ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-07-3961-00
DATE: 20140314
B E T W E E N:
Abdulkadir Mohamed
A. Ananaba, for the Applicant
Applicant
- and -
Marian Salad
M. Leonard, for the Respondent
Respondent
HEARD: January 21, 23, 24, 2014
REASONS FOR JUDGMENT
Justice D.L. Edwards
INTRODUCTION
[1] The applicant, Abdulkadir Mohamed, brings a motion to change final orders dated July 16, 2010, and June 7, 2011, and seeks:
o custody on a final basis of Ramadan and Mahad;
o child support for Ritwan, Ramadan and Mahad, both prospectively and retroactively; and
o delivery to him certain documents of the three children.
[2] The final order of February 13, 2009, has since been varied by temporary orders that will be referred to below.
[3] The respondent, Marian Salad, resists the applicant’s motion and seeks custody of Mahad Mohamed and Ramadan Mohamed.
[4] The Office of the Children’s Lawyer (“OCL”), represented by Mr. Mark Demeda, participated in the trial. At the commencement of the trial he advised that the OCL was unable to take a position, as, for reasons that would be clear as trial unfolded, he had been unable to complete his investigation in this matter.
FACTUAL MATRIX
[5] The parties married in September 1992. They have four children: Ritwan (born in 1994), Ramadan (born in 1996), Mahad (born in 1999) and Rayan (who is not subject to this proceeding). They separated in March 2000.
[6] The parties have had a very acrimonious relationship. The respondent alleges that the applicant was abusive and controlling throughout their marriage. She states that she is afraid of him and that the applicant has experienced mental health issues over the years. Her position has been consistent throughout as was evidenced by her testimony and the affidavits that she filed for the various court proceedings that the couple have had since 2004. She testified that from November 2008 until June 2011 the applicant did not see the children after he was granted supervised access. Within one month of being granted unsupervised access to Ritwan and Ramadan, he lured Ritwan to come to live with him. Over the next 16 months he lured first Ramadan, and then Mahad; in each case he did this by allowing them to do whatever they wished once they were living with him.
[7] The respondent felt that the motivation of the applicant in luring the boys to him was to get child support payments from her, and she is very concerned that any money which he receives will not be spent on the boys. Currently she is paying 100 per cent of s. 7 expenses to third parties; she is content to support the boys; and she does not want to pay money directly to the applicant for fear that he will spend the money on his own matters.
[8] The applicant contends that the respondent has been a bad mother; that she buys them “weed”; doesn’t care for them; and kicks them out of the house, one by one. He submits that when the children were younger she locked the house and went to work, leaving them on their own. He brought this motion for financial assistance, since the respondent, as a mother, has an obligation to financially support her children.
[9] He disputes that he has ever been abusive and asserts that his mental condition is not relevant to his ability to raise his children.
PRELIMINARY MATTER
[10] At the commencement of the trial, the applicant requested that the motion to change be amended to include in these proceedings the issue of access and custody of the daughter, Rayan, born December 11, 2000. He submitted that it was an error that this issue had not been included, as he wished an order regarding for access to her.
[11] The respondent resisted this motion. Her counsel noted that the motion to change had been amended pursuant to an order dated December 21, 2012; the matter has been case managed with specific deadlines; and this motion made at the commencement of trial, created extreme prejudice for the respondent.
[12] Mr. Demeda, on behalf of the OCL, stated that there have been no interviews with Rayan.
[13] I dismissed the applicant’s motion to amend the notice of change to add the issue of the applicant’s access with Rayan, as such amendment would have created prejudice for the respondent. She has not had the opportunity to prepare for this issue; this matter has been case managed with specific timelines. Although the applicant has been self-represented until recently, that is no reason to abandon the rules and the procedures.
WITNESSES
[14] There were five witnesses: the applicant; the respondent; Tracy Majewski, the clinical investigator for the OCL; Dr. Sturn, the boys’ pediatrician; and Arnold Whitt, the Vice Principal at Central Commerce Collegiate. I found Ms. Majewski, Dr. Sturn and Mr. Whitt to be credible witnesses. Their testimony in chief and cross-examination was consistent, and generally not contested. It is useful to now review certain aspects of the testimony of the applicant and the respondent and my assessment of their credibility.
MARIAN SALAD
[15] The respondent is a nurse. From their separation in 2000 until the boys moved in with the father, she was a single parent with four children. During this time she worked fulltime, and occasionally worked a second part-time job to support her children.
[16] She lives in Brampton.
[17] She testified that her relationship with the applicant was an abusive one and that he had mental health issues during this period. She stated that she was afraid of the applicant and that he also intimidated the boys.
[18] Third party records corroborated her testimony regarding the applicant’s mental health and her concerns about abuse.
[19] I am satisfied that she is a good parent. She has worked hard as a single parent to juggle the responsibilities of a parent and the need to support the family. For the period from 2000 to 2009, she supported the four children without any financial assistance from the applicant.
[20] She testified that the applicant had nothing to do with the boys when his access was ordered to be supervised; however, within two weeks of being permitted unsupervised access, he had lured Ritwan away to live with him. She felt that the reason that the applicant lured the boys to live with him was to get money from her by way of child support.
