Court File and Parties

Court File No.: Kitchener 15/906 Date: 2017-04-21 Ontario Court of Justice

Between:

SALMAN HEMANI Applicant

— AND —

NIMI CLARE-HEMANI Respondent

Before: Justice S.E.J. Paull

Heard on: March 28, 29, 30, 2017

Reasons for Judgment released on: April 21, 2017

Counsel:

• James M. Peluch, for the applicant(s)
• Valeria Ruoso, for the respondent(s)

PAULL J.:

Introduction

[1] Before the court is an application dated November 17, 2015 brought by Salman Hemani with regard to the custody, access, and support of the parties' two children (aged 4 and 6). The respondent, Nimi Clare-Hemani, filed an answer dated December 15, 2015 making additional claims concerning the children and the dissolution of the relationship. The matter proceeded to trial for 3 days from March 28 to 30, 2017.

Positions of the Parties

[2] In his application Mr. Hemani sought sole custody or alternatively joint custody with primary residence with him, or a specific schedule for time with each parent, and child support from the respondent. At the time of trial he was seeking an order for joint custody with a shared (50/50) residential arrangement based on a fixed schedule. He was not seeking child support from the respondent.

[3] He takes this position, in part, on the basis that it is in the best interests of the children to have a shared custody arrangement and that joint custody is required so that Ms. Clare-Hemani does not use an order for sole custody as a means to limit his involvement with the children.

[4] In her answer Ms. Clare-Hemani sought sole custody, access at her discretion, child support, spousal support, and a restraining order. At the time of trial she sought an order for sole custody, structured overnight access to Mr. Hemani, child support and contribution to s.7 expenses based on an imputed income, and the right to travel with the children.

[5] She seeks this relief primarily on the basis that joint custody is not workable in the circumstances given the parties' inability to communicate, and the controlling and abusive behaviour of Mr. Hemani she alleges existed in the relationship. She also seeks to impute income on Mr. Hemani on the basis that he is intentionally underemployed.

[6] At trial Ms. Clare-Hemani withdrew her claim for spousal support, and her claim for a restraining order in favour of parameters in the order regarding the parties' interaction and communication around access exchanges.

Background

[7] The parties were married on July 19, 2008 and separated on August 29, 2015. The parties are the parents of two children, Amina Hemani born September 17, 2010 and Armaan Hemani born March 11, 2013.

[8] Mr. Hemani, who was 36 years old at the time of trial, was raised in the Shia Imani Ismaili Muslim faith, and continues to be a devout follower. Ms. Clare-Hemani was 39 years old at the time of trial, and characterized her parents as not particularly religious but belonging to the Sikh faith which she followed before her relationship with Mr. Hemani.

[9] In 2007, prior to the parties' marriage, Ms. Clare-Hemani committed herself to the Ismaili faith, and the parties discussed that they would raise any children in the Ismaili faith. The parties attended a mosque in Kitchener and jointly own a home at 264 Colton Circle in Kitchener.

[10] Both parties are well educated. Mr. Hemani graduated in 2004 with a BA from University of Toronto, with a specialist in software engineering and a minor in economics, and graduated in 2011 with a Master's degree from McMaster University in engineering, entrepreneurship and innovation.

[11] Ms. Clare-Hemani graduated in 2002 with the BSc from University of Guelph in nutrition. After graduation Ms. Clare-Hemani began working for Tri Fit Inc. in September 2002 as a wellness consultant. Apart from the 12 month maternity leave she took following the birth of each of the children, she has remained at Tri Fit. She currently works part-time with an annual salary of $24,000. She earns a modest additional income from teaching a pilates and a yoga class at a local community center.

[12] Mr. Hemani began working full-time for Christie Digital Systems (hereinafter "Christie") in Kitchener in 2005 as a consultant and developer. When his employment ended with Christie on December 31, 2014 as a result of restructuring he was earning over $100,000 per year as a manager of new business initiatives.

[13] After leaving Christie he collected EI and attempted unsuccessfully to create his own startup business. He was equally unsuccessful finding employment up until July 1, 2016 when he went to work full time for Exponet, a business owned by his father. Since then he claims income from Exponet of $24,000 annually.

[14] Both parties own rental properties in their own names. Ms. Clare-Hemani has owned a condo in Kitchener since 2005, and Mr. Hemani has owned a property in Toronto since before the parties were married.

[15] The parties separated on August 29, 2015 when Mr. Hemani was arrested for assault and forcible confinement based on allegations by Ms. Clare-Hemani of an incident of domestic violence on August 22, 2015 in the family home. She also alleges another incident of domestic violence in the relationship on December 25, 2013. Mr. Hemani adamantly denies the allegations of domestic violence.

[16] Following his arrest on August 29, 2015 Mr. Hemani was released on the same day on an undertaking with terms including that he abstain from communicating with Ms. Clare-Hemani except for contact through a third-party regarding the children or in the presence of counsel. The terms of the undertaking were varied on April 25, 2016 to add a term that Mr. Hemani attend and participate in the Partner Assault Response Program (hereinafter "PAR program").

