COURT FILE NO.: FC-07-1683

DATE: 2012/11/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER ANNE PHILLIPS

Applicant

– and –

AMR NAZMI HASSAN

Respondent

Debora Scholey, for the Applicant

Self-Represented

HEARD: October 9 and 11, 2012

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

[1] This litigation concerns two main issues. They are: (1) custody of and access to the child Abd El Rahman Amr Hassan (called Emmanuel by his mother, the Applicant, Jennifer Anne Phillips), born […], 2005, and who is now seven years old; and (2) child support.

[2] Ms. Phillips seeks an order granting her final sole custody of her son, Abd (Emmanuel), and also seeks an order that access to Mr. Hassan be supervised at the Ottawa Supervised Access Centre. Ms. Phillips also seeks an order granting her base child support for her son payable by the Respondent, Amr Nazmi Hassan, in accordance with the Federal Child Support Guidelines, S.O.R./97-175, as am. [Guidelines]. Ms. Phillips further requests that the court impute income to Mr. Hassan for the purpose of the application of the Guidelines.

[3] Mr. Hassan contests the application of Ms. Phillips. He seeks an order granting him sole and final custody of Abd (Emmanuel). He also contests Ms. Phillips’ claim to have an income imputed to him by the Court for the purpose of the Guidelines.

PRE-TRIAL MOTIONS

[4] At the commencement of trial both parties presented pre-trial motions for the court’s consideration. Ms. Phillips sought to have Mr. Hassan’s answer struck with respect to the support issues based on the fact that he had not complied with a number of outstanding orders for financial disclosure.

[5] Mr. Hassan brought his own motion to have Ms. Phillips’ pleadings concerning the support issues struck for financial non-disclosure. There was no evidentiary basis for Mr. Hassan’s pre-trial motion and it was dismissed.

[6] An examination of the continuing record established that Mr. Hassan was subject to a number of orders for financial disclosure (see endorsements of November 15, 2007, September 28, 2011 and the endorsement of Robertson J. in September of 2012 found at tab. 5 of the Trial Record) with which he has not complied.

[7] In addition to personal financial disclosure, Mr. Hassan was ordered to provide the corporate financial disclosure for a company AMG Engineering Inc. for the years 2009 to 2011 inclusive as well as copies of bank statements for identified banks accounts. What little evidence does exist with respect to AMG Engineering indicated that Mr. Hassan at certain times was a director and officer of the corporation. Furthermore, limited corporate bank records show a transfer of a large amount of money ($30,000) from that company, displaying Mr. Hassan’s home address, to a certain individual in Egypt. Mr. Hassan has not provided any of these corporate financial records and takes the position that he is no longer a director or officer of the corporation. It was his submission that the company now belongs to another individual and he cannot access the company’s financial records. He has no knowledge of the money transfer of $30,000 on March 3, 2010, from the company bank account to an individual, Amr Nazmi Souliman in, Cairo, Egypt (see exhibit #1 tab 12). Nor does he know who the recipient of the funds is. He has not produced any of his bank statements he was ordered to produce and has not provided any convincing reason why he did not do so.

[8] Based on the above, I was persuaded that Ms. Phillips’ motion to strike Mr. Hassan’s pleadings as they relate to the financial and support issues in this matter had merit. The motion was granted. Mr. Hassan was, nonetheless, permitted to make oral argument on the financial and support issue at the end of the presentation of evidence in this trial.

FACTUAL BACKGROUND

[9] The parties met in June of 2003 through some mutual friends. They began a romantic relationship and as a result Ms. Phillips became pregnant with Abd (Emmanuel). Ms Phillips is also the mother of a 23 year old daughter who has a daughter of her own.

[10] Ms. Phillips testified that when she informed Mr. Hassan that she was pregnant, he ended the relationship. Mr. Hassan’s evidence was that their relationship ended because he found out that Ms. Phillips was married to another individual. Mr. Hassan also testified that he also ended the relationship because he did not believe that the child was his and that Ms. Phillips was trying to trick him. His evidence was that he also made no effort to have contact with his new born son for some months because he needed time to get used to the idea of having a child.

[11] The years following Abd’s (Emmanuel) birth, Mr. Hassan arranged for a number of mail ordered paternity tests to be done to verify that he was indeed the father of the child. The last of such a test was done, according to Ms. Phillips in 2011. Although given the opportunity to do so Mr. Hassan has never incurred the expense of having a laboratory paternity test carried out. Mr. Hassan is not now contesting the paternity of Abd (Emmanuel).

