Court File and Parties

Court File No.: FS-18-91705 Date: 2018-07-17 Superior Court of Justice - Ontario

Re: Aftab Sheikh v. Aysha Muzaffar

Before: Coroza J.

Counsel: Daniel Simard, for the Applicant Aftab Sheikh Malerie Rose, for the Respondent Aysha Muzaffar

Heard: June 15, 2018

Endorsement

[1] Aftab Sheikh (Applicant father) and Aysha Muzaffar (Respondent mother) have two children Idris (4 years old) and Esa (3 years old).

[2] On March 1, 2018, Aftab was charged with assaulting Aysha. As a result of the charge, he moved out of the matrimonial home.

[3] On March 15, 2018, Aftab brought an emergency motion before Andre J. for access to the children.

[4] The parties consented to a parenting schedule and Andre J. granted Aftab access to the children on the following days:

a) On alternating weekends from Friday afternoon (pick up at school/daycare) to Monday morning (drop off at daycare/school); b) Every Tuesday afternoon (pick up at school/daycare) to Thursday morning (drop off at daycare/school).

Aysha's Motion

[5] Aysha now brings a motion to vary the parenting schedule. Aysha claims that the current schedule is not working since it is disruptive to the children. They are being shuttled back and forth between Aysha’s and Aftab’s households during the week and on alternate weekends.

[6] Aysha requests that I order that the children's primary residence be with her and that Aftab's weekly overnight access with the children should be scaled back to ensure that the children do not have as many transitions during the week. Aysha proposes that Aftab have access to the children every other weekend, but during the week that does not precede his access weekend, Aftab should only have the children each Thursday afternoon (pick up at school/camp) until Friday morning (drop off at school, camp, or Aysha's parents home).

[7] Aysha also argues that Aftab is oppressive, racist, sexist and homophobic. She also accuses Aftab of holding extremist religious views and does not want her children exposed to his views. Aysha argues that a s. 30 assessment under the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"), is necessary to assess both the needs of the children and the parties' ability and willingness to satisfy those needs. If I order the assessment and the subsequent report to the Court, the costs shall be apportioned to the parties.

Aftab's Position

[8] Aftab is opposed to the motion.

[9] First, Aftab argues that there is no material change in circumstances and, absent that change, I should not vary Andre J.'s order.

[10] Second, Aftab denies all of Aysha's assertions made regarding his behaviour or religious views.

[11] Third, Aftab argues that Aysha is unable to point to any evidence that suggests the current schedule is disruptive to the children. To support his position, he has filed the affidavit of his friend Mr. Fawad Shaikh.

[12] Finally, Aftab argues that a s. 30 report is completely unnecessary and that there is no basis to order a report.

The Issues

[13] This motion requires resolution of the following two issues:

1. Should I vary the parenting schedule ordered by Andre J.?
2. Should I order a section 30 assessment under the CLRA?

Threshold Issue: Material Change in Circumstances?

[14] Before I turn to my analysis of these two issues, I will deal with a preliminary matter. Aftab argues that as a threshold issue, before I can consider varying the current parenting schedule, Aysha must demonstrate that there has been a material change in circumstances.

[15] I disagree with Aftab.

[16] In, Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, [2013] W.D.F.L. 699, Chappell J. held that the test for varying a "temporary temporary without prejudice" order is not the material change in circumstances test. Her Honour held at para. 22 that as a matter of practice, such orders are often made at the early stage of family law proceedings to address very pressing issues and to provide some measure of order and stability to the parties' immediate affairs.

[17] Chappell J. went on to observe that these orders are typically made at a time of high stress, and before the parties or their counsel have had a full opportunity to assess the parties' respective financial situations or to formulate a clear plan for the parties to move forward with their separate lives. The evidentiary record upon which the court makes such orders is therefore typically incomplete.

[18] At para. 23, Her Honour concluded that the intention of "temporary temporary without prejudice" orders is to create an interim solution for an even shorter period of time than from the date of the order until trial. As such, in cases where a party seeks to vary a temporary temporary without prejudice order, the court should reconsider the issue as a hearing de novo on the more complete record before the court, without the necessity of the moving party having to establish a material change in circumstances.

[19] In my view, Chappell J.'s comments apply to this motion. I acknowledge that Andre J. did not specifically call his order a "temporary temporary without prejudice" order, however, a plain reading of the order suggests that is exactly what Andre J. contemplated.

