Assaf v Al Shehimi, 2017 ONSC 4278

COURT FILE NO.: FC-17-870 DATE: 20170628 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HADY ASSAF, Applicant -and- FATIMA AL SHEHIMI, Respondent

BEFORE: Madam Justice Julie Audet

COUNSEL: Rebecca Rosenstock, for the Applicant Nardine Roufaiel, for the Respondent

HEARD: June 27, 2017

Endorsement

Introduction

1This is a motion brought by the Applicant father (“the father”) on an emergency basis for the following:

• the return of the parties’ child to the City of Ottawa;
• temporary sole custody and primary residence of the child;
• as well as other corollary relief pertaining to parenting.

2The father is prepared to allow access to the mother at the rate of one weekend every second weekend.

3The Respondent mother (“the mother”) brought a cross-motion requesting:

• temporary sole custody of the child;
• a restraining order against the father;
• child support; and
• other corollary relief pertaining to parenting.

4The mother is asking that there be no access between the father and the child or in the alternative, that all access be supervised and takes place at a supervised access center.

Brief Background

5The parties married in August 2014 in Lebanon after one month of courtship. The mother was 16 at the time of marriage and lived in Lebanon with her family. The father was 22 years old and had been raised in Ottawa where his entire family had settled. The mother moved to Ottawa to be with her husband in May 2015. One year later she gave birth to the parties’ only child, who at the time of this motion is 15 months old. The parties’ separated on or about February 28th, 2017 at which time they agreed that the mother would travel to Lebanon with the child to spend two and a half months with her family and, according to her evidence, to take some time to reflect on her separation. The mother left Canada with the child on March 1st, 2017, with a return flight to Canada for her and the child scheduled for May 14th, 2017.

6While the mother was in Lebanon visiting her family with the parties’ child, the father came to believe that she had no intention of returning to Canada with the child. This led to a series of events which need not be related here at length. Suffice it to say that this caused the paternal grandfather to travel to Lebanon in an effort to locate the child and convince the mother to return to Canada; the father to obtain a travel ban in Lebanon precluding the child from leaving Lebanon; and the mother to return to Canada earlier than expected, without the father’s knowledge. The mother arrived in Canada with the child on April 15th, 2017, and stayed with one of her aunts in Montreal where she remained against the father’s wishes, and without allowing him access to his daughter.

7At the time of this motion the mother’s counsel advised that the mother has returned to Ottawa and that she is living in a shelter with the child. There has been no access between the father and his daughter since the mother left for Lebanon on March 1st. The father claims to having made several attempts to try and locate the mother for the purpose of seeing his daughter, to no avail. The mother claims to have made efforts to arrange access between the father and the child through third parties, but that access did not materialize as the father showed very little interest in same.

8The parties’ evidence as to the events that transpired post-separation, and the role that each played in the child’s life during their marriage, is diametrically opposed. The mother alleges that she was subject to abuse at the hands of the father and his family during their brief marriage. She claims that he has drug addictions issues, was never home to care for her and their child, and demonstrated very limited interest in his daughter since she was born. The father alleges that the mother did not help caring for her daughter since she was born, that she basically sat around at home and/or slept all day, relinquished all parenting responsibilities to the paternal grandmother until the father returned from work.

Decision

Parenting

9For the reasons that follow, I find that neither party is being truthful about the role the other has played in the life of their young child and about their concerns with regards to the other parent’s ability to care for this child. The purpose of this motion is to put into place temporary without prejudice measures that will insure that the best interests of this young child are met while this proceeding follows its course towards final adjudication after a full hearing during which the parties’ serious allegations can be tested.