[12] According to the testimony of Ms. Phillips only after Mr. Hassan had conducted his paternity tests did he begin to visit with the child and spend time with them, inviting her and the child to his cottage in Aumond, Quebec where Mr. Hassan now lives. There is no question on the evidence that Ms. Phillips was the primary caregiver of her son for these early years. She saw to all of his infant needs, feeding, bathing and changing his diapers. She saw to all of his medical appointments. She obtained a car baby seat for the child which was an issue between the parties. According to Ms. Phillips the care of the infant was not something Mr. Hassan engaged in at all.

[13] Ms. Phillips testified that even when Ms. Phillips had surgery and radiation treatment after Abd’s (Emmanuel) birth in December of 2005, July 2007 and February or March of 2008, she requested Mr. Hassan to help her with the care of Abd (Emmanuel) and he refused requiring her to call on her regular caregiver to assist her with the care of Abd (Emmanuel). In fact in July, 2007, when Ms. Phillips had breast reduction surgery with which Mr. Hassan did not agree, Mr. Hassan broke off the relationship and stopped coming to see her and his son. Ms. Phillips testified that she had to contact Mr. Hassan so that he would visit Abd (Emmanuel).

[14] In order to support herself Ms. Phillips continued to work from her home and arranged a caregiver for Abd (Emmanuel). Ms. Phillips testified that she does computer programming in her home and also creates and does Costco demonstrations. Ms. Phillips always paid for child care expenses. Mr. Hassan, in his testimony, indicated that he has never paid for child care services for Abd (Emmanuel).

[15] In 2007, Ms. Phillips commenced family law proceedings against Mr. Hassan. On December 14, 2007, Ms. Phillips was granted an interim order of custody of her son with supervised access to Mr. Hassan at the Ottawa Access Centre. Mr. Hassan never exercised any supervised access to Abd (Emmanuel). Mr. Hassan testified that he would never exercise supervised access. Mr. Hassan does not believe he is any risk to his son. At that time Mr. Hassan was also ordered to pay child support based on his imputed income of $45,000 per annum which according to Ms. Phillips he never voluntarily paid.

[16] Mr. Hassan provided evidence that he did provide Ms. Phillips during this period of time with transfers of money for her use and when she requested it of him (see exhibit #4, $625, exhibit #5, $750 and exhibit #6, $1,000). Mr. Hassan denies these were loans as alleged by Ms. Phillips. They were never paid back to him. Furthermore, Mr. Hassan testified that when the couple cohabited for a two year period Mr. Hassan paid for all of the family expenses.

[17] In January, 2008, Ms. Phillips and Mr. Hassan began living together with their son in Mr. Hassan’s home. Ms. Phillips testified that Mr. Hassan invited her and her son to cohabit with him in order to give her a “second chance”. This was not denied by Mr. Hassan. On September 3, 2008, the parties resolved the outstanding court proceedings by entering into Minutes of Settlement, which in essence appears to be a cohabitation agreement (see Exhibit #1 tab 1).

[18] The parties cohabited from January, 2008 until May of 2010. However, once they began to cohabit it did not take long for irreconcilable differences between the couple to surface. This involved disputes from who should be doing what with respect to childcare and house care to whether there should be more fruits and vegetables in the household diet. The couple separated after a physical altercation and the police were called on May 6, 2010. Ms. Phillips took custody of Abd (Emmanuel) once the couple separated and has maintained custody of the child since the separation.

[19] According to the testimony of Ms. Phillips during the parties’ cohabitation it was she who provided all the care for Abd (Emmanuel). She cared, fed and bathed the child on a regular basis. Mr. Hassan did not contest this evidence. Ms. Micheline Diotte was Abd’s (Emmanuel) caregiver. Ms. Diotte cared for Abd (Emmanuel) and also cleaned Ms. Phillips’ and Mr. Hassan’s home. Ms. Diotte testified that she rarely saw Mr. Hassan interact or care for the child.

[20] It was Ms. Phillips who arranged for and transported the child to all his medical appointments, including special speech therapy. Ms. Phillips does not have a driving licence. According to her evidence Mr. Hassan frequently refused to drive her and her son to appointments requiring her to pay for taxis at her own expense. Mr. Hassan did help out in driving the child to his daycare a few days a week but always seemed to be late in doing this so that Abd (Emmanuel) missed his school bus. According to Ms. Phillips it was she who attended all of the parent teacher meetings. Although Mr. Hassan was informed of these meetings he never attended them.

[21] Ms. Phillips testified that Mr. Hassan did play with Abd (Emmanuel) and teach him to do mechanical and manual things such as dismantling electronic machines. Ms. Phillips testified that her method of child discipline was very different from that of Mr. Hassan. While she used reasoning and “time out approaches”, Mr. Hassan tended to be abrupt with Abd (Emmanuel) and would discipline him with physical means.

