NEWMARKET COURT FILE NO.: FC-14-046041-00
DATE: 20150724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZEENAT JAMAL
Applicant
– and –
KARIM JAMAL
Respondent
Self-Represented
Self-Represented
HEARD: May 22, 25, 26, 27, 28, 29 and June 1, 2015
REASONS FOR DECISION
F. GRAHAM J.:
Brief Background and Issues
[1] The parties married on September 5, 2004 and separated on October 11, 2012.
[2] There are two children of the marriage: Amaan, age six, and Ali, age three.
[3] On the date of separation, Ms. Zeenat Jamal obtained a temporary without notice order for custody of both children with no access for Dr. Karim Jamal.
[4] On November 6, 2012, Dr. Jamal obtained a temporary and without prejudice order for very limited supervised access at a supervised access centre.
[5] On February 22, 2013, on consent, Dr. Jamal obtained a temporary and without prejudice order for limited unsupervised access with supervised exchanges.
[6] The duration of access has since been gradually increased.
[7] On September 13, 2013, on consent, Ms. Jamal obtained a temporary order declaring that she was the primary caregiver for the children.
[8] Dr. Jamal currently has unsupervised access on Wednesdays from 10:30 a.m. to 3:30 p.m. with Ali, and on Wednesdays from after school or 4 p.m. until 6:15 p.m. with Amaan, and on Sundays from 10:30 a.m. until 4:30 p.m. with both children.
[9] Exchanges, other than at Amaan’s school, are required to be supervised by a third party at a specified Tim Horton’s restaurant. Dr. Jamal’s father provides the supervision for exchanges.
[10] The parties were able to resolve their property issues and the issue of table child support.
[11] The issues remaining to be decided are: custody, access, restraining order, non-removal order, travel and passports for the children, spousal support, extended health benefits, life insurance, and extraordinary expenses for the children.
Detailed Background
[12] Prior to the marriage, Ms. Jamal was residing in Canada and working full-time as a registered massage therapist. She also taught religion to children at her Jamatkhana (place of worship).
[13] Dr. Jamal had resided in Canada as an adolescent. He later obtained a medical degree in Pakistan. Later, he commenced working in management role at the Ismaili Centre in London, England. He also taught Ismaili ethics, religion, culture, and history, around the world.
[14] The parties met while Dr. Jamal was in Canada during the spring of 2004.
[15] Dr. Jamal proposed marriage that summer and Ms. Jamal accepted. She agreed to relocate to London where the parties were to be married. Prior to the marriage, Ms. Jamal traveled to London to gain some familiarity with Dr. Jamal’s lifestyle there. At that point, he was residing in a small dormitory room close to his workplace in central London.
[16] In preparation for the marriage, Dr. Jamal rented a two bedroom apartment in central London.
[17] On the date of marriage, Ms. Jamal was 31 years old and Dr. Jamal was 43 years old.
[18] A few years later, the parties purchased a small one-bedroom flat in central London.
[19] Ms. Jamal worked part-time as a registered massage therapist in London until the birth of Amaan in 2008.
[20] The parties continued living in London until early 2012, when, at Ms. Jamal’s request, they relocated to Toronto. Dr. Jamal was transferred to a similar position at the Ismaili Centre in Toronto. The parties purchased a large house in Toronto that was close to Ms. Jamal’s mother’s home and Dr. Jamal’s workplace. Ali was born in Toronto that spring.
[21] Ms. Jamal alleges that Dr. Jamal was very controlling throughout their marriage.
[22] She alleges that he was miserly and critical with respect to expenses, he unreasonably delayed obtaining medical treatment for Amaan with respect to a serious infection, he was physically violent with Amaan on several occasions in London, and, in Toronto, he pushed Ms. Jamal against a wall, while Amaan was present, during an argument about how much water she was using to clean dishes.
[23] Ms. Jamal states that, while in London, Dr. Jamal refused to pay for internet access or a telephone line for a number of years, he would not allow her to buy clothing by herself, he would not allow her to look at bank statements, he restricted the frequency of her visits to a hairdresser, he restricted her use of water, he would not pay for extended health coverage, and he refused to consider moving further away from his workplace to a less central location where they would be able to afford a larger flat. She also alleges that, while in London, he insisted that she and Amaan attend daily evening prayers and socialize afterwards, even though Amaan should have been in bed. She also alleges that when the family returned home from their Jamatkhana, Dr. Jamal vacuumed their flat daily – late at night – which prevented Amaan from falling asleep.
[24] Ms. Jamal states that in Toronto, Dr. Jamal tightly controlled the use of utilities – not allowing the use of air conditioning or even an electric fan in the summer or heating in the fall – and he installed a monitoring system in their home.
[25] Shortly after the alleged push of Ms. Jamal, while Dr. Jamal was away in London for business, Ms. Jamal obtained a without notice restraining order against Dr. Jamal and then left Ontario with the children. She and the children returned to a separate home in Toronto within a few weeks. A temporary restraining order against Dr. Jamal has been in place since October of 2012.
[26] Dr. Jamal denies that he was controlling, miserly, physically violent with Amaan, or physically violent with Ms. Jamal. He states that he does not understand why Ms. Jamal left the marriage.
[27] On the other hand, he told an investigator from the Office of the Children’s Lawyer (OCL) that he and Ms. Jamal argued a lot about money during the last several years of the marriage and that he thought that she was too free with money so “he tried to control her” and he got angry when she did not do what he wanted. He said that he “created negative vibes in the house” because he did not think she was co-operating with him about financial matters. He stated that he had made a mistake not to include Ms. Jamal in financial decisions. He admitted that he may have been “overpowering” and said “harsh things” and would restrict her use of money. He stated that he regretted having allowed Ms. Jamal less financial freedom than she should have had.
[28] For some time, Dr. Jamal sought to reconcile with Ms. Jamal. More recently, he says that he seeks only an amicable relationship for the sake of the children. As part of that amicable relationship, however, he seeks some form of reunification of their family, including having meals together on occasion.
[29] Ms. Jamal, on the other hand, says that she is terrified of Dr. Jamal. She says that she worries that he may kill her or the children. She says that she is particularly worried about how he may react to the completion of the trial. She adds that he appears to be completely oblivious to the effect he has upon her sense of security and safety as a result of a great imbalance of power during their marriage.
[30] Dr. Jamal says, however, that he would never physically hurt anyone, and certainly not Ms. Jamal or the children. He underlines that if he had any wish to harm any of them, he has had ample opportunity to do so, over the past two and half years, since separation.
[31] Ms. Jamal frequently presented as very frightened during the trial. She visibly shrank in her chair at times – out of apparent fear. She told the court, more than once, that she was demonstrating great courage by participating in the trial process. She stated that it had taken her eight years of marriage to finally gain the courage to speak of the frightening and irrational events that occurred. She stated that divorced women are ostracized in her culture and that she would not have separated and sought divorce except to protect herself and her children from Dr. Jamal – whom she calls “a Dr. Jekyll”.
[32] On the other hand, while Ms. Jamal was being cross-examined by Dr. Jamal, and while she was cross-examining him, Ms. Jamal showed considerable strength of will and no fear whatsoever of Dr. Jamal. In fact, she often appeared to be advancing her own agenda while being cross-examined, rather than responding to his questions. The court intervened more than once to redirect her to answer the question. As one example of a non-responsive answer, when Dr. Jamal suggested to Ms. Jamal that she was familiar with his lifestyle in London before they married because she had seen his dormitory room beforehand, Ms. Jamal’s response was, “I knew it was a different country”. As another example, when Dr. Jamal suggested to Ms. Jamal that they both had felt great joy upon learning of her two pregnancies, she responded by indicating, in a sharp tone of voice, that both pregnancies were “almost miracles” given how infrequently there had been sexual relations during the marriage.
