Chyher v. Al Jaboury, 2025 ONSC 998

minicounsel

COURT FILE NO.: FC-20-1221
DATE: 13/02/2025
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Maryana Chyher, Applicant
– and –
Amar Al Jaboury, Respondent

Appearances:
J. Allison Campbell for the Applicant
Valerie Akujobi
Chantal Carvallo for the OCL

Heard: January 16–31, and August 6 and 29, 2024

Reasons for Decision
Justice T. Engelking

Introduction

1This is a tragic case of two brothers, A.G., born on June 8, 2009, and S.G., born on December 9, 2010. This ought to have been a case of a simple separation of two adults whose relationship was no longer sustainable by July of 2020, which undoubtedly would have resulted in a shared parenting regime for two young men who love both of their parents; instead, and for no good reason, it became one of struggle, hatred, alienation, and protracted litigation.

2On July 22, 2020, this family’s life irrevocably changed. On this date, Mr. Al Jaboury lost control over Ms. Chyher; on this date, Ms. Chyher extricated herself, not only physically, but also emotionally from Mr. Al Jaboury. For this, both she and the children have paid a very hefty price. While Ms. Chyher’s relationship with A. and S. has been repaired to a certain extent, due mainly to the intervention of the court, it has not been entirely restored. A., in particular, continues to struggle with what he identifies as the transgressions of his mother, and he remains angry; S. is susceptible to A.’s moods and to following in his footsteps.

3For the reasons set out below, there will be a Final Order of, inter alia, week about parenting time commencing March 1, 2025, and specified holiday parenting time, as well as an order granting Ms. Chyher sole decision-making authority over the children.

Background Facts

4Ms. Chyher was born on June 11, 1985. She is from Ukraine. Mr. Al Jaboury was born on August 1, 1968, and is Iraqi, though his father has Syrian citizenship, and his mother is Syrian. Mr. Al Jaboury came to Canada on August 22, 1998, and has since become a Canadian citizen. Ms. Chyher was raised as a Christian. Mr. Al Jaboury is Muslim.

5Ms. Chyher met Mr. Al Jaboury briefly in June of 2007 at the office of her then dentist, who was Mr. Al Jaboury’s brother. Ms. Chyher and Mr. Al Jaboury met again on January 2, 2008, when Mr. Al Jaboury’s brother invited her for coffee. Ms. Chyher understood that Mr. Al Jaboury lived in Canada. Ms. Chyher was studying architecture in Lviv, Ukraine at that time. Mr. Al Jaboury indicated to Ms. Chyher that he was looking to marry, and Ms. Chyher thought that he was interesting and serious. Although she was Christian and he was Muslim, she did not see this as a problem; rather she felt although Islam was stricter than the Christianity she practiced, the two had a lot of similarities.

6Over Christmas (January 6/7 by the Orthodox calendar) of 2007, Ms. Chyher discussed the prospect of marriage with Mr. Al Jaboury with her parents, who were not supportive of the idea. When Ms. Chyher returned to her school campus after the Christmas break, Mr. Al Jaboury called her and they spent three days talking, after which she agreed to marry him. Ms. Chyher expected that it would take around three months to obtain the necessary documentation to marry in Ukraine; however, it happened very quickly, and the pair were married on February 8, 2008. Mr. Al Jaboury was 39 years old, and Ms. Chyher was 22. At the time that they met, Ms. Chyher spoke Ukrainian and Russian. Mr. Al Jaboury spoke Arabic, English and some Russian. They communicated with each other in Russian.

7Mr. Al Jaboury returned to Canada after the wedding and commenced the process to sponsor Ms. Chyher to come to Canada, while she continued with her studies in Lviv. Mr. Al Jaboury visited with Ms. Chyher in Ukraine for two months in the summer of 2008, at which time she became pregnant with A. Ms. Chyher completed her studies in December of 2008, and travelled to Canada on February 16, 2009.

8Ms. Chyher immediately commenced ESL courses, which she continued until A.’s birth in June. Mr. Al Jaboury worked throughout the relationship as a taxi driver, as he does to this day, and, according to Ms. Chyher, he spent very little time at home. Ms. Chyher indicated that Mr. Al Jaboury originally worked from 3:00 a.m. to between 5:00 and 6:00 p.m., and later changed his schedule to from 4:00 a.m. to between 6:00 and 7:00 p.m. He spent one day at home with her after A.’s birth and then immediately returned to work. Ms. Chyher’s evidence was that most of the time, Mr. Al Jaboury was out of the house, and that he took no days off from work, with the exception of an approximately one-month vacation to Ukraine when A. was about a year old, and a couple of much shorter trips.

9From the time the children were born, Ms. Chyher stayed home to care for them, Mr. Al Jaboury and the home. She did all the cooking, cleaning and childcare. Ms. Chyher’s evidence was that Mr. Al Jaboury did little at home or with A. prior to S.’s birth. At the time of S.’s birth, Mr. Al Jaboury was required to spend three days caring for A. as S. was jaundiced and needed to stay in the hospital. According to Ms. Chyher, Mr. Al Jaboury was unhappy with this and wanted to return to work. After S. was born, Ms. Chyher continued to be responsible for the care of the children and the home. Her evidence was that Mr. Al Jaboury spent little time with them, usually about 20 minutes in the evening before Ms. Chyher put them to bed. When they got a little older, Mr. Al Jaboury would sometimes take them for prayers for about an hour or spend some time with them practicing the Quran. Mr. Al Jaboury did not take time off work, even for Eid.

