NEWMARKET COURT FILE NO.: FC-11-039496

DATE: 2012-02-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ASHRAF ROFAIL, Applicant

AND:

NELLY FAYEZ NAGUIB, Respondent

BEFORE: McDERMOT J.

COUNSEL:
Colin Still, for the Applicant
Natacha R. Leite, for the Respondent

HEARD: January 26, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] The Applicant, Ashraf Mounir Rofail, and the Respondent, Nelly Fayez Naguib, were married in Egypt on September 4, 1997. They immigrated to Canada in 2003. The marriage began to break down when Mr. Rofail was charged with an assault on April 13, 2011; after a short reconciliation, the parties finally separated in early October, 2011.

[ 2 ] There are two children, namely Pierre Rofail, born August 2, 2000 and Andre Rofail, born October 2, 2005. Since the parties separated, they have lived, separate and apart, under the same roof. Custody of the children is a live issue, and both parties understand the importance of the status quo to the final determination of custody of the children. Ms. Naguib states that Mr. Rofail is abusive, and that continued cohabitation is intolerable, both to her and, more importantly to the children. She requests temporary exclusive possession and custody of the children. Mr. Rofail denies that things are as bad as made out by Ms. Naguib; he states that it is premature to order exclusive possession and suggests that determination of that issue wait until the children go to counselling and the Office of the Children’s Lawyer conducts an investigation as to custody and access pursuant to s. 117 of the Courts of Justice Act . [1] On consent at the motion, I have requested the involvement of the Office of the Children’s Lawyer and I presume that that process is now underway.

[ 3 ] For the reasons set out below, I have made the following temporary order:

a) The Respondent shall have temporary exclusive possession of the matrimonial home;

b) On a temporary basis, the children shall have their primary residence with the Respondent who shall also be primarily responsible to make all necessary educational decisions respecting the children;

c) Upon vacating the home, the Applicant shall have reasonable access to the children including the following:

i. Access every second weekend from Friday after school to Monday morning, when the children shall be dropped off at the school to be extended to Tuesday morning when the access falls on a long weekend; and

ii. Every Wednesday from the finish of school to Thursday morning, when the children shall be dropped off at their school; and

iii. Such further and other access as the parties shall agree.

d) The Applicant shall pay the Respondent child support in the amount of $1,178 per month based upon his disclosed income of $80,444 per annum commencing March 1, 2012;

e) There shall be no order as to temporary spousal support provided that this issue may be reviewed if subsequent disclosure indicates that the Applicant’s income is significantly greater than that disclosed;

f) The Respondent shall pay all of the ongoing expenses of the matrimonial home after March 1, 2012 including the mortgage, utilities and realty taxes;

g) The Applicant shall maintain the Respondent and the children under his medical and dental plan as available through his employment; and

h) The Applicant shall maintain the Respondent as beneficiary under his life insurance policy as disclosed in his financial statement;

i) This matter to be placed on the trial list for the November, 2012 sittings.

BACKGROUND FACTS

[ 4 ] As noted above, these parties were married in Egypt in 1997. Ms. Naguib was a practicing physician in Egypt; she has been unable to qualify in Ontario, and now wishes to obtain a license to practice in naturopathy. In September, 2011, she began attending the School of Naturopathic Medicine and works part time for a health care administration company; her income is now in the range of about $26,000 per annum.

[ 5 ] After marriage, the parties moved a number of times; these moves appear to have career moves for Mr. Rofail. The parties originally moved to Abu-Dhabi shortly after marriage and then in 2000 to Dubai. The final move was to Canada in 2003; Mr. Rofail presently works for a health products distribution company in Vaughan. His income is disclosed as being approximately $80,000 per annum.

[ 6 ] There are two children: Pierre is 11 and Andre is 7. Both children attend a French school called Ecole elementaire catholique Saint-Marguerite-Bourgeoys; Pierre is in grade 6 and Andre is in Grade 2.

