Saha v. Saha, 2011 ONCJ 714

Toronto (North York) Registry No. D55177/11 DATE: 2011·X·31 CITATION: Saha v. Saha , 2011 ONCJ 714 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) TARUN SAHA ) ) ) THOMAS J. MACLENNAN, for the APPLICANT ) APPLICANT ) ) - and - ) ) SUSMITA SAHA RESPONDENT ) ) ) ) ) TAMI L. WATERS, for the RESPONDENT ) ) HEARD: 26 October 2011 JUSTICE S.B. SHERR ( endorsement ): 1: INTRODUCTION [ 1 ] The parties are the parents of Saptarshi (the child), born on August 24, 2000. [ 2 ] This motion dealt primarily with the temporary parenting arrangements for the child.

Both parties seek a temporary custody order with specified access to the other. Both parties also seek orders that the other not remove the child from Ontario without their prior consent or court order. The parties agreed during the motion that this was an appropriate case to refer to the Office of the Children’s Lawyer.

Given the age of the child, the conflicting evidence about his actual views and preferences and improper parental influence, as well as the child’s exposure to considerable conflict, I find it appropriate to make the referral order requested. [ 3 ] I reviewed and relied on the multiple affidavits filed on behalf of the parties.

I also heard oral evidence from Sarah Morris, an intake worker from the Children’s Aid Society of Toronto (the society) who has investigated allegations of excessive physical discipline by the father against the child. [1] Both counsel examined her. 2: FACTUAL BACKGROUND [ 4 ] The applicant (the father) is 42 years old. He is employed full-time as a computer programmer. [ 5 ] The respondent (the mother) is 33 years old. She is not employed. [ 6 ] The parties married in Bangladesh on April 17, 1998. The family immigrated to Canada on July 28, 2001. They lived together in

Toronto until February of 2009. [ 7 ] The child has a mild intellectual delay and has had a special Individual Education Plan at school. [ 8 ] The mother went to Bangladesh from February-May of 2009. The father cared for the child during this time in Toronto. [ 9 ] The parties lived together from May of 2009 until November of 2009 in Toronto and shared in the care of the child. [ 10 ] The mother went to Bangladesh again from November of 2009 until October of 2010.

The father cared for the child during this time in Toronto. [ 11 ] The mother returned to Toronto in October of 2010 with her mother (the maternal grandmother). The family lived together and shared in the care of the child. [ 12 ] The father left the family home at the end of December of 2010. The child remained with the mother and the maternal grandmother. The father saw the child daily, usually picking him up after he finished work. They would go to the library or to the park. [ 13 ] The mother and the maternal grandmother went to Bangladesh from February of 2011 until August of 2011.

The father moved back into the family home and cared for the child during this time. [ 14 ] The mother and the maternal grandmother returned to Toronto on August 17, 2011. They moved back into the family home with the child and the father immediately moved out. The mother and maternal grandmother primarily cared for the child. The father would come daily after work to take the child out for a few hours. [ 15 ] The mother, maternal grandmother and the child moved out of the family home on September 12, 2011 and moved into a shelter. They continue to reside there.

The father has moved back into the family home. [ 16 ] A worker at the shelter where the mother and child are living reported to the society that the child had been crying at the shelter and making allegations that the father had been physically abusing him. The society investigated these allegations and verified risk of emotional and developmental harm to the child due to his exposure to parental conflict and risk of physical harm due to the child’s disclosures about excessive discipline by the father. [ 17 ] The society facilitated a supervised visit with the child on October 21, 2011 at their office.

Aside from this one visit, the father has not seen the child since the mother and child moved out of the family home on Sept 12, 2011. 3: CONFLICTING EVIDENCE [ 18 ] Not surprisingly, the parties had significantly different versions about the nature of their relationship. [ 19 ] The father claimed that he has been the child’s primary caregiver and that the mother had essentially abandoned her relationship with the child for two of the past three years. He stated that he was the parent responsible for caring for the child while she was away.

He states that he has been the parent who has dealt with the child’s school and doctors and who has financially supported the child. [ 20 ] The mother claimed that she was a stay-at-home mother and the child’s primary caregiver until she first left for Bangladesh in 2009. She said that the father had been physically and emotionally abusive to her. She claimed he would slap, push and threaten her. She alleged that he would often demean her. She claimed that the father was controlling and had full control over the family’s finances.

