SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shahed Anwar Quazi, Applicant
AND:
Shamima Akhter Bhuiyan, Respondent
BEFORE: Czutrin J.
COUNSEL:
Michael Stangarone, for the Applicant
Warren Milne, for the Respondent
HEARD: March 14, 2013
ENDORSEMENT
1The parties settled all issues between them pursuant to Minutes of Settlement dated May 22, 2012.
2The Minutes of Settlement were incorporated into a consent court order dated October 29, 2012 by Paisley J.
3Neither party seeks to set aside the consent order and each seek to enforce its provisions relating to whether the Respondent/mother has complied with the terms of her relocating her home to a closer distance to the father’s home so that the mother would then be able to choose the school where the parties son (Atif) would attend as of January 1, 2013. If she complied, she would also be entitled to relocation payments from the Applicant/father.
4Both parties are content to maintain equal time sharing between them of their son Atif (DOB July 14, 2006).
5As part of their settlement, the parties agreed to joint custody and a four-week time sharing schedule that generally allows the child to be with the mother every Monday and Tuesday and the father every Wednesday and Thursday with weekends alternating from Friday through Sunday.
6The parties agreed that the distance between their respective residences at the time of the Minutes of Settlement, of approximately 60 km, would make it difficult for the child to go to school from each home within a reasonable time. The father already owned a home (for several years) in Mississauga. The home is close to his sister, whose children, the first cousins of Atif, have a close relationship with Atif and are of similar school-age.
7As of May 22, 2012, when the Minutes of Settlement were executed, the parties agreed that all exchanges between the parties during the school year would take place at the child’s school, except for days when he was not in school. On days when the child was not in school exchanges would be at each parent’s home depending on whose time it was.
8It was understood and agreed that Atif had to change schools by January 1, 2013. As such the issue of the school, mother’s new residence and whether she was entitled to the relocation payment was intended to be completed on or before January 1, 2013.
9Part four of the Minutes of Settlement and resulting court order provided that on or before January 1, 2013, the mother “shall permanently relocate to a residence within 30 km of the husband’s residence.”
10If the mother relocated within the 30 km provided for, then Atif was to attend a school within the school catchment area of the mother’s residence. That is, she got to choose the school.
11The father agreed and he was ordered to cover the mother’s relocation expenses if she complied with the terms of relocation. If she moved within 15 km of the father’s residence, he was to pay her $48,000; and if she moved within 30 km he would pay her $43,200.
12If a dispute arose between the parties as to the distances between the mother’s proposed new residence and the father’s existing residence, the distance would be measured according to the calculation provided by “Google Maps” as the most direct route.
13The Minutes of Settlement and the resulting court order also provided for different methods of payment depending on whether the mother leased or purchased her new residence. If she leased, the father was to provide an upfront payment of $7,500. If the mother purchased a residence, the upfront payment would be $20,000 by the closing date for the purchase.
14The order detailed what would be required of the mother for proof of purchase or lease, that it was a permanent relocation and the distance and how the relocation payments would be made. It went into great detail depending on whether the mother was purchasing a new or an existing home.
15Depending on whether the payment was $48,000 or $43,200 (based on the distance from the father’s home) and the balance after payment of either the $7,500 or the $20,000 as described above, the father was to pay $1,200 per month until the balance was fully paid.
16The Minutes of Settlement and resulting court order provided what was to happen if the mother, after her initial relocation, then moved again to a distance greater than 30 km, within the first three years after signing the Minutes of Settlement. If she moved outside of the 30 km distance within the first three years, the mother was to repay the father all of the relocation expenses he had paid.
17Unfortunately, as this endorsement explains, the parties disagree as to whether the mother has complied with the terms entitling her to choose the school and to receive any relocation payment. The dispute includes the distance between the parties’ homes and whether the mother has permanently relocated.
18On these issues, on February 21, 2013, the parties first appeared before Goodman J. She correctly concluded that the material, “was replete with credibility issues, which for the most part can only be fairly determined if the material is tested by oral evidence.”
19Goodman J. then endorsed the process, including what material could be used for the two-day hearing that I heard March 14 and 15, 2013. Goodman J. proceeded to hold a settlement conference and encouraged the parties to consider the use of the on-site mediation services.
20At the commencement of the hearing before me, I sought clarification of the issues and encouraged the parties to reconsider their position as I reminded them that I would have to make findings of fact and credibility that may impact on their future parenting of Atif. Unfortunately, they could not agree and therefore I proceeded to hear the evidence.
21I did not find the issue of the mother’s proposed residence being within 30 km as she suggested, or beyond, as father suggested, as determinative in coming to my conclusions.
