Court File and Parties

Ontario Court of Justice

Date: 2015-08-21

Court File No.: Brampton 239/14

Between:

Saman Nasim Applicant

— And —

Aqib Rahman Respondent

Before: Justice K. L. Hawke

Heard on: February 6, 2015

Reasons for Judgment released on: August 21, 2015

Counsel:

• Ms. Jennifer Gold, counsel for the applicant
• Mr. Aqib Rahman, on his own behalf

HAWKE J.:

MOTION TO CHANGE

[1] The Respondent is the biological father of the child Raheem Saman-Nasim, born September 14, 2005. The Applicant is the child's mother. The Respondent brought a Motion to Change the Final Order of Justice Nevins dated June 27, 2006.

[2] Justice Nevins' order is as follows:

1. The Applicant, Saman Nasim shall have final custody of the child, Rahmeen Saman-Nasim, born September 14, 2005;

2. The Respondent, Agib Rahman, shall have no access to the child, Rahmeen Saman-Nasim, born September 14, 2005;

3. The Respondent, Agib Rahman is restrained from molesting, annoying or harassing the Applicant, Saman Nasim. The Respondent, Agib Rahman, shall not communicate with the Applicant, Saman Nasim directly or indirectly through legal counsel. The Respondent, Ragib Ahman shall not come within 500 metres of the Applicant, Saman Nasim, her place of residence, employment, school, daycare provider, or any place where he may reasonably expect her to be.

4. The police are directed to enforce this order if requested by the Applicant, Saman Nasim.

[3] There is no information to suggest that there is any other court order, such as a support order, with respect to this child.

[4] The Respondent seeks to change paragraph 2 of the above order to allow for access with the Respondent and his family.

PROCEDURAL HISTORY

[5] The initial steps of the litigation involved the Respondent needing to get an order for substituted service. Thereafter, the Applicant did not respond and the Respondent attempted to use a 14B motion to get an order on an uncontested trial. This was denied by Justice Clark on September 16, 2014.

[6] The parties appeared before Justice Clark on a case conference date of October 14, 2014. The relevant part of Justice Clark's order reads as follows:

The Court makes the following temporary order:

1. The applicant mother Saman Nasim, shall serve and file a Response to the motion to change on or before December 8, 2014.

2. The respondent father, Aqib Rahman, shall enroll in and participate in a parenting program forthwith and shall provide proof of same on the return date, December 15, 2014.

[7] The next case conference was in front of me. By then the Applicant had counsel and had met her filing requirements. It was agreed that the Motion to Change would be heard based on any Affidavit in the file and supplemental Affidavits filed. Deadlines for filing were set.

[8] Submissions were made on February 6, 2015.

POSITION OF THE PARTIES

[9] The Respondent sought access in a general way in his Motion to Change. He did not set out any specifics or plan. He did however in his S. 35.1 Affidavit suggest a plan of weekend visits and weekdays for evening outings and family gatherings.

[10] The Applicant took the position that:

1. The Respondent has not demonstrated a material change in circumstances. His request for access is motivated by revenge against the Applicant. Prior to making this Motion to Change, the Respondent harassed the Applicant to reconcile with him, he was charged by the police due to his conduct and then immediately brought this Motion to Change.

2. It is not in the child's best interests to have access to the Respondent.

3. The Respondent has a lengthy criminal record and a history of severe abuse towards the Applicant. He is motivated by anger and seeks to use the child as a means of further harassing the Applicant. He will only speak negatively about the Applicant to the child.

4. The Respondent is not committed to being a good parent to the child. He will use the child as he sees fit.

5. The Respondent does not have a genuine desire to be a meaningful part of the child's life.

EVIDENCE

Applicant's Evidence

[11] Although the Respondent is the moving party the Applicant's material is more chronological and much of the Respondent's evidence is in reply to the Applicant so I will review the Applicant's material first.

[12] The Applicant states that she started living with the Respondent on November 2, 2004 and they separated on May 28, 2005. The child was subsequently born on September 14, 2005.

[13] The Applicant states that she was subjected to violence and threats of death during the time the parties were together. She says she managed to escape to her family with the assistance of a superintendent. She alleges that the Respondent's family had at least some awareness of the situation and did nothing. She indicates that after getting away the Respondent followed her and assaulted her and her father.

