CITATION: Kozo v. Ahmed, 2015 ONSC 3608
COURT FILE NO.: FS-14-81114-00
DATE: 2015-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EDISA KOZO
Barbara J. Thurston, for the Applicant
Applicant
- and -
SALMAN AHMED
Sarah M. Boulby, for the Respondent
Respondent
HEARD: May 13, 14, 15, 19, 20, 21 and 22, 2015
REASONS FOR JUDGMENT
SNOWIE J.
[1] This is a high conflict case.
[2] The applicant and respondent are both Sunni Muslims. The applicant was born June 6, 1980 in what is now Bosnia and Herzegovina. She came to Canada in 1992 at the age of 12 years of age and became a Canadian citizen in approximately 1998. The respondent was born June 21, 1973 in Pakistan and came to Canada around 2001 for education purposes. The respondent obtained his Canadian citizenship but has not resided in Canada since 2006. From 2006 until 2008 the respondent resided in Pakistan. He then moved to Dubai, United Arab Emirates where he continues to reside and work as an Assistant Vice-President for the Mashreq Bank.
[3] The parties met when they were both students at McMaster University in Hamilton, Ontario in 2003. They became engaged in 2007 and married on May 3, 2009 in Toronto. After the marriage the respondent returned to Dubai and the applicant remained living in Mississauga and was working fulltime with the Ontario Government in Toronto. From November 2009 to July 2010 the applicant took a leave of absence from her work and joined the respondent in Dubai. She returned to Canada and her same employment in July 2010.
[4] On January 12, 2011 the parties’ daughter Halima was born in Canada. After the birth of their daughter the applicant took maternity leave and a further unpaid leave of absence from work. The applicant and Halima joined the respondent in Dubai around May 20, 2011. The applicant and Halima returned to Mississauga, Ontario for a visit with her family from April 13, 2012 to June 25, 2012.
[5] The parties separated from each other on August 31, 2012 and the mother and child returned to Toronto. The mother returned to her former employment.
[6] The applicant testified that she discovered that the respondent had been unfaithful to her numerous times throughout their relationship. The applicant testified that the respondent also was extremely crude and verbally abusive to her and that he excluded her from his social activities. The applicant testified that on August 13, 2012 the respondent told her that he thought that they should separate as their relationship was not working out. The applicant testified that the respondent told her to pack her luggage and return to Canada with Halima. She returned to Canada with Halima on August 31, 2012 on a one-way ticket with the respondent’s full cooperation and permission. She testified that the respondent drove them to the airport. The applicant testified that she and the child could not have left Dubai without the respondent’s permission and Halima’s passport, which, according to the applicant, the respondent had been hiding from her at his employment office before this event.
[7] Although the applicant’s unpaid leave of absence was to end on December 31, 2012, she returned to work on October 1, 2012 with the Ontario Government.
[8] While the respondent remained in Dubai, the applicant testified that he maintained contact with Halima by Skype, which was always facilitated by her. Between May 10, 2013 and July 10, 2013 the respondent was in Canada and he visited with Halima almost daily. This contact was facilitated and supervised by the applicant. After the respondent left Canada on July 10, 2013, the applicant continued to facilitate contact between the respondent and Halima through Skype. At first it was voluntary and then on September 12, 2013 it was ordered by Justice Parent of the Ontario Court of Justice.
[9] The respondent returned recently to Canada for this trial on May 1, 2015.
[10] Originally on April 30, 2013 the applicant brought this case before the Ontario Court of Justice in Brampton for custody of Halima, child support, spousal support, non-removal order, and a restraining order.
[11] On March 2, 2015 this matter was moved to the Superior Court of Justice as the applicant was also now seeking a divorce.
[12] The applicant seeks sole custody of Halima. The evidence is undisputed that the applicant has always been Halima’s primary caregiver. The applicant has never been separated from Halima. The respondent has had very minimal direct involvement with Halima, other than over Skype and financially providing for her.
[13] While the applicant and Halima lived with the respondent the applicant testified that he never bathed, changed, washed or fed her, he never cooked or shopped for her or took her to any social activities. The applicant testified that the respondent never took Halima or herself on vacation anywhere (except to Pakistan to visit with his family) nor outings, nor social events.
[14] Since separation the applicant testified that the respondent has been to Canada only twice to spend time with Halima. He had not seen the child in person for approximately 22 months prior to this trial.