[20] First, His Honour referred to the motion as an "emergency".

[21] Second, His Honour stated that the order he was making was "on a strictly without prejudice basis".

[22] Third, Andre J. ordered that the parties should proceed to a case conference to review the schedule. It is clear that Andre J. wanted this interim order reviewed in the near future.

[23] Finally, His Honour reserved the issue of costs of the motion to the judge hearing any follow up interim motion. If Andre J. had intended his order to be anything other than an emergency motion based on an uncompleted record, he would not have ordered that costs of the motion be reserved to a judge hearing a subsequent motion. In my view, Andre J. intended that a judge hearing a subsequent motion relating to the same issues but on a more complete record would be able to assess the costs from the outset of the litigation. This implies that the subsequent motion would result in a temporary order while Andre J.'s order would qualify as a temporary temporary order.

[24] I find that Andre J.'s order was in essence a temporary temporary order and Aysha does not have to demonstrate that there has been a material change in circumstances before I can consider varying Andre J.'s order.

[25] I now turn to the first issue.

Issue 1: Should I vary the parenting schedule ordered by Andre J.?

[26] I am not persuaded that Andre J.'s schedule should be altered.

[27] An interim order should only be varied on an interim basis if the evidence establishes clearly and unequivocally that the present arrangement is not in the children's best interests while the proposed arrangement would be: Green v. Cairns, at para. 14.

[28] The Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3, at pp. 47, 99; and Gordon v. Goertz, [1996] 2 S.C.R. 27, at p. 46, held that children's best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the children.

[29] The children's best interests are determined pursuant to s. 24(2) of the CLRA. The section states:

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, 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 child's care and upbringing;

(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) the plan proposed by each person applying for custody of or access to the child 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) any familial relationship between the child and each person who is a party to the application.

[30] These factors are not watertight compartments. The strength of some of the s. 24(2) factors may compensate for the weaknesses of others. I must not lose sight that the overarching principle is the best interests of the children.

Factor (a): Love, Affection and Emotional Ties.

[31] This factor is neutral in this case. Aysha claims the children are more attached to her while Aftab claims that the children are more attached to him. However, in the face of competing affidavits, I have no independent objective evidence that suggests that the children are more attached to one parent over the other.

Factor (b): Child's Views and Preferences.

[32] This too is a neutral factor in the case at bar. One of the difficulties in this motion is that the children are infants. Given the young ages of the children, their views cannot readily be ascertained. The court has not received, and arguably cannot ascertain, evidence regarding the children's views from the children themselves. Each party has attempted to set out the children's views by explaining that the children exhibit behaviours such as crying and anxiety when they are exchanged.

[33] It is very difficult for me to make a finding based on this evidence. The proffered evidence regarding the children's views has been filtered through the lens of each party's opposing views and opinions. The affidavits are diametrically opposed and each party’s assertions have not been tested. I am not in a position to make any definite conclusions on the views of the children based on their affidavits.

Factor (c): Length of Time Children have lived in a stable home environment.

[34] This factor favours Aysha's proposal because, up until March, the children were living in one home. With the conflict that has arisen between the Aysha and Aftab, the home environment is unstable because both parents are not living together. Out of necessity, Andre J.'s order removes the children from their home for a period of time each week and on alternating weekends.

Factor (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.

[35] This is a neutral factor because there is evidence that both parents are willing to provide the children with guidance, education and the necessities of life.

[36] Aysha has raised the issue of religion and Islamic extremism in her affidavit. She argues that Aftab would like to enroll the children in an Islamic camp. She has concerns that the children may be exposed to harmful ideas at the camp and from living with Aftab. I have serious reservations about this submission. Indeed, it seems to me that there may very well be an element of fear mongering and an appeal to Islamaphobia behind these assertions. There is no independent or objective evidence on this record to suggest that Aftab or the camp would expose the children to harmful ideas and ideologies.

Factors (e) to (h)

[37] Aysha's primary argument is that the schedule is very disruptive to the children. This argument addresses factors (e) to (h). Her position is that the children should live with her as the primary caregiver so that she can provide consistency and a reasonable schedule.

[38] I have considered this argument carefully. However, I am not persuaded that these factors favour Aysha on this motion.

[39] In my view, Aysha has not satisfied me that I should vary the schedule for the following reasons.

