M.S. v. S.H., 2011 ONCJ 731

Toronto (North York) Registry No. D52041/10 DATE: 2011·XII·01 CITATION: M.S. v. S.H. , 2011 ONCJ 731 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) M.S. ) ) ) Natalia Denchik, for the applicant ) APPLICANT ) ) - and - ) ) S.H. RESPONDENT ) Lauren Israel, for the respondent ) ) ) ) ) ) ) ) HEARD: JULY 13, AUGUST 12, and NOVEMBER 30, 2011 JUSTICE S.B. SHERR: REASONS FOR DECISION Part One – Introduction [ 1 ] The respondent (the mother) has brought a

summary judgment motion seeking final custody of her three-year old child S., a final order of no access to the child by the applicant (the father), and a final restraining order against the father. [1] [ 2 ] The father seeks a dismissal of the mother’s motion. [ 3 ] I have reviewed and relied on the affidavits of the mother sworn on September 22, 2010 and June 20, 2011, the affidavits of the

father sworn on October 4, 2010, July 22, 2011 and November 12, 2011, an unsworn letter submitted by the father dated November 11, 2011 and the affidavit of Olena Pichugina, sworn on August 2, 2011, filed in support of the father. [ 4 ] I also heard oral evidence from Shadi Ramez Ahmari, a Family and Community Service Worker with Guelph Family and Child Services, and Detective Christopher Probst, a detective with the Persons Division in the Investigative Support Services of Guelph Police Services. It is unusual to hear oral evidence on a

summary judgment motion, but it was necessary in this case since neither Ms. Ahmari or Detective Probst were prepared to swear affidavits, but were willing to provide oral evidence if summoned to court. [ 5 ] The

summary judgment motion was originally returnable on July 13, 2011. On the return date, the father had not filed any responding material and sought an adjournment. This request was opposed by the mother. I granted the adjournment, but permitted Ms. Ahmari to give oral evidence. I also permitted the father’s counsel to cross-examine Ms. Ahmari that day. [ 6 ] The father filed responding material for the return date of August 12, 2011. On this date, Detective Probst testified and was cross- examined by the father’s counsel.

I adjourned the motion to give the father the opportunity to file another affidavit if he wished to respond to the evidence of either Ms. Ahmari or Detective Probst. [2] I ordered the transcript of Detective Probst’s evidence (at no cost to the parties) to give the father the opportunity to review his evidence. [ 7 ] The matter returned to court on October 19, 2011. The father had not filed a responding affidavit. Apparently he had just recently received the transcript of Detective Probst’s evidence. He sought an adjournment to serve and file his affidavit.

An adjournment was granted until November 30, 2011. [ 8 ] The father served and filed an affidavit sworn on November 12, 2011. This affidavit surprisingly did not address the evidence of either Ms. Ahmari or Detective Probst. The father’s counsel subsequently asked for leave to permit the father to give oral evidence. This request was denied. This is a

summary judgment motion, the father had ample time to respond to this evidence and I was not prepared to turn the motion into a trial. [ 9 ] On the return of the

summary judgment motion, the father’s counsel asked for permission to file an eleven-page unsworn letter from the father that purported to respond to the evidence of Detective Probst. The mother’s counsel agreed that I could consider this letter and on consent it was marked as an exhibit on the motion. [3] Part Two – The Law [ 10 ] Rule 16 of the Family Law Rules (the rules) permits a party to make a motion for

summary judgment. The following sub-rules in rule 16 are relevant to this case: • When Available 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. • Evidence Required •

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial. • Evidence of Responding Party •

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. • Evidence Not From Personal Knowledge •

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. • No Issue for Trial •

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[11] The case law on

summary judgment was nicely summarized by Justice Ruth Mesbur in Native Child and Family Services ofToronto and D.C. 2010 ONSC 1038, where she wrote in paragraphs 4-6: [4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for

summary judgmentsuch as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court’s role is narrowlylimited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility,weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000) (ONSC), O.J. No 969. [5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court isrequired to make a final order and grant

summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks atwhether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party’s position, butrather whether the evidence is sufficient to require a trial. Children’s Aid Society of the County of Dufferin v. J.R.,

(2002) CanLII 45515(ONCJ). [6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in anaffidavit or other evidence, specific facts showing there is a genuine issue for trial. [12] The court is required to consider whether a no-access order is in the child’s best interests. Subsection 24 (2) of the Children’sLaw Reform Act (the Act) sets out criteria for assessing the best interests of a child.