[33] Dr. Jamal, on the other hand, generally, and quite noticeably, presented as exceedingly humble, polite, and eager to please, throughout the trial, but when cross-examining witnesses from child welfare agencies, he demonstrated a strength of will and forcefulness that, while not at all inappropriate for the circumstances, was, nevertheless, markedly different than his presentation otherwise. It was also notable, for example, that when Dr. Jamal called his personal physician as a witness, he thanked the witness for attending, not only on his own behalf, but also on behalf of Ms. Jamal, which was strikingly inappropriate given that Ms. Jamal was the opposing party and had nothing to do with the witness or the witness’ attendance. This indicated some unawareness of appropriate boundaries on the part of Dr. Jamal which was also demonstrated by some e-mails he introduced into evidence wherein his tone toward Ms. Jamal was demanding and directive. He seemed quite unaware that the e-mails might reflect poorly upon him, rather than poorly upon Ms. Jamal for not responding to his emails to confirm that she had done as he wished.
[34] Ms. Jamal’s physician noted in 2012 that Amaan described Dr. Jamal as “always angry” and volunteered that he had been hit on his buttocks and right hand. Both Ms. Jamal and Dr. Jamal indicated, however, that Amaan is not always a reliable historian.
[35] It was established at the trial that at least one child welfare agency found that Ms. Jamal’s allegation of being pushed by Dr. Jamal was “verified” based solely on Ms. Jamal’s statements, without speaking to Dr. Jamal, and that agency’s “verification” of domestic violence against Ms. Jamal was cited by other child welfare agencies as a relevant factor, along with the views of Ms. Jamal’s counsellor, who had never spoken to Dr. Jamal, in assessing the best interests of the children regarding what access Dr. Jamal should have with the children.
[36] It is notable that the OCL social worker assigned to this matter opines that there is no evidence suggesting that the children are currently at risk of physical abuse by Dr. Jamal.
[37] Having heard and reviewed all of the relevant evidence, not all of which has been repeated here, the court is not satisfied on a balance of probabilities that physical violence against Amaan and/or Ms. Jamal occurred.
[38] The court is satisfied on a balance of probabilities, however, that Dr. Jamal acted in a controlling manner towards Ms. Jamal, particularly with respect to finances.
[39] Ms. Jamal also alleges that Amaan acts out in school on Mondays – which she attributes to his Sunday access with Dr. Jamal. She also alleges that Amaan is physically aggressive towards her, Ali, and children at school, because he has been influenced by Dr. Jamal’s aggressive nature and conduct. Somewhat inconsistently, however, she told the OCL social worker that she does not want Ali to have alone time with Dr. Jamal because if Amaan is present, he can “protect” Ali.
[40] The vice-principal at Amaan’s school during the 2012-13 school year stated to the OCL social worker that Amaan was aggressive and hitting at the start of the school year. She stated that Amaan was angry and visibly upset all day on Mondays. She also said that his behaviour improved after his parents separated.
[41] Dr. Jamal denies that Amaan has aggressive behaviours. He says that all children engage in limit testing and that Jamal’s behaviours are normal. Dr. Jamal says that he is offended by the label “aggressive” being applied to Amaan.
[42] The OCL social worker noted, however, that Amaan threw blocks in an aggressive manner during an office meeting with Amaan and Dr. Jamal.
[43] As already indicated, the court is not satisfied on a balance of probabilities that Dr. Jamal acted in a physically aggressive manner towards Ms. Jamal or Amaan. There is no other evidence of aggressive behaviour by Dr. Jamal other than his history of being controlling, but, given that he and Ms. Jamal have been separated for more than two and a half years, it is not likely that his previous controlling behaviour is affecting Amaan at present. It is more likely that Amaan is being affected negatively by conflicting feelings of loyalty to his parents in a high conflict situation.
[44] Ms. Jamal also alleges that Dr. Jamal is a flight risk – she suggests that he could take the children from Canada to a country that is not a signatory to the Hague Convention with respect to abducted children. She underlines he travels internationally, he has devoted students all over the world, and he has spent considerable time in Pakistan.
[45] Dr. Jamal denies that he would remove the children from Canada.
[46] The OCL social worker opines that there is no current evidence that Dr. Jamal will illegally remove the children from Canada.
[47] Ms. Jamal also alleges that Dr. Jamal allowed Amaan to be on the roof of the matrimonial home, allowed him to wander in traffic on the road in front of their home, allowed him to cook on the stove and burn his finger, and allowed him to use dangerous garden tools.
[48] Dr. Jamal says that he is afraid of heights, does not own a ladder, and does not go onto the roof. He denies that he ever allowed Amaan to wander in traffic, use the stove, burn his finger, or use garden tools – he says that Amaan uses plastic toy tools.
[49] The court is not satisfied on a balance of probabilities that these allegations are true.
[50] Ms. Jamal also alleges that Dr. Jamal shares adult information with Amaan. For example, she says that Amaan tells her that she has a “screw loose” because he heard that from Dr. Jamal. As other examples, she says that Amaan tells her that Dr. Jamal told Amaan that: what Amaan told the OCL social worker about wanting to live with Ms. Jamal and visit Dr. Jamal was wrong, Amaan got Dr. Jamal in trouble, Amaan will be living with Dr. Jamal very soon because the government will take Amaan away from Ms. Jamal, Ms. Jamal does not work and Dr. Jamal has to give her money every month and that’s why he can’t afford snow tires, and Ms. Jamal is afraid of Dr. Jamal so she wants to call the police and put him in jail.
[51] Ms. Jamal also says that Amaan told her that Dr. Jamal tried to get Amaan to show him where Ms. Jamal lives. Ms. Jamal does not want Dr. Jamal to know her home address.
[52] Dr. Jamal denies sharing any adult information with Amaan.
[53] Clearly, it would be completely inappropriate for Dr. Jamal to have such conversations with Amaan.
[54] Yet, contrary to one of the statements allegedly made by Amaan, Dr. Jamal does not seek to remove Amaan from Ms. Jamal’s care. To the contrary, he consistently indicated at trial that Ms. Jamal is a good mother and conceded that the children should spend most of their time with her, although he would like an increase in his time with them.
[55] There was no independent evidence supporting the allegations of Dr. Jamal sharing adult information with Amaan.
[56] The court finds that these allegations have not been established on a balance of probabilities.
[57] Ms. Jamal also alleges that Dr. Jamal does not feed or take care of the children properly. She says that the children are returned to her hungry and that Ali usually returns dirty and with soiled clothing.
[58] During home visits with Dr. Jamal, the OCL social worker noted that Dr. Jamal demonstrates some difficulty coping with both children at the same time, although his ability to cope improved between visits, and Dr. Jamal ensures that his father is available to assist when he has both children. The social worker also found that Dr. Jamal provides a secure and appropriate environment, although she noted that he does not provide a structured schedule for the children – his parenting style is permissive. The social worker did not indicate that Ali was dirty or in soiled clothing.
[59] During home visits with Ms. Jamal, the OCL social worker noted that Ms. Jamal provides a secure and appropriate environment and a structured schedule for the children and she has no difficulty coping with their often rambunctious behaviours.
[60] Ms. Jamal alleges that Dr. Jamal keeps Amaan on Skype calls for one and a half hours and, as a result, Amaan stays up all night and misses school the next day. She was asked, during cross-examination, how many Skype calls there had been since separation. She replied “two”. When asked whether there had only been one, she replied “one or two”. When pressed further, she said that she recalled only one Skype call since separation.
[61] Dr. Jamal says that his one Skype call, from Dubai, lasted about forty-five minutes and that the reason it lasted that long was that Amaan didn’t want to say goodbye because he was so excited to see Dr. Jamal on the screen.
[62] Dr. Jamal alleges that Ms. Jamal does not consult with him about major decisions about the children’s welfare.