[17] The charges were resolved on July 12, 2016, the day of trial, by way of a peace bond for 9 months. The terms of the bond included no contact with Ms. Clare-Hemani except through a third-party to facilitate access, childcare, and custody matters regarding the children, or through a third party to discuss the sale of the matrimonial home, or in the presence of or through legal counsel. It included a further term that he not attend at or within 100 meters of any place known to him to be a place of residence, employment, and education of Ms. Clare-Hemani.

[18] Following the parties' separation on August 29, 2015 Ms. Clare-Hemani and the children went to reside with her parents at their home in Kitchener. Ms. Clare-Hemani continues to reside there with the children. Mr. Hemani has remained in the jointly owned matrimonial home.

[19] No motions were brought by either party during this matter and the only order dealing with custody, access, and child support is the interim without prejudice order of Caspers J. dated June 22, 2016 made on consent which included, among other terms, the following:

1. Beginning on Friday, June 24, 2016, Mr. Hemani to have access to the children as follows:

a. on alternate weekends from Fridays at 5 PM to 9 PM;

b. Saturdays of the same week from 9:30 AM to 8 PM;

c. Sundays of the same week from 9:30 AM to 8 PM;

d. and such further and other access of the parties may agree to in writing from time to time.

2. Mr. Hemani was also required to pay Ms. Clare-Hemani child support in the amount of $358 per month beginning July 1, 2016 and monthly thereafter based on his then EI income of $23,920.

[20] Evidence was provided at trial by the parties, Salina Visram who attends the same mosque on behalf of Mr. Hemani, and Laljit Clare, Ms. Clare-Hemani's father, on behalf of Ms. Clare-Hemani.

Custody and Access

[21] Ultimately, the court must decide what custodial order is in the children's best interests and consider the factors set out in subsection 24(2) of the Children's Law Reform Act in reaching this decision. This subsection 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.

[22] Section 24(4) of the CLRA requires me to consider if a party has committed violence or abuse against the spouse or parent of the child, a member of the person's household, or the child when considering their ability to parent.

[23] No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

[24] The Ontario Court of Appeal in Kaplanis v. Kaplanis, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[25] In Giri v. Wentges, 2009 ONCA 606, the court adds the following at paragraph 10:

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis, has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann

[26] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy.

[27] The reasons of Mr. Justice J.C. Murray in the case of Jackson v. Jackson, paragraphs 7 - 25 highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.

[28] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

[29] The court in Izyuk v. Bilousov, 2011 ONSC 6451, stated the following at para. 504:

"In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully."

[30] The test for determining the appropriate residential arrangement and access is also what order is in the best interests of the children. An access parent has the right to visit and be visited by a child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. S. 20(5) CLRA.

[31] The court must ascertain the child's best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz.

[32] An access parent is entitled to share his or her ordinary lifestyle, including religion with a child. A custodial parent has no right to interfere with how a child spends his or her time with an access parent, unless the activity poses a risk to the child, or is not in the child's best interests. Young v. Young.

[33] The best interests of a child usually means that a child's relationship with the other parent is more important than exclusive conformity with the religious practices of one parent. H. (B.) v. Z. (S.).

[34] Absent evidence that demonstrates that exposure to religious beliefs will not be in the best interests of the child, it is not appropriate to try to limit religious activities by one of the parents or either of them. S. (M.J.) v. M. (S.B.), 2017 CarswellBC 502 (B.C. S.C.).

Evidence and Analysis

Parenting and Involvement

[35] Ms. Clare-Hemani testified that her relationship with Mr. Hemani was characterized by his controlling behaviour and that she was always the primary caregiver of the children as Mr. Hemani was often working. While working at Christie, Mr. Hemani would be away on business for at least one week per month on average, and sometimes for two weeks if travelling to China. After he left Christie and prior to the parties' separation she testified that he continued to be largely removed from the family and working on his computer on the startup business he hoped to establish or engaging in volunteer work through the mosque which increased significantly after separation.

[36] Ms. Clare-Hemani acknowledged that the family attended mosque an average of one or occasionally two times per week and this started before the children were born. She testified that she continues to support the children's involvement in the mosque and has no desire or intention of changing their faith.

[37] Ms. Clare-Hemani's position is that while she supports the children's continued involvement in the Ismaili faith, she feels that Mr. Hemani's expectations of the children's attendance have become excessive and are a way for Mr. Hemani to exert control over her time with the children. She testified that Mr. Hemani has said that he wants the children to attend the mosque more frequently as he does.

[38] Mr. Hemani testified that he was always involved with the children and actively participated in their care. He did acknowledge the travelling that was required when he was working at Christie, however, denied his work got in the way of his parenting or relationship with the children.

