Court File and Parties

Date: April 3, 2017

Court File No.: D82175/15

Ontario Court of Justice

Between:

Ola Al Jarrah

Applicant

-and-

Fadey Ashmawi

Respondent

Counsel:

• Adela Crossley, for the Applicant
• Adrian Baker, for the Respondent

Heard: February 24 and March 30, 2017

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] This trial was scheduled to be about the parenting and child support arrangements for the parties' two-year-old daughter (the child).

[2] At the outset of the trial, the parties reached an agreement that the mother have final custody of the child. They also agreed to communication terms, to the ability of the mother to obtain government documentation for the child without the father's consent and to child support.

[3] The issues of access, travel and the ability of the mother to move the child's primary residence outside of Ontario remained outstanding.

[4] During the second day of the trial, the parties resolved the access issue. The parties agreed that the remaining issues for the court to decide are:

a) Can the mother move the child's primary residence outside of Ontario without the written consent of the father or prior court order?

b) Can the mother travel for vacation purposes with the child to a country that is not a signatory to the Hague Convention?

c) Can the mother travel outside of Canada with the child, without prior notice to the father, in the event of an emergency?

d) Should the court make a police enforcement order?

[5] The parties had agreed to a focused trial pursuant to Rule 1 of the Family Law Rules. Direct evidence was delivered by affidavit, with supplementary oral evidence. Only the parties testified. The parties agreed to time limits for their examinations.

[6] The trial took place over two days.

[7] The father lives in Egypt. He participated in this trial by video conference.

Part Two – Background Facts

[8] The mother is 23 years old. She was born in Syria. She moved with her family to Egypt as refugees and met the father in Egypt in April, 2013.

[9] The father is 28 years old and was born in Canada. He is a dual citizen of Canada and Egypt. In 2007, the father began attending medical school in Egypt in a 6-year program.

[10] The father was previously married. He married his first wife in Egypt in February, 2011. He separated from her in November, 2011. He has a daughter from that relationship, who is now 5 years old. That child lives with her mother in Egypt.

[11] The parties married on September 17, 2013 in Egypt.

[12] The child was born in June, 2014.

[13] The parties came to Canada with the child on October 18, 2014. The father sponsored the mother and the child.

[14] In July, 2015, the parties moved into the home of the father's parents in Toronto.

[15] The mother was a housewife in Canada and went to school to improve her English. The father studied for his medical residency exams. The parties were financially supported by the father's parents.

[16] The parties separated on July 22, 2015. On that day, the father was charged with assaulting the mother. The father was released on bail conditions that he not directly or indirectly contact the mother. The mother took the child to a shelter.

[17] The mother and child briefly returned to the home of the paternal grandparents at the end of August, 2015. The father was not there.

[18] The father was charged with breaching his bail terms on November 11, 2015 for allegedly contacting the mother. He is now not permitted to communicate with the mother except through family court order.

[19] The father's assault charge was subsequently withdrawn upon his entering into a peace bond. That peace bond expires in May, 2017. The criminal charge related to the breach of bail terms is scheduled to go to trial in November, 2017. The father maintains his innocence.

[20] The mother issued her application on December 15, 2015. The father filed his Answer/Claim on February 23, 2016.

[21] On March 2, 2016, the case management judge, Justice Debra Paulseth, made a temporary without prejudice order that the father have supervised access to the child at the Toronto Supervised Access Centre (TSAC) once each week for two hours.

[22] On April 5, 2016, Justice Paulseth heard contested motions. She continued the temporary supervised access order, granted temporary custody of the child to the mother, made a temporary order that the child not be removed from Ontario and ordered the father, on a without prejudice basis, to pay temporary child support of $40 each month, based on an annual income of $12,000. The support was ordered to commence as of August 1, 2015.

[23] Justice Paulseth also ordered the father to pay the mother $2,000 for the costs of the motions.

[24] The supervised access at the TSAC never started.

[25] In May of 2016, the father was accepted into a medical residency program in Egypt and moved there. This is a 4 year program. The father testified that he intends to complete this program and return to Ontario to practise medicine.

[26] The father has not seen the child since the parties separated in July, 2015.

[27] Justice Paulseth coordinated the format of this focused hearing with counsel at a trial planning appearance on December 22, 2016.

Part Three – The Parties' Relationship

[28] The parties gave very different versions of their relationship. Findings of fact about this relationship will provide context for the decisions this court is being asked to make.

3.1 The Mother's Version

[29] The mother described the father as an extremely controlling and abusive man. She said that he was verbally abusive to her in Egypt and this escalated to physical violence in Canada. She said that he would become upset when the child cried. He would hit the mother on the head and throw things at her. The mother said that she did not speak English and felt very isolated in Canada. She said that the father's parents condoned his behaviour.

