August 16, 2024. He seeks a temporary, without prejudice, order for parenting time every Saturday, from 9:00 a.m. to Monday morning at school and every Wednesday, from after school to 7:00 p.m. The respondent wife opposes the husband having any unsupervised parenting time.
Issues to be Decided
[2] The issues for me to decide are:
a. Is it in the best interests of the children to have unsupervised parenting time with the husband?
b. If the answer to a. is no, what temporary order for supervised parenting time is in the children’s best interests?
[3] I find that it is in the children’s best interests to have supervised parenting time with the husband for the next four weeks, pursuant to the schedule described below. The parties shall then return before me with the benefit of supervision notes with a view to expanding the husband’s parenting time.
Background
[4] By way of background facts, the parties were married in Pakistan on February 6, 2015, pursuant to an arranged marriage.
[5] The husband sponsored the wife, and about a year after marriage, the wife immigrated to Canada in November 2016.
[6] The parties’ two children, S., a daughter, age 6, and J., a son, age 2, were both born in Canada.
[7] The parties lived in a matrimonial home in North York, which is owned by the husband and the paternal grandparents, who the wife named as third parties in this action.
[8] Throughout the marriage, the husband’s brother resided in the matrimonial home in the basement unit and contributed to the mortgage on title to the house.
[9] At one point, the wife’s sister was married to the husband’s brother. They have since divorced.
[10] The parties separated on July 30, 2024, when the husband was charged criminally with two counts of sexual assault and one count of assault against the wife.
[11] As conditions of his release, the husband is not permitted to have contact with the wife, directly or indirectly, except through a mutually agreeable third party to arrange for parenting time. He is also prohibited from being within 100 metres of the wife and cannot attend at the matrimonial home.
[12] The wife describes a relationship of coercive control on the part of the husband, including him taking possession of her identification documents, not permitting her to drive or work, financially controlling her, and perpetrating family violence toward her psychologically, physically and sexually. The husband denies all such allegations.
[13] After being charged criminally, the husband moved into his parents’ condominium and his parents moved into the basement unit of the matrimonial home with the husband’s brother.
[14] The wife deposes that she is being mistreated and subject to harassing and abusive behaviour by the husband’s parents and the husband’s brother, both during the marriage and post-separation. One example of this which concerned the Court relates to the wife’s request to use the laundry room in the basement of the matrimonial home after separation. The husband’s counsel acknowledges that the wife’s request to use the laundry room in the basement of the matrimonial home is problematic because she asked to use it from 10:00 a.m. to 4:00 p.m. on a Saturday without the husband’s parents or brother being present. No alternative was offered to the wife in terms of an agreeable time for her to use the laundry machine. Instead, the husband’s parents have suggested she go to a laundromat. The wife has been doing laundry for both children and herself by handwashing. She does not have a driver’s licence or use of a car. The husband deposed that no one has “forced” the wife to wash the children’s clothing by hand. However, I find that this response is disingenuous. The husband’s suggestion that the wife use a laundromat for her laundry and for the two young children is not a reasonable suggestion in my view nor is it child-focused. This incident demonstrates the high level of conflict between not only the parties but the husband’s extended family and the wife. This is not in the children’s best interests, particularly, when the wife is asking to use the laundry machine to clean the clothing of two young children.
Issue one: Is it in the best interests of the children to have unsupervised parenting time with the husband?
The Law
[15] The test the court is required to consider when determining parenting time is the best interests of the child: s. 16(1) of the Divorce Act.
[16] Primary consideration is to be given to the children’s physical, emotional and psychological safety, security and well-being: s. 16(2) of the Divorce Act, and Pierre v. Pierre, 2021 ONSC 5650 (SCJ).
[17] It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q. 2021 ONCJ 334 (OCJ); N.S. v. A.N.S. 2021 ONSC 5283 (SCJ).
[18] Section 16(3) sets out the list of factors for the court to consider in determining the circumstances of a child and determining best interests.
[19] The court is required to undertake a broad analysis of each child’s specific situation:
a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ).
b. None of the listed factors are given priority, except the primary consideration in Section 16(2) is overarching.
c. No single criterion is determinative. The weight to be given to each factor depends on the circumstances of the particular child.
d. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480; W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Harry v. Moore 2021 ONCJ 341 (OCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); Brownson v. Brownson, 2022 ONSC 5882 (SCJ).
e. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).
f. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641 (ON CA).
g. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young; E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).
h. The court’s unrelenting focus on the best interests of each particular child means that there can be no presumption in favour of any one type of parenting order. All things being equal, each child deserves to have a meaningful and consistent relationship with both parents. E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).
[20] I agree with Pazaratz, J. in Dayboll v. Binag, 2022 ONSC 6510 at para., 19 that
Typically, on an interim motion the court is presented with hastily prepared, conflicting affidavits which are incomplete and untested. The facts are often still evolving. As a result, a temporary order is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. Coe v. Tope, 2014 ONSC 4002 (SCJ); Costello and McLean, 2014 ONSC 7332 (SCJ); Munroe v. Graham, 2021 ONCJ 253 (SCJ); Nicholson v. Nicholson, 2021 ONSC 7045 (SCJ); Shokoufimogiman v. Bozorgi, 2022 ONSC 5057 (SCJ).