[39] Mr. Hemani acknowledged that since separation he has become increasingly involved in the mosque. He currently attends five days per week plus other special occasions. He also acknowledged that since separation he has begun spending a significant amount of time volunteering through the mosque giving talks, engaged in pastoral work, or being involved in the children's religious classes on Saturday mornings.

[40] Mr. Hemani estimates that this volunteer work has taken him out of town to Toronto or elsewhere about 15 times per year. He acknowledged during cross-examination that as a result of his volunteer work he has not always been available for access and admitted there have been times he has not taken the children when access was arranged.

Access Arrangements

[41] In spite of the order of Caspers J. on June 22, 2016 the parties have struggled significantly to make arrangements for access. The resulting arrangements have been largely ad hoc in nature in spite of both parties wanting a structured schedule.

[42] Each blames the other for the problems that have occurred. Mr. Hemani takes the position that Ms. Clare-Hemani is seeking to limit his contact with the children as evidenced by her not agreeing to his requests for extra time and a shared custody arrangement. However when challenged on this issue he confirmed that apart from his claim that he ultimately wanted a shared arrangement, the only specific request he made for additional time was outlined in a letter from his counsel dated June 27, 2016 and found at exhibit 5. He acknowledged that Ms. Clare-Hemani had largely agreed to these requests but that most did not occur because he did not follow through.

[43] Mr. Hemani did not bring a motion for access throughout this lengthy matter which would have been reasonable if he was not content with the arrangements made by the parties or as outlined in the without prejudice consent order of June 22, 2016.

[44] It was clear from the correspondence between counsel that was filed that access was an important issue for Mr. Hemani. Mr. Hemani testified that he had very early on made his position clear that he wanted a shared custody arrangement and provided a detailed schedule. The schedule is attached to the letter of his counsel dated March 31, 2016 at Exhibit 5 and he gave evidence that it remained his position at trial. However, during closing arguments Mr. Peluch stated his client supported a week about shared arrangement.

Domestic Violence Allegations

[45] Ms. Clare-Hemani testified that there were two incidents of domestic violence in the marriage. The first incident alleged by Ms. Clare-Hemani occurred on December 25, 2013. With respect to this incident Ms. Clare-Hemani testified the following:

1. The family was preparing to go to Ms. Clare-Hemani's parents for a meal when she and Mr. Hemani began arguing.

2. She was holding Armaan (who was nine months old at the time) and Mr. Hemani came up to her and grabbed her throat with his right hand.

3. Mr. Hemani let go of her throat as Armaan began slipping from her arms. Mr. Hemani took Armaan upstairs and Amina was screaming.

4. When Mr. Hemani came back downstairs he closed the curtains and took her cell phone away and repeated "don't do this". He grabbed her from behind which resulted in both parties ending up on the floor.

5. There was no visible bruising but she had a sore throat.

6. The family did eventually go to the maternal grandparents, however, Amina was unable to eat all day because she was so upset by the incident.

7. Ms. Clare-Hemani did not tell anyone what happened at that time.

8. After the incident Ms. Clare-Hemani confronted Mr. Hemani but he pretended that the incident did not happen.

9. Ms. Clare-Hemani acknowledged in cross-examination that she did not recall what the argument was about and that she did not contact police at that time.

[46] With respect to the December 25, 2013 incident Mr. Hemani testified the following:

1. He did not choke Ms. Clare-Hemani but rather "held her" to prevent her from leaving with the children.

2. In cross-examination he continued to deny that he had choked her but characterized his actions as "hugging her" to stop her from leaving with the children. He did acknowledge that when he did have his arms around her from behind that they both ended up falling to the floor.

3. He stated that the police were not called at the time and that they reconciled and went to the family gathering together.

[47] With respect to the incident on August 22, 2015 and the days leading up to the separation on August 29, 2015 Ms. Clare-Hemani testified to the following:

1. It was Saturday morning and Mr. Hemani and the children were at the breakfast table. Mr. Hemani was on his phone and not engaging with the children, which was typical for him.

2. She vacuumed up some crumbs from the floor which resulted in Mr. Hemani yelling at her to stop. She was upset that he was not more helpful.

3. An argument ensued. Ms. Clare-Hemani went upstairs to Armaan's room and Mr. Hemani followed her and the argument continued. The children remained downstairs and were crying as a result of the conflict.

4. Mr. Hemani tried to grab her from behind, she struggled and he went in front of her and pushed her back into Armaan's room with his open right hand on her upper chest and lower neck area which resulted in bruises that were later photographed by the police.

5. After striking her back into Armaan's room, he proceeded to hold the door closed before releasing it and going downstairs.

6. She did not immediately report the incident to the police as she hoped she would get an apology and that they could discuss it.

7. She tried to engage Mr. Hemani in the following days but he was angry and would not talk to her.

8. The tension continued throughout the week which impacted her and Amina significantly. Amina was distressed and had trouble sleeping prior to the separation on August 29, 2015.