[63] Ms. Jamal denies that allegation.
[64] When asked, during cross-examination, when she informed Dr. Jamal that Amaan was going to camp during the summer of 2014, Ms. Jamal’s response was, “It was the same camp as the year before”. Dr. Jamal then asked whether she informed him about the camp and she replied, “No – because it was the same camp”.
[65] Dr. Jamal provided evidence that Ms. Jamal did not inform him that Amaan was starting a new school until 6:34 a.m. on Amaan’s first day at that school. Ms. Jamal’s response was that Dr. Jamal should have known about the change of school without being informed by her because the judge had recommended changing Amaan’s school at case management conferences.
[66] Ms. Jamal testified that she did not inform Dr. Jamal about Amaan’s graduation ceremonies from kindergarten and grade one because she intended to be there which meant Dr. Jamal could not attend due to the restraining order.
[67] Dr. Jamal notes that he doesn’t know the name of the children’s religion teacher.
[68] The court finds, on a balance of probabilities, that Ms. Jamal does not adequately inform Dr. Jamal of significant information and decisions affecting Amaan.
[69] Dr. Jamal testified that he has re-organized his work since separation so that he can be available for the children during working hours on Wednesdays and he has reduced his international travel to facilitate the access schedule. He says that he uses video conferences and Skype for much of his international work. When he asked Ms. Jamal, during cross-examination, whether he had been travelling less since separation, she replied that she did not know. The court finds that her answer could not be true given that Dr. Jamal has access every Wednesday and every Sunday; she would know whether he was travelling less.
[70] Ms. Jamal reports that Amaan has his own bed in a separate bedroom but she does not put him to bed there because he becomes very upset and has nightmares. As a result, she, Ali, and Amaan sleep together in her bed.
[71] Amaan told the OCL social worker, in the summer of 2014, when he was six years old, that he might want to sleep in his own bed when he gets older.
[72] Amaan also told the OCL social worker that he enjoys being with his father but his mother worries about him while he is with his father.
[73] The OCL social worker opines that Ms. Jamal should address with her counsellor the issue of whether she is causing the children unnecessary stress about access with Dr. Jamal.
[74] The OCL social worker opines that the high level of conflict between the parties, and the level of discomfort Ms. Jamal demonstrates about communication with Dr. Jamal, indicates that joint decision-making is not possible at this time.
[75] Dr. Jamal remains subject to the temporary restraining order issued on the date of separation, which requires him not to be within five hundred metres of Ms. Jamal subject to some exceptions, including that he may be present during exchanges at the Tim Horton’s restaurant but he must be inside his vehicle while the exchange supervisor carries out the exchange in the restaurant.
[76] Since separation, Dr. Jamal has completed an anger management course and a parenting course.
Custody and Access
Law
[77] Section 16(8) of the federal Divorce Act stipulates that a court must take into consideration only the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child, when deciding custody or access.
[78] Section 16(9) of the Divorce Act stipulates that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.
[79] Section 16(10) of the Divorce Act stipulates that a court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and the court shall take into consideration, for that purpose, the willingness of each parent for whom custody is sought to facilitate such contact.
[80] Section 16(5) of the Divorce Act stipulates that a parent who is granted access to a child has the right to make enquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.
[81] Provincial legislation provides additional guidance about determining the best interests of a child.
[82] Section 24(1) of the Ontario Children’s Law Reform Act (CLRA) requires that applications in respect of custody and access to a child shall be determined on the basis of the best interests of the child in accordance with the balance of section 24.
[83] Section 24(2) of the CLRA stipulates that the court shall consider all the child’s needs and circumstances, including, relevant to this case;
the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child,
the child’s views and preferences, if they can reasonably be ascertained,
the length of time the child has lived in a stable home environment,
the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child,
the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing,
the permanence and stability of the family unit with which it is proposed that the child will live,
the ability of each person applying for custody of or access to the child to act as a parent,
the relationship by blood between the child and each person who is a party to the application.
[84] Section 24(3) stipulates that a person’s past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
[85] Some additional guidance is provided by section 37(3) of the Ontario Child and Family Services Act (CFSA) which stipulates that when a person is directed under that legislation to make a determination in the best interests of a child, the person shall take into consideration the following circumstances relevant to this case,
the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
the child’s physical, mental and emotional level of development,
the religious faith, if any, in which the child is being raised,
the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
the child’s relationships and emotional ties to a parent, relative, other member of the child’s extended family or member of the child’s community,
the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
the child’s views and wishes, if they can be reasonably ascertained,
the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent,
any other relevant circumstance.
[86] Section 21(1) of the CLRA stipulates that except as provided otherwise in that Act, the father and mother of a child are equally entitled to custody of a child.
Positions of the Parties
[87] Ms. Jamal seeks a final order for sole custody and primary residence for both children. She also seeks a final access order in the same terms as the current temporary order.
[88] Dr. Jamal seeks a final order for joint custody and shared primary residence for both children. He also seeks a final order for equal parenting time.
Custody and Access Factors
Love, Affection, and Emotional Ties
[89] The OCL social worker states that Amaan loves and has a strong relationship with both parents.
[90] The OCL social worker states that Ali has a stronger relationship with Ms. Jamal because she has been his primary caregiver since separation, when he was only a few months old. The social worker also states, however, that Ali’s relationship with Mr. Jamal is getting stronger with time.
[91] There is also some evidence that the children have developed emotional ties with Mr. Jamal’s father.
The Children’s Views and Preferences
[92] Amaan told the OCL social worker that he would like to live with his mother and have visits with his father.
[93] As a result of his youth, there is no evidence about Ali’s views and preferences.
Length of Time the Child has Lived in a Stable Home Environment
[94] Amaan lived with both parties for several years in London and for the better part of a year in Toronto.
[95] Unfortunately, the latter portion of that period exposed him to arguments between his parents about financial matters and, eventually, the separation and restricted access with Dr. Jamal.
[96] Amaan has had difficulties since his parents’ separation as reflected in the observations of the vice-principal of his former school.
[97] Gradually, however, it seems that he has been adjusting to the separation, although the dispute between his parents likely has had some negative impact upon him, regardless whether he is exposed to the conflict intentionally or unintentionally.
[98] Ali, on the other hand, is too young to remember anything pre-separation and there is no evidence indicating that he has been exposed to adult conflict since separation.
[99] Since separation, both children have experienced a comfortable, secure, and structured environment at Ms. Jamal’s home. Unfortunately, however, Ms. Jamal has communicated to Amaan a concern about him being in Dr. Jamal’s care.
[100] Both children have also experienced a comfortable and secure environment at Dr. Jamal’s home, although Dr. Jamal’s lack of structure for the children is not ideal for their age.
[101] Overall, however, the children have been provided with relatively stable home environments by both parents since separation and since Dr. Jamal has had unsupervised access.
Ability and Willingness to Provide Guidance and Education, the Necessaries of Life and any Special Needs of the Child
[102] Ms. Jamal provides for these needs of the children, including counselling for Amaan to address stressors that may be causing inappropriately aggressive conduct.
[103] Dr. Jamal also provides for most of these needs as much as he can during his access time, although he would like more involvement with the children’s religious education and extracurricular activities.
[104] Unfortunately, despite cogent evidence to the contrary, Dr. Jamal denies that Amaan’s conduct has been overly aggressive at times and, as a result, he does not support counselling for Amaan.
[105] As indicated earlier, the court does not accept Ms. Jamal’s theory that Amaan’s aggression is the result of aggression demonstrated by Dr. Jamal. Rather, the court is concerned that Amaan is acting out as a result of the continuing conflict between his parents and his conflicting loyalties to both parents. Counselling, or play therapy as recommended by the OCL social worker, is a reasonable approach to address this concern.