[21] She testified that until the applicant obtained access to Ritwan and Ramadan, all of the children were generally well behaved and doing well at school.
[22] She stated that she would always support the boys; she just did not want money to go to the applicant as she felt that he would spend the money on himself.
[23] She testified that whenever she was given notice of a legal proceeding, she or her lawyer attended, and that she did not receive notice of those situations when the applicant obtained orders in her absence.
[24] I accept entirely the testimony of the respondent. Her evidence accorded with the documentary evidence provided to me. She acknowledged when she did not know the answer to a question. I am satisfied that her primary concern in these proceedings is the children.
[25] She testified that she earned $90,000 in 2011; $140,000 in 2012; $100,000 in 2013 and $89,000 is a realistic estimate for 2014. I accept this evidence and these income figures for the calculation of child support.
ABDULKADIR MOHAMED
[26] The applicant works as a deputy in the commercial court at University Avenue. He lives in downtown Toronto in a housing unit controlled by the Toronto Community Housing Corporation.
[27] I found the applicant to be a very difficult witness who often refused to answer the question put to him. He frequently twisted the facts to meet his view of reality.
[28] For example, notwithstanding the fact that Justice Gray on June 7, 2011, determined the date of separation, he steadfastly refused to acknowledge this, both in the documents that he filed and in his testimony.
[29] As well, the Ontario Court of Appeal, in its decision of June 18, 2012, clearly dealt with the issue of spousal support and his claim to an ownership interest in 14 Attview Crescent Brampton, and yet the applicant refused to acknowledge that both issues had been adjudicated.
[30] In fact, in this proceeding the applicant submitted an affidavit sworn on June 5, 2013, in which he swore that the parties separated July 23, 2007. He did not advise the court that in 2011 Justice Gray determined the date of separation to be no later than March 2000, and that the Court of Appeal had dismissed his appeal of this decision.
[31] In cross-examination when presented with these facts, the applicant refused to acknowledge that the issues of the date of separation, the ownership of the house and spousal support were dealt with on a final basis. He testified that “in his heart” he knew the truth.
[32] The applicant was also not forthcoming regarding his mental health.
[33] He testified that his mental health from 2004 was not relevant, and yet in his affidavit dated December 18, 2012, he attached copies of medical records from that period.
[34] He maintained that the respondent brought an ex parte motion in February 2004, for temporary custody of the four children and a restraining order due to an issue that the respondent had with Canada Revenue Agency.
[35] I reject the applicant’s testimony on this point and find that the respondent brought the 2004 motion out of fear of the applicant.
[36] With respect to the 2004 motion and the documents related to that motion, the applicant testified that Dr. Terlitsky was not his doctor, notwithstanding a letter dated February 11, 2004, in which the doctor stated that the applicant had been in his care; that he might be discharged in the next week; and that the doctor felt that “it is imperative that his wife take out a temporary restraining order against him. He has abused her in the past and he blames her for this hospitalization”.
[37] The applicant testified that he had been hospitalized for three days in 2004 and maintained this position in spite of a letter from Dr. Okyere dated June 17, 2004, addressed to the applicant’s manager at the Superior Court of Justice. In that letter, the doctor stated that the applicant was in the Toronto East General hospital between January 25, 2004 and March 3, 2004. Further, “[h]e has continued to be followed up by myself on an outpatient basis and seems to have improved in terms of his moderate to severe emotional illness…..He however remains on medications and will continue to be followed up by myself at periodic intervals to ensure that he remains in remission”.
[38] The applicant testified that he is fine and that he is not taking any medication today. He provided no third party evidence to substantiate that assertion.
[39] He acknowledged that he refused to sign authorizations to allow OCL to obtain his mental health records, stoutly maintaining the position that his mental health had nothing to do “with raising my children”.
[40] Another example of the applicant viewing reality as he wishes it to be, rather than as it is, is his interpretation of Justice Van Melle’s endorsement of September 26, 2013, at the trial management conference. The applicant testified that the judge said it was up to him as to whether he signed the authorizations for the release of medical records. In fact, Justice Van Melle stated: “I have advised him that the trial judge may draw an adverse inference, but he refused to sign the authorizations.”
[41] When pressed in cross-examination the applicant finally stated that he did not sign the authorizations, and he would not sign them. It was his private life; the events were ten years old and not relevant; notwithstanding that he raised the issue in his affidavit of December 2012.
[42] I do draw an adverse inference from the applicant’s steadfast refusal to disclose his medical records. When this refusal is combined with other aspects of his testimony in which he refused to acknowledge reality, I have great concern regarding the applicant’s parenting abilities.
[43] The applicant testified that he did not see the children between November 2008 and June 2011. He acknowledged that the court had ordered supervised access during that period; however, he determined that he was not interested in supervised access so he did not visit the children. He did visit once in November 2008, but he said it was too much of a hassle so he had no further visits.
[44] The applicant testified that the respondent was a dangerous manipulator who kicked her boys out of the house one by one. He also testified that the respondent purchased “weed” for the boys. None of these assertions are grounded in the evidence.
[45] I reject the applicant’s evidence that the respondent is a dangerous manipulator, or that she purchased “weed” for them.
