Ontario Superior Court of Justice

Court File No.: FC-24-00059869-0000
Date: 2025/03/19

BETWEEN:
Katherine Demetriou, Applicant
– and –
Siayr Jamali, Respondent

Raman De Souza, Counsel for the Applicant
Shireen Saleem, Counsel for the Respondent

Heard: March 12, 2025
Released: March 19, 2025

The Honourable Justice J. Breithaupt Smith

Reasons on Motion

Preliminary Matter

[1] As a preliminary matter, I note that I am not the “case management judge” as indicated in the parties’ confirmations. In Waterloo Region, we operate on informal case management generally, with parties able to request, through the Office of the Regional Senior Justice, the formal appointment of a case management judge. Such a request has not yet been made in this matter.

[2] Having said this, I confirm that I heard the parties’ Case Conference on January 3, 2025. My endorsement notes: “Case conference held and opinions given primarily regarding procedure and sale of the matrimonial home.”

Scope & Materials

[3] The Applicant Mother (“Mother”) brought a motion dated January 22, 2025 seeking:

a. exclusive possession of the matrimonial home;
b. primary residency of the children, a son (10) and a daughter (7);
c. alternate weekend parenting time between the children and the Respondent Father (“Father”);
d. child support; and
e. costs.

[4] Father brought a cross-motion dated February 6, 2025 for effectively the same relief, except that he does not seek child support and proposes an alternate “nesting arrangement” whereby the children are with him primarily in the matrimonial home which he would vacate on alternate weekends for Mother’s parenting time.

[5] Both parties have uploaded primary and reply Affidavits, along with their Form 35.1 Affidavits and other materials to Case Center. However, only the following documents have actually been filed with the Court:

a. Mother’s Notice of Motion;
b. Mother’s Affidavit dated January 22, 2025;
c. Father’s Notice of Motion;
d. Father’s Affidavit dated February 6, 2025;
e. Mother’s Form 35.1 Affidavit dated March 4, 2025; and
f. Mother’s Responding/Reply Affidavit dated March 4, 2025.

[6] On July 23, 2024, the provincial government enacted Ontario Regulation 300/24 which added Rule 4.05.3 to the Rules of Civil Procedure. The Family Law Rules incorporate certain aspects of the Rules of Civil Procedure by reference, confirming at Rule 1(7) that reference is to be had to the Rules of Civil Procedure if a matter is not covered under the Family Law Rules. The portions of Rule 4.05.3 applicable to today’s situation are as follows:

4.05.3 (1) In this rule,
“CaseLines” means the software authorized by the Ministry of the Attorney General for the purposes of this rule and that is available on the internet under the name “CaseLines”.

(2) This rule applies to all or part of any hearing, pre-trial conference or case conference under these rules, except in a proceeding in the Court of Appeal.

(3) A party shall provide the following documents to the court by submitting them to CaseLines in accordance with this rule, if the court requires the party to do so:

1. Every document the party files or has filed with the court in respect of the hearing or conference.
2. Subject to subrule (5), any other document in the court file that the party intends to rely on at the hearing or conference and that has not already been submitted to CaseLines by another party.
3. A compendium containing the excerpted portions of the cases and of the evidence to which the party intends to refer during the hearing or conference.

(4) Subject to subrule (5), the documents listed in subrule (3) must be submitted to CaseLines by the following deadline:

1. In the case of the hearing of a motion or application where the party is required to give the registrar a confirmation of motion (Form 37B) or confirmation of application (Form 38B), the deadline is 2 p.m. three days before the hearing date, unless the court orders otherwise.
2. In any other case, the deadline is five days before the date of the hearing or conference, unless the court orders otherwise.

(8) The party shall ensure that every document that the party submits to CaseLines is identical to that document as contained in the court file, subject to any modifications required by this rule or the court.

(11) For greater certainty, submitting documents to CaseLines does not amount to the filing or service of those documents under these rules.

[7] Here, again maintaining the exception for costs-related materials, I note that Father uploaded a Financial Statement and an updated Form 35.1 Affidavit to Case Center yesterday.

[8] Case Center has been in use for almost three years. At no time were parties permitted to upload materials without ensuring their proper service and filing. As Justice Piccoli wrote in the unreported case of Dragomir v. Lucuta [1]:

We have long been taking a lenient approach to issues with materials out of compassion for litigants and counsel and in an attempt to ensure access to justice. However, as former Senior Family Judge Czutrin famously reminded us, “what we permit, we promote.”