[15] The applicant argued that Halima has a close and loving relationship with her and that Halima needs the security of the uninterrupted and continuing relationship with the applicant, I agree. The applicant denies being a flight risk as alleged by the respondent. The applicant has been employed in a stable, fulltime and gainful position with the Ontario Government, Ministry of Finance since April 2008 as an Economist. Her extended family live here, and she and the child live with her parents. I find that she is not a flight risk.
[16] The applicant testified that she feels that the respondent is a flight risk. The respondent has no close relatives in Canada. He only resided in Canada from 2001 to 2006 while a student. His parents and sisters reside in Pakistan, and one sister resides in Saudi Arabia. Although he has Canadian citizenship he is also a citizen of Pakistan. He has stable, fulltime and gainful employment in the United Arab Emirates. The applicant testified that the respondent has repeatedly told her that he wishes to obtain a Pakistani passport for Halima, although she already has a Canadian passport. The applicant fears that he may have already obtained a Pakistani passport for the child without the applicant’s consent or knowledge. The applicant testified that the respondent has repeatedly threatened to take Halima away to a remote area in Pakistan where the Applicant would never be able to find the child. The applicant testified that the respondent has also threatened to take Halima away from the applicant if she ever remarried. The applicant has no present plans to remarry.
[17] The applicant testified that during the respondent’s visits to Canada before the September 12, 2013 order of Parent J. (Ontario Court of Justice) the respondent would not take any reasonable steps to assure her that he was not a flight risk, so the applicant had to take the step to supervise all in-person access with Halima. If the respondent was to take Halima out of Canada, the respondent would have no reason to return her. Neither Pakistan nor the United Arab Emirates are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. Given the patriarchal laws in both countries the respondent has ties to; the applicant testified that she would have no remedy if the respondent were to take Halima to either country and refuse to return her. She is genuinely fearful. Given all the evidence I find that her fears are grounded.
[18] The applicant testified that the respondent continues to refuse to give her a Muslim “Talaq” (divorce), which she testified severely restricts her rights in much of the Islamic world. The respondent testified that he does not wish to give a religious “Talaq” divorce but has offered to consent to the “Khula” without any conditions. His position is that he has in no way impeded the applicant from obtaining “a religious divorce” nor her religious remarriage. His motives are questionable and raised concerns for this court.
[19] Although this court has no jurisdiction to order either the Muslim “Talaq” or “Khula” divorce, the fact that the respondent refuses to give the Talaq to the applicant in this instance may simply be further evidence of his obsessive control issues with the applicant and his need to punish her in my opinion. This court heard evidence from both the applicant and from a Muslim Iman (Abadalla Ali) on the differences and pros and cons of each type of divorce. I accept their evidence. Their evidence was factually the same but I felt as a Muslim Cleric the Iman Abadalla Ali was more concise. He testified as a lay witness not an expert but he has the experiential capacity to give evidence on this issue in my opinion. He states at page 10, 11, and 12 of the transcript of his testimony as follows:
THE COURT: So in other words, there’s a big problem with a Khula if she was to travel abroad because she may be seen as a woman who is…
A. Married.
THE COURT: ...not properly divorced and as a result all of her rights as a single person would not be available to her, she would still be a married woman.
A. Yeah. And as a matter of fact I did mention that there is a case, I have it here, unfortunately this is a professor whose wife, like we received letters from – that this woman is married to a man and I just happened to know him so I called him in my office and I said – and she almost collapsed when I told her this, so I called him, he said, “No, I didn’t do it”. I said, “No, she is divorced, she has the right to do it, you have no right to go after her to do this”. So that’s where we get worried, because if it goes there then it becomes a problem for them, for women in particular.
THE COURT: And what kinds of problems could it present?
A. The only thing is that one time the question of her, if she wants to get married to another person, then we say that she is not married. We have very, unfortunately painful cases from people like this, sometimes a person will walk into my office with a CD saying that, “This Iman married my wife and she’s my wife”, but she’s not your wife, she’s divorced from you and because he didn’t give her this divorce or Khula that they had, he still claims that he’s her husband. That’s the only thing that we worry about.
THE COURT: And what about things like custody of a child?
A. That is again another issue, because that’s an area of dispute normally with, with children, because again in Islam if the man goes and says, for instance he has a daughter, and the woman marries another man and he becomes a step-father, he says, “I don’t trust him”, or something like that. So these are things that we always advise the couple to negotiate them and try to settle them without getting into problems like this.
THE COURT: So if she were to travel outside of the country to, say Pakistan or say…
A. Any country.
THE COURT: …any country…
A. Mm-hmm.
THE COURT: and they did not recognize the Khula, then the custody of her child, even though she might have custody by this court, could be in jeopardy, is that…
A. Yeah.
THE COURT: …correct?
