SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3006/13
DATE: 2014-06-16

RE: WAQAR ZAIDI, Applicant

AND:

SAIREENA QIZILBASH, Respondent

BEFORE: Gray J.

COUNSEL:
Brahm D. Siegel, Counsel for the Applicant

Pam Hundal, Counsel for the Respondent

Todd Moore, Counsel for the Office of the Children’s Lawyer

HEARD: June 12, 2014

ENDORSEMENT

[1] In my reasons for judgment dated January 9, 2014, I directed that a review of the issues of custody and access take place. That review was conducted on June 12, 2014.

[2] Before discussing the issues and my conclusions on the review, I will deal with two preliminary issues.

[3] First, counsel for the applicant has brought a motion to prohibit the respondent from taking any further steps in this case until she has paid the costs award of $65,000 that I ordered after the trial. I decline to make that order. What is before me are issues relating to the best interests of, and the welfare of, children. It is important that the court have the best evidence available to make determinations as to the best interests of, and welfare of, children. That means that the court must hear from both parties and, in this case, the Office of the Children’s Lawyer.

[4] In due course, it is likely that the applicant will be able to collect the outstanding costs. The status of the home, which is currently in the name of the respondent, is in issue. Regardless of the outcome of that litigation, it is likely that the applicant will be able to collect the outstanding costs order out of the respondent’s share of whatever interest she has in that property.

[5] The other preliminary issue relates to notes made by Roy Reid, the clinical investigator appointed by the Office of the Children’s Lawyer. He made those notes while interviewing the children, in order to assist counsel for the children. The notes were inadvertently provided to counsel for the applicant. The applicant made reference to those notes in his affidavit filed on the review, and the notes themselves were made an exhibit to his affidavit.

[6] Mr. Moore, counsel for the OCL, has requested the return of the notes and has asked that any copies of them be destroyed. That request was resisted by counsel for the applicant.

[7] In my view, the notes are privileged. The Children’s Lawyer is counsel for the children. Any notes made by counsel, or an agent on his behalf, in interviewing counsel’s client are absolutely privileged.

[8] I direct counsel for the applicant to return the original notes forthwith to Mr. Moore, and I direct that he destroy any copies of the notes in his or his client’s possession. I have removed the copies of the notes that were attached as exhibits to the applicant’s affidavit and I have destroyed them.

[9] As to the review itself, I ordered, in my reasons for judgment, that the applicant have custody of all three children; that the respondent have access to the boys in accordance with the boys’ wishes; that Samyra live with each party in alternate weeks; and that the parties make counselling available to the children with the cost equally shared.

[10] Each party has filed an affidavit on this review. As well, Roy Reid, the clinical investigator for the OCL, has filed an affidavit, on which he was briefly cross-examined at the review. In the material filed on the review, there is a report written by Lourdes Geraldo, the counsellor. Also in the material is a report by the Children’s Aid Society arising out of an alleged incident involving Samyra.

[11] From the material filed with me, it is apparent that both parties have allowed their emotions to cloud and influence their conduct towards each other, and that that has had an influence on the children. This is much more apparent, however, in the case of the respondent.

[12] The applicant’s attitude is reflected in some of the email correspondence that I have reviewed. His emails are in some respects accusatory and demeaning. In fairness, they are equally so from the respondent.

[13] It is apparent that both parties have discussed at least some of the issues in this case with the children.

[14] For the applicant’s part, it is obvious he has discussed with the boys the dispute regarding the home occupied by the respondent. As noted earlier, there is an ongoing dispute as to the ownership of that home. Apparently, the respondent listed the home for sale and the applicant put at least one offer on the home for more than the asking price, that was refused by the respondent. The boys have become aware of this issue, and have discussed it in the context of their reasons for not wishing to see their mother.

[15] In my reasons for judgment, I indicated quite clearly that I thought it was in the interests of the boys that they try to resume a relationship with their mother. It was not helpful for the applicant to pour gasoline on the fire by discussing the property issue with the boys and, in effect, blaming the respondent for the problem.

