Paulo v. Yousif, 2011 ONCJ 841

COURT FILE No.: Windsor FO-06-562 DATE: 2011-12-13 Citation: Paulo v. Yousif , 2011 ONCJ 841 ONTARIO COURT OF JUSTICE BETWEEN: NADIRA PAULO Applicant — AND — THEIA SALEM YOUSIF Respondent Before Justice Barry M.

Tobin Heard on November 29 and 30, 2011 David Ziriada .......................................................................................... counsel for the applicant Theia Salem Yousif............................................................................................... on his own behalf TOBIN J.: JUDGMENT [ 1 ] The applicant, Nadira Paulo, and the respondent, Theia Salem Yousif, are the parents of one child, Helen Theia Yousif, born July 25, 2006. [ 2 ] The parties married on June 11, 2005 and separated on October 11, 2006. [ 3 ] The parties resolved issues of custody, access and child support by way of Minutes of Settlement, which were incorporated into the order of Zaltz J., dated September 17, 2007.

The applicant was granted custody of the child and the respondent had specified access. The respondent was to consent to a passport being issued for the child. The applicant was not to remove the child from Essex County without a court order. [ 4 ] The parties entered into a written agreement on June 24, 2010 called Access Agreement. It provided that starting September 1, 2010 and every Thursday thereafter, the respondent was to have access with the child from noon until 4:30 p.m.

All access exchanges were to be at a McDonald’s Restaurant in Windsor. [ 5 ] The applicant now brings this motion to change seeking the following relief: From the Access Agreement; (

a) All access exchanges take place at Glengarda Supervised Access Centre; From the Order of Zaltz J.; (

b) The respondent’s consent not be required for the applicant to obtain a passport for the child; and (

c) The restriction upon the applicant in the Order of Zaltz J., that she not remove the child from the County of Essex without a court order be rescinded. 1: LEGAL CONSIDERATIONS [ 6 ] One of the changes sought by the applicant is to a provision contained in the Access Agreement. The applicant did not address the court’s jurisdiction to grant an order changing a term in an agreement. [ 7 ] There is no statutory power that grants a court the authority to vary a custody or access term contained in a domestic contract. In Antler v. Antler, [1994] O.J. No. 1180 , the court addressed such a request as follows: 4 ...[T]he separation agreement is filed under

section 35 of the Family Law Act and accordingly, could be subject of an order of variation under

section 37 of that Act by this court relating to support provisions. There is no similar provision for filing a separation

agreement under the Children’s Law Reform Act, R.S.O. 1990, c. C-12, and it could be concluded that there is no jurisdiction in theProvincial Court (Family Division) to vary a separation agreement insofar as custody or access issues therein are concerned. This viewcould be substantiated by considering that the legislature, in enacting the yet unproclaimed amendments to

Part 4 of the Children’s LawReform Act relevant to access provisions of a separation agreement specifically provided that a person could file a separation agreementfor the purpose of enforcing access. [See the proposed subsection 34a(11), as added by

section 83 (unproclaimed) of the Act.] Iaccordingly conclude that there is no provision in the Children’s Law Reform Act similar to the jurisdiction conferred in

section 37 of theFamily Law Act. 5. However, I feel that there is jurisdiction to deal with this matter and that jurisdiction arises from a consideration of

section 68 of theChildren’s Law Reform Act which states as follows: Where a domestic contract as defined in the Family Law Act makes provision in respect of a matter that is provided for in this Part, thecontract prevails except as otherwise provided in

Part IV of the Family Law Act.

Section 56 of the Family Law Act contained in

Part IV provides: In the determination of a matter respecting the support, education, moral training or custody of or access to a child, the court maydisregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interest ofthe child. 7. Moreover,

section 21 of the Children’s Law Reform Act provides as follows [emphasis added]: A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining anyaspect of the incidents of custody of the child. [8]

Section 29 of the Children’s Law Reform Act provides that a court is not to vary an order in respect of access unlessthere has been a material change in circumstances that affects or is likely to affect the best interests of the child. See also Persaud v.Garcia-Persaud (2009), 2009 ONCA 782 , 81 R.F.L. (6th) 1, (Ont. C.A.) para. 3. 2: MATERIAL CHANGE IN CIRCUMSTANCES [9] When the order was made, the child was three months old. The child is now five years of age. [10] The order provides for a very specific and increasing

schedule of access. [11] At the time the order was made, there were outstanding criminal charges against the respondent. The pick-up and drop-off of access was to take place at the Supervised Access Centre. Those criminal charges have long ago been dealt with. [12] The Access Agreement redefined when access would take place and that all access exchanges would take place at aMcDonald’s Restaurant in Windsor.

