ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 32029/09
DATE: 20120426
BETWEEN:
Zohra Imam Applicant – and – Mohammad Azam Respondent
F. Rashid, for the Applicant
Self-represented
HEARD: April 10 - 18, 2012
MILLER, J.
[ 1 ] Zohra Imam and Mohammad Azam were married January 20, 2004. They have three children; Anas Azam born November 10, 2004; Fatima Azam Tanoli born November 13, 2006 and Imad Azam Tanoli born January 13, 2008.
[ 2 ] In her application Ms Imam seeks a divorce; sole custody of all three children; an order for the apprehension and return of Fatima; an order for the non-removal of the children by Mr. Azam from Peel Region; an order that Mr. Azam turn over any passports and other identification documents of the children; access for Mr. Azam at Ms Imam’s discretion; child support; spousal support and unequal division of net family property.
[ 3 ] At the outset of trial, counsel for Ms Imam indicated that Ms Imam was no longer seeking the return of Fatima and that rather than unequal division she is seeking equalization of net family property.
[ 4 ] The orders sought by Ms Imam are a divorce; sole custody of Anas and Imad to Ms Imam; access of Anas and Imad to Mr. Azam three weekends per month from Fridays at 6:00 p.m. to Sundays at 7:00 p.m.; further access and holiday access to Mr. Azam as agreed upon between the parties; a restriction on Mr. Azam’s removal of the children from Ontario except with Ms Imam’s written consent or a court order; Ms Imam to retain the passports of the children at all times and Mr. Azam’s signature be dispensed with on the children’s passport applications; child support from November 1, 2009 at $601 per month based on an income imputed to Mr. Azam of $40,000 annually - retroactive support to be fixed at $17,429 to March 2012; ongoing child support at $601 per month based on an income imputed to Mr. Azam of $40,000 annually commencing April 1, 2009; equalization with a payment to Ms Imam of $63,404.99; payout of all funds currently held in trust to Ms Imam as partial payment of child support and equalization owing.
[ 5 ] While testifying, Ms Imam indicated she would prefer that Mr. Azam have the children only two weekends out of four and that she would be agreeable to the children spending time with each parent during summer holidays on a two week about schedule.
[ 6 ] The orders sought by Mr. Azam are a divorce; sole custody of Ana, Fatima and Imad to Mr. Azam; access of Anas and Imad to Ms Imam at Mr. Azam’s discretion; that Mr. Azam may remove the children from Ontario without Ms Imam’s consent; Ms Imam to provide to Mr. Azam with the passports of the children and any other identification records and that Ms Imam’s signature be dispensed with on all documentation including the children’s passport applications; Ms Imam to pay child support based on the Federal Child Support Guidelines ; and equalization.
[ 7 ] The date of separation, which is not disputed, is October 9, 2009.
Background
[ 8 ] Prior to the marriage Ms Imam was a permanent resident of Canada, having immigrated in 2002. She returned to Pakistan to marry Mr. Azam in January 2004 returning to Canada in May 2004. She was at that time pregnant with Anas.
[ 9 ] Ms Imam sponsored Mr. Azam who arrived in Canada for the first time in May 2005. He returned to Pakistan in September 2005 to write his North American medical exams and to continue his medical practice there. Ms Imam remained in Canada with Anas.
[ 10 ] November 18, 2005 Ms Imam was the passenger in a motor vehicle being driven by her brother, Syed Amir Imam, when it was involved in a collision with another vehicle. After the accident Ms Imam told her brother she was not feeling well and was short of breath. She then collapsed. Mr. Imam described asking a passerby for assistance. That person called for an ambulance then commenced performing CPR on Ms Imam who was unconscious.
[ 11 ] Mr. Imam described the ambulance arriving within five minutes, taking Ms Imam to the Brampton hospital where she remained unconscious for a week. She regained consciousness when she moved to St Michael’s hospital in Toronto. Ms Imam remained at St. Michael’s for a couple of weeks then was moved to the Toronto Rehabilitation Centre.