[14] The Applicant asserts that the Respondent has a lengthy criminal record. She attached a copy of a probation order dated May 4, 2006. She indicates that this was for convictions after a trial involving her. The probation shows he received a jail sentence of six months and he also received a probation order for three years. The convictions listed on the probation order are: Assault x2; Threaten Bodily Harm; Threaten Death; Criminal Harassment x2; Break and Enter commit Assault; Assault with a Weapon; Fail to Comply Recognizance x2; Weapons Dangerous; and Assault. Two of the terms on the Probation Order were:

(o) NOT TO ASSOCIATE, CONTACT or hold any communication directly or indirectly with Saman Nasim or any member of her family

(p) NOT TO ATTEND within 500 m of any place Saman Nasim or any member of her family lives, works, or happens to be as known to you.

[15] On June 27, 2006, one and half months later, the Applicant got Justice Nevin's order outlined above.

[16] The Applicant indicates that these court orders allowed her to establish a stable and loving home for her son. They live with the Applicant's parents and two sisters. She describes the child's life as stable with a loving and nurturing family where he is happy, well-adjusted and where he has positive male role models.

[17] The Applicant states that after years of no contact the Respondent started texting and emailing in 2012. She did agree to meet with him to see if anything had changed. Doing this led to problems. The Respondent was stalking her and the more she tried to ignore him the more he persisted in doing things like texting 100 times a day. Examples of these communications were submitted as Exhibits.

[18] The Applicant indicates that when she informed the Respondent of there being no possibility of reconciling that he started to insist that he should have a place in his son's life.

[19] All of this came to a head when the Respondent, as he had done previously, went to the Applicant's workplace on February 20, 2014 where he harassed her about reconciling and spoke to other employees about their relationship. The Applicant left the store and went to the police.

[20] The Respondent had this Motion to Change issued the next day, February 21, 2014.

[21] From the Applicant's materials it is not clear when the Respondent was charged for his actions of February 20, 2014 but it is clear from a copy of his bail attached as an Exhibit that he entered a Recognizance of Bail for this on March 10, 2014. The Applicant's materials do not speak to what happened with these charges.

[22] The Applicant states that within the child's lifetime the child only came close to having contact with the Respondent on one occasion when there was a chance encounter in 2012 at Playdium. The child did not know that he had briefly been in contact with his father.

[23] Going forward the Applicant is fearful of the Respondent's temperament. This causes her concern for both herself and the child. She is concerned that the child is not mature enough to understand what is going on if placed in the center of this conflict. She is also not supportive of contact with the Respondent's family given that they stood by and did nothing years ago.

[24] The Applicant has also filed Affidavit evidence from her sister, Marryam Nasim (Vol 1 Tab 13). She met the Respondent in 2012 and she has seen him a number of times since, usually in public places. She alleges that the Respondent has shown up at her work and has been threatening. He would leave when she threatened to call the authorities. She describes him as obsessing over the Applicant and not raising any concern about the son. He also sent threatening texts, and he showed up at their home where the family would lie, saying that the Applicant was not there. When she told the Respondent to move on with his life the Respondent would become angry. The texts included the following messages sent on February 21, 2015 at 10:48 p.m.:

"watch I will ruin your family and saman's life.. hahaha you guys should have just accepted me.. but now go through this ahhahaa..watch." He later texted "tell your sister that I gave her an option but now watch how I take raheem away…I will make sure Raheem will hate you guys when I win."

[25] The Applicant has also filed an Affidavit of Amandeep Singh aka Sammy Singh. He is engaged to Marryam Nasim and he use to work with the Applicant. He indicates the Respondent was in the store on February 14, 2014. When he was told a lie, that the Applicant was not there, he became angry but eventually left. Then he started calling the store 20-30 times a day and he made threats to Mr. Singh. He recalls one such statement as being "I will come to the store and beat you up if you don't give Saman the Phone","I will kick your ass, who the fuck you think you are…watch I will kick your ass around the country".