A. Yeah, absolutely.
THE COURT: And, and…
A. And there are cases like this…
THE COURT: …where they went and they….
THE COURT: …and he could…
A. …and he could take the child?
A. Yeah. And a court there can rule for, for him to take the children. That’s the danger she runs.
[20] This court also heard evidence from a second Iman called by the respondent – Iman Mohamed Masis Byayat. He testified that all the various Muslim divorces are recognized throughout the Islamic world (being Talaq, Khula and Fasaqh). He testified that he did not have any experience with a Khula not being recognized. He testified that the Talaq and the Khula have the same result. He testified that most Muslim divorces are done by Talaq.
[21] The two different testimonies of the two Imans demonstrates the problem. Islam is a non-hierarchical religious and the interpretation appears to differ from Iman to Iman and thus likely from place to place. Both Imans told this court the truth as they believed it to be. They both however agreed that the Talaq was without question the normal form of Islamic divorce and recognized worldwide. The different testimonies of the two Imams is the applicant’s concern “in a nutshell”.
[22] The question then remains if the Talaq and the Khula have exactly the same result and the Talaq has no downside to the respondent but the Khula has great downsides for the applicant in the application’s opinion, why does the respondent not give the applicant the Talaq? The respondent claims it is a “religious matter of private conscience”. This is a vague statement at best. The court heard no evidence from either Iman or the respondent about any type of “religious matter of private conscience”. In fact the Iman that testified on behalf of the respondent testified that the Talaq is the most common form of Muslim divorce throughout the Islamic world, with no caveats placed on it. The question remains, is the respondent still trying to control the applicant and/or is he hoping to find and/or take the child outside of Canada someday in a country of Sharia law and lay claim to the child’s custody because there is no Talaq? These are questions validly raised by the applicant as a result of the respondent’s behaviour and threats. I share her concern.
[23] The applicant is employed fulltime with the Ontario Government, Ministry of Finance as an Economist and her employment income is currently approximately $80,000 per year. The applicant made significant financial sacrifices to cohabit with the respondent in Dubai. She testified that she did not receive income while on her unpaid leave for 14 months (March 2012 to September 2012, and November 2009 to July 2010). However her income tax returns show income for:
2009 $63,388
2010 $28,930
2011 $55,488
2012 $31,954
2013 $72,179
from the periods that she did work each year.
[24] The applicant provided housekeeping, child care and other domestic functions for the family while living in Dubai. The respondent provided money for the family.
[25] The applicant has been receiving court ordered child support based on imputed income of the respondent by the Ontario Court of Justice of $200,000 per year since September 2013. The temporary child support order of Parent J. (Ontario Court of Justice) dated September 13, 2013 provides that the respondent shall pay to the applicant the sum of $1,633 per month. The temporary order further provides that the parties shall contribute to the after tax expenses of Halima’s daycare costs proportionate to their respective incomes, which was determined to be 27% for the applicant and 73% for the respondent.
[26] The applicant seeks the sum of $3,129 per month for spousal support, retroactive to September 1, 2012, based on the Spousal Support Advisory Guidelines, together with the sum of $2,129 per month for child support for Halima (being $1,633 for the Table amount and $496 per month for the respondent’s proportionate share of Halima’s section 7 expense (daycare fees), retroactive to September 1, 2012, for the Table amount, and retroactive to September 1, 2013, for the daycare fees), with credit to be given to the respondent for payments made since September 13, 2013.
[27] The respondent admits that his present base salary has increased since the granting of Justice Parent’s order in September 2013 from approximately $80,000 per year plus a potential bonus to $152,000 per year plus a potential bonus. He further admits that he pays zero income tax on these monies worldwide. As such his income needs to be grossed up for a Canadian equivalent: Federal Child Support Guidelines, S.O.R./97-175 as s.20(1), as amended. The respondent’s bonus in 2013 was approximately $32,000. He has chosen to take leaves of absences over the last two years in lieu of his bonus. That is his choice but it should not affect his income amount for the purposes of his child support obligation: Marquez v. Zapiola, 2013 BCCA 433. As such I impute a modest gross-up of 30% tax on his base salary ($152,000) and bonus ($32,000) being $55,200 for an imputed gross income of $239,200 per year. As such commencing June 1, 2015 the respondent shall pay to the applicant the sum $1923 per month child support for the child Halima. Additionally, the respondent shall pay the sum of $519 per month section 7 expenses to the applicant for the child’s daycare costs commencing June 1, 2015 and each month thereafter for a total monthly payment of $1923 + $519 = $2,442 per month.
