CITATION: Hill v. Fahmy, 2017 ONSC 6331
COURT FILE NO.: 3785/17
DATE: 2017-10-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANNY HILL
Applicant
– and –
VERONIQUE FAHMY
Respondent
James Marks, for the Applicant
Paul Skeggs, for the Respondent
HEARD: October 10, 2017
GAREAU J.
REASONS ON MOTION
BACKGROUND
[1] Before the court there are various motions brought by the parties concerning their children, Shannon Hill, born June 26, 2010, and Natasha Hill, born September 3, 2016.
[2] The parties were married on June 28, 2003 and separated as of June 26, 2017. Throughout the course of the marriage, the parties resided in numerous communities, essentially to allow the applicant to finish his medical degree and to pursue a speciality in hematology. The applicant is a fully licenced physician practicing in Sault Ste. Marie, Ontario.
[3] The parties settled in Sault Ste. Marie, Ontario five years ago. The child Shannon was two years of age at the time. The youngest child, Natasha, was born in Sault Ste. Marie, Ontario.
[4] The applicant, Danny Hill, commenced the application before the court on June 19, 2017. It was served on the respondent on June 26, 2017, which is how she places the date of separation. The respondent’s position is that she was unaware that the applicant intended on separating from her until she was served with the court application.
[5] The applicant brought a motion on an urgent basis alleging that the respondent planned to move the children of the marriage to Montreal, Quebec, and had arranged for airline flights for her children and herself for that purpose. That motion was heard ex parte and the court granted an order on June 26, 2017 that the children Shannon and Natasha not be removed from the City of Sault Ste. Marie, Ontario until further order of the court.
[6] A copy of that order was ultimately served on the respondent and she retained counsel to represent her in this proceeding. The matter was before the court again on July 6, 2017 at which time the court made the following endorsement:
The motions at Tab 4, 5, and 7 of the continuing record are adjourned to July 20, 2017 at 10:00 a.m.
Counsel for the parties have an agreement in principle that the children are to be shared by the parties over the summer holiday months with their time to be divided between Sault Ste. Marie, Ontario and Montreal, Quebec.
[7] In fact, Shannon and Natasha divided their time during the months of July and August between Sault Ste. Marie and Montreal. The exact times when Shannon and Natasha were to be in the care of each parent is set out in the unsigned consent at Volume 1, Tab 16, Exhibit “A” in the continuing record.
[8] There is disagreement between the parties as to what was to occur with respect to the residency of Shannon and Natasha once the fall of 2017 came. The mother’s position is that there was a plan in place that the children would reside permanently in Montreal, Quebec. The father disagrees with this contention and takes the position that he never agreed to the children residing in Montreal and that his words and actions clearly indicate that he wanted both children residing in Sault Ste. Marie, Ontario. Regardless of the divergent position of the parties, there is no agreement as to where the children should reside or with which parent and the court must decide, for the parties, what is in the best interest of Shannon and Natasha.
[9] Shannon is presently residing with the applicant father in Sault Ste. Marie and has done so since August 13, 2017. Natasha is presently residing with the respondent mother in Montreal, Quebec. At the time of the hearing of this matter (October 10, 2017) Natasha was last in the care of her father during the Labour Day weekend. On October 10, 2017, this court made an order that Natasha be in the care of her father from October 21, 2017 to October 30, 2017.
ISSUES
(a) Should the children reside in Sault Ste. Marie, Ontario or Montreal, Quebec pending trial?
[10] Both parents are in agreement that Shannon and Natasha should reside together and not be separated. That being the case, the existing arrangement must come to an end and both children should either reside in Sault Ste. Marie or Montreal pending trial.
[11] With respect to the law governing disputes of this nature, it is useful to reiterate the observations made at paragraph 21 in Abbot-Ewen. v. Ewen, 86 R.F.L. (6) 428:
The law is very clear that the overriding principle in cases of this nature is the best interest of the child. Many of the cases which deal with “mobility” issues deal with the variation of court orders in which a material change in circumstances affecting the child must first be established. Once this threshold has been met, the court is entitled to embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. (See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC))
[12] As indicated by Weller, J.A. in Woodhouse v. Woodhouse (1996), 136 O.L.R. (4th) 577 (Ont. C.A.) at page 597:
In Gordon, the Supreme Court reiterated that the best interest of the child governs relocation disputes. Ultimately, the only issue is what is in the best interest of the child. In determining this, careful attention should be paid to the potential negative effects on the child should the custodial parent be restricted from relocating. Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate.