[ 7 ] There is a real conflict on the evidence as to who was the primary caregiver of the children prior to and after separation. Mr. Rofail has filed evidence indicating that he takes the children to activities including bowling, karate and soccer. He notes that he is now the primary contact for the school and states that he has always home early to see the children off of their bus. He states that the Respondent is now more involved in her schooling than with the children and is not presently available for the children.

[ 8 ] The Respondent states that the Applicant’s interest in the children is only recent and self serving. Ms. Naguib states unequivocally that she was always the primary caregiver of the children. She has filed a letter from the family doctor indicating that she was the person responsible for almost all of the medical appointments. She notes that she signed most of the children’s report cards and was responsible to take the children to church. She states that the Applicant only requested that he become the primary contact at the children’s school shortly prior to his announcement that he wished a separation.

[ 9 ] Through all of this, Ms. Naguib states that her husband was a controlling and abusive individual. She states that he micro-managed the household and demanded that she perform certain tasks failing which she would pay a financial penalty. She states that Mr. Rofail was abusive; he would both strike her out of anger, but would also set up “planned” abuse when he would take her (and sometimes the children) into a room with the specific intention of punishing her (or them) physically. She states that her husband was also verbally abusive. She states that this was a “traditional Egyptian marriage” and that she did not complain to the police because of cultural constraints and because she felt strongly that it was shameful to complain about spousal abuse to third parties.

[ 10 ] Mr. Rofail naturally enough denies that there was any abuse. He states that his wife was strong willed and not capable of being controlled even if he wanted to. He states that the household task lists were formulated as part of a “friendly competition” to determine who could do better at the household tasks. He states that the allegations of abuse made by the Respondent were “a strategic move … to gain custody of the children.”

[ 11 ] On April 13, 2011, Mr. Rofail was charged with an assault against Ms. Naguib; she states that this was one of the incidents of a “planned assault” and that she became so frightened that she telephoned the police. The Applicant was removed from the home and lived with his cousin.

[ 12 ] Eventually, the Respondent agreed that the recognizance could be changed so that the Applicant could move back into the home. He did so on June 7, 2011. On June 27, 2011, the Respondent wrote to the Crown requesting that the charges be dropped. She stated in the letter to the Crown that her husband is attending counseling sessions; she also said that, “I am not scared of him or concerned about my safety in his presence.” She expresses her confidence in the future and said that a peace bond is not necessary under the circumstances. Significant is also what was not said; she does not state that the assault did not take place or minimize the event.

[ 13 ] As expected by Mr. Rofail’s criminal lawyer, the Crown would not agree to withdraw the charges without a peace bond. The Applicant entered into that peace bond on September 13, 2011; less than a month later, he announced that he wished a separation.

[ 14 ] Throughout all of this there is clear evidence that the children, and in particular, Andre, have been troubled as a result. Pierre assaulted a female student at his school, but otherwise seems to be managing. Andre, on the other hand, is in severe difficulty and was well prior to the separation. He has had numerous angry outbursts in the classroom, and has bullied other children in the schoolyard. He has had severe and violent incidents where he has “lost it” and thrown desks and chairs around the classroom, and the teacher was forced to evacuate the classroom as a result. He has had these incidents almost monthly since December, 2010; the numbers of incidents increased markedly in October, 2011 when the parties separated. A very serious incident on October 24, 2011 occurred after Andre observed a fight between his parents. This incident resulted in a rather stern rebuke from the principal of the school who asked to be notified if the parties fought so that the teacher could be on the lookout for a similar meltdown. Andre has an educational assistant who follows him through the school throughout the day and accompanies him during recess. Andre is clearly suffering at present.

[ 15 ] As noted, the parties have been residing together separate and apart under the same roof since Mr. Rofail announced the separation on October 7 or 8, 2011. They are residing together in the matrimonial home which is jointly owned by the parties and which is located at 120 Bendamere Crescent, Markham, Ontario.

[ 16 ] Mr. Rofail states that he wished to settle matters, and to that end he had his lawyer write to the Respondent’s lawyer on October 4, 2011 (which was prior to separation based upon either party’s date of separation). He states that he was “shocked” to find that the Respondent refused to negotiate and just went to court to “file an application”; however, this is belied by the fact that the actual party who commenced proceedings was Mr. Rofail and not the Respondent; his application was signed November 17, 2011 and filed on November 24, 2011.