She alleged that the father pressured her to go to Bangladesh on the three occasions set out above; that he said it was necessary to save their marriage. She also deposed that she agreed to go to Bangladesh to obtain cancer treatment for her mother on one occasion, and to take breaks from the father’s abuse on all three. [ 21 ] The mother claimed that she assumed primary care of the child on her last return from Bangladesh on August 17, 2011. She said that the father subsequently would come to the home daily, verbally abuse and threaten her and make her life unbearable.

She said that she feared for her safety and made arrangements to go to the shelter. [ 22 ] The father denied all abuse allegations. He stated that he moved out of the family home (both at the end of December of 2010 and in August of 2011) to avoid conflict with the mother. [ 23 ] Both parties expressed fear that the other would abduct the child to Bangladesh. 4: EVIDENCE OF THE SOCIETY WORKER [ 24 ] Sarah Morris is the society worker who has investigated this case. Her evidence was very helpful for the court. She gave her evidence in a balanced manner.

She had detailed and contemporaneous notes of her conversations with the parties, the child and collateral witnesses. She had developed insights into the dynamics of this family. Her evidence was independent and child-focused. From her evidence, it appeared that she had asked the child open-ended questions when she interviewed him – she did not suggest answers. I gave her evidence considerable weight. [ 25 ] Ms. Morris testified that the initial referral to the society was made by a shelter worker. Ms.

Morris subsequently spoke to the shelter worker who told her that the child had been crying at the shelter and had disclosed that his father had been physically abusing him. Details of this abuse were not provided to her at this time.

[ 26 ] Ms. Morris said that she went to the shelter on October 12, 2011. She asked the mother about the child’s abuse allegations. The mother suggested that Ms. Morris speak directly with the child. The mother told Ms. Morris that she had never seen the father hit the child. The mother repeated many of her allegations to Ms. Morris about the father’s physical and emotional abuse to her that she has made in this case. [ 27 ] The child was then interviewed. He told Ms. Morris that his parents fought a lot. He said that he would go to his room and lock his door to avoid the arguing.

He said that his father would often tell him bad things about his mother. He told Ms. Morris that his father was selfish and wanted to keep him away from his mother. [ 28 ] The child told Ms. Morris that the father had pulled his hair, but provided little clear detail, other than that it took place during the school year. He said that his father had slapped him in the face while he had done his studies. He said that this happened mostly in the summer and never left marks. He told Ms. Morris that his father used a “shoe stick” to discipline him. He said that his father would call him bad names. [ 29 ] Ms.

Morris met the next day with the father. He denied any physical contact with the mother and expressed his feeling that the mother had coached the child to make his allegations. [ 30 ] Ms. Morris then spoke to the child’s doctor and the principal of the child’s prior school. Neither the doctor nor the principal had any issue with either parent’s care of the child. [ 31 ] Ms. Morris arranged for and personally supervised a visit between the child and the father on October 21, 2011. She wanted the opportunity to assess their interaction. [ 32 ] The child met with Ms. Morris before the visit.

He told her that he hadn’t seen his mother for a long time, wanted to see her for a while and that he would like to see his dad sometimes. [ 33 ] For the most part, the visit was positive. The child was happy to see his father. The father was physically affectionate. The father was understandably emotional, but acted appropriately with the child. Ms. Morris observed the child to be uninhibited with the father. He did not appear to fear him. [ 34 ] Ms.

Morris heard the child make the following comments to the father during the visit: a) “It is too bad you missed my birthday - you don’t care - you care more about your job than me”. b) “You hit me with the shoe stick, don’t lie”. c) “I just want to live with my mom. You used to hit me and slap me all the time”. d) “I want to live with mom. If I’m 12, the judge will listen to me”. [ 35 ] Ms. Morris said that the father did not engage with the child when he made these statements and would redirect the conversation. [ 36 ] The father subsequently told Ms.

Morris that he used his hand to discipline the child, by lightly smacking him on the back. He said that he would put the “shoe stick” on the table while the child did his studies, but denied ever using it to hit him. [ 37 ] Ms. Morris expressed no concerns about the mother’s care of and interaction with the child, or his current living arrangement. She was confident that the school board would accommodate the child’s special needs. [ 38 ] Ms. Morris testified that the society has concerns about the father. She felt that the father needs to learn better discipline methods than using force.