[26] Mr. Singh also describes the events of February 20, 2014. The Respondent became angry when told that the Applicant was not in the store. He told Mr. Singh "I will smack you in the face". Mr. Singh witnessed the Applicant speaking to the Respondent inside the store for about 5 minutes and then from a distance outside the store for 5 minutes. The Applicant came back in and left with the boss. The Respondent returned to the store and talked to Mr. Singh for about 45 minutes but Mr. Singh denies saying the words suggested by the Respondent in his materials. As far as content by the Respondent is concerned, throughout Mr. Singh asserts that it was all about reconciling with the Applicant and the only mention of the son was to threaten the Applicant. He states that the Respondent stated words to the effect of "if she doesn't comply with what I want, I could take Raheem from her and she will regret it."

Respondent's Evidence

[27] The Respondent in his sworn Change Information form, dated February 21, 2014 states that that he has no access and he has no choice but to go through the court. The only stated reason for wanting access is for him and his family to be there for his son to help him develop and educate him.

[28] The Respondent asserts in his Form 35.1 Affidavit, dated February 21, 2014 that he went to jail for ten months because of the charges involving the Applicant. He states:

Yes I Aqib Rahman raised my hand and slapped Saman Nasim on the face which led to her calling the police with her family saying I attacked her entire family (sisters + parents). And I was found guilty because they all testified as witnesses. I am not the stupid person I was when I was 18.

[29] In his December 29, 2014 Affidavit the Respondent says the following about his trial in 2006.

About ten years ago when things got sour with this whole situation It was my fault I raised my hand on Saman Nasim and I admitted it in court but Saman Nasim with her family fabricated a lot of lies and I got convicted of them all. Regardless it started off with me being wrong and although prior to me raising my hand on her father threatened to murder my entire family and said he would cut my niece's head off.

[30] The Respondent asserts, in his January 30, 2015 Affidavit, that with his trial 10 years ago that the judge found guilt on both sides and as part of that found him guilty. He had intended to appeal but in the end did not.

[31] Also in the January 30, 2015 Affidavit he then goes on to admit that he did 10 years ago "raise my hand" on the Applicant on a few occasions, and that he, understands the psychological emotional effects of such a situation, is ashamed and he is impacted by having lost the two people most important to him, the Applicant and his son.

[32] He then outlines a childhood of abuse at the hands of his mother. He suggests the loss of the Applicant and his son was a wake up call. He suggests he has been a speaker at a women's organization talking about being a victim who went on to victimize. He states "Considering all that has transpired I would like for Saman Nasim to recognize that what I have caused her and that I understand her hate."

[33] The Respondent provides evidence about what he has been doing with his life generally in the last couple of years. This is set out extensively in his Affidavit of December 29, 2014 (Vol. 1 Tab 12). He purports, in addition to doing sheet metal work without qualifications, to work at events where he is a speaker and he connects people and information. One example of his explanation about his work is:

This event space is all about Interaction by creating Leaders out of everyone that contribute together towards growth and sustainability, it takes the focus of emotional distractions that most people are trapped in and propels them to become more aware and focus on the commonality which is never ending growth using logic, creativity and reason. I have only summarized this to Her Honor as an Idea and to sum it up even further I am basically creating the new Economic structure through interaction of commonality and this will also involve the Supreme Courts in the coming future.

[34] In this Affidavit he also admits that he did not take the parenting course ordered by the Court. He says he did not know that it was mandatory and then he goes on to say:

I did try to take courses but the commitment of having to attend once a week for 6 weeks 2 hours at a time and not being given the certificate if I miss a date was not able to fit into my random schedule, so I do apologize and also would Like to add I will be creating my own parenting classes for the public in Our Event Space I mentioned above . (emphasis added)

[35] Also in the same Affidavit the Respondent gives a long and involved scenario suggesting that he resumed contact with the Applicant when the Applicant's sister reached out to him, that he and the Applicant were working toward getting married as per the Applicant's request, that he saw his son on a number of occasions at Playdium, McDonald's and the Applicant's house. He outlines a complication being that the Applicant told him that his son does not know that the Applicant is his mother. He asserts, here and his next Affidavit, that his son is being raised in a situation where his maternal grandfather and grandmother are seen as his parents and his mother, the Applicant, is one of his three sisters. He describes the break down in the relationship with the Applicant being because he did not want to get married in front of his son, with his son not knowing who his parents were. Then he also describes a protracted period of trying to get back together. In that context he says "As for the messages & emails she has submitted in some of them are in fact from me& the others are fabricated including the aggressive ones so that I might look like I am insane in-front of the Courts."

