Court File and Parties
Court File No.: D81231/15 Date: November 18, 2016 Amended: November 28, 2016
Ontario Court of Justice
Re: Wasileh Alqudsi – Applicant And: Majdy Dahnus – Respondent
Before: Justice Roselyn Zisman
Counsel: Hugh M. Evans, for the Applicant Barry Nussbaum, for the Respondent
Heard On: October 31, November 2 and 3, 2016
Endorsement On Rule 1 Trial
1. Introduction
[1] This trial involved the parenting arrangements for the parties' two children, Sara Dahnus born June 8, 2006 ("Sara") and Waleed Dahnus born July 31, 2010 ("Waleed"), ancillary parenting orders with respect to travel and passports and child support.
[2] The Applicant ("mother") seeks sole custody of the children and primary residence with the Respondent ("father") exercising access on alternate week-ends and one week-day visits for several hours. The mother seeks child support and a sharing of any future special and extraordinary expenses.
[3] The father seeks sole custody of the children and a shared parenting arrangement. He is content with the present arrangement continuing that is, that the children spend alternate week-ends with each parent and alternate week-days. The father is content to base child support on the stated incomes of the parties and he seeks retroactive and ongoing sharing of special and extraordinary expenses.
2. Background
[4] The mother is 34 years old and the father is 45 years old.
[5] The father resided in Canada from 2001 to 2005 and became a Canadian citizen. The father returned to Jordan in 2005 as his father was ill and subsequently passed away. During this time in Jordan he met and mother and they married on January 15, 2005.
[6] They then moved to Kuwait where their children were born.
[7] They returned to Canada briefly in 2008 in order for the mother to obtain her landed immigrant status for which the father sponsored her. They then returned to Kuwait and in 2011 they moved to Saudi Arabia where the father obtained employment.
[8] In July 2013 the parties and the children returned to Canada on a permanent basis.
[9] Both parents have college degrees from their home countries; the father in accounting and the mother in biology.
[10] Upon returning to Canada, the mother attended school for 8 months and became a dental assistant and the father attended bookkeeping courses and also worked in a factory.
[11] The mother currently works part-time as a dental assistant for about 25 to 30 hours a week. Her schedule varies and is flexible so that she is able to pick up her children. In 2015, she earned $21,902.
[12] The father is currently employed as an accounting assistant and works full-time and earns $31,726.
[13] The parties separated in January 2015 but lived separate and apart in their apartment until May 2015 when the mother moved into her own residence. The parties agreed to a shared parenting plan with the children being with the father on Mondays and Wednesdays and Friday overnights until Saturday evening.
3. Court Proceedings
[14] The mother commenced this application in July 2015.
[15] At the case conference held on October 29, 2015 the case management judge noted that although there was a shared parenting arrangement there was conflict about the children's school and daycare. The father was to attend the daycare and advise the mother if he was agreeable to changing the daycare. If there was no agreement, a date was provided for a temporary motion. The endorsement states that the parties shall not speak negatively about each other near or in the presence of the children. As there was no temporary motion it appears the issue was resolved.
[16] The parties attended court again on January 7, 2016 at which time they entered into a consent order that the father pick up the children from the daycare on Mondays and Wednesdays and return them to school on Tuesdays and Thursdays; the mother pick up the children from daycare on Tuesdays and Thursdays and return them to school on Wednesdays and Fridays; and the parties alternate picking up the children from daycare or school on Fridays and returning them to school on Monday mornings.
[17] A settlement conference was held on March 18, 2016 but as the issues could not be resolved the matter was adjourned to the trial assignment court for April 5, 2016. The case was removed from the trial list as the parties were attempting to settle the case.
[18] In June 2016 the father was given leave to bring a motion to remove the children to Jordan for a vacation. Although both parties filed affidavits, the father then did not proceed with his motion.
[19] As the parties could not resolve their disputes, the matter was assigned for trial and a trial management conference was held before me on September 28th, 2016. It was agreed that the parties' evidence in chief would be by affidavit subject to brief updating evidence and subject to cross-examination. It was also agreed that the parties could rely on their prior affidavits filed in the Continuing Record. A timetable was set for the filing of any further affidavits. As both counsel had attached letters from the school and medical professionals and other documents to their respective client's affidavit, it was agreed that if either counsel objected to any of this evidence being admissible that the author of the letter or document would have to be summonsed to provide oral evidence.
[20] On the consent of the parties I have relied upon the following affidavits:
On behalf of the mother:
- (i) The mother's affidavits sworn July 6 and October 21, 2016 with all exhibits;
- (ii) Affidavit of Hazar Al-Tariff sworn October 6, 2016;
- (iii) Affidavit of Bayan Sarrasra sworn October 1, 2016;
- (iv) Financial statements sworn July 3, 2015 and October 31, 2016;
On behalf of the father:
- (i) The father's affidavits sworn June 20, October 14 and October 24, 2016 with all exhibits;
- (ii) Affidavit of Barbara White[1] sworn October 11, 2016;
- (iii) Financial statements of the father sworn August 15, 2015 and October 14, 2016.
[21] Further documents were admitted during the trial on consent of counsel. Both parties testified and were subject to cross-examination. On behalf of the mother, Ms Al-Tariff and Ms Sarrasra testified as well as Clara Kiekian.
4. Positions of the Parties
[22] Both parties agree that due to the high conflict between them that joint custody is not workable.
[23] The mother sought a restraining order but in closing submissions counsel then revised his position to request a mutual restraining order but then conceded that there was insufficient evidence to support a restraining order against either party.
[24] The father also initially sought a police assistance clause in his pleadings but counsel advised the court he was not pursuing this relief.