[13] The respondent mother takes the position that the children should reside in Montreal. The end result of that would be that both children would be in her care as the applicant is unable to relocate from Sault Ste. Marie at the present time due to his professional obligations and the difficulty in changing communities.
[14] Presently, the mother resides in the home of her parents in Dorval, Quebec, a suburb of Montreal. In that environment the respondent has close family ties and support. Paragraphs 5 to 10 inclusive of the affidavit of the respondent’s father, Sameh Fahmy, sworn on September 20, 2017, details the support system available to the respondent in Montreal and the close family connections that she has there. The respondent has her parents, her siblings, an aunt and nieces and nephews, all in close proximity if she continues to reside in Montreal. Undoubtedly, Shannon and Natasha would benefit from these family connections as well.
[15] The respondent feels that there are no opportunities for her in Sault Ste. Marie. She feels isolated in that community. As described by Sameh Fahmy in paragraph 27 of his affidavit sworn on September 20, 2017:
During the five years in Sault Ste. Marie, Veronique informed us and we verily believed, she began to experience more and more solitude and we felt compelled to talk to her every day. She had no friends or family. There was no work available or any college with faculties with professional designations or other areas of interest to Veronique.
[16] It is a position of the respondent that she has made significant sacrifices in her own work career on behalf of the applicant which enabled him to finish his education and medical specialization. The respondent is attending a paralegal program at O’Sullivan College in Montreal which will occupy her for over two years at which time she hopes to find employment. Attached as Exhibit “E” to the affidavit of the respondent sworn on September 22, 2017 (Volume 2, Tab 8 of the continuing record) is a summary of the marks achieved by the respondent as of September 19, 2017. This indicates that the respondent is applying herself diligently and is progressing well in her studies at O’Sullivan College.
[17] The applicant proposes that both children reside in Sault Ste. Marie, Ontario. This is the community where Natasha has resided since her birth. Shannon has lived in Sault Ste. Marie the vast majority of her life. Shannon is in grade two at a school which is familiar to her with students and educators who are familiar with her. Shannon has a routine in Sault Ste. Marie which involves friends and activities. Shannon participates in swimming, gymnastics and martial arts programs in Sault Ste. Marie. Shannon has a rhythm of life that she has developed in Sault Ste. Marie and which would be disrupted if she relocated to Montreal, Quebec.
[18] Although there are extended family members available to Shannon and Natasha in Montreal, including their maternal grandparents, it is equally accurate to say that the children have extended family members in Sault Ste. Marie who are also involved in their care, including paternal grandparents and aunts and uncles. Shannon’s closest friend is her cousin Zoey who resides in Sault Ste. Marie and who she would be separated from if she was required to relocate to Montreal.
[19] It is undoubtedly true that the respondent is more comfortable residing in Montreal and there are more opportunities available for her there than in Sault Ste. Marie, Although it can be said that it is best for the mother to reside in Montreal, in my view, this cannot be said for Shannon and Natasha.
[20] The court should not primarily consider what is best for the parents, rather the court’s focus should be and must be what is in the best interest of Shannon and Natasha. Considering the totality of the evidence, I cannot conclude that it is best for Shannon and Natasha to reside in Montreal pending the trial of this matter. While Natasha is very young without any substantial connection to Sault Ste. Marie apart from it being her place of birth, the same cannot be said about the oldest child, Shannon. Shannon is 7 years of age. She has a real and substantial connection to Sault Ste. Marie. It is where she has predominantly lived since her birth. She has memories there. She has school there and friends at school. She has activities in Sault Ste. Marie and her best friend resides there. Given the turmoil that must obviously be present currently in Shannon’s life due to the separation of her parents, I cannot imagine how a further uprooting by changing her residence could be beneficial to her or in her best interest. My view is that changing the residency of Shannon at this point in time will only impact negatively on her and the changes that she must endure should be kept to a minimum given what she has already experienced in the separation of her family. Since it has been agreed by the parents that both girls should be kept together, it follows that what is best for Shannon is also best for Natasha.
