COURT FILE NO.: FS-10-00364428

DATE: 2012/03/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAZIN SHEIKH, Applicant

AND:

TAZEEN SHAHID, Respondent

BEFORE: PENNY J.

COUNSEL: Lorne Fine for the Applicant
M. Lubek for the Respondent

HEARD: March 15, 2012

ENDORSEMENT

[ 1 ] This is a motion for an order prohibiting the respondent from removing the child of the marriage from the greater Toronto area without the written consent of the applicant and an order specifying the terms of pickup and drop-off of the child to facilitate the applicant’s access.

[ 2 ] The parties were married in March, 2009. They were living in Ottawa. After a visit to Toronto in June 2009, the respondent did not return to Ottawa and they have been separated ever since. The respondent was pregnant at the time. There is one child of the marriage (Noor) born December 11, 2009.

[ 3 ] This application was issued on November 24, 2010.

[ 4 ] All matrimonial issues between the parties were settled by minutes of settlement approved by the March 16, 2011 Order of Sachs J. Under that Order, the respondent was granted sole custody of the child. The applicant was required to pay the respondent child support in the amount of $348 monthly based on an annual income of $37,532 and to provide updated income disclosure each year.

[ 5 ] The Order provides that the child's name shall be Noor Huda Shahid Sheikh.

[ 6 ] Paragraph 12 of the Order deals with access and provides:

On an interim, without prejudice basis, the applicant shall have access to the child as follows on the last weekend of every month:

(i) 4 hours per day, unsupervised until the age of 18 months;

(ii) 8 hours per day, unsupervised until age of 24 months;

(iii) overnight visits from Friday 9 pm to Sunday 8 pm until the age of 36 months;

(iv) Any other access as may be agreed between the parties.

[ 7 ] The Order also requires the respondent to provide 30 days’ notice to the applicant of any travel plans and to provide contact and travel information.

[ 8 ] The parties were divorced on July 9, 2011.

The Proposed Trip to Dubai

[ 9 ] The respondent appears to have obtained a Canadian passport issued to “Noor Huda” on January 26, 2010. It is not clear how this passport was obtained without the father’s consent.

[ 10 ] After the March 16, 2011 Order the child's name was changed and the respondent applied for a new passport in the new name. She was advised by the passport clerk that the child's father must provide a signed form and two pieces of identification.

[ 11 ] As a result, in December 2011 the applicant was advised of the passport application. He inquired about the purpose of the passport and it was, at that time, that the applicant was advised that the respondent planned to take the child on a trip to Dubai in the United Arab Emirates in January/February of 2012. This information prompted the present motion for an order restraining the respondent from taking the child out of Canada.

[ 12 ] As a result of this motion, the respondent did not proceed with her plan to travel to Dubai in January/February 2010. As I understand, she has no immediate or concrete plans to travel to Dubai at present but would like to have the right to do so.

[ 13 ] In his original November 2010 divorce application, the applicant sought a non-removal order. He alleged that the respondent threatened to see that he never had any relationship with his daughter and to take their daughter to Dubai, UAE to live there with her father.

[ 14 ] These allegations were denied. The respondent’s answer called the threats to take the child to Dubai a “fabrication,” stating that they “were never made.” The respondent also said that she had no interest in leaving Ontario where she has family.

[ 15 ] The March 16, 2011 Order contains no non-removal provision. As noted above, the Order simply requires the respondent to provide 30 days’ notice to the applicant of any travel plans and to provide contact and travel information.

[ 16 ] The applicant makes a number of allegations in support of his argument that the respondent may not return to Ontario with the child if she is permitted to travel to Dubai:

(1) the respondent’s father and some extended family reside in Dubai;

(2) the respondent was born and raised in Dubai;

(3) the respondent completed her early education in Dubai and is fluent in the language;

(4) the respondent’s father has a successful business in Dubai;

(5) the respondent does not have any significant assets in Ontario;

(6) the respondent has no significant employment in Ontario;

(7) the respondent does not have an enduring attachment to this jurisdiction;

(8) the respondent was previously married in Dubai;

(9) the respondent previously threatened to move to Dubai with the child;

(10) the applicant’s rights of access have been increasing in accordance with the March 16, 2011 Order. There have been significant conflicts associated with the applicant’s access to the child and the respondent has sought to minimize his access; and

(11) the UAE is not a signatory to the Hague Convention On The Civil Aspects Of International Child Abduction .

[ 17 ] The respondent denies that any threats were made to remove the child to Dubai. In any event, she argues that this issue was raised in the original application and was, in effect, dealt with by the March 16, 2011 Order. She has sole custody. The applicant has the right to notice, and an itinerary, of any travel plans.

[ 18 ] The respondent denies that she is the cause of any conflict around access. She maintains that the hostility and animosity the parties experience is the result of the applicant's conduct and behavior, not hers. She says she has tried to facilitate access.

[ 19 ] The respondent also denies that she lacks significant connection to Ontario. She has lived in North America continuously since 1997. She has not lived in Dubai for almost 15 years. Although she was married in Dubai at one time, she and her first husband did not live there. They lived in San Francisco, California. She returned to Toronto to live with her family after her first divorce. Her immediate family, except for her father, live together in Scarborough; she lives there with her mother and three siblings. Her father comes to Toronto to stay with his family in the summer.