ANALYSIS

[ 17 ] I will firstly determine whether an order for exclusive possession should go and, if so, who will receive exclusive possession. Connected with this, I will determine as well with whom the children will primarily reside. Finally, I will determine temporary child and spousal support.

(a) Exclusive Possession

[ 18 ] The Respondent requests exclusive possession of the home. She states that things have become increasingly intolerable in the home and that Andre cannot manage the stress of the parties residing under the same roof. She notes that the Applicant’s controlling ways have not ceased, and she says that Andre is becoming increasingly difficult at school. She says that it is urgent that an order for exclusive possession go immediately.

[ 19 ] Mr. Rofail states that any order for exclusive possession would be premature. He states that he has been trying to get the children into counseling and that the Respondent has failed to cooperate in that suggestion. He states that the real emphasis should be on obtaining counseling for Andre which would be less intrusive than would be an order for exclusive possession removing him from the home. He points out that since separation, there have been no incidents of violence within the home. He states that he wishes both parties to remain under the same roof; however if an order for exclusive possession is to be made, he states that it is in the children’s best interests that he remain in the home rather than Ms. Naguib.

[ 20 ] The basis for an order for exclusive possession of a matrimonial home is set out in s. 24(3) of the Family Law Act , [2] which reads as follows:

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

[ 21 ] Under s. 24(4), in considering the best interests of the children, I must consider both the disruption of the children moving to another household, as well as the views and preferences of the children.

[ 22 ] As noted above, the Respondent is of the view that there is no need for an order for exclusive possession. He notes that although things are difficult between the parties, there were no incidents of violence between the parties since Mr. Rofail’s return in June, 2011. He also acknowledges that Andre is troubled; he states however that Andre will be more troubled by his removal than allowing the status quo to remain. He states that there is no evidence that Andre’s situation will be improved in any way by his removal from the home or by an order for exclusive possession. He believes that less intrusive measures, such as counselling combined with evidence as provided through the investigation by the Children’s Lawyer, are more appropriate than a major change in the status quo, such as his removal from the home.

[ 23 ] It is correct that a party has a fairly high threshold to meet prior to another party being removed from the matrimonial home; as set out in Tweed v. Tweed , [1990] O.J. No. 1440 (S.C.) at p. 3 of the report, citing Hall v. Hall , [1971] 1 W.L.R. 404 (C.A.) , “unpleasantness and inconvenience was not a sufficient ground for ordering one spouse out.”

[ 24 ] Under s. 19 of the Family Law Act , both parties have an equal right of possession of the matrimonial home. I agree with Mr. Still when he states that a proponent of an order for exclusive possession bears a heavy onus; he or she must show compelling evidence to obtain such an order: see Berdun v. Berdun , [2008] O.J. No. 2016 (S.C.J.) at para. 10 and McEachern v. McEachern , [1994] O.J. No. 1544 (Gen. Div.).

[ 25 ] I also recognize that any order for exclusive possession would result in a status quo in favour of one party or the other; as noted above, this is a powerful tool used by parties in the litigation and not lightly changed. As with an order for exclusive possession, there must be compelling reasons to change a present status quo between the parties and the onus is on the proponent of the change in the status quo to show that those compelling circumstances exist.

[ 26 ] However, it is my finding that, in respect of both issues, the Respondent has met this onus.

[ 27 ] Were I deciding this case only on the tension in the household or the difficulties between the parties, I would probably not grant the order requested. However, in this case there is an already troubled child who now has to deal with the stress of observing his parent’s marriage breakdown. As such, the issue leaves the realm of the convenience or comfort level of the parties; it takes on a new urgency due to the difficulties being suffered by this child. As stated by Wood J. in Liao v. Liao , [2003] O.J. No. 5063 (S.C.J.) [at para. 25],

[T]he most important consideration in determining possession of the matrimonial home where children are involved is the best interests of the children. The other factors set out in section 24(3) must be reviewed with this paramount family law test in mind and weighed against it.

