ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-74053-00

DATE: 20140528

BETWEEN:

Erum Adeel
Applicant

– and –

Adeel Bin Afzal
Respondent

M. Schulz, counsel for the Applicant

In Person

Office of the Children’s Lawyer

H. Joshi, counsel for Office of the Children’s Lawyer

HEARD: May 13, 14, 15, 2014

JUDGMENT

ANDRE J.

[1] On January 12, 2012, the Applicant mother brought an application for a number of orders involving equalization of net family property, spousal and child support, custody and access. The parties resolved all the financial issues during a judicial pre-trial and only the issues of custody and access remain unresolved.

[2] The Applicant mother seeks sole custody of the two children of the marriage; the unfettered right to make all the major decisions concerning their health and education; and the court’s permission for her to travel with the children to Saudi Arabia for a religious holiday.

[3] The Respondent father seeks joint custody of the children to avoid being marginalized by the Applicant; the right to be involved in the major decision-making in the children’s lives; and an order preventing the children from travelling to Saudi Arabia with the Applicant.

[4] I must therefore decide what form of custody and degree of access best reflects the children’s best interests in this matter.

OVERVIEW:

[5] The parties were married in Pakistan in October 1999. They have two children, Aarish, who was born on May 3, 2001 and Areeb, who was born on September 6, 2008.

[6] They lived in Saudi Arabia for four years before migrating to Canada in 2005.

[7] The parties separated on or about May 23, 2011, after the father discovered e-mails exchanged between his wife and an unknown male in Saudi Arabia, in which both parties professed their love for each other.

[8] The parties, however, resided in the same residence until April 2014. The matrimonial home was sold on May 5, 2014. Each party now resides in separate residences. The Applicant, who has been the major caregiver for the two children, resides in a leased townhouse while the Respondent resides in a two-bedroom apartment.

[9] The Applicant, who has a graduate degree from Pakistan in Finance, has not worked since Areeb was born in 2008.

[10] The Respondent holds a Master’s Degree in Electrical Engineering from Ryerson University and has a senior management position in a Mississauga company. He is often required to travel for varying periods of time. In July/August 2013, he was required to work in Halifax, Nova Scotia, for one month.

[11] The children both attend school. The elder of the two is academically gifted and attends a special technology school in Mississauga. The younger attends kindergarten school, but the day before the trial commenced, the Applicant advised the Respondent that she intends to enrol their younger son in a Muslim school later this year.

[12] The children’s school day typically ends at approximately 3:30 p.m. At 5:30 p.m., they attend a religious school for approximately 1.5 hours where they are taught to memorize the Quran.

COURT ORDERS:

1. On June 12, 2013, the Applicant brought a motion seeking to travel to Pakistan with the two children for two months during the summer. The Respondent opposed the application, primarily because he feared that the Applicant would not return to Canada.

Baltman J. granted permission to the Applicant to travel to Pakistan, but only with the elder of the two children, with the other remaining with the Respondent. She expressed concerns that the mother made the travel arrangements without first consulting the father and that in so doing “essentially tried to present him with a fait accompli.”

Baltman J. was also concerned that the Applicant had received a job offer to work in Saudi Arabia.

2. On August 3, 2012, Mossip J. ordered the Office of the Children’s Lawyer (“Children’s Lawyer”) to provide such services for the children as the Children’s Lawyer deemed appropriate.

3. On May 17, 2013, the parties filed minutes of settlement on a without prejudice basis. Daley J. made a number of orders including granting the Respondent access to the children based on a mutually agreeable schedule, providing that the police should enforce the order, and providing that Aarish receive counselling recommended by the Children’s Aid Society (“CAS”).

4. On June 25, 2013, Price J. provided the Respondent access to the children in Halifax, Nova Scotia for one month, from July 8, 2013 to August 8, 2013. Upon their return to the residence of the applicant mother, the Respondent was granted access to the children on the first three weekends of every month, from 10:00 a.m. Saturday until 8:00 p.m. Sunday. He also granted telephone access to the children each night from 6:00 p.m. to 7:00 p.m. and similar access to the Applicant when they were in the care of the Respondent.

