Zubaid-Ahmed v Butt, 2017 ONSC 3156

Court File and Parties

COURT FILE NO.: FS-16-88011-00 DATE: 20170523 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ifrah Zubaid-Ahmad, Applicant AND: Hasham Zahoor Butt, Respondent

BEFORE: Ricchetti, J.

COUNSEL: F. Rashid, Counsel for the Applicant (Mother) L. Mongillo, Counsel for the Respondent (Father)

HEARD: May 15, 2017

INTERIM ACCESS

THE MOTIONS

1This court advised the parties it would hear the motions despite the fact that a case conference had not been held. The Father was exercising self-help. The Mother was denying parenting time because of the Father's actions. It was clear that urgent issues had arisen resulting in a conflict regarding access thereby impacting the child of the marriage. The issue of the Father's parenting time had the potential to get out of hand.

2Accordingly, the motions were adjourned for one day to permit the parties to make submissions regarding an interim access order for the child of the marriage, Zakariya Mohammad Hasham-Butt (d.o.b. February 8, 2016) ("Zaki"). The custody issue is not urgent and will have to be dealt with after the case conference.

3The Mother's motion seeks temporary custody of Zaki and that the Father have access with Zaki every Thursday 9 am to 7 pm and every Sunday from 9am to Monday 7 pm.

4The Father's motion seeks access with Zaki on every Thursday 9 am to Friday 3 pm and every Sunday 9 am to Monday 7 pm.

5In essence, the dispute is whether Zaki will spend Thursday nights and Friday mornings with the Father. The Father seeks more parenting time and submits this increase will permit him to take Zaki to Friday prayers.

BACKGROUND

6The Parties were married on August 3, 2014. The Parties separated on October 4, 2016. Zaki is 15 months old.

7The Mother commenced this application on November 30, 2016.

8Both parties are professionally trained accountants. They are both presently working full time and make approximately the same annual income (but no updated Financial Statements were produced on the motions). Both parties are able to work flex hours to accommodate their respective parenting time.

9After separation, the parties could not agree upon a schedule for Zaki's care. The Father had little parenting time with Zaki because of the Mother's position.

10Lawyers were retained. While both lawyers acted professionally and made numerous bona fide attempts to resolve issues, as sometimes happens, the parties appear to have become adversarial when confronted with the legal claims of the other. The difficulty with this adversarial state is that it carried over to the issue of parenting time.

11Much of the correspondence between counsel is self-serving, based on statements made by the parties to counsel and, therefore, cannot be relied on to any significant extent. However, it is clear from the correspondent that the Mother appeared resistant to the Father having more parenting time, particularly overnight time, and the Father appeared insistent on more parenting time.

[12] The parties attended a four way meeting in January 2017. The Father wanted equal parenting time with Zaki. This was not acceptable to the Mother. The parties agreed to the following schedule for the Father’s parenting time: a) every Thursday from 9 am to 7 pm; and b) every Sunday 9 am to Mondays at 7 pm.

13At the four way meeting, the parties discussed a review in March 2017. Whether this was an agreement to review matters is not relevant to this decision. What is clear is that there was a discussion that the agreed upon parenting schedule for the Father would not be permanent. This court agrees with the Mother that there was no assurance the Father's parenting time would be increased in March 2017.

14The January parenting schedule worked well for a short period of time. In February, 2017 the Father requested a second overnight parenting time. In early March, 2017, the Mother responded by suggesting a reduction in the Father's parenting time because the Father had returned to work.

15In March 2017, when the Father learned the Mother had also returned to work, the Father renewed his demand for more parenting time with Zaki. The Mother wanted the Father’s parenting time to continue in accordance with the January 2017 parenting schedule. The dispute continued.

16In an attempt to resolve the issue, the parties attended a mediation on May 3, 2017. The respective positions did not change.

17The Father was frustrated and began to exercise self-help by not complying with the January 2017 schedule. This was not a prudent or an acceptable course of conduct by the Father in the midst of this litigation, particularly where both parties were represented by counsel.

18The "lawyer's letters" began to flow - setting out each parties' respective positions.

19These motions became necessary to deal with the dispute.

THE LAW

20Section 16 of the Divorce Act provides as follows:

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

(emphasis added)

THE ANALYSIS

21The Father submits that s. 16(10) of the Divorce Act supports increasing his parenting time because it is in Zaki’s best interests to have as much contact with each parent.

22The Mother submits that Zaki is breast feeding. Therefore, parenting time for the Father should not be increased as it is not be in Zaki’s best interests at this time.