[9] In that case, Her Honour struck the motion from the list, requiring all materials to be properly filed and uploaded to Case Center before a fresh hearing date could be arranged.

[10] It is not the Court’s responsibility either to pursue counsel to ensure that they have properly filed materials referenced in their Confirmations or to act in a secretarial capacity on the hearing date and correct administrative errors. The only reasonable exception is for materials related to the issue of costs, which would normally be reviewed only at the conclusion of the motion hearing.

[11] Therefore, these motions proceed with argument only on the above-listed documents which have actually been served and filed.

Mother’s Evidence and Position

[12] On the parenting issues, Mother attests that she has long been the primary caregiver. She points to the parties’ work schedules in confirmation of her assertion. Since May of 2014 she has been employed as a Cardiac Cath Lab Attendant with St. Mary’s Hospital. She works two days weekly and is on call every sixth weekend. In contrast, Father works full time for Linamar Corporation on the afternoon shift, which runs from 3:00 p.m. – 11:00 p.m. Monday through Friday. Mother says that she has long borne all child-related responsibilities, including daily routines, preparation for and attendance at special events (field trips, birthday parties, etc.), all time off for illness, all appointments and childcare arrangements. Mother points out that Father has provided no evidence regarding his plan to care for the children while he works, despite his position that she should be the alternate weekend parent.

[13] Mother notes that the relationship has been marred by conflict from its earliest days – she says that paternal family refused to attend the parties’ wedding because they did not accept her. The police have been called to the home multiple times, although no charges have been laid against either party. Mother acknowledges that she has become emotionally escalated in the presence of the children and begs the court to find a way to stop the constant conflict. Child protection services are involved on a voluntary basis and the parties have been cautioned about concern for the emotional well-being of the children.

[14] The parties’ son, who Mother alleges is particularly targeted by Father in his efforts to disrupt the mother/child relationship, is struggling: he has put a hole in the bathroom out of anger and frustration and has engaged in escalating conflict at school. When caught in the middle of his parents’ conflict, he has remarked “I hate my life” and “no one loves me.” Mother notes that Father spends little time with the parties’ younger daughter during his parenting time, such that the little girl asks why only her brother gets to go out with him. She says that Father has the parties’ son sleeping in his room, and that Father will take only that child to school, leaving her to take the parties’ daughter.

[15] Regarding exclusive possession of the matrimonial home, Mother alleges that Father has behaved in an obstructionist manner in delaying the listing, despite having agreed upon the realtor. She alleges that Father directly involves the parties’ son in adult conflict, including actively encouraging the child to fabricate stories about her to the family’s child protection worker and talking to him about financial issues. She notes that Father can readily reside in his parents’ large and well-appointed home, particularly as (she says) they spend much of their time out of the country. Her counsel argues that Father’s proposal for a nesting arrangement demonstrates the availability of alternate accommodations.

[16] Finally, on the issue of child support, Mother notes that Father’s 2023 Line 15000 income generates the table amount of $1,318 for two children. She alleges that the parties’ financial routine was for her to cover all expenses for the children and the household using her credit card, and for the mortgage payments to come out of her chequing account, with Father transferring her the funds to cover these amounts. Since the parties’ separation, she says that Father sends her only his share of the carrying costs of the matrimonial home, leaving her responsible for all other costs without contribution from him. She is owed $2,270.45 in expenses for the children, which figure represents Father’s 59.7% share. She points to Father’s withholding of funds as coercive control and financial abuse.

Father’s Evidence and Position

[17] Father denies any wrongdoing whatsoever. He accuses Mother of attempting to make the matrimonial home “unlivable” by removing household contents and by violating the privacy of his room. He attests that he is under financial strain as he is the one bearing all carrying costs of the matrimonial home and all purchases for the children without contribution from Mother. He denies causing any abuse and writes [sic]:

The Applicant has called the police three times: in June 2023, December 2023, April 2024, and August 2024. No charges were laid against any party. If there were any evidence of violence, the police would have taken action.

[18] Regarding exclusive possession, he claims that he is unable to live in his parents’ home because a brother resides there. He writes: “They are currently outside of Canada; Otherwise I would have submitted their affidavit.” He suggests that Mother can live with her parents but provides no details.