The parties wanted the access exchanges to take place in a neutral and public place. [13] The evidence disclosed that the child, who has remained in the care of the applicant, is healthy and attendingkindergarten. She is, for the most part, a happy child. [14] The negotiations leading to the making of the Access Agreement came about as a result of the respondent passing amessage to the applicant through the Supervised Access Exchange provider that he wanted to see if the access arrangement could bechanged.

A representative of the Supervised Access Exchange programme recommended that the parties attend at mediation. They didso and the Access Agreement was entered into following a course of mediation. [15] After the Access Agreement was entered into, the applicant expected that the respondent would respect their daughter bynot engaging in conflict with the mother. This did not happen on a consistent basis. [16] The applicant’s evidence is that on one occasion he tried to speak with her, the conversation ended with the parties yellingat one another and the applicant crying. On another occasion, the police were called.

The applicant testified that the respondent sworeat her. The daughter was present during these conflicts. [17] The applicant testified and I accept that the daughter’s behaviour as it relates to access has changed subsequent to theseincidents. On Thursdays, when she is scheduled to see her father, it is the applicant’s observation that the child is now reluctant to doso. The child’s state of mind is such that she is concerned that bad things will happen to her. [18] The respondent testified that he was contacted recently by someone from the child’s school because the child was quiteupset.

This school representative asked that he come to the school and speak with the principal and teacher. The respondent testifiedthat he was informed by the teacher and principal that he should not talk about the child’s mother. He was asked what had happened atthe McDonald’s. He told the school officials that if there is anything wrong with the child it is because the mother is trying tomanipulate her. He denied that he said any bad things to the mother. [19] I accept the evidence of the applicant with respect to the interactions she had with the respondent at McDonald’s.

Herevidence about the events that occurred was not addressed by the respondent in cross-examination. The respondent, in his examinationand cross-examination, expressed anger and resentment toward the applicant. He claimed that the applicant ruined his life when sheleft. He is seen by a psychiatrist one or two times a month and is on medications to help him sleep, address pain and stress.

The angerthat he displays when speaking about the applicant belies his statements that he does not talk about the mother in a negative manner. [20] The applicant contacted the Children’s Aid Society for assistance in this matter. [21] The Children’s Aid Society worker Ms. Dugul, who was assigned to this family, interviewed the applicant, respondent

and the child. It is her observation that the child is aware of the conflict ongoing between her parents and is distressed by what the fatherhas said about the mother. [22] I am satisfied that there has been a material change in circumstances that affects the best interest of the child. The child ismuch older now than when the agreement was reached and is able to perceive and is adversely affected by the conflict that is ongoingbetween her parents. The access exchanges, while in a public place, have become conflictual.

The restraint expected by having theaccess exchanges made in a public place has not occurred. [23] These changes affect the need of the child to be protected from ongoing conflict. They also pertain to the ability of theparents, and in particular the ability of the respondent, to meet the child’s needs not to be exposed to the ongoing domestic conflict.

When the parties agreed to have access exchanges take place in public, it was not expected that the child would be exposed to theongoing conflict. 3: ACCESS EXCHANGES AT THE GLENGARDA SUPERVISED ACCESS PROGRAM [24] The evidence that supported the finding that a material change in circumstances had occurred with respect to accessexchanges also supports the finding that it is in the best interests of the child that access exchanges take place in circumstances wherethere is not direct contact between the applicant and the respondent.

I find that the child has been adversely affected by the conflict shehas observed during access exchanges at McDonald’s and exposure to the father’s negative comments about the mother. Therespondent’s evidence that, (

a) he wants his daughter to know what her mother has done to him, and (

b) it is his hope that as the childgrows up she will come to see that it was the applicant who wronged the respondent, is most troubling [25] The evidence also supports a finding that it is in the child’s best interest that neither parent speak negatively about theother to or in front of the child. 4: DISPENSING WITH CONSENT FOR PASSPORT APPLICATION [26] The order of Zaltz J, dated September 17, 2007, specifically provides that the applicant shall apply for a passport for thechild.

The respondent shall not unreasonably withhold consent for a passport. [27] The applicant has asked the respondent on a number of occasions that he sign a consent to allow the applicant to obtain apassport for the child. He has refused. He does not want the child to be removed from Canada. In his evidence, he stated that if thechild wants to see relatives they can come to Canada. I find that the respondent is unreasonably withholding his consent. There is noevidence that the applicant wants to move the child from Canada.

There is no evidence that the child seeing relatives would be harmfulto her whether in or out of Essex County. [28] In these circumstances, an order shall go dispensing with any consent required from the respondent to enable theapplicant to obtain a passport for the child. 5: REMOVAL OF THE CHILD FROM THE COUNTY OF ESSEX [29] The applicant has relatives in Toronto and in the United States. The applicant gave evidence that she wanted to be able totake the child to see these relatives during holiday periods and even on some weekends.

