Shaikh v. Matin, 2017 ONSC 5842
CITATION: Shaikh v. Matin, 2017 ONSC 5842
COURT FILE NO.: FS-14-4032-00/01
DATE: 20170929
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ambreen Nisar Shaikh, Applicant
AND:
Mohammed Faraz Matin, Respondent (Applicant on Motion to Change)
BEFORE: Ricchetti, J.
COUNSEL: J. Grossman, counsel for the Applicant/ Mother
R. Ying, counsel for the Respondent/ Father
HEARD: September 5 and 6, 2017
JUDGMENT
Contents
Overview.. 2
The Parties. 3
Post Settlement Events. 4
The Father’s Motion to Change. 4
The July 13, 2017 Court Appearance. 5
The Evidence called at Trial 5
Credibility. 6
The Mother 6
Sabika Shaikh. 13
Kimberly Imhoff 15
The Father 15
The Children's Lives Prior to the Final Order 16
Events Leading up to and the Abduction. 17
The Children's Lives after March 4, 2017. 21
THE POSITION OF THE PARTIES. 23
The Father 23
The Mother 24
THE LAW... 24
Custody. 27
The Final Minutes of Settlement 27
Care of the Children Historically. 28
Care Of and Providing for the Children. 29
Access. 31
The Cost of Supervised Access. 31
How long should the Supervised Access continue?. 32
CONCLUSION.. 32
COSTS. 33
SEAL. 35
Overview
1The parties separated. They had two children. Matrimonial proceedings were commenced. The parties settled all issues including custody and access. The mother was to have sole custody of the children. The father was to have reasonable access. Consent was required for travel outside the jurisdiction. A final order issued. Within days of the final order, the mother abducted the children seeking to leave the jurisdiction permanently. The police were able to get the mother to return the children to Ontario. The court gave temporary custody of the children to the father and the mother supervised access. The father now seeks custody of the children with the mother having supervised access. The mother seeks a return to the final order where she has custody of the children.
2For the reasons that follow, the father is to have sole custody of the children and the mother is to have supervised access.
The Parties
3The parties were married on July 7, 2006. The parties separated on August 3, 2014.
4The Mother is approximately 33 years old. The Father is approximately 38 years old. Both are well educated.
5There are two children of the marriage: Zakaria born on February 13, 2011 and Emaan born on February 11, 2015 (the “Children”).
6Matrimonial proceedings were commenced in 2014 by the Mother.
7On February 17, 2017, the parties entered into Final Minutes of Settlement which became the final consent order of Justice Lemon (the "Final Order").
8The Final Order provided:
a) the Mother have sole custody of the Children;
b) the Father have reasonable access: initially day access twice a week but commencing April 1, 2017, alternate weekends from Friday to Sunday and every Wednesday dinnertime access. School breaks, special days, religious holidays were specifically set out and agreed to by the parties. There was also specified communication “access” by way of Skype;
c) travel outside of Ontario had to be "agreed upon", with notice, and was subject to providing an itinerary and increased communications between the Children and the non-travelling parent; and
d) the Father was to pay child support.
Post Settlement Events
9After the Final Order, on or about February 24, 2017, the Mother left Canada with the Children, without the Father's consent or knowledge. More will be said about this below. The Father went to the police. The Father brought proceedings for the return of the Children.
10Eventually, the Mother was located in Dubai with the Children. The Mother was on her way to Pakistan, from where she had immigrated from years ago.
11On March 2, 2017, the court ordered that the Children be apprehended and returned to the Father.
12As a result of police involvement, the Mother returned to Canada with the Children on March 4, 2017.
13On March 5, 2017, the Mother was arrested and charged with several counts of abduction. The Mother has since settled the charges by pleading guilty to breach of a court order. She has not been sentenced yet. The Father took custody of the Children.
14Since March 5, 2017, the Children have been in the Father's custody.
The Father’s Motion to Change
15On March 11, 2017, the Father brought this Motion to Change seeking an order that:
a) the Father have sole custody of the Children;
b) the Mother have supervised access with the Children;
c) the Mother pay child support.
16On March 24, 2017 Justice Wein ordered:
a) The Mother's motion to restore custody and the Father's Motion to Change be heard together. Justice Wein continued the temporary order granting the Father sole custody of the Children;
b) The Mother surrender the Children's Canadian and Pakistani passports;
c) The Mother have supervised access two nights on weekdays and every Saturday for up to 6 hours; and
d) The Mother was to provide a "psychological/psychiatric risk assessment" regarding her psychological status and ability to parent.
17Since the order, the Mother has had supervised access. Initially, supervised access was permitted with specified members of the Mother’s family. After an incident in May, 2017, the supervised access has been through Brayden Supervision.
The July 13, 2017 Court Appearance
18The Motion to Change and Mother’s motion to re-instate her custody of the Children came before this court on July 13, 2017.
19This court only had affidavits on these motions. There was conflicting evidence on material issues. Therefore, this court ordered an expedited trial on September 5, and 6, 2017.
The Evidence called at Trial
20The parties agreed that the CAS records would form part of the evidence at this trial and could be relied upon by this court as proof of the contents therein.
21At the trial, the following witnesses testified:
a) Sabika Shaikh (the Mother's sister);
b) Jenny Seifert (Brayden Supervision);
c) Kimberly Imhoff (the Father's current partner);
d) the Father; and
e) the Mother.
Credibility
The Mother
22I find the Mother has no credibility. Her evidence cannot be relied on. The Mother is prepared to and has lied to this court. She is prepared to say whatever is necessary to help her get the Children back.