[25] It is the mother's position that historically she has been the children's primary parent and that she is the parent best qualified to make decisions with respect to the children. It is her position that it was not until the separation that the father has taken an active role and been involved in the children's lives. The mother alleges that there is a history of the father being abusive to her.
[26] The mother seeks the following orders:
a) sole custody without any consultation with the father due to their conflict and inability to communicate;
b) access to the father on alternate week-ends from Friday after school to Mondays drop off at school or daycare and mid-week access from after school to 8:00 p.m.
c) shared school and religious holidays;
d) child support based on the Child Support Guidelines. Although in her pleadings and in her evidence the mother stated that she did believed that the father had undisclosed income, in closing submissions counsel agreed that any child support order should be based on the father's stated income;
e) the children's special and extraordinary expenses be shared in proportion to income; and
f) the father not be permitted to remove the children from Canada.
[27] It is the father's position that despite being the primary breadwinner prior to the separation that he was still an involved parent. It is the father's position that since the separation he has been more involved in the children's lives and he has ensured that all of the children's medical and dental needs are being met. It is further submitted that if the mother was granted sole decision making that his role in the children's lives would be diminished. The father denies that he was abusive to the mother and denies that he has any intention of removing the children from Canada.
[28] The father seeks the following orders:
a) sole custody with consultation with the mother but in the event the parties cannot resolve the issue the father shall make the final decision;
b) the current shared parenting schedule continue but with clarification as to the schedule if there is no school on a holiday Monday; or in the alternate, primary residence with him;
c) shared holiday access as proposed by the mother but to also include a sharing of the Spring school break and alternate weeks in the summer;
d) the father shall be permitted to obtain, maintain and renew the children's' passports and other government documents;
e) the mother to return to children's passports and other government documents to the father forthwith and that he will provide them to the mother as needed;
f) the father to be permitted to travel with the children for vacation purposes outside of Canada without the mother's prior written consent for a period of 2 consecutive or non-consecutive weeks;
g) the mother pay child support based on the Child Support Guidelines; and
h) the mother pay her proportionate share of the retroactive and ongoing special and extraordinary expenses.
5. Applicable Legal Principles Regarding Parenting
[29] Section 24 of the Children's Law Reform Act ("CLRA") sets out that the court must make custody and access orders in the best interests of the children. This applies to both temporary and final orders. The court must consider the relevant best interests criteria set out in 24 (2) of the CLRA which reads as follows:
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
- (i) each person entitled to or claiming custody of or access to the child,
- (ii) other members of the child's family who reside with the child, and
- (iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[30] The court is also required to consider the issue of domestic violence a set out in subsection 24 (4) of the CLRA as follows:
Violence and abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
a) his or her spouse;
b) a parent of the child to whom the application relates;
c) a member of the person's household; or
d) any child.
[31] Children should have maximum contact with both parents if it is consistent with the children's best interests.[2]
[32] I have considered and applied these principles in determining the parenting arrangements that are in these children's best interests.
5.1 Summary of Relevant Evidence and Findings of Fact Regarding Parenting
[33] While the parties resided together in the Middle East, the mother was the primary caregiver as the father worked fill-time. The mother deposed that she had no assistance in caring for the children and that the father would work long hours and came home late. The father deposed that he only worked regular hours and would spend time with the children. He also deposes that they had a housekeeper and after Sara was born a nanny to assist the mother.
[34] In her testimony the mother agreed that the father would mostly be home by 6:00 p.m., that she had a housekeeper but not a nanny, that the father would spend a little bit of time with their daughter at bedtime and that the father would drive her and children to their various appointments. The mother would not agree that the father cared for the children or that driving them to appointments was a big part of their upbringing. The mother testified that she knew the father could not care for children as soon as her daughter was born and now since the separation.
[35] The mother deposed that she made all of the arrangements for the children such as arranging daycare, activities and summer camp prior to the separation so that after the separation she did not see the need to consult with or involve the father.
[36] The mother agreed that after the separation she enrolled Sara in counselling and that Sara is still attending the counselling. The mother did not advise the father of the name or the counsellor nor has he participated in the counselling.
[37] Prior to the separation, the mother initially arranged for the children to be cared for Hazar Al-Tariffi and her mother. This was not a licensed daycare and Ms Al-Tariffi testified that she was caring for the children as a favour for the mother. She confirmed that the arrangements and her interactions were with the mother. Although the father came to pick up the children due to their cultural traditions he was not allowed into the home.
[38] The mother then arranged for daycare with Clara Kiekian who is an experienced licenced daycare provider. However, in a series of text messages in October 2015, attached as an exhibit to the mother's affidavit, the father expresses his concern about the unilateral daycare arrangements made by the mother and about not being consulted. The father stated that he did not want his children to attend this new daycare until he had an opportunity to meet the daycare provider, see the home and he made it clear he was not consenting. Both parties threaten to call the police.
[39] Ms Kiekian testified that the father accused her of force feeding his son until he vomited and also accused her of looking through his backpack. Ms Kiekian who cared for the children from October 2015 to March 2016, asked the parents to make other arrangements as she was being questioned by both the mother and father and since the father was not happy with her she was not willing to continue to care for the children. However, the father testified and produced a letter confirming that he complained about Ms Kiekian and as a result the children were moved to another daycare.
[40] Ms Kiekian testified that although the children liked both parents and liked to go to them, they seemed happier and more excited to see the mother than the father. However, she could not provide any specifics.
[41] The children currently attend a daycare across the street from their school and both parents appear content with the daycare.
[42] The mother deposed that the father only became involved in the children's care since the separation.