[28] Support Deduction Order (SDO) to issue.
[29] On the issues of spousal support and retroactive support there shall be no order.
[30] This was a short marriage although there was one child born of it. The applicant has the same professional job with the Ontario Government that she had prior to marriage. She made in excess of $80,000 per year in 2014. There is no “need” displayed. The issue of compensatory support was raised but I received no quantitative evidence in this regard to support such a claim.
[31] The applicant testified that the respondent has chronically failed to comply with the temporary child support order made on September 12, 2013. He makes payments only when events in this case are scheduled. At present there are no arrears.
[32] The evidence shows that the respondent is presently up to date on his child support payments with FRO. However, his child support payments are chronically late. See as follows:
March 3, 2014 he paid $4,899 for arrears owed.
May 28, 2014 he paid $5,732 for his share of the child’s daycare expenses from September 2013 to June 2014 owed.
May 28, 2014 he paid $11,431 for child support arrears owed from December 2013 to June 2014.
September 19, 2014 he paid $3,266 for child support arrears owed from August 1, 2014 to September 1, 2014.
December 3, 2014 he paid $3,266 for child support for November 2014 and December 2014
April 17, 2015 he paid FRO $4,899 for child support for March, April and May 2015
[33] His share of the daycare section 7 expenses are also chronically late. I find that he is often non-compliant with the child support and section 7 orders.
[34] The applicant seeks a restraining order as she testified that the respondent is very controlling. For a period of time the respondent withheld Halima’s passport from her by taking it to his office in Dubai. The applicant testified that on or about November 2, 2012 the respondent threatened “to kill her”. The respondent denied under oath the allegation that he threatened “to kill her” on or about October 31, 2012. I do not believe his denial. In this trial there have been hundreds of emails submitted as exhibits by both sides. On November 26, 2012 the applicant wrote to the respondent as follows:
I would like to put the following on the record:
Couple of days prior to first weekend in November you called me at work and threatened me. You swore by Allah that you will kill me, the mother of your child! Does the mother of your child who takes care of your child deserve to be threatened with death and deserve death so that the child should remain motherless in this world??? And you talk of supposed civility on your behalf!!! Is that what you call civil?
After that threat my lawyer advised me that I do not even need to communicate with a person who is threatening to kill me. Hence, I stopped coming on Skype for the reason that you threatened to kill me and not for any other reason. So don’t think that I am actually eager for you to call me or talk to me or to show myself on Skype for you.
[35] This email was in response to a telephone call from the respondent at her work place. It is clear to me that the applicant was genuinely upset. She went to her lawyer on or about October 31, 2012 to report the death threat. She also attended to the Peel Regional Police to report the threat. She was then sent to the Toronto Police Service and made a “Statement” about the death threat. The Peel Regional Police sent her to the Metropolitan Toronto Police as the offence of threatening death had occurred while she was at work in downtown Toronto. This is a lot of trouble and inconvenience to go through for a false claim. I believe the applicant.
[36] Additionally there is not even a hint of surprise in the respondent’s subsequent emails about her alleged false statements concerning the death threats. There is no denial in the subsequent emails by the respondent. The respondent testified that there was an email expressing his surprise at this allegation but he could not produce it for this court. I do not believe the respondent. He has kept hundreds of emails. As such, I believe the death threat was made by the respondent towards the applicant. I find that the respondent has been untruthful with this court. As such, where there is a discrepancy between the evidence of the applicant and that of the respondent, I prefer the evidence of the applicant. It is clear to me that the respondent has tried to paint himself in a positive light both in his very self-serving emails and on the stand. His emails are often long winded setting out his “virtues” and attempting frequently to belittle and berating the applicant repeatedly.
[37] I am amazed at the applicant’s patience, self-control and self-restraint in not rising to the “bait” that the respondent is constantly bombarding her with in his emails. Her self-restraint is nothing short of impressive. The respondent attempts to bully the applicant repeatedly.
[38] It is clear from a full reading all of the emails in evidence that the respondent has an angry focus and/or an obsession with verbally abusing, belittling and/or berating the applicant. He is never satisfied with her behaviour. He is never grateful for her outstanding attempts to provide daily Skype access with this young child. He makes sarcastic, mean and uncalled for comments to the applicant frequently.
