Court File and Parties
CITATION: Abdurahman v Padmore, 2023 ONSC 4439 OSHAWA COURT FILE NO.: FC-171156 DATE: 20230731
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN: Hamdia Shash Abdurahman, Applicant - AND - Ryan Sinclair Padmore, Respondent
Counsel: Ayesha Hussain, Counsel for the Applicant Soumia Allalou, Counsel for the Respondent
Reasons for Decision
LEEF J.
Reasons for Decision
1The Court heard a trial in this Motion to Change commenced by the Respondent. The focus of the trial was on the parenting issues, namely relocation, decision-making responsibility, and parenting time. In addition, claims were made regarding child support and s. 7 expenses, both on an ongoing and retroactive basis.
2The parties began living together in 2007, were married in 2009 and separated in October 2013. They have one child together, Saleel, born February 11, 2011. Saleel is now 12 years old.
3The parties were in Court following their initial separation and a Final Order was ultimately obtained, on consent. The Final Order of Spence J. dated March 25, 2015, provided, in part, that:
(a) The Applicant mother was granted sole custody (as it was then known) of Saleel.
(b) If the Applicant planned to relocate outside the GTA with the child, she was required to provide the Respondent father 90 days written notice of her intention to do so in which case he is at liberty to apply to the Court to review the contested move.
(c) The Respondent father was granted parenting time on Thursdays and during the holidays.
4The Final Order does not provide for alternate weekend parenting. The Respondent testified that this was an oversight and, given that he was exercising his alternate weekend parenting time without incident, he did not see the need to spend money, which he did not have, to correct the Order.
5The Applicant was less than forthright in her evidence on this issue. She suggested that there was no error and that the Order was correct. She claimed that the Respondent did not have weekend parenting time initially after the Final Order was granted, and that she voluntarily agreed to expand his parenting time at some point after the proceedings were concluded.
6I do not accept the Applicant’s version of events. The Applicant offered no explanation of why the Respondent had no weekend parenting time under the Final Order and what criteria, or benchmark, was used to add the weekend time to the schedule. Further, in her initial affidavit filed in these proceedings dated April 15, 2021, the Applicant stated at paragraph 19, “…. The Final Order does not actually indicate that the Respondent has parenting time on alternating weekends. Regardless of this oversight (emphasis added), I have honored this arrangement and facilitated additional access whenever possible”. This statement by the Applicant in her Affidavit is consistent with the Respondent’s evidence on the issue and is at odds with her oral evidence at trial.
7Based on all the evidence presented at trial, I accept that the omission of alternate weekend parenting time in the Order of March 2015 was an oversight, and it was always the intention of the parties that the alternate weekends would occur. The Applicant’s evidence on this issue at trial was not credible and it is concerning that she deliberately attempted to misrepresent the situation to the Court, perhaps because she mistakenly believed that it would give her an advantage in the proceedings.
Motion to Change
Motion to Change
8The Respondent lives in Milton, Ontario, in a two-bedroom rented apartment with his wife, Pippa Watson. They have no other children together, although Ms. Watson has adult children from a previous relationship who reside independently in the United States. The Respondent is employed full-time as a Union tradesman, with periods of layoff between December and March each year. He also has a small business on the side which creates marketing websites and promotional videos for companies. Ms. Watsons works online and attends online school part-time.
9Before moving to the United States, the Applicant resided in the Durham Region in Ontario. In or about August 2021, the Applicant moved to Charleston, West Virginia to live with her now husband, Akeem Holmes. The couple have a young child together, Isma’il who is 1 year old. In addition to Saleel and the baby, the Applicant also has an older child, Junaidi (15 years old), who remains in her full-time care. The Applicant’s husband also has a child from a previous relationship, Braylon (16 years old), who lives with him full-time with flexible time with his mother. The Applicant lives in a five-bedroom home owned by her husband. The Applicant worked in social services for the City of Toronto before moving to the United States. She has not worked outside the home since moving. Mr. Holmes is employed full-time by the government and is actively involved volunteering with youth in the community.
10The Respondent raised concerns regarding the stability of the Applicant’s relationship with her husband, noting that only a few years ago she was seeking to move to a different part of the United States with a different individual.
11It is an unfortunate reality that, when relationships end, the children are impacted. I do not find, however, that the number of relationships the Applicant has had since separation has been unreasonable nor do I accept that because the Applicant’s previous relationships came to an end this somehow increases the risk that the current relationship will breakdown. Based upon the evidence presented at trial, the Applicant and her husband appear to be in a loving and supportive relationship, and he has been a positive role model for all the children in the family.
Parenting Schedule
Parenting Schedule
12The parties have, for the most part, followed the parenting schedule outlined in the Order of Spence, J (with the alternate weekends), until the COVID-19 pandemic hit in 2020. Both parties agree that, once the pandemic commenced and students moved to online schooling, the Respondent’s parenting time with the child increased. Given the distance between the parties’ homes (Milton and Durham region), coupled with the fact that the child was not required to attend school in person but rather could access his classroom online, the parties became more flexible with the parenting time.
13The Respondent presented evidence at trial to suggest that, in 2020, the child was in his care approximately 50% of the time. The Applicant did not provide any convincing evidence to dispute this allegation or suggest otherwise. I therefore accept that as of 2020, the parties began to follow a shared parenting schedule, notwithstanding the terms of the Final Order.
14Both parties acknowledge that, since August 2021, Saleel has been in the primary care of the Respondent and this situation was legitimized pursuant to a without prejudice Order obtained in February 2022. Saleel has remained in the primary care of his father since that time, subject to parenting time, albeit limited at times, with the Applicant.
15While presenting their case at trial, both parties focused their evidence on several key incidents which have occurred since the Final Order was granted.
Child’s First Broken Collarbone – February 19, 2017
Child’s First Broken Collarbone – February 19, 2017
16On February 19, 2017, the Respondent received a message from the Applicant through Our Family Wizard informing him that Saleel fractured his collarbone and was taken to the hospital. Mere minutes after the message was sent, the Respondent called the Applicant wanting to attend the hospital to see Saleel. The Applicant refused, indicating that they were just leaving the hospital.