[43] The father provided some proof that he attended various medical appointments prior to the separation. However, I find that after the separation he became much more pro-actively involved in the children's health care needs. In fact, in the last year he is the parent that attended to all of the children's dental, medical and health related issues.
[44] After the separation, the father arranged for the children to attend his family doctor as previously they were only seen at a walk-in clinic. He also arranged to obtain a copy of their health records. Although the mother is agreeable to the children continuing to attend with Dr. Amin, she only found out the name of the doctor when the father attached a letter from the doctor to his affidavit. The father admitted that he did not tell the mother the name of the doctor as he was also his family doctor and he felt this was an invasion of his privacy. He also testified that Sara told her mother she had gone to see a new doctor so the mother knew.
[45] The father also provided letters, record and receipts confirming that he attended and arranged appointments for the children with a dentist, a chiropractor, a sleep clinic with respect to his son and eye examinations for his daughter. He purchased eye glasses and orthotics for Sara. When the mother was asked in cross-examination if these records do not prove that the father was involved and cares for the children the mother replied that this was all recent and further she does not know if the letters are true or not. When asked to assume the letters were true, she would still not agree that they show the father cares for the children.
[46] The mother alleged that the father did not provide proper meals for the children, did not prepare nutritious lunches, did not take care of their hygiene and sent them to school in ripped clothes. The father denied these allegations and attached to his affidavit receipts for food, clothing and school supplies he purchased for the children. Further, there was no evidence that the school or the children's aid society, who were briefly involved, ever had any concerns about the children in the father's care or that the mother ever reported any such concerns.
[47] The mother was actively involved with the children's school and their activities. The mother and her friend, Ms Sarassra testified that the father had not attended school activities and did not attend any parent-teacher meetings. However, the father produced a letter from the school principal confirming that the father did attend parent-teacher meetings and communicated with the school about the children's progress. There are also attached to the father's affidavit email exchanges between himself and the children's teacher.
[48] The mother alleged that the father was not helping the children with their homework. She blamed the father for Sara doing poorly on a very significant math test because she was in his care the Monday before the test but did not explain why she had not reviewed the math with her over the week-end when Sara was in her care. She gave a convoluted answer about reviewing other homework with her. But if the test was so important and she was concerned about the father's inability to help Sara I would have expected her to then review the work on the week-end or at least send a reminder to the father or to ask the teacher to allow Sara to take the test again due to the circumstances. Further, the mother did not provide a copy of the test or note from the teacher to confirm Sara did poorly on the test. There was no evidence presented by the mother that either child had any problems in school since the shared parenting arrangement was put in place.
[49] The mother and Ms Sarassra deposed that the father did not attend any of his son's soccer practices and only attended his final game. The father stated that he only attended 2 games as the games were scheduled on the mother's access days. He denies the allegation by Ms Sarassra that the children appeared uncomfortable with him.
[50] The mother alleged that the children are afraid of the father. Ms Sarassra testified that Waleed is very clingy with the mother and gets upset when he loses sight of her during the soccer practices and gets emotional and cries when the mother drops him off at school. She testified that he has no problems leaving the father when he is dropping him off at school.
[51] The mother alleged that the father is being critical of her to the children and telling them that she is a "bad mother" and that he is telling them that she is not a Canadian citizen and will be required to leave the country. The mother alleges that the father tells Sara that she is fat and overweight.
[52] The father denies all of these allegations. In cross-examination of the mother she was asked what she did about her concerns, she replied that she came to court. When asked why then she agreed in January 2016 to a shared parenting plan she replied that "circumstances" made her agree but she did not elaborate.
[53] In the father's affidavit he deposed that he does not speak to the children about adult matters but sometimes the children ask him questions. For example, the children asked him why he is taking their mother's money away referring to the child tax benefit. The father then had to explain that both parents get money from the government and that the parents split the money and he uses his share for them.
[54] The father testified that he considered the mother to be a good parent and he felt it was important for both of them to be involved in their children's lives. Except for his concerns about the mother not involving him in the decisions she made for the children and his belief that he is better able to make decisions for the children he was not critical of the mother's love or care of the children.
[55] The parties communicate generally by text messages. The texts messages relate to various issues such as failure to return clothes and supplies, access arrangements and a lengthy disagreement about the daycare arrangements. There are several texts where the father uses inappropriate language to the mother. The father testified that the mother knew how to push his temper and she did not include all of the exchanges only the ones with respect to him making threats to call the police or telling the mother to stop harassing him whereas the mother made the same threats to call the police and she also used inappropriate language. The mother admitted that she did not include all of text exchanges. But what is clear from a review of these text messages is that both parties have an inability to communicate in an appropriate manner with each other.
[56] The parties have also had many disputes with respect to access. Counsel for the father corresponded several times with the mother's counsel to attempt to clarify the access arrangements for a holiday Monday, Father's Day or other special occasions. Either there was no response or the mother refused to give the father access. There were also several occasions where the mother did not comply with the outstanding order. For example, when Sara was ill she refused to send Waleed for access claiming that the siblings are close and Sara would be upset if her brother went and had fun with the father and she needed to stay home. Other times, she was late returning the children as she had made plans that interfered with the father's plans. In January 2016, after being charged with assaulting the father, the mother kept the children out of school and the father was unaware of their whereabouts.
[57] The parties also fought with respect to which parent should be in possession of the children's passports, citizenship documents and other government issued documents. In April 2015, the mother called the police because the father refused to return the documents to her and had put them in his safety deposit box. The police report, filed on consent, indicates that the police advised the mother that as the parents were still residing together in the same apartment and there was no indication that the father intended to leave the country that they could not force the father to bring back the travel documents. The police advised the father to bring back the mother's documents. Nowhere does the report indicate that the mother told the police that the issue began as a result of the father finding the mother had removed the documents from his briefcase and hid them under the mattress. At which time he then removed them from the home. The next day the police followed up and the father confirmed that he had returned all of the mother's documents.