[39] I find that the frequency of the access ordered by the Ontario Court of Justice on September 12, 2013 was not reasonable and too difficult for all involved in this situation especially the child. At the time of the order the child was only a toddler (2 years of age). Her limited attention span was that of a normal 2 year old and it must have been almost an impossible feat by the applicant to try to keep the child engaged on the computer for 30 to 60 minutes at a time, in an unsupervised manner. The respondent clearly thinks only of himself and has always seen “his time” with the child as “his right” never the child’s right. It is clear that his rights come ahead of the child’s rights in his mind.
[40] He has in writing alleged that the applicant has tried “to alienate” his daughter from him by disrupting “his access” by taking the child to the toilet, giving her milk, etc., during access. He has even accused the applicant in writing of “training” the child to need to “poo” during (email October 18, 2013) Skype access. An unbelievably ridiculous allegation in my opinion. On October 18, 2013 the respondent wrote:
…you continue to converse with Halima in Bosnian and she regularly leaves (the computer – mine) to listen to you and people in your house, you give her milk to drink during my 30 minutes of interaction fully knowing that for the next 10 – 15 minutes she will now drink that milk and not communicate with me, you have also trained her to have a poo at my Skype time so she is away for another 10 – 15 minutes…
[41] The child was two years of age at this time. The applicant has indeed been outstandingly patient with these daily Ontario Court ordered Skype access visits.
[42] The applicant testified that the respondent has threatened “to take Halima away from her (the applicant) to a remote area in Pakistan so that she will never see her again”. The applicant testified that the respondent has threatened to report the applicant to the police for “kidnapping” Halima. The applicant testified that the respondent has made allegations that Halima is “not safe in the applicant’s care or that of her parents” and on three separate occasions the respondent has involved the authorities (the police and/or CAS) maliciously.
[43] The video evidence produced by the respondent as evidence for this court confirms to me that the child, being presently only 4 years of age, has difficulty holding her attention for 30 to 60 minutes with a computer screen. The child clearly gets tired of the same activity and wanders off camera, leaves the screen, whines when she is unwell and seeks out her mother for comfort. These behaviours are only normal for a 4 year old. The respondent continually complains that there are numerous disturbances during “his Skype access”. He regularly blames the applicant for these “disturbances”. I find that the respondent is unreasonable and unrealistic in his expectations of a 4-year-old’s attention span.
[44] The applicant testified that he has harassed her by telephoning her more than 20 times in one day, at her office, refusing to stop until she speaks to him and that he has sent her excessive numbers of email and text messages in one day, often with inappropriate content. He bullies her. She testified that he has told her that he will take Halima away from her if she remarries to prevent her stepfather from “raping her”. I find his thought process on this issue bizarre. The applicant testified that she is not in any relationship. The applicant has testified that she fears the respondent, and fears that he will remove Halima from the jurisdiction. I find that her fears are genuine and founded.
[45] The applicant testified that the respondent continues to harass her and her family with voicemails, text messages and emails, openly insulting her in his communications. The applicant testified that she has reluctantly agreed to permit the respondent to visit with Halima in her home and he has continued to verbally abuse her during access visits, saying, among other things, that she and her family “will pay on the day of judgment”. He makes these derogatory statements in the presence of the child.
[46] The applicant has testified that during the period of September 17, 2013 to April 28, 2014 (224 days) the respondent did not have Skype visits with Halima on 122 days (54% of the days) for the following reasons:
(a) On 98 days, the respondent did not appear for the Skype visits and did not provide the applicant with any notice that he would not appear. This includes 9 consecutive days from November 2, 2013, to November 10, 2013, when he advised the applicant that unless she guaranteed that the Skype visits would not take place at a friend’s home, that the applicant should “make sure you put [Halima] on and I will see which days I will show up,” and a further 15 consecutive days from February 28, 2014, to March 14, 2014.
(b) On 14 days, the respondent provided notice, but usually the notice was given only a few hours prior to the Skype time, and often the applicant did not receive the notice until after Halima had already waited for the respondent to Skype.
(c) On 5 days, the respondent was travelling, but he did not advise the applicant that he was travelling until after he had missed the first Skype visit, and he did not advise her as to when he would be resuming his Skype visits. The respondent gave the applicant insufficient notice as to when he wished to resume Skype visits with Halima, and when Halima was not on Skype because the applicant had not received his message on one occasion, he called the Peel Regional Police and reported the child as a “missing child”. This behaviour is outrageous and seriously taxes limited police resources. It is an abuse of the system.
