Court File and Parties
Ontario Court of Justice
Date: June 14, 2016
Court File No.: Brampton 60/12
Between:
Tauseef Mohammad Applicant
— And —
Uzma Mahmood Respondent
Before: Justice A.W.J. Sullivan
Decision in Motion to Change Commenced by the Applicant
Heard on: March 10, 2016
Released on: June 14, 2016
Counsel:
- Ms. Jennifer Park for the Applicant
- Ms. Rita V. Gonsalves for the Respondent
Decision
SULLIVAN J.:
[1] This is the decision in the motion to change commenced by the applicant Tauseef Mohammad. This motion is to change the final order of Justice M. Pawagi, dated June 11, 2012.
[2] The applicant father is seeking a change from joint custody to sole custody. He is also requesting child support which was not requested in the June 2012 order, as well as a new regime of access between the respondent mother and the two children as Mr. Mohammad has relocated to Saskatchewan. Initially the father's request to move to Saskatchewan was opposed by the respondent mother, Uzma Mahmood, who resides in Mississauga, Ontario. This is no longer an issue.
[3] The two children of this motion are Wali, born April 21, 2002 and Shabih, born October 10, 2003.
[4] The three issues that the court has been asked to resolve between the parties are:
- whether the joint custody order should remain in place;
- to impute income to Ms. Mahmood in order to calculate monthly child support; and
- establish a new schedule of access between the children and their mother here in Ontario, as well apportion the cost of the airfare.
[5] In December 2014, Justice J. Bovard of this jurisdiction granted Mr. Mohammad a temporary order permitting that he move with the children to Saskatchewan. In November 2014, the father obtained employment in Saskatchewan. The children have been with the father in Saskatchewan since December 2014. The children have visited with their mother in Ontario in the summer and March break 2015 and over part of the winter break 2015/16.
[6] Ms. Mahmood, in her responding pleadings, indicates that the applicant father has not shown a material change in circumstances that would support his request to change the joint custody order that was made on consent between the parties in June 2012. She initially objected to the move to Saskatchewan, but has subsequently conceded this point, indicating that she does not wish to disturb the children. This of course is a very reasonable and child-focused decision. As she puts it:
"I do not want to subject Wali and Shabih to greater uncertainty, trauma and confusion by uprooting them again from Saskatchewan and bringing them back to Ontario, as it as I believe that at this stage it would not be in their best interest."
[7] Ms. Mahmood is principally concerned with maintaining the joint custody order, as she believes that if Mr. Mohammad obtains sole custody, this would pave the way for his controlling the children in such a way that would deny her meaningful contact with them. As for the request that she pay child support, she says she has little income as she recently underwent a hysterectomy and is recovering and that over the past few years she has been caring for her ailing father and her income has been below $10,000.00 for the past three years.
[8] In Mr. Mohammad's affidavit of November 18, 2015, he indicates that since 2010 he has been the primary caregiver of the children, looking after all of their emotional and daily needs and financially supporting them on his own. The respondent mother, he argues, rarely, if ever, spent time or resources with the children, indicating she could not care for them because of her own health problems and the need for her to care for her father.
[9] In her pleadings, Ms. Mahmood takes issue with this and indicates that her relationship with the children has been a very positive one and that she would spend time with the children, doing activities in the community and spending time with her extended family. She outlines in her affidavit that her brother and the children's grandfather reside very close to her home as does the applicant's brother and parents. She underlines the fact that the children are close with all of these family members and that she has always attempted to nurture a relationship with these individuals for the best interest of the children.
Legal Test
[10] This case initially raises the issue of whether this court has jurisdiction over this family, given the fact that the father and children currently reside in Saskatchewan. This court must first determine whether it has jurisdiction at this stage. This matter was commenced by the applicant father who now resides with the children outside of Ontario. The applicant attorns to this jurisdiction and until December 2015 had a real and substantial connection to this jurisdiction. Neither party is arguing the doctrine of Forum non conveniens, which essentially is that there may be more than one forum over an issue in this case and it may be more appropriate for jurisdiction to be exercised by the other forum on a balance of convenience and fairness to the parties. Based on the facts, I accept that this jurisdiction is the proper one to decide on this matter at this time.
Material Change in Circumstance
[11] The next issue to be addressed is whether either party has demonstrated a material change in circumstances, thus triggering the court's jurisdiction to vary the initial order. To amount to a "material change", the change must be one that if known at the time, would have resulted in different terms. The corollary to this is that, if the matter that is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for a variation: See Willick v. Willick, [1994] 3 S.C.R. 670, at page 688 [S.C.R.]. Furthermore, the change must be "substantial, unforeseen and of a continuing nature": See Carter v. Carter, and adopted in Tyler v. Tyler.