9. After speaking with her family the police were called on August 29, 2015.

10. After Mr. Hemani was arrested she received a call from a police officer later that day with a request from Mr. Hemani that she reside at her parents' home so that he could reside in the family home as he had nowhere else to go. She agreed.

11. She acknowledged in cross-examination that both parties were yelling at the time of the August 22, 2015 incident and that she remained in the home until August 29, 2015.

[48] With respect to this incident Mr. Hemani testified the following:

1. On August 22, 2015 he was having breakfast and talking to the children.

2. Ms. Clare-Hemani began vacuuming and he asked her twice to stop until they were finished and Ms. Clare-Hemani refused.

3. A "huge" argument ensued which continued when Ms. Clare-Hemani went upstairs and he followed.

4. When he got upstairs she came at him aggressively pushing him and repeating "what are you going to do?".

5. He acknowledged pushing her and holding the door shut for 5-10 seconds.

6. He did not know how Ms. Clare-Hemani may have got the bruises.

7. He acknowledged in cross-examination that in the ensuing days he refused to speak to her until she apologized to him.

8. He accepted some responsibility for the argument but not for the physical altercation.

Credibility Assessment

[58] Where the parties differ in their evidence regarding the incidents of physical conflict on December 25, 2013 and August 22, 2015, and the time leading up to the separation, I prefer and accept the evidence of Ms. Clare-Hemani. Her evidence with respect to these issues was clear, convincing and cogent. Her characterization of the events and the circumstances surrounding them were detailed, remained consistent, and were inherently believable.

[59] By contrast, Mr. Hemani's testimony with respect to these incidents was not inherently believable in my view. While denying that he choked her on December 25, 2013 or that the incident constituted domestic violence on his part, he characterized his contact with Ms. Clare-Hemani as a "hug", and appropriate to prevent her from leaving with the children. Even on the basis of his own acknowledgements his actions were not appropriate. Forcibly restraining someone during a heated argument which results in both parties falling to the floor is not reasonably characterized as a hug. This was certainly not a hug but rather a serious physical altercation instigated by Mr. Hemani in the presence of the children which left Ms. Clare-Hemani with a sore throat and their children distressed.

[60] With respect to the August 22, 2015 incident Mr. Hemani acknowledged the intensity of the argument and following Ms. Clare-Hemani upstairs. I do not accept that Ms. Clare-Hemani instigated the physical altercation and that his was a defensive response in the circumstances. Mr. Hemani acknowledged pushing her back and holding the door closed.

[61] It was clear that Mr. Hemani's characterizations sought to minimize the incidents and he took little to no responsibility for his actions in the arguments and physical altercations, or in the impact they had on the children.

[62] It was also suggested that the accuracy of Ms. Clare-Hemani's version of both of these events should be called into question by the fact that she did not immediately contact the police. She told no one of the December 25, 2013 event at the time and remained in the home for several days after the August 22, 2015 incident.

[63] I find that her response to these events was not unreasonable for someone who was shocked and confused as a result of being the victim of physical violence at the hands of a spouse. She remained in the home after August 22, 2015 hoping for an apology and in an effort to engage with Mr. Hemani, however, after several days of his continued anger and silent treatment, and signs of increasing anxiety in Amina, she decided she needed to leave after speaking to her family.

Post-Separation Conduct

[49] Following this incident the CAS were notified by the police and became involved for a short time. The CAS supervised three visits with Mr. Hemani and the children and after that did not require his access to remain supervised. The CAS did not become involved with the parents through court or a voluntary service agreement but did recommend that Mr. Hemani participate in the Caring Dads Program. Mr. Hemani acknowledged in cross-examination that he refused to attend this program as he felt it was neither necessary nor appropriate, and that he felt it was Ms. Clare-Hemani who needed the parenting course.

[50] Ms. Clare-Hemani testified that the CAS also recommended counselling for her and the children, which she undertook. She attended 5 or 6 sessions of personal counselling at Carizon Family and Community Services which she felt was helpful. She also attended the Strong Moms-Safe Kids Program for 8 or 10 weeks with Amina (Armaan being too young).

[51] Mr. Hemani testified he participated in the PAR program after his undertaking was varied. With respect to his participation he stated the following in cross-examination:

1. He did not know what the program was about before he attended.

2. He only took the program because he was advised to and not because he felt he needed it.

3. He felt he did not belong in the program but did learn from it. When pressed by Ms. Ruoso for examples he said he learned that "the silent treatment" was abusive, as was withholding the children from the other parent.

[52] Unfortunately, the court has no other evidence or information on Mr. Hemani's participation in the PAR program because he chose not to file the PAR report.

[53] Following the criminal charges and the undertaking that required a third party to be involved, the parties utilized Ms. Clare-Hemani's father, Laljit Clare, for a period of time to act as a go-between. Problems began from the outset and the access that was arranged the day after the arrest did not proceed smoothly.