10Ms. Chyher indicated that S. was a bit of an easier baby than was A., as the latter took to breast feeding, while A. did not, and A. was not a good sleeper. Ms. Chyher indicated that on many nights when A. cried, Mr. Al Jaboury complained about it, and she would take him down to the basement to walk him so that Mr. Al Jaboury could sleep.

11Ms. Chyher’s evidence is that she tried very hard to be a good Muslim wife to Mr. Al Jaboury. While still at university, she ceased socializing with her friends, especially male friends, changed her mode of dress and began wearing a hijab, all at Mr. Al Jaboury’s request or insistence. Mr. Al Jaboury denied that he demanded or required these things of Ms. Chyher, however, whether he overtly asked for them or not, Ms. Chyher’s evidence is that she did what she could, and what she believed was expected of her, to please Mr. Al Jaboury.

12After the boys were both in school, Ms. Chyher returned to ESL school for half days, after which she would pick up the boys from school and continue to provide fulltime care for them. Once Ms. Chyher became a little more comfortable with her English, she took one evening course at Algonquin College, from 7:00 to 10:00 p.m. twice a week for eight weeks. Ms. Chyher indicated that she would feed the children and prepare them for bed before she left for her course, and Mr. Al Jaboury would put them to bed on those evenings.

13In June of 2017, A. and S. began attending the Zen Karate school, which school has become a constant in their lives. Ms. Chyher enrolled in a class a few months later, and eventually, Mr. Al Jaboury also signed up for a class.

14A., who suffers from epilepsy, had his first big seizure in 2018 or 2019. He was hospitalized at CHEO for about a week after the first seizure. A. has been on different medications over the years since his diagnosis. He has been followed by CHEO since his initial hospitalization. Ms. Chyher indicated that the medication he has most recently been prescribed, along with the dosage he is on, has been working for him. A.’s last big seizure was on July 2, 2023, though he may have also had a smaller one at school.

15After A.’s diagnosis, Ms. Chyher did not leave A. alone. When A. was not at school, Ms. Chyher was with him, especially when A. was having seizures more frequently. Ms. Chyher described A. as having something not quite right with him. A. struggles with language and his sentences are not as fluid as they should be for a boy of his age. A. also says things to people sometimes without knowing what he has said, or which are not logical. However, A.’s sleep has improved on his current medication, and he has started to read again, which may help with his language issues. Only very recently has A. experienced any measure of independence, going to a math camp at Carleton University for a week, during which he could walk around the campus freely.

16Ms. Chyher described being unhappy in her relationship with Mr. Al Jaboury for some time. She indicated that she was sleeping on cushions on the floor of the boys’ room since about November of 2019. At one point, Ms. Chyher thought that she could move to the basement of the house and live separate and apart in the same home. However, Mr. Al Jaboury kept his exercise equipment in the basement and did not want her touching it.

17Ms. Chyher felt that Mr. Al Jaboury was manipulative towards her and required her to engage in sexual relations when she did not want to be with him. Although she knew of no medical diagnosis for him, Mr. Al Jaboury would tell Ms. Chyher that he was in pain, or that his health would be at risk if she did not have intercourse with him, going so far as to say: “If I’m not good in seven minutes, call an ambulance”, or telling her he was cancelling his fares for the day to go to hospital. Ms. Chyher, who tried to avoid Mr. Al Jaboury and did not want to be close to him, gave in on these occasions as she understood that it was her duty as a wife.

18Ms. Chyher also described several instances of domestic violence perpetrated against her by Mr. Al Jaboury, as follows:

On one occasion in 2018, Mr. Al Jaboury got mad at Ms. Chyher because she got between him and A. in the kitchen, and he punched her in the head. Mr. Al Jaboury said he was sorry right away, but the following day he didn’t remember doing it and said only: “sorry if I did”.
On another occasion, Mr. Al Jaboury stated to Ms. Chyher: “I will kill you” while he was lifting a glass table.
In 2019, after the family’s return from a visit to relatives in Europe, Mr. Al Jaboury pushed Ms. Chyher with a toolbox she had brought to him to change the oil in the car.
On another occasion, which Ms. Chyher believes was in early 2020, the children were outside playing in the driveway, and Mr. Al Jaboury came home from work, was angry, and while Ms. Chyher was watching the children through the window, he stated to her: “I will kill you; I will kill you”. He then took Ms. Chyher’s phone from her and threw it at the wall, breaking it into three pieces. Ms. Chyher attempted to put her phone back together and Mr. Al Jaboury pushed her into a corner in the living room, not letting her get out by the back door. Ms. Chyher does not know how, but she ended up on the floor in the living room. The children came into the house, and she screamed to them to go to their neighbour, Judy, and get her to call the police. Mr. Al Jaboury yelled at them not to, and they were afraid. Ms. Chyher got up and A. came to her and hugged her. Mr. Al Jaboury had all three sit on the sofa, and he then lectured and/or yelled at them for about three hours, while both she and the kids were crying.
On another occasion, when the kids were at school, Mr. Al Jaboury pulled down Ms. Chyher’s pants in the living room when she did not want to have relations with him; they both fell to the floor, and then he let her go.
On another occasion, in June of 2020, Mr. Al Jaboury stated to Ms. Chyher: “If you go outside without your hijab, I will break your legs”.

19Ms. Chyher reported these incidents to the police, in or about November of 2021, after Mr. Al Jaboury sent A. to Ms. Chyher with a video he had taken outside her home, the whereabouts he was not supposed to know, made between April 3 and 4, 2021. Mr. Al Jaboury was later charged with several criminal offences, including assault x 2, uttering threats, sexual assault, forcible confinement and mischief.

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