[12] The leading direction to this court in changing settled custody orders and whether there is a material change in circumstances is the case of Gordon v Goertz (1996), 2 S.C.R. 27. This case provides this court with the following guidance:
The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case and substitute its decision for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.
What suffices to establish a material change in the circumstances of the child? "… what the court is seeking to isolate are the factors which were not likely to occur at the time the proceedings took place." J. G. McLeod, Child Custody Law and Practice (1992), at P. 11 – 5.
It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) 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; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[13] Once the threshold material change in circumstances is satisfied, this court must consider the matter afresh without defaulting to the existing arrangement. In other words, it is an error for this court in a variation application simply to defer to the views of the judge who made the earlier order. The judge in a variation application must consider the matter anew, in the circumstances that presently exists.
Sole Custody versus Joint Custody
[14] In considering the totality of the evidence and the above-mentioned law I find that there has been a material change in circumstance that touches the welfare of the children and the ability of the parents to meet their children's needs.
[15] The obvious change in circumstance is the fact that their father has found new employment in Saskatchewan and has moved with the children to Saskatchewan with the blessing of this court.
[16] Such a move of course requires the children to leave behind their former home, neighbourhood, friends, school, community activates, as well as their mother and relatives. The parents provided little evidence in their pleadings about their children in this matter.
[17] Mr. Mohammad, the father, indicates that even before the previous order of Justice Pawagi of June 2012, he was the principal caregiver of the children. In paragraphs 4 through 7 of the father's affidavit, tab 10 vol. 5, he outlines his version of events prior to the 2012 order and states that he regrets entering into the consent agreement.
[18] Mr. Mohammad states that he regrets entering into the consent as "… he really trusted…" Ms. Mahmood. He trusted she would be with the children weekly and on holidays, be involved with their education and activities, and disclose income when she was working as she was not in 2012.
[19] This court cannot consider information that was before or predated Justice Pawagi's order as this is res judicata. Justice O'Connell, in Nejatie v. Signore, 2014 ONCJ 653 indicates the following:
It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support.
See Bemrose v. Fetter, 2007 ONCA 637. Although the court always has discretion with respect to the determined on it merits.
[20] It appears that the main complaint of Mr. Mohammad might have existed prior to the 2012 order in that the respondent mother was not spending the schedule time with the children according to the father. This is contested by Ms. Mahmood.
[21] I also find a material change to be, in addition to the father's new job requiring him to move across Canada, the fact that the mother's health has deteriorated since the date of the last order. Her health problems have affected her current mobility and ability. She was also caring for her ailing father up until recently but according to her evidence is no longer able to do this. She was engaging in some employment and has had to pull back from this according to her information. Her health around the time of this motion to change has not been that good. This is a material change that was not foreseen at the date of Justice Pawagi's order.
[22] The fact that Ms. Mahmood would be caring more for her ailing father was however, probably foreseeable at the time of the 2012 order, and is not something that is a material change in my decision at this time.
[23] Considering the above evidence, I do find a material change has taken place; the question at this point is whether this should affect the current order in regards to the joint custody regime that is in place between the parties. The 2012 order contemplates the applicant father having the primary residence of the children. This has not changed. On a daily basis I would imagine he has been making decisions regarding the issues that affected children's lives such as medical appointments as required, daily plans, school activities and assisting in their education.
[24] The fact that the mother might not have been exercising access as set out in the agreement is something different than joint custody. The father does complain in this affidavit that he has attempted in the past to reach out to the mother who has not, as he claims, been open to communicating with him. The mother argues in her affidavit that this has not been the case and that indeed she has had a close relationship with the children.
[25] The mother, I find, is the only parent in this motion to change that has provided to the court some evidence that is focused on her understanding and sensitivity towards the children. She is the one who has indicated that she has attempted to keep up a nurturing and good relationship with the father's side of the family; specifically, his siblings and the paternal grandparents who live close to where she lives. I find this to be an important factor in this matter despite the fact that there has been a material change.
[26] Despite the material change, I believe that the joint custody order still remains in the best interest of the children and should remain in place despite the fact that they live in different provinces. I accept the fact that joint custody can work, even though the parties might not live in the same jurisdiction and are thousands of kilometers apart. They can communicate by telephone or electronic means. Indeed, it is the norm that teachers speak with parents on a daily basis through email, text messages and over the telephone as parents do with their children who might actually reside in the same home from one room to the next. Doctors' offices arrange appointments via their web sites. The point is that if parents wish to, and has the willingness to communicate for the sake and welfare of their children, distance is not an obstacle.