[54] The day after separation on August 30, 2015 the grandparents dropped off the children to Mr. Hemani and indicated the pickup time of 4 PM. Mr. Hemani disagreed with this and kept the children overnight. The police were ultimately involved on that day to manage the parties' interactions.

[55] Laljit Clare testified that after a couple months he refused to act as the third party any further as a result of ongoing difficulties and conflict. All parties acknowledge that there were significant problems arranging access and both continued to blame the other.

[56] Ultimately Mr. Hemani proposed three other third parties who have remained involved to facilitate the access arrangements, however, scheduling problems and conflict have continued from both parties' perspectives.

[57] The police were involved further during an incident on December 24, 2015. The parties had significant communications back and forth through the third parties and Mr. Hemani insisted that he be able to drop off the children as a third party was not available. Ms. Clare-Hemani testified that she had confirmed that there was in fact a third party available. In spite of the no contact terms, Mr. Hemani attended at Ms. Clare-Hemani's home to drop off the children. Although he waited on the street Ms. Clare-Hemani was not comfortable with this arrangement and Mr. Hemani only stopped after being warned by the police.

Parental Cooperation and Child Focus

[64] The parties' responses to the separation and the CAS involvement are also telling in my view. Ms. Clare-Hemani's approach has been cooperative and child focused. She accepted and engaged in the counselling services recommended by the CAS for herself and Amina.

[65] By contrast, Mr. Hemani's response has not been particularly child focused. He refused to attend the Caring Dad's Program recommended and only undertook the PAR program because he was advised to as a means of resolving the criminal charges. His evidence was clear he felt he did not need the program. He testified that he only learned that the silent treatment was not appropriate and that withholding children from a spouse was abusive. I took this to mean that he felt that he learned from the PAR program that Ms. Clare-Hemani was in fact acting abusively towards him in not agreeing to his access proposal.

[66] Mr. Hemani's approach to the child support and property issues between the parties has also not been child focused. While this court has no jurisdiction on property issues it was clear that Mr. Hemani had no intention of resolving the issue of the home, for which Ms. Clare-Hemani is a joint owner and still paying half the mortgage, until he is satisfied with the residential arrangements of the children.

[67] He has not cooperated in Ms. Clare-Hemani accessing her equity in the family home, in spite of indicating to her that he wished to buy her out. As a result, she and the children have been forced to remain at her parents' home.

[68] Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. Jama v. Mohamed, 2015 ONCJ 619.

[69] As outlined below, Mr. Hemani has not dealt with financial matters including supporting the children in a responsible and child focused manner, and has shown no insight into the impact these choices would have on the children. As a result Ms. Clare-Hemani has been under significant financial strain which has only been alleviated by her parents letting her and the children live in their home rent free as long as is necessary.

[70] This is not a case, as alleged by Mr. Hemani, of Ms. Clare-Hemani withholding the children from him. When he did request additional time with the children it was largely agreed to by Ms. Clare-Hemani. Mr. Hemani has not exercised all the access he has requested as a result of his own choices, particularly as related to his volunteer activities, which have increased significantly since separation and often take him out of town.

Alienation Concerns

[71] Neither is this a case, as alleged by Mr. Hemani, where joint custody is needed to prevent Ms. Clare-Hemani from limiting Mr. Hemani's contact with the children. While alienation has not been alleged by the applicant, his counsel characterized it as an intransigence on Ms. Clare-Hemani's part in failing to support the relationship of the children with Mr. Hemani, and he suggested that joint custody was appropriate to remedy this.

[72] The Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children. Andrade v. Kennelly, 2007 ONCA 898.

[73] I disagree that Ms. Clare-Hemani has been intransigent in this way or that this is a case where joint custody is necessary to preserve a balance between separated parents. In my view, a joint custody order in the circumstances of this case will only perpetuate hostilities and power struggles, particularly with respect to the children's participation in their faith and the frequency of their attendance at the mosque.

[74] There is no evidence that Ms. Clare-Hemani does not support the relationship of the children with Mr. Hemani. Ms. Clare-Hemani has approached this matter in a more reasonable and child focused manner. In finding this I note the following additional points:

1. Ms. Clare-Hemani left the family home voluntarily the day of the arrest at the request of Mr. Hemani.

2. She arranged access for the day following the arrest and separation, and has accommodated the bulk of the specific requests for additional time.

3. She readily agreed to the third parties proposed by Mr. Hemani, and the evidence shows she has worked cooperatively with them.

4. Mr. Hemani has refused to deal with the jointly owned home in spite of his statement that he wishes to buy her out.

5. Mr. Hemani has excluded her from the jointly owned home and property by changing the locks. He did this on the basis of a claim that she was attending the home and taking jointly owned property. In cross-examination he acknowledged that the only jointly owned property he was referring to was a hair dryer and weigh scale.

6. Mr. Hemani refused to permit Ms. Clare-Hemani to take a Dora dresser from the home that Amina wanted, and waited several weeks to return a dress of Amina's that she had been asking for.