(d) On 3 days, the respondent requested to forego his Skype visits in order for his parents to be able to visit with Halima, but neither the respondent nor his parents appeared on Skype for a visit.
(e) On 2 days, the applicant cancelled the Skype visits, once for personal reasons, and once because the applicant and Halima were on the road returning from their family trip to Quebec.
[47] The applicant testified that the daily Skype visits are a hardship to her. They interfere with her ability to work overtime, her normal life, her privacy, and her own time, including her own time with Halima. Halima is too young (4) for the Skype visits to be truly unsupervised (i.e., the applicant has to set up the computer, reconnect Skype when necessary due to Skype problems. The applicant should not have to tolerate the continual insults and complaints of the respondent during the Skype visits. The applicant testified that since the respondent does not consistently show up for his Skype visits with Halima, the number of visits should be reduced to reflect the actual number of visits which have taken place. The applicant wishes to be able to cancel or reschedule Skype visits when she is unavailable or when she and Halima are on vacation. The present Skype visits Monday to Friday are at 6:00 p.m. Ontario time. This creates daily stress on the child and the applicant as she works until 4:00 p.m. in downtown Toronto. She has to fight the traffic in and out of the City. She must then attend at the child’s daycare to pick up the child. Often she and Halima arrive home at 6:00 p.m. and must immediately go to the computer. The child is hungry and wants milk, the bathroom, etc. It is chaotic.
[48] The applicant testified that the respondent has complained about the time of the Skype visits but fails to acknowledge that in his Notice of Motion for Skype access to Halima he requested that such access take place each day at 6:00 p.m. Ontario time. The applicant testified that she made a counterproposal to the respondent to change the times to 6:30 a.m. Ontario time Monday to Friday for 15 minutes and 8:00 a.m. Ontario time Saturday and Sunday for a maximum of one hour. This proposal was rejected by the respondent. The respondent fails to recognize that the access must accommodate the child’s needs not his.
[49] The respondent testified that in August of 2012 the applicant left with Halima for a trip to Canada. He testified that the applicant did not tell him that she wished to end the marriage but rather told him that she needed to return to Canada in order to keep her job with the Ontario Government which she was on leave from. The applicant’s evidence was that he asked her to leave with the child and told her that the marriage was not working.
[50] After the applicant returned to Canada she was in contact with the respondent through email. The respondent testified that was when he learned that the marriage was in trouble, so he came back to Canada in the spring of 2013 in order to try and save it. The respondent testified that it was at this time that the applicant took advantage of him being in Canada and started a family law claim in the Ontario Court of Justice. Since the United Arab Emirates is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the respondent could not seek an order for the return of Halima to Dubai.
[51] The respondent testified that the applicant physically separated from him, surreptitiously, on August 31, 2012. The applicant unilaterally ended the marriage in February 2013. It is the respondent’s position that the applicant removed Halima from the family’s shared home in Dubai and commenced proceedings in Ontario and has frustrated the respondent’s contact with his daughter. I do not agree with the respondent’s position. I have read hours of email correspondence between the parties and heard 8 days of evidence. It is obvious to me that the applicant has been gracious, accommodating and supportive of the respondent’s access with his daughter. While he has been belittling, controlling, threatening and abusive towards her in his emails, over Skype and in person. He appears to live to harass the applicant at every corner.
[52] The respondent seeks sole custody of Halima and a parenting schedule to ensure that Halima has the benefit of a full relationship with her father and his family. The respondent also seeks the applicant to be precluded from alienating and excluding him from Halima’s life. In the alternative, the respondent seeks joint custody with Halima residing primarily with the applicant in Mississauga but having access to him when he visits Canada, with reintegration in accordance with the section 30 assessment recommendations.
[53] The section 30 Assessor Barry Brown, to the amazement of this court, recommended joint custody. I can only conclude that Mr. Brown did not have the same benefit of all the information that the court has now had after a trial of 8 days.
[54] I have put little weight on the section 30 assessment which is now over a year old. This assessment had serious limitations as the parties live half way around the world from one another. This is a very high conflict case, which it is clear that the assessor did not recognize.
[55] The applicant is not even comfortable talking with the respondent as he appears to take every direct contact opportunity to verbally abuse and/or belittle her.
[56] The respondent does not respect the applicant’s position and bullies her as has been demonstrated on his recent access visits. For the two days (May 11 and 12, 2015) before trial the applicant gave the respondent four hours of unsupervised access with the child each day. He unilaterally took eight hours each day.
[57] Joint custody would be absolutely contrary to the child’s best interests.