[58] In June 2015, the mother again called the police. The mother advised that she was separated from the father and that he was refusing to return the children's documents to her which she needed to apply for social assistance. The police attended the father's residence and he explained that he was holding the child's passports and social insurance cards as he feared the mother would move away with the children and deny him access. He agreed to give the mother all of the children's documents except their citizenship cards.
[59] The mother did not make any allegations of assault, threats or fear of the father to the police in either of these incidents.
5.2 Analysis Regarding Custody and Access
[60] Both parties are making a claim for sole custody. Both parties agree that in view of the high conflict that a joint custody order would not be workable.
[61] Despite the positions of the parties, a court can make a different parenting decision based on the evidence. However, in this case I agree with counsel and the parties that a joint custody order even if there was a parallel parenting regime would not be workable as inevitably there would be grey areas and disagreements about which parent was able to make a particular decision. If parties wish to argue then they find things to argue about. In this case, there is a great deal of evidence that these parties have continued to argue about many issues some important and others quite trivial. Further, a parenting plan without the use of the words custody and access would also be problematic in view of the necessity of third parties who provide services for the children being clear about who has the authority to make decisions.
[62] With respect to the credibility of the parties, I find that the mother's claims about the father's inability to meet the children's needs and her fear of the father were exaggerated. She did not report such concerns to either the police or the children's aid society that had been involved with the family. I found that the mother's evidence was clearly meant to disparage the father at every opportunity. She even hesitated in responding to the question if she would agree that the father loved the children. I considered if this was due to English not being the mother's first language but the mother had the benefit of an interpreter and based on the overall tone of her evidence I conclude that she simply was intent on not saying anything positive about the father.
[63] Where there is a discrepancy between the mother and the father's evidence I prefer the father's evidence. I also found that the mother's witnesses were biased and also exaggerated their knowledge of the father in order to bolster the mother's case.
[64] Based on the following findings of fact, I find that the father should be granted sole custody:
a) Both parents love the children and they are both able to meet the children's physical and educational needs. I reject the mother's allegations that the father does not properly feed, clothe or bathe the children or that he is not able to meet their educational needs;
b) Both counsel agreed that the records of the children's aid society were not helpful and agreed that the records would not be filed. I therefore draw the inference that there are no concerns about either parent meeting the needs of the children;
c) Although the mother was the primary parent before the separation, I find that the father was involved in the children's lives as much as any parent who works full-time can be;
d) Since the separation the father has been an active, caring and involved parent;
e) Since the separation the father has taken the initiative to ensure that all of the children's medical, dental and heath related needs are being met; except for his decision not to advise the mother of the name of the children's doctor, his decisions have been made in the best interests of the children;
f) The mother has not acted in Sara's best interests by arranging for counselling without advising the father of the name of the counsellor or ensuring that he was able to obtain information about the counselling, meet with the counsellor and be involved in the counselling if that was deemed to be appropriate. Despite the fact that Sara has been in counselling for about a year, the mother did not file a report from the counsellor in this trial and the only reference to the counsellor's name is found in a consent the mother executed so that the children's aid society could speak to the counsellor;
g) As of May 2015, the parties voluntarily agreed that the children live in a shared parenting arrangement. Despite commencing these court proceedings the mother did not bring any temporary motions to change the shared arrangement either before or after the parties agreed to a formal shared schedule by court order on January 7, 2016. I find that there is no evidence that would warrant reducing the time the children spend with the father;
h) Although I accept the mother's evidence that the children need stability and a routine, there was no evidence presented that the children are doing poorly in the routine the parents established;
i) The father believes it is in the best interests of the children that both parents continue to be involved in the children's lives whereas the mother seeks to significantly reduce the father's time with the children. I find that the father would encourage the children to have a loving and meaningful relationship with their mother whereas the mother would interfere with that relationship if she was granted sole custody;
j) The father respects the importance of the mother's role in the children's lives whereas the mother clearly does not respect the importance of the father's role. The mother throughout her affidavits and especially in her cross-examination could not find a kind word to say about the father and diminished everything he did for the children;
k) Although the father does not agree with the decisions the mother made and particularly her refusal to include him in the decision making nevertheless, he did not disparage the mother. Even though I find that the text messages produced in this trial contain language that is inappropriate and critical of the mother, I accept his evidence that he was pushed by the mother's threats to call the police on him and her constantly sending him texts at work caused him to react in the manner he did;
l) The father is the parent who is willing to consult with the mother and advise her regarding decisions about the children even if he is granted sole custody whereas the mother simply wishes to make all of the decisions without consulting the father. It was even unclear if she would advise the father of her decisions considering the manner in which she has handled the issue of Sara's counselling; and
m) The farther is the parent who recognizes that it is in a child's best interests to have as much contact as possible with each parent.
[65] I have also considered the issue of the allegations of domestic violence made by the mother against the father. I accept the mother's evidence that while living in the Middle East she did not feel she would have the support of her family or the police to report any incidences of domestic violence.
[66] However, once the mother was in Canada she did not seem to have any hesitation in calling the police several times to intervene when she wanted to obtain the identification documents that the father had in his possession. In both April and June 2015 when the police were involved, the mother was asked and made no reports of any abuse towards herself or the children. There is no evidence that she advised the children's aid society about any such concerns with respect to her allegations that the children were afraid of the father.
[67] On January 3, 2016 when the father was dropping off the children, there was a confrontation about snowsuits between the parents in the presence of the children. Although the father alleged that the mother assaulted him, he drove off so as not to escalate the situation.
