Court of Appeal for Ontario

Date: 2025-04-17
Docket: COA-24-CV-0930
Coram: Peter Lauwers, Ian V.B. Nordheimer, David A. Wilson

Between:
S.R.I.S. (Applicant/Appellant)
and
N.Z. (Respondent/Respondent)

Appearances:
S.R.I.S., acting in person
Stephanie Okola, for the respondent

Heard: 2025-04-02

On appeal from the order of Justice Laura E. Fryer of the Superior Court of Justice, dated May 21, 2024.

Reasons for Decision

Introduction

[1] We will refer to N.Z. as Mother and to S.R.I.S. as Father. This appeal concerns competing motions to change in a family law dispute.

Factual Background

[2] Mother and Father, who hail from Pakistan, had an arranged marriage in November 2009 and separated in July 2017, with much acrimony. Father was charged with sexual assault and forcible confinement arising out of incidents between the two of them, but these charges were withdrawn in favour of a peace bond. Father told the police that Mother physically and sexually assaulted the children, an allegation which the police and Durham Children’s Aid Society (“DCAS”) were unable to substantiate.

[3] The parties have been governed by the final order of Leef J. dated February 11, 2019. That order was made on consent and simply stated that the parents would have shared parenting of their two children, who are now 10 and 12 years old, on a week-about schedule.

[4] In a separate, final order of Hughes J. dated January 30, 2019, Father was required to pay child support to Mother in the Table amount of $1,067, and $433 in monthly spousal support.

[5] It is common ground, as noted by the trial judge, that the conflict between Mother and Father has worsened, to the detriment of the children. The trial judge noted:

“The children have been caught between their parents and forced to repeat scandalous falsehoods. The police and [DCAS] have been involved more than once. The children are visibly suffering.”

The Motions to Change

[6] Mother asserted that there had been several material changes in circumstances since the February 2019 order: further deterioration of the parties’ communication; Father’s remarriage to a woman who allegedly abuses the children; escalation in the parties’ conflict; and further suffering on the children’s part as a result.

[7] Mother moved to vary the February 2019 order, seeking sole decision-making authority and primary care of the children. She also sought the right to travel with the children to Pakistan.

[8] Father cross-moved to vary the February 2019 order to give him sole decision-making authority and primary care (80%) of the children to, as the trial judge noted, “enable him to ensure that they are raised properly and supported fully in their education”. Father also sought an order that the children be prohibited from travelling outside of Canada until age 19. Lastly, he sought to terminate spousal support and reduce child support under the January 2019 order.

[9] The trial judge varied the orders, mostly on the terms sought by Mother. Mother could not, however, travel outside of Canada without the written consent of Father. While she was to have primary care of the children, Mother was to abide by a set parenting time schedule. The trial judge also varied the January 2019 order to require Father to pay to Mother the increased Table amount for child support of $1,347 based on Father’s 2023 income, and to continue to pay spousal support with a set termination date.

[10] Father appeals.

Analysis

[11] We consider the trial judge’s reasons to be clear, sound, based solidly on the evidence, and consistent with the Divorce Act, RSC 1985, c 3 (2nd Supp.). Such findings attract a high degree of deference: Van de Perre v. Edwards, 2001 SCC 60, para 11; Hickey v. Hickey, paras 10 and 12. It is not this court’s function on appeal to retry the case, but to respond to errors of law and overriding errors of fact. Father has not persuaded us that the trial judge made any such errors.

The Governing Principles

[12] In making a parenting order, the court must consider only the best interests of the children: s. 16(1) of the Divorce Act. In these high-conflict circumstances, a trial court must assess the evidence and make credibility findings in order to determine what is in the best interests of the children. This is essentially a factual exercise, and this court is deferential to the findings of fact made by a trial judge.

The Principles as Applied by the Trial Judge

[13] The trial judge considered the factors set out in s. 16(3) of the Divorce Act as follows.

(1) The children’s needs, given their age and stage of development: s. 16(3)(a)

[14] The trial judge found that the children “have been struggling.” Each makes serious allegations about their parents, but they shift their stories routinely. The trial judge favoured the evidence of a witness who described the children as “depressed and confused,” and as “cheery” pre-separation, but now “shy and introverted.”

(2) The nature and strength of the children’s relationship with each spouse and other relevant persons: s. 16(3)(b)

[15] The trial judge found that the children clearly love both their parents, but are caught in the middle of serious animosity and conflict. The children also have a good relationship with Father’s new wife.

[16] The trial judge observed that the children have a close relationship with Father’s estranged brother, T.S. Mother is close to T.S. and the children spend “many if not most weekends” with him and his family. The relationship between Father and his brother T.S. is deeply strained, and Father does not want the children to spend time with his brother.

(3) Each spouse’s willingness to support the children’s relationship with the other: s. 16(3)(c)

[17] The trial judge found that each parent was highly critical of the other’s parenting, but more so Father of Mother. Mother raised concerns that Father’s new spouse abused the children, but the trial judge found that these concerns “were not supported based on all the evidence before [her].” Father sharply criticized Mother’s inability to speak English and the effect this has on her ability to assist in the children’s education and to find work. The trial judge lastly found that Mother was more inclined to support the children’s relationship with him than he was to support their relationship with her.

(4) The history of the children’s care: s. 16(3)(d)

[18] As noted earlier in these reasons, the parties shared parenting time under the February 2019 order and each party had been actively involved in the day-to-day care of the children.