[58] While I have no doubt that the respondent loves his daughter and his daughter loves him, however his behaviour towards the applicant unfortunately has been very destructive and has created a real fear of flight and violence in the applicant. This is absolutely not a situation for joint custody in this court’s opinion. These two parties are in constant conflict. There is no trust between the parties: Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275. They cannot even talk directly. They do not work well together, nor can they cooperate. The respondent constantly belittles and berates the applicant even blaming her for the technical quality of the Skype transmissions (things that are totally outside her control).
[59] The respondent testified that his contact with Halima has been limited since the applicant took her away from the family home in August of 2012. The respondent testified that when he visited in the spring of 2013 that the applicant restricted and disrupted his access time with his daughter. Since then his access has only been by Skype until his arrival back in Ontario on May 1, 2015.
[60] I find that the applicant and her family have been doing their very best to facilitate the Ontario Court of Justice’s order of daily Skype access. They take time out of their busy schedules; they lose the use of their living room daily to the Skype access. As a result they have been unable to invite company over at dinnertime Monday to Friday or to accept invitations out for dinner. They have actively, on a daily basis, been facilitating the engagement of the child in the Skype visits and conversation with her father, providing books, toys other materials and snacks to help keep the child focused and in place in front of the computer screen and engaged with her father. As a result of the applicant’s hard work it is clear from the video footage I viewed that the child loves her father and him, her. The respondent has no appreciation of this effort by the applicant and her family at all.
[61] The respondent testified that his current base income is $152,730 per year plus bonus (in Canadian currency). He pays no worldwide income tax. The respondent wishes to reduce his child support to $1283 per month. The respondent testified that although he does not pay any income tax on his income he has significant expenses with support obligations to his parents and very expensive access costs to visit his daughter in Canada.
[62] The respondent requests that section 7 expenses should be shared by the parties’ pro rata net of any tax benefits granted to him.
[63] The respondent testified that since the applicant earns a substantial income of approximately $80,000 per year and that the marriage was of brief duration and that the applicant made no contributions to the family there should be no entitlement to spousal support.
[64] The respondent seeks the following orders:
Custody or joint custody of Halima;
An order that Halima reside primarily with him in Dubai, with generous access to the applicant or, in the alternative;
An order that Halima reside primarily with the applicant, with generous access to the respondent;
An order that the graduated reintegration process recommended by Barry Brown be implemented;
An order that he may travel with Halima and that Halima may have contact with his parents, siblings and extended family;
An order that child support be in accordance with the table amount based on actual incomes plus s.7 expenses net of any tax benefits that he has the benefit of;
An order dismissing the applicant’s claims for spousal support and a restraining order;
An order for costs;
Such further and other order as this court deems just.
[65] This court orders that:
Divorce judgment is issued on the usual terms.
Sole custody of the child, Halima Ahmed, born January 12, 2011 is granted to the applicant.
The applicant shall obtain the Canadian, the Pakistani passports and the Pakistani National ID Card for the said child without the necessary consent of the respondent. The applicant shall hold the same documents in trust for the child. This is a safety measure to ensure that the child is not able to be removed from Canada by the respondent.
The applicant may travel outside of Canada with the said child without notice or the consent of the respondent. I find she is not a flight risk. An itinerary for out of the country should not be given to the respondent due to flight risk.
The applicant shall provide to the respondent the name, address and telephone number of any and all health care providers and/or educational providers retained for the child’s benefit within 14 days of the same and he shall have the right to contact them directly. The applicant does not need the consent of the respondent to change the child’s health care providers.
The access by Skype between the child and the respondent shall be supervised and the location shall be at the discretion of the applicant. The child is only four years old, the assistance of an adult is necessary to ensure the success of the Skype visits. Skype access shall be reduced to reflect the actuality over the last two years as follows:
(A) Skype access shall take place on each Wednesday and Sunday at 7:00 p.m. Mississauga time for a maximum of 60 minutes.
(B) Skype access shall also take place each Saturday at 9:00 a.m. Mississauga time for a maximum of 60 minutes.
(C) The respondent shall provide to the applicant 24 hours’ notice in writing if he will be travelling and/or unable to do the Skype visits with the child and 48 hours’ notice in writing when the said Skype visits will be set to resume.
(D) The Skype visits will not be made-up when the respondent cancels a Skype visit or the applicant and the child are on holiday, but shall be made-up within 10 days when the applicant cancels a regular Skype visit.
(E) The respondent shall have a Skype visit for 60 minutes every year on the child’s birthday at 7:00 p.m. Ontario time.