[46] Based upon the evidence, I find that the applicant’s income during 2012, and 2013 was at least $40,000 and will be at least $40,000 in 2014.
JUDICIAL HISTORY
[47] An understanding of the history of this matter provides context. These parties have been in the Ontario Court of Justice, the Superior Court in Brampton, the Superior Court in Toronto and the Ontario Court of Appeal.
[48] In February 2004 the respondent commenced an ex parte motion in the Ontario Court of Justice seeking an order for custody of the four children and a restraining order with respect to the applicant. She withdrew this in March 2004.
[49] On February 13, 2009, by order of Justice Bielby at Brampton the respondent was granted interim custody of all four children. The applicant was given supervised access and was ordered to pay child support of $806 per month.
[50] On July 16, 2010, by order of Justice van Rensburg at Brampton, the respondent was granted sole custody of the four children on a final basis.
[51] Following a trial at Brampton, Justice Gray by order dated June 7, 2011, dealt with three issues: access, child support and the property registered in the respondent’s name.
[52] Justice Gray cancelled any child support arrears and ordered that effective July 1, 2011, the applicant pay child support for the four children in the amount of $724 monthly. He found as a fact that the parties separated in March 2000, and dismissed the applicant’s property claim. He granted access to the two older children, Ritwan and Ramadan, at such times as the boys wished to see him, and ordered that the respondent provide to the applicant electronic means of communication between those boys and himself. He further ordered that the two younger children could visit with their father every other Saturday between 10:00 a.m. and 4:00 p.m.
[53] Two weeks later, on July 15, 2011, following an emergency motion at Brampton, the court granted the applicant temporary custody of Ritwan, and on a temporary basis reduced the applicant’s child support payment to $506 per month “in order to offset some of the additional costs for Ritwan”.
[54] The applicant appealed to the Ontario Court of Appeal Justice Gray’s order of June 7, 2011, which dismissed the applicant’s claim for an interest in 14 Attview Crescent, Brampton, and for spousal support. On June 18, 2012, the Court of Appeal dismissed the applicant’s appeal and ordered that the applicant pay to the respondent the sum of $2,000 costs.
[55] On November 17, 2011, at Toronto, Justice Paisley of the Ontario Superior Court, ordered that the respondent pay child support to the applicant in the amount $798 per month for Ritwan. The respondent did not appear for this motion.
[56] On January 19, 2012, with all parties in court, Justice Paisley set aside the November 17, 2011, order and varied paragraph 2 of Justice Gray’s order dated June 7, 2011, by requiring the applicant to pay child support for the three younger children effective July 1, 2011, in the amount of $598, and commencing January 1, 2012, the monthly amount of the three children was varied to $591 per month.
[57] The applicant brought a motion on one day’s notice in Toronto for custody of Ramadan, which was heard on March 29, 2012. Justice Czutrin advised the applicant to bring a motion to change in Brampton.
[58] One day later, on March 30, 2012, on a without notice motion, Justice Sproat granted custody of Ramadan to the applicant.
[59] On November 30, 2012, Justice Daley granted temporary custody of Mahad to the applicant. Only the applicant appeared at that time. Justice Daley ordered that court staff mail a copy of his endorsement to the respondent.
[60] These proceedings demonstrate a course of conduct by the applicant that is very concerning. On several occasions the applicant appeared on an ex parte basis, on short notice, or in the absence of the respondent, to obtain a support order or custody orders.
[61] In addition, notwithstanding that custody and access matters had previously been heard in Brampton, he brought a motion in Toronto and obtained a child support order with respect to Ritwan, misleading the court by not advising the court of the entire circumstances. As noted above, this order was set aside once all of the relevant evidence was placed before the court.
[62] In the proceeding before me, the applicant was not forthright in the information that he placed before the court, including the fact that he did not disclose that the Court of Appeal had finally adjudicated the issue of the date of separation.
[63] The applicant brought a further motion in Toronto, this time for an order for custody of Ramadan. He was directed to bring the motion in Brampton. One day later on an ex parte basis he obtained a custody order in Brampton.
INVOLVEMENT OF THE OCL
[64] As early as February 13, 2009, the OCL was involved with this family. That day Justice Bielby ordered that the father have supervised access arranged through William A Sullivan’s office, who had been appointed by the OCL. The order of Justice van Rensburg, dated July 16, 2010, stated that Mr. Sullivan would continue his efforts to assist the parties with respect to access.
[65] On May 16, 2013, Mr. Demeda wrote to the applicant. In that letter he explained that he was the lawyer appointed by the OCL for the motion to change. He set out the process that he would follow; that he and the clinical investigator retained by the OCL, Ms. Majewski, would meet periodically with the boys; and that he requested that the applicant call him to arrange a meeting.
[66] Tracy Majewski testified that she normally meets with each parent and then meets the children three times in the absence of their parents. This assists her in assessing the children without the influence of either parent.
[67] On June 5, 2013, she met with the applicant. She stated that during the meeting the applicant was very co-operative; he was very passionate about his children; at times it was difficult to follow his comments as his thinking “was scattered”; and he felt wronged by the system when he was ordered to only have supervised access to his children. She testified that due to the meeting she had some concerns about the applicant’s mental health, as he appeared to have disconnected thinking. She requested that he arrange a meeting with the boys.