[36] In his December 29th Affidavit the Respondent describes going to the Applicant's workplace on February 20, 2015 and after he got her attention they went outside to speak. He wanted to talk about his son and said he did not want to go to court. The Applicant did not want to talk, told him he had other options and went back into the store (i.e. her workplace). He followed her back asking for a picture of their son. She refused and got her boss and left with him. He did not know she went to the police. He returned to the store and spoke to Sammy Singh for about 45 minutes about the problem of wanting to see his son. The next day he prepared his court documents. On March 25, 2015 the police contacted him about turning himself in.

[37] In his Affidavit of January 30, 2015 the Respondent states that the Applicant has alleged that he has been harassing and stalking her. By deduction I think he is referring to the time period of 16 months leading up to February 20, 2014 because he asks rhetorically "why is there a 16 month gap before the cops were called on me and I was falsely arrested." He also notes "None of her statement has anything to do with my Son…" Although he suggests he was falsely arrested he does not address the allegations set out by the Applicant in her Affidavit for this time period.

[38] In the January 30th Affidavit the Respondent states that the Applicant states that she never had a relationship with him. He says her own statements, about the fact that it did not work out and she thought he had changed, contradict this.

[39] The Respondent also states that the Applicant states that "I am mental" and that he is not a responsible person. He asserts that he is responsible and has followed all court orders for ten years including his house arrest on the February 2014 charges. He asserts that these charges were withdrawn for a peace bond and that given the history this showed the Court's respect for him. He does not disclose the terms of the peace bond. He also questions why the Applicant would agree to a peace bond and questions how any of her statements really have anything to do with "my Son's best interests".

[40] The Respondent denies knowing of the restraining order in Justice Nevins' order because he was in jail and his lawyer was ill. He accuses the Applicant of knowingly associating with him for 16 months without bringing this to his attention. He asserted lack of knowledge of the court order in his December 29th, 2014 Affidavit too but he contradicts himself by saying that he wanted to bring a motion to change in 2009 and 2010.

[41] In the January 30th Affidavit the Respondent asserts that the texts submitted by the Applicant are not his but most of the emails are from him. He submits the content of the emails show him as apologetic, remorseful and having an interest in his son.

[42] He asserts that his son is being raised in a situation where his maternal grandfather and grandmother are seen as his parents and his Mother, the Applicant, is one of his three sisters. He asserts that the child should not be living this lie.

[43] He claims to know the child and he claims that the Applicant is motived by a religious problem. What follows is quoted from page 10 of the Respondent's January 30th Affidavit at Vol 1 Tab 17 about these two topics.

… I fail to see how I could be of any harm to him when my interaction with him was nothing but similar in high excited energy. Me and Raheem Nasim have a lot in common, he likes all the things I like and as a big kid me and him can have gotten along very well, he was starting to look up to me and excited every-time he seen me until Saman Nasim completely shut off my interaction with him. It is almost as if we both got teased to meet each other and then separated and obviously there is nothing Moral about this situation. Even in Raheem Nasim's case ultimately of-course it is my fault but that does not mean that it cannot be turned around he was like I stated before many years ahead of him and before he finds the truth at at an older age it would be Ideal for him to benefit from the interests from all his family. Saman Nasim due to a religious point is scared to openly move on in her life due to the fact of the religious implications since it would mean she has a child without Marriage which according to Islam makes my Son unholy and we are all going to hell for our Sin. Saman Nasim and her Family are in fear of telling the truth for feeling disgraced amongst their family members.

[44] He asserts that his son has a moral right to know who his father is, and to be with the Respondent and his family.

CREDIBILITY FINDINGS

[45] I have many concerns about the credibility and the reliability of the Respondent's evidence. The following are examples in no particular order.