23Let me provide a number of examples of the Mother's evidence and why such a harsh condemnation of the Mother's credibility and reliability is necessary:
a) The Mother testified that she had lied to her family about where she was going on February 2017. She told them she was going to Vancouver when in fact she was going to Pakistan. She admitted she lied to her family. The Mother either lied to her family or is lying to this court about what she had told her family. For the reasons set out below, I do not accept the evidence of Sabika Shaikh, the Mother's sister, finding instead that Sabika Shaikh knew that her sister, the Mother, was leaving Canada. As a result, I conclude, the Mother's evidence at trial that she told her family she was going to Vancouver was a lie. To compound this lie, the Mother admitted she lied to her own lawyer – she told her lawyer she was going to Vancouver. The Mother was prepared to lie to anyone and everyone;
b) The Mother needed a Pakistan visa for Emaan. The visa application for a child, in evidence, clearly requires two signatures - one by each parent. The Father raised the issue in an earlier affidavit questioning how the Mother could have obtained the Visa without his signature and suggesting he had been told by the Pakistani Embassy that his signature had been forged on the application. The Mother says she asked the travel agent to obtain a visa for the Children. She denies she signed a visa application. She has no other explanation. Somehow, Emaan had a visa to travel to Pakistan. One would have expected the Mother to produce a copy of her application for a Pakistani visa. She did not. Her explanation that she somehow got a visa without signing an application makes no sense. An adverse inference can be and is drawn that the Mother likely forged the Father's signature on the Visa application;
c) The Mother sold her house. The sale closed on January 24, 2017. The Mother testified that she didn’t tell anyone about the sale. There was no "for sale" or "sold" sign on the property. The Mother admits being deceptive about selling and the sale of her home. Her explanation that she did this surreptitiously to prevent the Father from finding out her new address makes little sense. The Father would have found out in due course she had sold her home. There are no credible evidence of violence between them so as to be concerned that the Father knew her home address. This surreptitious behaviour is more consistent with the Mother’s intention to leave Canada permanently with the Children. To make matters worse, while in Dubai, on March 1, 2017 the Mother filed a Notice of Change showing her home address (which she had been sold) as her residence. The Mother now testifies she was a tenant in the basement of her old home. This is false. The Mother admitted she had sold most of her home belongings and, what was unsold, was stored at her sister and mother’s homes. The sale of this property is also consistent with the Mother’s intention to leave Canada permanently. Further, although requested to produce same, the Mother has not produced any lease documents for her alleged tenancy. The purchasers of her home confirmed that they did not rent any part of the home to the Mother, basement or otherwise. Clearly, the Mother deceived persons regarding the sale of the home to avoid anyone discovering her plan to leave Canada and has subsequently lied about her residence;
d) The Mother testified that going abroad was only a "trip" or “vacation” to Pakistan, through Dubai. Yet, all the evidence is to the contrary:
she quit her job at Wet n’ Wild just before she left;
she bought a one-way ticket to Dubai for her and the Children on January 20, 2017 – three weeks before the final settlement on February 17, 2017;
she bought an airline ticket in Dubai to travel to Pakistan. She was to travel on March 6, 2017;
she took the Children out the school “permanently” in Ontario before the “trip”. She didn’t register the Children in any school in Ontario;
she sold her home surreptitiously;
she divested herself of the proceeds of sale of her home. Most of the net proceeds of sale of the home were deposited into her mother’s bank account;
she sold many of her home furnishings;
she had no plans for accommodations in Ontario; and
She didn't tell anyone in Pakistan she was going there.
When the Mother's counsel was asked for any possible or plausible explanation inconsistent with abduction - Defence counsel had no explanation to offer.
I reject the Mother's submission that she would not have renewed the Health Cards or opened a bank account for Zak in the latter part of January 2017 as evidence that this was a "trip" or “vacation”. There are many reasons why the Mother might have taken these actions. However, when the evidence is considered as a whole, it is clear this was no "trip" or “vacation” with the Children;
e) When the Motion to Change was commenced by the Father, the Mother swore an affidavit on March 17, 2017 in which the Mother stated that she had told the Father by email she was going to Vancouver. The Mother made this same statement to the police. No such email was sent by her to the Father. She never told the Father she was going on a trip - either to Vancouver or Dubai. The Mother now admits she lied under oath in the affidavit and to the police;
f) As set out above, the Mother took her children out of school "permanently" before leaving for Dubai. When the Mother was asked about the Children’s school, she testified she didn’t know where they would go to school because she hadn’t decided where to live yet. When asked about the Children missing their schooling (essentially Zak), the Mother said it was perfectly fine for them to miss school for a month or two. The logical explanation for this lack of concern is that the Mother intended to leave Canada permanently;
g) Late in 2016, the Mother appeared to question the Father about a trip, knowing where he had been. She also knew he had taken an "Uber" on this trip. How did the Mother find out? The Father had used his bank cards. The Father checked his bank account. The Father's bank account had been accessed over 100 times. During the period of time the Father’s bank account was accessed, the Mother had been a client advisor with the Father’s bank with access to bank accounts. The Father confronted the Mother. The bank confronted the Mother. The Mother left her employment of the bank. The Mother denied she was fired - she testified she quit. Why? Because she said she was embarrassed by the bank asking her about the accessing the Father’s account. This explanation makes no sense. Why would the Mother be embarrassed if she had not accessed the Father’s account and be embarrassed enough to quit her job? As to the Father’s accusatory text messages of accessing his bank account, the Mother did not deny it in any response. I have no doubt the Mother lied about accessing the Father’s bank account;