22Google Maps offered distances both under and over 30 km. The Minutes of Settlement and the consent order provided that the distance (the over and under 30 km) was to be “measured by ‘Google Maps’ on the most direct route that ‘Google Maps’ calculates”.
23I wondered what the fuss was about if the differences were as minute as the different calculations presented provided.
24I find that in order to determine the issue of compliance by the mother I need to consider the objectives and goals that the parents sought to achieve in the best interests of their son. In looking at the objectives I considered the rationale for the detail, the reasons the father was prepared to pay the mother a relocation amount, the possibility of repayment and who got to choose the school. The objectives I find included:
A 50/50 time share with the child being able to go to school from either parent’s home in approximately equal travel time so as to facilitate his attendance and exchange at the selected school or from either of the mother’s new home or the father
Easy transportation of the child for each parent and recognition that for the child this would involve friends and family near each of the parents’ homes.
Each parent has a car and it would be reasonable to infer that unless they could walk to school from either home, school bus transportation or car would make for easy and reasonable transportation.
That the child could have access to extracurricular activities from either home.
That each parent recognized that in whatever arrangements they would make (and this was mainly for the mother as the father’s home was already established and was used as the constant):
a. The closer the better (there was financial incentive for the mother).
b. It was to cover at least a three year period (paragraph 24 (a) and (b), failing which the mother was required to repay the father the relocation payment he was prepared to pay if she moved outside of the 30km within that time.
c. The relocation incentive was a monthly $1,200 to the mother to encourage her to stay in her new residence long-term and not merely for a brief period after January 1, 2013.
d. The use of the words permanently relocate, not just relocate, spoke to the major issue of providing stability and consistency for the child.
25The father showed his good faith and willingness to live up to his end of the Minutes of Settlement and order consistent with Atif’s best interests. In addition, he continued and agreed to pay full table support although the parents share the child’s time equally. This is consistent with his motivation not being money.
26While the school and change of residence awaited the mother’s move, the parenting schedule began soon after the Minutes of Settlement were signed even though until the events in January 2013 the child continued to live and go to school where the mother had chosen.
27According to the mother, in June 2012 she was referred by her lawyer to a real estate agent to search for a home (pursuant to the Minutes of Settlement). The parties by that time had been separated (for the second time) since December 21, 2007.This was a good start to implementing the Minutes of Settlement.
28According to the mother, she was pre-approved for a mortgage by the Royal Bank of Canada on October 16, 2012. I saw the letter of approval but saw no letter from the Royal Bank confirming that the approval was later withdrawn. The mortgage amount approved was $142,800 (based on a $160,000 purchase and $20,000 down payment). The letter required an appraisal of the property.
29I saw a copy of an accepted Agreement of Purchase and Sale dated November 12, 2012. The purchase price was $145,000 and the deposit was $7,500. The offer, although there had been a mortgage pre-approval, was conditional on financing at the mother’s discretion.
30The agreement required the mother to pay an additional $7,500 once the conditions were lifted. (The Mortgage Commitment.)
31On October 31, 2012, father’s counsel wrote to mother’s counsel indicating that the father had hoped that the school change would be resolved by September in time for the beginning of the school year. This was reasonable and a best interests legitimate concern on father’s part. He referred to a request for $10,000 from the mother’s real estate agent and confirmed a willingness to advance $10,000 directly to the agent within 24 hours of notice by counsel. They asked whether she was leasing or buying but thought she was buying a condo.
32On November 6, 2012, the mother’s counsel requested funds for the purchase (an Agreement of Purchase and Sale unsigned had been sent) proposed $20,000 (up front) prior to the closing).
33Father’s counsel responded on November 8, 2012 and explained that the $20,000 request was contrary to the Minutes of Settlement but proposed $7,500 payable by November 9, 2012, a second payment of $7,500 by November 20, 2012 and the balance of $5,000 to her real estate lawyer for closing.
34On November 9, 2012, the mother picked up a certified cheque provided by the father in the amount of $7,500. I find that this again confirms the father’s good faith and motivation to have the school issue resolved and the child’s residence resolved.
35The purchase appeared to be proceeding as late as November 15, 2012, as the mother’s real estate agent sent to the father’s lawyer documents to confirm the purchase.
36On November 26, 2012, father’s counsel wrote directly to the mother:
... on November 25, 2012 (you informed my client)…that you are cancelling the purchase of the condo …as you now think buying condo is “not profitable” for you due to its slow build up of equity. You had further told my client that you will no longer require the second deposit cheque which my client was ready to provide you last week.