[46] The Respondent's version of things, in some cases, builds over time and by doing so he, in effect, contradicts himself. In the initial sworn documents of February 21, 2014 he states he has no access and gives no hint of contact, a relationship or any personal knowledge about the child. Then in his December 29, 2014 Affidavit he outlines frequent contact with the child for a period of time even suggesting that this included being at the Applicant's home. In the January 30, 2015 Affidavit he takes it further suggesting that he and his son are similar etc. I do not accept that the Respondent had any access with his son other than the one accidental contact described by the Applicant.

[47] The Respondent chooses not to respond to some evidence. His reply Affidavit of January 30th, 2015 focuses exclusively on the Applicant, save and except for raising allegations about his mother's treatment of him. He does not reply in any way to the evidence of the Applicant's sister about allegations of attending her work, sending her texts, etc. Likewise, he does not respond to Mr. Singh's evidence which among other things included alleged threats against Mr. Singh and the Applicant including saying "If she doesn't comply with what I want, I could take Raheem from her and she will regret it".

[48] He cannot keep his story straight about the details about the circumstances surrounding his criminal court case in 2006 – see paragraphs 28-31 above. Each explanation is, in and of itself, troublesome, especially the one alleging threats by the grandfather and further, the explanations do not match up. None of his explanations come anywhere close to explaining the large number of convictions and the significant jail and probation sentence. It appears that 9 years later he is still rationalizing his actions and deflecting blame.

[49] The Respondent's explanations of his current work do not make sense. It sounds like complete fantasy. He may in fact have managed to get himself on stage, I do not know, but given the evidence one would have to conclude even that would be playing out a fantasy. He took this fantasy to the next level by suggesting that under the same program he could design a parenting program.

[50] The Respondent's December 29th, 2014 Affidavit when taken as a whole does not have an air of reality and this in turn reflects on all of its parts.

[51] The Respondent is cagey about the authorship of the texts and emails. His denials are inconsistent and unclear. At one stage he wants to acknowledge credit for the good ones and not the bad ones. Throughout, his various denials are not specific.

[52] In his January 30th, 2015 Affidavit he overstates and slightly distorts the Applicant's evidence in order to attack her credibility and then in this final affidavit he for the first time suggests that the Applicant's behaviour is attributable to being a response to a religious problem. (See para 43 above)

[53] He alleges that he did not know about the 2006 family court order although he contradicts himself on this at one point. He does not explain how he knew that he did not have access, but he did not know about the restraining order. Given how the evidence presents itself there is no easy way to test his assertion. One can say that the Respondent could have tried to find out. He was aware of the case and he had counsel. He, on his own evidence was capable, in a single day, February 21, 2015, of going to 47 Sheppard and getting a copy of the order from a reasonably old file and of then coming to Brampton where he got all the right forms assembled, filled out, sworn and filed. So, he was not incapable of finding the 2006 order and in my view he was at least wilfully blind about Justice Nevins' order.

[54] On the other hand, I found the evidence of the Applicant, her sister and Mr. Singh to be credible. I was mindful of their various relationships when I assessed their evidence. Each of their Affidavits was internally consistent, was consistent with each other on the points of overlap and generally accorded with common sense. On the historical aspect the Applicant's evidence made sense when compared to the court orders, unlike the Respondent's evidence in this regard. There were a few points that one might wonder about, on their face, but these points were admitted by the Respondent. One might wonder, for example, about the Respondent's activities on February 20th, including coming back to the store and talking to Mr. Singh for 45 minutes, but all of this, save and except for a dispute about some of the words spoken, is confirmed by the Respondent in his evidence. In summary, I found the evidence of the Applicant, Marryam Nasim and Amandeep Singh to be credible and reliable.

THE LAW

[55] Motions to change are governed by s. 29 of the Children's Law Reform Act (CLRA) which provides as follows:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstance that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[56] The onus is on the moving party to prove that a material change in circumstance that affects or is likely to affect the best interest of the child has occurred. Establishing that a material change has occurred is a threshold issue.

[57] When this material change in circumstances is established then the court is required to make a decision that is in the best interest of the child. That test and the factors to be considered are set out in Section 24(1) & (2) of the CLRA.