7. Mr. Hemani admitted in cross-examination that since separation he has chosen not to have any communication with Amina's school, or sought to participate in parent-teacher interviews or school functions.

Communication and Conflict

[75] This is not a case where I have any confidence that the parties will be able to communicate effectively going forward. Since separation there is little evidence of effective communication and problem-solving even with the assistance of neutral third parties, and two experienced family law lawyers.

[76] The children have been repeatedly exposed to the conflict between the parties and to impose an order for joint custody would only increase the likelihood of more conflict and dysfunction, and lead to the children being exposed to more conflict.

[77] In all the circumstances of this case a joint custody and a shared parenting arrangement is not workable or in the best interest of the children. A shared residential arrangement, particularly for young children, requires a high degree of cooperation, communication, mutual respect, and a commitment to put the children's needs first. Mr. Hemani has not displayed enough of these qualities on the evidence before me to support a joint custody or a shared residential arrangement.

Access Schedule and Religious Observance

[78] Both parties agree, however, that there should be a structured schedule, and Ms. Clare-Hemani agrees there should be a regularized alternate weekend access schedule after two weekends with one overnight.

[79] With respect to the issue of religious observance, Mr. Hemani's faith is clearly very important to him. Since separation his attendance and participation at the mosque has increased significantly. It is clear that there have been times since separation where he has prioritized his faith-based volunteer work over spending time with his children.

[80] It also appears he has increased expectations of his children's participation in the mosque that exceed what they were pre-separation, and expectations that would significantly impact on Ms. Clare-Hemani's time with the children. These include attending mosque every Friday night and Saturday morning and other times during the week.

[81] Ms. Visram attends the same mosque as the family. She testified that she only knew the family from the mosque and that from her observation Mr. Hemani always interacted positively with his and the other children there.

[82] Ms. Visram also described Mr. Hemani as someone for whom religion came first. She stated that from her perspective there was not an expectation or requirement that children and families always attend mosque, but rather that each family and individual was free to attend as often or as little as they wished.

[83] Ms. Clare-Hemani has not alleged that the children's exposure to religion by Mr. Hemani is not in their best interest, but rather that he ought not to be permitted to impose adherence to religious practices in a way that will impact her time with the children. Her only other concern was that when Mr. Hemani takes the children to mosque on a school night they are not home until after 9 PM. Amina becomes overly tired the next day and has on more than one occasion had to stay home from school (Armaan is set to start school in September). Mr. Hemani's response to this concern in his evidence was that the children would get used to it as other children do. In these circumstances, it is not in the best interest of the children to be out that late when they have school the next day.

[84] Mr. Hemani has every right to share his ordinary lifestyle including his faith with his children. Ms. Clare-Hemani supports the children being part of the faith and consents to an order that the children's faith not be changed. However, exclusive conformity with religious practices does not outweigh the children's relationship with the other parent. In this case both parties agree on the faith of the children, and both are free to practice that faith during their times with the children as they each feel is appropriate.

Distinguishing Precedent

[85] The applicant has provided a number of additional cases to support his position which I have reviewed. The case of Ali v. Ali, is a case where the court ordered joint custody in spite of the animosity and conflict between the parties. This was a case where the court ordered joint custody as necessary to maintain a balance between parties based on a finding that an order for sole custody for either parent would intensify the conflict as each would exploit the order to undermine the other parent's relationship with the children.

[86] The applicant also provided the case of Rogerson v. Tessaro, where the Court of Appeal dismissed an appeal brought by a mother after the trial Judge ordered custody to the father on the basis of her ongoing and problematic behavior in attempting to alienate the children from their father in what the court referred to as her, "persistent, ingrained and deep-rooted inability to support the children's relationship with the father".

[87] The applicant also provided the case of May-Iannizzi v. Iannizzi. In this case the Court of Appeal dismissed a mother's appeal of the joint custody order made in the context of an inability to cooperate and communicate, and in a case where there were allegations of domestic abuse. The Court of Appeal agreed with the trial judge who felt that joint custody was feasible and there was a realistic hope of cooperation and communication in the particular circumstances of this family. The trial judge also found that the allegations of domestic abuse were exaggerated and that the parents would be capable of working together in the future.

[88] These cases are distinguishable on the facts as I have found them in that Ms. Clare-Hemani has approached this matter in a reasonable and child focused manner. There is no evidence to support that she would use a sole custody order to undermine the children's relationship with their father. This case involves incidents of physical abuse and a myriad of choices by Mr. Hemani that were not reasonable or appropriate, or otherwise focused on the children's best interests.

Conclusion on Custody

[89] The children have remained in Ms. Clare-Hemani's care since separation and the evidence supports they are doing well and in a stable home environment, with grandparents who have been a strong support. Her plan is to remain at her parents' home until her financial circumstances will support getting her own home.

[90] While I have found that Mr. Hemani's behaviour has been at times inappropriate and not child focused, I do accept that he has a deep love for his children and wants to be more active in their lives. While I have no evidence of views and preferences of the children, I accept that the children have a strong and loving bond with both parents.

