Court File and Parties

COURT FILE NO.: FS-15-164-00 DATE: 2016 09 06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANUM AHMAD v. SANAULLAH SAMEER KHALID

BEFORE: EMERY J.

COUNSEL: Laurie H. Pawlitza, for the Applicant Roslyn M. Tsao, for the Respondent

HEARD: August 23, 2016

ENDORSEMENT

[1] The applicant mother, Anum Ahmad, has brought a motion for several kinds of relief including the appointment of a parenting coordinator, child support, retroactive child support, interim spousal support and retroactive spousal support.

[2] The respondent father, Sanaullah Sameer Khalid, is a doctor who resides in Wexford, Pennsylvania. Pursuant to an order made by Justice Ricchetti on April 22, 2016, Dr. Khalid was granted access visits with the child of the marriage, Arman Essa Khalid, born January 9, 2015. He is currently 18 months old.

[3] Dr. Khalid is entitled to have an access visit with Arman between Wednesday, September 7, 2016 and Sunday, September 11, 2016 pursuant to Justice Ricchetti’s order. Dr. Khalid has brought a cross-motion to extend that access visit for one day, to Monday, September 12, 2016 to celebrate the religious holiday Eid Al-Adha.

[4] At the outset of the motions, the court was informed that the parties had agreed upon several issues raised by the motion of Ms. Ahmad, including child support on an interim and retroactive basis. A temporary order shall issue pursuant to the Consent filed.

[5] The motion of Ms. Ahmad therefore proceeded for the following relief: a. The appointment of a parenting coordinator to ensure the civil and orderly delivery of Arman to each of his parents at the beginning and end of each access visit; b. Interim spousal support; c. Life insurance Dr. Khalid should arrange to secure child and spousal support; and d. Retroactive spousal support for Ms. Ahmad.

Cross-motion to extend Access for One Day

[6] I propose to deal in summary fashion with Dr. Khalid’s cross-motion first. Justice Ricchetti made the following order for Dr. Khalid’s entitlement to access visits with Arman in paragraph 40 of his endorsement as follows:

[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.

[7] In paragraph 41, Justice Ricchetti proceeded to order interim relief requested by Dr. Khalid in paragraph 1 of his Notice of Motion, subject to the variation of the length of access visits set out in paragraph 40. That relief provides the logistics of the access visits in paragraph 2 of the order which reads as follows:

2. The Respondent shall have interim access with the child of the marriage, Arman Essa Khalid (“Arman”) born January 9, 2015, on the following terms: (a) from Wednesday to Sunday, once per month in Pittsburgh. The parties shall agree on which weekend each month this access to occur. If the parties cannot so agree, the Respondent may choose the weekend that month by giving notice to the Applicant before the end of the second day that month; (b) the exchanges for such access shall occur at 6:00 p.m. at the Adams Mark Hotel in Buffalo, New York. The Respondent shall pay for Applicant’s out of pocket vehicular expenses to transport Arman to and from Buffalo; (c) during the access visits in (a) above, Arman shall reside with the Respondent in Pennsylvania; (d) during the access visits in (a) above, the Applicant shall have a daily SKYPE call with Arman for 5 minutes; (e) when Arman is residing with the Applicant, the Respondent shall have a daily SKYPE call with Arman for 5 minutes; (f) when the Respondent is in Ontario, that he may see Arman for a reasonable visit provided he gives at least two (2) days (48 hours) prior notice; and (g) neither party shall travel with Arman outside of Canada/U.S. except for the visits set out in this paragraph without the other party’s prior written consent, such consent not to be unreasonably withheld.

[8] The entitlement to an access visit is not an issue on either motion. Ms. Ahmad must deliver Arman to Dr. Khalid as required by Justice Ricchetti’s order on Wednesday, September 7, 2016.

[9] Ms. Ahmad is not adverse to the extension of the access visit from September 11 to September 12 in principle, but makes it conditional upon the appointment of a parenting coordinator. Absent any evidence that the extension of one day for an access visit will cause harm to Arman or inconvenience to the custodial parent, there is no reason for the relief sought in one motion to be made a condition of the relief sought on the cross motion.

[10] I therefore grant the order requested by the respondent Sanaullah Sameer Khalid on the cross-motion and extend his access visit with Arman Essa Khalid born on January 9, 2015 for one day to be from Wednesday, September 7, 2016 to Monday, September 12, 2016 for the religious holiday Eid Al-Adha.