[ 20 ] Although she lacks substantial assets in Ontario, the respondent makes the point that she has no substantial assets of any kind anywhere. She does have part time work in Ontario at her local mosque. All of her postsecondary school education was completed at the University of Toronto.

[ 21 ] She says she wanted to travel to Dubai for three weeks so that her child could meet the extended family there.

[ 22 ] In the absence of a specific plan and notice, etc., regarding travel to Dubai, the applicant and respondent are, in effect, asking the court to make a blanket, or generic, ruling on whether the respondent has the right to remove the child from the jurisdiction for travel purposes. In my opinion, it is not appropriate for the court to do so. Nor would such a ruling be consistent with the terms of the March 16, 2011 Order.

[ 23 ] The specific terms and conditions of any trip to Dubai are highly relevant to the questions posed on this motion. The timing and duration of the trip, the details of the visa, the existence of return airplane tickets, the itinerary and local contact information and similar details are not presently before the court.

[ 24 ] As well, circumstances can change. A trip to Dubai six months or a year from now might present an entirely different set of circumstances and considerations than existed in December 2011 or, for that matter, than exist today.

[ 25 ] Accordingly, I decline to make an order prohibiting the respondent from taking the child to Dubai. By the same token, I decline to make an order permitting the respondent to take the child to Dubai. The status quo remains in place under the March 16, 2011 Order. The provisions of the December 20, 2011 Order of Kiteley J. concerning retention of the passport in trust by counsel for the respondent, shall also remain in force.

[ 26 ] The provisions of paragraph 13 of the Order have proven to be unworkable in the context of the more complicated travel plans to a non-Hague Convention destination like Dubai. Accordingly, in light of what has happened, the respondent shall provide 90 days notice to the applicant of any plan to travel to Dubai.

[ 27 ] I would expect, in the event that the applicant opposes a new Dubai travel plan, the evidence before the court on any future motion would include details such as (but not limited to) the following:

(a) the need and reasons for the trip;

(b) copies of return airplane tickets;

(c) a detailed itinerary with contact information regarding hotels, relatives being visited, etc.;

(d) a copy of the visa and all terms and conditions associated with the visa;

(e) whether monetary security is appropriate and, if so, in what amount, to ensure the child's timely return;

(f) other information relevant to the ability of an Ontario resident to seek enforcement of an Ontario court order in Dubai, other than under the Hague Convention; and

(g) information about the ability of the Canadian Embassy in Dubai to provide assistance regarding the child's return from Dubai to Toronto.

The Location of Pickup and Drop Off for the Applicant’s Access

[ 28 ] Under the terms of the Order, since December 11, 2011 the applicant has had the right to overnight access from Friday at 9 p.m. to Sunday at 8 p.m. on the last weekend of every month.

[ 29 ] To date, the applicant has exercised his rights of access in the Toronto area at the home of relatives. This has required him to drive four hours to Toronto and four hours back to Ottawa. Now that he is entitled to access for the full weekend, he wishes to take the child home to Ottawa.

[ 30 ] The applicant, therefore, proposes a more equitable sharing of the travel required to exercise his right of access. He proposes that the exchange take place in Kingston, roughly halfway between Toronto and Ottawa. This would require the respondent to drive the child to Kingston on Friday evening and pick her up on Sunday evening.

[ 31 ] Both parties have valid driver’s licenses and vehicles.

[ 32 ] The respondent says it is too great an imposition on her to have to drive the child to Kingston. She also says that the child ought not to spend that long in the car and that it would be “disruptive” for the child. The respondent says the applicant should exercise his right of access for the weekend in Toronto.

[ 33 ] In my view, there is much to be said for the applicant’s position. His home and job are in Ottawa. That is where the parties lived when they were married. The respondent chose to remain in Toronto to live and have her baby after separation. I see no reason in principle why the respondent's choice of which city to live in should devolve onto the applicant all of the associated travel burdens for the exercise of his rights of access. This is particularly true now that he has the child for the entire weekend and wants her to meet his other child, by a prior marriage, and to have “normal” time at home with her father.

[ 34 ] I do not think the respondent's arguments about travel time in the car are persuasive. The applicant is entitled to take the child to Ottawa if he wishes in any event. The issue is whether the entire burden of travel between the two cities should fall on him during his access time.

[ 35 ] In the circumstances, I believe it is in the best interests of the child to facilitate the weekend access agreed to by the parties and ordered by this Court. It is not in the child's best interests that the entire burden of travel time to and from Ottawa should fall on the applicant. I, therefore, order a variation to the March 16, 2011 Order to provide that the exchanges on each access weekend shall take place on or before 9 p.m. Friday and on or before 8 p.m. Sunday in Kingston, Ontario at a mutually agreed location in the immediate vicinity of Highway 401 and Division Street. If a location cannot be agreed, each party shall file a proposed location and brief reasons supporting this location (no more than 10 typed lines of text) and I will chose one or the other. This arrangement shall be in place until the child reaches school age, at which time it may be reassessed.

[ 36 ] There being divided success, I make no order as to costs.

PENNY J.

Date: March 19, 2012