Subsection 24 (4) of the Act also sets out that inassessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuseagainst his or her spouse or the child. I have considered these factors in making this decision. [13] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit tothe child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access shouldonly be ordered in extreme circumstances. See: Worthington v.

Worthington (ON SC), 2000CarswellOnt 4889 (SCJ). [14] In V. S. J. v. L.J.G., (ON SC), [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishenprovided a useful overview of the factors that have led courts to terminate access: 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and orfear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No.210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707. 2.

History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by thechild and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769(N.B.Q.B.); Abdo v. Abdo (NS C.A.), (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the formercustodial parent. See Tremblay v. Tremblay (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No.308 (Sup.Ct). 4.

Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v.Gorgichuk, supra. 5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.)v. M.(B.L.D.E.), supra. 6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen,supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

Part Three – Material Facts [15] The facts that follow were not in dispute, or only baldly denied by the father. These facts form the basis for this decision. [16] The parties are the parents of S.. [17] The parties married on July 26, 2002. [18] The mother has always been S.’s primary caregiver. She is the parent who has looked after his instrumental needs, taken him todoctor appointments and arranged his daycare. [19] S. has done well in his mother’s care. [20] The father emotionally and physically abused the mother while they co-habited. The father was jailed and charged withassaulting the mother in 2005.

These charges were eventually withdrawn. The mother deposed that the father was very controlling of her.He disapproved of her friends, hid her passport and other personal documents and opened her personal mail. She deposed that the father

told her that if she ever left him that he would kill her. He told her that he would only go to jail for a few years and the child would go into foster care. [ 21 ] Ms. Ahmari testified that the mother told her about incidents where the father had threatened her with a knife, sexually assaulted her, drugged her, locked her out of the home and refused to let her touch the child when she rejected his sexual advances. Despite being given the opportunity, the father never responded to Ms.

Ahmari’s evidence. [ 22 ] The parties separated on September 2, 2010 and have not resumed co-habitation. [ 23 ] The father was charged with assault with a weapon and threatening death against the mother on September 3, 2010. He was jailed and then released on bail.

His bail included conditions that he abstain from contacting, associating or communicating directly or indirectly with the mother except to arrange access to the child through a family court order, and not to be within 250 meters of the mother or of any place where she lives, works, attends school or where he happens to know that she is present. [ 24 ] The father issued his application for access on September 14, 2010. [ 25 ] On September 16, 2010, the mother saw the father near her place of employment. [ 26 ] On September 16, 2010, the father followed the mother home after she had finished work. [ 27 ] On September 17, 2010, the father again followed the mother home from work.

He approached her and hugged the child in the stroller. [ 28 ] On September 18, 2010, the father approached the mother in her apartment lobby and stated that he wanted to see her apartment. [ 29 ] On September 20, 2010, the father was present near the child’s daycare. The mother called the police. When the mother went to pick up the child from his daycare at the end of the day, the father approached her, asking to see the child. The mother called the police again. The father became angry and approached her asking what she was doing. The mother told him that she was calling the police.

The father said to her, “do you think I am afraid of the police?” and left. [ 30 ] The father was charged on September 20, 2010 with four counts of Fail to Comply with Recognizance. He was jailed and subsequently released on bail. [ 31 ] On September 27, 2010, this court made temporary without prejudice orders, granting the mother custody of the child, no access to the father and a restraining order against the father.

The matter was adjourned to allow the father to file responding material. [ 32 ] On October 12, 2010, after a contested motion, this court made a temporary order granting the mother custody of the child and temporary supervised access for the father at a supervised access centre. The temporary restraining order was continued. [ 33 ] The father continued to contact the mother in breach of his bail conditions and this court’s restraining order.

The mother feared for the safety of her and the child and moved into a shelter. [ 34 ] The mother made the necessary arrangements for supervised access to begin. [ 35 ] The father was arrested again on October 29, 2010 and charged with eight counts of Fail to Comply with Recognizance and one count of Criminal Harassment. These charges all related to incidents where he was contacting the mother in violation of his bail conditions and this court’s restraining order. [ 36 ] The father was in jail until January 31, 2011. [ 37 ] On December 15, 2010, the father entered into a plea bargain.

He pled guilty to two of the four Breach of Recognizance charges that had been laid on September 20, 2010 [4] and four of the eight Breach of Recognizance charges, and the criminal harassment charge that had been laid on October 29, 2010. As part of the plea bargain, the facts of the assault and threaten death charge arising from his arrest on September 3, 2010 were read into the record for sentencing. [5] The other charges were withdrawn.