[91] The current status quo of Mr. Hemani's access to the children under the interim order is not adequate in the circumstances and the children need to spend more time with him including regular overnights.

[92] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the children. Having considered all the factors outlined herein, and in s.24(2) of the CLRA, the best interests of the children support an order for sole custody to Ms. Clare-Hemani with regular, structured, and overnight access to Mr. Hemani.

Child Support

Legal Framework

[93] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[94] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Section 19 of the Child Support Guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate" and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

[95] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. Drygala v. Pauli.

[96] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?

3. If not, what income is appropriately imputed?

[97] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[98] Under the first question in Drygala the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322.

[99] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano.

[100] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins, at paragraph 19.

[101] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi.

[102] Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245; Charron v. Carriere, 2016 ONSC 4719. Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. Smith v. Smith, 2012 ONSC 1116.

[103] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor's previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah; Weir v. Therrien; Vitagliano v. Di Stavolo; Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.

[104] If there is no reasonable excuse for the payor's under-employment, the third question in Drygala requires the court to determine what income should properly be imputed in the circumstances. The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. Lawson v. Lawson.

[105] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood.

Evidence and Analysis

[106] The annual incomes of the parties are as follows:

Year	Mr. Hemani	Ms. Clare-Hemani
2012	$108,124	$31,106
2013	$106,058	$24,188
2014	$106,377	$32,079
2015	$78,163	$43,846
2016	$24,000	$24,375
2017 (projected)	$24,000	$24,000

[107] Prior to the separation Mr. Hemani worked for Christie earning in excess of $100,000 per year. The circumstances surrounding his departure were outlined in a letter to Mr. Hemani from his employer dated November 27, 2014 (exhibit 2). It outlined, among other things, that his last day of work was December 31, 2014, and that as part of the severance package his salary would continue until September 18, 2015 (calculated on his annual base salary rate of $92,415.96).

[108] However, Mr. Hemani admitted in his testimony that he was in fact given an option when Christie restructured to take a position in another department, rather than accepting the severance package. He admitted in cross-examination that he would likely have remained in the same salary range in another position at Christie, but that he never inquired what the options might be because it was not what he wanted. He was and remains adamant about wanting to work on his own startup company.

[109] After December 31, 2014 he attempted his own startup called Axiom which produced no income and has since been abandoned. Since July 1, 2016 he has worked for his father's company (Exponet), as the VP of business development. His father started the business 3 ½ years ago and it is an e-commerce business which sells furnace filters and air purifiers online. He remains on a gross salary of $2000 per month.

[110] He acknowledged in cross examination someone with his education and experience could earn $75,000 a year.

[111] As part of the case management in this matter Hardman J. made an order on March 22, 2016 which required, among other terms, that Mr. Hemani provide details on or before May 27, 2016 of his job search. The details of Mr. Hemani's job search as required by that order were filed as Exhibit 7. It is comprised of a list of several hundred jobs he considered before the end of May 2016. However, it is clear that in spite of the lengthy list he only applied for a total of 5 jobs in 2015 (for which he had two interviews) and 5 jobs in 2016 (all of which were in May 2016 right before the filing deadline for his job search efforts).

[112] There was no evidence of any other effort since May 2016 to find employment in spite of his continuing to earn the equivalent of minimum wage working for his father. Mr. Hemani confirmed that he has not applied for any jobs since starting at Exponet on July 1, 2016.

[113] In response to questioning by Ms. Ruoso of why his job search was so limited and why he felt it was reasonable that someone with his education and experience was only earning the equivalent of minimum wage when he has two young children to support, he stated unequivocally that he was not prepared to do a job that he was not passionate about. He also did not want a job as a developer. Rather, he wanted to pursue a startup business. He indicated he would continue working for Exponet until the end of 2018 before he would consider seeking employment again.

[114] There is no doubt on the evidence before me that Mr. Hemani is intentionally underemployed. The fundamental obligation of a parent to support his or her children takes precedence over the parents' own interests and choices.

[115] Mr. Hemani has made minimal and halfhearted efforts to find employment and admits he has not applied for work outside his father's business since May 2016, and states he has no intention of doing so until after December 2018, in order to give Exponet every chance to succeed.

[116] He also admits not pursuing the offer of other options available at Christie at the time of the restructuring which likely would have resulted in a similar salary because he did not feel inspired. He has also chosen not to apply for jobs as a developer, for which he is very qualified, for the same reason.

[117] Mr. Hemani has failed to establish that his choices to pursue self-employment and to work for his father are reasonable in the circumstances. To justify his underemployment, which has resulted in a significant reduction in his pay, Mr. Hemani is required to justify his choices in a reasoned, practical and compelling way. He has failed to do so.

