SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 3006/2013
DATE: 20130927
RE: WAQAR ZAIDI, Applicant
- and -
SAIREENA QIZILBASH, Respondent
BEFORE: O’Connor J.
COUNSEL:
Brahm D. Siegel, for the Applicant
Edosa Adams-Idode, for the Respondent
Todd Moore, Office of the Children’s Lawyer
ENDORSEMENT
[1] This extremely high conflict custody dispute involves three children, aged 14, 12 and seven, the older two of whom are residing with the Applicant father and the youngest with mother.
[2] This Court heard two motions by each party, for temporary custody of the children and related matters, until the trial of all issues. The trial is scheduled to proceed on the blitz list of this Court commencing November 12, 2013. There will
be an order that the matter be given a fixed trial date of November 18, 2013 before Gray J., peremptory on both parties.
[3] Father seeks orders for sole temporary custody of the two older children, both boys, that no order of custody be made respecting his daughter and for visitation rights to his daughter. Mother seeks a return to what she characterizes as the status quo at separation, when all children resided at the matrimonial home, with both parents. At separation in May 2013, father left the home, taking the two boys, at their request, he says. Mother continues to reside at the home with their daughter. She seeks sole temporary custody of all children, with either no access, or alternatively, supervised access, to Father. She also seeks several other heads of relief.
[4] On this motion, the parties delivered a total of eight affidavits containing over 225 paragraphs and several dozens of exhibits. The materials are rife with conflicting allegations of improprieties, assaults and sexual assaults, some dating back over 20 years. Each party accuses the other of misleading the Court respecting the other’s competence and their motives as a parent. There has been no questioning of either party on their material.
[5] Several public agencies have been involved in aspects of the conflict between the parties. The Halton Regional Police Service have responded to allegations by Mother of assaults by Father against her and sexual assaults by him and one son against their daughter. The police investigated and interviewed the parties and the boys and declined to lay charges against anyone.
[6] The Children’s Aid Society (“CAS”) of Halton conducted an exhaustive intervention with the family including interviews with the parties and the children. Their extensive file was ordered sealed at a previous motion. I have reviewed it. On May 27, 2013, after their investigation of Mother’s allegations of sexual assault against her daughter, the CAS worker reported the agency had “…no protection concerns with the father and S (the daughter)…”
[7] The Ontario Children’s Lawyer (the “OCL”) attended the hearing of these motions. The OCL filed an affidavit by a clinical investigator in their office reporting on their investigation to date. The investigator had interviewed the parties and the children, but indicated he wished to interview each child one more time and, as well, to obtain information from all of the collateral sources prior to taking any position on behalf of the children.
[8] After a review of all of the material available to the Court at this time, I would reach the following interim conclusions and findings:
◼ The contradictory, fractious and highly charged affidavit evidence of the parties as to the best interests of the children, not having been tested by questioning, and much of which is unsupported by objective, independent evidence, makes it impossible for this Court to determine even the temporary best interests of the children.
◼ Based on the investigations and findings to date of the Halton police, the Halton CAS and the OCL, there is no danger to the children in their remaining in the residence of each parent as currently exists, until trial.
[9] The law is clear in circumstances such as these in this case. Where a motion judge is faced with untested evidence and incomplete investigations, coupled with the imminence of a trial date, it is unnecessary or even undesirable to make rulings that may be significantly altered when the full picture is available. Therefore, these matters should be left to the trial judge.
[10] In Wu v. Wu, 2013 ONSC 5804, the Court said, at para. 12;
This claim is best left to the trial judge who will be in a much better position than I am to balance all of the relevant factors.
[11] In Piekarska v. Piekarska, 2013 ONSC 3346, at para. 41, the motions judge said:
The trial judge will be in the best position to determine the issue with the benefit of a full and complete record and with the benefit of examinations and cross-examinations of all witnesses.
[12] In Proulx v. Proulx, 2013 ONSC 1151, at paras. 14-15, the motions judge said:
The trial judge will be in the best position to judge whether the final disposition should be varied…there is no particular urgency to them [the changes]…I would prefer not to make a change now, and risk that the trial judge find necessary to change back or to make a different change…
[13] In Czegledy-Nagy v. Seirli, 2011 ONSC 6488, at paras. 41-42, the motions judge said;
The trial judge will be in a much better position to weigh all of the evidence and make findings of credibility, neither of which is available to the motions judge at this stage of the proceeding…
[14] Accordingly, the motions of the parties respecting temporary custody are dismissed. A temporary order will issue as follows:
Each of the parties will have reasonable access to the children or child residing with the other, provided such reasonable access arrangements shall be made only through counsel.
Neither party shall communicate directly or indirectly, by phone, email or otherwise with the other, except as provided in paragraph 1 above.
Neither party shall bring any further proceeding before the Court without leave of the Court.
Each party shall be responsible for their own costs of these motions.
O’CONNOR J.
DATE: September 27, 2013
COURT FILE NO.: 3006/2013
DATE: 20130927
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
WAQAR ZAIDI, Applicant
- and -
SAIREENA IZILBASH, Respondent
BEFORE: O’Connor J.
COUNSEL:
Brahm D. Siegel, for the Applicant
Edosa Adams-Idode, for the Respondent
Todd Moore, Office of the Children’s Lawyer
ENDORSEMENT
O’CONNOR J.
DATE: September 27, 2013