However, she did not believe that this discipline was used to intentionally abuse the child and she stated that she had no safety concern about physical abuse. [ 39 ] Ms. Morris stated that the society’s primary concern was the child’s exposure to domestic conflict and the risk to him of emotional and developmental harm. She felt that the child needed support to help him deal with the conflict in his home life. She stated that the child, due to his age and developmental delays, is vulnerable and impressionable.

She also felt that the parents should attend independent counseling to address the impact on the child of their conflict. She observed that both parents are under tremendous pressure and have lived in an unhappy arranged marriage for a long time. She suggested they attend the Families in Transition program run by Family Service Toronto. 5: THE LAW [ 40 ]

Section 24 of the Children’s Law Reform Act (the Act) sets out that the court must make custody and access orders in the best interests of the child. I have considered the criteria set out in subsection 24(2) of the Act. I have also considered subsection 24(4) of the Act.

This subsection requires the court, when assessing a person’s ability to act as a parent, to consider if at any time the person committed violence or abuse against his or her spouse or a child to whom the application relates. [ 41 ] The best interests of the child have been shown to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Pastway v. Pastway (1999) 49 R.F.L. (4 th ) 375 (Ont. General Division) . 6: ANALYSIS

[ 42 ] In assessing the child’s best interests, there were several areas where the parents have comparable parenting skills, including;

a) Both are capable of looking after the child’s basic needs.

b) Both are capable of ensuring that the child’s schooling and medical needs are met.

c) Both are aware of the child’s mild intellectual disability and are capable of addressing this need.

d) Both are capable of providing the child with guidance and education.

e) Both love the child very much. [ 43 ] I considered the following factors that supported the father’s claim for temporary custody:

a) The father exclusively cared for the child for two of the three years prior to September 12, 2011. This is a significant period of time in the life of the child. The mother gave several reasons for living in Bangladesh during the times set out above, but the reality is that she prioritized her other interests over being a present parent for the child. This must have been very difficult and confusing for the child. At this point, it raises some question as to whether she will be able to provide the continuity and security that the child requires.

b) The father ensured that the child’s medical, academic and special needs were properly met while the mother was in Bangladesh.

c) The father, if awarded custody, would place the child in the school that he has attended for four years. This is the school that is most familiar with the child. The child would also be able to return to the family home. The mother’s long-term plan remains unclear. In the short term, she will live at the shelter. She hopes to find her own accommodation. It raises the question as to whether the child’s school will be moved again at that time.

Two school moves, in a short period of time, would not be in this child’s best interests. [ 44 ] Notwithstanding these positive factors, I find that it is in the child’s best interests to be placed in the temporary custody of his mother. [ 45 ] The child has gone through a difficult few years. There has been considerable conflict in his life. He may have witnessed violence at times by his father towards his mother. This conflict affected him to the point where he said that he locked himself in his room.

He was observed as distressed by the shelter staff, which led to the society investigation. [ 46 ] The child has specific needs at this time. He needs permission to have a loving relationship with both parents. He needs them to stop fighting as this undermines his sense of safety and security. He needs his parents to focus on his needs ahead of their own. Very importantly, he requires parenting that is nurturing and supportive, not harsh. I agree with Ms.

Morris that the parents and the child will require therapeutic intervention to meet many of these needs. [ 47 ] The independently held views and preferences of an eleven year old child are not determinative in custody and access cases. However, they are an important consideration and should be given considerable respect by the court. Here, the child has made it very clear that he wishes to live with his mother at this time. [ 48 ] The father argues that the child is vulnerable, his views and preferences have been manipulated and should be given little weight.

I don’t think the evidence at this point supports that contention. When interviewed by Ms. Morris, the mother could have advanced her case by telling her that she had seen the father hit the child. Instead, she said that she never saw this happen. This is not indicative of a parent on a campaign to undermine a child’s relationship with another parent. The child has made his views, preferences and concerns consistently known to the shelter worker, to Ms. Morris and even to the father during their supervised visit.