5. On January 4, 2014, Edwards J. ordered that divorce should be severed from the corollary relief sought by the Applicant and the listing of the matrimonial home for sale.

6. On March 17, 2014, Lemon J. ordered that the parties were to be divorced and that the divorce would take effect within thirty-one days after the dating of the order.

ANALYSIS:

ISSUE NO. ONE: Would sole custody be in the children’s best interests?

[13] The Applicant maintains that sole custody would be in the children’s best interests. Her counsel provides the following reasons for the Applicant having sole custody of the children:

a) The mother is in the best position to make the major decisions involving the children.

b) Joint custody would engender more conflict between the parties and is therefore not appropriate in this case.

c) The Respondent is primarily interested in being involved in making the major decisions involving the children, rather than joint custody of the children.

[14] The Applicant is correct that there are a number of factors which favour the granting of sole custody of the children to her. She has been the main caregiver for the children throughout their lives. She has made wise decisions regarding their future, such as enrolling Aarish in a school for gifted children where he is doing very well. She cares a great deal for the children and clearly desires the best for them.

[15] And yet the evidence in this trial has raised some significant concerns about the Applicant’s relationship with the children and their interaction with the Respondent.

[16] First, the Applicant manifests a great deal of hostility towards the Respondent and this, intentionally or otherwise, may have filtered down to the elder child. Tricia Ryan, a clinical investigator who interviewed the parties and the children in 2012 and 2013, testified that the Respondent desired access with the children every other weekend, but that request was opposed by the Applicant who proposed that the Respondent should only have access to the children once or twice yearly.

[17] Second, Ms. Ryan testified that while both children were attached to the Applicant, Aarish manifested a great deal of hostility to the Respondent. Ms. Ryan also feared that Aarish looked frequently at the Applicant when she asked him a question and worried that Aarish resents his father because he feels that he was protecting his mother.

[18] Furthermore, that while Aarish spoke in glowing terms about the Applicant, he had very negative comments about the Respondent.

[19] Ms. Ryan concluded that Aarish felt that his mother would worry if he spent more time with his father and that Aarish’s views towards his father would only change with the blessings or approval of his mother.

[20] The Applicant’s testimony suggests that she views the children of the marriage as her personal possessions. She repeatedly described the children as “my kids”. She fervently believes that the Respondent does not have any right in the making of major decisions involving the children’s health or future. At one point, she testified about Aarish that “what he wants, he gets.” Asked why she has been reluctant to speak to the Respondent about the children, she replied: “Maybe I’ll lose my temper if I speak to father directly.”

[21] Under cross-examination by the Children’s Lawyer, the Applicant replied that she did not see a role for the Respondent in the children’s lives and that, “the boys are happy without him.” In one e-mail, marked as Exhibit 4 in the trial, she wrote that she was taking sole responsibility for her children.

[22] Third, there is some evidence that the Applicant may have influenced Aarish in his antipathy towards his father. In an e-mail written by Aarish when he was 12 years old, which was marked as Exhibit 5, Aarish wrote that his mother should have sole custody of the children.

[23] Fourth, there is troubling evidence that under the Applicant’s watch, Aarish may be influencing or seeking to influence his younger brother against the Respondent. Ms. Ryan testified that the CAS had concerns that if Areeb wanted to spend time alone with the Respondent, Aarish would attempt to sabotage this.

[24] The Applicant’s counsel rightly suggested that this evidence should be construed as “double hearsay” and should be given little weight. However, Ms. Ryan observed behaviour, when she met with Aarish and Areeb on February 13, 2013, which confirmed that Aarish may be influencing his younger brother in a negative way. At one point, Aarish tried to prevent Areeb from showing affection to the Respondent.

[25] Fifth, granting the Applicant sole custody will likely lead to a marginalization of the Respondent. Ms. Ryan testified that the Applicant told her that the Respondent was merely the sperm donor and that she, the Applicant, would not comply with a court order regarding the Respondent’s involvement in raising the children.