[68] On June 13, 2013, she met with the respondent. She had a similar discussion with her about the children and their care. They discussed the respondent’s view on how the three boys ended up living with the applicant.
[69] In his testimony the applicant confirmed that he received a letter from Mr. Demeda dated July 3, 2013. He acknowledged that letter accurately reflected that he had called to cancel the July 6 meeting that had been scheduled for the OCL to meet with Mahad because Mahad would be in Montreal that weekend playing basketball. He also agreed that he asked the OCL to assist in getting Mahad’s passport from the respondent. He acknowledged that Mr. Demeda advised that the OCL could not take a position until it had completed its investigation.
[70] The applicant denied that the balance of the conversation was accurate; he denied being upset or using language like “bullshit”. He testified that none of the people at the trial were telling the truth; that he was only trying to help his children; and that this trial was a waste of time.
[71] Ms. Majewski testified that she received a telephone call from the applicant on July 4, 2013, demanding an immediate meeting. As she was going on holidays, the meeting could not be held immediately. She stated that the applicant “ranted” for ten minutes about the lack of utility to this process, unless he could get the passport for Mahad.
[72] Eventually a meeting with the boys occurred on July 17, 2013. No further meetings occurred until January 15, 2014. That meeting was arranged at the last moment because the boys and Mr. Demeda were both at the courthouse.
[73] She testified that normally she interviews relevant “collaterals”; third party individuals who may have information relevant to the proceedings. For this matter she met with the boys’ principal, vice-principal and Dr. Sturn.
[74] The applicant refused to sign authorizations for the release of his medical and police records.
[75] The applicant acknowledged that Mr. Demeda wrote to the applicant on May 16, 2013, and requested his assistance in arranging for periodic meetings with the three boys.
[76] Produced as exhibits 11 and 12 respectively were the letters from Ramadan and Mahad, dated November 7, 2013, addressed to Mr. Demeda, in which they dismissed him as their lawyer.
[77] Ramadan, in part stated, “My instructions to you and the social worker were very simple, you were told to present my thoughts and you didn’t. Therefore, I have no business talking to you anymore, you’re dismissed”.
[78] After the boys met privately on July 17, 2013, with Mr. Demeda and Ms. Majewski, a court proceeding occurred. The applicant acknowledged that the boys had not been in court since that private meeting. He denied speaking to the boys about what occurred in the courtroom.
[79] I do not accept this testimony. Ramadan’s conclusion that Mr. Demeda did not present Ramadan’s thoughts to the court must be based upon being told what transpired in court. Based upon the evidence, the applicant is the only party through which the boys could have been made aware of what occurred in court. I find that the applicant discussed the court proceedings with the boys, and I find it concerning that he would not be truthful about such an important matter.
[80] In cross-examination the applicant testified that the boys were upset that the OCL did not get their passports for them, notwithstanding the fact that neither boy mentioned this in their dismissal letters. The only evidence before me regarding the passports was that the applicant had advised the OCL that getting passports was very important to him.
[81] The applicant acknowledged receiving letters from Mr. Demeda dated October 7, 2013 and November 26, 2013, in which he requested that the applicant assist in arranging a meeting with the boys; he admitted that he did not arrange a meeting. He testified that the boys told him that they wanted nothing to do with the OCL, so he gave them “privacy”. He respected their rights.
[82] When pressed as to why he had not arranged a meeting between the boys and the OCL, the applicant testified that it was not in their interest to be “sitting here”. He had no real answer when confronted by the apparent contradiction between his ardent desire that the boys testify in court, but that it was not in their interest to participate with the OCL.
[83] He concluded that since the boys told him that they did not want further contact with the OCL, he would respect their choice.
[84] I find that the applicant has a very disturbing, lassie faire, anything goes attitude, of parenting, if indeed, he simply accepted, as he said he did, that if the boys no longer wanted to participate with the OCL, then that was the end of the matter.
[85] A parent should be making decisions in the best interests of the child; not, particularly on such an important issue, deferring to the child’s wishes. The applicant fails to appreciate that there is a large distinction between the child’s wish and the child’s best interests, and that it is a parent’s role to ensure that the best interests of the child governs the situation.
[86] I am also concerned about the applicant’s thinking process. Most parents would strain to find ways to remove their children from stressful and emotionally damaging situations. The applicant decided to allow his children not to participate with the OCL, and yet strenuously argued in court that they should be permitted to testify in this proceeding. The primary purpose of the OCL is to provide a “voice” for the child, without subjecting the child to the stress of testifying for or against a parent.
[87] The applicant testified that the OCL was discriminatory and prejudiced as it was attacking him personally on an irrelevant issue. In his view, the children were fine and were living with him; we need to move forward.
[88] I find the real reason that the applicant did not ensure that the children participate with the OCL was the applicant’s unfounded opinion that the OCL was prejudiced against him, and his conclusion that it would make a recommendation contrary to his wishes.
[89] I draw a negative inference from the applicant’s failure to cooperate with, and failing to cause his boys to cooperate with, the OCL.