ANALYSIS

[58] The threshold question is "Has the Respondent shown a material change in circumstances that affects or is likely to affect the best interest of the child?"

[59] I conclude that he has not met this threshold for the following reasons:

1. My findings above result in a finding that, save and except for one accidental meeting in public, the Respondent has never had access to the child. Also, he did not express interest in access during the first nine years of the child's life.

2. I accept that the evidence and submissions of the Applicant that the Respondent's true interest is her and a relationship with her and not the child. He had, and has returned to wanting to have, a controlling relationship with the Applicant. The control has been through physical and emotional abuse. The fact that it has not been physical in the last few years changes nothing. His behaviour has been incredibly intimidating and embarrassing. He is even prepared to act this way in public. Threatening to wrap access to the child up in this, in one way or another, is just another manifestation of this threatening and controlling behaviour.

3. The Applicant submits that the Respondent's sole interest in raising access is to seek revenge upon her. I agree that it is revenge and/or perceived leverage in his attempt to control the Applicant after months of harassing her, including at her place of work, have been unsuccessful. The texts sent to the Applicant's sister on the date of commencing this litigation illustrate revenge (see paragraph 24 above).

4. I do not accept as genuine the Respondent's suggested altruistic motives of keeping the child from living a lie and his son's moral right to know who his father is. Also, these issues do not represent a material change.

5. The Respondent has done nothing to show a change in what he is prepared to do in order to illustrate some genuine interest in the child. He did not take the parenting course ordered by Justice Clark. He has not turned his mind to any realistic steps he could take that would contribute to the best interests of the child. To the extent that he has suggested anything, the suggestions are bizarre – designing his own parenting course and contact with his family, which if his mother is still alive, includes someone he has made terrible allegations about.

6. I agree with the Applicant. There is no evidence of genuine desire to be a meaningful part of the child's life. If this existed, it would not on its own satisfy the threshold test but the test cannot be met when this is absent.

7. Consistent with the Respondent's lack of interest in the child I note that there has not been one hint of financially supporting the child in the past or in the future.

[60] These reasons for saying the threshold test has not been met may seem brief but that is the nature of illustrating a negative. This is a disingenuous claim and the Respondent has not met the threshold test in S. 29 of the CLRA.

[61] In the circumstances it is not necessary to review s. 24 (1) and (2) of the CLRA.

[62] The Motion to Change is dismissed.

[63] It is apparent that there are typographical errors involving names in the body of Justice Nevins' order. For enforcement purposes this is rectified in the order below.

[64] The Applicant has claimed costs. Cost submissions will be accepted in writing according to the Order below.

FINAL ORDER

1. This Motion to Change, brought by the Respondent is dismissed.

2. The Order of Justice Nevins, dated June 27, 2006 remains unchanged, save and except that the same terms are re-ordered with the names spelled correctly. The terms are:

   1. The Applicant, Saman Nassim shall have final custody of the child, Raheem Saman-Nasim, born September 14, 2005;

   2. The Respondent, Aqib Rahman, shall have no access to the child, Raheem Saman-Nasim, born September 14, 2005;

   3. The Respondent, Aqib Rahman is restrained from molesting, annoying or harassing the Applicant, Saman Nasim. The Respondent, Aqib Rahman, shall not communicate with the Applicant, Saman Nasim directly or indirectly through legal counsel. The Respondent, Aqib Rahman shall not come within 500 metres of the Applicant, Saman Nasim, her place of residence, employment, school, daycare provider, or any place where he may reasonably expect her to be.

   4. The police are directed to enforce this order if requested by the Applicant, Saman Nasim.

3. The parties are to serve and file written submissions on the issue of costs. The deadlines for serving and filing are:

   (i) Applicant by September 23, 2015

   (ii) Respondent by October 7, 2015

   (iii) Any reply by Applicant by October 16, 2015

4. The Applicant shall take steps to have this order issued. The Respondent's approval as to form and content is not required.

Released: August 21, 2015

Signed: Justice K. L. Hawke

Note: In July 2016 it came to my attention that the above Reasons for Judgment, as released, contained spelling errors and contractions. These errors have been rectified effective July 29, 2016.

Signed: Justice K. L. Hawke