[22] Ms. Phillips testified that Mr. Hassan became increasingly aggressive and physically abusive towards her even in the presence of Abd (Emmanuel). It was the evidence of Ms. Phillips that on May 6, 2010, Mr. Hassan physically assaulted her, causing her to fall down a flight of stairs. Mr. Hassan denies that he ever assaulted Ms. Phillips or even saw her fall down the stairs. He did leave the home quickly after the altercation. As of that day the couple finally separated. Ms. Phillips was able to get some of her belongings for herself and her son but it was her testimony that Mr. Hassan kept the majority of her household items which Mr. Hassan denies. At that time Abd (Emmanuel) would have been five years old.

[23] Once Ms. Phillips moved out of Mr. Hassan’s home she took up her own residence with her son. Mr. Hassan did not make any effort or request to see his son from May 6, 2010, until the October 27, 2010, when Mr. Hassan called to see his son for his birthday to bring him one of his old toys. According to Ms. Phillips, during that period, her son wanted to see his father and she would put in telephone calls to have Mr. Hassan see his son but Mr. Hassan never acknowledged those calls.

[24] Ms. Phillips testified that Mr. Hassan’s next request for a visit with his son was many months later in July of 2011, when Mr. Hassan’s mother and sister were visiting Canada. Ms. Phillips permitted her son to visit with his father, including overnight visits, so that her son could spend time with his Egyptian extended paternal family, his grandmother, his aunt and some cousins who were more or less his age.

[25] According to the testimony of Ms. Phillips, Mr. Hassan has threatened her with taking their son to Egypt. Accordingly, she granted the overnight visits, hesitantly, but convinced that it would be in her son’s best interests. She asked Mr. Hassan to respect “report in” calls to her during the extended visit and to not take Abd (Emmanuel) out of the jurisdiction, neither of which he respected.

[26] The evidence showed that since the July, 2011 visits there were a number of sporadic visits between Mr. Hassan and his son, often shortened by Mr. Hassan and with Mr. Hassan bringing the child to Ms. Phillips’ work. Since November, 2011, Mr. Hassan has not had any contact with his son. According to Ms. Phillips her son has attempted to call his father by telephone but Mr. Hassan has not responded nor returned his calls. Mr. Hassan has also been invited to Abs (Emmanuel’s) birthday parties at her home and at the home of friends but Mr. Hassan has not attended. Mr. Hassan did not deny this evidence, explaining that he does not like to go to the home of people he does not know.

[27] At the end of 2011, Mr. Hassan contacted the office of the Children’s Aid Society of Ottawa and alleged that Ms. Phillips was not properly caring for Abd (Emmanuel) and had exposed him to sexual toys based on a photograph that had been in his possession for some two to three years (see exhibit # 3). The Society did do an investigation but at the end of December closed their file and did not pursue any protection proceedings. It was Mr. Hassan’s evidence that he stopped seeing Abd (Emmanuel) in November of 2011, because he was upset that the Children’s Aid Society did not pursue any further proceedings. He also feared that if he had contact with Ms. Phillips, she would falsely accuse him of something and he would get into trouble which he could not afford to do.

MS. PHILLIPS’ PLAN OF CARE

[28] Ms. Phillips proposes that she continue to care for and to be primarily responsible for the care of her son as she has done since his birth. The child is attached to her and only knows her as his primary caregiver. She has not been separated from him for any substantial period of time. Ms. Phillips has provided a copy of Abd’s (Emmanuel) school report card which is positive (see exhibit #1 tab 7). Ms. Phillips is in communication with the school concerning Abd (Emmanuel) and attends his parent teacher interviews.

[29] Ms. Phillips also continues to provide Abd (Emmanuel) with the medical care he needs and is following up with the special help Abd (Emmanuel) needs to deal with his speech difficulties and his left-handedness (see exhibit #1 tab 8). In view of some violence that he may have witnessed in his parents’ relationship, Ms. Phillips has also arranged for Abd (Emmanuel) to receive counselling at the Eastern Ottawa Resource Centre (see exhibit #1 tab 10). This is to deal with some aggressive and anxious behaviour she has been experiencing with her son recently.

[30] Ms. Phillips also ensures that Abd (Emmanuel) is involved and attends the extracurricular activities Abd (Emmanuel) enjoys such as soccer and swimming (see exhibit #1 tab 9). Abd (Emmanuel) has also expressed an interest in starting Scouts and Ms. Phillips will be following up on that.