In addition to the 83 days that he spent in pre-trial custody, the father was sentenced to 30 days on each charge concurrently, with a three-year probation term that he have no contact with the mother except through counsel in Family Court and not to come within 500 meters of where the mother resides. Lastly, it was ordered that any access to the child had to be through Family Court order. [ 38 ] The facts supporting the Breach of Recognizance convictions and criminal harassment conviction arising from the father’s arrest on October 29, 2010 were provided by Detective Probst as follows:

a) On October 8, 2010, the father sent an email to the mother.

b) On October 10, 2010, the father telephoned the mother at her home. She told him not to call again and hung up the phone.

c) On October 29, 2010, the father made multiple calls to the mother at her place of employment.

d) On October 29, 2010, the father attended at the child’s daycare when the mother was there to pick him up.

e) The father, between September 29, 2010 and October 29, 2010, called the mother at her home and workplace several times. He emailed her, attended her workplace and the child’s daycare twice when the mother was picking up or dropping off the child. He followed her to a store and approached her. [ 39 ] The father did not deny any of the facts supporting the convictions.

[ 40 ] The mother was advised by the Children’s Aid Society of Toronto that she needed to take more proactive steps to protect the child from the father and encouraged her to move away from Toronto. She moved to Guelph on January 21, 2011. [ 41 ] On February 18, 2011 the father attended at a post office in Guelph. He was attempting to obtain a location for the mother. He provided the post office with a postal code that belonged to the woman’s shelter where the mother had been residing with the child. An alert post office employee contacted the woman’s shelter. They called the police.

However, the father was gone by the time the police arrived at the post office. [ 42 ] Detective Probst and Ms. Ahmari both testified that they are part of a Wrap-Around team for the mother. This is a team comprised of the police, victim services and Guelph Child and Family Services to ensure the safety of persons deemed to be at high risk of domestic violence. Detective Probst testified that the team advised the mother to move to another city and have her name and the child’s name changed. Both he and Ms. Ahmari testified that the mother is legitimately very afraid of the father. [ 43 ] Ms.

Ahmari testified that after the incident on February 18, 2011 the mother was moved to a secure housing unit for the safety of her and the child. [ 44 ] On May 9, 2011, the father was seen outside of the child’s daycare. The police were called and the father was arrested by the police while sitting in his car less than 60 meters from the daycare. The father was charged with Breach of Recognizance, and kept in custody. [ 45 ] On May 14, 2010, the mother took the child for a scheduled visit at the access centre, even though the father was in jail.

The access centre subsequently suspended the visits due to the father’s incarceration. [ 46 ] The father was sentenced on July 21, 2011 to 12-15 months in jail. His counsel advised the court that he is expected to be released from prison in March of 2012. Part Three – Response of father [ 47 ] Due to the serious nature of the relief sought, the father was given every reasonable procedural opportunity to respond to the allegations made against him.

He was granted several adjournments, I permitted his counsel to cross-examine the two witnesses, he was provided with a copy of the transcript of Detective Probst at no cost, he was allowed to file a supplementary affidavit and I even considered his long unsworn letter. [ 48 ] Despite all of these opportunities, the father did not provide any meaningful denial of the specific and significant allegations of abuse and harassment or his blatant breaches of court orders. [ 49 ] Instead, the father spent considerable time in his material attacking the mother and attempting (very poorly) to justify his multiple breaches of court orders.

His affidavits and letter focused on his own needs and how he had been aggrieved. [ 50 ] In his October 4, 2010 affidavit, the father merely stated that the allegations of abuse are far-fetched and mischievous. He went on to state that he wouldn’t comment further on the allegations due to the outstanding criminal charges. [ 51 ] The father did not deny any of the mother’s allegations in his affidavit sworn on July 22, 2011. Instead he wrote, Paragraph 24: I had no choice other than to approach the daycare of my child. However, I was arrested and convicted for breach of my bail terms.

Paragraph 31: I had never sent any threatening emails or texts to the mother. [6] [ 52 ] The father’s affidavit sworn on November 12, 2011 explained that he was breaching court orders due to his frustration in not seeing his child. He stated his belief that the child was ill and that he had to see him. Again, he did not address the allegations of abuse or stalking. [ 53 ] The father’s unsworn letter dated November 11, 2011 was more of the same. He essentially blamed the mother for putting him into a position where he had no choice other than to breach court orders.

He stated that he “took extreme measures to ensure his whereabouts, safety and well-being”. He claimed that he pleaded guilty “not knowing the seriousness of his charges and with the understanding that the sentencing judge would consider his mitigating circumstances”. He rationalized that the no-contact order was only made against his wife-not his son, forgetting that he was breaching the restraining order of this court as well as the bail condition that his only contact with the child was to take place through Family Court order.

