ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 31925-09 (Milton)
DATE: 2012 03 22

B E T W E E N:

KAREN ATKINSON

Karen Atkinson, on her own behalf

Applicant

• and -

AMER AHMED

No one appearing on behalf of the respondent

Respondent

HEARD: March 22, 2012.

REASONS FOR JUDGMENT

K. van Rensburg J.

[ 1 ] The issues for trial are access and child support.

[ 2 ] The respondent Amer Ahmed was notified through his former counsel Mr. Jones that the trial, which had been scheduled to proceed today in Milton, had been moved to Brampton. Mr. Ahmed was paged this morning in court, and a message was left on his cell phone confirming that the trial would proceed at noon today, with or without his presence. No communication was received from Mr. Ahmed and the trial proceeded on an uncontested basis.

[ 3 ] The applicant Karen Atkinson and Andrea Barclay, the clinical investigator for the Office of the Children’s Lawyer (the “OCL”), testified at trial. Ms Barclay’s report of January 9, 2012 had been filed and was part of the continuing record. Other documents were filed as exhibits and are referred to below.

[ 4 ] For the reasons that follow, a final order shall go in the terms provided herein.

[ 5 ] Ms Atkinson and Mr. Ahmed married in August 2003, having lived together since 2001. They have one child, Madeline Atkinson Ahmed, who was born June 10, 2006. The parties separated in August 2009, and are now divorced.

[ 6 ] A problem that has existed since before separation and apparently after separation is Mr. Ahmed’s alcohol abuse. He has had two convictions for impaired driving, once occurring during the marriage. He was at Homewood for rehabilitation for about two months in 2009. After his release, his alcohol problem escalated. From statements he made to the OCL investigator after separation Mr. Ahmed’s living situation was unstable. He claimed to be sleeping on friends’ couches and was even on the street.

[ 7 ] Madeline has lived with her mother since separation in the matrimonial home. Initially Mr. Ahmed was afforded access every evening in the home. For a period of 153 days post-separation he had no contact with his daughter. An order was made June 30, 2010 on consent, and at a time when both parties were represented by counsel, providing for supervised access in Oakville every Tuesday from 7:00 to 9:00 p.m. and every other Sunday from 9:00 a.m. to 1:00 p.m. Access was to be supervised by Mr. Ahmed’s niece Karina Shafiq, Karen Atkinson or Cheryl Atkinson.

[ 8 ] According to the mother’s records, Mr. Ahmed only exercised access 39% of the days he was permitted from June 30, 2010 to September 23, 2010.

[ 9 ] Access was changed on consent at Mr. Ahmed’s request pursuant to a consent order dated September 24, 2010. Again both parties had counsel. The main change was that Tuesday evening supervised access was from 6:00 to 8:00. Between the date of the order and April 2011, Mr. Ahmed did not exercise access on 74% of his scheduled visits.

[ 10 ] Pursuant to the consent order of May 13, 2011 of Coats J., with Mr. Ahmed represented by counsel and Ms Atkinson by duty counsel, the parties resolved most issues on a final basis. The order provided for access on an interim basis to continue in accordance with the September 24, 2010 consent order

[ 11 ] On February 15, 2012 Ricchetti J. granted an order varying access so that the father would have access to Madeline each Sunday for a three hour period at the Halton Supervised Access Centre to be arranged by him. This was to continue until further order of the court and without prejudice to the issues to be decided at trial. Ms Atkinson was self-represented at the motion and Mr. Ahmed had counsel. Ricchetti J. noted that the variation was in accordance with the recommendations contained in the OCL report which noted serious concerns about the existing access arrangements.

[ 12 ] Between the date of the order and March 20, 2012, Mr. Ahmed visited with Madeline only once, when he asked to accompany Ms Atkinson and Madeline when they went to see a movie on March 4. There have been no telephone calls or visits since that time.

[ 13 ] It is apparent that there have been many gaps in Mr. Ahmed’s access, frequently a month or more between access visits. The most significant concern is that Mr. Ahmed has not been regular with his access, frequently making promises that he has not kept to see Madeline, or to bring her something or to speak with her. This leads to disappointment and uncertainty.

[ 14 ] Ms Atkinson is aware of the importance of the father-daughter relationship and has made efforts and is continuing to make efforts to support Mr. Ahmed’s contact with Madeline and their healthy interaction. Unfortunately Mr. Ahmed seems to put his own interests before those of his daughter, visiting with Madeline when it suits him. He does not seem to appreciate the importance of regularity, predictability and consistency in building and maintaining a relationship with Madeline.

[ 15 ] Andrea Barclay, the clinical investigator engaged by the OCL conducted an investigation and prepared a report in this matter dated January 9, 2012. Ms. Barclay interviewed and met with the parties and the child as well as the paternal grandmother, Rashida Staring and respondent’s niece, Karina Shafiq, and daycare workers and the family doctor. She also reviewed police and Homewood reports. She observed an access visit in which Mr. Ahmed participated, and his mother attended, as well as Madeline’s interactions with her mother in the home.

[ 16 ] The clinical investigator made a number of observations. Mr. Ahmed is struggling with addiction issues which he refuses to take seriously. His inability to be consistent in his contact with and access to Madeline has negatively impacted her and he lacks insight into this problem. Mr. Ahmed blames others for his situation and takes limited responsibility for his actions. While he loves his daughter he remains more focused on his own needs than on hers. There are serious concerns regarding Mr. Ahmed’s ability to follow through with access due to the difficulties and instabilities he is experiencing in his life.