[31] It was the evidence of Ms. Phillips that she recognizes and appreciates her son’s unique heritage and religion which he inherited from his father. She is committed to having her son know about the Islamic religion and to learn the Arabic language. To this end she does read the Koran with her son. She also committed to Mr. Hassan to have Abd (Emmanuel) attend Arabic lessons.

[32] The evidence showed that this too led to conflict between Abd’s (Emmanuel) parents. The evidence showed that Mr. Hassan enrolled his son, with a payment of a fee (see exhibit #1 tab 6) at a program provided by the Muslim Association of Canada for Saturday classes. These classes consisted of a combination of religious and language studies. Mr. Hassan did this without telling Ms. Phillips. Mr. Hassan then insisted that Abd (Emmanuel) be taken to the classes by his mother when Abd (Emmanuel) was not with his father. According to Ms. Phillips, travel to the Muslim Association of Canada required a taxi ride for her and Mr. Hassan refused to drive his son to his Arabic classes on a weekly basis, claiming that he was not a taxi driver. Mr. Hassan did not deny this and felt it was Ms. Phillips’ duty to take her son to the Arabic school he chose for his son.

[33] Ms. Phillips’ response to this impasse was to subsequently enrol her son in Arabic classes at a school closer to her home and to which she could take Abd (Emmanuel) without the necessity of taking a taxi. Ms. Phillips provided the program of this Arabic school which is offered by the Ottawa-Carleton School Board and opined that it was a comparable program to the one chosen by Mr. Hassan (see exhibit #1 tab 5). This was not acceptable to Mr. Hassan who insisted his son should only attend his Islamic and Arabic studies at the Muslim Association of Canada where he originally enrolled his son. Mr. Hassan has not made any offer to ensure that his son will attend at the Muslim Association of Canada program. Ms. Phillips will continue to support her son’s Arabic studies.

[34] Ms. Phillips requests that she have sole decision-making authority for her son. She does not believe joint decision-making with Mr. Hassan would work. He has frequently shown his will, and his alone must be satisfied. If not Mr. Hassan’s response is to retaliate or to withdraw as he has done in a number of instances throughout Abd’s (Emmanuel) life. Ms. Phillips was convinced that there could not be any conciliation or compromise reached with Mr. Hassan as to joint decision-making regarding their son.

[35] With respect to contact of Abd (Emmanuel) with his father, Ms. Phillips’ evidence was that she has always encouraged contact between her son and his father in her son’s interest and even though her many efforts in this regard were not responded to by Mr. Hassan. Her request is that access now be supervised. The length of time that Mr. Hassan has not seen his son is a factor which she considers relevant. She also wants some consistency in Mr. Hassan’s contact with his son. Mr. Hassan’s past erratic and inconsistent contact with Abd (Emmanuel), according to Ms. Phillips, is not in Abd’s (Emmanuel) best interest. Consequently, Ms. Phillips asks that the access order include a provision that if Mr. Hassan misses three consecutive visits with Abd (Emmanuel) then access be terminated.

[36] It was also the evidence of Ms. Phillips that she genuinely fears that Mr. Hassan will take Abd (Emmanuel) to Egypt to be cared by his family, especially if he is ordered to pay child support. According to the evidence of Ms. Phillips, Mr. Hassan has not willingly paid any of the child support ordered. He even refused to provide his son with medical insurance coverage when he was eligible for such coverage when he had such coverage with his employment. All of the child support she has received has had to be collected by the Family Responsibility Office. Mr. Hassan is in the process of suing that office for the return of seized child support payments.

[37] Egypt is not a signatory of the Hague Convention. The evidence showed that Mr. Hassan could, if he chose to, easily obtain Egyptian citizenship and an Egyptian passport for Abd (Emmanuel). According to Ms. Phillips, Mr. Hassan threatened her with taking his son out of Canada. Ms. Phillips’ evidence was that Mr. Hassan is currently allegedly unemployed and seeking work in Canada and outside Canada. Mr. Hassan is also in the process of selling his Canadian property. He has sold his Gatineau residence and his cottage in Aumond, Quebec, where he currently lives, is up for sale. She has heard Mr. Hassan speak negatively of Canada she feels that he is slowly ending his ties to this country.

MR. HASSAN’S PLAN OF CARE

[38] Mr. Hassan’s proposal for Abd’s (Emmanuel) care is that the child come and lives with him and he will care for him, himself. Mr. Hassan claimed in his Form 35.1, Affidavit in Support of Claim for Custody or Access dated October 9, 2012 (exhibit # 14) that he has a wide circle of friends who will help and support him in caring for his son and he named four families. Two of these, Mr. Shareef and Mr. Rashwan, were called as witnesses by Mr. Hassan. He did not ask either one of them if, in fact, they were prepared to help and support Mr. Hassan, and how they might be prepared to help and support Mr. Hassan in caring for Abd (Emmanuel).