I accept them as legitimate. [2] [ 49 ] There may be a combination of reasons for the child’s views and preferences. The child may be worried that his mother will leave him again if he does not live with her and he cannot bear the possibility of losing her again. However, I find that a more likely explanation is that he wants to remain with the parent who he views as more nurturing and supportive, as opposed to the parent, who at times, has treated him harshly. [ 50 ] I share Ms. Morris’s concern that the father has been excessively disciplining the child. The father admitted to Ms.

Morris that he would use his hand on the child and lightly slap him on the back and that he would place the “shoe stick” on the table beside the child while he studied. Even if I accept that this is the extent of the discipline, this is unnecessary intimidation. In light of the child’s evidence, I find it highly likely that the father understated the physical discipline to Ms. Morris. His failure to mention any of his physical discipline of the child in his extensive court material adversely affects the reliability of his evidence.

I have little doubt that the father loves the child and is generally affectionate and caring with him. However, I find it more probable than not that the father has, at times, pulled his hair, slapped him and hit him with the “shoe stick”, as claimed by the child. [ 51 ] The father’s minimization of physical discipline also makes me question his denial of ever physically or emotionally abusing the mother.

While she provided little detail in her evidence about when or where the abuse occurred (making it very difficult for the father to respond), I am not prepared to totally discount her allegations that the father was controlling and at times, physically and emotionally abusive to her in the presence of the child. This adversely impacts on his ability to act as a parent and protect the child from conflict. [ 52 ] I am also concerned about the child’s evidence that his father would demean him and call him names. This might be even more damaging to the child than the physical discipline. [ 53 ] Ms.

Morris’ observation of the child’s visit with the father informed the court that the child was upset with the father about being hit. He was also upset that his father would not acknowledge it. If the child’s anger towards his father is not addressed by therapy, I fear it will have adverse consequences on their long-term relationship.

[54] There is no independent evidence that the mother has used physical discipline with the child. [55] The father argued that the court should maintain the status quo on this temporary motion- the child should return to the familyhome and his previous school. He, as the primary caregiver, should be awarded custody. The status quo is a very important considerationon a temporary motion. See: McEachern v. McEachern (Ont. SCJ). [56] Here, the status quo, prior to the mother leaving the family home, was that the child was primarily living with the mother andfrequently seeing the father.

While it would have been ideal for the child to remain in the family home and his previous school,maintenance of the status quo was not possible in these circumstances and would not be in the child’s best interests. I find, for thepurpose of this motion, the mother’s evidence more reliable than the father’s – that he was attending the home every day, there wasconstant fighting and threats and the situation was unbearable for her and the child. Unless she took steps to limit her contact with thefather, the situation was likely to continue to deteriorate and emotionally harm the child.

Given her financial vulnerability, the move tothe shelter was a logical choice for her and justified. [57] The child appears to be doing well in the mother’s care. He has a good relationship with the maternal grandmother, who assiststhe mother in parenting. The mother has the support of the shelter staff. The child’s educational needs are being met and it would bedisruptive to move him in the middle of a school term. [58] The child needs to live with his mother at this time.

He needs to be with the parent who both objectively and subjectively (fromthe child’s perspective) is more nurturing and supportive, to best assist him in coping with this difficult situation. [59] The evidence does not warrant any significant limitation on the father’s access with the child, although there will be a provisionthat he not use any physical discipline, including the threat of physical discipline. It is important for the child to have a meaningfulrelationship with both parents. The mother was not justified in preventing the father from having access with the child after they left thefamily home.

The access visit at the society’s office demonstrated that the child was uninhibited with the father. He did not exhibit anyfear of him. The father has been the child’s primary caregiver for most of the past three years. Generous access will be in the child’s bestinterests. Given the level of conflict between the parties, the access needs to be structured and designed to minimize contact between theparties.

The order will allow the child and father to spend significant time together and provide for access exchanges to take place at thechild’s school. [60] I expect that the parties will equally divide time with the child during the upcoming winter school break. I would like to see themtake the first steps towards cooperation and work out a

schedule that is mutually acceptable. If they are unable to do so, I will make aspecified order at the next case conference. [61] The father has always been involved in the child’s schooling and medical care. This participation should continue and my orderwill make specific provisions to ensure this. [62] The parents both require intervention to assist them in protecting the child from conflict. As this case evolves, the court will belooking to see if the parents are accessing the necessary resources to improve their ability do this.

