CITATION: Daher v. Khanafer, 2016 ONSC 5969

COURT FILE NO.: FC-15-774

DATE: 2016/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Atallah Daher

Applicant

– and –

Dania Khanafer

Respondent

Jodi R. Fleishman, for the Applicant

Katherine A. Cooligan, for the Respondent

HEARD: May 16-20; 24-28, 2016

REASONS FOR JUDGMENT

Mackinnon, J.

[1] Despite international aspects involving Canada, Spain and Lebanon, despite voluminous documentary evidence and salacious allegations levelled against the mother, this case boils down to whether the father’s access to Daniel, their almost three-year-old son, should be restricted to supervised access in Ottawa or not. If supervised access is required now, should the Court set a future date on which that restriction should be lifted or revisited?

[2] The father sought sole custody and permission to move Daniel’s place of residence to Spain, where he himself resides. He based this claim on allegations that the mother was an unfit parent by reason of her involvement in online sex trade, because her priority was money rather than the child, and because she had marginalized his relationship with his son.

[3] In closing submissions, the father conceded that a special relationship exists between mother and child, and that Daniel is doing very well in her care. For this reason he moved his claim for sole custody to the bottom of his list of alternate claims. He prioritized his claims for joint decision making or parallel parenting, with primary residence to remain with the mother, and specified access three times per year for himself.

[4] This concession is extremely significant. It acknowledges that the mother is not an unfit mother and that the allegations of misconduct he made against her would not disentitle her from being the child’s primary parent. At the end of the trial I had concluded that the father’s claim for sole custody in Spain was fundamentally flawed. I advised the parties then that I would not award sole custody or primary residential care to the father, in Spain. I provided brief reasons to the effect that I had not been persuaded to disrupt Daniel’s home life, given that by all accounts he is thriving in his current living arrangements. Daniel has always been in his mother’s care. The father’s proposal would have Daniel in the daily care of his 21 year-old fiancée in Spain. She is the stay-at-home mother of their infant son, and did not testify at trial. Daniel has yet to meet her or his half sibling.

[5] I have now concluded that the father’s claims for joint decision making or parallel parenting should also be dismissed. His theory that such an order is necessary to preserve his relationship with his son, that the mother has attempted to marginalize him as a parent, and has orchestrated conflict as a means to this end, is not only unproven, it flies in the face of reality.

[6] The geographic distance between the father’s residence in Barcelona, Spain and the mother’s residence in Ottawa, Ontario, is matched by the lack of trust and good faith between the parents. Both factors contra-indicate joint or shared decision making. The line of cases the father relies on which award joint or parallel decision making despite high conflict between the parents where necessary to preserve a parental relationship, is not applicable to the facts in this case.

[7] The mother should have sole custody and primary residence of Daniel. He is thriving in her care. He has surpassed his developmental milestones. He is speaking in English and Arabic. Daniel is described by all who know him as a happy, healthy, kind hearted, playful little boy. His mother plans to raise him in the Muslim faith, continue his current Arabic speaking day care, and to register him in a French language school when the time comes. These plans all accord with the child’s best interests and are agreeable to the father.

[8] The father is entitled to information from third party service providers, such as his physician, day care provider and eventually his school. The mother shall keep the father informed of the pertinent names and contact information so that the father can contact them directly.

[9] Based on the findings of fact I have made, I have concluded on a balance of probabilities that supervised access in Ottawa, is a necessary requirement for Daniel’s best interests. The father submits supervision is unwarranted, especially on the long-term basis proposed by the mother. I found the father’s testimony to be unreliable to the point of untrustworthiness. His conduct viewed objectively does not enable me to accept his statement that if allowed overnight and unsupervised access he would not attempt to remove Daniel from Canada. The circumstances in this case are exceptional. This father has demonstrated that he will take extraordinary measures regardless of the truth, to achieve his goals. Now this Court must take extraordinary measures to ensure that the child’s security of life in Ottawa is not disrupted by unilateral actions of his father.

[10] Daniel is not yet three years-old. I am not now able to decide when these restrictions may be safely lifted having regard to the child’s best interests and future stages of development.

Overview

[11] This overview sets out factual findings I have made to provide a basic framework of events in the case. It is intended to set out objective events. I will address key factual disputes at a later point in my reasons.

[12] Daniel Daher was born in Ottawa on December 14, 2013. The Applicant is his father. He was born in Lebanon, is now 50 years old, and has lived and worked in Barcelona, Spain for many years. He is a PhD translator/interpreter, fluent in several languages. The Respondent is Daniel’s mother. She was born in Syria, moved with her family to Lebanon at age one and then to Canada at age 10. The Respondent is a Canadian citizen. She completed her education in Canada and now, at age 36, has a Master’s degree in criminology and is employed in Correctional Services Canada. Her parents returned to reside in Lebanon in 1999.

[13] In 2012 when the Applicant was visiting his family in Lebanon, a cousin of the Respondent introduced them virtually. They got to know each other in this way. In November 2012, the Applicant came to Ottawa to visit the Respondent. Everything went well and they agreed to marry.

[14] The wedding took place in Lebanon in March 2013. The couple signed an Islamic marriage contract. They travelled to Barcelona for a form of honeymoon, as the Applicant needed to return to work. The Respondent became pregnant in April. She returned to Canada in May. He visited her in Ottawa in June/July and she visited him in Barcelona in August. The Applicant also travelled to Ottawa in December for the baby’s birth.

[15] After the father had returned to Spain, the mother applied for a Canadian passport for Daniel. To do so, she signed the father’s name on the application form. On February 27, 2014 mother and child travelled to Spain to be with the father. They had return tickets to Ottawa for October 2014, corresponding to the mother’s maternity leave from her employment.

[16] There had already been tensions in the marriage relationship. During the honeymoon in Spain, the mother learned for the first time that the father had three previous marriages, one more than the two he had told her about. She began to suspect infidelity on his part in the summer based on communications with other women she saw on his phone, and a hair clip she found pinned to an apron in his apartment. Also in the summer, the Applicant saw a message from another man to his wife which he found very offensive. In December 2014 after Daniel’s birth the couple sat down with the Respondent’s brother Dani Khanafer. Mr. Khanafer resides in Gatineau, Quebec. He helped them to move forward by giving advice to delete material objectionable to each other and for the Applicant to set limits on Carmen, his employer, to whom the hair clip belonged.

[17] In March 2014, the Respondent learned and the Applicant confirmed to her that Carmen had again been in his flat in January. She announced her wish to separate and says the Applicant responded by assaulting her. He denies the assault. He agrees there were marital tensions. He says that at about this time he had found the Respondent performing a sex act on camera in their bathroom. A decision was taken to visit her parents in Lebanon, for help. The Applicant drove the mother and son to the airport for their flight to Lebanon, and he followed a few days later.

[18] From the Applicant’s point of view, everything went very well in Lebanon. He described it as a “second honeymoon.” The Respondent had not told her parents about the assault and despite appearances had decided not to return to Spain but rather to end the marriage. The Applicant returned to Barcelona on his own, fully expecting his family to join him on April 30 per return tickets already purchased for the mother and child.

[19] Shortly before that date, on April 28, the Respondent told him she was not coming back. He begged her to reconcile. She gave him conditions to reconciliation, which she testified she set purposively high knowing he would never meet them. Her thought was he would refuse her conditions and agree to divorce her. There was much back and forth discussion between them. Eventually they planned for the Applicant to come to Lebanon in early June, ostensibly to meet the conditions.