[19] On parenting issues, Father asserts that he has been equally involved with the children, handling the morning routines, making their lunches and taking them to school. He says that Mother is misrepresenting her work schedule and that she is actually working full-time, relying on her parents to watch the children during her evening shifts. He alleges that mother has engaged in alienating behaviors particularly toward their son. He alleges that Mother has physically harmed the parties’ son at least twice, that he has made the child “feel like a liar” and tells the child that he needs mental help and “has taken him to the hospital on multiple occasions.” He takes issue with mother having had the children baptized and alleges that she forged his signature on documentation associated with that activity. He alleges that Mother has thwarted any opportunity for the children to attend paternal family events and states that evidence of this can be found in text messages. No copy of such documentation is provided. Father accuses Mother of continually alienating the children and dividing them one from another. He writes that the parties’ son is deeply affected by Mother’s “cursing and yelling in their presence.” He takes no responsibility for any part in the conflict.

Law & Discussion

Credibility

[20] Motions of critical importance are difficult to decide on the basis of an untested written record. I itemize here some examples of troubling discrepancies in the evidence which could only be addressed through questioning or cross-examination.

a. Father:
i. fails to attach exhibits which could prove his allegations that Mother is primarily responsible for family conflict;
ii. falsifies the importance of a single photo of one almost-empty kitchen cabinet, alleging that it proves Mother’s ransacking of the home; and
iii. relies repeatedly on hearsay to convince the court that Mother is fabricating allegations about school and the mental health of the parties’ son; and
iv. admits that he cannot provide proof that his parents’ home is filled with his relatives because they are out of the country.

b. Mother:
i. avoids squarely addressing the allegation that she is actually working on a full-time basis; and
ii. makes the very serious accusation that Father circulated “my private and confidential messages with a third party with whom I was involved” and a pornographic video of her to her family members, but provides no supporting Affidavit from a family member confirming receipt of this material.

[21] These two cannot agree on the state of the weather on a particular day. In the absence of questioning on the Affidavits, it is very difficult to determine who is trustworthy. However, my focus must remain on the best interests of the children and, where inter-personal conflict is causing emotional harm to them, it is only sensible to prefer the evidence of the individual who admits his or her role in such conflict. Here, Father’s flat denial of any role in the conflict or that the parties’ son is suffering is very worrisome. Further, his materials are primarily focused on the narrative around the listing and sale of the matrimonial home, which is not before me, and provide no information regarding his plan to provide full-time care for the children. Finally, his choices vis-à-vis his exhibits and the inclusion of considerable hearsay evidence (upon which I have not relied) detracts from the reliability of his Affidavit.

[22] Therefore, ignoring all references to the real estate debacle in either party’s materials, where the evidence on parenting issues conflicts, I prefer Mother’s evidence. I would underscore that this finding is entirely without prejudice to future assessment in any other context in this litigation, and obviously that the trial judge will be in the best position to wrestle with this difficult issue.

Parenting Issues

[23] I note here that the Office of the Children’s Lawyer declined involvement on January 30, 2025, citing limited resources.

[24] The parties are married, and therefore Sections 16.1 through 16.4 and 16.6 of the Divorce Act apply. The only consideration is the best interests of the children; parents’ perceived “rights” or other external factors are irrelevant unless they touch directly on a child’s best interests.

[25] The issues of decision-making and parenting time are assessed in the context of the “best interests test,” with detailed factors set out in the prevailing legislation. In the interests of brevity, I will not recite each of the factors as set out in Sections 16.1 through 16.4 and 16.6 of the Divorce Act, but rather note my conclusions below, based upon the evidence and a global assessment of the best interests of these children. I note specifically that my findings at this interim stage are subject to future change based on more fulsome and detailed evidence that will be available to the trial judge.

[26] The following are my conclusions:

a. The children’s emotional and psychological safety are currently in jeopardy as a result of the ongoing conflict between their parents.
b. Both children require stability, particularly in ensuring attendance and engagement at school and in activities, and that they are treated consistently one with the other so as to allow them a positive intra-sibling support as they navigate the toxic collapse of their family unit.
c. The son’s relationship is strained with Mother and leans toward unhealthy alignment with, or favouritism by, Father. Father makes almost no mention of the parties’ daughter in his Affidavit. The evidence suggests that the daughter’s relationship with paternal family is weaker than the son’s. Both children are regularly cared for by maternal grandmother.
d. Both parties allege that the other is intentionally undermining his or her parent-child relationship. Having regard to my assessment of credibility, I find it more likely, on the balance of probabilities, that Father is less willing to support the development and maintenance of the mother-son relationship.
e. I find that, while Father has had some involvement in the morning routines for the children, Mother has been the primary caregiver.
f. The children’s views cannot be ascertained at this time, although it is clear that the parties’ son is struggling and in need of counselling. Other than the allegations of conflict with paternal family, I have no evidence regarding any cultural or heritage matters.
g. Father presents no plan for the care of the children. Mother’s is based on her reduced work hours (two days weekly plus occasional on-call weekends), about which I am frankly skeptical, but relies upon maternal grandmother with whom the children are already very familiar. She is clearly the caregiver who is best acquainted with the children’s needs based on the admittedly limited evidence before the court.
h. I do not believe that Father has sufficient insight into his role in the conflict or its impact upon the children to be able to meet their emotional and psychological needs.
i. The parties cannot cooperate or communicate in a collaborative and respectful manner at this time.
j. Each party accuses the other of family violence. I note with disappointment Father’s reliance upon the false presumption that the absence of criminal charges proves an absence of violence. At this stage I am not convinced, however, that either party has exerted more coercive control over the other financially.
k. In allocating parenting time, it is best for the children to spend the majority of their time with their primary caregiver, Mother, and to spend a lesser amount of time with Father. This will include parameters around contact with the non-caregiving parent, as each party accuses the other of manipulating such parent-child contact.

[27] I therefore conclude that the children should be cared for primarily by Mother. Due to Father’s work schedule, and the absence of any identified parenting supports for him, they will spend alternate weekends, from Saturday at 9:00 a.m. through to Monday delivery to school, in his care. In addition, if Mother is on call during a weekend when the children would normally be in her care, Father will be granted a right of first refusal covering the entire weekend on the same terms.

Child Support & Expense Contribution

[28] Father’s 2023 Line 15000 income generates the table amount of $1,318 for two children. That shall be payable effective April 1, 2025.

[29] Regarding expense contribution, I am not convinced that swimming lessons are “special and extraordinary” under the legislative definition, considering the amount of child support payable. The balance of the receipts attached to Mother’s Affidavit are illegible other than the document from World Ki Moo Gwan Martial Arts Inc. for $2,938.00. Father will reimburse Mother for 59.7% of that amount, being $1,753.99, from his share of the net proceeds of sale of the matrimonial home.

Exclusive Possession

[30] The applicable legislation is found in the Family Law Act at sections 24(1) through (4), which read [inapplicable portions omitted]:

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the house for the use of a spouse or child;

(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;

(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained.

[31] For clarity, there is no request for occupation rent before this court today. Each party seeks exclusive possession of the matrimonial home.

[32] As I have already found that the best interests of the children require them to be in Mother’s primary care, the question remains whether that should include continued residence in the matrimonial home. It is undisputed that Father is clearly the higher income earner. I find that he has ready access to alternate accommodation with which the children are already familiar, namely his parents’ large residence. Mother attests that her in-laws’ residence has four bedrooms in the main living space and a separate finished basement which includes a kitchen and another bedroom. Three of Father’s four siblings are married and live elsewhere – it is only one sister who may or may not be residing periodically in paternal grandparents’ home. As Father confirmed in his Affidavit, paternal grandparents themselves are overseas at this time. There appears to be ample space for Father and the children at little or no cost.

[33] I find that the best temporary solution to the toxic living situation for this family is to grant Mother exclusive possession of the matrimonial home, and I so order. Father will be entitled to take his personal belongings and one-quarter of the children’s personal belongings with him. He will not take the children’s furniture or any items of comfort or significance (i.e. special stuffed animals, etc.). The children may bring such items with them between households.

[34] Both parties are cautioned that a failure to address Father’s departure from the matrimonial home in a calm and child-focused manner will undoubtedly result in further consequences as this litigation continues. Father is encouraged to familiarize himself with sections 24(5) and 24(6) of the Family Law Act.

Costs

[35] Mother was entirely successful on this motion and is entitled to costs. Submissions are to be provided in accordance with the amended Rule 24 (see particularly Rule 24(19)), a copy of which is appended hereto for ease of reference. Costs submissions are to be filed through the Family Submissions Online Portal and sent via email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca indicating in the RE: line that these are costs submissions to my attention.

Conclusion & Order

[36] Based on the foregoing, Temporary Order to issue:

1. On a without prejudice basis, the Applicant, Katherine Demetriou, shall have sole decision-making responsibility for the children, Zayn George Jamali born March 14, 2015 and Zoey Gina Jamali born November 29, 2017. Such responsibility shall include being the librarian for all government documents for the children, which, if they are not already in her possession, shall be provided to her not later than Friday, March 21, 2025 at 12:00 noon.