[39] Mr. Hassan testified that if given custody of Abd (Emmanuel) he would remain in his current school. It would be Mr. Hassan’s intention to move to Ottawa once his home in Aumond is sold. According to Mr. Hassan, he would be able to afford rental accommodation for himself and his son once he received back his money from the Agence Du Revenu Du Quebec, Ministre du revenu du Quebec, and the Family Responsibility Office, Ministry of Community and Social Services at the completion of his law suit against those government bodies (see exhibit #2).

[40] Mr. Hassan made no mention of medical or dental care for Abd (Emmanuel). He confirmed that he never took Abd (Emmanuel) to any medical or dental appointments. Mr. Hassan made no mention of how he would address Abd’s (Emmanuel) special needs such as his speech difficulties and his behavioural difficulties. Mr. Hassan’s evidence was that Abd’s (Emmanuel) speech difficulties were caused by Ms. Phillips yelling at her son.

[41] Mr. Hassan confirmed that he had never attended a parent-teacher meeting at his son’s school. Nor did he ever contact the school to get information on his son’s scholastic progress.

[42] It was Mr. Hassan’s evidence that it would be in Abd’s (Emmanuel) best interests to live with him because of the security and stability which he could give him. Mr. Hassan testified that he is stable, well-educated, with no criminal record and has been able to manage well financially and to acquire property. According to Mr. Hassan the same cannot be said for Ms. Phillips who has had multiple residence moves and great difficulty managing money. According to Mr. Hassan, Ms. Phillips spends money on things that she can and should do herself such as child care and housecleaning.

[43] Mr. Hassan had other complaints against Ms. Phillips’ parenting ability. She has a past criminal record which was dated. According to Mr. Hassan, Ms. Phillips treats Abd (Emmanuel) as an adult. She provides him with no stimulation other than the television. She also fed Abd (Emmanuel) pork which was against his religion. Mr. Hassan testified that he never had trouble with Abd’s (Emmanuel) discipline and that he could always persuade his son to do what he was told. He did not deny that at times he used physical discipline with Abd (Emmanuel).

[44] Mr. Hassan did not deny that Ms. Phillips was the primary caregiver of Abd (Emmanuel) during the child’s life. However, he denied that he had no interaction with his son. According to Mr. Hassan he played with his son. He encouraged him to be curious of electronics and other mechanical objects. He taught him colours and read to him. He fed him nutritious meals which he cooked himself. He took him to the park and to the homes of friends to play. He took him fishing at his cottage. He shared family events and Muslim feasts with his son. Mr. Hassan produced photographs of these events (exhibits #7 and15).

[45] Two of Mr. Hassan’s witnesses, Mr. Shareef and Mr. Rashwan both testified that Mr. Hassan would visit their home with his son to play with their own children. Both indicated that Mr. Hassan interacted with Abd (Emmanuel) in a normal fashion and saw normal affection between the father and the son. They saw that Abd (Emmanuel) was well-behaved in their home and compliant with his father’s instructions. They knew that Mr. Hassan was able to cook.

[46] Mr. Hassan made no proposal for access to Abd (Emmanuel) by his mother. When cross-examined about how he would provide access to Abd (Emmanuel) by his mother, Mr. Hassan testified that he believes she should stay away from the child. Mr. Hassan is not convinced that Ms. Phillips has any capacity to make correct decisions for her son. He would leave access to Ms. Phillips up to the child and only if it did not interfere with his school and other activities.

[47] When cross-examined about what he saw as Ms. Phillips’ strengths as a parent, Mr. Hassan testified that she has a strong personality. When cross-examined about her weaknesses as a parent, Mr. Hassan testified that he found Ms. Phillips to be “stubborn.”

[48] Mr. Hassan did not propose any joint decision-making. He would make all of the decisions regarding Abd (Emmanuel).

[49] When cross-examined as to why Mr. Hassan brought motions to change concerning the question of child support but never did so over the question of access, he responded that it was his lawyer’s fault.

DISPOSITION ON THE QUESTION OF CUSTODY AND ACCESS

[50] All decisions dealing with the custody of and access to a child are to be determined in the best interests of the child. Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended [CLRA] lists the criteria which the court should consider in deciding what decisions would be in a child’s best interests which are as follows:

Best interests of child

24(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) the plan proposed by each person applying for custody of or access to the child 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.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[51] After considering the above criteria in light of the circumstances of this case and applying them to the facts of this case, I am persuaded on a balance of probabilities that it is in Abd’s (Emmanuel) best interests to remain in the sole custody of his mother and it is so ordered.