[ 12 ] Dr. Mark Bayley began treating Ms Imam at the Toronto Rehabilitation Centre January 4, 2006. She was discharged from that facility February 15, 2006. Dr. Bayley is medical doctor with a specialty in physiatry. Dr. Bayley described Ms Imam as suffering from an anoxic brain injury due to her heart failing to pump adequately following the traffic accident. Dr. Bayley continued and continues to see Ms Imam.
[ 13 ] Mr. Azam returned to Canada November 25, 2005. Upon Ms Imam’s release from the Toronto Rehabilitation Centre he lived with her and Anas at the home of her family in Brampton. After a dispute with Ms Imam’s brother in October 2006 Mr. Azam moved out of the family home with Ms Imam and Anas, going first to a hotel then moving into a basement apartment in Mississauga.
[ 14 ] Once the parties moved out of the Imam family home Mr. Azam began receiving approximately $5,300 per month from the insurance company for attendant care and housekeeping for Ms Imam. While at her family’s home. Ms Imam began receiving in home rehabilitation care from a team comprised of a rehabilitation support worker, a speech therapist, a physiotherapist, an occupational therapist and a case worker. The team continued to work with Ms Imam when she was in Canada at various residences up until October 2009. As Ms Imam improved the speech therapist and physiotherapist no longer worked with her.
[ 15 ] Fatima was born November 13, 2006. When Fatima was two months old the parties travelled with her and Anas to Pakistan. When the parties returned Fatima was left with Mr. Azam’s sister in Pakistan who later legally adopted her.
[ 16 ] Ms Imam testified that she could not really remember how it came about that Fatima was left in Pakistan but she was very unhappy about it. This is confirmed by other witnesses who testified that Ms Imam was very unhappy that her daughter was in Pakistan and was growing up without knowing her.
[ 17 ] Mr. Azam testified that his sister offered to help them out by taking care of Fatima because Ms Imam was having difficulty looking after herself let alone two young children. He testified that they both agreed to leave Fatima in Pakistan with his sister.
[ 18 ] The parties travelled again to Pakistan March 27, 2007 returning to Canada May 4, 2007.
[ 19 ] In this time period, Ms Imam became pregnant with Imad, who was born January 9, 2008.
[ 20 ] The parties travelled again to Pakistan February 25, 2008 after Imad was born. Mr. Azam returned to Canada March 30, 2008. Ms Imam returned a few weeks later with the children. Ms Imam testified that Mr. Azam had instructed her to leave Imad in Pakistan and when she argued with him about it he struck her across the face resulting in a swollen lip. She nonetheless brought both children back to Canada. Ms Imam did not visit Pakistan again after this.
[ 21 ] Mr. Azam testified that while they had discussed leaving Imad in Pakistan he did not instruct Ms Imam to do this.
[ 22 ] In May 2008 Ms Imam left Mr. Azam to go to live with her family in Brampton, taking both children with her. During this period Mr. Azam visited the children at the Imam home and also took Anas with him on weekends. On one of these occasions Mr. Azam did not return with Anas.
[ 23 ] Ms Imam testified that she found out, while speaking to family in Pakistan over the telephone, that Anas was in Pakistan. Mr. Azam admits that he took Anas to Pakistan but testified that he did so with Ms Imam’s permission. Mr. Azam’s passport shows that he went to Pakistan June 25, 2008 and returned to Canada July 8, 2008. He did not bring Anas back with him.
[ 24 ] Ms Imam testified that she contacted police but was told that because there was no court order there was nothing they could do about the fact that Mr. Azam had taken Anas to Pakistan and left him there. Ms Imam testified that Mr. Azam told her that if she did not come back to live with him he would not bring Anas back from Pakistan. Ms Imam testified that she chose to go back with Mr. Azam because she was afraid of losing Anas as she had Fatima. Ms Imam testified that her family was not happy with her decision to return to Mr. Azam and told her if there were problems she should not expect help from them.
[ 25 ] On October 1, 2008 Mr. Azam travelled to Pakistan and came back to Canada with Anas October 10, 2008.
... (continues verbatim)
MILLER, J.
Released: April 26, 2012
Imam v. Azam, 2012 ONSC 2544
COURT FILE NO.: 32029/09
DATE: 20120426
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Zohra Imam Applicant – and – Mohammad Azam Respondent REASONS FOR JUDGMENT MILLER, J.
Released: April 26, 2012