[68] Several days later, but before the family court hearing scheduled for January 7th, the father received a telephone call from the police advising him that the mother was alleging that he assaulted her. As the father had previously been confronted by the mother and she had threatened to call the police, he had his cell phone on video stand-by whenever he dropped off the children. He had recorded the incident where he alleged the mother bad mouthed him and hit him on the head and as a result his cell phone went flying out of his hand. When he got out of the car to retrieve it, the mother pushed him. The police asked the father to give them his recording which he did. After reviewing the video, the police charged the mother with assault. The mother was released on bail terms that she not communicate directly or indirectly or be within 100 metres of the father and that access be through a mutually agreed third party, the children's aid society or court order.
[69] On consent, the video recording was played in court. Although it was difficult to see what happened, the mother could be heard speaking to the father and the interpreter confirmed that she was using bad language against the father. Most importantly the children were present.
[70] This incident indicates that the mother was not afraid to call the police so that if in fact there had been incidents of abuse or threats by the father I find that the mother would have reported those to the police. I find that the mother has exaggerated her concerns about the father to gain an advantage in these proceedings.
[71] With respect to the access arrangements, the father is his evidence was quite adamant that he felt the current arrangement was workable. He testified that it ensured that both parents were involved in the children's schooling and allowed the children to have frequent contact with both parents. Despite the fact that his pleadings stated that he wished primary residence and despite his difficulties in the interactions with the mother and despite her attitude and evidence against him, he was still prepared to share the residence of the children with the mother as he felt that was in the best interests of the children.
[72] The father maintained this position although he recognized that he would then have to pay child support to the mother.
[73] If the father had not been so sincere and strong in his belief that a shared parenting arrangement was in the best interests of the children, I would have ordered that he have primary care of the children and the mother have the children on alternate week-end and one overnight during the week as I have many concerns about the mother's attitude about the father and her attempts to interfere with his relationship with the children.
[74] However, in view of the number of disputes between the parties regarding the present schedule due to the children changing households daily, I find that slightly changing the schedule so there is less contact between the parents may alleviate some of the conflict. A two day, two day and alternate week-end schedule will still ensure that the children spend equal time with both parents and that both parents are involved in the children's lives.
[75] The parties agreed on a shared holiday schedule except for the summer. The mother proposed that each parent have one and half weeks as the children are only permitted to be away from the daycare for three weeks of vacation. The father proposed a week about schedule in the summer. The mother's concern that the children not be removed from their daycare in the summer was based on not jeopardizing their subsidy. This can be dealt by requiring the children to remain in daycare during the summer and not be removed except as permitted by the rules of the daycare.
[76] To avoid as many potential conflicts as possible and to minimize the face to face contact between the parties I have made some slight variations on the holiday schedule as proposed by the parties.
6. Non-removal, Consent to Travel and Possession of Children's Documentation
[77] It is the mother's position that there is a concern that the father will remove the children to Jordan where all of his family resides. The relief she seeks is to ensure that the father will be unable to travel without her consent or a court order.
[78] The mother alleges that the father kidnapped their daughter in the past and has threatened to return to Jordan. The mother relies on an incident that occurred in 2008 when the parents had left Sara with the paternal grandparents in Jordan so that they could take a short religious pilgrimage. When they returned the mother alleges that there she had a disagreement with the father who then grabbed Sara and forced her out of the paternal grandparents' home and they refused to let to take Sara. The mother attempted to obtain the help of the police and courts but legally she deposed nothing could be done. When she found out that the father had returned to Kuwait where they were living with Sara, she bought an airline ticket and followed the father. She subsequently reconciled with the father as she deposes she had no choice as otherwise she would not see her daughter. She also alleges that the father took her cell phone and would not let her leave their apartment for 4 months and after that he hit her with a belt causing bruising. She deposes that the neighbours convinced her not to report the abuse to the police. But again there is no corroboration.
[79] The father's version varies slightly as he emphasises that he tried to contact the mother after she left his parents' home and as he had a return airline ticket he flew home to Kuwait with Sara. In total the incident only lasted 5 days. The father denies that he locked up the mother, assaulted her or took her cell phone.
[80] The mother made the "kidnapping" incident sound much more dramatic than it turned out to be. There is no question the parties had an argument but the mother at all times knew where the child was. I cannot determine if the courts or police would not assist the mother as she alleges but the mother did not file any evidence to corroborate that she reported the incident to the police or began a court action. In any event the issue was resolved when the parties reconciled.
[81] The mother also alleged that the father put her on a "no fly" list, that he has continually threatened to return to Jordan, that he only believes the children should obtain their university education in Canada and the rest of their education in Jordan and that if he travels to Jordan there will be family pressure on him to stay. The mother also alleged that the paternal grandmother lives across the street from a park where there are violent demonstrations and there is a travel advisory for visitors to not frequent that area.
[82] When asked if she believed that the father would intentionally put the children in a dangerous situation the mother testified that she believed he would do this.
[83] When the mother called the police in May and June 2015 regarding the issue of the children's identification documents she was specifically by the police if the father made any recent threats to remove the children and she told the police that he had not. The father denied that he could put anyone on a "no fly list and that Jordan is a country of laws. He also attached a Google map showing that the park is 6.9 km from his family's residence. When shown the map in cross-examination, the mother then said that she did not know the distance, the map did not clearly show the distance from the family's home address as they lives on a long street, waivered on the issue if the park was indeed directly across the street and eventually stated that she did not accept the accuracy of the map.