[40] First, although I acknowledge it is disruptive for children to be regularly shuttled back and forth between two homes, this is not a situation where the children are being shuttled between two different cities with long travel times. Although Aftab lives in another part of Brampton, I am not satisfied that travelling to another part of Brampton for pickups and drop-offs is so disruptive to the children that it is harmful to them.

[41] Second, Aysha's has commented that the children's behaviour has regressed since Andre J.’s made his order. First, she describes that the children have difficulty leaving her. Second, she also asserts that the children have regressed with respect to their "potty" training.

[42] There is no evidence that would lead me to conclude that any of this regressive behaviour is occurring as a result of the current parenting schedule. It seems to me that much of the behaviour described in Aysha's affidavit could describe many infants who are not the subject of access schedules. Nor is there any suggestion that the behaviour she complains of has been happening on a prolonged or consistent basis. Indeed, Aysha appears to suggest that a parenting schedule that has only been in place for three months is the cause of this behaviour. I would reject that suggestion because there is no evidence to support this alleged causal link between the access arrangement and the regressive behaviour.

[43] Third, the law is clear that children have a right to maximum contact with both of their parents as long as it is in their best interests: Gordon v. Goertz, at paras. 24-25. The maximum contact principle is an important factor in determining the child's best interests: Reeves v. Brand, 2018 ONCA 263, 2018 CarswellOnt 3994, at paras. 21-22. In my view, Andre J.'s order recognizes the maximum contact principle and there is no reason why it should be varied in the absence of any cogent evidence that the current schedule is adversely affecting the children.

[44] Aysha suggests that her proposed changes to the current parenting schedule would make daily life easier for the children. I agree that her proposal may make it easier for Aysha to parent and go about her daily routine, however, my focus must be on the best interests of the children which, in this case, includes maximizing contact between the children and both parents with minimal disruption. I am satisfied that the current parenting schedule accomplishes this and I would not vary Andre J.'s order.

[45] Pursuant to the above reasons, after weighing and balancing the factors in CLRA, s. 24(2), the present parenting arrangement is in the children's best interests and should not be altered on an interim basis.

[46] I should also mention that in assessing the issues on this motion, I ignore the affidavit of Mr. Fawad Shaikh. In his affidavit, Mr. Shaikh has asserted that he has reviewed Aftab's affidavit and purports to agree with everything in that affidavit. Mr. Shaikh goes on to describe his views of Aftab’s relationship with Aysha and the children. He also then provides his wife's views of the situation.

[47] I did not find Mr. Shaikh's affidavit to be reliable.

[48] First, substantial portions of the affidavit are based on Mr. Shaikh's commentary and review of Aftab's affidavit. As such, the possibility of tainting is a live issue. By having Mr. Shaikh review Aftab's affidavit and then commenting on it for the court, Mr. Shaikh's affidavit is not helpful and nor is it independent.

[49] Second, Mr. Shaikh's evidence is that Aftab and Aysha's relationship was positive because he has observed Aftab and Aysha interact hundreds of times and he has never observed Aftab to be violent. However, it seems to me that Aysha's allegations about Aftab’s anger and aggression towards her relate to things that have been said or done in private. It is irrelevant that Aftab behaved well in public. Aysha's point is that she was suffering privately and, as such, Mr. Shaikh's evidence is not relevant to that issue.

[50] Finally, portions of Mr. Shaikh's affidavit are clearly inadmissible hearsay. For example, Mr. Shaikh asserts that his wife has told him that at no point has Aysha suggested or implied that Aftab was abusive or aggressive in their conversations. Mr. Shaikh's wife did not file an affidavit. I cannot rely on these assertions.

Issue 2: Should a s. 30 assessment be ordered?

[51] I acknowledge this is a high conflict file. Aysha claims that Aftab is becoming a fanatical "Islamic" extremist and holds homophobic, bigoted and sexist views.

[52] Aftab claims that these allegations are unfounded. He claims that Aysha is attempting, as part of a litigation strategy, to gain an edge by misleading the Court with these allegations.

[53] To be blunt, I am not impressed with the approach that each party has taken on this motion.

[54] For example, Aysha has raised the issue of religion and Islamic extremism in her affidavit. I have already outlined why I have serious reservations about this approach. There is no independent or objective evidence on this record to suggest that Aftab is exposing the children to harmful ideas and ideologies.