[21] The wife maintains that it is in the children’s best interests to have supervised parenting time with the husband.
[22] The written record before me is conflicted. The wife describes a marriage and relationship replete with family violence and the husband denies all such allegations. Although the record has not been tested and cannot be without viva voce evidence, there are some conclusions that can be drawn from the affidavits filed by each party.
[23] A party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position.
a. The greater the restriction sought, the more important it is to show why the restriction is necessary. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ); W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Liu v. Xie, 2021 ONSC 222 (SCJ); Docherty v. Catherwood, 2015 ONSC 5240 (SCJ).
b. The onus is on the parent seeking to limit parenting time to establish on a balance of probabilities that the restrictions are in the child’s best interest. An order for supervised parenting requires evidence of exceptional circumstances. Jennings v. Garrett; Ascani v. Keedi 2021 ONSC 4282 (SCJ).
[24] The wife’s position is that supervision of the husband’s parenting time is justified for the following reasons:
a. The husband was controlling of her throughout the relationship. Examples include him taking her I.D. and educational documents when she arrived in Canada; not permitting her to have a driver’s licence; not permitting her to apply for Canadian citizenship; accusing and mocking her of being “dramatic” when she expressed discomfort when she was pregnant.
b. The husband regularly abused her physically and verbally in front of the children, including calling her names; demanding that she do all the household work, such as laundry, cooking, cleaning, vacuuming, dusting, and calling her a “bad wife” when their daughter S. had some developmental issues.
c. The husband has never put the children’s needs or best interests ahead of his own needs, demonstrating by his refusal to sleep in the same room as the wife and children to prioritize his sleep; requiring the wife to engage in all childcare responsibilities singlehandedly; refusing to allow the wife to take the children to be immunized; prohibiting the wife from breastfeeding either child; controlling the children’s identification in an attempt to prevent the wife from enrolling the oldest child in school until she involved the police; and breaking the children’s iPad in front of the children.
d. The husband sexually abused her in front of the parties’ daughter, such as forcing her to have intercourse while their daughter was sleeping in the bed beside her.
e. The husband dismisses her suggestions regarding the children’s care, including refusing to agree to the parties’ son, J., going to daycare for socialization purposes and preventing the wife from spending time with the children at the library.
f. The husband refuses to play with the children or be involved in any aspect of their care, including potty training them. The husband’s interaction with the children was limited to playing video games with them, even when the parties’ daughter, S., developed an issue with her eyesight.
g. The husband regularly drove the children in an uninsured car without concern.
h. The husband controlled what the children ate.
i. The husband brought a motion to prevent the wife from travelling with the children even though the husband is in possession of her passport and the children do not have passports.
[25] Based on the above, the wife has legitimate fears for the safety of the children and seeks supervision of the husband’s parenting time.
[26] The husband’s position is that the wife has not demonstrated any reason for his parenting time to be supervised. He argues that the Children’s Aid Society (“CAS”) has been involved with the family and supervised parenting time was not recommended by them or the police. Finally, the husband submits that the criminal charges are based on false allegations and have nothing to do with the children and, therefore, should not result in him having supervised parenting time with them.
[27] Moreover, the husband takes the position that the wife is preventing and restricting him from having parenting time. While the husband acknowledges that he saw the children twice, on August 10th and 16th, 2024, when his sister arranged the parenting time with the wife, he does not explain why no further parenting time was arranged. Neither does he provide any reason why he did not arrange supervised parenting time between August and now, even if he did not agree that such supervision was necessary. If the husband’s priority was to have parenting time with the two children, one would have thought that he ought to have taken whatever steps necessary to spend time with them, even if supervised, to at least resume spending time with them.
[28] The wife submits that after the August 16, 2024 visit, she noticed that J. came home with bruises. When the wife asked the husband’s sister about the bruises, she emailed the wife on August 17, 2024 and cancelled the next parenting visit that had been scheduled for the husband. Thereafter, the wife was agreeable to the husband having parenting time on supervised basis. She completed the intake form at Brayden Supervision Centre and advised the husband of this. Despite this, the husband did not take the necessary steps to exercise parenting time on a supervised basis.
[29] I find that the wife has met the onus of demonstrating that on a balance of probabilities, it is in the children’s best interests for their parenting time with the husband to be supervised, at least for a period of time.
[30] The CPIN Disclosure demonstrates that the daughter recalls that the husband slapped her once, but she didn’t know why; she recalled being with her brother on the couch and seeing her father push her mother to the ground and drag her by the leg to the bedroom. She also reported that her uncle yelled at her mother and she saw two new locks on the door where her uncle lives.
[31] While it is possible that the wife has influenced the daughter, it is just as probable, if not more probable that the child has been exposed to parental conflict and conflict between the husband’s parents and his brother toward their wife. This is not in the children’s best interests.