[84] The father deposed that it has been his dream to live in Canada and he would not remove the children to live in Jordan or anywhere else. The father stated that as he has 5 sisters who live close to the mother there would not be any family pressure on him to remain in Jordan if he went to visit.
[85] Despite Jordan not being a signature to the Hague convention, I find that there is no credible evidence that the father would abscond with the children. I accept his evidence as being credible and find that he would act in his children's best interests and would not expose them to a dangerous situation. Although I find that the father should be able to travel with the children without the consent of the mother, as this is a volatile area of the world, I would require that the father advise the mother in writing of his travel plans at least 30 days before his proposed departure with an itinerary so that she would have time to bring a motion to prevent such travel if there are valid concerns about the safety of the children.
[86] As the custodial parent the father should be the parent to possess, obtain and renew all of the children's passports, travel documents and any other government issued documents.
7. Summary of Relevant Evidence with Respect to Child Support
[87] Counsel for the parties agreed that the father's child support obligation would be based on his anticipated income of $31,726 and the mother's obligation on her anticipated income of $21,902.
[88] Based on these incomes, the father would pay child support of $463 and the mother would pay child support of $332. If I ordered a shared parenting arrangement, counsel agreed that there should be a set off that would result in the father paying the mother child support of $131 per month.
[89] There should also be an order for ongoing disclosure as both parties' income may vary.
[90] The mother is only working part-time at the present time and it is expected that her income will increase once she is able to find full-time employment. As both children are in school and attend after-school daycare there does not appear to be any reason why the mother should not be working more hours or working on the alternate week-ends when the children are in the care of the father.
[91] The father's income may also increase as he obtains more experience and seniority in his current employment or if he again attempts to earn some additional self-employment income.
[92] With respect to the special and extraordinary expenses, based on the incomes that have been agreed upon, the mother will be required to pay 40%[3] and the father 60%. At present the mother is not claiming any special expenses.
[93] The father is claiming both ongoing and retroactive special expenses. The father through his employment has obtained extended medical and dental family coverage. The portion of the cost attributable to the children is $94 per month[4]. He is seeking that the mother contribute her share since March 2014 but as the parties separated in January 2015 the amount must be reduced accordingly. The cost from January 1, 2015 up to and including November 1, 2016 is $2,162.00.
[94] The father has also submitted proof of retroactive expenses for chiropractic, dental, prescription eye glasses for the children. The uninsured portion of these expenses is $899.50. However, in examining the receipts I noted that there was a receipt of glasses in 2014 for $129.98 which predated the separation and I have reduced the expenses for this amount so that the uninsured amount is which then $769.52.
[95] Based on the mother paying 40% of these expenses the mother would be required to pay $1,172.60.
[96] The mother in cross-examination disputed the need for the father to obtain another pair of eye glasses for Sara and that she could take the children to a free dental clinic. Initially in closing submissions, counsel for the mother agreed that the medical expenses were reasonable and that the mother was prepared to pay her portion of the past and ongoing cost for the health plan. However, in mother's counsel's reply submission he submitted that the ongoing health plan costs were not necessary as the benefit received was outweighed by the cost.
[97] I find that yet again the mother is not prepared to put the best interests of the children before her need to disparage everything the father has done. The long term benefit of having extended medical and dental coverage for the children appears to be obvious yet the mother would not consent to this. Despite the fact she had not arranged for dental care for the children after the separation, she challenged the cost incurred by the father.
[98] I accept the father's evidence that Sara told him she lost her eye glasses and the father then arranged for a new eye examination and the purchase of another pair of eyeglasses to then be told by the mother that Sara had her eyeglasses. The mother would not communicate with the father when he requested information with respect to the lost eye glasses so he did what any responsible parent would do, he arranged for his daughter to have another pair.
[99] I find that the expenses claimed by the father are necessary and appropriate special expenses and the mother should pay her proportionate share of the retroactive and ongoing expenses.
8. Conclusion and Order
[100] Although it is clear that both parents love their children and they are both able to meet all of the children's needs, the mother is the parent who I have found will not be supportive of the father's role in the children's lives and will not ensure that the children have as much contact with him as is in their best interests. The mother's attitude towards the father is detrimental to the children's well-being. She has concluded that the father has little to offer the children and will not even recognize that he should be consulted about decisions that will need to be made. Yet the father is the parent who since the separation has ensured that their medical and dental needs are met. The father is prepared to consult with the mother and despite the events that have occurred he is the parent that wishes the parents to share parenting time.
[101] Even though I find that the father should have sole custody as he is prepared to consult with the mother and have equal parenting time, a specific and detailed order is necessary to avoid as many disputes as possible.
[102] There will be an order as follows:
1. The Respondent father Majdy Dahnus shall have sole custody of the children Sara Dahnus born June 8, 2006 and Waleed Dahnus born July 31, 2010.
2. The Applicant mother and Respondent father shall have the children in their respective care according to a bi-weekly rotation schedule wherein each parent will have the children for alternating two and three day periods. Commencing Monday November 28, 2017, the Respondent father shall have the children in his care overnight on Mondays and Tuesdays and the Applicant mother shall have the children in her care overnight on Wednesdays and Thursdays. The children shall be in each party's care on alternate weekends, i.e. Friday, Saturday and Sunday overnights, beginning with the Respondent father on the weekend of Friday December 2, 2016.
The schedule will therefore be as follows:
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | |
|---|---|---|---|---|---|---|---|
| Week 1 | father | father | mother | mother | father | father | father |
| Week 2 | mother | mother | father | father | mother | mother | mother |
3. All pickups and drop offs shall be at the children's school or daycare. When the children are not in school, the Respondent father shall be responsible for picking up and dropping off the children from the lobby of the Respondent mother's apartment building.