[52] With respect to s. 24(2)(a), I have no doubt that once Mr. Hassan belatedly accepted the fact that he may be the father of Abd (Emmanuel), he felt love, affection and emotional ties between himself and the child. There is evidence that the child desires to see his father, a desire which Mr. Hassan appears hesitant to satisfy at times. However, there is no question that the principal love, affection and emotional tie exists between Abd (Emmanuel) and his mother who has been a consistent presence in his life. It is she who has primarily been and continues to be primarily involved in his care and upbringing. The details of her plan of care reflect that of a person who has been a parent, who comprehends the needs of a child and who understands the responsibilities of being a parent.

[53] With respect to s. 24(2) (b), I have no direct evidence concerning the child’s views and preferences. Both Mr. Hassan and Ms. Phillips testified that in the past the child sometimes asked to come home early from his visits with his father. Mr. Hassan felt this was because the mother influenced the son to do this. Ms. Phillips testified that her son gets bored at his father’s house because of the lack of stimulation. Her son did particularly enjoy his visits with his father’s family when they visited from Egypt.

[54] With respect to s. 24(2) (c), the only stable home Abd (Emmanuel) has known since his birth has been that of his mother. Although Ms. Phillips has moved house a number of times since Abd’s (Emmanuel) birth, where she has made her home has consistently been Abd’s (Emmanuel) home and where she has provided the child with care and upbringing. The same cannot be said of Mr. Hassan who has chosen to disappear for periods of time from Abd’s (Emmanuel) life nor made any much of an effort to communicate with his son in any consistent manner. Mr. Hassan’s method of dealing with situations with which he does not agree with seems to be to separate himself from Ms. Phillips and at the same time to separate himself from his son. He did not seem to have any insight into the impact of such conduct on a child. Ms. Phillips has also provided Abd (Emmanuel) with a stable alternate caregiver in the person of Ms. Micheline Diotte.

[55] With respect to s. 24(2) (d) there is no question on the evidence that Ms. Phillips is willing and able to provide Abd (Emmanuel) with “guidance and education, the necessaries of life and any special needs of the child.” The evidence demonstrated that she has done all of this since Abd’s (Emmanuel) birth. In contrast to this Ms. Hassan has not. There is no question that Mr. Hassan has provided the necessaries of life for Abd (Emmanuel) for two of his seven years when he cohabited with Ms. Phillips and Abd (Emmanuel). However, once the separation was final, Mr. Hassan does not seem to have wanted to willingly provide support for his son. He has taken no active part in Abd’s (Emmanuel) medical and dental wellbeing. He does not seem to recognize that his son has some special needs that should be addressed. In addition, Mr. Hassan has taken no active part in Abd’s (Emmanuel) scholastic progress. He has never made any contact with Abd’s (Emmanuel) school or teachers concerning his son’s school progress. He did, at his own cost, enrol his son in the Muslim Association of Canada School but never followed through to do what little he could, such as ensuring the transportation of his son to the school, so that his son could attend the school of his father’s choice. By perceiving himself as somehow oppressed if he had to take his son weekly to Arabic school, it seems to me that Mr. Hassan threw away an opportunity to spend time with his son and to have an invaluable cultural exchange with his son.

[56] With respect to s. 24(2) (e), the plan of Ms. Phillips is by far the more realistic and responsive to Abd’s (Emmanuel) needs. The lack of detail of Mr. Hassan’s plan is troubling.

[57] With respect to s. 24(2) (f), on the evidence, the role Ms. Phillips has played in the life of this child has by far been the more permanent and stable. One would have to be concerned about when Mr. Hassan may again decide to disappear from this child’s life. Ms. Phillips has also shown that despite her differences, and at times fear, of Mr. Hassan, she recognizes his importance in her son’s life. She has made numerous efforts to maintain and nurture Abd’s (Emmanuel) relationship with his father despite Mr. Hassan’s rebuffs and apparent lack of interest. In glaring contrast to this, Mr. Hassan does not appear to in any way value the role of Abd’s (Emmanuel) mother in his life, historically or in the future. One is not left with much confidence that Mr. Hassan would in any way encourage any ongoing access between Abd (Emmanuel) and his mother.

[58] With respect to s. 24(2) (g), on the evidence, it is clear that Ms. Phillips is well able, and in fact has acted as a parent. The same cannot be said of Mr. Hassan. In fact, I would strongly urge Mr. Hassan to take a parenting course in order to learn what it means to be a parent to Abd (Emmanuel) and to give him some insight into how his conduct to date may have affected his son.

[59] With respect to s. 24(2) (h), while Mr. Hassan at one time questioned Abd’s (Emmanuel) paternity, this issue is now put to rest. Both parents are equally related to this child by blood.