[32] The husband swore two affidavits in support of the relief he is seeking. The first affidavit sworn by the husband was dated September 18, 2024 and contained 40 paragraphs. The second affidavit was sworn by the husband on November 6, 2024 and contained 24 paragraphs. The husband did not include any details, whatsoever, of his involvement with the children in either affidavit, demonstrating that he was integrally involved in their care in either affidavit. Rather, he made vague statements such as:
a. “my parents and I were still highly involved in caring for the children even through the [wife] was home, as she spent most of the day sleeping and watching television while the children were place in front of screens as well,”.
b. “I would typically take a break around 3:15 p.m. to be with the children during the “after school” window.
c. He acknowledges that he broke the iPad when their daughter S. was 3 years old, in a “heat-of-the-moment reaction to seeking S.’s pupil starting to drastically misalign.”
d. He would often take the children out to Downsview Park or other activities when [he] was not working.”
[33] For example, the father did not name the daughter’s teacher, or the children’s doctors, or discuss what his typical routine with the children was. Nor did the father express any details of the children’s attachment to him. There was no mention of things the children like to do with him (other than taking them to Downsview Park), the children’s bedtime or bath routines, or their meal and feeding routines.
[34] In answer to a question from the Court, when asked what the father’s plan was in terms of reinstating his parenting time given that J. is only two years of age and had not had any parenting time in almost 3 months, instead of going to immediate overnight parenting time, the husband’s counsel advised that it would be in the court’s discretion which is why he sought parenting time as he proposed or whatever temporary, without prejudice, regular parenting time as this Honourable Court deems appropriate. Again, one of would have expected the husband to have thought about what graduated, step-up plan, would have been in his children’s best interests, given his familiarity with them and their respective temperaments, instead of leaving it entirely to the court.
[35] Giving primary consideration to both children’s physical, emotional and psychological safety, J.’s young age and both children’s need for stability and consistency, I find that it is in the children’s best interests to have supervised time with the husband for a period of time.
[36] A parenting schedule that will be developmentally supporting of J., age 2, in particular, is one where both children will be safe, comforted by both parents and the children will be protected from harmless levels of stress and conflict. Accordingly, supervised parenting time by Brayden Supervision Services will provide both the children and the husband with an opportunity to resume spending time together in a protected manner and provide regular opportunities for the husband to be involved with their direct care, such as playing, teaching, soothing, settling, routines and transitions. With the benefit of obtaining the supervision notes, the father’s parenting time can begin to take place on an unsupervised basis with some assurances that the children will be able to manage overnight time with him.
[37] The supervision of the husband’s parenting time is not intended to be a long-term remedy. Rather, it is meant to occur on a temporary and time-limited basis designed to resolve the current parental impasse over parenting time and more importantly, to ensure that the children reconnect to the husband in a sensitive and gradual basis, focused only on their needs.
ORDER
[38] Accordingly, this court makes the following order:
a. On a temporary, without prejudice, basis, commencing on November 16, 2024, the husband shall have supervised parenting time with the children as follows:
i. Mondays, from 4:30 p.m. to 7:00 p.m.
ii. Wednesdays, from 4:30 p.m. to 7:00 p.m. and
iii. Saturdays from 9:00 a.m. to 2:00 p.m.
b. The husband’s parenting time shall be supervised by Brayden Supervision Services, to take place in the community. Counsel for both parties shall forward a copy of this Endorsement and Order to Brayden Supervision Services so the parenting time can commence on November 16, 2024. Both parties shall submit whatever documentation is requested of him/her by Brayden Supervision Services.
c. The cost of the husband’s supervision shall be paid for by the husband.
d. Brayden Supervision Services shall be requested to provide supervision notes.
e. For purposes of parenting exchanges, these shall take place with the wife bringing the children to the agreed upon location for parenting time and delivering the children to the Brayden supervisor. The husband shall not leave his vehicle until he sees that the children are in the care of the Brayden supervisor. The wife shall promptly leave the parenting time location once the children are in the care of the Brayden supervisor so the husband can approach the children as soon as practicably possible without violating his release conditions.
f. The wife shall provide the husband with a written summary, through counsel, of the children’s current routines, in terms of feeding, food preferences, soothing routines, nap times, toileting, etc. prior to November 16, 2024, so the husband can ensure that he follows the same routines for both children when they are in his care. The wife shall ensure that the children are sent with any soothing objects. The husband shall make sure that the children are fed when he is with them if the parenting time falls during a meal.
g. If the husband cannot be present for his scheduled parenting time he shall advise the wife through counsel.
h. The husband may bring his parents to his parenting time after he has had at least three consecutive periods of time with the children during supervision on his own to ensure that the resumption of parenting time is positive.
i. Neither party shall denigrate the other in the presence of the children.
j. The parties shall return before me on December 18, 2024 at 9:00 a.m. for a check-in conference, with a view to amending and/or increasing the husband’s parenting time schedule and for this time to commence being unsupervised, provided the supervision notes are positive.
k. There shall be no costs of this motion.
Kraft, J. Date: November 13, 2024