17The Applicant testified that she messaged the Respondent as soon as she could and did not delay in advising him of the child’s injury. The Respondent does not accept the Applicant’s explanation and finds it impossible that, during the taxi ride to the hospital, the intake process, the time in the waiting room, going for the x-ray, waiting for the results, waiting to see the doctor, the Applicant did not have two free minutes to send him a quick a message letting him know what was going on.
18I find, on a balance of probabilities, that the Applicant timed the sending of the Our Family Wizard message to coincide with when she was leaving the hospital as she did not want the Respondent to attend. It is highly improbable, even if there was not a long waiting time as alleged by the Applicant, that she did not have time to send a five-line message to the Respondent before the child was discharged from the hospital. Her refusal to notify the Respondent of this important incident in a timely manner is an indication of the Applicant’s inability to communicate in a cooperative manner with the Respondent on important child related issues.
Incident at the Child’s School on December 14, 2017 & Parenting Time on December 15, 2017
Incident at the Child’s School on December 14, 2017 & Parenting Time on December 15, 2017
19The Applicant was previously in a relationship with a gentleman named Semir. According to the Respondent, the child had made various statements to him which raised concerns that Semir may be mistreating Saleel. The Respondent states that he attempted to discuss these concerns with the Applicant however she was not open to hearing to discussing the situation. The Respondent claims that he told Saleel that, if the situation continued, he needed to tell someone at school about the problem.
20The situation came to a head in December 2017 when the child apparently disclosed that Semir threatened to lock him and his older brother in a dark garage and beat them for being “annoying”. Saleel would have been six years old at the time and he was crying when he described what had happened. The child made the disclosure to his school principal.
21On Thursday December 14, 2017, when the Respondent attended the school to pick-up the child for his regular parenting time, the Applicant was also present which was unusual. The Applicant wanted to discuss the child’s disclosure with the school principal. According to the Applicant, the principal at the religious school also assumes the role of a counsellor.
22The Applicant was insisting on the meeting while the Respondent was reluctant, wanting instead to start his parenting time with the child which was limited to approximately four (4) hours that evening.
23The parties ending up meeting with the principal and, by all accounts, emotions ran high. The evidence suggests that at times the Applicant was imploring the child to recant his disclosure and say that he was only joking while at other times she was trying to convince Saleel that Semir was only joking when he made the comment. Unfortunately, Saleel was not only witness to much of the conflict between his parents and the principal, he was caught directly in the middle of it.
24Eventually, the principal left the school. At some point thereafter, the Respondent attempted to leave with the child to begin his evening parenting time. As the Respondent was carrying the child out of the building towards his car, the Applicant grabbed the child’s arm, continuing to beg Saleel to say he was only joking about Semir. The Respondent claims that the Applicant’s pulling was hurting the child and, when she would not stop, he asked someone to call the police.
25The Applicant also called the police at some point and alleged that the Respondent had hurt the child by twisting Saleel’s arm and that she was also hurt.
26Once the Respondent managed to get the child out to his car, the Applicant positioned herself to prevent the Respondent from leaving with the child. In an incredible lapse of judgment, at one point the Applicant also had her older child, Junaidi, join the altercation to try to stop the Respondent from leaving with Saleel.
27Ultimately, when the police arrive on scene, they reviewed the recording from the school’s surveillance camera, and decided that no charges would be laid. A copy of the videotape was introduced into evidence at trial. The recording from inside the school was most consistent with the Respondent’s version of events. The Respondent picked the child up to leave for his parenting time and maintained his composure as the Applicant was pulling on the child’s winter jacket.
28At some point, the Applicant may have received a bruise in the tussle. The video tape captured by the surveillance camera at the school shows the Applicant pulling on the child’s arm but does not show the Respondent hitting the Applicant. While the surveillance tape does not capture the entire altercation, according to the police report prepared that night, the Applicant denied being hit by the Respondent. Similar statements are contained in the notes made in the following days by the Durham Children’s Aid Society worker.
29At trial, the Applicant acknowledged exhibiting poor judgment during the December 14, 2017 incident and agrees that she acted inappropriately in pulling at the child.
30The following day, Friday December 15, 2017, was the start of the Respondent’s parenting weekend with the child. The Applicant refused allow the Respondent to pick-up the child for his parenting time, claiming that Saleel was sick. The Respondent called the police to do a wellness check on the child and to see if they could assist with his parenting time. When the police officers attended the Applicant’s home, the child was outside playing in the snow. According to the police report, the child did not appear ill.
31The Applicant maintained at trial that the child was sick that day, despite the police officers’ observations, and that she also wanted to speak to the Durham Children’s Aid Society worker regarding the incident at school before the Respondent had more parenting time with the child.
32I do not accept that the child was sick on December 15, 2017, or, if he was sick, that he was too sick to spend the weekend in the care of the Respondent pursuant to the regular parenting schedule. The evidence supports a finding that the Applicant continued to be upset regarding the events at school the day before and that she was withholding the child until she spoke to the Durham Children’s Aid Society about it. The Applicant was relied on the error in the Final Order, which omitted reference to the Respondent’s weekend parenting time, to her advantage to deny him time with the child.
33The Durham Children’s Aid Society conducted its investigation and cautioned the parents about exposing Saleel to adult conflict.
34The issue which commenced the entire incident at school, namely Samir’s treatment of Saleel, quickly became moot as the Applicant and Samir separated either shortly before or shortly after the events of December 14, 2017.
Child’s Second Broken Collarbone – February 11, 2018
Child’s Second Broken Collarbone – February 11, 2018
35The Respondent took the child go karting one weekend in February 2018 for his birthday and the child suffered an injury to his collarbone. The Respondent informed the Applicant of the injury and took the child to a clinic to be examined. According to the Respondent, the x-ray technician advised him that there was no break or fracture, and the Respondent passed this information on to the Applicant.