h) The Mother testified that the Father failed to return Children at the end of his access on one occasion. The Mother said she couldn't get a hold of the Father by text message. She was worried. Yet, she couldn't remember if the Father was late one hour or three hours. She testified she called the police. However, the Mother's own text messages tell a different story. Early that day, the Mother told the Father she was going out for the day. There was no evidence she tried to text the Father prior to 6:45 p.m. At about 6:45 p.m. the Mother texted the Father referring to the fact the police had spoken to the Father. The Mother's text didn't say she couldn't get a hold of the Father. The Mother's text simply told the Father to return the Children by 7:00 p.m. to the maternal grandparents. There was no expression of concern, inability to get a hold of the Father or the Father having done anything wrong. The Mother, at the very least, exaggerated what had happened to make the Father look bad;
i) The Mother was charged with several charges of abduction. The Mother settled the charges by pleading guilty to disobeying a court order. The deliberate and flagrant breach of the Final Order by the Mother is not in dispute;
j) Then there is the hair cutting incident. There are photographs of Zak on the morning of May 27, 2017, taken by the Father just prior to leaving him with the Mother for her supervised access. Zak's hair looks perfectly normal in the Father’s photograph. The Father picked up the Children later that day. A large shock of Zak's hair had been cut down to the scalp. The Mother testified that Zak's hair was that way the Father when Zak had been dropped off. Sabika Shaikh also testified that Zak arrived for the access visit with the hair cut. I reject the evidence of the Mother and Sabika Shaikh on this point. Immediately after the Father picked up Zak and drove home, he sent a message to Sabika Shaikh demanding to know what happened to Zak's hair. It would have been simple for Sabika Shaikh or the Mother to say, “that was the way you brought Zak to the supervised access”. No such message or communication was sent to the Father despite his repeated requests to know what happened to Zak’s hair. The Father reported the matter to CAS. The Mother refused to talk with the CAS about the incident. The CAS investigation spoke with the Children. They told CAS that their mother had cut Zak’s hair. The CAS concluded that the Mother had cut Zak's hair. Sabika Shaikh admitted she didn’t respond to the Father’s text messages regarding Zak’s hair. On the evidence before this court, the only logical conclusion is that the Mother cut Zak's hair and then both the Mother and Sabika Shaikh lied about it in court;
k) The Mother's evidence was entirely skewed against the Father. The Mother deliberately exaggerated her evidence to make the Father look bad and a non-fit parent. For example, the Mother told the police that the Father had molested Zak which was not true. I will describe this in more detail below. In another example, the Mother testified that she didn't tell the Father she had sold the home because the Father "tried to force his way into her house". However, during cross examination, the Mother admitted the Father had gone to her home late and rang the doorbell. The Mother didn't answer. The Father left. The Father didn't "force" anything. The Mother did her best to paint a very negative picture of the Father. The Mother's continued anger towards the Father became clear;
l) I reject the Mother's explanation as to why she put the net proceeds of sale of her home into her mother's account. The Mother's mother entered into an agreement to buy a pre-construction condominium (to be completed in 2018). However, aside from about $30,000, the Mother put all the money into her mother’s bank account (more than $200,000). The Mother testified that this money is in trust for her. Why put the money into her mother’s bank account? The Mother's explanation is that she didn't want the Father to find out she was buying a new home. That doesn't explain why the money was placed into her mother's bank account or why the agreement of purchase and sale is in the her mother's name; and
m) The Mother was ordered to return Zak's Pakistani passport. The Mother has not done so. She says she doesn't know where it is. The Mother, having taken Zak to Dubai and on her way to Pakistan with Zak, would know the location of his Pakistani passport. Yet, she has failed to produce it.
24One of the main thrusts of the Father's evidence was that the Mother has attempted to get back at him for the marriage breakdown. Because of this, the Father testified that the Mother reacts very badly and uses poor judgement even when it was not in the Children's best interests. The Father suggests that the Mother is not able to separate her anger towards the Father from the best interests of the Children. I accept this reasoning by the Father. However, I do not go as far as the Father suggests in that I do not find that the Mother suffers from any mental health issues as there is no expert evidence on this issue.
Sabika Shaikh
25Sabika Shaikh testified that she is "very close" with the Mother. They are sisters. They speak with each other every day. This is understandable.
26Sabika Shaikh testified the Mother told her she was going to Vancouver for a job training trip. Sabika Shaikh knew that the Mother had left her previous job. Yet, Sabika Shaikh didn't know what job, even the barest of information about the job, the Mother had obtained or was attending for "job training". Sabika Shaikh didn't know which airline the Mother was taking, where the Mother was staying, when she was coming back, why the Mother was taking the Children on her job training trip, where the Children would stay. Nothing. Why? Because the logical conclusion is that Sabika Shaikh knew otherwise.
27Sabika Shaikh also testified she did not know the Mother was selling her home. However, Sabika Shaikh knew the Mother had moved a few items into Sabika Shaikh's home and her parents’ home just prior to the Mother’s departure. Sabika Shaikh, being close to her sister, would have known or asked about the Mother’s future basic plans such as: why are you storing items at my place; where she will you be living; where are the kids going to school. Later, in her evidence, Sabika Shaikh said that the Mother was looking to downsize. Now which is it - not selling or downsizing? Sabika Shaikh testified she thought maybe the Mother was renting the home - but this "assumption" makes little sense between two sisters who are, according to Sabika Shaikh, very close and speak each day. I reject Sabika’s evidence on this issue.
28Sabika Shaikh testified that the Mother never told her she was taking the Children on the “trip”. Yet, Sabika Shaikh drove the Mother and the Children to the airport. Sabika Shaikh never questioned the Mother about taking the Children on this “trip” or what would happen to the Father’s access time with the Children. She didn’t ask any questions regarding taking the Children on this "trip" or what would happen to the Children (including very young Emaan) while she was job training. I reject that the Sabika Shaikh would not have asked her sister these questions and known what her sister was doing.
29Sabika Shaikh knew the Father was concerned about the whereabouts of the Mother and the Children. She knew the Father had gone to the police to find the Children. Yet, when Sabika Shaikh found out that the Mother had gone to Dubai, she never bothered to tell the Father this information. There is a clear bias to her evidence.