[ 28 ] I disagree with Mr. Still when he states that there is no evidence that the conflict between the parties has affected Andre. It is acknowledged that Andre had the anger issues and problems prior to the date of separation; this may have resulted from ongoing conflict or violence within the household, but that is not an issue that I can determine conclusively from the affidavit evidence provided by the parties. However, we can see from the evidence provided that during the time that the parties briefly separated between April and June, 2011, the violence did not only increase due to any disruption in the children’s lives as a result of the Applicant being removed from the premises; it actually decreased and there were actually no incidents in either May or June, 2011. This answers the issue, to some extent, as to whether the Applicant’s departure from the home would be stressful for Andre. Moreover, the evidence is that around the date of separation, Andre’s troubles increased substantially. In October (the month of separation), the “crises” incidents (i.e. incidents requiring an evacuation of the classroom) bumped from between 1 and 2 per month as in previous months to 4. The correspondence from the principal of the school regarding the October 24, 2011 incident confirmed that Andre disclosed that the night before the incident, the parties had argued and Ms. Naguib had left the home to allow things to cool down. This may have improved since than as stated in the Applicant’s affidavit; however, it appears that because of the separation and the stress within the household, Andre is at potential risk. It appears to me that the tension within the household is intolerable, at least to Andre, and there is evidence to indicate that Andre’s stress from the difficulties between the parties is greater than would be the stress of the Applicant departing from the home.

[ 29 ] This is apart from the fact that it appears to me that Mr. Rofail is now competing with Ms. Naguib to become the primary caregiver of the children, which, as noted below, is not reflective of the long standing roles that these parties had during marriage. This is another stressor on the children who find themselves in the middle of that competition.

[ 30 ] I accordingly infer from the evidence that the separation has exacerbated Andre’s anger and violence issues. It appears that this is a situation where one of the children is particularly sensitive to conflict and that steps must be taken immediately to protect that child. I agree with Ms. Leite when she states that we simply do not have the luxury of letting the therapeutic process take its course; counselling may be all well and good, but it is often a lengthy process and in the meantime, Andre’s difficulties may very well increase. To wait six months for the Office of the Children’s Lawyer to complete an investigation (and that is optimistic), is also too long to wait. In my view, an order for exclusive possession must go forthwith based upon the severe reaction of Andre to the parental conflict which is occurring.

[ 31 ] If an order for exclusive possession is to go, then who is to remain in the home, and who is to go? Obviously, exclusive possession should follow the primary residence of the children: see Jackson v. Jackson , [2008] O.J. No. 342 (S.C.J.).

[ 32 ] Again, Mr. Rofail states that he should be entitled to remain in the home; he states that he is an involved parent, and the one presently available for the children because Ms. Naguib is attending both school and working part time at present. He states that he is an equal caregiver of the children and always has been.

[ 33 ] This is not borne out by the independent evidence filed by the parties. That evidence confirms that, historically, it was Ms. Naguib who saw to the children’s needs and was most involved in the health and education of the children. It was she who took the children to the doctor according to the correspondence from Dr. Cinda Lee; the first time that Dr. Lee met Mr. Rofail was on November 3, 2011 after separation. The correspondence from the day care indicates that Ms. Naguib was the one who picked up the children and the vast majority of the report cards were signed by Ms. Naguib. The affidavit of John Sarkis confirms that Ms. Naguib always brought the children to church.

[ 34 ] An important and historical piece of evidence is also the list of tasks given to Ms. Naguib by Mr. Rofail and which were attached as exhibits to her affidavit sworn January 13, 2012. Whether or not that list was imposed on Ms. Naguib as alleged by her, or was prepared by the parties together as stated by Mr. Rofail, the list of jobs confirms that Ms. Naguib was historically the primary caregiver of the children. There was no denial that the list attached as Exhibit “B” to the Respondent’s affidavit was a list of her daily household duties. That list confirms that Ms. Naguib was to wake up at 4:30 a.m., was then to prepare the children’s back packs, change Andre, and then get breakfast ready for the children. The list also confirms that on Fridays, Ms. Naguib was to clean the home; on Saturdays to do the grocery shopping and finally on Sunday to prepare meals for the week for the family. It is clear from this list, as well as the list of “fines” filed as Exhibit “A” to the affidavit that the parties had agreed that Ms. Naguib was responsible for the domestic chores and child care responsibilities in the home prior to separation. This confirms to me that Ms. Naguib was historically the primary caregiver of the children prior to separation. The Applicant’s increased involvement with the children has only occurred since separation, and is, in my view, designed to manipulate long standing parental roles because of the separation.