BOYS AS WITNESSES
[90] At the beginning of the trial the applicant raised the issue of his boys testifying. The respondent and the OCL objected. I ruled that I would defer until the end of the trial whether I would permit them to testify.
[91] At the end of the trial I solicited submissions regarding this issue. The applicant contended that it was imperative that the boys testify in order to allow their views to be offered to the court. He wanted the boys to testify about their wishes and to verify that the applicant was a good parent.
[92] The respondent conceded that each boy would testify that he wanted to live with the applicant. However, she still objected to the boys testifying for primarily the same reasons as the OCL put forth.
[93] The OCL was created primarily to provide a safe vehicle whereby the views of the child could be expressed in court. In addition, as an independent body, the OCL can conduct interviews, obtain information from third party collaterals, and provide that information, together with a recommendation regarding the best interests of the children to the court, without putting the child through the emotional toil of testifying in court in a situation where the child could perceive that he or she was testifying for or against a parent.
[94] I find that it is very distressing that the applicant did not fulfill his parenting role and ensure that Mahad and Ramadan cooperated with the OCL.
[95] I find that the testimony of the boys is not required for me to determine the relevant issues. I accept that the three boys would testify that they wish to live with the applicant and that he was a good parent.
[96] The courts have endorsed the opinion of Alfred A. Mamo and Joanna E.R. Harris in their chapter, “Children’s Evidence”, published in Evidence in Family Law (ed. Harold Niman and Anita Volikis), July 2001, Canada Law Book at 4-29:
Evidence about the child’s wishes and views should be put before the court by a social worker or other child care professional, who has interviewed the child. The professional person can testify about exactly what was said by the child, describe the circumstances in which this information was communicated, explain its context, and offer an opinion about the relationship of the child’s views to the child’s interests. The clinician giving such evidence can then be cross-examined by all of the parties, ensuring that this evidence is fully explored and fairly tested.
[97] I conclude that it was not in the best interests of the children for them to testify and the evidence that they would give is either admitted by the respondent or can be determined in ways that is less damaging to the children.
THE CHILDREN OF THE MARRIAGE
RITWAN
[98] Ritwan was born on October 25, 1994, and now is 19 years old.
[99] The applicant testified that within two weeks of the June 7, 2011 trial where the respondent was granted custody and the applicant was given unrestricted access to the two eldest boys, the respondent kicked Ritwan out on the street. He slept in a shelter for two nights and then found his way from Brampton to downtown Toronto where the applicant lived. He was 16 years old at that time.
[100] The respondent testified that she suspected that Ritwan was using “weed”; she confronted him and tried to get him to change. She felt that he was trying to cooperate until he met his dad. His behavior changed immediately after that. After that visit, Ritwan began saying things like: “you are just a woman; you’re bad; you think that I am a slave”.
[101] Prior to the trial in June 2011 before Justice Gray, the boys overall were doing well; they attended school. Other than the one time with Ritwan, none of the boys were doing drugs. Until Justice Gray’s order, although the applicant legally had supervised access to the children, he did not in fact exercise that access. After Justice Gray’s order the applicant had unsupervised access to Ritwan and Ramadan. Within two or three weeks the respondent began to see behavioural problems in those boys.
[102] The applicant testified that when Ritwan arrived from his mother, he was troubled; he was smoking “weed”; and he was not doing well at school. The applicant testified that once Ritwan came to live with him, he straightened Ritwan out.
[103] However, the evidence from the school that Ritwan attended while living with the applicant demonstrates a different story. The vice-principal of George Harvey Collegiate Institute, Patrick Abtan, wrote a letter dated December 12, 2011. In that letter he stated that Ritwan’s attendance and performance was poor; that Ritwan left his mother’s home because he did not want to follow her rules; that the school recommended to the applicant that Ritwan be transferred to an alternative program to try to salvage some credits, but the father strenuously refused the suggestion.
[104] The applicant’s response to this letter was that the respondent misled the principal and was able to get this letter. This is consistent with his theme that the respondent was a manipulator, and my view that the applicant distorts reality to suit his version of the past.
[105] According to that letter Ritwan ceased to attend school at George Harvey Collegiate Institute in December 2011.
[106] A letter dated April 16, 2012, from Mr. Abtan stated that Ritwan had been employed since March 2012 and was in the process of being referred to the SAL program.
[107] There is no evidence that he was reenrolled in school after March 31, 2012.
[108] I do not accept the applicant’s evidence regarding how Ritwan went to live with the respondent. The evidence strains credibility. I do not accept that after seeking custody through a trial, the applicant would kick Ritwan out of her home two weeks after a favourable court decision, or that a 16 year old, living in Brampton on his own, would locate his father’s residence in downtown Toronto, and make his way there unassisted.
[109] I accept the respondent’s testimony that the applicant lured Ritwan to come to live with him on the promise that Ritwan would not be subject to his mother’s strict rules.
[110] I find this to be another situation in which the applicant alters the facts to fit his view of reality.
[111] Further, based upon the evidence before me, I find that Ritwan ceased to be a child of the marriage for child support purposes as of March 31, 2012, when he ceased to attend school.
RAMADAN
[112] Ramadan was born on March 9, 1996, and is 18 years old.