[20] Before he left Barcelona, the Applicant reported to Canadian authorities that Daniel’s passport had been forged and on May 27, he laid a charge of child abduction against the Respondent with Spanish authorities.

[21] The Applicant arrived in Lebanon on June 2. He stayed in a hotel. On June 6^th, without notice to the mother, he applied for a travel ban on Daniel, so that he could not be removed from Lebanon. This was obtained on June 10. The father returned to Spain, leaving mother and child in Lebanon, but took her mobile phone with him. Nothing had been resolved between them.

[22] On June 28, the mother and her brother flew to Spain, planning to be away for one night only, so that she could obtain her own and Daniel’s belongings. The father called the police. The mother was arrested on the outstanding child kidnapping charge. She was held in jail overnight. After spending the night in jail, she was released on her own recognizance and she returned immediately to Lebanon on June 29. On July 1, the father obtained a travel ban prohibiting the mother from leaving Lebanon.

[23] The Applicant told her when he had the travel ban in place. Almost immediately the Respondent told the Applicant she was giving up. On July 2 she signed a renunciation agreement for the father to have custody of Daniel, and for a divorce to be granted without payment of her deferred dowry. After, she told her parents for the first time about the spousal assault and what she had just signed. With family support she attended at the Sheikh’s office, retrieved and destroyed the original papers before they had been registered, but not before the Sheikh had sent a camera shot of the signed renunciation to the Applicant.

[24] On July 14, the Respondent withdrew her sponsorship of the Applicant to Canada. Further discussions ensued between the spouses. The Applicant wanted her to sponsor him on the basis that they would divorce but he would move to Canada to facilitate his relationship with Daniel. On July 25, the father’s position was that the mother had two choices: she could remain in Lebanon and have custody of Daniel according to Lebanese law, until he was 2 years old when his father would have him; or, she could sponsor him to Canada, and have Daniel forever. His ability to have Daniel’s Canadian passport canceled also figured in their discussions.

[25] On July 27, the mother received an email from the father saying he was going to Canada. A few minutes later, he told her he had arrived in Toronto. She expressed her disbelief that he would “jail” her and Daniel in Lebanon and travel to Canada himself.

[26] As it turned out, the Applicant father required the mother’s assistance to enter Canada. She responded immediately to his request, doing everything she could to ensure he was not detained or deported to Spain including emailing Immigration Canada asking to withdraw her cancellation of sponsorship. Her one condition to the Applicant was that he not enter her home. She agreed he could provide her address to Immigration Canada, but that he was not to go there.

[27] As a precaution, a friend was changing her locks just as the Applicant did arrive, intending to enter the premises. He did not get in. While he was in Ottawa he registered Daniel at the Spanish Embassy and reported the mother to the Ottawa Police Services for wrongfully taking their son to Lebanon and forging his signature for the child’s Canadian passport.

[28] On learning that the father had tried to enter her home, the mother canceled his sponsorship on July 29 for the final time. He was required to leave Canada on August 4. He told her he had been barred from entering Canada for two years.

[29] On August 4 and 6, the mother was able to cancel both travel bans for her and Daniel, without notice to the father. She returned to Canada on August 8 with Daniel. She notified the father on August 14 and at the same time proposed Skype access for him and Daniel. Skype access commenced with some difficulties and interruptions.

[30] On October 21, the father presented a custody application in Lebanon, which was granted on October 23, and required the mother to deliver Daniel to him.

[31] On November 14, 2014, the mother learned that Daniel’s Canadian passport had been revoked.

[32] On December 13, 2014, without advance notice, the father arrived in Ottawa, asking to pick up his belongings and see Daniel for his birthday. The mother disagreed. While still in Ottawa, the father contacted a well-known Lebanese TV show asking to appear on it.

[33] The Applicant travelled from Spain to Lebanon to appear on this show on two occasions, March 2 and March 9, 2015. Essentially he accused his wife of abducting their son and holding him for a half-million dollar ransom. He also alleged he found some 150 sex videos of herself on her phone.

[34] On March 30, 2015 the Applicant participated in an on-line article posted under the heading “My wife abducted my son and asked for a half a million dollars”.

[35] Shortly thereafter, he wrote to her employer identifying her as a potential security risk noting she had been arrested in Spain on child kidnapping charges, fled justice in Lebanon where she was under investigation for illegal prostitution activities, and had fraudulently obtained a Canadian passport for their son by forging his signature.

[36] The father’s custody application was issued in Ottawa on April 13, 2015. The mother’s answer was delivered May 29, 2015. In July 2015, the father commenced supervised access to Daniel in Ottawa. He had 14 such visits to the time the trial commenced. Both parents worked to help Daniel become comfortable being with his father. This goal was accomplished and I concluded that the visits were successful and positive for Daniel.

[37] When the trial opened, the Applicant made very serious accusations against the mother. These included putting up constant insurmountable roadblocks to systematically prevent and destroy his relationship with his son, creating circumstances of distrust to bolster her claim for sole custody, being solely motivated by money rather than love for Daniel, using Daniel as a pawn, engaging in professional sexual and online sexual activities, treating the father like a criminal, lying, acting illegally, in reprehensible fashion and contrary to the child’s best interests.

[38] These allegations were in contrast to his testimony under cross-examination when he admitted that his observations of his son are that he is well, happy, being taken care of, not in danger, healthy, close to his mother, loves his mother and is loved by many people. The allegations were also in stark contrast to his concession in closing submissions that Daniel should continue to reside primarily in his mother’s care (except for his final alternative claim).

[39] The fact remains the allegations were made and give rise to serious issues as to the credibility and reliability of the parents’ testimony. The resolution of these issues is fundamental to the substantive issues before the Court.

Disputed Issues of Fact

1. The Engagement Ring

[40] On December 31, 2012, the Applicant transferred 8,400 Euros to the Respondent. He says this was to cover part of the sponsorship cost which he says the Respondent told him would be $15,000. The Respondent says this money was for the purchase of her engagement ring. She purchased the ring in Ottawa for $11,000. The Euro transfer came to $10,766.39 CAD and she testified she paid the small balance herself. She produced the cash deposit of the Euro transfer, the proof of purchase price of the ring, and showed the cost of the sponsorship application at just over $1,000.00. She also testified that the sponsorship application fee is posted online.

[41] The Applicant says he paid for the engagement ring in Lebanon, but he has no proof of this assertion. He shows a transfer out of his account on March 7, 2013 of 13,000 Euros but does not show where the funds went or their use.

[42] I accept the Respondent’s testimony as to the purpose of the Euro transfer to her. I dismiss the Applicant’s claim for repayment to him of the sum of $15,000 transferred to the Respondent, allegedly to cover the costs of his sponsorship application to Canada.

2. The Marriage Contract

[43] The Applicant relies on what he says are unusual terms and circumstances of the parties’ marriage contact in support of his theory that the Respondent was devious and only interested in money from the outset.

[44] First, the Applicant says the deferred dowry of $100,000 was unusually high. This statement is inconsistent with the fact that it is the same amount included in the marriage contact he signed 13 years earlier with a previous spouse.