4. The Applicant mother and the Respondent father shall each have parenting time with the children in accordance with the holiday access schedule which follows. The holiday access schedule shall override the regular access schedule.
a) On an annual basis, the children shall spend Mother's Day Sunday with the Applicant from 10:00 a.m. until the following day Monday when the children are returned to school or daycare.
b) On an annual basis, the children shall spend Father's Day Sunday with the Respondent from 10:00 a.m. until the following day Monday when the children are returned to school or daycare.
c) The children's birthdays and the parents' birthdays and Halloween shall not require special arrangements and the children will remain with the parent who is caring for them in accordance with the regular access schedule.
d) The regular access schedule shall be extended to include the extra day for the long weekends in February (Family Day), April (Easter), May (Victoria Day), August (Simcoe Day), September (Labour Day) and October (Thanksgiving) with the parent who is caring for the children on the relevant weekend to return the children to school or daycare on the Tuesday morning. For any holiday Friday or professional development day the parent who is caring for the children on the relevant weekend to pick up the children on Thursday from school or daycare.
e) In 2016 and all even-numbered years thereafter, the children shall be in the Respondent father's care from December 23rd at 2:00 p.m. until December 25th at 2:00 p.m. The children shall then be in the Applicant mother's care from December 25th at 2:00 p.m. until December 28th at 2:00 p.m. In 2017 and all odd-numbered years thereafter, the children shall be in the Applicant mother's care from December 23rd at 2:00 p.m. until December 25th at 2:00 p.m. The children shall then be in the Respondent father's care from December 25th at 2:00 p.m. until December 28th at 2:00 p.m. The balance of the children's Christmas vacation will be in accordance with the regular access schedule.
f) In 2017 and all odd-numbered years thereafter, the children shall be with Applicant mother for the duration of the March Break (Monday – Friday). In 2018 and all even-numbered years thereafter, the children shall be with Respondent father for the duration of the March Break (Monday – Friday). The regular access schedule will continue to apply to the weekends proceeding and following March Break, such that the parent who is caring for the children over March Break has a total of 7 days (Friday to Friday or Monday to Monday), with the access transfer taking place at school or daycare as the case may be, or such times as agreed between the parties in writing.
g) For the religious holidays of Eid Al-Fitir and Eid-L-Adha, the parents shall share these holidays equally with the Applicant mother having the first half in 2017 and all odd-numbered years thereafter and the Respondent father having the second half in 2018 and all even-numbered years thereafter. The Respondent father shall have the second half in 2017 and all odd-numbered years thereafter and the Applicant mother shall have the second half in 2018 and all even-numbered years thereafter.
h) During the summer, the children shall reside with each parent on an alternating week schedule on the following conditions:
(i) As long as the children attend a subsidized daycare program, neither parent shall remove the children from the daycare for more than one week for a vacation unless otherwise permitted to do so in accordance with the rules of the daycare.
(ii) The holiday time shall be from the Monday to Friday, and shall combine with the parents' weekend as per the regular access schedule, such that the parent who is caring for the children has a total of 7 days (Friday to Friday or Monday to Monday), with the access transfer taking place at daycare or summer camp on the Friday or Monday, as the case may be, or such times as agreed between the parties in writing.
(iii) In the future it is contemplated that both parents will be permitted to have longer vacations with the children to enable the parents to travel with the children.
5. The parenting time shall only be altered on the written consent of the parties or further court order.
6. If one or both of the children are sick, the transition from one parent's care to the other parent's care is to proceed unless the child who is sick is too sick to travel between the parent's homes as per the determination of the child's doctor.
7. There shall be no make-up time for missed parenting time, unless the parties agree otherwise.
8. Neither party may object to the other's plans with the children and must respect each other's ability to care for the children appropriately.
9. Neither party will arrange activities for the children when the children are scheduled to be with the other parent without that parent's prior written consent.
10. Both parties shall be at liberty to attend scheduled school events and extracurricular activities whether or not they occur during their parenting time.
11. Both parties shall be at liberty to attend field trips and participate in classroom events when the children are in their care, and will not attend those events if the children are in the care of the other party at the time.
12. There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take with them between the residences of their parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other parent.
13. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child.
14. Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by one of the children.
15. The parties shall communicate about the children by email. The emails shall not be read by the children. Each party will respond promptly by return email to the email of the other. The parties shall exchange information regarding the children's care, developmental milestones, food likes and dislikes, scheduled activities and appointments, medical and otherwise, and any requests for changes in the parenting schedule. All emails between the parties regarding the children shall not be deleted nor shall they be forwarded to third parties without the other parent's consent. Emails shall be brief, respectful, related solely to the children, with no reference to either of the parties or their activities. Absent an emergency, the parties shall not email each other more than once per week.
16. The parties shall share all documents pertaining to the children by scanning the document and then sending it to the other parent by email. The parents shall not rely on the Children to transport documents between them.
17. If one party requests information or a temporary change by email, the other party shall respond within 48 hours. Requests made giving less than 48 hours notice shall be responded to as soon as possible. In the event of an emergency or truly time-sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected.
18. Any discussions between the parties at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by email.
19. If one party finds what one (or both) of the children have said about the other parent to be of significant concern, that party shall first ask the other parent, by email, what actually happened. If a complaint is made by one (or both) of the children to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about.
20. Each party shall be entitled to make one telephone call to the children on any day that the children are out of their care for a 24 hour period. The telephone call shall be made at 7:00 p.m. and may last up to ten minutes with each child. The telephone call may be used to wish the child good night and provide general comfort, but shall not be used to question the child about parenting methods or the activities of the other party.