[19] The trial judge observed that Mother does not work, and so is available to care for the children when they are not at school. She is also supported by T.S. and his family. T.S. described Mother as caring well for the children. In terms of Mother’s ability to help the children with schoolwork, the trial judge noted that they were doing well at school and that the school had reported none of the concerns stressed by Father. However, Father advised us that Mother unilaterally changed the children’s school to their great distress, and that they are not doing well now. This is not a view to which we can give any weight on appeal.

(5) The children’s views and preferences: s. 16(3)(e)

[20] The children both told a representative of the Office of the Children’s Lawyer (“OCL”) that they didn’t like the “week on and week off” approach. They said they wanted to live in the same house together. One of the children told the representative that he “feels sad all the time” and would like to speak to someone. Father “has not been supportive of therapy for the children despite their obvious struggles.”

[21] Father argues that he was treated unfairly by the OCL representative, because his witnesses were not interviewed while Mother’s witnesses were. This difference in treatment is not suggestive of bias, as Father suggests.

(6) The children’s cultural, linguistic, and religious upbringing: s. 16(3)(f)

[22] The whole family is Muslim, and their faith is deeply important to all of them.

(7) Any plans for the children’s care: s. 16(3)(g)

[23] Each party sought primary care responsibility. Mother expressed a desire to work as a Personal Support Worker (PSW), but had no concrete plans to achieve the necessary qualification and would still be available to care for the children. The trial judge noted that Mother has the support of T.S. and his family as far as caring for the children goes. Father’s plan of care heavily involved his new wife, A.T., who did not testify. The trial judge commented that “[g]iven how integral A.T. is to [Father’s] plan, it would have been helpful to hear evidence from her directly.”

(8) Each parent’s ability and willingness to care for the children and meet their needs: s. 16(3)(h)

[24] The trial judge found that Mother had been proactive in accessing supports for herself and her children, and that she would likely continue to do so. Father works longer hours and would rely on A.T. to help care for the children. A.T. is relatively new to Canada and does not drive. The trial judge concluded that, given Father’s refusal to acknowledge the impact of conflict on the children or to help them get assistance for their mental health challenges, he is “less able and/or willing to meet [their] needs”.

(9) Each parent’s ability and willingness to communicate and cooperate with the other: s. 16(3)(i)

[25] The trial judge found that neither parent had much ability to communicate amicably with the other.

(10) Any family violence and its impact on the children: s. 16(3)(j)

[26] Each parent accused the other of physical violence against the children. Each was offended by the allegations, and this has continued to impair their co‑parenting relationship. The trial judge was troubled by Father’s repeated allegations that Mother has a boyfriend named “T.” She observed that the OCL representative characterized these allegations as “[t]he use of religion and culture to reinforce shame and control” in an effort to shift the power imbalance between the two parents. The trial judge found that this is a form of family violence, and that it has caused emotional harm to the children as well as to Mother.

[27] On the parenting order, the trial judge largely found in Mother’s favour. Three factors animated her decision most significantly. First, she found that Mother is more likely to support Father’s relationship with the children, and Mother has a positive relationship with T.S., to whom the children are close. By contrast, Father went so far as to seek an order prohibiting a relationship between T.S. and the children, “without providing a child focused reason.” Second, Mother is available to care for the children during the week and on weekends, whereas Father’s work commitments require him to rely on A.T., which is not optimal for the children. Third, Father’s “continued perpetration of culturally specific domestic violence against [Mother]” is a serious concern.

[28] This reasoning led the trial judge to conclude that it was in the children’s best interests that they reside primarily with Mother, and that Father have “regular parenting time on weekends and holidays.” She ordered that Mother was to have sole decision-making authority for the children, but she must still consult with Father. She also prohibited the children from traveling outside Canada until the eldest child turned 16, given the impossibility of enforcing the court’s orders should Mother bring them to Pakistan and decide not to return.

The Support Order

[29] The trial judge varied the existing support order. Father complained he had other debts to satisfy, but the trial judge held that they were “secondary to his obligations to [Mother] and the children.” Father was ordered to pay the Table amount of $1,347 in child support, reflective of his 2023 income. He was also ordered to continue to pay Mother $433 in spousal support, but this requirement would now terminate on January 1, 2026. Either party, however, could request a review of spousal support on this date.

[30] Father argues that the support order has and will continue to cause undue hardship and financial strain for him and his new wife. He asks that this court terminate any obligation for him to pay Mother spousal support, and that his child support payment be reduced. He also asks, as he did in the court below, that this court order Mother to go back to work.

[31] Father also alleges that, contrary to the trial judge’s finding, Mother does work, and that her income was wrongly not used in the calculation of the support owing. There is no evidence of this in the record and we give no weight to this allegation.

[32] As noted above, we consider the trial judge’s reasons to be clear, sound, based solidly on the evidence, and consistent with the Divorce Act. Such findings attract a high degree of appellate deference. Father has not persuaded us that the trial judge made any errors of law or palpable and overriding errors of fact.

[33] The appeal is dismissed, with costs payable by Father to Mother which we fix in the amount of $7,500, all-inclusive.

“P. Lauwers J.A.”
“I.V.B. Nordheimer J.A.”
“D.A. Wilson J.A.”

[1] This court continues the order below under s. 70 of the Children’s Law Reform Act, RSO 1990, c C.12, which requires the use of initials.