[26] The Applicant denied making either statement. She claimed that she no longer believes that the Respondent should only see the children once or twice a year. She now believes that he should see them every day and every other weekend.

[27] However, I accept Ms. Ryan’s testimony about what the Respondent told her for three reasons.

a) First, she was not shaken in cross-examination about what the Applicant had stated to her.

b) Second, she has no interest in the outcome of the trial and therefore had no reason to fabricate her testimony.

c) Third, she testified that she made notes of her conversation with the Applicant and other family members during and shortly after her interview with them.

[28] Furthermore, I am not fully convinced that the Applicant will comply with a court order regarding the Respondent’s involvement in raising the children. The Applicant struggled to give an answer to this question posed to her by the Children’s Lawyer. Furthermore, and as I will discuss later, the Applicant has a checkered history of complying with court orders.

[29] For the above reasons, I am of the opinion that sole custody of the children by the Applicant will merely exacerbate the children’s alienation from their father and his marginalization by the Applicant.

ISSUE NO. TWO: Would joint custody be appropriate in this case?

[30] The Applicant’s counsel is correct that typically, the efficacy of joint custody in ensuring the best interests of the children of the marriage is predicated on a history of co-operative parenting or effective communication between their parents. Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont.C.A.).

[31] However, this is not the only basis for an order of joint custody. Such custody may be justified to preserve a parent’s relationship with his or her child or children, particularly in cases where the objecting parent seeks to marginalize and limit the other parent’s involvement with the children.

[32] In this case, the Applicant testified that she now desires that the Respondent have regular access to the children. This apparent change of heart may suggest that she has no intention of marginalizing the Respondent and to that extent, an order for joint custody is not justified.

[33] However, the Applicant’s testimony flies in the face of her past conduct and utterances about the Respondent’s interaction with the children of the marriage.

[34] For example, she testified that when Areeb returned from Halifax in August 2013, his shoes were “stinking” because he had never removed them while he was with the Respondent in Halifax. He kept his shoes on because he did not wish to be with the Respondent.

[35] The Respondent, however, gave credible and trustworthy evidence that his sons enjoyed the time they spent with him in Halifax. He took them whale watching, to a science centre, a magic show and on a boating trip. He enrolled Aarish in a science camp organized by the Dalhousie University. He presented photographs, marked as Exhibit 6 in the trial, confirming that the children, particularly Areeb, had had an enjoyable time with him in Halifax. To that extent, I do not accept the Applicant’s testimony that the children were unhappy while in their father’s company in Halifax.

[36] The fact that the Applicant objects to joint custody is not an absolute bar to such an order. Ladisa v. Ladisa (2005), 2005 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.). The Applicant cannot create conflict with the Respondent and then claim sole custody of the children on the basis of a lack of cooperation or communication with the Respondent: See Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 15.

[37] Undoubtedly, joint custody may be inappropriate in a high conflict situation: see Ursic v. Ursic (2006), 2006 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 25-27. However, the conflict between the Applicant and the Respondent cannot be construed as such. Once the Applicant’s hostility to the Respondent’s involvement in the children’s lives dissipates, joint custody is not only viable but it is entirely consistent with the children’s best interests.

ISSUE NO. THREE: How much access should the Respondent have to the children?

[38] There is unanimity of opinion that the Respondent should have access to the children and that it is in their best interests that he has a harmonious relationship with them.

[39] The parties, however, diverge on the extent and nature of such access. The Applicant insists that the Respondent should have access to both children on every occasion that he has them and that there should be no overnight access. Counsel for the Applicant insists that having both children may have a positive effect on Aarish and may dissipate the latter’s hostility to his father.

[40] That may well be the case. Equally plausible however, is the fact that if Aarish, whose hostility towards his father has shown no signs of dissipating, is present whenever Areeb is in the company of his father, there is a risk that Areeb would similarly be led down this unfortunate path of anger and hostility towards his father.

[41] Aarish should not be placed in a position where he has to police Areeb’s interaction with his father. Areeb deserves an opportunity to develop a healthy relationship with his father within a context where his actions are not censured or circumscribed by his elder brother.