The court strongly suggests that bothparents attend a program at Families in Transition about the effect of conflict on children. It is also suggested that the father attend aparenting program that deals with age-appropriate discipline techniques. [63] Sub-clause 28 (1) (c) (iv) of the Act permits the court to prohibit a party from removing the child from the Province of Ontariowithout the consent of another party or an order of the court. Sub-clause 28 (1) (c) (

v) permits the court to require delivery of the child’spassport to the court. The legal test to apply is whether such orders are in the child’s best interests. In this case they are. There isconsiderable mistrust between the parties. Both fear that the other will remove the child from the jurisdiction. The mother says that thefather would constantly threaten to do this. Bangladesh is not a signatory to the Hague Convention. The mother removed the child fromthe family home and the father was denied contact with the child for over one month. He is understandably fearful of being eliminatedfrom his child’s life.

The parents’ anxiety about the child’s improper removal from the jurisdiction is likely to adversely affect thechild’s sense of security and stability. On a temporary basis, neither party will be permitted to remove the child from the Province ofOntario without the notarized consent of the other party or prior court order. The father, who holds the child’s passport, will be requiredto deposit the child’s passport with the court. [64] This motion did not deal with support issues.

I expect that the parties will use this adjournment period to make appropriatefinancial arrangements. 7: CONCLUSION [65] A temporary order will go on the following terms:

a) The mother shall have temporary custody of the child.

b) The father shall have reasonable and generous access to the child including:

i) Commencing on November 4, 2011, three out of every four weekends. These will be three consecutive weekends, followed byone weekend where the child will remain with the mother. The father shall pick up the child after school on Friday and return the child toschool on Monday morning. If the father is unable to pick up the child from school on Fridays, his counsel shall notify counsel for themother and the exchange shall take place in a public place, close to the mother’s residence, at 6 p.m. on Fridays.

If the father is unable todrop off the child at school on Mondays, his counsel shall notify counsel for the mother and the exchange shall take place at a publicplace, close to the mother’s home, on Sundays at 6 p.m. ii) Commencing on November 9, 2011, every other Wednesday from after school until Thursday morning when the father will

return the child to school. Again, if the father is unable to pick up or drop off the child at school, his counsel will contact counsel for the mother to arrange a shorter Wednesday evening visit, with exchanges at a public place, close to the mother’s home. iii) One-half of the winter school break, the specific times to be agreed upon by the parties, failing which the court will specify the times at the next case conference. The regular access

schedule will be suspended during this period. iv) Such further and other access as the parties may agree to.

v) If the school is not open on any exchange date, the parties are to arrange for the access exchange to take place at a public place, close to the mother’s home.

c) The father is not to use any physical discipline or threaten to use any physical discipline on the child.

d) The mother (through counsel) is to immediately notify the father of the name and address of the child’s school and provide the school with authorization for the father to pick up and drop off the child.

e) The mother is to execute any direction that is required to permit the father to communicate directly with any school or service provider for the child. The father will be entitled to attend any school meeting regarding the child.

f) The parents shall cooperate in arranging independent counseling (not through the shelter) for the child to assist him in dealing with their separation and conflict.

g) Neither parent is to speak disrespectfully about the other parent in the presence of the child.

h) Neither party is to remove the child from the Province of Ontario, without the notarized written consent of the other party, or prior court order.

i) The father is to deposit the child’s passport forthwith with the court. It is not to be released without court order. Neither party may apply to renew the child’s passport without prior court order.

j) A separate referral order shall be made to the Office of the Children’s Lawyer. A copy of this decision should be sent to them with the referral package.

k) A copy of this decision is to be sent to the society, to the attention of Ms. Morris. [ 66 ] This case will be adjourned until December 20, 2011 at 10:00 a.m. for a case conference. If counsel wish to rearrange this date, they may do this by contacting the trial coordinator’s office. The First Appearance Court return date of November 23, 2011 is vacated. [ 67 ] If either party seeks costs of this motion, they are to serve and file written submissions no later than November 7, 2011. The other party will have until November 14, 2011 to serve and file a written response.

Submissions should not exceed two pages, not including any Offer to Settle or Bill of Costs. [ 68 ] Lastly, I would like to thank counsel for their excellent presentation of this motion. ___________________________ Justice Stanley B. Sherr Released: 31 October 2011