[16] It is clear that the respondent cannot get past her own feeling of grievance, and this affects her ability to do what is best for the children.

[17] Ms. Geraldo attempted to arrange meetings between the boys and their mother. Kamran refused to have such a meeting, but Yusuf reluctantly agreed.

[18] Notwithstanding that Kamran refused to have a meeting with his mother, the respondent nevertheless insisted on barging onto a squash court and confronting Kamran. It caused a scene, and much embarrassment to Kamran. To say that this was unwise is an understatement.

[19] There was a meeting between Yusuf and his mother in the presence of Ms. Geraldo. It is clear from Ms. Geraldo’s report that the meeting did not go well. In her report, Ms. Geraldo stated:

Throughout her involvement Ms. Qizilbash presented as emotionally distraught, distrustful of the process and the professionals involved and she expressed feeling disillusioned with the legal process. She was at times able to accept feedback and to demonstrate some insight into her situation but for the most part she remained fixed upon her rigid view of the history and the current situation. She clearly loves her children but she is significantly challenged in moving beyond her own feelings of loss to focus on the children’s individual experiences and concerns and emotional needs. Ms. Qizilbash’s sense of loss and sadness of the disruption of her relationship with her sons reinforced her negative view of Mr. Zaidi. Ms. Qizilbash was not able to see the extent of her emotional reactions upon the children, nor was she able to see her challenges in managing those reactions. This was clear in the joint session with Yusuf. Ms. Qizilbash made efforts to communicate her love and affection for Yusuf but this was overshadowed by the manner in which she was drawn into debating, contesting and countering views and feelings. This was a difficult meeting for Ms. Qizilbash to participate in but even more so for Yusuf. Further joint sessions are not recommended at this time, at least until there is a final outcome of the litigation.

[20] It is clear, in my view, that the respondent must continue to have access to the boys only in accordance with the wishes of the boys. I see no value in any continued counselling for the boys, and I order that it be discontinued for them. Hopefully, when the boys approach or achieve adulthood, they will be better able to decide whether they wish to have a relationship with the respondent, and if so, on what terms. At the moment it is clear that the respondent cannot get past her own emotional turmoil, and she cannot see how it is affecting her ability to have a positive relationship with the boys, and how it affects the boys’ perception of her.

[21] The situation with Samyra is more complicated.

[22] For several months, Samyra has lived with each party in alternate weeks.

[23] Mr. Reid, the clinical investigator, had two meetings with Samyra, on March 1, 2014 and April 29, 2014. What he was told by Samyra about her father at the two meetings was quite different and disturbing.

[24] Mr. Reid described the first meeting with Samyra as follows:

a. During the first interview on March 1st, Samyra had commenced spending alternating weekends at her father’s home. Samyra did not like spending overnights because she was used to sleeping at her mother’s home. She recalled the first sleepover at her father’s and felt scared because she was alone. She was able to describe several activities engaged in with her father and brothers. She discussed her parents continuing to be angry with each other and still arguing. She discussed a comment by her father that the parents only agreed on one thing; that it was their fault that they argued, not the children’s fault. Samyra felt that her mother was like a balloon, and her father was a pin floating around and occasionally coming down on her mother and fighting.

b. At the first meeting, Samyra gave very high “parenting grades” to both of her parents. She felt that her mother took anywhere she wanted to go, and her father did the same thing but would not let her call her mother when she wanted to. She discussed that when she was with her mother, she did not want to call her father.

c. At the first meeting, Samyra’s perfect world would have had her whole family, including her mother, brothers and father, staying in a Niagara Falls hotel. Her message to her parents would have been: stop fighting and try to get along. She felt that in time, her parents might not fight so much.

d. At the first meeting, Samyra discussed her views about school. She felt that when she was sad and her stomach started to hurt, her teacher would call her mother who would come and get her to take her to the doctor. She preferred to attend Post Corners School because it would not take two hours to get to school and she would not have to wear a uniform. When discussing her attendance record, Samyra believed that the school got the numbers wrong in her report card. She felt she had only been absent for 8 days and given 4 late slips. She felt that she was late sometimes because she did not wake up on time. She reported that she told her mother who said she would try and put Samyra in the other school. She told her father once but he wanted her in Wali Ul Asr School. She felt that her mother usually agrees with her father because she does not want to fight in front of the kids.