[21] Accordingly, there will be an interim order that the residence of Shannon Hill, born June 25, 2010, and Natasha Hill, born September 3, 2016, shall be in Sault Ste. Marie, Ontario pending the trial of this matter.
(b) With which parent should Shannon and Natasha reside pending trial?
[22] Both the applicant and the respondent give completely different versions with respect to their involvement with Shannon and Natasha and what their home life was like when they resided together.
[23] Perhaps the most compelling and useful information available to the court in assessing the issue of interim custody is the records from the involvement of the Children’s Aid Society of Algoma pertaining to Shannon, Natasha, the applicant and respondent.
[24] Despite the belief of the mother that she has been set up in some fashion by the father with respect to the observations made by the Society with respect to her, the involvement of the Society was initiated by the comments made by the child Shannon, first to a swimming instruction (November 21, 2016) and then to a teacher (May 17, 2017) and not initiated by the applicant father.
[25] The comments reported by Mona Lacroix, a teacher at Notre Dame School made to her by Shannon, which appear at pages 41 and 42 of the Society’s records (Volume 3, Tab 7, Exhibit “A” of the continuing record) are extremely telling and indicate the following:
Mona Lacroix, a teacher at Notre Dame contacted the Society to report concerns related to the emotional harm of Shannon Hill, age 6 and ongoing domestic arguing between the parents.
Ms. Lacroix reported that there have been incidents throughout this entire school year and that they are escalating.
Ms. Lacroix reported the following:
that the child is reporting constant arguing between the parents Danny and Veronique;
that the mother does not provide much hands on care to Shannon or her younger sister Natasha;
that there have been a series of nannies in the home but that they have been let go;
that for a while an aunt was providing care to the children;
that Shannon has reported that her mother does not cook or clean, is often sleeping or fighting with her father;
that Ms. Lacroix has had an ongoing problem with the child’s agenda not being signed and homework not being completed;
that she did meet with the father and things had improved for a while;
that she has never been able to engage the mother in attending the school to discuss the child and her concerns, however, the mother agreed to talk on the telephone once;
that the father did attend and that was when things began to improve slightly;
that the child expresses a lot of sadness, emotion and frustration with her mother;
that Ms. Lacroix has been putting the child’s agenda and homework in a plastic bag with notes asking for the papers to be signed but they never come back and often the child does not bring back her homework or the agenda;
that the homework is not being completed;
Ms. Lacroix reported that the father came at Christmas time and met with her and advised her that the mother was not engaged with the children;
that the child’s emotional state appeared to improve and she talked about her father and the things improved, the agenda was getting signed and the work done and Shannon was happy;
that Shannon reported that her father was cooking meals etc.
that Shannon stated that all her mother does is sleep now
that today she reported that her mother kicked her after she hit her mother when her mother did not sign her agenda or give her the plastic bag with her things in it;
that she missed her bus and her father had to bring her to school;
that her mother leaves her and her sister alone while she goes to the neighbors, Natasha is not yet a year old;
that her mother and father are always fighting and yelling and mommy steals daddy’s money;
that Ms. Lacroix advised that Shannon refused to give her mother the card and mother’s day gift that she made and scratched her mother’s name out and put her father’s name on the gift and card;
that Shannon has told Ms. Lacroix that when she was born the doctor tried to kill her and her mother and that the mother’s lawyer keeps working on it;
that Shannon reported that the nanny was fired because she would not clean her mother’s poopy and bloody underwear anymore;
that the nanny could not work with her mother anymore;
that Ms. Lacroix stated that when Shannon first came to the school in grade one she had not developed many fine motor skills like cutting and working with arts and crafts;
that Shannon draws pictures of her family with sad faces;
that Shannon does not feel that her mother cares about her and that her daddy does everything.
In summary the referral source is concerned about the child’s emotional well-being, she is being exposed to yelling and fighting by the parents, and has complained that the mother does not like her and does not engage with her, and kicked her this morning as well as the mother leaves her with her sister alone in the house. There are no marks on the child.
[26] The CAS note at page 45 indicates that Shannon was interviewed at school by a child protection worker who noted that:
The child Shannon was interviewed at school and reiterated the majority of the report without being prompted. She stated that her mother lies, does not engage with her, sleeps all day and that her father tends to most things in the home. She spoke positively about her father and the previous line in nanny but her demeanor changed when speaking about her mother; she presented as being angry.