[113] The father testified that Ramadan now is in full-time attendance at school at Central Commerce Collegiate.
[114] The applicant testified that Ramadan came to live with him on March 20, 2011, without any assistance from him. The boys and their father have utilized the same barber since each of the boys was born. The applicant testified that the barber had his phone number and gave it to Ramadan, who then called his father.
[115] The respondent told a different story. She testified that in January 2011 Ramadan began receiving telephone calls that he always took in private. She suspected that he was speaking to his father. She was warned by Mahad not to go to work on a certain day because he thought that if she left, Ritwan and the applicant would come to pick up Ramadan.
[116] The respondent went to work and called home at 10:00 p.m. that night; Ramadan was gone. The next day the applicant appeared in court in Toronto for custody and support for Ramadan.
[117] I do not accept the applicant’s evidence on this issue. I have found his evidence generally entirely self-serving, and not in accordance with reality. On the other hand, the respondent’s evidence has been consistent with third party records and I have found it credible. I accept her version of these events.
[118] I find that Ramadan through the active assistance and encouragement of the applicant went to live with the applicant on March 27, 2012.
[119] The applicant brought a motion on one day’s notice in Toronto for custody of Ramadan, which was heard on March 29, 2012. Justice Czutrin advised the applicant to bring a motion to change in Brampton. The next day, on a without notice motion, Justice Sproat granted custody of Ramadan to the applicant.
[120] Ramadan returned to live with his mother during October and November of 2012.
[121] Because of Ramadan’s behavioural issues, the respondent enrolled Ramadan in Can-AIM High School from November 19, 2012, until January 30 2013. He had good attendance while there. Once he moved back to his father he attended Central Commerce Collegiate Institute. An attendance report for the period from April 2, 2013 to May 15, 2013 was produced. That report shows he was absent for sickness for 15 days; he was under suspension for 12 days; and he was further absent for two days for other reasons.
[122] The applicant’s response to this attendance record was that Ramadan was a typical teenager.
[123] A report card for Ramadan for Grade 10 at Central Commerce Collegiate Institute was made an exhibit. It demonstrates that Ramadan was struggling at school.
[124] A Credit Counselling Summary from the school dated February 1, 2013, shows that Ramadan was not doing well and had been absent 8.5 days and late for class 57 times.
[125] Dr. Sturn testified that the applicant brought Ramadan in to see him on July 5, 2012. At the time Ramadan felt weak. The doctor was concerned that the underlying cause of the weakness might be an emotional issue. The applicant and child wanted a full physical examination done then. They did not have an appointment; they were “walk-ins”. The doctor told them to make an appointment if they wanted a full physical done. The father did not make such an appointment.
[126] A month later, in August of 2012, the applicant brought Ramadan back in. Ramadan was catatonic; he could not communicate in a sensible way. Dr. Sturn diagnosed that he was in acute psychotic breakdown. He recommended that he be immediately taken to the acute crisis clinic at the hospital to be assessed and perhaps admitted. The applicant said that was not necessary and did not take him to hospital.
[127] I am very concerned about the applicant’s poor parenting skills that the evidence regarding Ramadan demonstrate.
MAHAD
[128] Mahad was born on January 5, 1999, and now is 15 years old.
[129] The respondent testified that around the November 19, 2012, Mahad was suspended from school for three days. Vice Principal Arnold Whitt testified that Mahad was involved in an altercation with some female students who had spoken negatively about Mahad’s mother. He became very upset and shoved a computer monitor at another student.
[130] Vice Principal Whitt testified that Mahad was removed from this class (which was a French class), and put into gym class. His attendance is better in gym class, but he still only attends when he feels like it.
[131] At the time of Mahad’s suspension he was not permitted to play basketball. The respondent testified that she was attempting to show him that bad behavior had consequences. He became very angry. He left the house; she then searched for him. Eventually she called the police, and suggested to them that Mahad may be with his father.
[132] The applicant testified that on November 22, 2012, Mahad found his way from Brampton to downtown Toronto on his own and slept for a night in the stairwell of his building. He stated that he did not assist Mahad at all to get from Brampton to Toronto.
[133] The applicant stated that the police came to his home and after reviewing the custody order advised him that he did not need to take Mahad back to the mother.
[134] On November 30, 2012, with only the applicant and Mahad present, Justice Daley granted custody of Mahad to the applicant. The court ordered that the endorsement be served on the respondent by court staff.
[135] Vice-Principal Whitt testified that meetings with the applicant about Mahad are very long as the applicant speaks quite a lot. When the school proposes solutions, the applicant responds by defending Mahad and accuses the school of picking on Mahad. For example, when Mahad was struggling in academic math, the father resisted having him transferred into applied math. He was transferred and today he is only achieving 42 per cent in applied math.
[136] There has been a problem with Mahad handing in assignments. Mr. Whitt thought that if the father was more proactive, and checked with the school about assignments, it would help Mahad.
[137] Currently the school has provided a social worker to counsel Mahad and Ramadan and to assist them with homework. They appear to have made a good connection with the social worker, although they both continue to struggle with punctuality.
[138] Mahad is an excellent basketball player, and through a partnership with outside agencies, he is playing at a high caliber.