[60] With respect to s. 24(3), in the final analysis, Mr. Hassan’s conduct throughout his acrimonious separation from Ms. Phillips has not been child focused. He seems more caught up with his conflict with Ms. Phillips and his sense of grievance, than in being a parent to his son. His responses to the cross-examination questions of what did he think were Ms. Phillips strengths and weaknesses as a parent were not child-focused but conflict focused. I am not convinced that this couple could make joint-decisions that would be in Abd’s (Emmanuel) best interests.

[61] Unhappily, but necessarily, based on the evidence, I come to the conclusion that Mr. Hassan’s access to his son ought to be supervised. Firstly, he clearly has no insight into what affect permanently separating Abd (Emmanuel) from his mother would have on the child. In fact, he sees that as a positive development and taking the child elsewhere could be seen as a logical development for that kind of thinking. Secondly, Mr. Hassan does appear to be in the process of liquidating all of his Canadian assets. He is seriously contemplating employment outside of Canada. Thirdly, it has been well established in the jurisprudence that access is for the benefit of the child and not the parent. Based on Mr. Hassan’s past conduct in purposely separating himself from his son for non-child-focused reasons and tolerating long periods of time without seeing his son, Mr. Hassan needs to show, in Abd’s (Emmanuel) best interests, that he is committed to his son in a consistent manner. Supervised access will permit him to show that consistency and commitment. If he cannot demonstrate that commitment as a parent, then I cannot find that his access to Abd (Emmanuel) would be in Abd’s (Emmanuel) best interest.

[62] For that reason access to Mr. Hassan shall be supervised by the Ottawa Supervised Access Centre. Both parties are required to do what is expected of them such as filling in and submitting the necessary forms, as soon as possible, in order to facilitate the quick commencement of the supervised access.

[63] Once access has been set up to commence, in the event that Mr. Hassan misses three consecutive visits, then access shall be terminated until further order of the court.

[64] Mr. Hassan shall have the right to communicate directly with any professional, medical, dental or scholastic, in order to obtain information about his son’s wellbeing, progress and development.

[65] Mr. Hassan is prohibited from taking the child outside of the jurisdiction of Ottawa.

DISPOSITION ON THE QUESTION OF CHILD SUPPORT

[66] Ms. Phillips requests child support in accordance with the Guidelines. She does not seek an order for any extraordinary expenses relating to Abd (Emmanuel). There is no question that Ms. Phillips is entitled to an order for child support in accordance with the Guidelines. The real issue here is Mr. Hassan’s income and what, if any, income should be imputed to him. Mr. Hassan’s failure to make the financial disclosure ordered of him must weigh against him.

[67] It is Mr. Hassan’s position that his earning power is no more than approximately $20,000 per annum and that he is currently unemployed. His financial statement dated September 11, 2011, notes that he is “self-employed and earns $33,822 per annum. It is Ms. Phillips’ submission that Mr. Hassan earns much more given his acquisition of properties, his rental income, the renovation of his properties for resale and this travels. Ms. Phillips takes the position that given Mr. Hassan’s engineering qualifications his annual earnings could be in the high $80,000. There is no direct evidence, however, that Mr. Hassan ever commanded that kind of earning power.

[68] Mr. Hassan was trained as an engineer in Egypt and worked as such there. In Canada, Mr. Hassan has worked in the cleaning business. He was eventually employed as a software engineer by a company called Volex. He continued also his cleaning business. In November of 2008, Mr. Hassan’s company moved to Mexico and Mr. Hassan became unemployed. He then became employed by a company called Broadcom Corporation as a telecommunications engineer through a contract with Ajilon Consulting. In his job searches Mr. Hassan has held himself out as a software engineer (see exhibit #1 tab 21). In the past, Mr. Hassan has also received rental income by renting out portions of his home.

[69] The evidence shows that Mr. Hassan, together with another individual created a corporation, AMG engineering which became a corporate vehicle to receive Mr. Hassan’s income from different sources including his cleaning contracts. There is limited documentation relating to this corporation. Mr. Hassan takes the position that he is no longer associated with the corporation and knows nothing about its activities nor does he have access to its corporate financial statements. What limited information that was provided about this corporation was presented by Ms. Phillips (see exhibit #1 tab 14). These documents show that Mr. Hassan was registered as a director of the corporation with Mr. Sherif El_Barbary. Mr. Hassan’s home address was shown as the Registered Office Address. A Mr. Amr Mohamid Galal, whose home address shown was a property owned by Mr. Hassan, was a director for a time with Mr. Hassan. Mr. Galal ceased being a director. Then Mr. Hassan ceased being a director on March 3, 2012, when the outstanding disclosure orders had already been made, leaving Mr. Sherif El_Barbary as the remaining director.