36On the Monday, however, the Respondent received a phone call from the medical clinic informing him that the child’s collarbone was in fact broken, and Saleel needs to be brought to the hospital for medical attention. The child was at school when the call was received.
37The Respondent tried to call the Applicant to relay this important information. The Applicant refused to pick up her phone when she saw the Respondent was calling and insisted that he text her with whatever information he wanted to provide. The Respondent refused to text and insisted that the Applicant answer his call. Neither party was willing to proceed as the other requested. All the while, the child was at school, likely in pain, requiring medical attention.
38Ultimately, the Respondent drives to the school to pick up the child to bring him to the hospital himself. The school called the Applicant upon the Respondent’s arrival, and she finally answers her telephone. The Applicant insisted to the school that the child not be allowed to leave with the Respondent and instead directs that Saleel wait there until she arrives to bring him to the hospital.
39It took the Applicant approximately an hour to arrive at the school to pick-up the child to bring him to the hospital. All the while, the Respondent was at the school, able to drive the child to the hospital immediately, but he was prevented from doing so by the Applicant. On her way to the school, the Applicant contacted the police seeking their assistance to prevent the Respondent from attending the hospital with the child. The Applicant makes a note of telling the police officer that it is not the Respondent’s parenting time. The police, understandably, refused to become involved.
40While both parties, at various points in the above incident, behaved inappropriately, I find that the Applicant’s behaviour was most egregious. For a parent to make a child wait unnecessarily for medical attention, so that they can be the one to bring them to the hospital, is incomprehensible. For a parent to refuse to allow the other parent to spend time with a child while they are in hospital because it is not their scheduled parenting time is unacceptable. To then try to involve the police in the situation is unreasonable.
Homeland Security Documents / Hasanville
Homeland Security Documents / Hasanville
41The Respondent has a criminal record which is over twenty (20) years old and predates his relationship with the Applicant and the birth of their child, Saleel.
42Specifically, on December 5, 2000, the Respondent was convicted of offences related to armed robbery and kidnapping and was sentenced to eleven (11) years in jail. The Respondent’s evidence is that he was released after seven (7) years due to good behaviour. As a result of this criminal record, the Respondent is prohibited from entering the United States, a fact which is important given that the Applicant seeks to relocate the child’s primary residence to the United States.
43The Respondent, at some point, received a letter from Homeland Security. The first two pages of the Homeland Security document are missing. It is unclear when the letter was provided however it predates the March 25, 2015, Order of Spence J.
44Pursuant to paragraph 13 of the Final Order, once the Respondent’s then counsel received page 1 and 2 of the Homeland Security letter, together with a police reference check, they were to provide the information to the Applicant. It is acknowledged that the Respondent’s previous counsel did not forward the documents as required pursuant to the March 25, 2015 Order. It is unclear whether they actually received any such documents for the Respondent.
45In any event, with the assistance of his current counsel, the Respondent attempted to obtain the missing pages from the Homeland Security letter himself. The Respondent claims that he has disclosed everything provided to him by Foreign Affairs. The Respondent testified that he has contacted the US Consulate, US ICE, US Border Patrol, and Homeland Security trying to obtain a copy of the missing pages for the letter. According to the Respondent, he has received the runaround from these agencies, with each one telling him that another department was responsible for the information sought. The Respondent also applied to retrieve his file with the Canadian Government and from Global Affairs Canada when he was detained at the border. A copy of those notes were disclosed during the course of these proceedings.
46It is clear that the Applicant is not satisfied with the Respondent’s efforts to obtain the missing pages and suggests that the Court should draw an adverse inference from his failure to provide the information. The Applicant also suggests that the Respondent’s failure to disclose page 1 and 2 of the letter are an indication that he cannot be trusted to follow Court Orders.
47Certainly, the Respondent hasn’t assisted his position by suggesting at one point that he had the missing pages and then claiming that he was mistaken.
48I accept, however, that the Respondent has made reasonable efforts to obtain the missing pages of the Homeland security document, without success. I do not accept that the failure to providing the missing pages is the result of a willful attempt by the Respondent to withhold the information.
49The concerns regarding the missing Homeland Security pages appear to be connected to the Respondent’s attendance at Hasanville. Specifically, the Applicant previously raised concerns that the Respondent holds extremist beliefs and has links to a terrorist organization through Hasanville. She claimed to be worried that the Respondent would share his beliefs with the child and expose the child to other individuals who share similar beliefs.
50The parties’ descriptions of Hasanville are vastly different. According to the Respondent, Hasanville is a family-friendly, peaceful and welcoming place where members of the community gather and celebrate their faith. The Applicant has never been to Hasanville but has formed a negative opinion of the community based on rumors she has heard.
51It is important to note that neither party is seeking any orders from the Court relating to Hasanville. In March 2022, prior to trial, the Applicant consented to an Order removing the restriction on the child’s attendance at Hasanville which was imposed on a without prejudice basis at the time of the ex parte Order.
52Given that no Orders are sought, the Court makes no findings regarding the nature of Hasanville as the issue is now moot.
53In summary, I accept that, while the documentation from Homeland Security may have been relevant in the past, when there were concerns regarding the Respondent taking the child Hasanville, this is no longer a live issue in these proceedings. Based upon the admissible evidence presented at trial, the Applicant’s concerns relating to Hasanville appear to be based on rumors, suspicions, and stereotypes.
54While the Applicant alleges that her concerns regarding Hasanville arise from a telephone call she received from the police on the issue, it appears more likely that the phone call from the police came after she made her allegations regarding Hasanville to the Children’s Aid Society. This is consistent with the Applicant’s evidence in her Affidavit of April 15, 2021, wherein she states that she was contacted by the police regarding the Respondent’s involvement with Hasanville in 2019. This timing is consistent with the Respondent’s allegation that the contact from the police was initiated due to a referral made by DCAS, following the allegations made by the Applicant. This is very different from the Applicant’s evidence at trial that her contact with the RCMP occurred before 2018. I accept that the Application’s recollection of the evidence was clearer and fresher in her mind at the time she swore her affidavit then when she testified at trial a year and a half later.