- Any in-person access with the respondent and the child will be in the Greater Toronto Area only. This access is to be gradual pursuant to the following schedule and unsupervised and can in reasonable time include overnight access but only if the respondent has released his Pakistani National ID documents, his valid Pakistani passport and his valid Canadian passport to his counsel (in her capacity as an officer of the court) for the duration of his stay in Canada. Said passports and the Pakistani National ID documents are not to be released back to the respondent until after his last in-person visit with the child. This is a high flight risk case and it is important that there is no opportunity for the respondent to leave the country with the child. This is a difficult case to specify graduated access in as the respondent has not seen the child in person for 22 months prior to this trial. If this type of pattern persists, then the respondent will be commencing access each time as a virtual stranger and the graduation process will need to recommence each time. I have been impressed by the applicant mother’s dedication to the child’s need to have a meaningful relationship with the respondent. I trust her to act in the best interests of the child and the child’s school commitments. The respondent may not unilaterally change the schedule. The access schedule may be adjusted by a court order. Because it is unlikely that the respondent will be able to visit the child frequently it will be necessary for the child to become comfortable and reacquainted with him in-person each time as such access will repeat on each visit as follows:
- If the child is not in school:
(i) Week 1, Day 1: 2 hours with the respondent increasing by one hour each day through Week 1 to a maximum of 4 hours (Week 1: Day 1, 2 hours, Day 2, 3 hours, Day 3, 4 hours, Days 4, 5, 6 and 7 – 4 hours);
(ii) Week 2: access will increase by a further 1 hour each day up to 8 hours maximum (Week 2: Day 1, 5 hours, Day 2, 6 hours, Day 3, 7 hours, Day 4, 8 hours, Days 5, 6 and 7: 8 hours);
(iii) Week 3 onwards: 8 hours per day with the respondent with an overnight visit on Saturdays.
The access is predicated on the respondent being in Canada for a visit of approximately one month per year (he has 22 days holidays per year) or even less often and is meant to ease Halima into the access visits with the respondent although facilitating the most contact between the respondent and child while he is in Canada. It is in Halima’s best interest.
- If the child is in school:
The respondent shall see the child for 2 hours a day after school Monday to Friday inclusive.
On Weekend 1 he shall have the child for 4 hours on Saturday and Sunday each.
On Weekend 2 and 3 he shall have the child for 8 hours on Saturday and Sunday each.
On Weekend 4 and thereafter he shall have the child for 8 hours on Saturday and Sunday each and overnight on Saturday.
The respondent shall obtain a valid Pakistani passport immediately in order that it may be surrendered to his counsel along with his valid Pakistani National ID documents and his valid Canadian passport in order to exercise in-person unsupervised access in the future with Halima.
The respondent shall not remove the child from the Greater Toronto Area (being the City of Toronto, the Regional Municipality of Peel, the Regional Municipality of Halton, the Regional Municipality of York, and the Regional Municipality of Durham) without the permission of this court by court order.
The respondent shall pay to the applicant the sum of $1,923 per month child support for the child commencing on June 1, 2015 and payable on the first day of each and every month thereafter pending further order of the court. This amount is based upon the respondent having imputed income of approximately $239,200 per year.
The respondent shall pay to the applicant the sum of $519 for his share of section 7 expenses for the child. These section 7 expenses are mainly child care-related expenses. I have used a modest 30% tax gross-up on the respondent’s annual income, as such I am not adjusting the section 7 expenses for any tax benefit allowed to the applicant for the childcare costs and I am not further reducing the child support payable against the high cost of exercising access.
SDO to issue.
No order for retroactive support.
The parties are to communicate only by email and the respondent is to refrain from disparaging comments directed towards the applicant and/or her family.
The relief sought by the respondent in his answer is dismissed.
The claim for spousal support and retroactive support is dismissed.
The respondent shall provide to the applicant an official statement in writing from his employer stating his salary for the previous year as well as any and all benefits including but not limited to bonuses received by him for that year. The statement shall be provided by June 30th each year, commencing June 30, 2016 and each year thereafter.
The parties have 30 days to provide Justice Snowie with their submissions re: costs.
SNOWIE J.
Released: June 4, 2015
CITATION: Kozo v. Ahmed, 2015 ONSC 3608
COURT FILE NO.: FS-14-81114-00
DATE: 2015-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EDISA KOZO
Applicant
- and -
SALMAN AHMED
Respondent
REASONS FOR JUDGMENT
SNOWIE J.
Released: June 4, 2015