21. Neither party shall go to the other's home except for the purpose of picking up and dropping off the children, or on the consent of the other. The children shall take responsibility for the movement of their possessions as necessary.
22. Major decisions regarding the children's medical care and treatment (e.g. surgery, long term medication, major diagnostics, counselling or therapy) shall be made in consultation with the children's current physician(s), dentist(s) and other health-care providers. If the parties are unable to agree on major decisions relating to the children's medical care and treatment, the Respondent father's decision will prevail.
23. Major decisions affecting the children's educational programming (e.g. psycho-educational assessment or testing, school choice or tutors) shall be done by the parties in consultation with each child's home room teacher. If the parties are unable to agree on major decisions relating to the children's education, the Respondent father's decision will prevail.
24. The Respondent father shall consult with the Applicant mother with respect to any and all major decisions and shall seek the Applicant mother's input. Prior to making any major decision the Respondent father shall give the Applicant mother 30 days prior written notice. After the consultation process, if the parents do not agree, the Respondent father shall be able to make a decision and upon doing so shall immediately inform the Applicant mother of the decision that he has made.
25. Each party shall be entitled to receive copies of all medical, dental, school and other reports related to the children and shall be entitled to consult with the children's teachers, caregivers, physicians, dentists, counsellors and other health care providers concerning the general well-being of the children. Each party shall be listed on all documents pertaining to the children and shall be entitled to attend any of the children's scheduled appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists, counsellors and others involved with the children to speak fully and openly with both parties.
26. The Applicant mother shall immediately advise the Respondent father of all contact information with respect to Sara's counsellor. The Applicant father shall be entitled, after consulting with the counsellor, to determine whether or not such counselling should continue with or without his participation.
27. The children's school will be advised to contact the party in whose care the children are, in the event of an illness, or other emergency at the school. The parties shall provide the school with their contact numbers for this purpose.
28. Each party shall be responsible for making day-to-day decisions for routine non-emergency medical care while the children are in his/her care and shall keep the other party fully informed, by e-mail, of any minor illnesses, emergencies, treatments, medications administered or prescribed while the children is in his/her care.
29. In the event of a serious illness, accident or other misfortune involving either or both of the children, the party then having the children in their care shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.
30. The Respondent father shall keep in his possession the children's original health cards, passports, birth certificates, citizenship papers or any other government issued documentation and provide a copy to these documents to the Applicant mother. Any such documents currently in the possession of the Applicant mother shall be immediately delivered to the Respondent father's counsel.
31. The Respondent father shall be entitled to apply for any original or renewal of the children's health cards, passports or other government issued documents without the consent of the Applicant mother.
32. Neither party shall change the children's residence from the City of Toronto without the other party's prior written consent or court order.
33. Each party shall provide to the other 60 days advance notice of any intended change to his or her address, with the complete new address to be provided as soon as possible, but prior to the move. Any change to either party's telephone number or e mail address shall be communicated to the other party immediately following such change.
34. Each party shall be permitted to take the children from the Province of Ontario for vacation purposes without the prior written consent of the other party; on condition that they shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the children can be reached where they are going at a minimum of 30 days in advance.
35. The Respondent father shall pay child support to the Applicant Mother in the amount of $463.00 per month for the two children, in accordance with the Child Support Guidelines Table Amount of child support based upon an annual income of $31,726 as of December 1, 2016.
36. The Applicant mother shall pay child support to the Respondent father in the amount of $332.00 per month for the two children, in accordance with the Child Support Guidelines Table Amount of child support based upon an annual income of $21,902 as of December 1, 2016.
37. The Applicant mother shall pay to the Respondent father her proportionate share of the children's extended health plan being $38.00 per month as of December 1, 2016.
38. Accordingly, as of December 1, 2016 the Respondent father shall pay to the Applicant mother, on a set off basis, $93.00 per month.
39. Based on the present incomes of the parties, the Respondent father shall pay 60% and the Applicant mother shall pay 40% of any special and extraordinary expenses. Such expenses shall include any medical, dental or health related expenses not covered by the Respondent father's health plan and any summer camp or daycare expenses if not longer subsidized. The Respondent father shall provide a receipt of any such expense to the Applicant mother and he shall pay her share of this expense within 30 days. Any other expenses for which one the parties is seeking a contribution from the other parent must be agreed upon in writing in advance.
40. The Applicant mother's arrears of her share of the special expenses is fixed at $1,172.60. These arrears shall be paid at a rate of $100.00 per month as of December 1, 2016 until paid in full.
41. Beginning in the year 2017 and for as long as support is payable, the Respondent father and the Applicant mother shall by June 1st of each year provide to each other a copy of his/her Income Tax Returns and Notices of Assessment and Reassessment for the previous year. The amount of child support payable and the proportionate sharing of any special expenses shall be re-adjusted accordingly at the request of either party.
42. Each party shall be entitled to claim one child as a dependent on his/her tax return and receive the child tax benefit for one child.
43. Support Deduction Order to issue.
[103] If the Respondent father is seeking costs, brief written cost submissions with a bill of costs and any Offer to Settle shall be submitted to the trial co-coordinator within 30 days and the Applicant mother's response to be submitted within 30 days thereafter.
Justice Roselyn Zisman
Date: November 18, 2016
[1] On consent Ms White's affidavit was admitted without the necessity of her being available for cross-examination.
[2] Gordon v. Goertz, [1996] 2 S.C.R. 27
[3] Based on the Divorcemate calculations father pays 59.2 and mother 40.8 - numbers rounded up for convenience of calculations
[4] The father stated the cost was about $1,200 per year but in the summary of expense submitted the cost for 21 months is $1,983.80 or $94.46 per month.