The applicant has a sister who resides inMichigan who she has not seen since 2005 because she cannot take her daughter. (It was not explained why the sister did not come toWindsor to see the child or the applicant.) [30] I find that it would be in the best interests of the child to be able to visit with family members outside of Essex County inorder to foster her relationship with them. [31] The respondent requests that he be granted the following relief: (

a) Joint custody; and (

b) An additional day of access. 6: Joint custody [32] There is no evidence in this case that despite their differences the parties are able to communicate effectively with one another. See Kaplanis v. Kaplanis (2005), (ON CA), 10 R.F.L. (6th) 373 (Ont. C. A.). [33] I asked the respondent what he meant by joint custody. He said he did not know. [34] Despite the parties inability to communicate directly, the respondent should be kept advised of matters of significancerelating to the child. These would include matters pertaining to her schooling, her health, upcoming social and other important events inher life.

He has this right under the Order of Zaltz J. The applicant is obliged to provide releases that would allow this to take place. [35] This communication can also be effected by way of a communication journal initiated by the Applicant. This will allowthe applicant and the respondent to communicate in writing about the child. The respondent will be able to report to the applicant onsimilar matters concerning the child while in his care. [36] This is not a case for joint custody. 7: Increased Access [37] The respondent asked that he be granted another day of access.

He laments that he only has his daughter four and a half

hours per week. I find that it would not be in the child’s best interest that the respondent have additional access at this time. He must first address the hurt, stress and depression he faces. He testifies that he believes the applicant has ruined his life and he is not able to trust another woman. His views are adversely affecting his daughter. [ 38 ] The access currently takes place on Thursday afternoons. The child, while in kindergarten, does not attend school on Thursday afternoons. This will change once she enters grade one.

The respondent will not be able to exercise access on Thursday afternoons as the child will be in school. [ 39 ] The parties did not address what is to happen with respect to access once the child begins attending school on a full time basis. It would not be in the child’s best interest for the applicant and the respondent to begin new proceedings to address that issue. I note that the application before me was issued October 18, 2010 and was not tried until 14 months later.

On the evidence before me, I find once the child enters school it would be in her best interest to have access with the respondent every second Sunday from 12:00 p.m. until 5:00 p.m. I also order that the respondent have mid-week access with the child every week from after school on Wednesdays until 7:00 p.m. [ 40 ] This would allow the applicant full weekends to travel with the child if she so chooses.

It will also provide the respondent with regular access with the child and will be able to spend approximately the same amount of time with her as he now enjoys. [ 41 ] The determination of what is in the best interest of the child must be considered and decided within the context of the case in which the issue arises.

I have attempted to determine what is in Helen’s best interest in the context of the ongoing conflict between the parties and the respondent’s need for counselling to address his mental health issues arising from the parties’ separation which occurred over six years ago. [ 42 ] In the circumstances of this case, I would strongly recommend that the parties, separately, attend at a parent education program such as the Mandatory Information Program so as to become better aware of the effects that ongoing conflict following separation has upon their daughter.

The sooner the parties can support and respect the child’s relationship with the other parent, the better the child will be. [ 43 ] I accept the respondent’s evidence that he loves his daughter very much and that he wants to play an important and positive role in her life. He wants his daughter to know that he has much to offer her. This can happen. He should take all reasonable steps to address the effect the separation has had upon him. [ 44 ] Accordingly, the Order of the Honourable Judge Zaltz, dated September 17, 2007, shall be varied as follows:

a) Sub-paragraphs 2(

i) to and including (xiv) and (xvi) to and including (xviii) shall be rescinded and replaced with the following:

i) Commencing December 1, 2011 to and including August 30, 2012, the respondent shall have access to the child every Thursday from 12:00 p.m. until 4:30 p.m. ii) Commencing September 5, 2012 the respondent shall have access with the child every Wednesday from after school until 7:00 p.m. except during the child’s winter school holiday and March break. iii) Commencing September 9, 2012 and every other Sunday thereafter, the respondent shall have access with the child from 12:00 p.m. until 5:00 p.m. iv) The pick-up and drop-off for all access exchanges shall take place at the Glengarda Supervised Access Centre, except for the pick- up at the beginning of access on Wednesdays which may take place at the child’s school.

b) Paragraph 5 of the said Order shall be rescinded and replaced with the following: 5. The applicant shall apply for a passport for the child. Any consent of the respondent required as part of the passport application is hereby dispensed with.

c) Paragraph 6 of the said Order shall be rescinded and replaced with the following: 6. The applicant shall not change the residence of the child from the County of Essex without court order. [ 45 ] The Access Agreement is superseded to the extent it conflicts with the order amended above. [ 46 ] This is not a case for costs. Released: December13, 2011 Barry M. Tobin Justice