Court File and Parties

Ontario Court of Justice

Date: November 23, 2017

Court File No.: Toronto DFO 17 15649 B1

Between:

Karin Otarola Munoz De Shaikh Applicant

— And —

Kamran Shaikh Respondent

Before: Justice E.B. Murray

Heard on: November 16, 2017

Decision on motion released on: November 23, 2017

Counsel:

• Ms. Pamila Bhardwaj — counsel for the applicant
• Mr. Kenneth Wise — counsel for the respondent

Decision

MURRAY, E.B. J.:

Background

[1] The Applicant Mother Karin De Shaikh and the Respondent Father Kamran are the parents of two daughters, "Farzana"[1], aged 8, and "Sanjee"[2], age 6. Kamran is 50 years old; originally from Pakistan, he immigrated to Canada in 1990. He has been married twice previously. Karin, 33 years of age, is a recent immigrant from Peru. This is her first marriage.

[2] The parties separated on April 13, 2017, after an incident in which Karin says Kamran assaulted her. She says there were many prior assaults. Kamran was charged with assault; conditions of release restricted his contact with Karin.

[3] Karin alleged that Kamran almost immediately breached these conditions, and in fact forced his way into her apartment. She says that his relatives and neighbours came to her, beseeching her to reconcile and to take action to have the charges withdrawn. On April 20, 2017 police arrested and laid further charges against Kamran: failure to comply with his recognizance, criminal harassment, obstruct police, and assault (of Karin).

[4] Stricter bail conditions were imposed.

• Kamran was subject to house arrest except to go to or from work, medical emergencies or in the company of his surety, his brother.
• He was to have no contact, direct or indirect with Karin, except through a mutually agreeable third party to arrange access.
• He was not to be within 100 metres of any place where Karin was.

[5] Karin commenced an action. An ex parte restraining order was issued April 21, 2017, which provided that Kamran have no contact with Karin or the children and that he not come within 500 metres of any place where they might be unless accompanied by counsel. On May 8, 2017 the case was transferred to the Integrated Domestic Violence Court (IDVC).

[6] At IDVC on June 23, 2017 the parties consented to an order with the following terms:

• Kamran to have access in a public place for 4 hours two days a week. Access exchange to take place at 32 Division of the Toronto Police.
• Kamran to provide financial disclosure.
• On a without prejudice basis pending determination of his income, Kamran to provide temporary child support of $359 monthly based on his declared annual income of $24,000.

[7] Karin alleges that Kamran breached his bail and the restraining order on June 24, 2017, the day after the parties were in IDVC. The allegations are disturbing, involving a 4-day period in which she says that Kamran, through threats, kept her confined most of the time to her apartment and assaulted her, physically and sexually. She says that the children were present in the apartment for most of the time, although she tried to shield them from what was going on.

[8] On July 2, 2017, police laid further charges against Kamran. Those charges are:

• assault;
• failure to comply with recognizance x3;
• criminal harassment x2;
• attempt to obstruct justice;
• forcible confinement x2;
• and obstruct justice.

Kamran was detained. Because IDVC cannot deal with accused in custody, the charge was transferred back to the College Park Court.

[9] The Children's Aid Society of Toronto (CAST) was contracted by police, and interviewed Karin and the children. Karin deposes that the CAST worker advised her that the children said that during the time they spent with Kamran June 24-28 (during the alleged forcible confinement), Kamran assaulted them. It is alleged that Kamran slapped one child in the face and hurt the other child's wrist by lifting her off the ground by the wrist as a form of discipline. The CAST worker advised that in her interview with the children, she had them draw "a house of dreams" and a "house of worries"; Kamran was shown only in the house of worries.

[10] On October 6, 2017, Kamran was released under strict conditions.

• He is to live with his surety, his brother, and be within his residence at all times except in the company of his surety.
• Even with his surety, he must remain within a boundary radius—Kingston Road to the east, Brimley Road to the West, Steeles Avenue to the north and Kingston road to the south, except for court attendances.
• He must wear an ankle bracelet at all times.
• He is to have no contact with Karin except pursuant to a family court order.

[11] Kamran flatly denies all the allegations. He admits that he was with Karin from June 24-28, 2017, but says that it was with her consent. He says that Karin is mentally ill. He says that she periodically fabricates allegations of assault against him, goes to a women's shelter, and after a period returns to him. Karin acknowledges that in 2012 and 2014 she separated from Kamran after assaults; that charges were laid; and that she then reconciled, and did not appear at the dates for the criminal trials. She says she did so because of threats from Kamran and pressure from his family.

The Motions

[12] Kamran brings a motion asking that he have unsupervised overnight access on alternate weekends to Farzana and Sanjee and that the order of June 23, 2017 providing that he pay temporary child support be changed to provide that no support is payable and that arrears be rescinded.