Plan Proposed for the Child’s Care and Upbringing
[106] Neither party put forward a comprehensive plan for the children’s future care and upbringing.
[107] Ms. Jamal seeks to continue the status quo, including public school, religious school on Saturdays, swimming lessons, and summer camp.
[108] Dr. Jamal seeks more time with the children and more meaningful involvement in the children’s lives – particularly with respect to their religious education and extracurricular activities. Recently, he has become more involved in their secular schooling.
[109] Dr. Jamal also suggests that it would be beneficial to the children to hear him speak to persons older than the children at Jamatkhanas and/or Ismaili Centres so that they can be proud of him. The court questions, however, whether such a sedentary and intellectual experience would be in the best interests of the children at their current young age.
Permanence and Stability of the Family Unit
[110] Ms. Jamal provides a permanent and stable family unit for herself and the children.
[111] Dr. Jamal provides a potentially permanent and stable family unit for himself, the children, and his parents.
[112] At the end of the trial, the court granted the parties a divorce and spoke to Dr. Jamal to emphasize that the children now have two different family units – not one. In order to reduce conflict, for the best interests of the children, Dr. Jamal must recognize that the former family unit that consisted of him, Ms. Jamal, and the children, no longer exists. He must recognize that Ms. Jamal an autonomous adult and he must conduct himself accordingly.
Ability to Act as a Parent
[113] As already indicated, Ms. Jamal provides a secure and structured environment for the children. She provides counselling for Amaan and she provides swimming lessons, which are a necessity for the safety of children.
[114] As the court informed Ms. Jamal at the end of the trial, however, she must accustom the children to sleeping on their own beds. It is important for strengthening each child’s bond with his father for the child to have overnight access with Dr. Jamal. It is Ms. Jamal’s responsibility to prepare the children for that eventuality. Permitting the children to sleep with her every night is not in their best interests. The children must gain a sufficient sense of independence to permit them to adjust without difficulty to spending overnights with their father. If they are accustomed only to sleeping with Ms. Jamal, the transition to staying with their father overnight will be unnecessarily stressful for them.
[115] Another concern about Ms. Jamal’s ability to act as a parent, as indicated earlier, is her communication to Amaan that she is worried about him when he is with his father. This causes unnecessary stress for Amaan and may be a factor contributing to acting out on Mondays in school. It is important for Ms. Jamal to reassure Amaan that he and Ali will be safe with their father – not the opposite.
[116] As already indicated, Dr. Jamal provides a secure environment for the children, although more structure would be appropriate – particularly around meal and nap times. Furthermore, as noted earlier, his aspirations for the children should be age appropriate. Having them watch and listen to him speak to persons older than themselves is not likely an age appropriate activity.
[117] Furthermore, Dr. Jamal must continue to increase his ability to cope with the demands of both children at the same time – or always have his father available to assist.
Relationship by Blood
[118] Both parties are the biological parents of both children.
The Child’s Physical, Mental and Emotional Needs and Appropriate Care
[119] As already stated, Ms. Jamal must stop communicating to Amaan any worry she may have about Amaan’s well-being in the care of his father; she must learn to reassure the children that they will be safe with their father. And, as already stated, she must address the children’s sleeping arrangement without delay. Otherwise, she provides appropriate care for the children’s needs.
[120] As just stated, Dr. Jamal must continue to increase his ability to cope with the demands of both children at the same time. And, as noted earlier, he should re-examine his position about the usefulness of counselling for Amaan. Also, as already mentioned, he should provide more structure for the children’s activities. Otherwise, he is providing appropriate care for the children’s needs – assuming that he is not communicating any adult information to either child.
The Child’s Physical, Mental and Emotional Level of Development
[121] The court’s comments in the previous category could be repeated here.
[122] In addition, the court finds that it would be beneficial for the children for Dr. Jamal to have some involvement in their religious education.
Religious Faith
[123] Ms. Jamal appropriately supports the children’s development of religious faith.
[124] It would be beneficial for the children for their father also to have a role in their religious education.
The Importance for the Child’s Development of a Positive Relationship with a Parent and Secure Place as a Member of a Family
[125] Both parties are capable of developing a positive relationship with the children and providing them with a secure place as a member of that parent’s family, particularly since the parties are divorced and living in separate homes.
[126] It is important, however, as mentioned earlier, for Dr. Jamal to accept that Ms. Jamal’s family unit is different than his family unit – reunification of a single family unit is not an appropriate goal for him to pursue given Ms. Jamal’s expressed fear and distrust of him.
[127] Similarly, it is important, as mentioned earlier, for Ms. Jamal not to communicate any concern about Dr. Jamal to the children.
The Child’s Relationships and Emotional Ties to a Parent, Relative, other member of the Child’s Extended Family or Member of the Child’s Community
[128] The court did not hear from any extended family or members of the children’s communities.
[129] As already noted, both children have a strong relationship with both parents and although Dr. Jamal’s bond with Ali is not as strong as Ms. Jamal’s bond with Ali, it is increasing with time.
[130] As noted earlier, it is likely that the children have an emotional tie with Dr. Jamal’s father.
The Importance of Continuity in the Child’s Care
[131] Ms. Jamal has been the primary caregiver for the children since separation – a period exceeding two and half years. It is important for the children for that relationship to continue. It is also important, however, for the children to continue to have a secure and beneficial relationship with Dr. Jamal. Both children have an important loving relationship with both parents.
The Risk that the Child may Suffer Harm through being Removed from, Kept away from, Returned to or Allowed to Remain in the Care of a Parent
[132] Although, as already discussed, Ms. Jamal could improve her parenting, overall she is a capable and considerate parent. It is obviously important for the children to continue to have a significant relationship with her.
[133] It is also important, however, for Ms. Jamal to engage in timely and meaningful consultation with Dr. Jamal about the children’s welfare and activities in order to promote their relationship with their father.
[134] Dr. Jamal, as already discussed, also has room for improvement in his parenting, but, overall, he is a potentially capable and considerate parent. It is obviously important for the children to have a significant relationship with him.
Analysis – Custody and Access
[135] Custody has evolved to mean final decision-making authority about serious matters affecting a child. The usual major areas of decision-making authority have been distilled to religion, health, and education, although there may be other areas in a specific case.
[136] Both parties agree that Ms. Jamal should have some form of custody of the children.
[137] Having regard to the factors set out in section 10 of the Divorce Act and bearing in mind the factors set out in section 24(2) of the CLRA and section 37(3) of the CFSA, the court does not disagree.
[138] The difference between the parties is whether Ms. Jamal should have sole custody or whether Ms. Jamal and Dr. Jamal should have joint custody.
[139] Generally, joint custody may be appropriate where it is in a child’s best interests for more than one person to have custody and all persons with custody are able to communicate appropriately with each other and make decisions together based on the best interests of the child.
[140] The court’s role in a custody case is to decide what is in the child’s best interests at that time. While historical information may be of assistance, it is the present time that matters, with an eye on the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child’s best interests back before the court.
[141] The court is not satisfied on a balance of probabilities that Ms. Jamal and Dr. Jamal are currently able to communicate appropriately with each other or make decisions together based on the best interests of their children. To the contrary, the court is satisfied on a balance of probabilities that they are not able to do so at present.
[142] Ms. Jamal made a number of serious allegations against Dr. Jamal that he denied. She presented herself as terrified of him in relation to the safety of herself and the children. The court has found that almost all of her allegations were not proven to the level necessary to satisfy the civil onus of proof – a balance of probabilities. Nevertheless, she may well be afraid of him due to his history of controlling behaviour. The presence of fear and/or an imbalance of power is not an appropriate backdrop for making custodial decisions jointly.
[143] Additionally, the court is not in a position to know whether Dr. Jamal will accept the court’s statement that Dr. Jamal and Ms. Jamal are now the adult heads of two different families, although with the same children, as opposed to still being a single family, comprised of two adults and the children, that requires an “amicable unification”. In his closing submissions, he suggested the latter.