[118] He has chosen to work for his father's company and there was a conspicuous absence of evidence about the viability and prospects of this non-arm's length venture he has committed himself to. He only stated that a review of his salary in January 2017 did not result in a raise. He continues to earn the equivalent of minimum wage.

[119] A parent is required to act reasonably when making financial decisions that may affect the level of child support available from that parent, and will not be permitted to knowingly avoid or diminish the obligation to support their children. A parent will not be excused from their child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Mr. Hemani's current state of under employment is the result of a series of voluntary choices on his part and he has failed to establish the reasonableness of those choices.

[120] In all the circumstances it is appropriate to impute income in this case. I accept Mr. Hemani's evidence that someone with his considerable education and experience could be expected to earn $75,000 annually.

[121] Following separation the parties had a joint account for expenses up until April, 2016 when that account was closed. Mr. Hemani acknowledged paying no other child support until the order of Caspers J. of June 22, 2016 which ordered interim without prejudice child-support of $358 per month commencing July 1, 2016 (based on income of $23,920).

[122] Mr. Hemani has also acknowledged making no contributions to any s. 7 expenses for the children. Ms. Clare-Hemani gave evidence that she incurred significant expenses related to preschool, and dental work for Armaan. However she took the position, quite generously in the circumstances, to only seek section 7 contributions on a go forward basis.

[123] Ms. Clare-Hemani seeks a commencement date of April 1, 2016 for child support and in the circumstances this is appropriate. Mr. Hemani shall pay child support commencing April 1, 2016 of $1105 per month on an imputed annual income of $75,000, and section 7 expenses on a go forward basis shall be split 75% to Mr. Hemani and 25% to Ms. Clare-Hemani for 2017 (based on his imputed income of $75,000 and her projected income of $24,000).

[124] This order will result in arrears of child support from April 1, 2016 to March 31, 2017 of $10,038, which is $13,260 (12 months at $1105 per month) minus payments made under the interim order of $3222 (nine months at $358).

Final Order

[125] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Sole custody of the children to Ms. Clare-Hemani.

2. Ms. Clare-Hemani shall consult with Mr. Hemani concerning major decisions affecting the children's health, welfare and education.

3. Ms. Clare-Hemani shall not change the religion of the children from the Shia Imani Ismaili Muslim faith.

4. Mr. Hemani shall have the right of independent access to all third parties involved with the children's health, welfare and education.

5. Mr. Hemani shall be listed with the children's school as an alternate contact.

6. During each party's periods of care and control of the children they shall be at liberty to practice their religious faith with the children as they each deem appropriate.

7. Access by Mr. Hemani to the children shall include the following:

a. alternate weekends from Friday's 5 PM to Sunday at 5 PM extended to Mondays at 5 PM if Monday is a school holiday (save and except for the first two weekend visits which shall be one overnight only on Saturday night);

b. each Thursday from after school to 7:30 PM, which is to be extended to 9:00 PM if the following day is not a school day for the children;

c. equal sharing of the school breaks in December and March;

d. each party to have two one-week periods of uninterrupted time with the children during the summer holidays. Mr. Hemani to advise by May 1 of each year which weeks he is choosing with Ms. Clare-Hemani to advise by June 1 of each year;

e. such further and other times as agreed between the parties, including special occasions for religious observances.

8. Mr. Hemani is responsible for pickup and drop off of the children at Ms. Clare-Hemani's home;

9. Unless otherwise agreed in writing by the parties Mr. Hemani shall only attend at Ms. Clare-Hemani's home for scheduled pickups and drop offs, and shall remain in his vehicle on the road in front of the home;

10. The parties shall not communicate with each other during access exchanges or otherwise in the presence of the children.

11. Unless otherwise agreed the parties shall communicate via text message and/or email concerning any issues related to the children, unless in the case of an emergency when the parties shall immediately contact each other by phone.

12. Child support payable by the applicant to the respondent for the two children in the amount of $1,105.00 per month based on an imputed annual income of $75,000 commencing on April 1, 2017 and monthly thereafter.

13. Arrears in child support from April 1, 2016 to March 31, 2017 shall be fixed in the amount of $10,038.00 payable within 30 days, unless otherwise agreed in writing.

14. Section 7 expenses for the children not covered by benefits available to either party shall be paid proportionately by the parties with Mr. Hemani paying 75% and Ms. Clare-Hemani paying 25% (based on Mr. Hemani's income of $75,000 and Ms. Clare-Hemani's income of $24,000).

15. Unless otherwise agreed between the parties in writing, both parties shall be permitted to travel with the children for the purpose of a holiday, not to exceed seven days, provided that the time away falls entirely within that parent's periods of care and control of the children as outlined herein.

16. The travelling parent shall provide a minimum of 30 days written notice of travel plans including detailed itinerary and contact information.

If the parties are not able to agree on the issue of costs then written submissions, not to exceed three pages, may be filed by the respondent by May 4, 2017 and by the applicant by May 17, 2017.

Released: April 21, 2017

Signed: "Justice S.E.J. Paull"