[25] Samyra’s description of her father at the second interview was quite different. Mr Reid described it as follows:

g. At the second meeting, Samyra felt that her time with her mother was perfect but with her father it was not good. She complained that her father screamed for very little reason, that he made her brothers do everything that he was supposed to do (she described her father as an owner and Kamran and Yusuf as dogs to whom he would throw a stick). She felt that her father screamed at her brothers a lot and treated them like slaves. She also felt that her father treated her like a slave, by telling her to clean up her mess including forks and dishes. She felt like a princess while at her mother’s but a slave while at her father’s.

h. Samyra believed that her father made the housekeeper, Chin, say that she raised Samyra and that Ms. Qizilbash never raised her. Samyra believed that this woman was named ‘Chin’ but was not sure because she did not know this woman. Samyra expressed feeling fear of her father, and particularly that her father would hit her or scream at her. She believed he had done so before, hitting her with a toy airplane. Also, she complained that her father did not let her call her mother.

i. Samyra felt that while she in her mother’s home, she was happy, special, loved, treated like a princess, helped, cared for and played with. While in her father’s home, she felt like she was in a dungeon and again, treated like a slave. She conceded that her father at least took them to the park and biking. She was noted to be looking over her shoulder towards the office window quite a number of times, and was clearly concerned that her father might overhear her comments.

j. Samyra believed that her mother was happy sending her to her father’s home, and would tell her that it was a good thing to be there. She felt that her mother would encourage her to be positive about it. On the other hand, she felt that whenever she said something positive about her mother in front of her father, he would ask to speak about something else. She expressed concern that her father would not allow her to sleep with her mother but would force her to sleep with him. I would note here that on May 3, 2014, Ms. Qizilbash sent an email to OCL counsel as well as other parties including her own counsel, Lourdes Geraldo and Dr. Bai, expressing concern about Samyra and her father sleeping in the same bed. Ms. Qizilbash expressed concern that despite the child’s complaints to professionals, and despite the issue being brought to the attention of the Halton CAS worker Lisa Potts, no one was taking any action.

k. Samyra believed that in front of the Office of the Children’s Lawyer representatives or other third parties, her father acted like he loved her, however when they were at home alone he would scream at her. She discussed that her father called her a beggar and a dog. She discussed being questioned recently by the CAS worker, Lisa Potts, who asked questions about what her mother did to reprimand her. Samyra responded that she was sent to her room for 5 minutes. When asked whether she raised her concerns about her father with Ms. Potts, Samyra replied no because she was not directly asked about her father, only her mother.

l. At the second meeting, unlike the first one, Samyra gave an extremely high parenting grade to her mother but a very poor grade to her father. She was noted again to be looking over her shoulder at the entry for fear her father might be there. She felt that her brothers spent less time with her than she wanted because their father made them do extra work. She felt that when her father left the home, they would have fund, but when he returned her brothers would work. She discussed her brother, Kamran, telling her mother that he was afraid of their father when she met him at the squash court. She learned this from her mother. When Kamran saw her father coming, he told her mother to go so as to avoid being seen.

m. At the second meeting, Samyra’s perfect world would have her in Florida with her mother and brothers, and her father in hell. She was embarrassed to say the word ‘hell’ and wrote it out. She described hell for Muslims as a place with fire where you hang but do not die. When asked if she could truly imagine seeing her father there, she replied yes. She explained her view by saying that when her father was living with her, her mother and brothers, she treated them all like slaves; he would travel all the time and her mother had to do all the work. She described her father as being cruel and mean and stated that she did not like him. Samyra believed that her brothers would tell the OCL representatives something different because they were afraid of their father. She discussed her father telling her to say to Todd Moore that she wanted to live with her father and has fun at his home. However, Samyra truly wanted to live with her mother and have fun at her home. She felt that her mother just wanted her to be happy.

