Court of Appeal for Ontario

DATE: 20220819 DOCKET: m53692 (C70932)

Pardu J.A. (Motion Judge)

BETWEEN

Ahmad Walid Sidiqi Applicant (Appellant/Moving Party)

and

Hosna Ahmadzai Respondent (Respondent/Responding Party)

Ahmad Walid Sidiqi, acting in person Ronald Paritsky, for the responding party

Heard: August 19, 2022 by video conference

Endorsement

[1] The moving party, the father, seeks a stay of the decision of a trial judge, dated June 28, 2022, granting permission to the respondent mother to move the residence of their child, soon to be ten years old, from Ottawa to Richmond Hill, Ontario.

Background

[2] The parties were married on July 3, 2009, and initially moved in with the father’s parents in Ottawa. Their child M was born in November 2012. The mother left the father’s parental home when the child was seven months old and moved into an apartment with the child. Ultimately the father joined her there. The parties separated in November 2013 and the mother lived with the child in Toronto until August 2014 when the parties attempted a reconciliation and the mother moved back to Ottawa with the child. By November 2015, the mother intended to separate again and move to Toronto; however, the father brought an application which culminated in a consent order that provided for joint custody, a rotating 2/2/3 schedule of parenting time and stipulated that neither party would move the child’s residence without the consent of the other parent or a court order permitting the move.

[3] The mother has now remarried and has two children with her new spouse. His work requires him to reside in Richmond Hill. At trial, the mother took the position that M’s best interests would best be advanced by permitting her to move to Richmond Hill with her mother and live as a family with her mother, stepfather and two siblings. The father took the position that the child should continue to reside in Ottawa and that the shared parenting schedule should continue.

Arguments on Motion

[4] The father submits that the trial judge erred by giving weight to the child’s expressed wishes to move with her mother. He says that there was evidence from a children’s aid society suggesting that the child had been coached to express those wishes. He says that the trial judge erred by failing to consider the disruption of the move which would necessitate a new school, new home and loss of the frequent and close contact with her father and his family. He wants to preserve the status quo that was in place before the trial judgment.

[5] The mother responds that she has moved to Toronto and has enrolled the child in school there. She says the father is about to move into a new home about 30 kilometers distant from the child’s former home, in any event.

The Trial Judgment

[6] The trial took place over ten days. The trial judge’s reasons are comprehensive, thoughtful and persuasive. She rejected the father’s arguments that the child had been alienated from him or unduly influenced by the mother. She concluded that the child’s wishes were independent and genuine. She expressly considered the impact that the move would have upon the child’s relationship with her father and his family, her friends, school and community in Ottawa.

[7] The trial judge referred extensively to the report of the Office of the Children’s Lawyer. The child reported that she seldom saw her father when she was at his home, that he was mostly at work. She said she only saw him in the morning when she woke up and that he came home late at night. She reported that she wanted to move to Toronto as her stepfather spends more time with her than her father. She said she would not miss her father or extended paternal family if she moved to Toronto. She said she barely saw her father, in any event. She did not like the existing rotating schedule and would prefer to live primarily with her mother, whether she stayed in Ottawa or moved to Toronto.

[8] The trial judge concluded that it was in M’s “best interests to be in the primary care of her mother, Ms. Ahmadzai, and to relocate with her to Toronto so that she can live as a family unit with her siblings and stepfather. It is also in her best interests that [M] have frequent and protracted parenting time with her father, Mr. Sidiqi, through whom she can also maintain her relationships with her paternal family members.”

Analysis

[9] The father does not identify any error of law on the part of the trial judge. He submits that the trial judge ought to have weighed the evidence differently and should have also considered that a change in his career would permit him to spend more time with his daughter in the future. He points to extracts of the evidence which he argues favored his position at trial. However, the Children’s Aid Society reports did not uniformly favor the father; there are concerns expressed about events occurring in the paternal household. It is not entirely clear on what basis the Children’s Aid Society records were filed with the trial court.

[10] The trial judge’s decision and weighing of the evidence are owed considerable deference. The father is unlikely to succeed on his appeal.

[11] I give substantial weight to the trial judge’s determination of the child’s best interests. She had the benefit of hearing evidence from both parties and other witnesses over an extended period. It would not be appropriate at this stage, based on fragmentary affidavit evidence from both parties, to alter the conclusion as to the child’s best interests on a temporary basis. This is not a move proposed to a different country. The child has moved to Toronto and back to Ottawa in the past. She is comfortable in the Greater Toronto area and in Ottawa. No irreparable harm would result from allowing the child to live with her mother, stepfather and siblings in Richmond Hill pending the hearing of the appeal. This motion must be decided now, given that the new school year is about to start.

[12] I recognize that the father cares deeply for his daughter and is very concerned about the impact of the move upon his daughter, and upon his relationship with her.

Order

[13] The motion for a stay is dismissed with costs to the respondent mother fixed at $2000.00, inclusive of taxes and disbursements.

“G. Pardu J.A.”