[144] Dr. Jamal’s lack of recognition and acceptance of the significantly changed social dynamic, as well as Dr. Jamal’s history of being controlling towards Ms. Jamal, suggest that a co-operative joint approach to custodial decision-making would likely not occur.
[145] Also, Dr. Jamal has demonstrated an unwillingness to accept that Amaan acts aggressively at times. He characterizes Amaan’s behaviour at school as a normal testing of boundaries. The court questions whether he would be as sanguine if another child was “testing boundaries” by acting aggressively towards Amaan. Amaan demonstrated aggressive behaviour in Dr. Jamal’s presence at the OCL social worker’s office. Yet, Dr. Jamal finds it so upsetting to hear the word “aggressive” applied to Amaan that he could not remain for the entire disclosure meeting with the OCL social worker because she was using that description for some of Amaan’s behaviour. As a result, it is not in Amaan’s best interests for Dr. Jamal to be a decision-maker with respect to counselling.
[146] Furthermore, Dr. Jamal has shown some lack of insight with respect to age-appropriate parenting by not providing adequately structured activities for the children.
[147] Similarly, his suggestion that the children should watch and listen to him speak in order to gain a sense of pride about their father does not indicate a fully child-focused approach to parenting.
[148] Ms. Jamal, on the other hand, has been providing, since separation, an appropriately structured environment for the children and she ensures that Amaan attends counselling.
[149] As a result, based on the conditions, means, needs and other circumstances of the children, the court finds that it is in the best interests of the children for Ms. Jamal to have sole custody of both children.
[150] Dr. Jamal asks to have equal parenting time with the children, even though he knows that his work obligations prevent him from being available half the time to care for the children. His rationale is that he believes such an order would put him in a stronger negotiating position to have more time with the children than he has at present.
[151] The court appreciates Dr. Jamal’s honesty, but it would not be appropriate for the court to order equal parenting time for that purpose. To the contrary, it is the court’s responsibility to put in place a parenting regime that is appropriate for the best interests of the children.
[152] Given Dr. Jamal’s concession that he is not available to care for the children half the time, and given that the children have been in Ms. Jamal’s primary care since separation, the court finds, for these reasons, as well as the different degree of structure for the children’s activities in each parent’s care, and the strength of the relationship each parent has with Ali, that the children’s primary residence should continue to be with Ms. Jamal.
[153] The question that remains is what access Dr. Jamal should have with the children, and upon what terms, in order to maximize his access with the children in accordance with their best interests.
[154] Dr. Jamal noted that in the first OCL report, released in July of 2013, the OCL social worker recommended that Dr. Jamal have time with Ali on Saturdays from 9:30 a.m. to 3:30 p.m. to allow Dr. Jamal and Ali to access the early childhood education programme at the Willowdale Jamatkhana.
[155] Dr. Jamal testified that he has not had Saturday access with Ali because Ms. Jamal insisted on having care of the children on Saturdays so that she and the children could attend religious class at the Jamatkhana where she teaches. As a result, Dr. Jamal arranged flex time with his employer so that he could be with the children on Wednesdays. He works some Saturdays to make up time lost on Wednesdays. He says that he has a new supervisor who is not as flexible and, in any event, Dr. Jamal continues to wish to have a meaningful connection with the children’s religious education on Saturdays so that, for example, he may build child-centred social relationships with the parents of his children’s classmates. He suggests that his attendance at the children’s religious education classes should start gradually, with a goal of eventually attending at least a third of the Saturday religious classes per year. He is aware that Ms. Jamal does not want him to attend at the Jamatkhana where she teaches but he promises that he would not be disruptive toward her.
[156] Ms. Jamal emphasizes her fear of Dr. Jamal and says that her Jamatkhana is a place of sanctuary for her that would be rendered unsafe if Dr. Jamal is permitted to be there.
[157] The second OCL report, released in August of 2014, does not repeat the recommendation about Saturdays, but suggests that the status quo be maintained with respect to access.
[158] The court finds, however, that it would be in the best interests of the children for their father to have a significant connection with their religious education. It is important for the children’s religious education to be visibly supported by both parents.
[159] Given the court’s findings with respect to Ms. Jamal’s allegations of domestic violence, the court finds that it would be contrary to the children’s best interests to deny the children the experience of having their father involved in their religion classes on Saturdays.
[160] That having been said, the court will fashion terms of access that will respect Ms. Jamal’s wish not to be disturbed by Dr. Jamal at her Jamatkhana.
[161] Furthermore, an access regime will be instituted that will eventually permit the children to spend entire weekends with each parent rather than spending every Saturday with Ms. Jamal and part of every Sunday with Dr. Jamal, which will allow, for example, the children to enjoy some less structured weekend time with their mother on Sundays.
[162] For the time being, Dr. Jamal shall continue to have access in accordance with the current regime, except that the requirement for a third party to supervise access exchanges shall be terminated.
[163] All access exchanges, other than picking up a child directly from school, shall continue to take place inside the same Tim Horton’s on Leslie Street.
[164] Each parent may be accompanied by another adult person at an exchange or may send another adult person to the exchange in their stead, provided that if another adult person is sent to the exchange on behalf of a parent, that parent gives the other parent advance written notice in a timely manner.
[165] All exchanges shall be completed as quickly as possible and with the least amount of contact and communication possible between the adults present. The exchanges shall not be treated as an opportunity to socialize with the children or any adult present.
[166] Dr. Jamal shall have additional access with the children from 9:30 a.m. to 4 p.m. on the following Saturdays: October 3, 2015, November 14, 2015, December 26, 2015, February 6, 2016, March 5, 2016, April 2, 2016, April 30, 2016, and May 28, 2016.
[167] On any Saturday that Dr. Jamal has access, he shall ensure that the children attend their regular religion class where enrolled by Ms. Jamal unless the class is not being held that Saturday.
[168] The parties’ agreement as to property was filed as Exhibit K. Paragraph 2.5 of Exhibit K states that neither party shall go to the other party’s place of work. For the purpose of this court’s access order, the Jamatkhana where the children attend religious education classes shall be deemed not to be Ms. Jamal’s place of work within the meaning of paragraph 2.5 of Exhibit K.
[169] When both parties are at the same location, except at exchanges, Dr. Jamal shall not initiate any form of contact or communication, direct or indirect, except by e-mail, with Ms. Jamal.
[170] Dr. Jamal shall not have any physical contact, directly or indirectly, with Ms. Jamal.
[171] The parties shall arrange to attend separate parent-teacher meetings in relation to the children’s secular and religious places of learning.
[172] It is in the children’s best interests to have overnight access with their father on weekends and to move to an alternate weekend access regime so that they eventually may enjoy full weekends with each parent.
[173] As the court indicated to Ms. Jamal at the end of the trial, it is her responsibility to ensure that the children are ready for overnight access with their father. The court will allow a lengthy period before starting overnight access so that both children can be completely accustomed to sleeping in their own beds by that time. The delay before overnight access is not an invitation for Ms. Jamal to delay her responsibility to accustom the children to sleeping in their own bed.
[174] Commencing Saturday, July 2, 2016, and every second Saturday thereafter, Dr. Jamal shall have access with both children from 9:30 a.m. on Saturday until 4:30 p.m. the immediately following Sunday but he shall not have access on Sunday, July 10, 2016 or every alternate Sunday thereafter. In other words, instead of weekend access every Sunday, he shall have weekend access every other week but from Saturday until Sunday.
[175] Commencing Friday, November 4, 2016, and every second Friday thereafter, Dr. Jamal’s alternate weekend access with both children will commence after school on Friday, or at 4:30 p.m. if the children are not both in school that Friday, and end at 4:30 p.m. the immediately following Sunday.
