Court File and Parties

Court File No.: FS-15-164-00 Date: 2016-04-22 Superior Court of Justice – Ontario

Re: ANUM AHMAD, Applicant (Mother) And: SANAULLAH SAMEER KHALID, Respondent (Father)

Before: Ricchetti, J.

Counsel: M. Newton, Counsel for the Mother R. Tsao, Counsel for the Father

Heard: April 21, 2016

Endorsement

The Motions

[1] The Father brings a motion seeking interim access to the child of the marriage, Arman Essa Khalid (“Arman”) born January 9, 2015.

[2] The Mother brings a cross motion seeking support. Unfortunately, this cross motion was served too late for responding materials to be prepared and filed. The Mother’s cross motion is adjourned on the following terms:

a) The Father’s responding materials are to be served and filed by May 1, 2016 at 4:00 p.m.;

b) The Mother’s reply materials are to be served and filed by May 7, 2016 at 4:00 p.m.; and

c) The Mother’s cross motion is to be heard during the week of May 14, 2016 on a date to be agreed on by counsel or such other week as counsel may agree on.

The Facts

[3] The parties were married on November 22, 2014 in the State of Pennsylvania. They separated on February 6 or 14, 2015, shortly after the Arman was born. At the time of separation the parties lived in Wexford, Pennsylvania.

[4] The Father is a medical doctor. The Mother has a B.A. in psychology.

[5] On February 10, 2015, the Father commenced divorce proceedings in Pennsylvania seeking a divorce and division of property. Custody and access issues were not sought as the parties were negotiating a resolution of custody and access issues.

[6] In March 2015, the Mother moved with Arman to Brampton to reside with her family.

[7] The parties continue to negotiate on the custody and access issues. The Father believed they had reached an agreement subject only to execution of the documentation by the Mother. In the meantime, the Father continued to exercise some access with Arman, including overnight access some of it being exercised in the United States.

[8] However, issues developed between the parties. Unbeknownst to the Father, on July 22, 2015 the Mother commenced an application in Ontario for custody and support.

[9] After the Father was served with Mother’s Ontario application, the Father commenced a custody application in Pennsylvania.

[10] There arose a dispute as to whether Pennsylvania or Ontario had jurisdiction over custody and access matters. Access becomes even more difficult as the litigation in the two jurisdictions continued.

[11] On September 9, 2015, the parties appeared in the Pennsylvania courts, both represented by counsel. The parties agreed that the Pennsylvania court had jurisdiction to make an interim order for access. The Mother’s counsel stated to the court:

Ms. Cook:

Mother feels after this last visit, this past weekend went really well and there were not any major conflicts. The child was better adjusted to being with father than mom thought he was going to be. She has said to me that she is willing to, and I can tell you what the two options are, the options are, one, would be Wednesday through Sunday in Pittsburgh every month, or biweekly visits in Ontario.

.. When it was contemplated that she was going to go to Buffalo, Dr. Khalid was paying support, which he is not doing now, so she has no income whatsoever. So she would just ask that the exchanges be there.

[12] This interim agreement on access was set out on the record by counsel:

“until the issue of jurisdiction is determined father will exercise custody each month from Wednesday to Sunday once per month, the first period of custody to begin September 30, the parties are to meet in Buffalo, New York, father will make arrangements and pay for the rental car for the use of the mother for these transfers.

[13] On September 18, 2015 the Ontario courts adjourned the motion to deal with the issue of jurisdiction, but the court endorsement confirmed the Father’s access in Pittsburgh from September 23 to 27, 2015 which access was consistent with the access agreement in the Pennsylvania courts. Father exercised this access with Arman.

[14] The Father did not exercise his access with Arman in November 2015 as he was writing his medical board exams that month.

[15] The Father sought to exercise access with Arman in December 2015. He sent an email to the Mother on December 2, 2015. The Mother did not respond and the Father was denied access in Pittsburgh as per the access agreement in the Pennsylvania courts. The Father came to Brampton and had limited access with Arman during that period. The Mother’s counsel submits that access didn’t occur in December 2015 because the previous access had been arranged through counsel and this time Father was dealing with her directly. This is neither a rational nor reasonable excuse for denying Father access with Arman.

[16] Since the failed access in December 2015, the Father has had no further Wednesday to Saturday access in Pittsburgh with Arman in accordance with the access agreement in the Pennsylvania courts. Instead, the Mother has permitted some access visits by the Father in Brampton.