[26] The difference in the description of Samyra’s views is startling. At the first meeting with Mr. Reid, she gave very high parenting grades to both her parents. Her perfect world would have had her whole family, including her mother and her father, staying in a Niagara Falls hotel. At the second meeting, she said her father screamed at her brothers and treated them like slaves. She felt like a princess while at her mother’s, but a slave while at her father’s. She expressed fear of her father, and particularly that her father would hit her or scream at her. While in her father’s home, she felt like she was in a dungeon and treated like a slave. She said her father called her a beggar and a dog. In her perfect world, she would be in Florida with her mother and her father in hell. She described her father as being cruel and mean.

[27] It is instructive to note that Samyra had been told by her mother that when she met Kamran at the squash court, Kamran told his mother that he was afraid of his father. She also believed that her brothers would tell the OCL representatives something different because they were afraid of their father.

[28] The boys have said nothing of the kind about their father. They clearly worship their father, and this has been expressed time and time again to the OCL. Kamran’s own description of what happened at the squash court has been reviewed earlier. He was clearly upset and embarrassed at the scene his mother caused. There is no suggestion that he told his mother that he was afraid of his father.

[29] Mr. Reid conducted interviews with the boys. Without going into detail, they relate a very positive relationship with their father. They give no indication whatsoever that their father has behaved badly towards Samyra, or has mistreated her in any way. One would have thought that if the applicant had treated Samyra in the ways described in her second interview with Mr. Reid, at least some of it would have been noticed by the boys and related to Mr. Reid.

[30] I note parenthetically that both of the boys have confirmed that on occasion Samyra has slept in the same bed as her father. They explain that this happens sometimes if Samyra and her father are watching television and she falls asleep. In my view, in view of the background canvassed in my original reasons for judgment, it is imperative that Samyra not sleep in the same bed as her father, and I direct that if Samyra falls asleep in her father’s bed she must be moved to her own bed.

[31] There was a further allegation that the respondent was responsible for injuring Samyra’s feet, possibly by burning them. The evidence about this was inconclusive. I have not given it any weight.

[32] I am convinced, even more than I was at the original trial, that Samyra’s negative views about her father are the product of alienation by her mother. There is no other rational explanation for Samyra’s different perceptions of her father as expressed at the two meetings with Mr. Reid. Regrettably, the respondent seems to believe that the only way she can foster a close relationship with her daughter is by discouraging a positive relationship with Samyra’s father. She clearly does so by painting the applicant as a bad person who treats his children like slaves.

[33] In addition to this concern, it appears that Samyra continues to miss school while she is with the respondent. The school records in this respect are clear. I do not accept the respondent’s explanation that the applicant and the owner of the school are falsifying the attendance records in order to detrimentally affect the respondent’s case.

[34] I have given anxious consideration as to what to do about Samyra. I think it is clear that the respondent’s alienating behaviour will not abate. If anything, it has increased.

[35] One option I have considered is to simply allow Samyra to live with her mother. She is clearly aligned with her mother, and I am not certain that that will change. However, I do not think that is an appropriate solution. If she lives with her mother full-time, she will clearly lose any relationship with her father.

[36] I have considered allowing the status quo to continue. That is, Samyra would continue to live with each parent in alternate weeks. I have also considered discontinuing any telephone contact between her mother and Samyra while she is living with her father. However, I do not think this solution is appropriate either. When the respondent is with Samyra for a lengthy period, she has opportunities to convince her daughter that the applicant is a bad person. She obviously does this in order to convince Samyra that she should not be living with her father, but rather with her mother.