55Further, according to the disclosure obtained from DCAS, the worker noted on June 27, 2019, that “throughout the duration of this file opening, there has been no evidence or concern from the voice of Saleel regarding his experiences camping with his father. Ryan presented as transparent regarding his activities involved during his parenting time”.
56Finally, in assessing the current relevance of the missing pages from the Homeland Security document, I have considered the fact that the Applicant left the child in the primary care of the Respondent when she moved to the United States in or about August 2021. While the Court can understand why she wanted to be with her husband when their child was born, it was not mandatory that she move to the United States at that time. I find that the Applicant would not have moved to the United States and left Saleel with the Respondent if she had genuine concerns about the child’s safety in his father’s care. Both parties put forward a plan in support of relocation that would maximize the amount of time the child spends with the other parent. Implicit in this position is an acknowledgement that the child is safe in the other parent’s care and that the child has a positive and loving relationship with the other parent. As such, while ideally the Respondent would have provided the missing pages as ordered, I accept that he has made his best efforts to obtain the documentation.
Border Crossing Issues
Border Crossing Issues
57The Respondent’s concern that he is unable to cross the border into the United States given his criminal record from when he was younger is legitimate.
58The Respondent has a criminal record arising from an incident which occurred in 1999, when he was 19 years old, for which he was convicted in 2000. The Respondent accepts responsibility for his past crimes and has served his time. Since being released from prison, the Respondent has made significant efforts to turn his life around, including reconnecting with his religion, attending college, and volunteering in his community. There is no evidence to suggest that the Respondent has committed any crimes since his release from jail approximately 16 years ago.
59Notwithstanding the historical nature of the criminal conviction, it continues to impact this ability to cross the border. When the Respondent tried to cross the border in December 2014, he was detained and held in a custody for a few days. No evidence has been filed to suggest that the situation has changed since that time. Whether the Respondent is able to obtain a pardon in the future and whether that will address the border issues is unclear and, at best, speculative.
Gifted School Program
Gifted School Program
60Pre-COVID, Saleel was attending the gifted program at his school. When the COVID-19 pandemic started, students transitioned to online schooling. Saleel has remained in the online school since that time. At one point, the Durham District School Board stopped offering the gifted program through the online school. The gifted program was only available in person.
61The parties disagreed on what should take priority: online schooling or the gifted program. The Respondent believes that the Applicant’s decision to prioritize online schooling is a litigation strategy, based on her own convenience and is not in the child’s best interests. The Applicant, in contrast, alleges that the Respondent’s push for the gifted program is motivated by a desire to have the child transition to school in Milton in an attempt to prevent the relocation from occurring.
62Ultimately, the Applicant exercised her rights pursuant to the Final Court Order and elected to have the child remain in online school. It is easy for the Court to understand the logic, and pros and cons, behind each decision, both from a child focused approach and also from a litigation strategy approach. Both have their merit and the parties’ positions on this issue is not an indication of their ability to make appropriate decisions in the child’s best interests.
63It is, however, an indication of the parties’ inability to communicate with one another on important child related issues, with the Applicant advising the Respondent that they could discuss the issue at Court. The parties have shown a marked inability to communicate with each other on major decisions affecting the child since the Final Order was granted.
Eid
Eid
64Although the parties have a holiday schedule outlined in their Final Order, including a schedule for Eid, the Respondent advises that he has repeatedly been denied parenting time with the child on this holy holiday. The Applicant does not deny restricting the Respondent’s parenting time during Eid in some years. She justifies her behaviour by raising a concern that the Respondent may take the child to Hasanville, and, given the distance, he may not return the child home in time for her to have time with the child during Eid. The Applicant therefore attempted to either deny the Respondent his parenting time with the child over Eid, or attempted to dictate what he can, and cannot, do with the child during over the holiday. It is ironic that the Applicant would deny the Respondent parenting time on Eid so that she would not lose her parenting time on Eid.
65Given that Eid is only one day, and the distance between the homes, regardless of which schedule is adopted, appropriate arrangements will need to be put in place.
Pick-up of the Child by Akeem Holmes
Pick-up of the Child by Akeem Holmes
66Akeem Holmes, the Applicant’s husband, has been involved in facilitating the parenting schedule between Saleel and the parents, for example, by driving to Ontario to pick up the child for the Applicant’s parenting time.
67The Court heard from several witnesses regarding the day Mr. Holmes attended the Respondent’s home to pick up Saleel and drive him back to West Virginia. According to Mr. Holmes, he felt disrespected by the Respondent who left him waiting over an hour to bring the child down to his car despite knowing that they had a long drive back to the USA ahead of them.
68The Respondent, in contrast, states that the delay was not that long, perhaps closer to 30 minutes, and was the result of the Applicant arriving before the agreed upon time and the child needing to finish breakfast and go to the washroom.
69Ultimately, little turns on which version is correct and, as is often the case, the truth likely lies somewhere between the two explanations.
Sibling Relationship
Sibling Relationship
70The Applicant stresses Saleel’s relationship with his siblings as a compelling part of her parenting plan. Under her proposal, Saleel would continue to live primarily with Junaidi, just as he did prior to 2020. Unfortunately, the Applicant provides no evidence of Junaidi’s parenting schedule other than to say it is flexible and verbal. There is evidence that Junaidi was in the United when Saleel was there during the summer of 2022. There is evidence to suggest that Junaidi may spend May and June with his father and is back in the Applicant’s care as of the end of June. This timing would match the time that Saleel would be in the Applicant’s care under the Respondent’s proposal. The Court likewise has no evidence of the parenting arrangement between Mr. Holmes’ son and his mother, other than it is flexible and can be changed, for example, based on the football practice schedule. Although I have no doubt that Saleel and Junaidi are close, Saleel has never articulated that he wants to live where Junaidi is living. The two appear to have maintained their relationship despite the distance, online and through video games.