[11] I now turn to the motion of the applicant mother, Anum Ahmad.

Appointment of Parenting Coordinator

[12] I have reviewed the decisions on the appointment of parenting coordinators in McCall v. Res, 2013 ONCJ 254 of the Ontario Court of Justice, and Katz v. Katz, 2010 ONSC 158 where Justice Hughes fashioned a process for a parenting coordinator to follow.

[13] With respect, I do not think a parenting coordinator is required in this case. In McCall and in Katz, the court was asked to resolve issues arising from the implementation of a parenting plan. Here there is no parenting plan. Here there is a detailed process for Ms. Ahmad to deliver Arman to Dr. Khalid in Buffalo at the beginning of each access visit, and to pick Arman up from Dr. Khalid at the end of each access visit in Buffalo. These terms are clearly spelled out in Justice Ricchetti’s order. This is an access protocol and a parenting coordinator is not required for its implementation. What is required is that the parties follow Justice Ricchetti’s order strictly, except where they can agree to any variation as circumstances arise, or that may be ordered by the court.

[14] Appointing a parenting coordinator to monitor and make recommendations for the parties to follow an access protocol may only lead to further time and expense bringing motions. Providing the basis for further litigation at this stage would be counterproductive to the process and certainly not in Arman’s best interests.

[15] If either party is concerned that the other party will be uncivil or unpleasant during these exchanges, I hereby make an order that each party shall not disparage or denigrate the other in Arman’s presence or at the time of delivering Arman at the beginning of each access visit or picking Arman up at the end of each access visit, and shall not raise a voice or behave in a rude or uncivil manner. If that occurs, the offended party is at liberty to bring a motion returnable before me with respect to any breach of this order. I make this order on my own motion to observe the primary objective set out in Family Law Rule 2 to deal with this case justly, and in the exercise of the parens patriae jurisdiction of this court.

[16] Ms. Ahmad also requests certain orders to supplement the terms of Justice Ricchetti’s order relating to Dr. Khalid’s access visits with Arman. The additional orders requested in Ms. Ahmad’s notice of motion include a more detailed protocol for Dr. Khalid to advise her of specific dates each month he wishes to exercise access, that his daily Skype/FaceTime access with Arman occur between 6 p.m. and 7 p.m., and the giving of caregiver reports while Arman is with Dr. Khalid. Ms. Ahmad also seeks orders granting her the right to apply for his Canadian passport and the right for Dr. Khalid to apply for Arman’s US passport, the reciprocal obligation of each other to sign those applications, and travel restrictions with Arman relevant to each parent.

[17] Ms. Ahmad states in her affidavit that Dr. Khalid seeks changes to Justice Ricchetti’s order each month. She does not allege that he has failed to obey that order. In the absence of any allegation or evidence Dr. Khalid has breached any order of the court, I do not consider myself to have jurisdiction to make an ancillary order under Family Law Rule 1(8). However, the parties are at liberty to bring a motion returnable before me on the proper evidence and seeking the appropriate relief if particular issues persist or new issues arise with respect to Justice Ricchetti’s order. I do not consider myself seized of any part of the case, but the parties may obtain an expedited hearing date for such a motion through my judicial assistant if that becomes necessary.

Motion for Interim Spousal Support

[18] The 2016 income for Dr. Khalid has been established at USD $255,000 for the purposes of setting child support. The equivalent amount in Canadian terms, based on the without prejudice exchange rate of 1.2941 the parties have applied for child support purposes, comes to $324,640. I hereby consider that income to be the appropriate basis to determine Dr. Khalid’s income for interim spousal support purposes.

[19] The parties met on a Muslim dating site. They dated for short time during which Dr. Khalid proposed. They celebrated their marriage in a religious ceremony on February 22, 2013, and were married in a civil ceremony on November 22, 2013.

[20] Ms. Ahmad enrolled in a program for a Master’s degree in health administration at Carnegie Mellon University in Pittsburgh before she became pregnant with Arman. She started that program as a full-time student on August 15, 2014 when she was three months pregnant. Ms. Ahmad finished her first term at Carnegie Mellon in December 2014 with excellent grades.

[21] Arman was born on January 9, 2015.

[22] Dr. Khalid served Ms. Ahmad with a Complaint for Divorce in Pennsylvania on Valentine’s Day, February 14, 2015 when Arman was not quite five weeks old.