2. The Applicant, Katherine Demetriou, shall enroll the child, Zayn George Jamali born March 14, 2015, in counselling. In her discretion, she may further enroll the child, Zoey Gina Jamali born November 29, 2017, in counselling, play or art therapy. While the participation and consent of the Respondent, Siayr Jamali, is encouraged, it is dispensed with if not immediately forthcoming.

3. The children, Zayn George Jamali born March 14, 2015 and Zoey Gina Jamali born November 29, 2017 shall reside primarily with the Applicant, Katherine Demetriou. She shall advise the Respondent, Siayr Jamali, of the weekends on which she is scheduled to be on call in her employment (the “on-call weekends”) not later than 12:00 noon on the Wednesday immediately preceding such weekends.

4. The children, Zayn George Jamali born March 14, 2015 and Zoey Gina Jamali born November 29, 2017 shall have parenting time with the Respondent, Siayr Jamali, on the following terms:

   a. Commencing Saturday, March 29, 2025 and on alternate weekends thereafter from Saturday at 9:00 a.m. through to Monday delivery to school.

   b. On the on-call weekends, the Respondent shall advise the Applicant by 12:00 noon on the Thursday immediately preceding such weekend whether he intends to have the children in his care. If so, the weekend will proceed from Saturday at 9:00 a.m. through to Monday delivery to school. If not, or if he fails to confirm as required, the Applicant shall make alternate childcare arrangements without further notice to him.

   c. Exchanges on Saturdays at 9:00 a.m. shall take place at the Tim Horton’s Restaurant located in the River Road Shopping Plaza (River Road and Ottawa Street North, Kitchener). Both parties shall remain in their vehicles and the children will transition between them. There shall be no direct or indirect communication between the parties during this time. No one is to record the exchanges. If possible, both parties are encouraged to obtain the assistance of a family member as proxy to facilitate exchanges and reduce conflict.

   d. Twice weekly, during the Respondent’s break at work, he shall have telephone or video parenting time with both children on such exact terms as are to be determined between counsel with a view to consistency and reliability (e.g. Tuesdays and Thursdays at 7:00 p.m.).

5. The children shall carry any items of special comfort or significance with them between households (e.g. stuffed animals, backpack and items for school, etc.) and neither party shall interfere with this, nor shall they allow any third party to do so.

6. The Applicant, Katherine Demetriou, shall have exclusive possession of the matrimonial home located at 362 Moorlands Crescent, in the City of Kitchener, including its contents other than as specifically set out herein, effective Friday, March 21, 2025 at 12:00 noon and until the closing of the sale thereof.

7. The Respondent shall vacate the matrimonial home by Friday, March 21, 2025 at 12:00 noon. He shall take with him only his personal belongings and approximately 25% of the children’s personal belongings. He shall not take the children’s furniture. He shall not take any items that are of special comfort or significance to the children.

8. The mortgage, property taxes and property insurance shall be divided equally between the parties. The Applicant, Katherine Demetriou, shall be solely responsible for all other household expenses, including utilities and costs for basic household maintenance. Each party shall forthwith arrange his or her own independent motor vehicle insurance.

9. Commencing April 1, 2025 and on the first day of each month thereafter, the Respondent, Siayr Jamali, shall pay child support to the Applicant, Katherine Demetriou, for the support of the children, Zayn George Jamali born March 14, 2015 and Zoey Gina Jamali born November 29, 2017, in the amount of $1,318 monthly based on his 2023 annual income of $87,408 and pursuant to the Federal Child Support Guidelines (Ontario).

10. The Respondent, Siayr Jamali, shall further reimburse the Applicant, Katherine Demetriou, for his proportionate share of the children’s martial arts expense, namely $1,753.99, from his share of the net proceeds of sale of the matrimonial home.

11. SDO to issue.

12. Costs submissions to be provided in accordance with the amended Rule 24(19), to be filed through the Family Submissions Online Portal and sent via email to my judicial assistant mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. As the successful party, the Applicant, Katherine Demetriou, shall provide her submissions first and the Respondent, Siayr Jamali, shall respond.

13. Next step is Settlement Conference scheduled for Friday, June 27, 2025 at 11:00 a.m.

J. Breithaupt Smith
Released: March 19, 2025

[1] Dragomir v. Lucuta, Court File No. FC-10-FS-44165-003, heard at Kitchener on November 11, 2024.