23For the reasons set out below, parenting time for the Father should be increased as it is in Zaki's best interests to do so.

24Let me deal with the issues raised by the Mother.

Breast Feeding

25There is no dispute that breastfeeding a young child has physical and psychological benefits. Where the child is breastfeeding, this is a significant factor to be considered when determining respective parenting time.

26In this case, this court is not persuaded that breast feeding is ongoing, significant or materially affects the amount of parenting time the Father should have. The following leads me to this conclusion:

a) The Father has had care of Zaki from Sunday mornings to Monday nights for about 4-5 months. The total time for each such period is almost 1 ½ day. This lengthy period of parenting time was with the consent of the Mother. There appeared to be no issue by the Mother regarding breast feeding for this extended overnight period of time once a week. Now that the Father seeks a second overnight parenting time, the Mother suggests that twice a week would not be in Zaki’s best interests because it would interfere with Zaki's breast feeding. This court fails to see how a further overnight would disrupt Zaki's breast feeding when one overnight does not;

b) During the Father’s current parenting time, the Mother did not provide the Father any breast milk to feed Zaki while he was in the Father's care. The Mother admits she stopped sending breast milk with Zaki for his feedings while in the Father’s care in January 2017. This suggests that breast feeding is not significant an issue for Zaki’s nutrition at this time;

c) The Mother states she doesn't know what the Father has been feeding Zaki while in his care. This court does not accept the Mother’s submission given that she didn’t believe breast milk was needed for overnight parenting time for the past 4 plus months? To now use breast feeding as a reason to prevent further parenting time to the Father makes little sense;

d) From the Mother’s own evidence, the Mother has been feeding Zaki solid foods at least since August 2016 including avocado, carrots, rice, crackers, naan and french fries. Zaki was already drinking from a "Zippi" cup. It is difficult to imagine that Zaki can eat these solid foods and that breast feeding would, if it is ongoing, would require the Father to have reduced parenting time;

e) The Mother says at paragraph 42 of her affidavit that she stopped breast feeding two months ago;

f) The Mother wants this court to rely on a March 21, 2017 letter from the Mother's doctor to show separation anxiety (I will come to that later). The same doctor's letter states that the Mother has been " trying to breastfeed her child, but her milk supply is diminishing. Despite pumping on a regular basis, she is not able to produce a healthy amount of breast milk. " Of note, there was no update from this doctor suggesting that the Mother's ability to breast feed has resumed;

g) The Father states that Zaki has been feeding on cow's milk since "before Zaki was one year old" and has been supplemented with baby formula from very early on. This is consistent with a text message from the Mother that Zaki was feeding on baby formula in 2016. The Mother’s statement that Zaki only drinks breast milk is simply not true.

27The Mother also seeks to rely on a letter of a social worker, Ms. Varano. Ms. Varano first met the Mother on May 9, 2017. The Mother expressed her concerns regarding a proposed plan that the Father have 50% parenting time while the Mother is "breastfeeding regularly". Ms. Varano did not conduct an assessment but sought to provide her observations and recommendations to assist the parties to develop a child-focussed parenting plan in the best interests of the child. On May 10, 2017 Ms. Varano attended at the Mother's home. Besides repeating in Ms. Varano's letter what the Mother told Ms. Varano, the primary observation was that Zaki was "clingy" and the Mother nursed twice for 2-3 minutes. Given the short time Ms. Varano was involved, only hearing the Mother's version of the events, not seeing Zaki after returning from the Father's parenting time, not seeing Zaki with the Father, not having the evidence on this motion regarding the highly questionable "breast feeding", Ms. Varano's letter does not assist in deciding what the appropriate parenting time is for the Father. What is accepted from Ms. Varano is that the parties need to focus on Zaki's needs versus their own and the parents need to develop "a child-focused parenting plan that is in the best interest of the child".

28In summary, there is considerable evidence, mostly from the Mother but also from the Father, that the Mother either no longer breast feeds or the breast feeding is minimal at this time. The evidence on this motion favours the Father's position that any nursing is simply for comforting Zaki, not for nutritional or feeding purposes. In either case, this would not impact on the amount of the Father’s parenting time with Zaki.

29The Mother is not being candid about the breast feeding needs of Zaki and is using this alleged breastfeeding as a tool to deny the Father greater parenting time. There are simply too many inconsistencies in the evidence to conclude otherwise.

Zaki is distressed after visiting with her Father

30This court finds the "statement" by the Mother that Zaki is distressed or exhibiting anxiety after being with the Father is self-serving and without any evidentiary support. Zaki is 15 months. The Mother’s observations and conclusion that Zaki, a 15-month-old baby, is suffering anxiety or separation stress when away from her is simply not believable.