[176] Dr. Jamal’s Wednesday access shall continue as at present except that when Ali regularly attends school on Wednesdays, Dr. Jamal’s Wednesday access with Ali shall be from after school, or if Ali does not attend school that Wednesday from 4 p.m., until 6:15 p.m., with Amaan.
[177] In addition, Dr. Jamal shall have special holiday access with both children, if he does not otherwise have in person access that day, every July 11th and every December 25th from 2 p.m. to 5 p.m., and every March 21st and every December 13th from the end of school, or 4:30 p.m. if the children are not both in school that day, to 6:15 p.m.
[178] Ms. Jamal shall have special holiday parenting time with both children, if she does not otherwise have in person parenting time that day, every March 21st, July 11th, December 13th, and December 25th from 3 p.m. to 4:30 p.m.
[179] In addition, commencing August 1, 2015, Dr. Jamal shall have telephone access for five minutes with each child between 7 p.m. and 7:15 p.m. every day that he does not have in person access with both children. Ms. Jamal shall facilitate Dr. Jamal’s telephone access.
[180] Commencing in November 5, 2016, Ms. Jamal shall have telephone access for five minutes with each child between 7 p.m. and 7:15 p.m. every Saturday that Dr. Jamal has access with the children. Dr. Jamal shall facilitate Ms. Jamal’s telephone access.
[181] The access schedule will be suspended when it conflicts with the children’s attendance at summer camp.
[182] The parties may arrange additional access by e-mail at the discretion of Ms. Jamal.
[183] Ms. Jamal shall keep Dr. Jamal informed by e-mail in a timely manner about all important information relating to the religion, education, health, and extracurricular activities of the children.
[184] Ms. Jamal shall consult with Dr. Jamal by e-mail in a timely manner, in advance, before making any major decisions with respect to the children’s religion, education, or health, other than in the case of a medical emergency in which case she shall immediately notify Dr. Jamal of the decision she has made.
[185] If either child has a medical emergency while in the care of Dr. Jamal he shall immediately notify Ms. Jamal so that she may make any necessary decisions. If, during a child’s medical emergency, Ms. Jamal is not available to make decisions, Dr. Jamal may make decisions that must be made during that period.
[186] Dr. Jamal shall have access to all information about the children’s religion, education, or health directly from their service providers, and he may obtain copies of the service provider’s records concerning the children at his own cost. If Ms. Jamal’s written authorization and/or consent is required for Dr. Jamal to exercise his right to access to information or copies of such records, she shall provide such authorization and/or consent to the service provider within fifteen days of a request by e-mail from Dr. Jamal.
[187] The parties shall communicate about the children only, and, except in an emergency, or at an exchange, or as may be initiated by Ms. Jamal, only by e-mail, and shall not, except in an emergency, send the other party more than one e-mail per day, except for communications about life insurance, annual income, and extraordinary expenses as set out later in this decision, which may be in writing other than by e-mail.
Restraining Order
[188] Given the court’s findings with respect to the allegations of violence made by Ms. Jamal, all restraining orders issued prior to the release of this decision are terminated.
[189] As a result, there is no restriction on where Dr. Jamal can attend if Ms. Jamal is present, subject to the terms of the parties’ agreement as to property, Exhibit K, which is subject to paragraph 168 in this decision, and subject to the terms of this decision governing interactions at exchanges, interactions at any other location when both parties are present, and parent-teacher meetings.
Non-Removal Order
[190] Ms. Jamal would like the non-removal order which currently prevents either party from taking the children outside of Ontario, lifted entirely with respect to travel with her, or extended to permit the children to travel within Canada and the United States.
[191] Dr. Jamal submits that both parents should be subject to the same parameters with respect to travel with the children.
[192] The order prohibiting the removal of the children from Ontario will be replaced by an order prohibiting the removal of the children from the combined area of Canada and the continental United States.
Travel and Passports for the Children
[193] Ms. Jamal would like to obtain Canadian passports for the children. She says that Dr. Jamal has refused to sign passport applications for the children.
[194] Ms. Jamal may obtain Canadian passports for the children without Dr. Jamal’s consent or signature.
[195] The passports shall be kept in Ms. Jamal’s possession except when required by Dr. Jamal to travel to the continental United States with the children.
[196] Either party may travel outside Ontario within Canada and/or the continental United States during that party’s parenting time or access with the children, provided that the other party is given advance notice by e-mail in a timely manner with a written itinerary setting out the planned duration of the trip and municipalities where the child is expected to stay each night. The travelling parent is responsible to facilitate the other parent’s telephone access with the children during the trip.
[197] Ms. Jamal shall provide Dr. Jamal with the children’s passports in a timely manner for the purpose of a trip to the continental United States provided that Dr. Jamal requests the passports by e-mail, in advance and in a timely manner. Dr. Jamal shall return the passports to Ms. Jamal immediately upon the children’s return to her care.
[198] The non-travelling parent shall provide the travelling parent with notarized consent for travel to the continental United States in a timely manner. The travelling parent shall reimburse the cost of the notarized consent to the non-travelling parent within 30 days of being provided with written proof of the cost.
Spousal Support and Extended Health Coverage
Law
[199] The court is guided by section 15.2 of the federal Divorce Act with respect to spousal support.
[200] Sections 15.2 (4), (5), and (6) provide:
(4) FACTORS – In making an order [for spousal support] the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to the support of either spouse.
(5) SPOUSAL MISCONDUCT –In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time.
[201] These provisions speak to three different types of entitlement to spousal support: compensatory, contractual, and non-compensatory (see Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420).
Positions of the Parties
[202] Dr. Jamal does not dispute Ms. Jamal’s entitlement to spousal support.
[203] The court finds that Ms. Jamal has both a compensatory and non-compensatory entitlement to spousal support.
[204] The issues for the court to decide are quantum and duration.
[205] Mr. Jamal’s current annual income is $100,700.
[206] Ms. Jamal has no income aside from the child tax benefit.
[207] As indicated earlier, Ms. Jamal worked full-time until she moved to London where she worked part-time until Amaan was born. She has not worked since then because she has been caring for the children.
[208] Ms. Jamal says that she intends to return to work when feasible.
[209] She says that because she has not been practicing as a registered massage therapist for seven years, she will have to requalify, which may require repeating the entire three year programme.
[210] Ms. Jamal suggests that she will not be able to start to requalify until Ali is in school full-time which she says will be in the fall of 2018.
[211] Dr. Jamal submits that Ms. Jamal should be imputed with a minimum wage income pending her return to work as a full-time registered massage therapist. He suggests that Ali could be cared for at his home by Dr. Jamal or his parents to permit Ms. Jamal to work and requalify.
[212] Dr. Jamal indicates that he can maintain Ms. Jamal on his workplace extended health benefits, along with the children, although he indicated that there will be a cost to him with respect to Ms. Jamal, now that the parties are divorced.
[213] Dr. Jamal suggests that the greatest amount of spousal support he can afford, given his expenses, including the cost of carrying the matrimonial home which he has purchased from Ms. Jamal as part of their property agreement, is $1,150 per month. He bases his submission on the before-tax cost of spousal support. He did not mention how much his parents, who are living with him, are able to contribute to household costs.
[214] Ms. Jamal submits that Dr. Jamal is creating his own financial difficulty by keeping the matrimonial home which he cannot afford. She submits that his decision to keep the matrimonial home should not reduce the appropriate amount of spousal support.
[215] Ms. Jamal says that $1,150 per month plus extended health benefits for her and the children is the bare minimum she needs. She suggests that the amount of spousal support should be higher.
Analysis regarding Spousal Support
[216] Ms. Jamal is not responsible for Dr. Jamal’s decision to keep the matrimonial home.
[217] It is not in the best interests of the children to have significantly different standards of living between their parents’ homes.