[70] The evidence showed that Mr. Hassan has an HSBC bank account and possibly more than one (see exhibit #1 tab 17). The evidence also showed that on March 3, 2010 HSBC effected a telegraphic transfer of $30,000 from AMG Engineering Inc. to an Amr Nazmi Souliman in Egypt. The address for AMG Engineering noted on this transfer is Mr. Hassan’s Quebec cottage in Aumond where he is currently living. Mr. Hassan appears to have been a director at the time. Mr. Hassan submitted that he knows nothing about this transfer. Nor does he know who Amr Nazmi Souliman is. Mr. Hassan did testify that his sister’s name, a sister who lives in Egypt, does have the name “Souleiman”.

[71] The evidence further showed that from 2003 to the present Mr. Hassan has also been able to acquire increasingly more valuable properties. These have included his homes in Gatineau and an Aumond, Quebec cottage where he currently lives. According to Mr. Hassan he is in the process of selling all of his properties in order to meet his debts. Mr. Hassan has declared capital gains in the sale of his previous Gatineau residence property in 2007.

[72] Mr. Hassan’s income tax returns dating back to 2005, excluding the period of time that the parties cohabited reveals the following earnings:

2005 and 2006: between $43,000 and $47,000 per annum

2007: $56,997

2008: $42,020 (in this year Mr. Hassan was laid off from his job and became self-employed)

2010 to the present: $32,597.79 as declared by Mr. Hassan in his financial statement; or $20,000 as submitted by him.

[73] In the past Mr. Hassan failed to provide complete and full disclosure. This court previously imputed $45,000 per annum earnings to Mr. Hassan. Based on the above evidence relating to Mr. Hassan’s financial and property circumstances, I too find $45,000 per annum a reasonable and realistic income to impute to Mr. Hassan for the purposes of child support in this matter. Mr. Hassan shall therefore be imputed to earn an income of $45,000 per annum. He will, therefore, be ordered to pay child support for the child Abd (Emmanuel), based on a declared income of $45,000 per annum, in accordance with the Child Support Guidelines for the Province of Quebec where Mr. Hassan resides. There is some evidence the monthly child support effective December 1, 2011, would be $405 per month. However, I would like counsel for Ms. Phillips to confirm the monthly child support for the period in question.

[74] Ms. Phillips is requesting that child support be payable retroactive to Abd’s (Emmanuel) birth, with a stay of child support for the period of cohabitation, from January, 2008 until May, 2010. Child support should then recommence effective June, 2010 and be ongoing. The evidence showed that Ms. Phillips fairly shortly after Abd’s (Emmanuel) birth commenced her court proceedings to obtain an order for child support. She has never given up attempting to collect ordered child support. Mr. Hassan has not willingly paid his child support and has now commenced proceedings to get his collected child support returned to him.

[75] Child support will be payable by Mr. Hassan retroactive to June 1, 2007, and ongoing, to be paid on the first day of every month. The evidence shows that this would be $350 per month, until the new table amounts changed in December of 2011. All child support arrears due as a result of this order are to be paid forthwith. In the calculation of child support Mr. Hassan’s obligation to pay child support will be stayed and hence non-payable for the period January 1, 2008, to June 1, 2010, during which the parties cohabited and Mr. Hassan substantially contributed to the support of the family unit. Any child support which has been collected by the Family Responsibility for these periods and paid to Ms. Phillips shall be credited to Mr. Hassan in the calculation of child support arrears due.

[76] Because the imputed income found by this court was different from the imputed income suggested in the submissions of counsel for Ms. Phillips, I request counsel for Ms. Phillips to do the calculations of arrears of child support and to confirm the amount of monthly child support to be paid on an ongoing basis, in accordance with this order within a period of two week to be confirmed by me and to be incorporated into this order for collection by the Family Responsibility Office.

[77] Finally, Mr. Hassan has asked that this Court impose a restraining order against Ms. Phillips. There was no evidence presented by Mr. Hassan in support of that order. That request is therefore denied.

[78] The last issue is that of costs. Ms. Phillips shall have two weeks to serve and file her written submissions on costs, including any offers to settle. Mr. Hassan shall then have two weeks from that date to serve and file his written submissions on costs, including any offer to settle. Ms. Phillips shall then have one week to serve and file a response if she so desires.

M. Linhares de Sousa J.

Released: November 13, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER ANNE PHILLIPS

Applicant

– and –

AMR NAZMI HASSAN

Respondent

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Released: November 13, 2012