[13] Karin opposes, and moves herself for an order that Kamran have no access to the children until the court has received evidence from CAST as to their investigation and from the Office of the Children's Lawyer. Karin says that access at this time is not in the children's best interests. She says that the children have been traumatized by exposure to Kamran's abuse of her. She says that even supervised access should not be ordered, because she has no confidence, despite the provisions of his recognizance and any order this court might make, that Kamran will stop his harassment of her. She is very afraid for her personal security if she is required to deliver the children to and pick them up from any supervised access site.

[14] Although I requested the assistance of the OCL on June 23, 2017, that request was denied, as neither parent sent in the intake form. Their lawyers explain that the intense events following that order are the reason why no intake forms were submitted; the parties would both like OCL assistance, and will promptly submit intake forms. I made the order requesting OCL assistance. I also ordered release of the CAST records.

Access

[15] A decision about access is made on the basis of the best interests test.

[16] I start from the presumption that when parents separate, if children live primarily with one parent, they have a right to maintain their relationship with the other parent through access[3].

[17] If it can be shown that contact with a parent is harmful to a child, contact can be restricted, supervised, and, in extreme cases terminated. Violence and abusive behavior by one parent to the other can justify a termination.[4] In Ganie v. Ganie, (2014) O.J. 6332 (S.C.), Justice D. Price made the following observations about the effect on children of living in a home where there is violence:

The negative effects of domestic violence on children are well known. The perpetrator of domestic violence poses a risk of harm to children even after the perpetrator and victim have separated, and even if the perpetrator has not physically assaulted the children. B. MacDonald J. has described this risk in a number of decisions, including LeBlanc v. Khallaf, where she stated:

• Children are harmed emotionally and psychologically when living in a home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Government of Canada Department of Justice website providing information about spousal abuse.[64] [Emphasis added]

[18] Continued harassment that causes a custodial parent stress and fear usually causes the child in their care stress and fear, and can be the basis for termination of access.[5]

[19] Courts recognize that before access is terminated, supervised access should usually be attempted[6]. Almost all the cases in which access has been denied involve decisions after trial, in which all the relevant evidence has been presented and witnesses have been cross-examined.

[20] It is not every case in which there is domestic violence that a restriction on access will be imposed[7].

• The age and personality of the child and the degree of effect on the child of domestic conflict matters.
• The type of violence can matter. A child exposed to a parent who dominates the other parent by coercive, controlling violence may be harmed more than one who witnesses one act of violence at separation[8].
• The nature of the child's relationship with the abusive spouse matters. Is that spouse the primary parent? Does the child have a good relationship with him or her?
• It will also be important to consider whether there are protective factors for the child.

[21] At this early stage of the case, I have incomplete evidence on relevant issues.

• The evidence as to whether Kamran was violent to Karin is inconclusive. If Karin's evidence is accurate, the violence follows a pattern of coercive, controlling violence. Evidence from the police as to their investigation into the charges pending against Kamran would be helpful.[9] Kamran should have received some disclosure from the Crown on these charges which he could provide to the court.

• The children are quite young. Karin says they were traumatized by exposure to Kamran's abuse of her, but I have no other evidence on this issue except snippets of what Karin says was reported to her by CAST about the children's interviews. Evidence about those interviews would be helpful.

• Karin's evidence about Kamran's relationship with the children is that the relationship was not close, that Kamran travelled often for business, and when in Toronto had little involvement in their care. I have no evidence from Kamran about his relationship with the children. In his affidavit he simply asserts that he is their father, and that they have a right to have access to him which should not be denied unless there is evidence that this contact would harm them.

Karin's allegations of violence and confinement from June 24-28, 2017, are sufficiently concerning for me that, if true, it is unimaginable that the children would not have been traumatized by the events. If these allegations are true, then Kamran was willing to emotionally abuse his daughters in the course of abusing their mother.

[22] For this reason, in my view it is in the children's best interests to have supervised access to Kamran until further evidence is available. Notes from supervised visits will provide some information about the children's relationship with Kamran.

[23] The difficulty with supervision of access is logistical; how can it be managed without compromising Karin's safety plan? Although supervised access centres have rules about staggered arrival and departure times of parents in an effort to prevent contact between them, will Kamran observe those rules? He has shown that he is ready to disobey a court order if it conflicts with his plans[10].

[24] There is no appropriate person identified who could provide transportation for the children for visits. Kamran's family members are not appropriate. According to Karin, they have pressured her to agree to withdraw charges against him. Karin has no one who can provide transportation. Kamran acknowledges that she is alone here, with no family. At the hearing of this motion she was accompanied by two support persons, apparently from the shelter in which she and the children reside. I asked if they were available to provide transportation and were told they were not.