10In determining what parenting provisions are best for this child, I am mindful of all the factors listed in section 16 of the Divorce Act and in section 24 of the Children’s Law Reform Act. I must make a determination based on the child’s best interest. Specifically, I am most mindful of the following factors which are particularly relevant with regards to the young child who is at the heart of this proceeding:

a) The principle that a child should have as much contact with each spouse as is consistent with her best interest; b) The love, affection and emotional ties between the child and her parents, other members of the child’s family who reside with the child and persons involved in the child’s care and upbringing; c) The length of time that the child has lived in a stable environment; d) The ability of each person applying for custody of or access to the child to act as a parent, and; e) The plan proposed by each person applying for custody.

11There are serious allegations being made by each party about the other which, as I stated earlier, cannot be tested in the context of this motion. Further, I find that many of those allegations are not credible based on the limited evidence before me. I make the following findings:

• While the mother alleges that the father was abusive during the relationship, there is no corroborating evidence in the record that would support those allegations independent of the mother’s own allegations. While I cannot say that such abuse did or did not take place, I note that the mother’s account of such abuse (particularly one event involving a sexual abuse) was accounted very differently in three different paragraphs of her affidavit material. Further, no complaint was made to the police with regards to the alleged abuse until this proceeding was initiated by the father (some four months after the separation). While the mother claims that the police his currently investigating those allegations, the father has not yet been contacted by the police, and there is no evidence that the child protection services have been notified or taken any action as a result of those alleged complaints.
• While the mother alleges that the father is involved in drugs and gambling, the evidence presented by her to corroborate such allegations (other than her own allegations) is tenuous at best. It comprises mainly of old pictures retrieved with the father’s consent from an old phone of his, and the father alleges that those pictures were not even his (they would have been posted by others on his social media accounts (such as Snapchat). There is no evidence that would suggest that the father has ever been the subject of police investigations, let alone accusations, with regards to such activities.
• While the mother alleges that the father has never shown any genuine interest in his daughter, I find that he has taken drastic steps to have his child returned to Canada when he believed that she would not return to Canada as expected, and that he initiated these proceedings at the earliest opportunity to insure his daughter was safe, and to obtain parenting rights and access to her at the earliest opportunity. On the contrary, these actions indicate quite clearly that he is very much interested and concerned for his daughter.
• While the mother alleges that the father is a risk of flight, there appears to be no valid reason for him to flee to anywhere, including to Lebanon, as he was raised in Ottawa, his entire family resides here, he is gainfully self-employed in Ottawa, and he is seeking an order precluding the mother from leaving the City of Ottawa with the child.
• While the father alleges that it was his own mother – not the child’s mother – who cared for the child while he was at work, that he is concerned about her mental health, and that the mother is unable to care for this child on her own, he readily consented to her traveling with the child to Lebanon for two and a half months, without supervision. This flies in the face of his allegation that she is not a fit mother who can be trusted with her child.

12Although the mother’s complete denial of access between the father and his daughter over the past months is in no way condoned by this Court, as stated earlier the purpose of this motion is strictly to insure that this child’s best interests are met by a proper parenting order on an interim, without prejudice basis. I am comforted by the following facts, which are not disputed in the evidence presented by the parties, and upon which I make the order detailed later in this Endorsement.

13Neither party has alleged that the other had in any way mistreated the child in the past, or voiced any concerns about the other party’s potential to harm the child while in his/her care. The mother has not alleged that the paternal grandparents or extended family members had in caused or attempted to cause any harm to this child in the past. For the vast majority of this child’s life, the parties resided with the paternal grandparents. That home was the child’s permanent residence at the date of the parties’ separation, and it is reasonable to assume that she would feel comfortable and safe in these familiar surroundings while in the care of her father (who continues to reside with his parents). The mother has had the child in her sole care for the past 3-4 months, albeit against the father’s will, and there is no evidence before me that would suggest that she is being cared for properly. While I take note of the fact that the father has not seen his child since March 1st, and thus has no ability to attest as to whether or not she is doing well at the moment, the mother indicates that she has been working with a shelter in Montreal to arrange a transfer to a shelter in Ottawa, and it can be assumed that if there had been any concerns about the child’s well-being it would have been reported to the authorities by the shelter’s workers. There is no such evidence in the record.