[23] Dr. Khalid arranged to have all belongings of Ms. Ahmad crated and shipped to her parents’ home in Brampton, Ontario during March 2015. On March 20, 2015, Dr. Khalid drove Ms. Ahmad and their son to Brampton and left them with Ms. Ahmad’s parents. At the time, Ms. Ahmad had no income and no employment.

[24] Ms. Ahmad is presently providing full time care to Arman. She is not currently employed by an outside source. I do not impute any income to her at this time having regard to the circumstances given in evidence.

[25] Dr. Khalid clearly makes a significant income. Ms. Ahmad advances a claim for interim spousal support based on compensatory grounds because she held her education and career in abeyance when she married and moved to Pennsylvania, and as she has been the primary caregiver for Arman since birth. She is now back in Brampton, Ontario living with her parents. The issue for this court is what amount, if any, the court should award to Ms. Ahmad in view of the short duration of the marriage, and Ms. Ahmad’s current circumstances of living with her family in a comfortable five bedroom home.

[26] Dr. Khalid has filed a financial statement showing his expenses to be significant at this time. However, one of those expenses requires him to pay $3,673 each month on a mortgage of USD $284,399 on 618 Edison Drive in Wexford, Pennsylvania he purchased after March 2015. I consider the mortgage payments Dr. Khalid is making not as an expense, but as a prepayment on an investment he has made for the future. He voluntarily incurred this expense and it will accrue to his benefit in the future as a property that will either generate income or appreciate in value. It is not an expense that he can use as a shield to pay spousal support. This is particularly so since he incurred that expenditure after the date of separation.

[27] Ms. Ahmad is seeking spousal support based on Dr. Khalid’s income in the amount of $8,626 each month. This is the midrange under the SSAG calculation with $9,299 at the high end of the range and $7,464 at the low end based on his income of $324,640 for 2016. However, this is subject to the discretion of the court.

[28] I have applied the factors set out in the Revised User’s Guide for the SSAGs, and my review of the discretion the court is to exercise in Tauber v. Tauber. I have determined that Ms. Ahmad is entitled to interim spousal support at the low range under the SSAG’s in the amount of $7,500 a month, effective August 1, 2016. This order is temporary in nature and made without prejudice to what evidence the parties may give at trial with respect to the SSAG factors, applicable exchange rates and tax considerations under treaties between Canada and the United States.

Life Insurance as Security

[29] On the basis of paragraph 106 of his affidavit Dr. Khalid shall arrange life insurance in the amount of $500,000 as security for child support and spousal support, with Ms. Ahmad named as the beneficiary. This order is made without prejudice to any further order to arrange insurance to be made at trial.

Retroactive Spousal Support

[30] I consider the issue of whether Dr. Khalid should pay retroactive spousal support to be an issue reserved for trial.

Further Orders

[31] The issues for trial on the application and answer in this court will be custody of and access to Arman on a final basis, child support, spousal support and retroactive spousal support, life insurance as security for support, and the appointment of a parenting coordinator once a parenting plan has been agreed upon or fashioned by court order.

[32] Certain disclosure issues relating to the support issues remain unresolved. There are no property issues between the parties given the circumstances and duration of the marriage and the Pennsylvania courts have jurisdiction over such property matters in any event. There is no reason why the parties cannot proceed to a settlement conference on an expedited basis. If the parties agree, this case is suitable to schedule a combined settlement conference/trial management conference to have a trial date set. Having this matter handled expeditiously not only serves the interests of the parties, it would, in my view, be in the best interests of Arman.

[33] Counsel are therefore invited to contact the trial coordinator’s office in Brampton to arrange the first available date for a settlement conference. I would urge counsel to cooperate with obtaining disclosure from the adverse party as may be required under the guidelines in the Family Law Rules as soon as possible and in a manner consistent with the suggested approach.

Costs

[34] The parties are urged to settle the matter of costs between them. In the event no agreement can be reached, the party seeking costs on this motion, may file written submissions consisting of no more than three pages by September 16, 2016. The other party shall then have until September 30, 2016 to file responding materials limited to the same extent. No reply submissions shall be permitted without leave of the court. All written materials may be sent by fax to my judicial assistant, Mr. Christopher Charles, at 905-456-4834. If no written submissions are received by September 30, 2016, the parties shall be deemed to have resolved the issue of costs between them.

Emery J DATE: September 6, 2016