[25] The appropriate temporary order is that the children see Kamran once a week for two hours, supervised by the Children's Aid Society of Toronto. During these visits, Kamran is not to speak to the children in any language other than English. He is not to question them about Karin or their location or current school. I appreciate that the Society was not asked to supervise by either parent and has had no opportunity to make submissions on this motion. I would much appreciate their cooperation with the plan set out above. If the Society does not wish to do so, I ask that the motion be returned before me and that a Society representative attend.

[26] I do not view this as a long term solution, but one that is appropriate over the next two months until the court is able to receive better evidence. The Society already has some familiarity with the case and the children. The Society has assistance from volunteer drivers who could transport the children to and from visits.

[27] It will be necessary for Kamran to ask for a variation in his recognizance to allow him to attend at Society offices for access, as these offices are outside the current boundaries set out in his recognizance. I expect that the Crown would entertain this request favourably.

Child Support

[28] Kamran asks for an order terminating his current support obligation and rescinding arrears because his detention on the charges and the current strict bail conditions prevent him from working. His evidence is that he is a warehouseman earning at minimum wage level working for ISLines.

[29] Karin opposes the order sought on two grounds:

• Citing Zapreff v. Zegarac, 2015 ONCJ 243, she argues that relief should be refused because Kamran's inability to work is the result of his own misdeeds.

• She says further that Kamran is not a minimum wage employee, but an owner of ISLines, a substantial concern with offices in Toronto and Chicago. It is a reasonable inference that Kamran has income available to him not dependent upon his attendance at the business location.

[30] I do not accept the first argument as applicable in this case. In Zapreff the payor parent was incarcerated after a conviction, and thus unable to work; a change in his support obligation was denied him because of this misconduct. In the instant case, Kamran has been charged, but not found guilty. It is not clear that he is guilty of misconduct.

[31] With respect to the second argument, Karin deposes that Kamran has for many years owned and directed ISLines, [...]. She says she has accompanied him to company offices in Thorncliffe Park; the company has 10-11 employees in Toronto.

[32] Karin's lawyer produced evidence indicating that Kamran has an interest in and control of ISLines, and that it is a substantial concern.

• A U-Haul press release from August 9, 2017 announced that ISLines, "an international shipping company", is now a U-Haul dealer, referring to Kamran Shaikh and Adchad Moqoom as "ISLines partners".

• Federal corporate records show International Shipping Lines Incorporated is an active corporation, and Kamran as the sole director.

• The Better Business Bureau reports that International Shipping Lines has been in business for 14 years and that Kamran is the company President.

• FedEx and DHL also show ISLines as their agent.

• Records of Kamran's account from November 2015 to April 2017 show substantial balances (over $100,000) and deposits (one of over $110,000) inconsistent with the financial profile of a minimum wage employee.

[33] Kamran replies to none of this evidence. He simply produced a letter from the company saying that he "has been on unpaid leave since early July 2017 due to his personal reasons".

[34] I am not satisfied that Kamran's income from all sources is less than $24,000 annually or that he is unable to pay the modest child support ordered on June 23, 2017. I dismiss his motion to change the temporary order.

Released: November 23, 2017

Signed: Justice E. B. Murray

Footnotes

[1] A pseudonym

[2] A pseudonym

[3] V.S.J. v. L.J.G., O.J. 2238 (S.C.); Jafari v. Dadar, 1996 N.B.J. 38 (NBQB)

[4] Jafari v. Dadar, supra; Abdo v. Abdo; Studley v. O'Laughlin, 2000 N.S.J. 210 (N.S.S.C.)

[5] M. (B.P.) v. M. (B.L.E.D.); Stewart v. Bachman; Dixon v. Hinsley, O.J. 3707.

[6] V.S.J. v. L.J.G., supra

[7] See Calabrese v. Calabrese, 2014 O.J. 5392, in which supervised access was not continued in a case where a father faced serious charges of assault and criminal trial was pending.

[8] See N.D.L. v. M.S.L., 2010 NSSC 68, for a discussion of the effects of coercive controlling violence.

[9] E.g., Karin alleges that when police called Kamran on June 28, 2017 because of a missing persons report about her, he denied being in contact with her; he was holding her in the car, and she overheard the conversation. Do police notes reflect this?

[10] He admits this in his affidavit. On June 24th he was subject to a recognizance which provided that he have no contact with Karin except through a mutually agreeable third party to arrange access. The recognizance made no provision that he could have contact with Karin for other reasons, even if she consented. He admits that he was with Karin for four days, saying that it was with her consent, an allegation which she denies.