[27] The records of the Children’s Aid Society are replete with references to Ms. Fahmy being uncooperative and resistant to the involvement of the Society. As noted on page 49 of the CAS records:
The mother denied the majority of the reported concerns and presented as being hostile, combative and difficult to engage in. She felt that the report was offensive, defamatory and inappropriate; she was surprised by the allegations.
[28] The CAS records go on to state at page 49:
The mother questioned the Society and raised her voice, was vulgar and engaged in conflict with her husband, in the presence of the children, during the home visit.
[29] As noted in the case note of Ami Madsen, a child protection worker with the Children’s Aid Society at page 79 of the records of the Society, “The mother was very combative and curt with me where Dr. Hill was polite and engaged well.” On page 81 of the society’s records it was noted that “the father was cooperative in the development of the safety intervention plan.
[30] Shannon and Natasha were ultimately deemed by the Society to be safe with continued intervention by the Society. In the “safety threats” section, on page 42 and 43 of the safety assessment of the CAS, the domestic violence in the home was noted as a safety threat as was the “mother’s lack of attention/care towards 6-year-old Shannon.”
[31] When it was suggested that both or one of the children would be residing in the Province of Quebec, the Children’s Aid Society of Algoma did not opt to close its file, rather it arranged for the transfer of the child protection file to a society in Dorval, Quebec. Ongoing child protection concerns existed with Shannon and Natasha in the care of their mother. As noted in the records, “given the continued concerns regarding the mother’s capacity, a referral has been made to Quebec for Child Welfare Services”. The supervision case note, dated August 13, 2017, makes the following observations and comments:
CPW attempted to schedule a time to meet with the mother and family however the mother was very hostile and refused to engage with CPW or schedule any contact unless CPW would identify the referral source.
Upon meeting with the parents at the home and also observing the children with the parents, CPW remains concerned regarding the mother’s behaviour and lack of insight into her own behaviour.
She was hostile towards CPW/argumentative and denied all concerns even when confronted by her husband regarding her behaviour – she engaged in yelling behaviour in the presence of CPW and children without recognizing how this was inappropriate.
The mother suggested the referral concerns were made maliciously by people who are jealous of her life and that she is married to a doctor – she was dismissive of the information reported by her daughter suggesting that the CPW lead the child to make false statements.
[32] It is significant that in the supervision case note dated August 13, 2017, it is noted that “a high level of concern continues to exist regarding the mother’s behaviour and mental health”.
[33] It may be true that the mother has a support system in Montreal, Quebec, particularly from her family, but the evidence causes me concerns about the level with which that support system enables the mother’s negative behaviour. In particular, the mother’s father, Samey Fahmy, made several calls to workers at the Children’s Aid Society of Algoma in support of his daughter’s position. As indicated in the case note dated August 14, 2017 of Ami Madsen, Mr. Fahmy took an aggressive position during that call, questioning the actions of the Society and why the Children’s Aid Society still had an open file.
As noted by Ms. Madsen, “Mr. Fahmy presented as being impatient, argumentative and unsatisfied with any of my responses to his proposed questions. Mr. Fahmy questioned my conduct and that of Society during this investigation along with the previous occurrence for which the family was involved”.
[34] Sameh Fahmy filed an affidavit in this proceeding, which was sworn on September 20, 2017, and is found at Tab 9, Volume 2, of the continuing record. The tenor of that affidavit is to portray the applicant in a negative light as a person. Although there is comments in this affidavit about Dr. Hill as a person there is little to be found by way of negative comments about Dr. Hill as a parent. In fact, despite the numerous affidavits filed in this proceeding to date, there is little evidence that impacts negatively about the applicant as a parent. The same cannot be said about the respondent.
[35] The records of the Children’s Aid Society of Algoma indicate that the mother has little insight about her deficiencies as a parent and no desire to rectify these deficiencies, which would in the end undoubtedly be beneficial to Shannon and Natasha. The evidence shows a reluctance, if not a resentment on the part of the mother for intervention or assistance by third parties in her family life or for the benefit of her two children. The evidence is clear that the father is far more receptive to third party intervention and meaningful discussion about difficulties within his family unit and how this may negatively impact Shannon and Natasha than the mother is.