[45] Second, the Applicant says a clause was added to the first contract after he signed it. The first contract set out two conditions: “1. the husband shall not marry another woman neither permanent nor temporary marriage. 2. The husband shall not beat his wife and she has the power of attorney to divorce herself by herself”. The Applicant says the phrase granting her the power to divorce herself was added after he signed the contract. This testimony is contradicted by both the Respondent and her brother Dani Khanafer who was present at the time.

[46] The Applicant then says the Court rejected the contract and would not register it in this form because it was a type of a fraud: the wording could be interpreted as allowing her to obtain a divorce for no valid reason and still be entitled to the deferred dowry. There is no direct evidence that the Court regarded the first draft as an attempt at fraud. My reading of it is that the power to divorce herself might be limited to the event of if her husband beating her. The Applicant read it as providing a standalone third condition. Be that as it may, the contract was quickly and consensually reworded to provide: “She has the power of attorney to divorce herself by herself if the husband marries another woman permanently or temporarily or if the husband beats his wife.” This was the second, registered contract. The deferred dowry remained unchanged.

[47] I accept that the Court required alternate wording to clarify the intent of the agreement. The first contract was poorly worded. The Respondent did not prepare it and willingly signed the second version. I do not find these events to be proof of any devious tactic or money seeking agenda by the Respondent.

3. The “December Agreement”

[48] After Daniel was born, the Respondent’s brother was asked to help the couple resolve some marital issues. For her part, the Respondent had been mistrustful of her husband since learning during their honeymoon that he had been married three times before, not twice. She was upset by her husband’s apparent continuing involvement with other women. She had seen his texts and photos with two women, and his employer “Carmen” seemed to frequently be in his flat. For his part, the Applicant had seen a Facebook exchange where a male person had contacted his wife, saying he wanted to be her personal sex slave. The man was a Facebook friend whom she had never met. She told this man she was married, but had not deleted the exchange. The Applicant provided the “sex slave” portion of the exchange in his trial exhibit, but not the part of the response in which the Respondent said, “Are u crazy?”

[49] I find this was a significant omission, unlikely to have been accidental.

[50] The brother’s advice was for them both to delete anything from third parties that upset the other and for the Applicant to try to put limits on his employer. He described this as a moving forward agreement in anticipation of her and Daniel’s planned extended visit to Barcelona that winter.

[51] Contrary to the Applicant’s assertion that Mr. Khanafer had insisted he look at his sister’s phone and was disturbed by what he saw there, I accept Mr. Khanafer’s testimony that he did not look at her phone and expressly agreed to mediate for the couple on the condition that no details of their issues would be shared with him.

4. Daniel’s Canadian Passport

[52] The Respondent signed the Applicant’s name on Daniel’s passport application. She says she did so because he had returned to Spain and she needed to get the passport. She says she asked him if it was okay with him before she signed his name.

[53] The Applicant says she told him after she had signed his name, and then asked him whether he was okay with it. His testimony was that he knew she needed the passport for Daniel. He agreed he told her, it did not bother him that she had signed his name.

[54] The text exchange between the parents on January 18, 2014 is more consistent with the Respondent having signed first, asked second. But, the Applicant either consented to the irregularity or did not object to it. He wanted Daniel to have the passport so that he could to travel to Spain. He also concurred in the use of the passport when Daniel travelled to Lebanon.

[55] Expediency does not justify what the Respondent did in signing his name to the passport application. But having concurred in the process she adopted, the Applicant only raised the issue later when it suited him to try to have Daniel’s Canadian passport revoked. The allegation of forgery was made as part of the Applicant’s efforts to keep the Respondent from returning home with Daniel, and subsequently as a tactic in his effort to have the Respondent agree to sponsor him whether as a spouse or former spouse, to Canada.

5. The Assault

[56] I accept the Respondent’s testimony that the Applicant assaulted her in his Barcelona flat on March 3, while she was breast feeding their son. Her testimony is borne out by the photographs of her bruises taken on March 4 and forwarded to a friend in Ottawa. Only the first page is dated, but the dated page shows parts of two of the attached photographs. Her friend testified at trial and confirmed that she had contacted him and he had seen the pictures of the injuries on that date.

[57] In addition to his denial, the Applicant produced records of his work hours on March 3. They are in Spanish, but appear to show him as being at work throughout the day and into the evening. These hours do not include the time the Respondent said the assault occurred. Nor was she cross-examined with respect to the time of occurrence of the assault.

[58] The Applicant also suggested that the failure to report to the police, to attend a physician, or to refer to the assault in their subsequent communications should lead the Court to find there was no assault. I disagree. The combination of the respondent’s testimony and the photographs persuade me on balance of probabilities that the assault did occur. I did find two references in the Respondent’s messages to the Applicant where she refers to the assault.

[59] One was produced by the Applicant as evidence of an admission by the Respondent that she had lied. In it, he says, “you told them I hit you but you did not make (a) report because you had no internet.” She replies, “I lied”. Her explanation is to point to what she had said immediately before, “ya but I wont stoop to your level”, which she says was a reference to the assault. Her testimony was that the “lie” was in reference to the internet not to the assault. I accept her explanation for two reasons: the portion of the chat introduced by the Applicant is incomplete; the photographic evidence is compelling that there was an assault.

6. Child Abduction

[60] I find the respondent did not abduct Daniel from Spain into Lebanon. She and Daniel travelled to Lebanon with the Applicant’s knowledge and agreement. He drove them to the Barcelona airport.

[61] The Applicant did not produce the charge sheet that would have shown the particulars of the complaint he made against the Respondent on May 27. This is an important omission. He testified that he told the Spanish police that she had abducted Daniel from Spain, which she clearly did not do. He also testified that “for him it became an abduction” when she did not return to Spain with Daniel on April 30 as scheduled. If so, one wonders why he did not make a formal complaint in Lebanon to this effect.

[62] In any event, Daniel was never habitually resident in Spain. His only habitual residence has ever been Canada. He had been in Spain temporarily with a planned return date to Canada in October, 2014, a date admittedly known to the Applicant.

[63] The Applicant also knew where the Respondent and Daniel were in Lebanon. In fact, within a few days of laying the complaint in Spain he left to visit them there. And on June 6, the Applicant applied for the travel ban prohibiting Daniel’s removal from Lebanon. The parties were also in very regular contact throughout.

[64] The Applicant filed an Ottawa Police Services Occurrence Report as part of his evidence at trial. It is the officer’s report of a complaint the Applicant made in Ottawa on August 1, 2014 when he was in Ottawa and the Respondent and Daniel were still prohibited from leaving Lebanon. The Occurrence Report notes the Applicant’s reference to the Respondent’s arrest in Spain in June, 2014 on the abduction charge. He is reported as advising that, “They [she and her brother Ali] were then arrested by Spanish police but soon released since the abduction was not within their jurisdiction.” This rings true. It is difficult to imagine that Spanish authorities properly advised of all the facts would have laid the charge in the first place.

[65] I find there was no abduction from Spain. I also find that being in Lebanon after April 30 did not “become an abduction” in the circumstances set out above.

7. The Ransom Money

[66] I find there was no demand for ransom money as a condition to the Applicant seeing his son. The Respondent told the Applicant on April 28 she would not be returning to Spain. He begged her to reconsider. She set out her conditions “if we ever have chance of living together.” The Applicant said, yes, he would meet her conditions. She insisted he do so before she would return to Spain. Then, the Applicant asked what their relationship would be until he returned to Lebanon. She responded in reference to Daniel, saying they would set up a time for him to see Daniel every day.