[55] For his part, Aftab took pictures to document injuries on Idris' face. Placing a photograph of a cut around Idris' right eye before the court and then suggesting that Aysha is not fit to be a parent because she did not take him to the doctor is nonsensical. That photograph should not have been included in the motion record. There is no evidence before this Court to suggest that Idris’s cut was serious enough to warrant seeking medical care for the cut or bruise in the photograph. There is no other suggestion that the cut or bruise was harmful enough to Idris to justify a doctor’s visit and yet, Aftab has attempted to portray Aysha as reckless by not seeking medical attention. I reject this assertion.

[56] Quite frankly, both parties have made it very difficult for me on this motion to decide this issue because I have had to sort through material that is irrelevant and completely gratuitous.

[57] The jurisprudence has consistently described s. 30 reports as helpful, but at the same time, intrusive, time consuming and expensive: Baillie v. Middleton, 2012 ONSC 3728, 26 R.F.L. (7th) 130, at paras. 38-40. There is strong authority holding that ordering s. 30 reports should be limited to cases where clinical issues must be determined in order to provide expert evidence in the appropriate manner to address the emotional and psychological stresses within the family unit: Linton v. Clarke (1994), 21 O.R. (3d) 568 (Div. Ct.), at para. 14.

[58] I am not persuaded that a s. 30 report should be ordered at this time.

[59] First, there is no evidence as to the cost of the report, the expected completion date of the report, the proposed manner of assessment, or the specific nature of the inquiries that will be made. Again, the cases suggest that s. 30 assessments are expensive, intrusive, and time-consuming.

[60] Second, with respect to Aysha's assertion that Aftab has displayed feelings of aggression and anger in front of the children, there is no evidence that this is an ongoing issue. I acknowledge that Aftab was charged with assault on March 1, 2018. However, that matter has been resolved and Aftab entered into a peace bond on May 25, 2018. There are no further charges. Agreeing to enter into a peace bond demonstrates some level of acceptance by Aftab that what he did was wrong. I am prepared to infer that he has some insight into the behavior that led to his arrest and that it will not be repeated.

[61] Third, there is no evidence that the children are suffering from any physical abuse or psychological ailments that cause me any concern about the mental instability of either party or the emotional well-being of the children. I do not accept that Aysha's claim of the following incidents in her affidavit demonstrate a consistent pattern of regressive behavior that rises to the level of emotional or psychological distress:

1. Idris has a hard time getting out of bed in the morning and leaving the home;
2. Idris repeatedly says he never wants to leave and he wants to stay with mommy forever;
3. Idris and Esa follow Aysha around if she leaves them;
4. Idris screams out "mommy, I need you!" when he loses sight of Aysha and asks her to just sit with him;
5. Idris has had two accidents in the last number of weeks in which he has soiled his clothes and bed;
6. Idris soiled himself at school two weeks ago;
7. Idris is refusing to go to the washroom alone;
8. Idris does not assert any independence;
9. Esa insists on sleeping on Aysha's chest all night; and
10. Esa has gone completely backwards on his potty training.

[62] Aysha claims none of these behaviours existed before Aftab was arrested. I accept that the parents’ separation and the current parenting schedule has thrown off the children’s routines. However, I am not satisfied that I can draw the inference that all of this behavior is the direct result of the current parenting schedule. Nor do I accept that any of this behavior requires an examination into clinical issues.

[63] Moreover, for his part, Aftab claims that the children enjoy being around him and are also attached to his household.

[64] I agree with counsel for Aysha's submission that a s. 30 report can be useful because it could offer the court a neutral expert opinion. However, when I consider that I have not heard evidence of the potential cost, delay and intrusiveness of such a report (especially in light of cases holding that such reports are often expensive, time-consuming, and intrusive) combined with the lack of cogent evidence as to what the clinical issues are that require investigation, I am not persuaded that I should order a s. 30 report.

Conclusion

[65] The answer to the issues as set out above are as follows:

1. Should I vary the parenting schedule ordered by Andre J.? No.
2. Should I order a section 30 assessment under the CLRA? No.

[66] Aysha's motion is therefore dismissed.

Costs

[67] If the parties are unable to reach an agreement as to the costs of this motion, they may make submissions in writing. Submissions are to be no longer than three pages, double spaced, in addition to any bill of costs and case law.

[68] Aftab shall have ten days from the release of this endorsement to file his costs submissions. Aysha shall have seven days to respond. There will be no reply.

Coroza J. DATE: July 17, 2018