[30] The mother said that she did almost all the caregiving for the child and the father did very little.

[31] The mother deposed that the father became enraged with her on July 22, 2015, because she told him that she did not want more children with him. She said that he punched her while she was holding the child. He threatened to send her back to her parents in Egypt. She called the police and charges were laid against the father.

[32] The mother claimed that the paternal grandparents subsequently were able to locate her and threatened to harm her family in Egypt and take the child away from her if she did not return to their home with the child. She said that she was afraid and returned very briefly to their home. However, she called the Children's Aid Society, and with their support, she and the child were taken to another safe place.

[33] The mother claimed that the father subsequently used his mother's cell phone to contact her in contravention of his bail terms. She said that he threatened to hire people in Egypt to hurt her family there. He then stated that he would kill them. He threatened to take the child away from her. She reported the threats to the police and the father was charged.

[34] The mother testified that she wants the child to have a good relationship with the father. However, she does not trust him and his family. She expressed a dim view of the father's parenting ability. She questions his motives for pursuing access and believes he is seeking court terms to maintain his control of her.

3.2 The Father's Version

[35] The father completely denied the mother's allegations of abuse, threats and control. He also claimed that the mother was not isolated in Canada. He deposed that he encouraged her to go to school to learn English.

[36] The father claimed that he had a positive relationship with the mother, but not with her parents. He said that his relationship with the mother eventually deteriorated because the mother and her family were insisting that he sponsor them to come to Canada.

[37] The father claimed that the mother had a family friend meet with his parents in November, 2015 and that a warning was given that the criminal charges against him would continue unless he agreed to sponsor the mother's parents to come to Canada.

[38] The father admitted that he fought with the mother about contraception on July 22, 2015, in front of the child, but denied that the fight became physical.

[39] The father claimed that he was very involved in parenting the child prior to the parties' separation.

[40] The father deposed that he sees his other child in Egypt frequently and that he has a good relationship with that child's mother.

[41] The father said that he loves the child and only wants to have a meaningful relationship with her. He believes that the mother is not supportive of that relationship and without a structured court order that is enforced, access will not take place.

[42] The father described the mother as unpredictable. He does not trust her.

3.3 Analysis

[43] The court preferred the mother's version of the relationship history. The mother gave her evidence in a calm and straight-forward manner. She presented as a thoughtful person and child-focused – certainly not the unpredictable person portrayed by the father. At times, she became confused by the sequence of events, but did not become defensive about this. Rather, she acknowledged that it was a stressful time and she might have the order of some dates wrong.

[44] The mother was isolated in Canada and spoke very little English when she separated from the father. At that time, she was totally dependent on him and his parents. She had no family or friends in Canada. She was very vulnerable. It must have been a very difficult decision for her to leave the father in these circumstances. She would have needed compelling reasons to do so. She was motivated to protect the child from what was very likely an unbearable situation.

[45] The fact that the police have twice laid criminal charges against the father offers some corroboration of the mother's version of events.

[46] The father has also demonstrated some controlling behaviour that supports the mother's version of their relationship history. The withholding of financial support is a common element of controlling and abusive behaviour often observed by the court. The father sponsored the mother and the child to come to Canada and made an undertaking to support them for 3 years. He complied with that undertaking, but only while they lived together. He only paid the mother a paltry amount of child support until the agreement to increase support was made on the first day of trial. As of the first day of trial, he had only paid a small fraction of the costs order of Justice Paulseth.

[47] The father's lack of financial support has resulted in the mother and child being impoverished. The mother is in receipt of social assistance. The lifestyle of the child has been diminished since the parties separated. The parties had lived a comfortable lifestyle together. The father, on the other hand, continues to have all of his expenses met and is able to travel to Egypt. He plans to travel between Egypt and Canada twice each year.

[48] The father has also not acted in a child-focused manner. He turned down an offer of supervised access by the mother prior to the first court appearance, because he felt that supervision was unnecessary. As a result, he did not see the child for several months when he had the opportunity to do so. He would only see the child if it was on terms acceptable to him. He placed his need to be proven right ahead of his child's need to see him.

[49] The father also placed his career ahead of establishing a relationship with the child. As a result, he will not really have a meaningful relationship with the child in her formative years. That is his choice.

[50] The father's choices support the mother's position that the father had limited involvement with the child when they lived together.