[67] As the conversation continued, the Applicant returned to his profession of love for the Respondent. He told her he needed her in his life. Her answer was that he needed his son in his life and he would see him every day. No connection to money was made by the Respondent in connection with Daniel and his relationship to his father.

[68] On another occasion, the father asked her how much she would charge him to see Daniel, she replied, “answer my question and you will see him free.”

[69] On June 10, 2014, the Applicant asked when he could see her and Daniel. She answered, “U will never see a nail”. The Applicant asks, “what?” and she replies, “u have a better chance of crossing the border to see Hanadi than to see me.” The extract of the conversation that the Applicant relied on in Court had words added to it so that it purported to state: “u will never see a nail of Daniel.”

[70] I did not believe the Applicant that this was some form of explainable innocent error. His attempt to explain was vague and complicated at the same time. It included the revelation that he himself had not prepared all the excerpts he had presented as accurate to the Court.

[71] Hanadi was a Facebook friend of the Applicant’s. She resided in Damascus. They had never met. Hanadi enters this story in March 2014. The Respondent and Daniel were in Barcelona with the Applicant. The Respondent discovered chats between her husband and Hanadi in which he had been telling her that his wife was in Canada and wanted to divorce him. Hanadi was very sympathetic to him. After the Respondent introduced herself to Hanadi as his wife who was with him and their son in Barcelona, Hanadi severed all contact with the Applicant.

[72] The allegation of holding Daniel for ransom morphed into a posting showing the Applicant below the hypothetical question: “A mother who sells her son for 500,000$, does she deserve to be a mother?”

[73] There were other instances where the Applicant took a public position that was dramatic, and misleading. He posted a photograph of himself in front of the Canadian Parliament buildings in winter under the caption: “Looking for my abducted baby boy”. This photograph was probably taken in December 2014 or January 2015, when the Applicant knew exactly where his son was.

[74] I find that the Respondent did not hold her son for ransom. To the contrary I find that the Applicant decided to connect her conditions to reconcile the marriage, with his ability to continue his relationship with Daniel, and to call it ransom money in an effort to advance his own goals.

8. The June 28 Arrest

[75] On June 28, 2014, the mother and her brother, Ali, flew from Lebanon to Barcelona to retrieve her and Daniel’s belongings from the Applicant’s flat. She had previously asked him to bring these things to Lebanon when he came, which he had not done. The mother brought three empty suitcases. Learning that she was not there to reconcile, the Applicant called the police who came and arrested the mother on the outstanding kidnapping charge.

[76] The Applicant has asserted that she came to Spain to retrieve her phone and make up. This view is inconsistent with the three suitcases.

[77] The Respondent was taken to the police station and incarcerated overnight. By her description, the cell was filthy, cramped, the only facilities were a hole in the concrete floor. The mother became painfully engorged and required medical assistance during the night. She developed an infection, she believes from the unsanitary conditions, and unfortunately passed whatever she had to Daniel via her breast milk when she returned to Lebanon.

[78] In the morning she was arraigned. She was released on her recognizance with the consent of the prosecutor. A record of the arraignment was produced by both parties. It records that the complainant’s lawyer opposed her release and asked that she be remanded in custody. This record is inconsistent with the Applicant’s testimony that he did not want her incarcerated at all.

[79] Other testimony related to the arrest also has a negative impact on the credibility of the Applicant. He testified that when the Respondent arrived at his flat, he expected her to have Daniel with her. Asked how he could have expected that given the travel ban prohibiting Daniel from leaving Lebanon he said, it could have happened.

[80] The Applicant later claimed in reference to this trip to Spain, that the Respondent had abandoned Daniel in Lebanon when she came to Spain. I disagree. She had not abandoned Daniel. She had planned to be away for one night, and was only detained by the actions of the Applicant in having her arrested on a charge that seems meritless based on the evidence before this Court.

[81] It was characteristic of the Applicant that when challenged on his statement that she had abandoned Daniel in Lebanon, his response was, “this was my perception.”

[82] The Applicant testified it was not his fault that the Respondent had been jailed overnight. He said it was her own fault because if she had made a statement that evening she would have been released. When she asked him how he could have done such a thing, his answer was that he had suffered more than her. He urged her to “let the past”, meaning, I inferred, that she should let this past event go. My conclusion was that the Applicant did not take responsibility for what he had done nor appreciate the consequences of his actions.

[83] His conduct is in stark contrast to hers, when later in the summer he faced possible detention at the Toronto airport. She exerted every effort to help him avoid this, stating she did not want him in jail for one second; she wanted him in Daniel’s life.

9. The Renunciation Agreement

[84] The Respondent signed an agreement on July 2, 2014 whereby she surrendered custody of Daniel to the Applicant, agreed to a divorce and waived her deferred dowry. She did so telling the Applicant she was giving up, she was ill, she had been jailed and she was now banned from leaving Lebanon. She told him she did not want to do this, but did it out of fear of his rage and pressure. The Applicant arranged for a Sheikh to prepare the paper work on one day notice and told her where to go to sign it. Within less than an hour of signing she returned and retrieved and destroyed the original document. She had no legal advice. She was clearly under duress. I reject the Applicant’s submission that signing this agreement should somehow go against the Respondent’s claim for custody of their son.

10. The Applicant’s Trip to Canada, July 2014

[85] As already noted, when the Applicant landed in Toronto on July 27, he required the Respondent’s assistance to enter the country, which she readily provided, on one condition, namely that that he not attend her home. She agreed he could provide her address to the authorities, but not that he actually enter or stay there. The Applicant did go to her home, intending to enter. He testified that he thought she had agreed to this. Again characteristically he said, this was his interpretation of what she had written.

[86] I do not believe that the Applicant misunderstood the Respondent. Her words were very clear: I don’t trust you, I don’t know what you will do in my house, don’t go to my house, you can leave my address for [Canadian Borders Security], say you decided to stay in Toronto.

[87] I concluded he always intended to go to her home. When he arrived at the door he had a large suitcase with him. I infer he was either arriving intending to stay there, or intending to retrieve his belongings from the premises.

[88] It was as result of his going to her home that the Respondent decided to cancel the sponsorship, and she did so for the last time on July 29. The Applicant’s response was to email Canada Immigration to ask that the sponsorship not be cancelled because his wife had just called to say she would be coming to Canada soon with their son to live together with him. This was not true. But the Applicant testified he did not consider it a lie because he was relying on the letter she had written on July 27 to assist him to enter Canada.

11. The Respondent overturns the travel bans

[89] The Applicant complained that the Respondent succeeded in having the travel bans prohibiting her and Daniel from leaving Lebanon set aside without notice to him. He suggests there was some illegality involved here, based on hearsay statements which he says a court clerk made to him. I note that the Applicant did not seem to see anything amiss in the fact that he obtained both of these orders without notice to the Respondent.

[90] I am not prepared to make a finding of illegality based on an unproven, out of court statement. My view, in the absence of proof of Lebanese law, is that the travel bans should have been set aside as improperly made in the first instance. The Respondent and her son were both Canadian citizens travelling on Canadian passports, temporarily in Lebanon to visit her parents. Nor was the Applicant father resident in Lebanon.

[91] It seems logical to me that with knowledge of these facts that the travel bans would be set aside.