[218] As noted earlier, Dr. Jamal’s submissions about his ability to pay are based on the before-tax cost of spousal support which is tax deductible. His after-tax cost will be significantly lower.
[219] The court will require Dr. Jamal to maintain Ms. Jamal on his employer’s extended health benefits for as long as she is eligible and spousal support is payable. He shall also be required to make arrangements, if possible, to allow her to submit her claims directly to the insurer and for payment of the claims to be made directly to her.
[220] He will also be required to maintain each child on his employer’s extended health benefits for as long as child support is payable for that child.
[221] The Spousal Support Advisory Guidelines (SSAG) indicates a range of $1,741 to $2,222 per month in the parties’ financial situation for a duration of up to 17 years from the date of their separation.
[222] Given the submissions of the parties, and taking into consideration the requirement for Dr. Jamal to maintain Ms. Jamal on extended medical and dental benefits post-divorce, the court finds, having considered the condition, needs, means, and other circumstances of the parties, that the appropriate amount of spousal support at present is $1,600 per month, which is around the low end of the SSAG range after adding an approximate cost of premiums to maintain extended health coverage for Ms. Jamal.
[223] Accordingly, commencing August 1, 2015, Dr. Jamal shall pay Ms. Jamal $1,600 per month in spousal support.
[224] It is a reasonable expectation, given the level of Dr. Jamal’s income, for Ms. Jamal to continue to provide full-time care to the children until both children are in school full-time. It is also reasonable for Ms. Jamal to have an opportunity to requalify for her work as a registered massage therapist before returning to work. The court is not satisfied, however, that the period of time until Ali is in school full-time and Ms. Jamal can requalify is as long as Ms. Jamal suggests.
[225] In order to encourage Ms. Jamal to make diligent efforts towards economic self-sufficiency, the amount of spousal support payable shall be reduced to $1,400 per month commencing August 1, 2020, and then to $1,200 per month commencing August 1, 2021, and then to $1,000 per month commencing August 1, 2022.
[226] If, at any point, on or after August 1, 2015, while spousal support is payable, Ms. Jamal is not eligible for extended health coverage through Dr. Jamal’s employer’s extended health insurer, the amount of spousal support otherwise payable by Dr. Jamal shall be increased by $175 per month for each month during which Ms. Jamal is not eligible for such coverage.
[227] Spousal support shall terminate on October 2, 2029.
[228] Ms. Jamal will be required to notify Dr. Jamal, by e-mail, immediately when she obtains employment and whether she will have extended health benefits through her employer.
Life Insurance
[229] Dr. Jamal shall obtain forthwith and/or maintain insurance on his life in the amount of $350,000, with Ms. Jamal as the sole beneficiary, as security for support while spousal and child support are payable. If only one of spousal or child support is payable at a given time, then the amount of life insurance required for support at that time shall be reduced to $200,000. If no support is payable then no life insurance is required. Dr. Jamal shall provide Ms. Jamal written proof that he is maintaining such life insurance each year on August 1st, commencing on August 1, 2016, for as long as he is required to have life insurance.
Extraordinary Expenses for Children
[230] Ms. Jamal seeks an order for Dr. Jamal to pay a flat amount of $210 per month for the children’s extraordinary expenses without being required to prove those expenses. She says that amount will cover the cost of swimming lessons and summer camp for both children, although Ali has not yet gone to summer camp, and, if granted that amount, she will not seek a contribution from Dr. Jamal for any other extraordinary expenses.
[231] Dr. Jamal submits that he would prefer to be consulted about the children’s extraordinary expenses, including extracurricular activities.
[232] It is impossible to know today what extraordinary expenses might arise in the future. One significant extraordinary expense that arises sometimes is orthodontic expenses. In the court’s view, it would be short-sighted and not in the best interests of the children in this case to order a fixed amount towards extraordinary expenses regardless of the actual amount of such expenses.
[233] The court sees no reason to depart from the usual order for a sharing of extraordinary expenses based roughly upon each party’s income after the payment of spousal support.
[234] Accordingly, Dr. Jamal shall reimburse Ms. Jamal eighty percent of the cost of extraordinary expenses for the children.
[235] Ms. Jamal shall provide a copy of a receipt for an extraordinary expense to Dr. Jamal within three months of the expenditure if she wishes Dr. Jamal to reimburse his share.
[236] Dr. Jamal shall reimburse Ms. Jamal for his share of an extraordinary expense within thirty days of receiving a copy of a receipt from Ms. Jamal.
Income Disclosure
[237] Both parties shall provide the other party with a copy of their complete income tax return with all attachments and their Notices of Assessment and Re-Assessment for as long as support is being paid, by August 1st of each year, in relation to the previous calendar year, commencing in 2016 in relation to 2015.
Child Support
[238] On consent, Dr. Jamal shall pay table child support for two children in the amount of $1,425 per month, commencing May 1, 2015, based on Dr. Jamal’s 2014 income of $100,700 and the Child Support Guidelines.
Orders
Ms. Jamal shall have sole custody and primary residence of Amaan Jamal and Ali Jamal.
Dr. Jamal shall continue to have access with Ali every Wednesday from 10:30 a.m. until 3 p.m., until Ali starts to regularly attend school on Wednesdays, when Dr. Jamal shall have access with Ali from after school, or from 4 p.m. if Ali does not attend school that Wednesday, until 6:15 p.m.
Dr. Jamal shall continue to have access with Amaan every Wednesday from after school, or from 4 p.m. if Amaan does not attend school that Wednesday, until 6:15 p.m.
Dr. Jamal shall continue to have access with Amaan and Ali every Sunday from 10:30 a.m. until 4:30 p.m., subject to the other provisions of this order.
Except for a pick-up at school, exchanges of the children shall continue to take place inside the Tim Horton’s at 9005 Leslie Street.
The requirement for supervision of exchanges is terminated.
Each parent may be accompanied by another adult person at an exchange or may send another adult person to an exchange in their stead, provided that if another adult person is sent to the exchange on behalf of a parent, that parent shall give the other parent advance written notice in a timely manner.
All exchanges shall be completed as quickly as possible and with the least amount of contact and communication possible between the adults present. The exchanges shall not be treated as an opportunity to socialize with the children or any adult present.
Dr. Jamal shall have additional access with the children from 9:30 a.m. to 4 p.m. on the following Saturdays: October 3, 2015, November 14, 2015, December 26, 2015, February 6, 2016, March 5, 2016, April 2, 2016, April 30, 2016, and May 28, 2016.
On any Saturday that Dr. Jamal has access, he shall ensure that the children attend their regular religion class where enrolled by Ms. Jamal unless the class is not being held that Saturday.
For the purpose of this court’s access order, the Jamatkhana where the children attend religious education classes shall be deemed not to be Ms. Jamal’s place of work for the purposes of paragraph 2.5 of the agreement as to property between the parties dated May 28, 2015.
When both parties are at the same location, except at exchanges, Dr. Jamal shall not initiate any form of contact or communication, direct or indirect, except by e-mail, with Ms. Jamal.
The parties shall arrange to attend separate parent-teacher meetings in relation to the children’s secular and religious places of education.
Dr. Jamal shall not have any physical contact, directly or indirectly, with Ms. Jamal.
Commencing Saturday, July 2, 2016, and every second Saturday thereafter, Dr. Jamal shall have access with both children from 9:30 a.m. on Saturday until 4:30 p.m. the immediately following Sunday but he shall not have access on Sunday, July 10, 2016 or every alternate Sunday thereafter. In other words, instead of weekend access every Sunday, he shall have weekend access every other week but from Saturday until Sunday.
Commencing Friday, November 4, 2016, and every second Friday thereafter, Dr. Jamal’s alternate weekend access with both children will commence after school on Friday, or at 4 p.m. if the children are not both in school that Friday, and end at 4:30 p.m. the immediately following Sunday.