14The mother is not currently employed, nor has she ever been employed since her arrival to Canada. Her limited ability to speak English or French and her lack of training (in Canada) will make it very hard for her to secure employment in the very near future. She is available and able to care for her daughter full time at present. The father is working full-time and by his own admission plans to delegate a significant amount of his parenting responsibilities to his mother while he is at work, should temporary primary residence of the child be given to him. I see no reason to delegate parenting duties to the grandmother when the child’s own parent (the mother in this case) is unemployed and able to care for her. This child is very young, and has been in her mother’s sole care for the past four months, and it is in her best interest to remain in her primary care at this time. This said, the father has been completely denied any contact with her father and her paternal family for over four months now. This is not in her best interest and access must be put into place immediately.

15Based on the above, I make the following interim, without prejudice order:

1. There will be no order as to custody of this child at this time.
2. The child will remain in her mother’s primary care, and the child will have unsupervised access to her father as follows, commencing on Saturday June 31st, 2017: a. Every Saturday, from 10 a.m. to 6 p.m.; b. Every Monday from 4 p.m. to 7 p.m.; c. Every Wednesday from 4 p.m. to 7 p.m.
3. The exchanges will take place in a public place to be agreed to between the parties and their counsel, and the mother may appoint a third party if she so wishes to do the exchanges for her given the concerns she has raised about being in the presence of the father.
4. Neither party shall remove the child from the City of Ottawa without the other party’s written consent. Neither party shall remove the child from the Province of Ontario without the other party’s notarized consent.
5. The parties will hand out their respective passports and/or official travel documents (Canadian, Lebanese or otherwise) as well as any travel documents they may have in their possession with respect to their daughter to their respective lawyers who will hold them in trust until further order of the court or agreement of the parties. In the event that the parties’ lawyers (or any one of them) are unwilling to do so, they shall be deposited into court until further order of the court.
6. The parties are hereby refrained from attending at the other’s residence or place of work. They shall communicate with each other in writing only, and limit their communication to matters pertaining to the well-being of their daughter, including access arrangements. Alternatively, they shall each appoint a third party of their choice who shall be responsible and available to communicate with the other parent on matters pertaining to access or their daughter’s well-being, if and when necessary.
7. On consent of the parties, the Office of the Children’s Lawyer is hereby appointed to investigate into the parenting arrangements that would best meet this child’s interests and in the parents’ respective ability to care for this child. The parties shall submit their completed Intake Forms to the Office of the Children’s Lawyer within 14 days from the date of this Order.

Child Support

16On the issue of child support, there is limited financial disclosure in the record allowing this court to make a finding as to the father’s level of income. I note that in his financial statement, the father discloses annual gross self-employment income of $110,000 and net (after business expenses but before income taxes) self-employment income of approximately $17,000. There is no evidence providing this court with any details of the alleged business expenses in the amount of $93,000. Yet, the father in his budget shows transportation expenses of $2,475 per month – which appear quite excessive – as well as alcohol and tobacco of $250 per month, meals outside the home of $400 per month, entertainment and recreation of $250 and vacation expenses of $400. As I am not able to determine the father’s income with any kind of accuracy at this time, and given that the mother and the child have access to no employment income (other than social assistance), on a temporary and without prejudice basis I order the father to pay to the mother child support in the amount of $500 per month, which is the approximate amount that would be payable based on an income of $55,000 per annum (one half of his gross business income), and which the father is able to pay. Child support is to start on July 1st, 2017.

17I remain seized of this matter at least until the Case Conference which is scheduled to proceed in September 2017, and I may be spoken to on any matters resulting from this order, including its due enforcement.

18Unless they can agree on the issue of costs, Applicant’s counsel will have 10 days from the date of this endorsement to submit her cost submissions (which shall be limited to 2 pages) and the Respondent’s counsel shall have 10 days after that to provide hers (which shall also be limited to 2 pages).