The Law
The Law
71The Motion to Change is brought under s. 17(1) Divorce Act which requires the Court to consider two issues:
a. Has there been a material change in the “condition, means, needs or other circumstances” of the child since the date of the Final Order which the parties seek to vary?
b. If the answer to that question is “yes”, then is it in the best interests of the child to vary the final order in this matter as requested by the Respondent, the moving party to this Motion to Change, or in the manner requested by the Applicant?
72In Gordon v. Goertz, the Supreme Court of Canada sets out the two-stage inquiry on which a court must embark when determining a motion to change an order related to decision-making and/or a parenting schedule. In determining whether a material change in circumstances has occurred, the Court must be satisfied of (per Gordon v Goertz):
– (a) A change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;
– (b) which materially affects the child; and
– (c) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
73Once a material change in circumstances has been established, the Court is required to consider the matter afresh, based on the circumstances currently existing, while also considering the findings of fact made by the judge whose order is the subject of the motion.
74In addition, in cases of relocation, the Court is also required to consider the provisions set out in the Divorce Act governing such cases.
75S. 16.93 of the Divorce Act sets out the burden of proof in relocation cases. In the case at hand, although the Final Order provides that the child lives primarily with the Applicant, by 2020, before notice of relocation was served, the parties had transitioned to a schedule whereby the child was in the care of the parties on a shared basis. As noted above in these Reasons, the Applicant has not seriously contested the Applicant’s evidence regarding the parenting schedule from 2020 onwards. The Applicant acknowledged that there was flexibility in the parenting schedule once the pandemic was declared and the child transitioned to online schooling. As such, I find that the burden of proof set out at s. 16.93(3) is applicable to the case at hand, namely that the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
76Section 16(2) of the Divorce Act provides that the primary consideration for the court when determining what is in a child’s best interests is the child’s “physical, emotional and psychological safety, security and well-being.” Section 16(3) sets out an inexhaustive list of best interests factors the court should consider when determining a child’s best interests.
77In addition, in relocation cases, section 16.92 (1) of the Divorce Act sets out additional factors to be considered in determining whether a relocation of a child shall be authorized. These include (a) the reasons for the relocation, (b) the impact of the relocation on the child, (c) the amount of parenting time spent with the child, (d) compliance with notice provisions by the relocating parent, (e) the existence of an order as to where the child is to reside, and (f) reasonableness of the proposal by the parent who intends to relocate.
78The following legal principles in the leading case of Gordon v. Goertz, are also relevant:
a. no legal presumption in favour of de facto custodial parent;
b. focus is on the best interests of the child and not the wishes of the parent;
c. the court should consider the existing parenting arrangement;
d. the desirability of maximizing contact with both parents;
e. the views of the child;
f. custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children; and
g. disruption to the child by change in school, community and family they have come to know.
79Finally, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court described the framework governing relocation cases. At para. 94, it stated:
These submissions all bring into focus how case law across the country has refined and supplemented the Gordon framework for over 25 years. Indeed, the Gordon framework is flexible by design; it is not an unyielding set of rules. And with decades of Gordon jurisprudence as a guide, the federal government and many provinces have now enacted statutory relocation regimes that largely reflect the judicial experience evinced in the case law. As I will explain, this jurisprudential and legislative lineage provides a clear framework for all family arrangements going forward. The trial judge’s assessment of the best interests of the child is consistent with this refined framework. It was free from material error and entitled to deference on appeal.
Analysis
Analysis
80Both parties concede, quite reasonably, that there has been a material change in circumstances since the Final Order was made. Specifically, while both parties resided in the GTA at the time the Final Order was granted, the Applicant mother has since moved to West Virginia in the United States and has indicated a settled intention to remain there with her new husband and the child they have together. According to the Applicant, Junaidi’s father has agreed that Junaidi may relocate to the United States and the child has since moved there. The Applicant seeks to have Saleel join her and Junaidi, as well as the rest of their family, in West Virginia.
81The Applicant’s relocation to West Virginia constitutes a material change in circumstances and renders the parenting schedule outlined in the Final Order of Justice Spence from March 2015 unworkable. There is no question that the Final Order must be varied.
82Having found that a material change in circumstances has occurred since the Final Order was granted, the Court may grant a variation of the existing Order however, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
83The Court’s primary consideration is the child’s “physical, emotional and psychological safety, security and well-being.” In the case at hand, although each party outlined their list of complaints regarding their interactions with the other party, at the end of the day, neither party seriously raised concerns about the child’s safety, security or well-being in the other parent’s care. Both parties concede that, if Saleel were to remain in their primary care, then he should spend the maximum amount of time possible in the care of the other parent.
84With respect to the criteria outlined at s. 16(3) of the Divorce Act:
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability. As indicated above, both parties are able to meet the child’s needs on an ongoing basis. While the Applicant may have taken the lead with the gifted testing, the Respondent was involved, and he supported the testing and wanted the child to obtain the appropriate supports in school. With respect to the child’s need for stability, the parenting schedule has changed dramatically since the Final Order was granted in March 2015. Initially, the child was residing primarily with the Applicant with alternate weekend and mid-week parenting time with the Respondent. Once the pandemic commenced in 2020, the child began to spend more time in the care of the Respondent such that the schedule resembled a shared parenting arrangement. Since in or about August 2021, the child has been in the primary care of the Respondent with limited in person parenting time with the Applicant given the geographic distance, the ongoing pandemic, and the inability of the parties to agree upon an appropriate parenting schedule. According to the Applicant’s calculations of time, which were not disputed by the Respondent, the child has been in the primary care of the Respondent for 50% of the time or more since 2020. Regardless of the schedule, however, whenever the child has been in their care, I find that both parents are equally capable of ensuring the child’s needs are met on an ongoing and consistent basis. Both plans involve disruption in the stability the child has experienced in the past: the Applicant’s plan removes him from his home, school and community in Ontario while the Respondent’s plan removes the child from the primary care of the Applicant, where he has always lived prior to 2020.