[42] Accordingly, the nature of access which is in the best interests of the children will involve occasions when the Respondent will have access to both children and others when he will have access to Areeb only. To that extent, the Respondent will have a reasonable opportunity to build a meaningful, loving and productive relationship with both children.

ISSUE NO. FOUR: Should the Applicant be permitted to travel to Saudi Arabia with the children?

[43] The Applicant’s counsel advances the following arguments in support of the Applicant’s request:

a) It is a religious trip which will inure to the children’s benefit.

b) There is a religious justification for Aarish accompanying the applicant to Mecca since she requires a MAHRAM (escort) to do so.

c) The children of the marriage are doing very well in Canada and the applicant has no desire to uproot them from Canada.

d) The visa which the Applicant requires to travel would not allow her to remain in Saudi Arabia beyond the fifteen days that she intends to stay in Saudi Arabia.

[44] The Applicant has given no cogent reason why it is necessary, at this juncture, for her to travel on this religious pilgrimage to Mecca. She conceded that if she travels after she turns 45 years of age, she would not need to travel with a MAHRAM. Neither has she explained why the trip is necessary, given that Areeb, who is five years old, may not be old enough to truly grasp its significance.

[45] The second justification given by the Applicant for the children to accompany her is that she needs a MAHRAM. However, the Applicant testified that her father will be joining her on the trip. To that extent, there is no pressing religious need for Aarish to accompany the Applicant on the trip to Saudi Arabia.

[46] The Applicant’s record for complying with court orders does not inspire confidence that she will return to Canada with the children when her travel visa expires. The Respondent tendered emails from the Applicant which suggest that the Applicant only agreed to allow the children to travel to Halifax in 2013, after the Respondent raised the spectre of police enforcement of Price J.’s order. In some of the emails, the Applicant threatened not to send the children to Halifax unless the Respondent provide her with their travel documents.

[47] It is true that the Applicant did not travel to Pakistan with the children after Baltman J.’s order forbidding her from doing so with both children. However, it is clear that the Applicant disregarded the judge’s reasons for making her order. Baltman J. concluded that in refusing to inform the Respondent of her travel plans before making them, the Applicant presented her plans to the Respondent as a “fait accompli”.

[48] The Applicant has done the very same thing in formulating her plans to travel to Saudi Arabia. Not only has she presented her plans to the Respondent as a fait accompli, she has also presented these plans to the court as a fait accompli. She therefore testified that she has paid over $5,000 towards the trip and that the Saudi Arabian government has set a deadline of May 20, 2014, to issue her a travel visa.

[49] This decision, along with the Applicant’s decision to enrol Areeb in an Islamic school, provides cogent evidence that the Applicant strongly believes that she has the inalienable right to unilaterally make decisions involving the children.

[50] As a result of this factor and the others outlined above, there is a real possibility of flight risk if the Applicant is allowed to travel to Saudi Arabia with the children. There is no compelling reason for the children to accompany her. She has visited Mecca before. She has no familial ties to Canada. There is nothing preventing her, once she leaves Canada, from travelling to Pakistan with the children. Her overarching desire to immerse the children in her religion would be enhanced if she resides in a Muslim country where some of her family members reside.

[51] Accordingly, I am not persuaded that the Applicant should be allowed to travel to Saudi Arabia in the summer of 2014 with both children.

ORDERS:

[52] Based on the above, the court orders that:

a) Erum Adeel and Adeel Bin Afzal shall have joint custody of the two children of the marriage, Aarish Adeel, born March 3, 2001 and Areeb Adeel born September 6, 2008.

b) The two children shall have their primary residence in the home of their mother, Erum Adeel.

c) The Applicant mother shall be at liberty to make day-to-day decisions concerning the health, education and daily lives of the children, Aarish Adeel and Areeb Adeel.

d) Erum Adeel and Adeel Bin Afzal shall jointly make major decisions concerning Aarish and Areeb’s health, religion and education.