[139] The applicant’s interaction with Mahad’s school further demonstrates his poor parenting skills. His response to issues with Mahad’s academic progression is not in the best interests of Mahad.
RAYAN
[140] Rayan is the parties’ daughter. She lives with the respondent. She is not the subject of these proceedings.
CUSTODY
[141] The respondent seeks custody of Ramadan and Mahad. She recognizes that they are of an age that they may not respect a custody order. Nevertheless, she submits that the court has a duty to promote living situations that are more beneficial for the children, and that the guiding principle should be the best interests of the children. She believes that Mahad and Ramadan may use a custody order in her favour as a shield to assist them in resisting the power of their father.
[142] The input of an older child is a significant factor in determining his/her custody. However, the best interests of the child must be the governing principle in a custody award. The court should not accede to the wishes of a child and grant custody to a parent, if that parent is an unsuitable parent.
[143] The applicant had testified that the respondent was not a good parent. For example, he stated that she bought Ritwan “weed”. There was no corroboration of any allegation that he made about the respondent’s parenting. I have previously found that the applicant was not a credible witness; I find that this is another example of the applicant altering reality to fit his viewpoint. I find that the only credible evidence before me is that the respondent is an excellent parent.
[144] On the other hand, I have grave concerns about the parenting style, skills and ability of the applicant. He has demonstrated that he does not put the best interests of the children first. His acquiescence to the apparent wishes of the children not to participate with the OCL is a prime example. The letter from vice-principal, Patrick Abtan of George Harvey Collegiate Institute dated December 12, 2011, supports the position that the father’s residence was not a structured one. The applicant’s response to Ramadan’s unsatisfactory attendance record that he was a “typical teenager” is very troubling.
[145] Based upon the evidence, I have concerns about the applicant’s mental health and I have drawn a negative inference from his refusal to provide authorizations for disclosure on this issue. Even had he not introduced this issue through his own court filings, his refusal or inability to accept reality as demonstrated by his testimony is troubling. An example of this is his refusal to accept the finality of the Court of Appeal order.
[146] The fact that the applicant has been employed as a deputy in the commercial court for a number of years makes his conduct before the courts even more troubling. Since 2011 there have been examples of the applicant not fully disclosing issues to the court, court shopping and bringing a number of short notice or ex parte motions.
[147] I find that it is not in the best interests of Ramadan and Mahad for the applicant to be granted custody of them.
[148] I find that it is in the best interests of Ramadan and Mahad that they live with their mother; I grant custody of Ramadan and Mahad to the respondent, effective the date of the release of this judgment; and I urge them to honour this custody award.
[149] Given all of the circumstances I decline to order that this order be enforced by any police force.
[150] The respondent seeks no child support, and further, agrees that she will pay 100 per cent of the s. 7 expenses.
CHILDREN’S DOCUMENTATION
[151] The applicant sought delivery of the boys’ birth certificates, passports and health cards.
[152] I was satisfied from the applicant’s testimony that the boys are either in possession of these documents or the same have been lost.
[153] I make no order with respect to this issue.
CHILD SUPPORT HISTORY
[154] From March 2000 until February 13, 2009, the four children lived with, and were supported by the respondent. During this period there were no child support orders, and the applicant did not provide any child support payments to the respondent.
[155] On February 13, 2009, Justice Bielby ordered that commencing March 1, 2009, the applicant pay to the respondent $806 per month of child support for the four children.
[156] At the trial of June 7, 2011, Justice Gray ordered that the outstanding arrears of child support be cancelled, and that effective July 1, 2011, the applicant was required to pay support of $724 per month for the four children.
[157] On July 15, 2011, in Brampton, on an emergency motion, the applicant was granted temporary custody of Ritwan, and on a temporary basis the child support payments to be made by the applicant were reduced to $506 to reflect the fact that Ritwan was living with the father.
[158] On November 17, 2011, at Toronto Justice Paisley ordered that the respondent pay to the applicant the sum of $798 for child support for Ritwan. As this order was made without full disclosure of the outstanding court orders, and as the respondent argued that she had not received notice of that motion, on January 19, 2012, Justice Paisley set aside the November 17, 2011 order. He also varied Justice Gray’s order of June 7, 2011, and ordered that the applicant pay child support to the respondent for Mahad, Ramadan and Rayan effective July 1, 2011 of $598 monthly and $591 per month commencing January 1, 2012. At the time of this order Justice Paisley was aware that Ritwan was living with the applicant, and I find that the child support ordered was a net set-off amount of child support owed between the parents.
[159] The Family Responsibility Office enforced the November 17, 2011, support order (set-aside on January 19, 2012), until August 23, 2012, resulting in the sum of $7,182 being paid by the respondent to the applicant. I order that the applicant repay this amount to the respondent.
[160] I have found that Ritwan ceased to be a child of the marriage for child support purposes as of March 31, 2012. I find that the orders of July 15, 2011 and January 19, 2012, were made on a set off basis, as the justices were aware that Ritwan was living with the applicant and the respondent had custody of the three other children.
[161] I find that there is no child support outstanding with respect to Ritwan for the period, beginning when he moved to his father in July 2011 and ending when he ceased to be a child of the marriage on March 31, 2012.