12. The Sex Videos

[92] No sex videos or pornographic pictures of the Respondent were given in evidence at trial. This omission is striking because these allegations have always formed a central part of the Applicant’s case, and he has always maintained that he has the proof. His testimony that he decided not to produce the evidence at trial because he did not want the trial to be a dirty war, or to break all the ties between them forever, or to take the focus of the trial off his son, brings new meaning to the word disingenuous.

[93] This is all the more so given that he had gone public with his allegations in March 2015 on a Lebanese TV show and had even shown a disk containing what he describes as 11 sex videos to the back stage crew of the show.

[94] The Applicant also produced that disk as part of his pretrial productions. I find that the Applicant created the eleven clips from two personal videos he asked his wife to make for him, which she did make and did send to him while she was in Lebanon and he was in Spain. I accept her testimony that the videos she sent him were edited into eleven small segments in support of his allegation that she had made as many as 150 videos for online sex trade. I base my finding not only on the fact that the Applicant did not tender the disk to the Court, but on his admission in testimony with respect to the same location and attire in several clips. He had also gone to the trouble of grabbing her phone containing her only copies of the two videos, and leaving Lebanon with it in early June 6, 2014.

[95] The Applicant was adamant that he was in possession of one sex video during which Daniel could clearly be heard crying in the background, yet his mother did not go to him. He did not put this into evidence nor include it with his pre-trial productions. At trial, in cross-examination he maintained that while he had not produced this video as disclosure or as evidence, he could. I reject this testimony. I infer from the failure to tender what might have been some evidence relevant to parenting that it does not exist.

[96] I accept the testimony of the Respondent that these two videos were personal between her and her husband. There were some communications between herself and her husband where she did refer to being with other men and that she sent her pictures to the person who paid more. I concluded these were made in jest, to be seductive or flirtatious, in the context of the overall chat between spouses. I did not take these to be admissions of involvement in the sex trade.

[97] There were two postings on google + purportedly made by the Respondent herself. She denied this and I believe her. That she would create a posting like that and link it to her employment is beyond belief.

[98] I reject the Applicant’s own testimony to the effect that the Respondent has engaged in online sex video sales or any aspect of the sex trade.

13. The TV Shows

[99] The Applicant arranged to appear on what he described as a well-respected Lebanese current event talk show with millions of viewers world-wide on March 2 and 9, 2015. His explanation was he saw no other way. He felt this was a way to get the authorities to help him. It is difficult to understand how appearing on Lebanese television could prove helpful to the Applicant. He already had a lawyer in Ottawa, who was working on his application to this Court. That application must have been almost complete when he went on television given that he signed it on March 14.

[100] The focus of the show was on the alleged sex videos, the kidnapping and the ransom. None of these allegations have been proven in this Court.

[101] Regardless of his intention, the outcome of the appearance was that the Applicant spread salacious untruths about the Respondent. She was humiliated. She is also very concerned for her son when he hears about or sees these programs later in life.

[102] I conclude that Daniels best interests were not amongst the Applicant’s considerations when he decided to embark on this course of action.

14. Letter to Respondent’s employer

[103] The Applicant wrote to the Respondent’s employer on April 1, 2015. This resulted in a six month security review, resolved in her favour. Another letter was also sent in November 2015, also resulting in another security review, which is still ongoing. The Respondent agrees that she cannot establish on a balance of probabilities that the second letter was sent by the Applicant but she believes that he is somehow connected to it.

[104] The April letter is important because it reveals the Applicant’s motivation to punish her, not to do what is best for his son, and the extent to which he will depart from the truth to do so. In the letter, the Applicant refers back to the television show and says that a Sheikh appearing on the show said his wife was a manager at CSC and that the organization was publically implicated as condoning her crimes including the kidnapping of his innocent son, extortion and illegal prostitution.” This is not accurate. The Applicant also alleged that this Sheikh was under investigation for possible terrorist ties. No attempt was made to prove this. The Applicant questioned how CSC could be effective with an employee who is engaged in criminal activities and is publically supported by someone under investigation for possible terrorist ties.

[105] The letter also incorrectly accused the Respondent of entering his home and threatening him with a knife. It says charges in Spain for abduction are still open against her, whereas in July 2014 he told her he had stopped the proceeding. The letter also alleges she engaged in immigration fraud by asking for $15,000 as a sponsorship fee and then cancelled the sponsorship when he refused to pay her another $75,000. Neither allegation is correct.

[106] Obviously it is not in Daniel’s best interests to wrongfully cause his mother to lose her employment. That does not appear to have been a consideration for the Applicant. In Court he said, in reference to this letter, “I do apologize but it’s a tragedy for me and maybe I do not take the correct decisions.” The apology itself raises questions about the Applicant’s forethought, insight and good judgment.

15. Ayman

[107] The Respondent was asked in cross-examination about communications purporting to be between her and a man named Ayman. She denied being party to the communications that were shown to her. She acknowledged that she knew who Ayman was: a professor of her brother’s in Lebanon, but maintained that she had never met him personally. She remembered that at one point, her bother had passed her contact information to Ayman because he was considering coming to Canada.

[108] The Respondent then called Ayman as a witness in her case, via Skype from Lebanon. He also denied the authenticity of the communications. He confirmed that he knew who the Respondent was, but had never met her. He also identified the photograph of himself that appeared in the communications as one he had taken after the communications purportedly took place, in 2015 when he had been in Istanbul.

[109] The content of the communications had been referred to on a no name basis in the Applicant’s opening statement. He had not previously disclosed the document. He had made no attempt to verify its authenticity prior to trial. The decision to hold it back for use in cross-examination was the strategy he adopted. I denied his request for an adjournment of the trial to allow him time to try to authenticate the document. The denials of both the Respondent and Ayman are not contradicted testimony.

The Respondent’s testimonial factors

[110] It will be clear that I have preferred the testimony of the Respondent to that of the Applicant in almost all cases. I note that some of her emails were intemperate, repetitive and unhelpful. I find she misled her husband as to her willingness to possibly reconcile with him, even though she had no such actual intent. In their communications she did change her mind often as between separation and reconciliation, as well as between sponsorship and no sponsorship. She did engage in sex chats with him after the assault and after saying she wanted to separate.

[111] In July 2014 she engaged in discussions about a future life together with the Applicant which would have been very misleading to him. There is some merit to her explanation that she was still in Lebanon, where he still had all the power, and she was trying to be compliant.

[112] I did not find anything sinister in her wanting to return to Canada when the marriage failed. This is where she and Daniel were resident, where she was employed and owned a home. There had been discussions about the family perhaps living together in Spain, but when the marriage failed, it was natural for her to want to come back to Ottawa.

[113] My finding is that her credibility was not successfully attacked. Her testimony, for the large part, was straightforward and candid. The Respondent also impressed me as child focused. Throughout, she has kept Daniel’s best interests in mind. She has always been clear that this includes keeping the father in his life.

[114] The father alleged that the mother was motivated to keep him out of Daniel’s life, and that she marginalized him. I do not agree. She had no realistic choice other than return to Canada. She was facing a criminal charge in Spain, and had been jailed there. She had no life in Lebanon. The Applicant did not live there in any event. On July 25, 2014 he gave her two choices: “Daniel in Lebanon, or Daniel in Canada forever but with me”. In context, this meant stay in Lebanon with Daniel where by law she could keep him for two years, when his father would be entitled to custody. Or, sponsor the Applicant to Canada and she could have Daniel forever. Taking the decision to return to Canada in these circumstances does not amount to marginalization.

