COURT FILE NO.: FS-12-378242
DATE: 2012/12/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rajib Hasan v. Wahida Khalil
BEFORE: Justice Moore
COUNSEL: Jaret Moldaver, for the Applicant
Eric Shapiro, for the Respondent
DATE HEARD: 18 December 2012
E N D O R S E M E N T
[1] Mr. Hasan brought on this motion for an order directing that he enjoy increased parenting time and for an order restraining Ms. Khalil from making any major decisions relating to the care of their child, Madiha Rajib Hasan (“Madiha”), without Mr. Hasan’s written consent or a court order.
[2] Mr. Hasan requests that these orders remain in place on an interim basis until the completion of the assessment by Dr. Butkowsky or until further court order.
[3] Ms. Khalil requests an order that temporary baseline child support be increased to reflect Mr. Hasan’s current base income and bonus income potential, such increase to be made retroactive to 1 September 2012.
Background
[4] The parties were married on 27 December 2008. They separated on 29 April 2011.
[5] There is one child of the marriage, Madiha, born […] 2011.
[6] Ms. Khalil works at First Capital Realty in Toronto and earns $70,000 per year. Mr. Hasan had worked in Toronto until his position at Microsoft Canada was eliminated in the Spring of 2012. Then on 1 September 2012, he accepted a position with Microsoft in New York where he earns a base salary of $157,000 per year and may earn bonus income as well. His work hours are somewhat flexible, allowing him to live in New York and commute back to Toronto to maintain his relationship with Madiha.
[7] In recent months, he has flown to Toronto each Thursday and back to New York on Sunday. The parties have shared access to Madiha and parenting time with her each week from the time of their separation to the present. They worked out a consent agreement dated 8 December 2011 but have not managed to consistently follow its terms as they relate to access during daytime and overnight visits.
[8] Despite the travel and living arrangements, there has been no custody order made to date in this action and no custody order is sought here. Mr. Hasan has been seeing Madiha less frequently in recent months than he did before his move to New York but still enjoys overnight visits with her on a weekly basis.
[9] In the main action, he seeks a judgment allowing Madiha to move with him to New York in order that she may enjoy close family associations and education and other opportunities available to her there.
[10] The parties are each very concerned for the health and well-being of their daughter but they have had difficulty in agreeing to decisions affecting her medical care and her daycare needs and these difficulties have brought them to this court. Each blames the other for being unwilling or unable to parent cooperatively.
[11] The parties have agreed, however, that Dr. Irwin Butkowsky conduct a Section 30 assessment with respect to issues of custody, access and mobility. They expect that the assessment process will begin by the end of January 2013 and it will continue through individual and family interviews and testing for several months before a report becomes available. In the meantime, this matter has been set down for trial commencing in the week of 10 June 2013.
[12] Mr. Hasan enjoys parenting time with Madiha from Friday mornings until 2 PM on Saturday afternoons. He asserts that he requires more time with Madiha so as to preserve and develop the bond between them and to have more meaningful and uninterrupted time together each week.
[13] He suggests that his time with Madiha be formalized on a weekly basis to allow him to pick her up at a mutually convenient public place at nine o'clock each Thursday morning and return her at nine o'clock on Sunday morning. This would give him quality time with his daughter including three consecutive days and nights and would give Ms. Khalil the rest of the weekend plus three full weekdays with her daughter. Effectively, mother and father would share the weekend time with Madiha.
[14] For her part, Ms. Khalil insists that Mr. Hasan, having chosen to live and work in New York and having a reasonably flexible work schedule at Microsoft, should continue to enjoy one overnight per weekend with Madiha and find time elsewhere in the week if he wishes to.
[15] Each party offered compromise positions: Mr. Hasan suggested that Madiha be with him between Thursday morning and Saturday evening or from Friday morning until Sunday morning. Ms. Khalil countered with Thursday morning until Saturday noon. Mr. Hasan re-countered with a proposal to pick up Madiha on Thursday morning and return her at 5 PM, after her nap, on Saturday.