Part Four – Agreements Reached

[51] On the first day of trial, the parties consented to a final order on several issues. The parties agreed to the mother having final custody of the child. Communication terms were agreed to. It was agreed that the mother may obtain a Canadian passport and other government documentation for the child without the signature of the father. The father is required to pay final child support of $200 each month, starting on June 1, 2016. Support arrears were fixed at $1,440, to be paid at $100 each month.

[52] On the second day of trial, the parties resolved the issue of access. They agreed that the father will have supervised access twice each year when he comes to Canada, through a private supervised access program, paid for by him. He is to have a minimum of two visits for each of the 4 weeks he will spend in Ontario. The parties agreed about how those weeks would be selected.

Part Five – Primary Residence

[53] The father seeks an order that the primary residence of the child not be moved outside of the Province of Ontario without his written consent or prior order of the court.

[54] The mother suggests that the court order provide that she not move the primary residence of the child outside of Canada, without the written consent of the father or prior court order. She has no present plans to move outside of Ontario, but wants the flexibility to move elsewhere in Canada.

[55] The legal test to make this determination is the best interests of the child, as set out in section 24 of the Children's Law Reform Act.

[56] The father's request is rooted in his distrust of the mother. He fears that she will take the child, leave the jurisdiction and frustrate his relationship with her. He submits that the mother does not have roots in Ontario, acts unilaterally and unpredictably, and does not value his relationship with the child.

[57] The court finds that the residency order sought by the mother is reasonable and in the child's best interests.

[58] The evidence did not support the father's concerns about the mother. She promptly sought legal advice after the parties separated and brought this case to court. She offered him access prior to the first court appearance. She has complied with court orders. She followed up with the TSAC when the supervised access order was made by Justice Paulseth. It was the father who frustrated the access process by moving to Egypt.

[59] It has been the father, not the mother, who has not complied with court orders, as the costs order of Justice Paulseth has been in default.

[60] The father submitted that the mother's initial position where she sought access in her discretion, was indicative of a lack of support of his relationship with the child. However, the mother's position was completely justified. The father had sponsored her and the child to come to Canada. She was very vulnerable due to her lack of English, limited job skills and child care responsibilities. Then, the marriage broke down, with the father being criminally charged with two incidents with respect to her. The father failed to pay adequate child support to her after the separation. Lastly, with little notice, the father moved to Egypt for 4 years in June, 2016. The mother, quite properly, questions the father's commitment to the child. It was reasonable for her to want to assert some control over how access took place.

[61] The court found the mother believable when she testified that she values the child having a relationship with the father. The court finds that she is supportive of this relationship, but is understandably apprehensive about it and appropriately protective of the child. Her desire for access to be safe and consistent is completely reasonable.

[62] The mother testified that she wants to remain in Ontario, but was candid in admitting it has been a struggle for her. She is a single mother, with language challenges, on social assistance. She said that she may want to move to Quebec, as she understands the cost of living isn't as high there.

[63] The father has made a choice to leave Canada for 4 years. There is no restriction on his mobility. He has decided that this choice is best for his future. He has decided to allow the mother to raise the child. It is in the child's best interests that the mother have the flexibility to determine where the child resides in Canada, to give her and the child the best opportunity to succeed.

[64] The access agreement provides that the father's access will be supervised by Brayden Supervision Services, or another supervised access program to be agreed upon. If the mother moves elsewhere in Canada, the father will have the opportunity to exercise access through a different supervised access program. This may be inconvenient for him, but it is the child's best interests that must be prioritized, not the father's.

[65] The court will order that the mother provide the father with 30 days notice if she intends to move the child's primary residence outside of the City of Toronto and provide the father with contact details, including her new address and the name and address of the child's school.

Part Six – Travel

[66] The father is content that the mother be permitted to travel with the child to any country that is a signatory to the Hague Convention, or to Egypt.

[67] The mother seeks the freedom to travel with the child anywhere, for vacation purposes only.

[68] The best interests of the child test pursuant to section 24 of the Children's Law Reform Act is again the legal test for the court to apply.

[69] The father's submissions on this issue were similar to his submissions regarding the child's primary residence. He does not trust the mother and fears she will move with the child to a country where he will have no legal recourse to see her.

[70] The court finds that the mother's travel proposal is in the child's best interests.

[71] The mother testified that she has no family or supports in Canada. She has extensive family in Saudi Arabia. She would like to be able to travel there for the child to meet them. It will be advantageous to the child to meet her extended family and feel a part of it. It will also help the child if the mother's functioning is improved by not feeling so isolated.