37The mother failed to respond to this letter. Once again, I find, that the father appropriately pressed the issue out of concern for the new school year and the approaching Christmas holiday.
38Given the mother’s failure to respond I find it reasonable and appropriate that the father’s counsel wrote to the mother again on December 10, 2012.
39The mother apparently decided to deal with this matter on her own and the correspondence with her counsel ended.
40The father believed that after discussing the purchase with her new husband, the mother and her husband decided that this was not a good long-term purchase and she cancelled the deal. The mother denied this but provided no credible evidence that the bank had withdrawn their approval.
41On December 14, 2012 (sent by fax on December 15), the mother wrote to father’s counsel informing that her new address was 1276 Islington Avenue, apartment 1018, and that the child’s new school would be Islington Junior Middle School. She informed the father’s counsel that she no longer had a lawyer and provided a new e-mail address but asked that mail continue to be sent to her at “old mailing address, 400 McCowan Road Apartment 824”. (This she claimed was her mother’s home and not hers.)
42Included with the December 14, 2012 fax is what purports to be a rental agreement dated November 27, 2012 between the mother and the “landlord” Juan Martinez Aguilar, to commence December 1, 2012.
43Understandably, and I find reasonably, the father was concerned by the mother’s letter and information and the document she sent. His concerns were outlined in another letter sent through his lawyer and couriered to the McCowan address as the mother requested. The letter, I find, correctly sets out the history of events since the May Minutes of Settlement and how and what mother has done does not comply with the Minutes of Settlement and the consent order issued.
44The mother’s decision to rent a room in an apartment on a month-to-month basis, with other persons and a dog would require a form 35.1 affidavit to consider who she and the child would is now sharing accommodation with so as to be satisfied that these non parties would not be a risk to the child.
45Thereafter t he mother e-mailed the father’s lawyer to suggest that she wanted to move to the next building and that an apartment would be available as of March 1, 2013. In support of this position she provided an application form from a Management company. The form contained no address or apartment number and it was merely a blank application form.
46She also suggested that when her husband arrives in Canada (perhaps in the summer of 2013), she would move again. All of these proposals are contrary to the requirement of a permanent relocation and inconsistent with the desired stability and focus on the child’s best interests.
47Until some-time in November 2012, the mother continued to use the counsel she had used for the consent order of October 29, 2012. She used that same counsel when signing the Minutes of Settlement and for a period after she signed the agreement to purchase a condominium. At around the time that she either backed away from her condominium purchase or the bank revoked the mortgage approval (I am not satisfied that the bank revoked), she started to act in person.
48The mother’s earlier proposed purchase was consistent with the parties’ objectives; not only in the distances, but with a permanent relocation and stability for Atif and in his best interests.
49I will not review all of what the mother subsequently did but her actions raise more doubts was about her assertion that here mortgage approval was withdrawn. I am unable to conclude that she was acting in good faith to meet the objectives of the Minutes of Settlement.
50While each party wanted to lead evidence about past conduct, neither party wanted to set aside the Minutes of Settlement or order and both wanted to maintain the current parenting schedule.
51The photos that I allowed the mother to present purporting to be in the room she rented provide me little comfort. The fact that she has provided so many different addresses raises serious concerns about her ability to provide a permanent home for her son.
52While the mother was away for an extensive period in January 2013, Atif (at her request) stayed with the father. The father enrolled Atif in school in his catchment area as he concluded that the mother had not complied with the terms of their settlement. I find that this was reasonable and consistent with the child’s best interests.
53Mother’s actions in changing Atif’s schools frequently and since her return from her trip keeping Atif home from school on many days raise serious concerns about her acting consistently in the child’s best interests.
54While the mother offers explanations as to why she and Atif often stayed at McCowan rather than the Islington room I find her explanations questionable.
55On a December 31, 2012, in a text, the mother tells the father of a family emergency and advises that she wants to talk to him before she does anything and that “Nirmala” (her previous lawyer’s first name) is away vacation. This takes place just before the mother’s trip abroad and by which time the residence and the child’s school should have been resolved.
56The evidence is consistent with and I find that the mother has not complied with the terms of the Minutes of Settlement and the resulting consent order. She has not moved permanently. She is not entitled to a relocation payment or to choose the child’s school,
57The child is to remain in his current school until further order or agreement in writing of both parties.
58The parents are obliged to give 90 days’ notice in writing of any proposed changes in residence and provide details of the new intended residence.
59Parties may attend before me to speak to costs or any further direction arising from this endorsement.
Czutrin J.
Released: April 5, 2013