30Sabika Shaikh testified that she noticed that Zak's hair had been very badly cut during a May 27, 2017 visit when Zak arrived. It was "abnormal" to use her words. Yet, Sabika Shaikh didn’t question or send a text to the Father about this "abnormal" hair. Sabika Shaikh denied the Mother had cut Zak's hair. She said she never left Zak alone with the Mother during that access visit. Yet, when the Father texted Sabika Shaikh asking "what had happened to Zak's hair", Sabika Shaikh didn't respond. She didn’t respond with – that’s the way Zak’s hair was when you dropped him off. When asked why she hadn’t responded to the Father’s texts? Sabika Shaikh testified she didn’t respond because she only wanted to communicate with the Father on access issues. This makes no sense since the children's care was entrusted to her and her supervision. Her failure to respond to the Father’s repeated enquiries about Zak’s hair, lends credibility to the Father's version of events and is indicative of her bias against the Father.
31I reject Sabika Shaikh’s evidence.
Kimberly Imhoff
32Ms. Imhoff is the Father's new partner.
33Ms. Imhoff's evidence was honest and straightforward. She was a credible witness. I accept her evidence.
34This court was extremely impressed with Ms. Imhoff. She appeared to genuinely be concerned about the Children's best interests. Her efforts to care and comfort the Children throughout the difficult time after their return to the Father speaks highly about her ability to care for the Children in the future and put the Children's best interests first.
The Father
35The Father's evidence was not seriously or effectively challenged in cross examination.
36There were many text messages and other documents which strongly support his position on the highly contested issues. His evidence made sense.
37This court was impressed with the Father’s extensive efforts to fully and properly care for the Children by focusing on their medical, educational and other needs of the Children.
38I accept the Father’s evidence
The Children's Lives Prior to the Final Order
39Both parties were involved in caring for Zak until the separation. This included medical, education and other care needs for Zak.
40Emaan was born after the separation. The Mother didn't let the Father see Emaan for a long period of time because she said she was nursing. It was only after 2016 that the Mother finally let the Father see Emaan.
41The Mother was very angry with the Father for the separation and used the separation to minimize the Father's access with the Children. This was a major frustration for the Father. For example, the Mother would insist on Father having access in her presence at places such as a Mall even though the Children were very young. At times, the Mother would agree to provide the Father with access but then failed to attend. The Mother would also prevent the Father's family from having time with the Children even, in one case, where the Father's mother had travelled to Canada. Essentially, the Mother decided where, when and how long the Father could see the Children.
42In order to get any reasonable and regular access, in April 2015, the Father agreed to supervised access. By February 2017, the Father's financial resources for litigation had depleted. By settling, the Father would obtain substantial access with the Children and input into their lives, but, to do so, he would have to give the Mother sole custody. The Father reluctantly agreed to the Final Minutes of Settlement on February 17, 2017 and the Final Order.
43From the Mother's perspective, she decided to settle the matrimonial issues, in particular the custody and access of the Children. She did so on February 17, 2017. It didn't matter what terms she agreed to since the Mother had already put into place a plan to leave Canada with the Children permanently.
Events Leading up to and the Abduction
44Both the Mother and Father immigrated to Canada from Pakistan, after having spent time living in Dubai.
45The Mother decided she would return with the Children to Pakistan, where she had extended family (aunts and uncles) and had visited a number of times since coming to Canada.
46On January 20, 2017, the Mother bought one way tickets to Dubai for herself and the Children. She obtained a visa for Emaan.
47On January 24, 2017, the Mother surreptitiously completed the sale of her home on Antibes Drive, the home in which she and the Children resided. The Mother disposed of furniture and other assets. Some items she stored with her mother and Sabika Shaikh. The Mother disposed of net proceeds of sale by transferring them to her mother - approximately $242,000.
48The Mother quit her job.
49The Mother took the Children out of school permanently in February 2017.
50To make matters more difficult for the Father, or anyone trying to locate her, the Mother decided she would buy the tickets to Pakistan while in Dubai.
51The Mother said nothing of her plans to leave Canada during the court proceedings on February 17, 2017 and the settlement discussions.
52On February 24, 2017, the Mother put her plan to leave Canada into motion. She left with the Children and went to Dubai. She didn't tell the Father. She didn't get his consent.
53The Father, expecting to exercise access time with the Children on February 25, 2017, went to the access exchange location. The Mother was not there.
54After investigating, the Father couldn't find the Mother or the Children. The maternal grandmother of the Children told the Father that the Mother and the Children were in Vancouver.
55The Father was concerned. He contacted the police. The police agreed to investigate.
56The CAS commenced an investigation.
57The police were told by the Mother that she was in Vancouver with the Children, even giving the police a hotel name and address in Vancouver. The Mother admits she lied to the police as to where she and the Children were. The Mother also lied about the hotel and address.
58The Mother also told the police she had previously emailed the Father telling him she was going to Vancouver with the Children. The Mother admits this was not true. The Mother lied to the police – there was no email.
59On March 2, 2017 the Mother permitted Zak to speak with his Father by Skype. Zak, being told by his Mother that he was in Vancouver, told his Father this.
60The Father also spoke with the Mother who told him that she was in Vancouver. She lied to the Father. The Mother was in Dubai.
61On March 2, 2017, the Father obtained a court order granting him temporary sole custody of the Children.
62The police again attempted to contact the Mother but the Mother's cell phone had been disconnected. The police called the hotel in Vancouver and discovered that the Mother had never been registered there.
63The Mother's family told the police they didn't know where the Mother was or how to contact her. The Mother had gone into hiding or the Mother's family lied. Or both.
64The Mother then sent an email to the police alleging abuse by the Father (including allegations that the Father had molested Zak) and that he was a pornography and sex addict, all in an attempt to justify why she had “taken” the Children. This was the first time the Mother had made such allegations against the Father. She ended her email with: "No one knows where I am....The best way to get in touch with me is through my email id." There was no mention by the Mother that this was just a “trip”.