[36] The father has put a viable plan in place for the care of Shannon and Natasha. He is residing in the matrimonial home, which is a familiar environment for the children, especially Shannon. He has modified his hours of work to clinic hours only, which are 8:00 a.m. to 3:30 p.m., Monday to Friday, with weekends off. This will increase the amount of time that he is available to care for Shannon and Natasha. Dr. Hill has a nanny in his home to assist with the children, particularly Natasha, when he is required to be at work. His hours of work are close in time to when Shannon will be at school. Both children have a particularized routine which the father has identified if they reside with him in the matrimonial home.
[37] I am cognizant of the fact that the mother intends on moving back to Sault Ste. Marie, Ontario if both children reside there and that she is offering herself as a full time mother who can provide full time care to both Shannon and Natasha. All things being equal, it would be preferable that the children, especially Natasha, is cared for by her mother rather than a live-in nanny while the father is at work. However, all things are not equal in the case at bar. Given what is reported by the Children’s Aid Society of Algoma during its investigation and involvement with this family, I have concerns about the emotional wellbeing of Shannon and Natasha if they are in the full time care of their mother. On the evidence before me, I agree with the Society’s conclusion that “a high level of concern continues to exist regarding the mother’s behaviour and mental health”.
[38] While there are numerous concerns and red flags raised about the mother’s ability to care for Shannon and Natasha, no such concerns exist with respect to the applicant, as a parent, or with respect to his ability to provide proper care to Shannon and Natasha and to keep them safe.
[39] On the evidence before the court, it is not difficult to conclude that it is in the best interest of Shannon and Natasha that they be in the custody and care of the applicant father. Accordingly, I am awarding the applicant, Dr. Danny Hill, interim custody of Shannon Elizabeth Hill, born June 25, 2010, and Natasha Isabelle Hill, born September 3, 2016. The relationship between the parties is presently too acrimonious to make an order of joint or shared custody with respect to the children.
[40] On October 10, 2017, I made an order that the applicant have Natasha in his care from October 21, 2017 to October 30, 2017 at which time he was to return Natasha to the care of her mother in Dorval, Quebec. I am presuming that Natasha is now in the care of the applicant and will be at the time this decision is released. Given the order granting the applicant father interim custody of Natasha, the order of October 10, 2017 is varied with the provision for the return of Natasha to the respondent’s care on October 30, 2017 being rescinded.
[41] Given the court’s decision on the issue of interim custody, the applicant is awarded interim exclusive possession of the matrimonial home located at 175 River Road, Sault Ste. Marie, Ontario and the contents of that home. It is in the best interest of Shannon and Natasha that they continue to reside in the matrimonial home, which is a home that is familiar to them and that is fully set up for them.
[42] With respect to the issue of access, there is insufficient evidence before the court to make an access order at this time. The evidence with respect to the respondent’s living arrangement and proposal of care for Shannon and Natasha is predicated on her living in Dorval, Quebec with her parents. Her counsel indicated in argument that if Natasha’s residence was required to be in Sault Ste. Marie that the respondent would also move to Sault Ste. Marie to be closer to her children. Currently there are no details as to where the respondent will be residing in Sault Ste. Marie and the suitability of her accommodations as it pertains to visits with Shannon and Natasha. At such time as the respondent can provide to the court particulars of her residence in Sault Ste. Marie, Ontario, and her plans for the care of the children while in Sault Ste. Marie, then the matter of the respondent’s access with Shannon and Natasha can be considered by the court.
[43] Given the fact that Shannon and Natasha are going to be residing with the applicant father pending trial, and given the fact that the respondent mother is without income, the issue of child support is moot. With respect to spousal support, in my endorsement dated October 10, 2017 I have ordered the parties to exchange updated financial statements by November 3, 2017, which should allow a motion for interim spousal support to proceed in due course.
[44] As to the issue of costs of the motion for interim custody, my inclination would be to order no costs given the respective financial positions of the parties. Having said that, if the parties wish to address costs they may do so by way of written submissions, no longer than five typed pages, excluding bills of cost and offers to settle, to be received no later than November 15, 2017.
Gareau J.
Released: October 24, 2017
CITATION: Hill v. Fahmy, 2017 ONSC 6331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANNY HILL
- and –
VERONIQUE FAHMY
REASONS ON MOTION
Gareau J.
Released: October 24, 2017