[37] As reluctant as I am to change the status quo, I think the only option is to accede to the application’s suggestion that Samyra live with her father full-time, subject only to access visits with her mother on alternate weekends. That is the order I will make.

[38] The respondent should clearly understand that this order is being imposed only because of her alienating behaviour. If she continues with this behaviour, she runs the risk that she may lose access to her daughter altogether, or that access may be supervised.

[39] The respondent should understand that this order is not being made to punish her. It is being made only because I think it is in her daughter’s best interests that it be made. It is in Samyra’s best interests that she have a relationship with both parents. At the moment, Samyra will continue to have one. However, the respondent will eventually run the risk that she will have no relationship with her daughter, or one that is severely restricted, if she continues on the path that she is on.

[40] The respondent should also understand that while the order I am making is final, it is possible that it might be changed again in the future. This might work to her advantage or her disadvantage, depending on her behaviour.

[41] If the respondent continues with her alienating behaviour, and the best interests of her daughter are adversely affected even more, that can constitute a material change in circumstances and respondent’s access could be restricted even further: see Kerr v. Easson, [2013] O.J. No. 1931 (S.C.J), at paras. 58-61 and 66-67; aff’d [2014] O.J. No. 1393 (C.A.). On the other hand, if she produces convincing evidence in the future that she has learned that her alienating behaviour is wrong; that it will not recur; and that she will henceforth encourage a positive relationship with the applicant, this could constitute a material change in circumstances and could lead to increased access: see Merkand v. Merkand, [2006] O.J. No. 528 (C.A.), at para. 6.

[42] In the final analysis, it is time to make the resulting order final, subject only to variation in the event of a material change in circumstances. A series of reviews only serves to perpetuate the litigation. That is not in anyone’s interests.

[43] For the foregoing reasons, I rescind the order reflected in paragraph 172 of my reasons for judgment dated January 9, 2014, and I order as follows:

(a) the applicant shall have sole custody of the children, Kamran, Yusuf and Samyra;

(b) Kamran and Yusuf shall continue to primarily reside with the applicant;

(c) the respondent shall continue to have reasonable access to Kamran and Yusuf, in accordance with their wishes;

(d) effective Friday, June 20, 2014, at 5:00 p.m. or after school as the case may be, Samyra shall primarily reside with the applicant;

(e) effective Friday, June 27, 2014, Samyra shall reside with the respondent on alternate weekends, from after school on Friday until the commencement of school on Monday, the first such weekend to commence on Friday, June 27, 2014; if there is no school, access shall be from Friday at 5:00 p.m. until 9:00 a.m. Monday;

(f) effective immediately, counselling for Kamran and Yusuf shall be discontinued, but shall be continued for Samyra, with the cost equally shared until further order of the Court;

(g) if the parties are unable to agree on visiting arrangements on vacations, holidays, Mother’s Day and Father’s Day, either party shall have liberty to apply to the Court on short notice.

[44] I decline to appoint a parenting coordinator. Apart from the cost, I do not think it would assist these parties, and may make matters worse.

[45] I shall no longer be seized of this matter. This order shall be final, subject only to variation in the event of a material change in circumstances.

[46] I will entertain brief written submissions with respect to costs, not to exceed three pages together with a costs outline. Counsel for the applicant shall have five days to make submissions, and counsel for the respondent shall have five days to respond. Counsel for the applicant shall have three days to reply.

[47] There shall be no order as to costs for or against the OCL.

[48] I would be remiss if I did not express my appreciation to Mr. Moore and Mr. Reid for the assistance they have given the Court in this difficult matter. Their conduct in this case exemplifies the value the OCL brings to this process, and highlights the need for the OCL’s involvement in high conflict cases.

Gray J.

Date: June 16, 2014