[72] The father submitted that his proposal gives the mother the ability to move to court for permission to travel to a non-Hague country and that should be sufficient to protect the mother's interests. The court does not agree with this submission. In Khuu v. Tran, 2016 ONCJ 536, Justice Robert Spence found, in the circumstances of that case, that it would be unfair to the mother and child to require the mother to come to court anytime she wished to travel. He set out the following observations that apply to this case:

[50] The mother is a person of very modest financial means and she can ill-afford to assume the financial burden of such a process. Money needlessly wasted on such proceedings is money which is not available for the child.

[51] Additionally, the delay involved in any such process would possibly mean the child would lose the opportunity to travel and enjoy the benefits of any particular trip.

[73] The father submitted that since the mother is originally from Syria there is a risk that she would take the child there and place the child at physical risk of harm. The evidence does not support this. The mother is a refugee from Syria and has no desire to return there.

[74] The father testified that he would feel more comfortable if the travel order he seeks is made. However, his comfort level is an insufficient basis to make the order he is seeking. The mere fact that an applicant seeking to travel with children to a country that is not a signatory to the Hague Convention does not justify an order preventing such travel in the absence of evidence that there is some possibility that the children might be abducted. See: Johnson v. Johnson [1996] O.J. No. 490 (General Division); Hamid v. Mahmoud, 2012 ONCJ 474. The evidence did not support a finding that the mother is a flight risk. She has engaged with the legal system and has complied with court orders. She is trying to build a life for herself and the child in Canada.

[75] The parties agreed that the mother would provide the father with 14 days notice of any travel plans and a travel itinerary. The mother asked to add a clause that the 14-day notice requirement be waived in the event of an emergency. The father objected to this.

[76] The mother's position is reasonable. She should not have to miss a family funeral, for instance, due to this notice term – particularly when the father is having such little involvement with the child. However, this exception will be subject to a term that that the mother is to notify the father immediately about the travel and the reason for the emergency.

Part Seven – Police Enforcement

[77] The father seeks police enforcement of the court's order. Otherwise, he feels that the mother will not comply with it.

[78] The mother opposes this request.

[79] In Paragraph 61 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 630, this court wrote the following about a request for a police enforcement order:

It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. See: Allen v. Grenier and Hamilton-Wentworth Regional Police.

[80] In Patterson v. Powell, 2014 ONSC 1419, the court set out the following considerations in determining whether to grant a police enforcement order:

a) Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paragraphs 14-15).

b) Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16)

c) Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paragraphs 21-22)

d) Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paragraphs 23-24)

e) Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able to be done". (Paragraph 30)

f) Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paragraphs 44-62)

g) Chronic non-compliance with a custody or access order is "likely ... a problem that police can't fix anyway." (Paragraph 74).

[81] The evidence did not come close to meeting the necessary standard, set out in these cases, to granting a police enforcement order. This is not an exceptional circumstance. The mother has complied with court orders. There is no evidence that she will disobey this court order. This is not a "last resort" situation, where a police enforcement order may be justified. If improperly engaged, a police enforcement order might also frighten and distress the child.

Part Eight – Conclusion

[82] A final order shall go on the following terms:

a) Orders to go as set out in the consent dated February 24, 2017.

b) Orders to go as set out in the consent dated March 30, 2017, with the following change to paragraph 3 of the consent:

The mother may travel with the child outside of Canada for vacation purposes. Prior to traveling, she shall provide the father, at least 14 days in advance, with a travel itinerary, setting out the date of departure and return, destination, and an emergency contact number. The notice requirement will be waived in the event of an emergency. In this event, the mother shall immediately notify the father of her travel plans and the nature of the emergency.

c) The mother shall not move the child's primary residence outside of Canada without the father's written consent, or prior court order.

d) The mother shall provide the father with 30 days notice of any intended change of the child's primary residence outside of the City of Toronto. She shall provide the father with all contact details, including her new address and the name and address of the child's new school.

e) The father's claims for a police enforcement order, restriction of the primary residence of the child to Ontario (subject to prior court order or his consent), and to restrict the mother's ability to travel to countries that are not signatories to the Hague Convention (except Egypt) are dismissed.

[83] If either party seeks their costs, they shall serve and file their written costs submissions by April 14, 2017. The other party will have until April 24, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[84] The court thanks counsel for their professional presentation of this case and their considerable efforts to reduce the costs of this case by resolving many issues and organizing a focused hearing on the remaining issues.

Released: April 3, 2017

Justice Stanley Sherr

Footnotes

[1] The father had been seeking joint custody of the child.

[2] The mother was assisted by an Arabic interpreter at trial.

[3] On April 5, 2016, the father was ordered to pay child support of $40 per month, starting on August 1, 2015.

[4] Saudi Arabia is not a signatory to the Hague Convention.

[5] The mother has extended family members who reside in Syria.