[27] I am concerned about how Mr. Mohammad has been willing to involve the children in this litigation; specifically, letters that were attached as part of Exhibit "B" to his affidavit in this matter. I am not certain how these came to be. It might be that the children had wished their voice to be heard in this matter; however, this might have been achieved in another manner. Attaching their letters to his affidavit raises doubts about what judgment he has. I accept the fact that he has played a principal role in the children's lives and will continue to do so. I find, however, that joint custody should be in place in order for both parents to discuss the welfare of their children when it comes to big decisions. The day-to-day decisions regarding the children will remain with the father as it has since 2012.
[28] I do not accept the fact that joint custody should remain in place simply to assure the mother's access with the children continue. I do not accept Ms. Mahmood's argument that the father will deny her time with the children if he was to have sole custody. This is not why this court has decided that the joint custody regime should remain in place. The joint custody regime should remain in place because I believe both the applicant and the respondent have something to offer the children together and both balance each other's parenting philosophy and style to the extent that I can gather from the affidavit evidence that was before the court.
[29] Therefore, the order of joint custody will remain in place and I will later in this decision outline the access time that the children will be with their mother in Ontario, and as well, a cost-sharing for the transportation of the children to and from Saskatchewan.
Imputing Income to Ms. Mahmood for Child Support
[30] Mr. Mohammad argues that Ms. Mahmood should be paying child support. He argues that the financial disclosure provided, as outlined below, does not support her argument that she makes less than $1,000.00 per month. I accept his analysis and I find that the respondent should pay child support on a go forward basis. I accept the fact that currently her health is an obstacle to her employment but that it is not a full-time obstacle. She has filed her financial statement as well as her affidavit in this motion. There is no evidence that Ms. Mahmood is receiving welfare or that she is receiving a long-term disability pension, ODSP or that she intends to apply for ODSP.
[31] Mr. Mohammad indicates that Ms. Mahmood's income cannot be as she claims which is less than $1,000.00 per month, as her financial statement clearly shows that she has expenses that are in the vicinity of $3,299.00 per month.
[32] Mr. Mohammad argues in paragraphs 49 and 50 of his affidavit that if one reviews Ms. Mahmood's Equifax credit report, attached as Exhibit C to his affidavit this is evidence that the respondent mother's monthly payments towards credit cards and other monthly expenses far exceeds her $1,000.00 income as she claims.
[33] It was also underlined that Ms. Mahmood had a business plan that appears to be put in place in order for her to work as a mortgage broker and that she has an internet presence that she has promoted in this regard, and as well Ms. Mahmood had worked for a homeopathy clinic.
[34] Ms. Mahmood argues that her adult son, Safir Ahmed, is making payments regarding a loan that she has shown on her financial statement. She argues in paragraph 80 of her affidavit that somehow there is "pooled finance" with family that explains some of the payments and costs that she has on her financial statement, however there is no proof that her son is making the payments other than the declaration by him in his affidavit tab 5, Vol 5 of the Continuing Record, provided as part of Ms. Mahmood's pleadings. There is no signed agreement between them both regarding responsibility for this loan.
[35] As I noted above, although I agree that Ms. Mahmood's health is currently poor, it's not a situation that will be indefinite. The information that she provided from her doctor, Exhibit A to her affidavit, does show that there were medical difficulties last year in 2015, but no evidence was led that this is an indefinite situation. Additionally, Ms. Mahmood states in paragraph 96 of her affidavit that she is no longer caring for her ailing father and therefore this is no longer an obligation or an obstacle to her future employment.
[36] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli.
[37] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322. However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[38] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano.
[39] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable:
a) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.
b) Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.
[40] The Court in Drygala v. Pauli, supra, asked the question: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[41] Based on this court's assessment of the above noted evidence, I find that Ms. Mahmood should pay child support and has the ability to earn annual income to at least meet her declared expenses of $3,299.00 per month and I impute to her the annual income of $38,748.00, that would make her obligation of monthly child support payments to Mr. Mohammad for the two children to be $467.00 on the first of each month commencing June 1st, 2016. This is based on the fact that although Ms. Mahmood has had medical difficulties over the past year, the evidence presented is that this is not an indefinite situation. She is educated and has worked in the recent past. The court recognizes that Mr. Mohammad was seeking that this support be retroactive; however, I've considered the circumstances in which Ms. Mahmood was caring for her father as well as her recent medical illness. Starting the order June 1, 2016 is reasonable in the circumstances although this litigation began over one year ago. Starting on June 1, 2016 is a compromise in that Ms. Mahmood would have been given ample notice of this request and should have anticipated that such an order might be made, as it has.