[17] In January, 2016, the Father withdrew his objection to the Ontario courts taking jurisdiction over the custody and access dispute between the parties.

[18] The Mother has refused to permit the Father to have any further access with Arman in Pittsburgh – whether in accordance with the agreement in the Pennsylvania courts or otherwise. She has permitted some access by the Father in Brampton but this access has been limited.

[19] The Mother now raises a number of “concerns” she has with the Father exercising access in Pittsburgh on a regular basis.

[20] This motion was brought by the Father to establish access visits with Arman.

The Position of the Parties

[21] The only contentious issue is paragraph 1 (a) of the Father’s Notice of Motion dated April 11, 2016 – whether the Father is to have regular access with Arman in Pittsburgh and, if so, for how long?

[22] The Father seeks access from Friday until the second Sunday (i.e. 10 days) in Pittsburgh once per month.

[23] The Mother is prepared to grant the Father access visits every alternating weekend in Brampton, although not opposed to permit the Father to having an access visit in Pittsburgh every three or four months.

The Analysis

Preliminary Issues

[24] The first issue raised by the Mother was that the Father’s access motion should be adjourned until after the first case conference is conducted. I decline to do so. The Father has not had access with Arman as per the access agreement in the Pennsylvania courts and what little access essentially has been in the discretion of the Mother. Adjourning for a number of weeks to permit a case conference and a further adjournment to a new motion date would be to disregard Arman’s best interest that his relationship with his parents be memorialized in a court order so that regular access can be re-established to allow Arman to build a relationship with both parents.

The Agreement in the Pennsylvania Courts

[25] The next issue raised by the Mother’s counsel is that the interim access agreement in the Pennsylvania courts was only until the jurisdiction issue was resolved. That appears to be the limitation on the access agreement. The Mother didn’t take this position when denying Father access in Pittsburgh until this motion. Rather the Mother has raised a variety of other issues which I will deal with below as the basis for denying the Father regular access in Pittsburgh.

[26] While I acknowledge that the Pennsylvania court’s interim access order is not binding on this court, the fact the parties agreed to this interim access arrangement in Pennsylvania for the Father is a significant factor for this court to consider.

The Best Interests of the Child

[27] There is no dispute that the overriding question regarding access is the best interests of Arman.

[28] Section 24 of the Family Law Reform Act provides:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) 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;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[29] Neither party suggests that the other party is other than a caring and loving parent and can provide proper caregiving to Arman when in their care. The sole real issues are whether the Father’s access should occur in Pittsburgh and how long should Father’s access be.

[30] Let me deal with the concerns raised by the Mother regarding access in Pittsburgh.

a) Arman is very young - only 15 months - and the Mother is concerned that Arman will be away from his primary care giver for a long period of time. Clearly, this was not an issue for the Mother when Arman was only 8-9 months old when she agreed that the Father could have regular access in Pittsburgh once a month from Wednesdays to Sundays (four nights). For the reasons set out below, I do agree that Arman being away from his Mother for 9 nights as proposed by Father in this Notice of Motion is excessive and not in Arman’s best interests;

b) Arman is “more agitated” when he returns from his visits with his Father. Again the Mother agreed to the access schedule in the Pennsylvania courts. Further, I have a difficult time understanding how the 15 month old is seen to be more agitated. Nothing has changed since September 2015. There is no other evidence this is a real or serious concern which should prevent regular access with the Father in Pittsburgh any more than it would if the Father exercised that access elsewhere in Ontario;

c) When the Father is at work, Arman will be cared for by the Father’s grandmother. The Mother has issues about the grandmother’s ability to care for Arman. The Mother also raises issues that the Father should be engaged with Arman throughout the day. However, this same situation existed in September 2015 and I do not accept this as a legitimate concern raised at this date particularly if the Father’s access is limited to the 4 nights in Pittsburgh;

d) The driving will be a hardship on Arman. At one point, Mother’s counsel suggested it was easier for Arman to sit in the car for a long drive when he was younger. He quickly retreated from that position when challenged. I agree that it is not ideal for Arman to be spending lengthy periods of time in a car as required for the drive from Buffalo to Pittsburgh. However, it is only once per month. It will also be helped by the Mother driving Arman to Buffalo for the exchange;