e) If the parties are unable to agree on any major issue or issues involving the health, religion or education of the children, they shall jointly retain the services of a Parenting Coordinator to resolve their differences. In choosing a Parenting Coordinator, each party shall provide three names within seven days of the deadlock. Each party may veto one name. If the parties are still unable to jointly choose a Parental Coordinator, the latter will be selected with the Applicant mother drawing the name of a Parental Coordinator from a hat.

f) The Respondent father, Adeel Bin Afzal, shall have the following access:

a) Commencing June 7, 2014, the first Saturday in every calendar month from 12:00 midday to 9:00 p.m. for both children;

b) Commencing June 9, 2014, the first Sunday in every calendar month from 12:00 p.m. to 5:00 midday for Areeb Adeel; and

c) Any other access as mutually agreed upon by the Applicant and Respondent.

g) The Respondent shall have daily telephone access to the children from 7:30 p.m. to 8:00 p.m.

h) The following “Holiday Access” shall override the Access schedule outline in paragraph “f”.

a) Eid al-Fitr: in odd numbered years, the Respondent shall have the children at 6:00 p.m. on the day before Eid al-Fitr until 10:00 p.m. on the day of Eid al-Fitr. The date of Eid al-Fitr shall be as issued by Masjid Al Farooq, located on Eglinton Road, Mississauga, ON.

b) Eid al-Adha: in even-numbered years, the Respondent shall have the children at 6:00 p.m. on the day before Eid al-Adha until 10:00 p.m. on the day of Eid al-Adha. The date of Eid al-Adha shall be as issued by Masjid Al Farooq, located on Eglinton Road, Mississauga, ON.

c) March Break: in even-numbered years, the Respondent shall have the children from 6:00 p.m. on the last day of school until the following Friday at 5:00 p.m.

d) Father’s Day: unless conflicted by a), b), or c) in this paragraph, the Respondent shall have the children from 6:00 p.m. until 9:00 p.m. on Father’s day.

e) Summer Vacation: the children shall reside with the Respondent for two weeks during the year 2015 (and every alternate year thereafter) during the children’s summer school vacation. The Respondent shall advise the applicant by May 30th of each year of the chosen weeks. The Applicant will have a two (2) week period to advise of alternative weeks along with any reasons for doing so.

i) The parties shall share in transporting the children when the Respondent father exercises access to the children. The father shall be responsible for the pick-up of the children when he exercises access to the children from the mother’s home and the mother is responsible for picking up the children from the father’s home. Both parents shall ensure that the children are ready for pick-up at the scheduled time.

j) Neither party shall make disparaging remarks about each other to the children or within hearing distance of the children.

k) The Applicant mother shall immediately provide the Respondent father with the names, addresses, and phone numbers of all health practitioners and other professionals providing services to the children.

l) In the event of any medical emergency involving Aarish Adeel and or Areeb Adeel, the Applicant mother, Erum Adeel, shall inform the Respondent father, Adeel Bin Afzal, immediately or as soon as reasonably possible.

m) If the Applicant intends to travel to Saudi Arabia in July or August of this year, Areeb Adeel must be left in the custody of the Respondent father until her return from Saudi Arabia.

n) The Applicant mother shall be the custodian of Areeb Adeel’s passport, while the Respondent father shall be the custodian of Aarish Adeel’s passport.

o) The Peel Regional Police Force and any other police services where the children may be found are directed and authorized to enforce the custody and access provisions of this order. This clause shall expire one year from the date that it was granted.

COSTS:

[53] The Applicant seeks costs of $8,053.92 on a substantial indemnity basis and $4,972.52 on a partial indemnity basis.

[54] The Respondent seeks costs in the amount of $6,875 on a substantial indemnity basis.

[55] In determining what quantum of costs are fair and reasonable in this case, I consider the following:

a) The Respondent was substantially successful in this trial.

b) The issues, while not complicated, were important to both parties.

c) The trial lasted three days.

d) The Applicant’s intransigence on the issue of custody and the Respondent’s involvement in the major decisions in the children’s lives.

e) The Respondent’s offer to settle.

[56] Based on the above, the Applicant shall pay the Respondent costs in the amount of $4,000 inclusive, within ninety (90) days of today’s date.

Andre J.

Released: May 28, 2014