[115] Further, on July 27, the Respondent demonstrated that she would help the Applicant into Canada, even when he had travelled there without telling her and when she herself could not, by his actions, leave Lebanon. He rewarded her generosity, extended in the interest of his relationship with his son, by going to her home contrary to her expressed wishes. Canceling the sponsorship after this breach of trust is not marginalizing his relationship with this son.

[116] The Respondent did deny access in December 2014. Her explanation is that the father arrived without notice. She panicked because he had told her he was banned from Canada for two years. When he attended her home with police, they told him to go through proper channels to obtain an access order. He did not do so.

[117] I find she ought to have allowed some contact between the father and son at this time. She ought to have consulted a lawyer herself for advice and assistance in arranging safe contact. She could have suggested Skype in the meantime. There is a duty for the residential parent to facilitate and encourage contact between the child and non-residential parent.

[118] The Applicant also complains that the Respondent did not provide him with a copy of Daniel’s hospital record in Lebanon for the early July admission. Nor did she provide a record of the hospital visit in Ottawa when his breathing had been rapid. I find she ought to have complied with the father’s request, or provided him with her written authorization to obtain the records directly. I do note however that since October 2014, the Applicant has had legal custody of Daniel in Lebanon and there is no evidence that he tried to obtain the hospital record there on his own. He did say he did not know which hospital Daniel had been taken to, but did not say what steps he took to ascertain the name of the hospital.

[119] The mother was also criticized for picking the day care without input from the father. In the circumstances, I find this was a matter of practicality at the time the decision was made. The mother started to look for a day care before she left for Spain in February 2014. She finalized the arrangement after she returned to Canada in August 2014. At that time, the Applicant told her he would not be allowed back into the country for two years.

[120] Henceforth the father should be apprised of any changes in Daniel’s day care provider and provided with up to date contact information.

[121] I did form the impression that the father was very sensitive to the almost daily involvement that her platonic friend O’Neal has with Daniel. I was concerned that the mother has allowed Daniel to call O’Neal “baby” rather than by his name. In my view, “baby” and “Baba” sound too much alike. It would be more in keeping with the nature of their relationship for Daniel to call O’Neal by his first name. I would expect the mother to keep the nature of that relationship very clear in Daniel’s mind. I would also expect her to make sure that O’Neal is also well aware that his relationship with Daniel is that of a friend, and not of a parent.

[122] That said, she is a working, single mother. Having help, close at hand, is understandable.

[123] I also note that in 2015, the mother extended a proposal for the father to come to Ottawa to see Daniel. In addition, she cooperated in changing the father’s access from March 2016 to April at his request and for his convenience.

Access

[124] The father’s access has taken two forms, video call access by Skype and in person supervised access in Ottawa.

[125] Prior to the commencement of in person access, the mother facilitated Skype access. She contacted the father shortly after her return to Ottawa to arrange daily visits. He complained that she imposed unreasonable conditions. These were that he not use the visit to try to communicate with her, or have other people present. These are not unreasonable conditions. Initially the visits were to take place between 6 p.m., to 7 p.m., After a month or so, she offered to change this to between 4:30 p.m., to 7 p.m., if more convenient to the father. The Applicant replied that he would like to see Daniel at least three times per day, at 9 a.m., 12 p.m., and around 6 p.m. He felt this was reasonable because she was on maternity leave and suitable because if one time did not work “it is not a big deal” there would be two more chances that day.

[126] In my view, it is unreasonable to expect the mother to arrange her affairs to be available to facilitate three one hour visits each day.

[127] After a variety of issues and testy emails, the Respondent cancelled the video access from September 21 to October 1. She appeared highhanded in articulating that she hoped he would learn from this to be on time and compliant with her conditions. However, she did reinstate the video access only to have the Applicant tell her on October 13 that he did not want to continue it. The Respondent invited him to reconsider and re-establish contact with Daniel at any time.

[128] This did happen and currently the video access is twice per week for 30 minutes duration.

[129] The Applicant has had 14 supervised access visits with Daniel in Ottawa commencing in July 2015. The mother was cooperative in preparing the child and helping him to get comfortable with his father. The child has become relaxed and comfortable during the visits. The father has been attentive and gentle with his son and has demonstrated appropriate interaction, preparedness and affection.

[130] There have been some logistical difficulties in scheduling supervisors and there is a cost, from between $40 per hour to $120 per hour for the supervision, all of which the father has paid. There is no doubt that there is a cost and an inconvenience to supervised access. I also agree that in general, supervised access is regarded as a time limited, transitional approach aimed at establishing regular unsupervised contact between the child and parent.

[131] Were it not for my significant concerns with the reliability and trustworthiness of the Applicant, I would structure an access order to move towards unsupervised and overnight access. The Applicant testified that he would deposit his passport, while here to visit to Daniel. He said he intended to abide by the court order to be made. His counsel submitted that it was telling that the Applicant could have taken Daniel from the mother in Lebanon but did not do so. Perhaps he could have. But during that time, the father was actively pursuing, first a reconciliation, later sponsorship to Canada as a former spouse.

[132] The Applicant also asks the Court to stipulate now how future access will develop, to and beyond 2021, including to extending the duration of visits and to allowing overseas access. In my view, the access order should be subject to the standard variation in the event of a material change in circumstances. I cannot predict how or when it would be in Daniel’s best interests to make those types of significant changes to access.

[133] The only exception I would make is to provide for the possibility of a review if the Applicant is in compliance with this order and is able to satisfy me or another judge of this Court in my absence that he has no other travel document than his one Spanish passport. In that circumstance, the requirement of fully supervised access in Ottawa and the restriction against overnight access could be reviewed. I would not include in such a review the requirement that the access be exercised only in Ottawa. In my view, given Daniel’s young age that decision is better left to the future when the judge who is asked to make it will have the benefit of evidence pertaining to the child’s stage of development including Daniel’s ability to know where he is, where he should be, and what to do if the two do not overlap.

Child Support

[134] The Applicant has paid $549 per month by way of child support beginning in October 2015. No payments were made prior to that date. The child support was based on an annual income of $65,000 CAD. At trial the Respondent mother requested that child support continue unchanged. She proposed that the father should also contribute $282 per month to Daniel’s day care costs. And she claimed child support and daycare retroactive to August 2014 totalling $13, 249.

[135] At trial, the Applicant’s position was that he should pay $200.00 per month as of June 2016, based on his reduced income of only $25,000 annually. He proposed that the mother’s claim for special expenses under section 7 of the Child Support Guidelines should be set off against the travel costs he incurs to exercise access to Daniel. He also asked that the mother’s claim for retroactive child support be dismissed.

[136] The first issue is to determine the father’s income. He had not filed his 2015 Income Tax return as of the trial. I order him to do so together with the Spanish equivalent to a Notice of Assessment, on receipt. The Applicant says his income in 2015 and 2016 is greatly reduced on account of the time spent away from work to attend here for access and in relation to this case. The apartment he owns in Toledo has been vacant since the tenant died in October 2015 and requires extensive repairs before it can be leased again. The Applicant has given up his self-employment business because he was losing money. He does expect to grow his income again, now that the case is over and he will have to do so to support himself, his fiancée and son in Barcelona.

[137] The Respondent submits that the Court should impute $65,000 annual income to the Applicant as what he can realistically earn. She also queries his inability to rent the Toledo apartment, the amount he says it will cost to repair, the extent of his claimed indebtedness, and his testimony as to his earnings in 2015 and 2016.