65On March 3, 2017, the police discovered from Canadian border services that the Mother had travelled with the Children on February 20, 2017 to Dubai.
66The police also discovered that the Mother had booked airline tickets for herself and the Children to fly to Karachi, Pakistan on March 6, 2017. The police obtained a Canada-wide warrant for the Mother's arrest. The police sought the assistance of INTERPOL to intercept the Mother before she left for Pakistan.
67The police told the Mother to return to Ontario with the Children. The Mother returned with the Children on March 4, 2017.
68The Children were returned to the Father on March 5, 2017.
69The Police charged the Mother with several counts of abduction. When the Mother was arrested on March 5, 2017 and interviewed by the police, the Mother did not repeat the allegations of the Father's molesting the Children as she had alleged in her email.
70The Mother agreed that the abduction was harmful to the Father, was a breach of the Final Order and the wrong decision for her to make. What the Mother did not say was that it was harmful to the Children to take them away in this manner - she ignored their schooling, their Father, and their extended families and friends. The Mother did not, during the trial, recognize that her actions were not in the Children's best interests.
71The police investigated the Mother's allegations of sex assault and assault by the Father and determined the Mother's allegations were unsubstantiated.
72The CAS completed their investigation. They found no safety concerns of the Children in the Father’s custody. They found the Children were healthy, happy and well cared for by the Father and Ms. Imhoff. They found the Father to be a dedicated parent.
73After speaking with the Mother on the phone, the CAS was preparing to close its file. However, before doing so, several access related issues (including the hair cutting incident) arose. The CAS investigated the hair cutting incident and concluded that the Mother had cut Zak's hair based primarily on the statements of the Children. On June 12, 2017, the Mother advised CAS that she refused to speak with CAS because she said that her lawyer instructed her not to speak with anyone.
74The CAS has concluded there are no protection issues relating to the Chidlren.
The Children's Lives after March 4, 2017
75Since March 4, 2017, the Children have lived with the Father. The Father has had temporary sole custody of the Children. The Father resides with his new partner, Kimberly Imhoff. The Father's employment gives him great flexibility to care for the Children.
76The Children's medical, schooling and religious needs have been and are currently being met by the Father and Ms. Imhoff. Some examples of how seriously they have taken their care responsibilities for the Children include:
a) Zak had a serious weight problem arising from his eating habits. Both the Father and Ms. Imhoff have made great efforts to overcome this issue, an issue which was not addressed by the Mother prior to March 4, 2017. Zak has benefitted by this increased attention to his physical needs;
b) Zak has dental problems. The Mother simply relied on the annual school dentist visit. Unfortunately, this was not enough. The Father took Zak to a dentist who discovered numerous cavities which are now being attended to. Zak benefits from this increased attention to his health needs;
c) The Father and Ms. Imhoff did properly and carefully deal with the shock and embarrassment to Zak's cut hair on May 27, 2017. Clearly, the Father and Ms. Imhoff were keenly aware of meeting Zak's emotional needs from this unfortunate incident. On the other hand, the Mother clearly wasn’t concerned about the emotional harm to Zak by cutting his hair in such a fashion.
d) The Father has engaged various professionals/activities/programs/camps to deal with the impact of the Mother's abduction, to meet the Children's physical and emotional needs and foster their proper development. This includes having the Children participate in therapy with a registered psychotherapist, Shannon Holmes. The Father and Ms. Imhoff have been careful not to discuss the matrimonial issues (including the abduction) with the Children and have assisted them in making the transition to Father's custody as smoothly as possible for the Children;
77In short, the Children have been in a loving and caring home since returning to the Father's care. The Children also have stability, a routine, a structure and appear to be flourishing in a stable, loving home.
78The CAS reports show positive development of the Children since the temporary custody order in favour of the Father.
79On the other hand, I am very troubled by the Mother's lack of attention to significant needs of the Children: medical (both children were significantly underweight as of March 2017); dental (Zak had many cavities and had never seen a dentist other than at school); and schooling (as the Mother stated that there is no problem taking children out of school for one or two months except in the senior grades).
80I am also troubled by the Mother's actions which include the abduction; the hair cutting incident; and lying to the Children. The Mother does not put the Children's best interests first.
81Since the hair cutting incident in May 2017, the Mother has had supervised access commencing July 1, 2017 using Brayden Supervision. Nothing untoward or unexpected was witnessed by Ms. Seifert, the Brayden employee conducting the supervision. The Children show affection to the Mother. That is neither surprising nor unusual given that the Mother had been the primary care giver of the Children up to March 4, 2017.
82Notwithstanding what the events described above, the Father is prepared to allow the Mother to have access, even significant access, but submits it should be supervised given the Mother's anger towards him, and her impulsive/bad judgment as demonstrated by her abduction.
THE POSITION OF THE PARTIES
The Father
83The Father submits that the Children’s best interests are served with a change in custody. He is prepared to accept input from the Mother before major decisions are made for the Children.
84The Father submits that appropriate access to the Mother be supervised on alternating weekends (10:00 a.m. to 6:00 p.m.) and to include communication access.
The Mother
85The Mother concedes that the Father has demonstrated a material change in circumstances warranting this court’s consideration of what now constitutes the Children’s best interests.
86The Mother seeks to return to the Final Order where she had sole custody. She submits the Father should have access alternating weekends and some evening time during the week. Essentially, the Mother submits that the Father has not established it is in the Children’s best interests that the Father have sole custody of the Children.
THE LAW
87The Application was commenced under the Divorce Act. This Motion to Change the Final Order must be considered under the Divorce Act. Section 17 of the Divorce Act permits parties to apply to vary, rescind or suspend the terms of existing support and custody orders. Under subsection 17(4), to succeed, the applicant must show that “a change in the condition, means, needs or other circumstances of the child of the marriage” has occurred since the making of the last order. Pursuant to subsection 17(3), the Court may include in the variation order any provision that could have been included under the Act in respect of the order with respect to which a variation is being sought.