[ 35 ] Mr. Rofail states that he is now available for the children while Ms. Naguib is not. He notes that he had followed Ms. Naguib on several occasions and witnessed an incident where Andre fell in the rain and was bruised. It is concerning that he is following Ms. Naguib in order to gather evidence from her, if that is his intent. However, what is more important is that Ms. Naguib is now going to school and is now only working part time; prior to this year, she worked full time and yet was the primary caregiver of the children. There is no evidence that her employment and schooling are such that she cannot care for the children on the same basis as she always has.

[ 36 ] This is not to say that Mr. Rofail was not an involved parent; however, if I am to choose the parent with whom the children are to live within the home, it is trite that it is in the best interests of the children to choose the person who historically provided the majority of the care to the children. Based upon the evidence before me, I find that individual to be Ms. Naguib and as such, she shall have primary residence of the children and exclusive possession of the matrimonial home pending further order or agreement of the parties.

[ 37 ] I also note that this determination is in accordance with the other criteria for exclusive possession as set out in s. 24(3) of the Family Law Act . Certainly, Mr. Rofail is in a better economic position to obtain alternative housing as his income is greater than is that of the Respondent. Although he has filed affidavits from the people he stayed with when he was last charged which indicate that they do not have room for him at present, he was able to find housing when he was charged and has relations in the Toronto area; the affidavits of the Applicant are fairly persuasive that she has no close relations or friends with whom she could stay. Although I make no determination as to whether there was an assault by the Applicant against the Respondent, charges of assault were laid against him, and he did enter into a peace bond; he also admits to having slapped the Respondent. There is certainly evidence of past domestic violence against the Respondent.

[ 38 ] Finally, I note that the Applicant’s material indicated that he was sponsoring his mother’s immigration to Canada, and it was intended that she would assist him in caring for the children. I was advised during argument that the Applicant’s mother had now moved into the home. I find the timing of this event unfortunate; it appears to me that this again was an event engineered to give the Applicant some sort of advantage over his wife in these proceedings. I note that there was little or no evidence of the Applicant’s mother’s relationship with the children or even when she last saw the children; the parties moved from Egypt shortly after marriage. The presence of the Applicant’s mother within the home allows the potential of the Applicant and his mother “ganging up” on the Respondent within the home, which is concerning, although not part of the record. I am not taking this particular factor into account one way or another other than to state that again, I find it problematic that the Applicant again appears to be attempting to manipulate matters in order to give himself a tactical advantage in obtaining custody of the children.

[ 39 ] Accordingly, a temporary order will go granting the Respondent exclusive possession of the matrimonial home as well as primary residence of the children. The Applicant shall have 15 days to obtain alternate accommodations and vacate the home.

[ 40 ] I am not going to speak to the issue of who has actual legal custody of the children; that is for the Office of the Children’s Lawyer to investigate. However, for consistency’s sake, and to reflect the historical roles that the parties had respecting the children, I am ordering that the Respondent, on a temporary basis, have the right to make ongoing day to day educational decisions concerning the children.

[ 41 ] I am providing the Applicant with reasonable access to the children to include every second weekend from Friday evening to Monday morning to be extended to Tuesday morning if access falls on a long weekend. I am also providing for overnight access on Wednesday evenings from after school to the next morning. Pickups and drop offs shall take place at the school.

(b) Support Issues

[ 42 ] There is little issue that upon an order going for exclusive possession and primary residence as set out above, there must be an order for ongoing child and spousal support.