[138] In my view, having regard to the nature of his work, it is reasonable to assume that if he is not in Barcelona available to do translation, he will not be paid. I have decided to impute income to him for 2015 and 2016 in the annual amount of $48,000 CAD. I reached this amount by allowing for a three month reduction in income for each year, starting from the $65,000 figure. That was an amount agreed to in the temporary without prejudice order. Now the Applicant says it may be the most he could earn because it does not deduct allowable business expenses. In the absence of an income tax return, I cannot assess this submission. In my view the reduction is perhaps generous for 2015 in that the Applicant travelled here on two occasions that year, and less generous for 2016 in which year he will travel here three times, with an extended stay for the trial preparation and trial itself.

[139] The next question is the commencement date for child support. My order will commence as of May 1, 2015, to coincide with the commencement of this court case. This is a standard commencement date. No request for child support was made prior to then.

[140] The Applicant is ordered to pay child support for Daniel based on his annual income of $48,000 commencing May 1, 2015, in the amount of $433 each month.

[141] Should the Applicant be able to set off his travel expenses and the costs of supervision against the day care expenses claimed by the Respondent? The Child Support Guidelines (SOR/97-175) do not provide for a set off. The Court may determine whether an expense is a section 7 expense and if so, may determine the amount the payor parent shall contribute to it. In this way, if I knew what the Applicant spent annually to travel to and stay in Ottawa to see his son, I could take those costs into account in terms of his ability to contribute to the day care expense. However, his financial statement combines legal fees and travel expenses to see Daniel. No breakdown was provided.

[142] The Applicant says the costs of supervision amount to $140 per month, averaged over a full year. The Respondent referred me to Masynk v. Wolff, 2014 ONSC 1854 where the Court said at para 178:

Additionally, the costs provided by Mr. Wolff as the basis for a reduction in support or a set-off of section 7 expenses including, predominately, expenses for accommodations while in Toronto, as well as meals, toll fees, gas and supervisor fees, I find do not warrant a reduction to Mr. Wolff's contribution.

[143] In that case, access had been supervised on a transitional basis only. The Court did not require long term supervision as will be the case here. I have also found that the supervision is required in Daniel’s best interests. I do conclude it is an expense on the father’s side to be considered when deciding what his percentage contribution to day care should be.

[144] I have also had regard to the percentages of net disposable income that would be available to each party after payment of child support. Given the Applicant’s imputed income and the Respondent’s actual income, the NDI will be divided between them approximately thirty percent/seventy percent in her favour, without any contribution to day care. Were the Applicant a Canadian taxpayer, his net disposable income would be $2,686 per month. This amount would cover his basic living expenses in Barcelona, without including an amount for travel and supervision costs related to access to Daniel.

[145] Under these current circumstances, I decline to require the Applicant to contribute to the cost of day care for Daniel.

Spousal Support claim

[146] The Respondent’s claim for nominal spousal support is not granted. She based her claim on the concern that the Applicant’s communications with her employer might yet cause her to lose her job. This concern no longer exists in connection to the letter he admittedly wrote. The current investigation is related to the second letter which was not established as authored by him. The suggestion was made that it could be connected to or inspired by his public allegations against her. The possibility that this may be so, does not rise to the level of proof on balance of probabilities.

[147] In the event that she does lose her job and can make the connection between that event and the Applicant’s activities, she is at liberty to renew her claim for spousal support.

The Order

[148] Both counsel very helpfully provided proposed draft orders for the court’s consideration as part of their closing submissions. I have included some terms in my order that were proposed by both of them, in particular related to Family Wizard. I have included paragraphs 2, 7 and 8 in order to better enable the Respondent to be assured that there are and will be no travel documents issued for Daniel other than those by the Canadian government in her possession.

[149] The terms of the final order are as follows:

1. The Respondent, Dania Khanafer, shall have sole custody of the child, Daniel Daher, born December 14, 2013. The child’s primary residence will be with the Respondent.

2. Daniel’s last name shall be changed to Daher Khanafer in accordance with the Vital Statistics Act, R.S.O. 1990, c. V.4 - Ontario (the Act”). The Respondent will make the application for the change of name. The Applicant’s consent and/or signature is not required for the application and issuance of Daniel’s change of name to be completed.

3. The Respondent shall continue to reside with Daniel in the City of Ottawa. If she intends to move her residence beyond a radius of 50 kilometers outside of the City of Ottawa, she will provide the Applicant, Atallah Daher, with 120 days’ written notice of such intention so that the parties can negotiate changes to the access schedule, if necessary.

4. Daniel shall not be removed from Ontario by the Applicant without an order of this Court.

5. Within 30 days of this Order, the Respondent shall apply to obtain a Canadian passport for Daniel. The Applicant’s consent and/or signature is not required for the application and issuance of Daniel’s passport.

6. The Respondent shall retain Daniel’s passport except as agreed upon between the parties or as ordered by this Court.

7. Within 30 days of this Order, the Applicant shall surrender any other passports, citizenship or residency documents in Daniel’s name to the Respondent and provide written confirmation from the appropriate authorities in Lebanon and Spain that no passports, citizenship or residency documents have been issued in Daniel’s name.

8. Within 30 days of this Order, the Applicant and the Respondent will provide a written notice to the Lebanese and Spanish consulates in Ottawa instructing them not to issue a passport for Daniel. Such notice is to include a certified copy of this order. The Applicant and the Respondent shall also provide a copy of the notice to Foreign Affairs, Trade and Development Canada Consular Services and to each other.

9. Both parties shall be entitled to independently discuss Daniel’s health, well-being and ongoing needs with Daniel’s health care providers, teachers and caregivers. Both are equally entitled to verbal and recorded information from third party service providers, such as his physician, day care provider and teachers. The Respondent shall keep the Applicant informed of the pertinent names and contact information so that the Applicant can contact them directly.

10. Access by the Applicant to Daniel shall occur in Ottawa, until and unless agreed upon by the parties or as ordered by the Court.

11. The Applicant shall advise the Respondent of the weeks in which he will exercise access to Daniel no later than 60 days in advance.

12. The Applicant shall provide proof of the purchase of his airline ticket and accommodation in Ottawa within 45 days of the scheduled access dates.

13. The Applicant shall deposit all of his travel documents, including but not limited to his passport, with the Respondent or, at the Respondent’s choice, with an agreed upon professional, before every access visit until the end of the access period.

14. The Applicant shall provide a telephone number where the Respondent may reach him while Daniel is in the Applicant’s care.

15. The Applicant will be responsible for the costs associated with the travel to and from Ottawa and the accommodation in Ottawa for all access visits, as well as the costs of supervision.

16. The supervisor shall be chosen jointly by the parties. The parties shall work co-operatively to retain a suitable supervisor who is not a MSW, rather a child and youth counsellor, an early childhood education student or a social work student, by way of example, in an effort to reduce the costs of supervision.