31The Mother points to the same doctor's letter referred to above. The difficulty with this letter is that the doctor first met the Mother and Zaki on February 28, 2017 and wrote this opinion on March 21, 2017. What the doctor observed and what he was told by the Mother is not set out in the letter. Whether the doctor ever observed Zaki after he returned to the Mother from the Father’s care is not known. Whether the doctor is a paediatrician is unknown. There are simply too many variables to put any significant weight on this letter from the doctor.

32The Father's states that, after spending a day and overnight with him, Zaki begins to cry when the Father starts to leave Zaki with his mother. This is reasonable and expected of a young baby when being taken away from the parent that he has just spent considerable time with.

The Status Quo

33The Mother points to a status quo. This court is not persuaded that one exists. For a brief period in January and early February 2017, the January 2017 parenting schedule was adhered to. After that, there was no agreement on parenting time. The Father wanted more. The Mother wanted to cut back or keep the same schedule.

34This court is not persuaded that there is any status quo which impacts on its determination of parenting time.

What is in Zaki's Best Interests?

35Both parties love Zaki and want to spend the maximum parenting time with him. To some extent both parties put their interests and needs ahead of Zaki's interests.

36Up until separation in October 2016, the Mother and Zaki lived at the Father's parents’ home. The Father has set out the extensive list of extended family members who will assist with caregiving for Zaki. The Father's parents were home and had significant involvement in Zaki's care and upbringing. The Mother’s proposed parenting time reduces the benefit to Zaki of this continued care from the Father's family. The numerous affidavits from Zaki's paternal grandparents, aunts and uncles set out their roles in caring for Zaki from the birth until separation and during the Father's parenting time. While some of the statements made in their affidavits are clearly subject to a bias in favour of the Father, it is clear that Zaki has many family members on the Father's side that care deeply about him and are prepared to assist in caring for Zaki when in the Father's care.

37The Mother has not set out in her Affidavit in Support of a Claim for Custody or Access other family members who have or will be involved in the caregiving for Zaki.

38This court is of the view that it would be in Zaki’s best interests to spend more parenting time with his Father and his Father’s family.

39In addition, the Father will be able to take Zaki to Friday prayers which is important to the Father for Zaki's upbringing. I see no reason this cannot and should not be accommodated.

40This additional parenting time for the Father would also result in a greater and stronger relationship between Zaki and his Father, one of the factors this court is mandated to consider.

41I am satisfied that the Father's proposed parenting time is in Zaki's best interests.

42Given that an assessment has been order, the parenting time for the Father should be subject to a further review after the assessment is completed but with an outside date in case the assessment report is delayed.

Section 30 CLRA Assessment

43The parties agree to a s. 30 Children's Law Reform Act assessment by Tracy Majewski, provided that Ms. Majewski consents to act, failing which, the parties shall agree on another qualified assessor who is prepared to undertake the assessment. So ordered.

44The parties disagree on who should fund the assessment. The Mother suggests the Father should pay for the assessment. The Father suggests that the costs of the assessment be divided equally between the parties.

45I am not persuaded that the Father should bear the costs alone. Both parties are working full time. They make approximately the same amount of money. The Mother was on maternity leave until February 2017 but she was receiving maternity benefits (although likely at a substantial lower amount than her income). However, the Mother's income has now returned to prior levels (previously $73,501). She has some savings. As for her expenses, as shown on her November 30, 2016 Financial Statement, the expenses simply cannot be believed, further underscoring the issues regarding the Mother's credibility.

46At this point, I am satisfied that both parties can financially afford to equally share the costs of the assessment. So ordered.

CONCLUSION

[47] The Father shall have parenting time with Zaki as follows: a) Every Thursday 9 am to Friday 3 pm; and b) Every Sunday 9 am to Monday 7 pm.

48The exchanges shall take place at the Applicant's residence.

49Either party may seek to vary this interim order: on demonstrating that it is an emergency situation requiring a change to the interim parenting time or on the earlier of 30 days after the release of the s. 30 assessment or 6 months from today's date. Until such time as a further order is issued or there is written consent signed by both parties, the parties shall strictly comply with the above parenting time.

50A s. 30 assessment is hereby ordered on the terms set out above, with the costs of the assessment to be equally paid by the parties.

COSTS

51I have each party's Cost Outline.

52Any 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 three pages, with attached Costs Outline, any offers and any authorities.

53Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages with any authorities relied on and any offers attached.

54There shall be no reply submissions without leave.

Ricchetti J.