Access and Transportation Costs
[42] In paragraph 31 of Mr. Mohammad's November 18, 2015 affidavit he indicates that the children should have liberal phone and internet/video chatting with their mother and proposes that they can spend in Ontario half of their summer vacation with Ms. Mahmood as well as their smaller school breaks. If she wishes to visit with the children in Saskatchewan this is also a possibility.
[43] The mother, in paragraph 52 of her affidavit, outlines specific conditions regarding the time that the children spend here in Ontario and/or if she travels to visit with the children in Saskatchewan. Ms. Mahmood also outlines some requests for assuring that the children's residence not be moved out of Saskatchewan or Canada. She requests liberal communication with the children by telephone, email and electronic methods such as Skype.
[44] There has been over the course of this litigation some visits between the children and their mother here in Ontario. Unfortunately there have been differences between the mother and father as to who was to pay for the children's transportation. They both were going back and forth, arguing that each one should pay one trip. For example, if the children came here for Christmas the father should pay for that and the mother pay for a trip in March or summer in its entirety. It appears that the children came here on one occasion and the parents argued over who should pay for having them returned. To avoid this, the court order will be that when the children are visiting in Ontario with their mother, as set out below, Ms. Mahmood will arrange to purchase the flight from Saskatchewan to Toronto on a fixed date to be agreed to between the applicant and the respondent, and at the end of this visit their father will have arranged for their flight back and pay for that. This will be the method in which the parties will operate unless they wish to agree to something different. The children should not be held hostage to the differences that the parties have had in arranging for transportation.
Final Order
[45] Paragraphs 4 a, b, c and d and 5 b and c of the Order of Pawagi J. dated June 11, 2012 are changed as follows:
Custody and Residence
1. Both the applicant and the respondent shall continue to have joint custody of the children, Wali Mohammad, born April 21, 2002 and Shabih Mohammad born October 10, 2003. The children's residence shall remain in Saskatchewan, Canada and the children shall not be removed from Canada without prior written consent between the applicant and the respondent.
2. If either parent plans a vacation with the children outside of Canada, the traveling parent will provide the other parent with travel consent in the usual form authorizing the child to travel as well as a detailed itinerary at least 15 days before this planned vacation. The other parent shall review and execute the consent and have it notarized. This consent is not to be unreasonably withheld.
3. The children's residence shall remain with the applicant father in Saskatchewan. If he intends to change his current address greater than 50 km he will require the prior authorized consent of the respondent mother.
Communication
4. The respondent shall have liberal communication by telephone, Skype or internet communication with the children on a weekly basis at a time agreed to on either a Saturday or Sunday considering the activities of the children.
5. Both the applicant the respondent will provide to the other any changes to their telephone numbers and/or internet connections and change of address as this might occur.
Access Schedule
6. The children, Wali and Shabih, shall have access with their mother as follows:
a) During the summer holiday months' vacation (summer school break) the children will spend half of the time with their mother. The summer school break shall be defined as from 3 days after the close of school to a week before school commences. The exact dates shall be arranged between the applicant and the respondent. If they cannot agree on the 2016 dates the children will be with their mother for the first half of this school break. The children should be at their father's residence the week, 7 days before school commence to prepare.
b) Half of the Christmas school holiday, the exact times to be determined by the applicant and respondent.
c) The school spring break will either be divided equally between the applicant and the respondent or it shall rotate annually. The rotation will begin with the children spending their 2017 March/spring break with their mother.
d) If the children are traveling back to the greater Toronto area with their father outside of the above times, the applicant shall provide notice to the respondent mother of this trip and arrange time for the children to visit with their mother.
e) If the respondent mother wishes to visit with the children in Saskatchewan, she shall give the applicant father a minimum of 7 days' notice of her intention to do so and the parties will arrange for the children to have access visits with their mother.
f) Both the applicant and the respondent shall have the right to receive information about the children's health, education and well-being directly from providers such as healthcare providers, school teachers, principals, etc. Both the applicant and the respondent may be present for all major events that occur in the children's lives such as graduations and/or award ceremonies or significant activities that the children are involved with.
g) If there is an emergency medical issue for any of the children, the parent with the child at the time shall immediately deal with attending to the child's needs and notify the other parent promptly.
Child Support
[46] Commencing June 1, 2016 the respondent mother, Uzma Mahmood, shall pay child support to the applicant father, Tauseef Mohammad, in the amount of $467.00 per month for the two children. This payment is based on an imputed income to the respondent of $38,748.00 which is in accordance with the Federal Child Support Guidelines.
[47] A Support Deduction Order will issue.
Released: June 14, 2016
Justice A.W.J. Sullivan