88As stated above, the Mother’s counsel concedes that a material change in circumstances has occurred in this case, being the events which I call the "abduction". This court, would have, in any event, found a material change in circumstances applying the test in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27.
89Section 16(8) of the Divorce Act provides that the test for determining an application for custody or access is: What is in the best interests of the child? The court is required to take into consideration the best interests of the child as determined by reference to the “condition, means, needs and other circumstances of the child.” The “best interests” of the child is a legal test to be applied according to the evidence of the case, viewed objectively.
90Under subsection 17(9) of the Divorce Act, in making a variation order, the court must give effect to the principle that a child of the marriage should have as much contact with each former spouse is as consistent with the best interests of the child and, for that purpose, where the variation would grant custody of the child to a person who does not currently have custody, the court must take into consideration the willingness of that person to facilitate such contact. Despite the “maximum contact” principle is to be restricted if it conflicts with the child’s best interests. See Young v. Young, 1993 34 (SCC), [1993] 4 SCR 3, 1993.
91In determining custody and access matters under the Divorce Act, the court often considers the criteria in section 24(2) of the Children’s Law Reform Act (CLRA) to determine what is in the best interests of a child. That list of criteria is not exhaustive:
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
92Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child: see Gordon v. Gordon (1980), 1980 3616 (ON CA), 23 R.F.L. (2d) 266 (Ont. C.A.).
93The court has the power to order that the access of a parent be supervised. See s. 16(6) Divorce Act. The onus is on a person seeking to limit access to prove that the requested access restrictions are in the best interests of a child. See Lee v. Albrecht, supra; Hagen v. Muir, [2000] B.C.J. No. 786 (S.C.). Supervised access is not a permanent solution to access problems. Supervised access should only be used to alleviate a short-term problem and not to provide a long-term visitation arrangement. See M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437 (Ont. C.A.).
Custody
The Final Minutes of Settlement
94The Mother submits that, when the parties entered into the Final Minutes of Settlement, they agreed the best interests of the Children were that the Mother have sole custody. The Mother submits this court should respect the wishes of the parties evidenced in the Final Minutes of Settlement.
95The Court is not bound by an agreement between the parties regarding custody or access. Where the parties have reached an agreement, a court should respect the agreement unless the agreement is not in the child’s best interests. See Hartwick v. Stoneham (2000), 2000 22522 (ON SC), 8 R.F.L. (5th) 74 (Sup. Ct. J.).
96In the circumstances of this case, the deference given to parental decision regarding custody and access of the Children has no application:
a) It is clear the Mother withheld vital information pertaining to her plans to leave the country and deprive the Father of access to and a relationship with the Children. Had the Father known of the Mother’s plans, I am satisfied he would not have entered into the Final Minutes of Settlement. The Father’s decision was not “fully informed” and, therefore, could not possibly be considered to be “freely” made; and
b) More importantly, the actions of the Mother, including the surreptitious abduction of the Children to avoid Father’s access, her failure to properly provide medical care for the Children and disregarding the Children’s schooling needs, demonstrate a need to carefully review the Children’s current best interests.
97These concerns are sufficient to overcome any presumption that the Final Minutes of Settlement reflect the best interests of the Children.
98As for the Mother’s argument to maintain the status quo with her as the custodial parent. This submission has no merit in light of the abduction and the evidence before this court regarding the Children’s current medical, dental and emotional needs. Having this evidence, avoiding disruption to the Children’s lives, becomes less relevant. Besides, changing custody back to the Mother after 7 months, would also involve a disruption to the Children’s lives.
Care of the Children Historically
99The Mother submits that she has been the primary caretaker and sole provider of the Children since birth.
100For Zak, the evidence establishes that both parents were joint care givers and providers until separation. Thereafter, the Mother severely curtailed the Father’s access to and his relationship with Zak, thereby minimizing the Father’s role in Zak’s care.
101For Emaan, the Mother should not be rewarded for deliberately excluding the Father from participating in Emaan’s caregiving until 2016.
102I am not persuaded that the historical care for the Children assists in a significant manner to determine what is in the Children’s current best interests.
Care Of and Providing for the Children
103The focus of this court’s determination must be on the best interests of the Children at this time. I am satisfied that it is in the Children’s best interests that the Father have sole custody of the Children for the following reasons:
a) The Mother sought to deprive the Children of any access and a relationship with the Father. On the other hand, the Father, despite the abduction, continues to support a relationship between the Mother and the Children. This was evident in the spring of 2017 when the Father agreed to access provided it was supervised. The Father also agreed that the supervision could be performed by specified members of the Mother’s family. This was a generous accommodation to the Mother. It is only after the May 27, 2017 hair cutting incident that the Father insisted on Brayden Supervision for access visits. Even now, the Father is very generous with his proposed Mother’s access in the draft order filed at the commencement of trial;
b) The Mother did not effectively deal with the Children’s medical and dental needs when the Children were in her sole custody. To the contrary, the Father has and continues to actively deal with the Children’s medical, dental and emotional needs. I am satisfied that, since the time Father has had temporary sole custody of the Children, the Children’s needs are now being better dealt with in a very positive manner. The Children have done well under his care;
c) The Mother’s views on schooling are troubling. She takes the Children’s education lightly. Even if that were acceptable for young children in the lower grades to miss “months” of school, she testified that she had the same views for older children except in senior grades when writing tests;
d) The Mother’s actions of lying to the Children as to where they were – telling them they were in Vancouver when in fact they were in Dubai – is troubling. The Father has carefully tried to minimize the effect of the abduction events by dealing with the Mother’s actions in a very appropriate manner. I am satisfied that the Mother will lie to anyone, her lawyer, her family, the court under oath and her Children to suit her own personal needs and wants;
e) The Mother’s cutting of Zak’s hair caused enormous anguish to Zak. This was done by the Mother to get back at the Father because he obtained temporary custody of the Children. This conduct by the Mother did not put the Children’s interests first. I am satisfied that the Mother’s decision making is not focused on the Children but rather to get “back” at the Father;
f) The Mother’s future accommodations and employment are uncertain. She awaits sentencing. She is unemployed. She lives with her family. On the other hand, the Father has a stable home environment for the Children; and
g) The Father has a supportive new partner who is prepared to assist the Father in providing proper care and support for the Children.