He accused the mother of frustrating access, despite the fact that his supervised access visits couldn’t take place due to the access centre’s waiting list and his constantly being in jail. He accused the mother of kidnapping the child. [ 54 ] The father denied in his letter any intention to abduct the child on May 9, 2011 and since this is a

summary judgment motion I am not making that finding. [7] Again, the father failed to meaningfully address the specific allegations of abuse and harassment or his convictions. Instead, the father made general denials such as: “S.H. has been living with a false sense of fear. I mean absolutely no threat to her”. – Page 2. “In no way is my wife in danger of any harm even though she may believe different.

I have never threatened, assaulted or was even convicted of such deviant behavior.- Page 5. “There is no violence or any threat of violence and she has no reason to live in fear other than her own unhealthy thinking. – Page 8. [ 55 ] The father went on his letter to make a claim for joint custody of the child.

Part Four – Analysis [ 56 ] Based on the material facts set out above I make the following findings:

a) The mother has been the child’s primary caregiver.

b) The child is doing well in the mother’s care.

c) It is in the child’s best interests to award the mother sole custody.

d) The father has subjected the mother to considerable physical and emotional abuse.

e) The father has subjected the mother to controlling behavior and has demonstrated a sense of entitlement to control his family.

f) Since the parties separated on September 2, 2010, the father has persistently stalked and intimidated the mother and the child, except for the periods when he has been incarcerated.

g) The father has proven to be very resourceful in tracking the whereabouts of the mother and the child.

h) The mother justifiably fears for the safety of both her and the child.

i) The father has shown no respect for and a blatant disregard of court orders to stay away from the mother and the child.

j) The father’s behavior is unpredictable and uncontrollable. He is not governable by court orders. The reality of jail has not been sufficient to keep him away from the mother and the child. He breached the court orders in 2011 despite already having been jailed three times in 2010 for similar breaches.

k) The father poses an unacceptable physical and emotional risk to the mother and the child. The child’s safety and security is the court’s paramount best interest consideration at this time. The mother and the child had to flee the jurisdiction with the prompting of the Children’s Aid Society of Toronto. They had to be moved from the shelter in Guelph into secure housing. Both the police and child protection services in Guelph have suggested to the mother that she change the identity of both her and the child and move away.

This is a drastic recommendation by experienced professionals in this area and indicative of the grave risks that the father poses to the mother and the child at this time. I am not satisfied that an order for supervised access is adequate to protect the child given the father’s extreme behavior and attitudes.

l) The father, in his three affidavits and letter, has shown absolutely no insight into his behavior - how terrifying it has been for the mother and how destabilizing it has been for the child. His affidavits focus on his own needs and how he has been aggrieved.

m) The father takes no responsibility for his behavior. He continues to try to justify his actions and transfer responsibility for them to the mother. The only times he has stayed away from the mother and the child have been when he is incarcerated.

n) The father has given no indication that he is prepared to change his behavior. He has taken no treatment to address his behavior and has not proposed taking any treatment. His world view has not changed. Given this, it is highly unlikely that he will change his behavior. This exacerbates the risk of harm to the mother and the child.

o) This is an extreme case where it is in the child’s best interests to make an order for no access to the father.

p) The evidence sets out the need for a restraining order to protect the mother and the child.

q) There is no triable issue with respect to the issues of custody, access and the need for a restraining order. Part Five – Conclusion [ 57 ] This court makes a final order on the following terms:

a) The mother’s motion for

summary judgment, as orally amended, is granted.

b) The mother shall have final custody of the child.

c) The father shall have no access to the child.

d) A separate restraining order will be granted on the standard form endorsement. [ 58 ] The father will have to establish much more than his release from jail to establish a material change in circumstances on any future motion to change this order.

He will have to show the court that he has complied with his probation conditions and successfully engaged in intensive therapy by a qualified professional experienced in domestic violence and demonstrate that he has gained sufficient insight into his behavior and its negative impact on the mother and the child before a relationship with his child can be reasonably considered. He will have to show that he has kept away from the mother and the child and that he has not attempted to track them.

Simply put, he will have to show that he has materially changed. [ 59 ] This matter shall return to court on April 11, 2012, for a case conference to address the remaining support issue. [ 60 ] If the mother wishes to seek her costs of this motion, she is to serve and file written submissions by December 15, 2011. The father will have until December 30, 2011 to respond. Written submissions should not exceed three pages, not including any offer to settle or bill of costs.

___________________________ Justice Stanley B. Sherr Released: 1 December 2011