[ 17 ] Ms Barclay, in her report and in her evidence at trial, noted that Madeline would benefit from a relationship with both parents, and that Mr. Ahmed should be given an opportunity to develop a positive relationship with his daughter. Supervised access is warranted, however the paternal grandmother is not suitable in this role and Mr. Ahmed’s niece is unwilling. In fact, Mr. Ahmed himself requested that access take place at the Halton Supervised Access Centre, if supervised access was warranted.

[ 18 ] Ms Barclay recommended that the father have supervised day access at a supervised access centre alternate Sundays for two hours. The reduction in the number of hours from the previous consent orders was warranted because Mr. Ahmed had not been exercising regular access and he seemed to have difficulty managing a longer visit. A shorter two hour visit could improve the consistency of the visits and their quality.

[ 19 ] The report also recommended a Christmas visit with review of access in a year. The investigator recommended telephone access twice a week on regular and specific days. Ms Barclay also recommended a play therapist for the child and a mental health assessment for the father as well as attendance at a parenting group.

[ 20 ] Ms Barclay provided information about parenting education programs available through the City of Toronto and the Metro Addiction Assessment Referral Service (exhibits 3 and 4 at trial). She was and remains prepared to assist Mr. Ahmed with accessing these services.

[ 21 ] Ms Barclay expressed the view that it would be helpful to reinforce Madeline’s relationship with Mr. Ahmed’s extended family. His niece was prepared to host a visit last December 27 but was not prepared to commit to future visits. Mr. Ahmed did not get back to Ms Barclay with any further suggestions.

[ 22 ] Ms Atkinson supported the recommendations of the OCL investigator, and confirmed in her evidence the accuracy of the underlying observations, as well as the history recounted by the investigator.

[ 23 ] I am satisfied, considering all of the evidence, that the order sought by the applicant should be made, on a final basis. That is, subject to any further order of the court, the respondent will have supervised access alternative Sundays for two hours at the Halton Supervised Access Centre. The access visits are to be arranged by the respondent. Mr. Ahmed will have telephone access with Madeline at a regular, scheduled time twice each week, to be arranged with the applicant. Any other access will be at the discretion of the applicant mother. Mr. Ahmed is encouraged to follow the recommendations of the OCL investigator in respect of attending a parenting group and obtaining a mental health assessment. After exercising regular supervised access at the access centre for at least one year, Mr. Ahmed may move before the court to increase or vary the terms of access, at which time an updated OCL report would be warranted.

[ 24 ] These access arrangements are in the best interests of Madeleine, for the purpose of fostering a strong relationship with her father. There is no question that they will require commitment and diligence on Mr. Ahmed’s part.

Child Support

[ 25 ] The consent order of September 2010 provided for the payment of child support by the respondent to the applicant in the amount of $325 per month based on imputed income of $35,000 per year.

[ 26 ] The consent order of May 2011 required the respondent to provide proof of his annual and monthly income to the applicant prior to October 1, 2011, and required him to pay child support calculated in accordance with the Child Support Guidelines. Section 7 expenses were to be shared in proportion to income, with the respondent’s annual income imputed to $50,000 and the applicant’s income at $61,700.

[ 27 ] Mr. Ahmed is a licensed and self-employed electrician with 30 years experience. According to his 2009 financial statement he earned $600 per month, of which he spent $400 on alcohol and tobacco. Mr. Ahmed was required to file an updated financial statement before trial but he did not do so. Mr. Ahmed has not complied with the obligations to provide disclosure of his income contained in the May 2011 consent order.

[ 28 ] The applicant provided evidence at trial (exhibit 1) of the wage rates for electricians in Toronto working on federal government construction contracts according to Human Resources and Skills Development Canada, from the Electrical Contractors Association of Ontario and from Payscale Canada, a website for comparing rates of pay for various positions. I am satisfied, based on the information provided, Mr. Ahmed’s experience and qualifications, and the fact that there is no medical or other evidence to suggest that he is unable to make a living as an electrician, that Mr. Ahmed is capable of earning $50,000 per year, and that accordingly such income should be imputed to him for the purpose of child support. Mr. Ahmed shall pay on the first day of each month child support of $450, which is the current Guideline amount for his imputed annual income of $50,000. He owes $2,736 in arrears, having paid no support the past six months.

[ 29 ] The consent order provided for section 7 expenses to be shared in proportion to the parties’ income. This provision of the order was final and there is no basis to change its provisions at this time. Mr. Ahmed owes section 7 arrears of $266.04. SDO with respect to support and section 7 expenses shall issue.

[ 30 ] Finally, Ms. Atkinson is entitled to her reasonable costs which, after considering her missed days of work and her out-of-pocket expenses for faxes and a summons to witness, as well as the costs of the OCL’s attendance, I fix at $1500.

K. van Rensburg J.

Released: March 22, 2012

COURT FILE NO.: 31925-09 (Milton)
DATE: 2012 03 22

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KAREN ATKINSON Applicant - and - AMERE AHMED Respondent REASONS FOR JUDGMENT K. van Rensburg J.

Released: March 22, 2012