104The Mother has produced a psychiatric report as was directed by Justice Wein. I have put little weight on this report as the underlying basis for the opinion is not set out and the psychiatrist was not available for cross examination. Further, when the report states that the Mother’s “recognition, insight and judgement is intact”, this conclusion is at serious odds with the evidence before this court and its findings as to the Mother’s conduct.
105I am satisfied that the Children’s best interests are served by granting the Father sole custody of the Children.
Access
106The Father is prepared to allow the Mother very generous access with the Children.
107The Father’s submission that the Mother’s access be supervised is reasonable, fair and appropriate in these circumstances. In addition to the Mother’s past conduct, this court remains concerned about the missing Pakistani passport that the Mother was to deliver but alleges she has no knowledge of its whereabouts.
108I am satisfied that the Father has met the onus that supervised access is necessary in these circumstances.
The Cost of Supervised Access
109The Mother has caused the need for supervised access.
110There is no reason that the Father should have to share in the supervision costs when he bears no fault or responsibility for having caused these costs.
111I recognize that the Mother is unemployed and the cost of supervised access is a very heavy financial burden. I should add that, according to the Mother, she had approximately $240,000 net proceeds of sale from her home, along with any other assets she might have. Until the Mother is employed, she will have to resort to her savings to pay for supervised access with the Children. The risk of allowing Mother to have unsupervised access is simply too great.
How long should the Supervised Access continue?
112Supervised access is not a long term solution.
113In my view, the issue of supervised access should return before this court, at the request of either party, any time after October 2018 without the need for demonstrating a material change in circumstances.
114At that time, the court can assess whether supervised access continues to be necessary and in the Children’s best interests or whether some other person can be entrusted to supervise the Children's access visits by the Mother.
CONCLUSION
115An order shall issue in the form of the Order attached to this Judgment.
116To be clear, the order requiring the Father to pay child support in the Final Order, which was temporarily suspended, is suspended permanently until further order of this court.
117The issue is what amount, if any, of child support should the Mother pay.
118As agreed by the parties, the parties shall attempt to resolve the issue of child support payable, if any, by the Mother. If the parties are unable to do so, counsel can contact the Trial Coordinator's Office to schedule a motion on this matter. There is no reason for me to be seized of this aspect.
COSTS
119Any 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 6 pages, with attached Costs Outline and any authorities.
120Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 6 pages with any authorities relied on attached.
121There shall be no reply submissions without leave.
Ricchetti, J.
Date: September 29, 2017
CITATION: Shaikh v. Matin, 2017 ONSC 5842
COURT FILE NO.: FS-14-4032-00/01
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
Ambreen Nisar Shaikh, Applicant
AND:
Mohammed Faraz Matin, Respondent (Applicant on Motion to Change)
ENDORSEMENT
Ricchetti, J.
Released: September 29, 2017
ONTARIO
Court File Number
Superior Court of Justice
FS-14-4032-00/01
(Name of Court)
at
7755 Hurontario Street, Brampton, ON, L6W 4T6
Form 25: Order (General)
(Court office address)
Temporary
Applicant(s)
x
Final
(Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any).
Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).
The Honourable
Ambreen Nisar SHAIKH 36 Echoridge Dr. Brampton ON L7A 3K8
Jerrod Grossman Grossman Family Law 3200 Dufferin Street; Suite 400 Toronto, Ontario M6A 3B2 Tel: 416-385-9653 Fax: 647-350-8653 jerrod@grossmanfamilylaw.com
Ricchetti, J.
Respondent(s)
Judge (Print or type name)
Full legal name & address for service: street, number, municipality, postal code telephone & fax numbers & e-mail address (if any).
Lawyer’s name & address: street, number, municipality, postal code, telephone & fax numbers & e-mail address (if any).
September 29, 2017
Date of order
Mohammed Faraz MATIN 63 Joymar Drive Mississauga, ON L5M 1G1
Harminder Dhillon Rebecca Ying DHILLON LAW P.C. 7895 Tranmere Drive, Suite 220 Mississauga, ON L5S 1V9 Tel: 905-673-7272 Fax: 905-673-7278 hdhillon@dhillonlaw.ca rebeccaying@dhillonlaw.ca
The court heard a~~n application/~~motion made by (name of person or persons)
The Respondent Father, Mohammed Faraz and the motion to vary a temporary custody order by the Mother, Ambreen Nisar Shaikh.
The following persons were in court (names of parties and lawyers in court)
The Applicant Mother, Ambreen Nisar Shaikh and her counsel, J. Grossman.
The Respondent Father, Mohammed Faraz Matin, and his counsel, R. Ying.
The court received evidence and heard submissions on behalf of (name or names)
The Applicant Mother, Ambreen Nisar Shaikh and the Respondent Father, Mohammed Faraz Matin.
THIS COURT ORDERS THAT:
The Order of Justice Lemon dated February 17, 2017 is hereby set aside in its entirety and replaced with this order.
Mohammed Faraz Matin, shall have sole custody of the Children, Zakaria Faraz Matin, born February 13, 2011; and Emaan Faraz Matin, born February 11, 2015.
Mohammed Faraz Matin, shall be at liberty to make all daily and major decisions regarding the Children’s health, education and religion.
Mohammed Faraz Matin, shall notify Ambreen Nisar Shaikh, of any major decisions regarding the Children’s health, education and religion, two (2) weeks before such a decision is made or acted upon, unless in the case of an emergency.