The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life. The child has a close and loving relationship with both parents and stepparents. It is apparent from his conversations with the Office of the Children’s Lawyer that Saleel is comfortable in each home and there is nothing he would change in either residence. While the child specifically spoke of a close relationship with his stepmother, this is likely because he has known her longer. I accept that he has likewise started to build a positive relationship with his stepfather. The child has half-siblings who reside with the Applicant in West Virginia with whom he has a loving and close relationship. Saleel maintains contact with his older brother via online video games when they are not together. The child also has a paternal grandmother, aunt and cousins in Ontario who he sees on a regular basis. The Respondent testified that he would support the child’s relationship with the Applicant and his siblings if the child remained in his primary care. The Respondent testified that the child could connect with these individuals virtually and, when it came to his brother, could play games and chat with him online. In addition to the regular parenting schedule, the Respondent was open to the Applicant having additional parenting time whenever she was in Canada. The Respondent denies that he, in any way, has interfered with or tried to limit the Applicant’s contact with the child since she moved to the USA. While the Applicant made similar promises to support the Respondent’s parenting time with the child, some of her actions in Ontario have been inconsistent with this promise: for example denying parenting time around Eid, cancelling parenting time following the altercation at school, and refusing to allow the Respondent to attend the hospital with the child when he was injured, going so far as to call the police on one occasion to see if they would assist in stopping the Respondent from attending.
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. Both parties testified that they support the child’s relationship with the other parent and would ensure that it continued if the child remained in their primary care. At times, however, both parties have been unable to prioritize the child’s relationship with the other parent over their own interests. For example, the Respondent initially demonstrated a reluctance to allow the child to visit with the Applicant in the United States, a reluctance which extended beyond merely COVID-related concerns. There were numerous examples of the Applicant’s failure to support the Respondent’s relationship with Saleel. The Applicant claimed the child was sick on the day after the altercation at school in order to deny the Respondent parenting time. She called the police when the Respondent wanted to attend the hospital with the child after he broke his collarbone. She placed herself in front of the Respondent’s car to try to stop him from leaving with the child during Eid out of fear that the child would not be returned in time for her to celebrate the holiday with the child. She made allegations to the police following the incident at school which were inconsistent with the video recording in order to try to have the child returned to her care. The Applicant made allegations to the Durham Children’s Aid Society that the Respondent held extremist beliefs and was connected with an organization with terrorist ties in an attempt to restrict his parenting time, despite having no credible evidence to support these claims.
85The Court is concerned whether the Applicant will strictly comply with any Order made by this Court regarding the Respondent’s parenting time. Prior to the second Voice of the Child Report, the child was in the care of the Applicant for a period of five weeks. At her request, the Respondent agreed to extend the parenting visit to six weeks. The Applicant then sought additional time and, when the Respondent did not agree, she stated that neither she nor her husband could return Saleel at the agreed upon time. After a flurry of correspondence between counsel, the child was ultimately returned to Ontario as required. It is concerning, however, that the Applicant would use a birthday party as an excuse to try to extend the court ordered parenting time and then inability to provide transportation. Neither of these are valid excuses for noncompliance with a Court Order. If the Applicant is behaving in this manner when the Court proceedings are ongoing, there is a reason to be concerned about her compliance with Court Orders once the proceedings have concluded. Further, in both her evidence and that of Mr. Holmes, they testified about the need to be flexible with the parenting schedule. While flexibility is a nice ideal for parents who have a respectful and co-operative relationship, in high conflict cases such as the one at hand, in the Court’s view strict compliance with a fixed schedule is required. It is unclear whether the Applicant and her husband agree with this perspective.
The history of care of the child. Since the Final Order was granted, there have been periods of time when the child has been in the primary care of the Applicant, periods when the schedule approached a shared parenting arrangement, and periods when the child was in the primary care of the Respondent.
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. The Office of the Children’s Lawyer was appointed in this matter and two Voice of the Child Reports were prepared. Following the first OCL VOC report, dated September 16, 2021, the clinical investigator conducted two interviews with the child, the first for 1 hour and the second for 45 minutes. At the time, the child spoke positively about both his parents and both households. When interviewed in his father’s care, Saleel indicated that his home is with his father and that is where he wanted to stay, even if his mother returned to Canada. When interviewed after spending time in Ontario with his mother, Saleel indicated that he would like to visit the United States, and meet his step-father, in person, before expressing any preference regarding where he would like to live.
The parties, with the assistance of the Court, therefore arranged for the child to spend time with the Applicant in the United States over the month of July 2022 and a second VOC report was prepared. A different clinician prepared the second report and she indicated that she not read the first report before completing her report. When interviewed with his mother, Saleel reported wanting to attend school from her home and spend as much time as possible outside of school with his father. During the second interview while in his father’s care, the child reported that maybe he wants to stay with his father, but then decided he would like to live primarily with his mother.
The Court has serious concerns regarding this second report and the manner in which it was conducted. Firstly, the second clinical investigator spent at most 30 minutes in each interview, likely less than that when the child was in the care of the father. The child had just returned from his first visit to his mother’s home a few days earlier, where he met his step-father and step-brother for the first time. It is difficult to image much more than a superficial conversation occurring in 25 minutes. Further, when the clinician conducted her second interview with the child, while he was in the Respondent’s care, it was at a park, with a picnic and waterpark. While the location was selected by the Respondent, the clinical investigator should have known that it was an inappropriate location to have a private interview with a child, who would understandably be distracted by his surroundings. Finally, a number of important issues one would have expected to see in this second OCL VOC report were absent, possibly due to the hurried nature in which it was prepared. For example, the report makes no mention of the child practicing his religion with the Respondent, although the uncontroverted evidence is that both parents are very religious and practice their faith with the child. Further, in her evidence at trial, the clinical investigator indicated that, according to the child, if it were up to him his parents would live closer to one another and he would spend an equal amount of time in the care of each parent. This is important information was omitted from the written report.