17. The Applicant shall have access to Daniel in Ottawa as follows:

a. December 2016 to Summer 2017 (age 3), at the following times:

i. December 2016: five (5) consecutive days of access from 9:00 a.m. to 2:00 p.m. each day;

ii. March 2017: Five (5) consecutive days of access from 9 a.m. to 2:00 p.m. each day.

iii. Summer (July or August) 2017: five (5) consecutive days of access from 9:00 a.m. to 2:00 p.m. each day.

b. From December 2017 to Summer 2018 (age 4), at the following times:

i. December 2017; four (4) consecutive days followed by two (2) consecutive days, with a one day break in between, from 9:00 a.m. to 5:00 p.m.;

ii. March 2018: Four (4) consecutive days followed by two (2) consecutive days, with a one day break in between, from 9:00 a.m. to 5:00 p.m.

iii. Summer 2018: Four (4) consecutive days followed by three (3) consecutive days, with a one day break in between, from 9:00 a.m. to 5:00 p.m.

c. From December 2018 onward at the following times:

i. The same as (b) above, except adding one additional day to each visit, per year, to a maximum of ten days in December, 10 days in March and 14 days in the summer.

18. The Respondent may travel freely with Daniel, without the Applicant’s consent for the purpose of a vacation of no longer than 3 weeks. The Respondent will advise the Applicant of the travel plans and destinations and the Respondent will make every effort to ensure Skype access occurs as scheduled, but the Applicant will be flexible during the travel period.

19. The Respondent shall promote good and quality Skype communication between Daniel and the Applicant, including encouraging Daniel to call him “daddy” or “baba” and using best efforts to ensure that Daniel is not distracted during the calls, and he is placed in front of the computer screen.

20. The Applicant shall have Skype access to Daniel as follows:

a. two times each week, for a period of 30 minutes, on Tuesdays from 5.30 pm until 6:00 p.m. and on Sundays at 9:00 a.m. until 9:30 a.m. ;

b. there shall be no communication between the Applicant and the Respondent during the Skype calls, which are to be used exclusively for the Applicant’s communication with Daniel; and

c. When Daniel is of an age when he can independently access Skype calls, the calls will occur as he wishes.

21. The Applicant may seek a review of the restriction against any overnight access and the requirement of fully supervised access to Daniel, but not the requirement that all access take place in Ottawa, if the Applicant is in full compliance with this Order and establishes to this Court’s satisfaction that he has no other travel documents than one Spanish passport. Other changes to access are governed by the variation provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12

22. The parties shall enroll on and use Family Wizard as their sole means of communication (barring an emergency when cell phone may be used) on which they will share information about Daniel to allow each of them to meet his ongoing physical, emotional and cognitive needs. More specifically, each parent will communicate to the other the following information in a polite, respectful, and business-like manner:

a. any changes to Daniel’s ongoing daily routine during an access period;

b. any health, behavioural or other problems a parent encounters with Daniel during the time he is in his/her care;

c. any illness Daniel experiences while in the care of the relevant parent and details relating to any medication given to him and the time at which it was given as well as information about future doses of medication that may be required by him during an access period;

d. any significant injury that Daniel suffered from while in the care of the relevant parent;

e. Daniel’s developmental milestones;

f. new approaches to specific parenting issues being implemented by a parent;

g. new foods that are introduced by either parent into Daniel’s diet;

h. any requests for changes to the access schedule; and

i. the identity of any third party who is regularly in contact with Daniel

23. Each party shall check their Family Wizard account on a daily basis and respond to messages that reasonably require a response from the other within twenty-four (24) hours, unless the party is vacationing. If a party requires time to consider a message from the other before responding to it, he/she will acknowledge receipt of the message and let the other party know when a response will be forthcoming.

24. The communications on Family Wizard will be accessible for the purpose of any future court proceeding between the parties relating to Daniel.

25. Neither parent shall discuss with Daniel (or with any person in his presence) any issue which is the subject of any court proceeding or the subject of conflict between the parents.

26. The Applicant shall provide whatever written consent the Respondent requires to travel to and from Lebanon with Daniel no more than once every 24-month period. In the event the Applicant travels to Lebanon at the same time, he shall have access to Daniel on the same terms as set out herein.

27. The Applicant’s income shall be imputed at $48,000 Canadian per annum. He shall pay to the Respondent the table amount of child support in the amount of $433 per month based upon the Child Support Guidelines, commencing May1, 2015.

28. The Applicant shall provide an official English translation of his income tax return and the equivalent of a notice of assessment from Spain by July 1^st of each year, commencing in 2017. The table amount of child support shall be adjusted to the table amount based upon the then existing income.

29. The Respondent shall provide a copy of her income tax return and notice of assessment by July 1^st in any year she is claiming proportionate sharing of s. 7 expenses.

30. As long as Daniel remains entitled to child support according to Ontario law, the Applicant shall maintain a life insurance policy on his life in the amount of $130,000, naming the Respondent as irrevocable beneficiary, in trust for Daniel. The Applicant shall provide proof of the designation within 30 days, and annually on request, including proof that the policy remains in full force and effect and that the designation is irrevocable.

31. The Respondent shall name her brother, Dani Khanafer, as sole and irrevocable trustee for Daniel of a life insurance policy on her life, which may be a policy available to her through her employment, in the amount of $130,000, for as long as Daniel remains entitled to child support according to Ontario law. The Respondent shall provide proof of the designation within 30 days, and annually on request, including proof that the policy remains in full force and effect and that the designation is irrevocable.

32. Neither party owes the other an equalization payment (nor was any claimed) and each shall retain all assets and personal property currently in their possession. Each shall be responsible for his/her own debts.

33. The Applicant’s claim for payment of $15,000.00 is dismissed.

34. The Respondent shall return to the Applicant the following items: 1 Hugo Boss Coat, Calvin Klein Coat, 1 Furest Suit, Lotusse Shoes, North Face shoes, RL shirts, Samsonite travel suitcase, and Laptop bag. The return of these items shall be effected when the Applicant is next present in Ottawa for the purpose of exercising access to Daniel, but not in Daniel’s presence.

35. The Applicant shall take all necessary steps to remove all video, social media, written posts and articles of any nature or kind regarding the Respondent and/or Daniel, directly or indirectly, on the internet or anywhere otherwise located as may be within his control to do so. The Applicant shall not in future post any social media or other internet posting regarding the Respondent whether directly or indirectly including photographs.

36. The Applicant is restrained wholly from directly or indirectly contacting or communicating with the Respondent by telephone, text message, email, and any form of internet communications or chat, except Family Wizard as provided herein, and except in the limited circumstances of an emergency relating to Daniel while Daniel is in the Applicant’s care when a phone call may be placed.

37. The Applicant is further restrained from coming within 500 meters of the Respondent’s home or Daniel’s day care or school except as agreed upon in writing on Family Wizard or Court Order for the purpose of exercising access to Daniel.

38. This order shall be enforced by the Ottawa Police, the RCMP and any other police force having jurisdiction over any issues between the parties arising out of this order.

39. This Restraining Order shall remain in effect until the Court orders that it is terminated or charged.

Costs

[150] Should counsel be unable to agree on costs, costs will be determined by written submissions. They should not exceed five pages in length plus attached bills of costs and offers to settle. The Respondent shall deliver her submissions by October 17. The Applicant shall deliver his submissions by November 14. The Respondent may exercise a brief right of reply on or before November 18, 2016.

Madam Justice J. Mackinnon

Released: September 22, 2016

CITATION: Daher v. Khanafer, 2016 ONSC 5969

COURT FILE NO.: FC-15-774

DATE: 2016/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Atallah Daher

Applicant

– and –

Dania Khanafer

Respondent

REASONS FOR JUDGMENT

J. Mackinnon J.

Released: September 22, 2016