Ambreen Nisar Shaikh’s consent/signature for any and all Children’s identity documentation is hereby dispensed with.
All the Children’s identity and travel documentation, including passports and visas, shall remain with Mohammed Faraz Matin’s care and control at all times.
In the event of any medical emergency involving the Children, Mohammed Faraz Matin shall inform Ambreen Nisar Shaikh, as soon as reasonably possible in the context of the circumstances.
The habitual residence of the Children, Zakaria Faraz Matin, born February 13, 2011; and Emaan Faraz Matin, born February 11, 2015, shall be with Mohammed Faraz Matin.
Ambreen Nisar Shaikh, shall be at liberty to obtain a school/daycare calendars and attend parent-teacher interviews and school events separately from Mohammed Faraz Matin. Ambreen Nisar Shaikh, shall not attend at the school/daycare at any other times other than for parent-teacher interviews, school events and access times, unless by written Agreement between the Parties or Court Order.
Subject to any order in criminal proceedings, the Parties shall communicate via e-mail and/or electronic message (which shall be saved) regarding only issues related to the Children at the following addresses and numbers:
a. Respondent Father: 647-771-2136 farazmatin@gmail.com
b. Applicant Mother: 647-773-2137 Amber111shaikh@gmail.com
The Parties shall inform each other in writing within twenty-four (24) hours if their contact information changes.
Mohammed Faraz Matin, shall be at liberty to apply for and obtain the Children’s Canadian and Pakistani passports, and any other travel documents, such as travel visas, without informing or requiring written consent and/or signature by Ambreen Nisar Shaikh. The requirement of Ambreen Nisar Shaikh’s consent/signature for any and all travel documents shall be dispensed with.
Mohammed Faraz Matin, shall be at liberty to travel with the Children outside of Canada for a period not exceeding 3 weeks on thirty (30) days’ written notice to Ambreen Nisar Shaikh. Mohammed Faraz Matin shall provide Ambreen Nisa Shaikh with make up access for the periods during the proposed travel – which make up access may be before and after the travel.
Ambreen Nisar Shaikh’s consent/signature for any and all future travel by Mohammed Faraz Matin, is hereby dispensed with.
Ambreen Nisar Shaikh, shall not remove the Children, Zakaria Faraz Matin, born February 13, 2011; and Emaan Faraz Matin, born February 11, 2015, from the Greater Toronto Area, without a Court Order.
Neither Parent shall speak disparagingly about the other parent or their family to the Children. Further, neither Parent shall discuss family law litigation to or in the presence of the Children.
Ambreen Nisar Shaikh, may, at her discretion, have supervised access to the Children, Zakaria Faraz Matin, born February 13, 2011; and Emaan Faraz Matin, born February 11, 2015, on the following basis:
a. All costs associated with the requirement that Ambreen Nisar Shaikh’s access be supervised shall be borne by Ambreen Nisar Shaikh exclusively;
b. Alternate weekends, Saturday and Sunday, from 10:00 a.m. to 6:00 p.m., commencing October 7, 2017.
c. Ambreen Nisar Shaikh, shall have telephone or video calling access to the Children, at 7:00 p.m. on Tuesdays and Thursdays (for up to 15 minutes). Ambreen Nisar Shaikh, shall provide a telephone number and video calling information forthwith and shall update Mohammed Faraz Matin, if her telephone number and video calling information changes.
d. Ambreen Nisar Shaikh shall have supervised access on Mother’s Day and Mother’s Birthday from 10:00 a.m. to 6:00 p.m., if not otherwise with the Applicant Mother, Ambreen Nisar Shaikh.
e. Ambreen Nisar Shaikh shall have supervised access for three consecutive days from 10:00 a.m. to 6:00 p.m. during each of the school Christmas break and the school March break. The parties shall agree on which dates access shall occur. If the parties are unable to agree, the Father shall decide which dates the supervised access for these periods shall occur.
f. The Respondent Father, Mohammed Faraz Matin, shall have the Children on Father’s Day and Father’s Birthday from 10:00 a.m. to 6:00 p.m., if not otherwise with him.
g. Ambreen Nisar Shaikh shall have supervised access: (i) In alternate years starting in 2018, Eid Al Fitr from 9:00 a.m. to 4:00 p.m.; and (ii) In alternate years starting in 2019, Eid Al Adha from 9:00 a.m. to 4:00 p.m.
h. In the event, Ambreen Nisar Shaikh determines not to exercise her supervised access times set out above, she shall notify the Father in writing at least 48 hours prior to the scheduled access time.
All of the Applicant Mother, Ambreen Nisar Shaikh’s access shall be supervised by Brayden Supervision Services or any other professional supervision service agreed upon by the Parties or any other person approved in writing in advance by the Father.
Supervision of the Applicant Mother, Ambreen Nisar Shaikh’s access shall be reviewed by the Parties in October 2018 without the need to establish a material change in circumstances. At that time, Nisar Shaikh may make an application to this court seeking the removal of the requirement for “supervision” for her access with the Children or to provide for supervision by other third party services and/or persons.
Both Parties shall make best efforts to accommodate each other’s request for changes to access for special family events, weddings, religious functions and social occasions.
Ambreen Nisar Shaikh, shall be responsible for all pick-up and drop-off for access from a Tim Hortons near to Mohammed Faraz Matin’s residence, unless otherwise expressly agreed to by the Parties in writing. The pickup and drop offs must include the presence of a representative of Brayden Supervision (or such other third party service provider or person as may be approved by the Father in writing in advance).
Any access change must be expressly agreed to by the Parties in writing.
If the parties are unable to agree on the amount of child support the Mother must pay, either party may schedule a motion for judicial determination of the appropriate amount.
This court reserves on the issue of costs.
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Date of signature
Signature of judge or clerk of the court