Dr. Jamal shall have special holiday access with both children, if he does not otherwise have in person access that day, every July 11th and every December 25th from 2 p.m. to 5 p.m., and every March 21st and every December 13th from the end of school, or 4:30 p.m. if the children are not both in school that day, to 6:15 p.m.
Ms. Jamal shall have parenting time with both children, if she does not otherwise have in person parenting time that day, every March 21st, July 11th, December 13th, and December 25th from 3 p.m. to 4:30 p.m.
Commencing August 1, 2015, Dr. Jamal shall have telephone access for five minutes with each child between 7 p.m. and 7:15 p.m. every day that he does not have in person access with the children. Ms. Jamal shall facilitate Dr. Jamal’s telephone access.
Commencing November 5, 2016, Ms. Jamal shall have telephone access for five minutes with each child between 7 p.m. and 7:15 p.m. every Saturday that Dr. Jamal has access with the children. Dr. Jamal shall facilitate Ms. Jamal’s telephone access.
The access schedule will be suspended when it conflicts with the children’s attendance at summer camp.
The parties may arrange additional access by e-mail at the discretion of Ms. Jamal.
Ms. Jamal shall keep Dr. Jamal informed by e-mail in a timely manner about all important information relating to the religion, education, health, and extracurricular activities of the children.
Ms. Jamal shall consult with Dr. Jamal by e-mail in a timely manner, in advance, before making any major decisions with respect to the children’s religion, education, or health, other than in the case of a medical emergency in which case she shall immediately notify Dr. Jamal of the decision she has made.
If either child has a medical emergency while in the care of Dr. Jamal he shall immediately notify Ms. Jamal so that she may make any necessary decisions. If, during a child’s medical emergency, Ms. Jamal is not available to make decisions, Dr. Jamal may make decisions that must be made during that period.
Dr. Jamal shall have access to all information about the children’s religion, education, or health directly from their service providers, and he may obtain copies of the service provider’s records concerning the children at his own cost. If Ms. Jamal’s written authorization and/or consent is required for Dr. Jamal to exercise his right to access to information or copies of records, she shall provide such authorization and/or consent to the service provider within fifteen days of a request by e-mail from Dr. Jamal.
The parties shall communicate about the children only, and, except in an emergency, or at an exchange, or as may be initiated by Ms. Jamal, only by e-mail, and shall not, except in an emergency, send the other party more than one e-mail per day, except for communications about life insurance, extended health coverage, annual income, and extraordinary expenses which may be in writing other than by e-mail.
All restraining orders issued prior to the release of this decision are terminated.
The order prohibiting the removal of the children from Ontario is terminated.
Neither party shall permit the removal of the children from the area within Canada and the continental United States.
Ms. Jamal may obtain Canadian passports for the children without Dr. Jamal’s consent or signature.
The children’s passports shall be kept in Ms. Jamal’s possession except when required by Dr. Jamal to travel to the continental United States with the children.
Either party may travel within Canada and/or within the continental United States during that parent’s parenting time or access with the children, provided that the other party is given advance notice by e-mail in a timely manner with a written itinerary setting out the planned duration of the trip and municipalities where the child is expected to stay each night. The travelling parent shall be responsible to facilitate the other parent’s telephone access during the trip.
Ms. Jamal shall provide Dr. Jamal with the children’s passports in a timely manner for the purpose of a trip to the continental United States provided that Dr. Jamal requests the passports by e-mail, in advance and in a timely manner. Dr. Jamal shall return the passports to Ms. Jamal immediately upon the children’s return to her care.
The non-travelling parent shall provide the travelling parent with notarized consent for travel to the continental United States in a timely manner. The travelling parent shall reimburse the cost of the notarized consent to the non-travelling parent within thirty days of being provided with written proof of the cost.
Dr. Jamal shall maintain Amaan and Ali on his employer’s extended medical and dental benefits for as long as child support is payable for that child.
Dr. Jamal shall maintain Ms. Jamal on his employer’s extended health benefits for as long as she is eligible and spousal support is payable. Within thirty days, Dr. Jamal shall provide Ms. Jamal with written proof from the insurer confirming whether Ms. Jamal is eligible and covered for extended health benefits.
If permitted by his employer’s extended health insurer, Dr. Jamal shall, within ninety days, arrange for Ms. Jamal to be able to submit her extended health claims directly to his insurer and for payment of those claims to be made by the insurer directly to Ms. Jamal. Within the same ninety day period, Dr. Jamal shall provide Ms. Jamal with a written statement from the insurer confirming whether or not such an arrangement is possible. If such an arrangement is possible, Dr. Jamal shall provide Ms. Jamal, within the same ninety day period, with a written statement from the insurer setting out what Ms. Jamal must do to finalize the arrangement and to submit claims. If such an arrangement is not possible, Dr. Jamal shall submit all extended health claims he receives from Ms. Jamal to the insurer within fifteen days of receipt from Ms. Jamal, and he shall pay to Ms. Jamal the full amount paid by the insurer for her claims within fifteen days of receipt of payment from the insurer, and he shall provide her with a copy of each claim he files on her behalf, within fifteen days of such filing, and he shall provide her with a copy of the related claim statement received from the insurer, within fifteen days of receipt from the insurer.
Commencing August 1, 2015, Dr. Jamal shall pay Ms. Jamal $1,600 per month in spousal support.
Spousal support payable by Dr. Jamal to Ms. Jamal shall be reduced to $1,400 per month commencing August 1, 2020, and further reduced to $1,200 per month commencing July 1, 2021, and further reduced to $1,000 per month commencing August 1, 2022.
If, at any point, on or after August 1, 2015, while spousal support is payable, Ms. Jamal is not eligible for extended health coverage through Dr. Jamal’s employer’s extended health insurer, the amount of spousal support otherwise payable by Dr. Jamal shall be increased by $175 per month for each month during which Ms. Jamal is not eligible for such coverage.
Spousal support shall terminate on October 2, 2029.
Ms. Jamal shall notify Dr. Jamal by e-mail immediately when she obtains employment and whether she has extended health benefits through her employer.
Dr. Jamal shall obtain forthwith and/or maintain insurance on his life in the amount of $350,000 with Ms. Jamal as the sole beneficiary as security for support while spousal and child support are payable. If only one of spousal or child support is payable at a given time, then the amount of life insurance required for support at that time shall be reduced to $200,000. If no support is payable then no life insurance is required. Dr. Jamal shall provide Ms. Jamal written proof that he is maintaining such life insurance each year on August 1st, commencing on August 1, 2016, for as long as he is required to have life insurance.
Dr. Jamal shall reimburse Ms. Jamal eighty percent of the cost of extraordinary expenses for the children paid by Ms. Jamal.
Ms. Jamal shall provide a copy of the receipt for an extraordinary expense to Dr. Jamal within three months of the expenditure if she wishes Dr. Jamal to reimburse his share.
Dr. Jamal shall reimburse Ms. Jamal for his share of an extraordinary expense within thirty days of receiving a copy of the receipt from Ms. Jamal.
Each party shall provide the other party with a copy of their complete income tax return with all attachments and their Notices of Assessment and Re-Assessment for as long as support is being paid, by August 1st of each year, in relation to the previous calendar year, commencing in 2016 in relation to 2015.
Dr. Jamal shall pay table child support for two children in the amount of $1,425 per month, commencing May 1, 2015, based on Dr. Jamal’s 2014 income of $100,700 and the Child Support Guidelines.
A support deduction order shall issue.
Costs
[239] If either party wishes to make a submissions as to costs, that party may serve and file a brief written submission as to costs within 21 days. The other party may then serve and file a brief written response within 21 days of receipt of the first party’s submissions. The first party may then serve and file a very brief written reply within 10 days of receipt of the response.
F. Graham, J.
Released: July 24, 2015