[ 43 ] Support payments will commence March 1, 2012 to reflect the fact that until now, both parties have been paying the expenses of the home, and residing under the same roof.

[ 44 ] In his financial statement, the Applicant indicates income of $80,344 per annum in 2010; there is no disclosure of his 2011 income. He states that he now makes $80,445 per annum. Based upon this income, an order for child support for the two children shall go in the amount of $1,178 per month commencing March 1, 2012.

[ 45 ] The Respondent has filed a SupportMate calculation as Exhibit “M” to her affidavit; those spousal support amounts are based upon a shared arrangement and on a substantially smaller child support payment. I do not find that calculation to be useful. Moreover, the Respondent requests spousal support based upon the highest range of the guidelines. I do not find this to be appropriate under the circumstances; the Applicant needs to obtain his own residence and will have the expenses of doing so. Moreover, there is a real issue as to the nature of the spousal support claim being made by the Respondent and that issue dictates partly what range of the guidelines the spousal support will be at.

[ 46 ] I have prepared a SSAG calculation [3] which indicates that, at the child support amount that I have ordered, spousal support has a higher range of $612 per month; the lower end of the range does not provide for any spousal support payable whatsoever. The mid range figure, which I would normally order, is $293 per month.

[ 47 ] As noted, the Applicant will have to obtain his own housing and cannot be expected to reside with a relative as he did for a two month period when charges were laid. He will need a place where he can visit with his children and set up a home for them for the foreseeable future. I presume as well that his mother will be living with him. Accordingly, because of the expenses he will have to bear, I decline to award temporary spousal support at this time. The Respondent will still have over 52% of the net disposable income on the basis of the child support alone.

[ 48 ] As the Respondent will be in the possession of the home, she is to pay the expenses of the matrimonial home including mortgage, utilities and taxes commencing March 1, 2012.

[ 49 ] I am making a standard order that the Respondent and the children to be covered under the Applicant’s medical and dental plan as available through his employment. I also order that the Respondent remain as the beneficiary of the Applicant’s life insurance policy as disclosed in his financial statement.

[ 50 ] I am finally going to order that this matter be placed on the list for the November, 2012 sittings. Because of the order for exclusive possession, the Applicant may be prejudiced by delay, and it is in everyone’s interest that this matter be resolved sooner rather than later.

ORDER

[ 51 ] Accordingly, there will be a temporary order as follows:

a) The Respondent shall have temporary exclusive possession of the matrimonial home;

b) On a temporary basis, the children shall have their primary residence with the Respondent who shall also be primarily responsible to make all necessary educational decisions respecting the children;

c) Upon vacating the home, the Applicant shall have reasonable access to the children including the following:

iv. Access every second weekend from Friday after school to Monday morning, when the children shall be dropped off at the school to be extended to Tuesday morning when the access falls on a long weekend; and

v. Every Wednesday from the finish of school to Thursday morning, when the children shall be dropped off at their school; and

vi. Such further and other access as the parties shall agree.

d) The Applicant shall pay the Respondent child support in the amount of $1,178 per month based upon his disclosed income of $80,444 per annum commencing March 1, 2012;

e) There shall be no order as to temporary spousal support provided that this issue may be reviewed if subsequent disclosure indicates that the Applicant’s income is significantly greater than that disclosed;

f) The Respondent shall pay all of the ongoing expenses of the matrimonial home after March 1, 2012 including the mortgage, utilities and realty taxes;

g) The Applicant shall maintain the Respondent and the children under his medical and dental plan as available through his employment;

h) The Applicant shall maintain the Respondent as beneficiary under his life insurance policy as disclosed in his financial statement;

i) This matter to be placed on the trial list for the November, 2012 sittings.

[ 52 ] The parties may provide written submissions for costs of this motion with the Respondent and then the Applicant to provide submissions of no more than 3 pages in length not including any costs memorandum or offers to settle, on a 10 day turnaround.

McDERMOT J.

Date: February 7, 2012

[1] R.S.O. 1990, c. C.43

[2] R.S.O. 1990, c. F.3

[3] Attached as a schedule to this endorsement