SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-11-3163-00
DATE: 20120315
RE: Tarek El Said Abdou Sabry v. Barbara Monique Loeff
BEFORE: Fragomeni J.
COUNSEL:
Vanassa Richards-Thompson, for the Applicant
Jennifer Gold, for the Respondent
E N D O R S E M E N T
[ 1 ] Temporary Order to issue as follows:
That the Respondent mother, Barbara Loeff, shall have sole custody of the child, Dahlia Tarek El Saieed Sabry born November 29, 2009;
The Applicant father, Tarek El Said Abdou Sabry, shall have access to the child as follows:
(a) Every Tuesday and Thursday from 8:00 a.m. to 1:00 p.m;
(b) One evening on either Monday, Wednesday or Friday from 4:00 p.m. to 7:30 p.m. each week;
(c) Saturday or Sunday each week from 10:00 a.m. to 5 p.m.;
(d) The father shall notify the mother his preferred days as per (b) and (c) 10 days in advance;
(e) At any other times as mutually agreed upon by the parties in writing.
The father shall be responsible for picking up and dropping off the child at the mother’s home for his access visits;
That the child support order made on consent on February 3, 2012 shall continue, namely, $680 per month based on an annual income of $75,000.00;
That the father shall pay to the mother his share of the child’s daycare costs fixed in the sum of $661 per month, without prejudice to adjustment upon confirmation of actual amounts being paid as set out in documentary disclosure of same to be provided to the father forthwith;
That the matrimonial home municipally known as 3176 Pebblewood Road, Mississauga, Ontario shall be sold on the following terms:
(a) The parties shall retain a mutually agreed on real estate agent to list the home for sale;
(b) The home will be listed for sale at a price recommended by the real estate agent;
(c) The net proceeds of the sale of the home shall be held in trust by the lawyer having carriage of the real estate transaction, pending agreement or further order of the Court. The parties shall mutually agree on the lawyer to be retained to have carriage of the sale of the home;
(d) In the event that the parties cannot agree on any of the terms relating to the sale of the home that issue may be brought back to Court for directions;
The father shall provide to the mother a key and security code to the matrimonial home so that she may enter the home to inspect the premises prior to sale and to retrieve her personal belongings and any personal belonging of the child;
The parties were granted leave for questioning in the consent order of February 3, 2012, such questioning to be completed by April 20, 2012. That order for questioning shall continue as set out therein;
The February 3, 2012 consent order also set out that any requests for disclosure shall be made by February 29, 2012 and answered by March 30, 2012, and that order for disclosure shall remain in force and continue;
The terms of this order may be re-visited following questioning and the exchange of disclosure;
The parties shall file written submissions on costs within 10 days.
REASONS
[ 2 ] The parties filed lengthy Affidavits in support of their respective positions.
Applicant father - Affidavit sworn February 23, 2012
Respondent mother - Affidavit sworn March 6, 2012
Applicant father - Supplementary Affidavit sworn March 9, 2012
Respondent mother - Affidavit sworn March 12, 2012
[ 3 ] All of these Affidavits contained numerous Exhibits and documentary evidence.
[ 4 ] The Affidavits filed are in conflict in many aspects and none of the Affidavits have been the subject matter of cross-examination. The parties have been granted leave for questioning. Once questioning has been completed and once full financial disclosure has been exchanged the terms of this order may be re-visited. At this time and on the evidentiary record before me I am satisfied that the custody and access order set out herein is in the best interests of the child.
[ 5 ] The father resides in the home by himself and there is no order for exclusive possession of the home. The father, however, has changed the locks and refused entry to the mother to retrieve her personal belongings. The mother has provided to him a list of items she wishes to retrieve.
[ 6 ] There is no reason why the matrimonial home should not be sold. It is also reasonable to permit the mother to have access to the home to see that it is in good condition for sale and to pick up her personal belongings and those of the child.
[ 7 ] The issues surrounding the child and the numerous incidents relating to the child have been set out in the parties’ respective Affidavits in considerable detail. As I indicated the versions of what occurred are in conflict. There is also serious conflict in the Affidavits relating to the father’s role in caring for the child during the marriage and relating to his ability to do so at this time.
[ 8 ] I am satisfied that the mother’s position is reasonable. The father has only been seeing the child each Tuesday and Thursday from 8:00 a.m. to 11:00 a.m. The mother has agreed to increase that access and the order made herein is the increased access proposed by the mother in her Notice of Motion. I am satisfied that the father must have constant and frequent access to this very young child at this time. The issue of more access or overnight access can be dealt with at a later time, again once questioning is completed.
[ 9 ] The plan of care put forward by the mother is reasonable and provides the child with a stable routine. While the mother is at work during the day the child is cared for by a nanny. The mother returned to work on November 10, 2010 and Dora, the nanny, was hired to care for the child.
[ 10 ] On the totality of the evidentiary record before me I am satisfied that this temporary order is in the best interests of the child.
Fragomeni J.
DATE: March 15, 2012