86Finally, both parents agree that the child was in tears after the second meeting with the clinical investigator and wanted to speak with her again. The Court will never know what the child would have said to the clinical investigator as she refused to meet with, or even speak to, the child again.
87What is clear and consistent from both Voice of the Child reports is that the child has a close and loving relationship with both parents and has no concerns regarding the care provided to him by either parent. I accept that, in an ideal world, the parents would live close enough to one another to allow the child to spend an equal amount of time with each parent. Unfortunately, sometimes life is less than ideal and, in the case at hand, such a parenting arrangement is unworkable. Beyond that, however, I have significant concerns regarding the manner in which the second report was conducted, as evidenced by the glaring omissions from the report, the limited time spent interviewing the child, and the failure to follow-up when the child was distraught and wanted to speak once more with the clinical investigator. As such, I am unable to attach any weight to the views and preferences expressed by the child on the relocation issue in the second VOC.
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage. The parties are of the same faith and religion is an important part of each of their lives. Both parties spoke of attending the mosque, praying regularly, and celebrating Eid. Both parties emphasise religion and faith in their daily lives and share their beliefs with the child. Although the Applicant alleges that the Respondent is more extreme in his beliefs, no convincing evidence was provided at trial to support this assertion. Further, none of the parties who testified at trial described the child as having rigid or extreme beliefs notwithstanding that he has been in the primary care of the Respondent since August 2021. When the child shared with the Clinical Investigator his understanding of his religion’s teachings on where he should live, the information was provided to the child by both his parents, although the Applicant told him that he could decide for himself. The Court is satisfied that both parents are equally able to support and foster the child’s cultural, religious and spiritual heritage.
Any plans for the child’s care. Both parties have put forward a detailed parenting plan for the child. Both plans provide for the child attending in person school in a gifted program and, as such, regardless of which plan is accepted by the Court, the child is required to change schools this coming academic year. Both plans provide for extended periods of time for the child to be in the other parent’s care during the school breaks. It is difficult for the Court to understand what time exactly the child will have with his half-brother / step-brother under each plan as no documentation or particulars were provided regarding those children’s parenting schedules. It appears that Braylon’s schedule is flexible as, for example, the child remained in his father’s care during the summer in part due to the football practice schedule. With respect to Junaidi, the Applicant testified to flexibility in the arrangement with Junaidi’s father. Evidence was presented, however, that the child spends May and June with his father before returning to the United States towards the end of June. This would correspond well with the time that the child spends in care of the Applicant during the months of July and August under the Respondent’s plan. While the Applicant’s plan may provide more days when the child is the care of the Respondent, this is not determinative of the issue. Pursuant to the plan proposed by the Applicant, the child’s primary residence will be changed to the United States, a country which the Respondent is not legally permitted to enter at this time. The restriction arises as a result of the Respondent’s criminal record for an offence before he met the Applicant and before the child was born. The last time the Respondent attempted to enter the United States he was detained at the border and held in custody for the weekend. While the Respondent may, at some point, obtain a pardon for this offence, there is no evidence to support when or if this may occur. In contrast, the Applicant is able to freely enter and leave both the United States and Canada. As such, under the Applicant’s parenting plan, all the travel for parenting time with the child must be done by the child, as the Respondent is unable to travel to the child’s residence. In contrast, under the Respondent’s parenting plan, arrangements can be made not only for the child to travel to the United States for parenting time, but also for the Applicant to travel to Canada to visit with the child. When viewed from the child’s perspective, this is an important consideration. I find that the Respondent’s plan of the child’s care maximizes the child’s time with both parents and minimizes the disruption to the child’s care.
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. This factor favors both parties equally as both are able to care for and meet the needs of the child.
The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child. Notwithstanding the length of time that the parties have been separated, their communication remains problematic. This became clear when the parties were each testified regarding the incident in February 2018, when the Respondent attempted to speak to the Applicant to advise that the child’s collarbone was broken, and he needed to go to the hospital. The child required immediate medical attention. The Respondent was telephoning the Applicant to relay the information provided by the doctor. The Applicant was refusing to answer the telephone and insisting that the Respondent text. The Respondent was refusing to text and insisting that the Applicant answer the phone. The parties went back and forth, each refusing to budge from their preferred method of communication in the circumstances, all the while the child is at school, in pain, with a broken collarbone. By way of another example, the parties were unable to discuss the issue of the child’s schooling in a cooperate, child focused manner. Instead, each maintained their position on in person versus online learning, largely for reasons related to litigation strategy rather than child focused approach. Attempts by the Respondent to raise the issue with the Applicant were put off, with a comment that the issue would be addressed at Court. The Court has no confidence that these parties will be able to communicate cooperatively on child related issues in the future.
Any family violence and its impact on, among other things,
h. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
i. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.
The Applicant alleges that the Respondent was abusive during the relationship. The Respondent denies the allegation. The Court is unable to make any findings given the limited evidence presented on this issue at trial. Although allegations of abuse were made by the Applicant, the evidence was not presented to my satisfaction to support the allegations. As indicated above in these Reasons, both parties have demonstrated that they are able and willing to care for and meet the needs of the child. In making the Final Order, however, the Court is mindful of the Applicant’s concerns regarding communication with the Respondent and will consider this fact when determining the appropriate Order in the child’s best interests.
Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. This consideration is not applicable in this case.
88I have also considered the factors set out in section 16.92 (1) of the Divorce Act in determining whether the relocation of the child should be authorized, in particular:
The reasons for the relocation. I find the Applicant’s decision to move to West Virginia, to be with her husband with whom she now has a child, to be reasonable.
