Court Cases & Orders Parenting Time & Decision Making

What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes


What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes

In a recent case called Tayebi v. Oukachbi the court had to intervene in a case involving separated parents who each wanted custody of their two children. What made the case a little unusual, however, was that each of them refused to leave the matrimonial home and both wanted to oust the other. Moreover they both insisted – with perhaps refreshing candour – that they could not cooperate with each other over temporary custody.

This left the court with the task of simultaneously determining which of them should care for the children, and which of them should remain in the house to do so. The court began the narrative this way:

Dr. Tayebi and Dr. Oukachbi began their married life in Algeria, where they grew up. It is doubtful that they were ever happy in their marriage. They immigrated to Canada some years ago and both are now Canadian citizens. Their children … were both born in Thunder Bay. The parents are intelligent, well-educated people; the father is a professor, the mother a physician. Unfortunately, intelligence and good judgment do not always go hand in hand in family matters.

The bitterness of the parents’ relationship permeates the custody litigation, each parent refusing to physically separate by leaving the home. The father says that separation occurred in June, 2012; the mother says it occurred in September, 2011. Whatever the case, the tensions in the home are intolerable. The court must determine temporary custodial arrangements for the children. The matter cannot be delayed.

After reviewing what it called “voluminous affidavits” filed by both parents, the court performed a broad assessment which established that the children had been cared for by the parents rather equally, with neither of them being the primary caregiver.

However, the court also had to consider the day-to-day interactions of the parents towards each other and towards the children. In particular, the court found that the mother did not have a subservient or inferior role in the marriage as she claimed; it also made negative findings as to her credibility. In fact, the court observed that the mother was very angry toward the father and was too heavily invested in being vindicated. She was also deliberately undermining him in the eyes of the children.

In the end – and while recognizing that both parents appeared to love the children and neither was at fault – the court concluded that the mother’s anger and control issues made her unable to put the children’s best interests first at this point. Custody of the children was therefore awarded to the father, and he was granted exclusive possession of the home as well.

For the full text of the decision, see:

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.