Analysis
[16] The parties agree with the principle that a child has the right to have her father participate in all aspects of her life, including those which occur during evening and bedtime rituals, night parenting and morning breakfast. They agree that a father's involvement in all aspects of the child's life will ensure the development of a healthy father-daughter bond and attachment.
[17] They agree that the days are gone when custody of a child of tender years will be principally awarded to the mother. Overnight access for infants and young children has been the subject of academic research and judicial comment in recent years. In Schmidt,[^1] Matheson J. stated:
I accept the comments made by Joan B. Kelly and Michael E. Lamb in their article "Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children". This is found in Family and Conciliation Courts Review, Vol. 38 No. 3, July 2000 297-311 at page 300:
“The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments. Extended separations from either parent are undesirable because they unduly stress developing attachment relationships. In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened."
[18] The Kelly and Lamb research was quoted with approval in Lygouriatis,[^2] where Wilson J. included this passage when considering overnight access for a three month old child:
“Research and experience with infant daycare, early preschool and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized. Indeed a child also thrives socially, emotionally and cognitively if the caretaking arrangements are predictable and if parents are both sensitive to the child's physical and developmental needs and emotionally available.
[19] In the instant case, the parties do not dispute the wisdom of the findings and recommendations of researchers such as Kelly and Lamb; specifically, they agree that time, including overnight visits time for Madiha with each of her parents should be directed pending the completion of the forthcoming assessment and any further direction of this court. I agree.
[20] In the circumstances, I direct that Mr. Hasan be permitted to pick up Madiha at nine o'clock each Thursday morning and return her at five o'clock on Saturday afternoon.
[21] In Kaplanis,[^3] the Ontario Court of Appeal determined that an award of joint custody was inappropriate where there was no evidence of historical cooperation and appropriate communication between the parents. In this case, however, there has been a history of cooperation and communication between the parties. They have communicated via a communications book, now said to be in their third volume. They have communicated through counsel and, on occasion, by e-mail. Although their communications have not been as comprehensive as Mr. Hasan would have liked, this is not a case in which custody is sought. Mr. Hasan seeks only to be included in important decisions relating to Madiha’s well-being, including her health and education.
[22] In Kaplanis,[^4] the court determined that joint custody was not appropriate. It observed that the father sought parallel parenting, whereby each parent would have equal status and exercise the rights and responsibilities associated with custody independently of the other but they could not communicate without screaming at each other. That is simply the situation here.
[23] Ms. Khalil relies upon Kaplanis in support of her position, that major decisions for Madiha should be hers to make and that consultation with Mr. Hasan should not be ordered. I disagree. Pending any further order of this court, Ms. Khalil will be enjoined from making any major decisions relating to Madiha or Madiha's care without a written consent from Mr. Hasan.
[24] On the materials before me, I am satisfied that there are no arrears outstanding and there is no basis upon which to order a change in temporary base guideline child support. Whether or in what amount Mr. Hasan will be paid a bonus to augment his overall income at Microsoft remains to be seen. Payment of a bonus is entirely within the discretion of Microsoft.
[25] Any bonus that may be paid for Mr. Hasan's efforts, from and after one September 2012 when he joined Microsoft, will not be paid until after September of 2013. That bonus is clearly not income actually received to this point, nor will it be received in 2012.
Disposition
[26] Order to go granting Mr. Hasan parenting time with Madiha each week from Thursday morning at 9:00 AM to Saturday afternoon at 5:00 PM, with the transition to occur at a mutually agreeable public place.
[27] Order to go restraining Ms. Khalil from making any major decisions relating to Madiha or Madiha's care without the written consent from Mr. Hasan or a court order.
[28] The application seeking payment of arrears of child support and/or an amendment to the amount of temporary base guideline child support or retroactive payment thereof is dismissed.
[29] Mr. Hasan shall recover his costs of both his application and his defense of Ms. Khalil's application. If the parties cannot agree on costs issues, I may be spoken to.
Moore J.
DATE: 20 December 2012
[^1]: Schmidt v. Haley [2004] O.J. No. 1181 at para. 12 [^2]: Lygouriatis v. Gohm [2006] S.J. No. 609 [^3]: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA) [^4]: Supra, at paras. 5 and 6