e) The Mother alleges she has difficulties with lactation when she is away from Arman for long periods of time. I will deal with the scant medical evidence below. However, this was a more significant issue in September 2015 when Arman was younger and not as significant now, particularly given the evidence that the Mother has not provided breast milk for Arman for the Father’s last access with Arman. It appears that the Mother is simply looking for reasons to make the Father’s access more difficult;

f) The Mother raises safety concerns regarding the long drive to Pittsburgh on a regular basis. However, this drive will take place a total of 12 times per year. Only once per month. I do not consider the drive to be of such a significant concern to overshadow the benefits to Arman and the need for the Father to spend time and develop a relationship with Arman;

g) The Mother raises the Father’s work schedule suggesting that the pickup times and drop off times in Buffalo would interfere with Arman’s schedule. Again, I agree that this is not ideal but given the reality that the parties live apart and they have a young child, the benefits to Arman building and maintaining a relationship with his Father is more important.

[31] Let me deal with an exhibit in the Mother’s affidavit, a letter from Dr. Athey dated December 8, 2015. He suggests some concerns regarding Arman’s breast feeding if Arman is away from his Mother for mother than a day or two. However, this was not an issue in September 29, 2015. For a period of time, the Mother was pumping breast milk and freezing it and providing it to the Father for Arman – the doctor does not deal with this. Further, the doctor does not deal with the more current evidence that the Mother has little or no breast milk anymore for Arman which limits any future concerns regarding breast feeding.

[32] The same letter also suggests that Arman not be in a car for more than an hour or two. The doctor suggests it would be disruptive to Arman’s schedule and disposition. I recognize this is not an ideal situation but the doctor fails to deal with what impact it would have on Arman if he did not build a relationship with his Father.

[33] The Father submits that interim access in accordance with the agreement arrived at in the Pennsylvania courts was acceptable in September 2015 and there is no valid basis for the Mother’s concerns which weren’t raised at that time but are now being raised to avoid or limit the Father’s access with Arman.

[34] I do note that the Father seeks access for 10 day periods in Pittsburgh. In my view, given that Arman is very young, being continuously away from the primary caregiver for this long a period of time would not be in Arman’s best interests.

[35] The Mother’s suggestion that the Father have access in Brampton every alternating weekend is simply not workable or a meaningful position given the Father’s work, the distance and the cost of flights, cars and hotels (to make a trip to Brampton meaningful if for only a weekend).

[36] I see no reason why the parties should not and cannot return to the access agreement they agreed to, with the benefit of counsel in the Pennsylvania courts: the Father to have interim access Wednesday to Sunday once per month in Pittsburgh with the exchange taking place in Buffalo and the Father paying the Mother’s vehicular expenses to bring and pick up Arman in Buffalo.

[37] I am satisfied it is in Arman’s best interests, in the circumstances that exist, to maintain and build this relationship with his Father.

[38] The Mother is not working. Arman is not going to school. Unless the parties can agree otherwise, I order that the Father select which Wednesday to Sunday each month that he wishes to exercise access with Arman. The Father is to provide in writing to the Mother by email the specific weekend of the month that he wishes to exercise access and must do so before the 2nd day of the month.

[39] No issue was raised by the Mother regarding the remaining relief sought by the Father in paragraph 1 of the Notice of Motion dated April 11, 2016.

Conclusion

[40] The Father shall have interim access with Arman from Wednesdays to Sundays once per month in Pittsburgh. The parties to agree on which weekend each month this access to occur. If the parties cannot so agree, the Father may choose the weekend that month by giving notice to the Mother before the end of the second day that month. The Father shall pay for Mother’s out of pocket vehicular expenses to transport Arman to and from Buffalo.

[41] Except for the above variation to paragraph 1(a) of the Father’s Notice of Motion, the rest of the interim relief sought by the Father in paragraph 1(a) through (f) are hereby ordered on an interim basis.

Costs

[42] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[43] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[44] There shall be no reply submissions without leave.

Ricchetti J.

Date: April 22, 2016

COURT FILE NO.: FS-15-164-00 DATE: 20160422 ONTARIO SUPERIOR COURT OF JUSTICE RE : ANUM AHMAD, Applicant (Mother) v. SANAULLAH SAMEER KHALID, Respondent (Father) BEFORE : RICCHETTI J. ENDORSEMENT Ricchetti J. Released: April 22, 2016