[162] From April 1, 2012 until November 30, 2012, the applicant had custody of Ramadan and the respondent had custody of Mahad and Rayan.
[163] Pursuant to the child support guidelines, for the period commencing April 1, 2012 ending on November 30, 2012, I order that the applicant pay child support for Mahad and Rayan, the sum of $579 monthly based upon income of $40,000 and the respondent shall pay child support for Ramadan, the sum of $1,189 monthly based upon income of $140,000. After setting off these payments, the respondent shall pay to the applicant monthly the sum of $610 or a total for that period of $4,880.
[164] On November 30, 2012, Justice Daley granted temporary custody of Mahad to the applicant. No child support was ordered.
[165] From December 1, 2012 until February 28, 2014, the applicant had custody of Ramadan and Mahad, and the respondent had custody of Rayan.
[166] I order that for the period commencing December 1, 2012, until February 28, 2014, the applicant shall pay child support for Rayan the sum of $360 monthly based upon an income of $40,000, for a total of $5,400.
[167] I further order that the respondent shall pay child support for Ramadan and Mahad the sum of $1,896 based upon an income of $140,000 for the month of December 2012.
[168] I order that the respondent shall pay child support for Ramadan and Mahad the sum of $1,416 monthly based upon an income of $100,000 for the period from January 1, 2013 until December 2013, for a total of $16,992.
[169] I order that the respondent shall pay child support for Ramadan and Mahad the sum of $1,281 monthly based upon an income of $89,000 for the period from January 1, 2014 until February 28, 2014, for a total of $2,562. To summarize, for the period commencing December 1, 2012, and ending February 28, 2014, the respondent shall pay the applicant the sum of $16,050 for such period, being the net of the following:
o Applicant owes the respondent $5,400.
o Respondent owes the applicant $1,896.
o Respondent owes the applicant $16,992.
o Respondent owes the applicant $2,562.
SECTION 7 EXPENSES
[170] I find that the mother paid $11,667.50 of s. 7 expenses, without contribution from the applicant, namely:
o Dental care for Ramadan and Mahad $8,397.50
o Winter necessities for Ramadan and Mahad $1,400.00
o Mahad’s basketball program $670.00
o Ramadan’s Can-AIM school tuition $1,200.00
[171] For purposes of calculation of these expenses, I accept the applicant’s income as $40,000 and the average income of the respondent to be $120,000.
[172] Based upon their respective incomes the applicant is responsible for 25 per cent of these costs. I order that the applicant pay to the respondent the sum of $2,916.88.
OUTSTANDING COST ORDER
[173] The applicant acknowledged in his testimony that there was a cost award against him from his appeal to the Court of Appeal in the amount of $2,000 that remains unpaid.
FINANCIAL SUMMARY
[174] This results in the respondent owing the applicant the sum of $8,831.12 calculated as follows:
o Respondent’s overpayment under the November 17, 2011 support order of $7,182.
o For the period April 1, 2012 to November 30, 2012, the respondent owes child support on a set off basis of $4,880.
o For the period of December 1, 2012 until February 28, 2014, the respondent owes child support on a set off basis of in the amount of $16,050.
o The applicant owes s. 7 expenses of $2,916.88.
o The applicant owes the outstanding cost order of $2,000.
[175] The respondent asks that I consider the fact that from the date of separation in 2000 until February 2009, the applicant did not support the children. She does not seek an order that child support be paid for the period; rather, she asserts that I can consider this factor when awarding child support for the time period now under consideration, including, had I awarded custody to the applicant, future child support. She seeks that I set off a figure against any child support that I might order the respondent to pay.
[176] As I have awarded custody of Ramadan and Mahad to the respondent, I need only consider whether this factor should alter the child support orders that I have made.
[177] I note that Justice Gray on June 7, 2011, cancelled any child support arrears. I appreciate that he dealt with arrears of court ordered support orders. However, in my view it is not appropriate to leapfrog behind a time period when the court has considered child support.
[178] I decline to consider as a mitigating factor, the fact that the applicant did not pay child support for the period from separation in 2000 until February 2009, and decline to set off any amount from that period against outstanding child support.
SUMMARY
[179] I order that effective March 1, 2014, the respondent shall have custody of Ramadan and Mahad.
[180] Although the respondent is entitled to a child support with respect to Ramadan and Mahad, she seeks none; accordingly no child support order is made with respect to Ramadan and Mahad.
[181] I order that the respondent shall pay to the applicant the sum of child support of $8,831.12. This aspect of my order shall be stayed until I have dealt with the cost consequences of this matter.
[182] If the parties cannot agree upon costs, the respondent may make written submissions as to the costs within ten days of the release of these reasons. The applicant has seven days after receipt of the respondent’s submission to respond. All such written submissions are to be forwarded to me at my chambers in Brampton. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Edwards J.
Released: March 14, 2014
COURT FILE NO.: FS-07-3961-00
DATE: 20140314
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Abdulkadir Mohamed
Applicant
- and –
Marian Salad
Respondent
REASONS FOR JUDGMENT
Edwards J.
Released: March 14, 2014