The impact of the relocation on the child. The distance between the parties’ residences is considerable and both plans presented at trial represent a significant departure from the status quo at the time that the Final Order was made.
The amount of parenting time spent with the child. Notwithstanding the terms of the Final Order, the Respondent has been spending increasing amounts of time with the child such that, before the request to relocate was made, the child was spending more than 40% of his time in the care of the Respondent. Prior to the trial on the Motion to Change, the Applicant decided to move to West Virginia without the child such, that, since August 2021, the child has remained in the Respondent’s primary care, albeit on a without prejudice basis. Children are not inanimate objects, however, and the Court cannot simply ignore the 2-year status quo parenting arrangement simply because it is said to be “without prejudice”.
Compliance with notice provisions by the relocating parent. The Applicant provided notice of her planned relocation as required and the Respondent provided his objection to the relocation.
The existence of an order as to where the child is to reside. While there is a Final Order providing that the child would have his primary residence with the Applicant, at the time that the relocation notice was given the parties were not following the parenting schedule outlined in the Order and the schedule at the time was akin to a shared parenting arrangement.
Reasonableness of the proposal by the parent who intends to relocate. The Court’s concerns regarding the Applicant’s proposal are outlined above in these Reasons and will not be repeated here.
89Having found a material change in circumstances since the Final Order was granted, I find that it is Saleel’s best interests to remain in Ontario, in the primary care of the Respondent. As such, the Applicant’s request to relocate the child’s primary residence to West Virginia is denied.
90I accept the parenting plan proposed by the Respondent as being, on the whole, a child-focused plan which is consistent with the child’s best interests. I have modified the Respondent’s proposed plan, for example, by providing the Applicant with more time during the summer period. A copy of the parenting schedule being ordered is outlined in detail below in these reasons.
91Given that the Applicant is the relocating parent, I find that she should bear financial responsibility for the travel costs for her parenting time, subject to the Order made below regarding child support.
92With respect to decision making authority, the evidence presented by both parties at trial indicates that they are unable to make decisions regarding the child in a child-focused, cooperative manner. The parties’ relationship is filled with mistrust. It is hoped that that will change over time. At present, however, the Court is not confident that they are able to put aside their differences and make decisions jointly in Saleel’s best interests.
93As such, the Respondent shall have sole decision-making authority for the child. Prior to making any major child-related decisions, the Respondent shall first consult with the Applicant on the decision to be made and shall also advise her of the final decision he has made after taking into account her views on the issue.
Child Support
Child Support
94The vast majority of trial time was, understandably, spent on the relocation issue. While initially each party was making various claims regarding child support, by the conclusion of the trial many of those claims had been abandoned.
Retroactive Adjustment
Retroactive Adjustment
95By the conclusion of trial, the Applicant took the position that she was no longer claiming any retroactive adjustment in child support or arrears payment.
96The Respondent, for his part, continued to seek a retroactive adjustment in support and claimed that a credit is owed to him by the Applicant. The Respondent’s child support adjustment calculations are predicated upon an income of $63,810 being imputed to the Applicant, being the amount she earned while employed with the City of Toronto.
97I decline to find that the Applicant is deliberately underemployed or unemployed such that an income should be imputed to her. As indicated above in these Reasons, her decision to move to West Virginia to be with her husband, the father of her youngest child, is reasonable. She is unable to legally work in the Unites States at present and it is unclear how long it will be before that changes. The Applicant testified that she was offered work as a daycare worker which, while particulars regarding income were not provided, would be at best a modest income.
98Given that no income is being imputed to the Applicant, any retroactive adjustment of child support would likely result in an amount payable by the Respondent for the initial years after the Final Order was granted. I decline to make such as Order, however, not only because the Applicant is no longer seeking adjustment for those years, but more importantly because such as Order would be inappropriate given that no ongoing child support is payable by the Applicant.
Ongoing Child Support
Ongoing Child Support
99With respect to the issue of ongoing child support, the Respondent testified at trial that he would not be seeking child support from the Applicant if the child remained in his primary care on the understanding that she assumes full financial responsibility for the travel expenses associated with her parenting time. Given the distance between the two residences, the travel expenses will include unaccompanied minor airfare or a lengthy car ride to and from Canada. In the circumstances, an Order that there be no child support payable is appropriate and helps prioritize the Applicant’s time with the child and helps to ensure that it will take place.
100S. 7 expenses shall be shared by the parties equally, rather than proportionately, given that no ongoing child support is payable. At present, it appears that the only ongoing s. 7 expense, other than medical / dentals expenses that may arise, relate to the child’s taekwondo. This may change once the child returns to in person school.
101Each year, the Applicant shall provide the Respondent with her Income Tax Return and Notice of Assessment (or the United States equivalent to these documents). Should the Applicant’s income exceed $50,000 in any year, the issue of child support may be reviewed to determine what, if any, child support should be paid in the circumstances.
102Finally, for reasons that are unclear to the Court, the Applicant continued to receive the Child Tax Benefit for Saleel up until the eve of trial, at which time she apparently advised CRA that the child was no longer in her care. The Applicant testified that she now has to make a repayment to the Canadian government for amounts she received improperly. It is expected that the Respondent will be entitled to receive the Child Tax Benefit for the child commenced August 2021 as this is when the child began to reside in his full-time care.
Order
Order
An Order shall issue on the parenting issues as per the amended draft Order, a copy of which is attached to these Reasons.
There shall be no ongoing or retroactive child support payable by either party.
The Applicant shall provide annual disclosure as required pursuant to the Child Support Guidelines. Child support may be reviewed if the Applicant’s income exceeds $50,000.
The parties are strongly encouraged to resolve the issue of costs on consent. Failing agreement, the parties shall contact the Trial Coordinator to request that the matter be added to my docket for a brief (20 minutes) appearance at which time counsel should be prepared to make oral submissions on costs. Copies of their Bill of Costs and any relevant Offers to Settle should be filed ahead of time.
The Honourable K. D. Leef
Released: July 31 2023
