ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zoe Raven

Applicant

– and –

Aweys Ahmed

Respondent

Ceilidh Joan Henderson, Counsel for the Applicant

Self-represented

HEARD: May 22, 23 and 24, 2018

REASONS FOR JUDGMENT

Justice Engelking

[1] This is an application brought by Ms. Raven requesting an order for custody of and the ability to relocate to Somerset, England with the parties’ two children, Isabelle Raven-Ahmed, born September 1, 2009, and Miranda Raven-Ahmed, born September 29, 2010.

[2] The children’s father, Mr. Ahmed, opposes her application and seeks an order of shared custody with equal parenting time.

Background Facts

[3] Ms. Raven is a British citizen who was born in Bristol and completed high school in Somerset. She met Mr. Ahmed in Ottawa in 2005 while attending school here. Mr. Ahmed is a Canadian citizen of Somali heritage. They began cohabiting in June of 2008 and married on November 22 of the same year. As is indicated above, two children were born of the marriage, Isabelle and Miranda.

[4] The parties moved to Somerset, UK, in May of 2009 when Ms. Raven was pregnant with Isabelle. Ms. Raven indicated that she wanted to go home as she was young and pregnant and knew that she needed help from her mother. Additionally, she did not have permanent resident status in Canada and she required access to free health care in the UK. From May of 2009 to May of 2010, the couple (and later Isabelle) lived in the home of Ms. Raven’s mother, Julie Williams. According to her testimony, Ms. Raven intended to stay in the UK after Isabelle was born, but Mr. Ahmed said that his job prospects would be better in Canada, so the couple returned to Ottawa. Mr. Ahmed, however, was unable to secure employment in Canada, and the family moved back to the UK by July 2010.

[5] The parties lived in an apartment very near to Ms. Williams and other members of Ms. Raven’s family. Miranda was born in September of 2010, and the parties remained in Somerset until July of 2011, when they once again returned to Ottawa, Ontario, again at the insistence of Mr. Ahmed, who indicated to Ms. Raven that he wanted to return to Canada and become a police officer.

[6] Ms. Raven reluctantly agreed to the move in order to keep her family together. The family rented a home in Kanata, which was very difficult for Ms. Raven. She had no driver’s licence, no vehicle and no money for travel. She at that time began her application process for permanent residency, but did not yet have it and therefore had no ability to work. She also had no access to health care.

[7] During this period, Ms. Raven indicated that Mr. Ahmed did not take any steps to try and become a police officer, and further that he was not working to support the family. She testified that the family lived off of Universal Child Benefits, first from the UK and later Canada. Ms. Raven indicated that sometimes Mr. Ahmed would return home from “errands” with handfuls of cash, but stated she had no knowledge of where it came from or what Mr. Ahmed did to get it.

[8] According to Ms. Raven, the marriage began to fall apart after the parties’ return to Canada in 2011. The following 18 months were very difficult ones for her. She suffered from a thyroid condition for which she could seek no treatment; she could not work and had no money to meet her own needs or care for the children; she felt isolated in the townhouse in Kanata and had no ability to go anywhere else. Ms. Raven described this period as one where she “wasn’t a person”, she simply did not exist as far as Canada was concerned. Her testimony was that she felt “trapped and alone and desperately wanted to go home.”

[9] Ms. Raven’s testimony was that Mr. Ahmed has been unemployed or under-employed for most of the time that she has known him. According to her, Mr. Ahmed had a wide variety of short-lived, usually part-time positions that did not pay particularly well. He had problems with time management (showing up for work on time) and conforming to a work environment.

[10] In December of 2012, Mr. Ahmed left the apartment in the Billings Bridge area where they were then living, and moved to Old Ottawa South. According to his evidence, he took the girls with him. However, Ms. Raven’s father, Ian Raven, testified that the girls were with Ms. Raven when he visited her in December of 2012. According to Mr. Raven, Mr. Ahmed had practically emptied the apartment when he left, and Mr. Raven had to resupply the necessities for Ms. Raven and the children.

[11] This latter theme was consistent throughout the testimony of Ms. Raven, Mr. Raven and Ms. Williams. Ms. Raven’s parents would assist Ms. Raven and Mr. Ahmed with money, plane tickets, rent, furnishings and generally anything they needed over the life of the relationship. For all the relocations between England and Canada, Ms. Raven’s parents financed the moves. Mr. Raven indicated that he has given Ms. Raven and Mr. Ahmed in excess of $5000, as has Ms. Williams. While both indicated that the money was given as opposed to loaned, they both expressed that they would like to think that some effort would be made to pay they back someday, at least in part. Both stated that based on Mr. Ahmed’s history, neither expected that would happen.

[12] Sometime after the parties separated, a schedule of essentially equal time with the girls was established. Originally, the children were with Ms. Raven on Tuesdays, Wednesday and Thursdays and with Mr. Ahmed on Saturdays, Sundays and Mondays, with Friday alternating between them. About two years ago, the scheduled changed to the children being with Ms. Raven on Wednesdays, Thursdays and Fridays, and with Mr. Ahmed on Sundays, Mondays and Tuesdays, with Saturday alternating between them. No agreement or order has been made.

[13] Notwithstanding the shared parenting time, Ms. Raven presents herself as the “primary parent”, the one who has most consistently attended to the children’s medical, educational and emotional needs. Ms. Raven is of the view that Mr. Ahmed is the “fun, public dad”. In support of this contention, Ms. Raven pointed to several communications between herself and Isabelle and Raven’s teachers and doctors. These included:

• A letter from “Eyes in the Glebe” dated April 11, 2018, which confirmed that Ms. Raven was present for each of the girls eye appointments on September 30, 2016 and October 13, 2017;

• A letter from “Capital KidZ Medical Centre” dated April 12, 2018, which confirmed that out of 10 appointments for Isabelle and 17 appointments for Miranda between October of 2014 and March of 2018, Mr. Ahmed only brought the children to one;

• An email exchange with Isabelle’s teacher, Whitney Fleras in October of 2014 regarding what Ms. Raven and Isabelle’s teachers were doing to assist Isabelle with her generalized anxiety issues;

• An email exchange with Isabelle’s teacher, Susan Kim in November of 2016 regarding a referral to a psychologist for Isabelle, still in relation to her anxiety;

• An email from Ms. Raven to Isabelle’s Grade Two teacher, Jean-Thiery Nkulikiymukiza dated March 20, 2017 requesting to meet after Isabelle’s scheduled November 27 appointment with her doctor;

• An email exchange between Ms. Raven and Mr. Ahmed in April of 2017, in which she alleges that Mr. Ahmed is taking a sudden interest in Isabelle’s anxiety issues after having minimized them for three years; and,

• An email Ms. Raven sent to Mr. Ahmed dated September 27, 2017 confirming that the children had seen the dentist for a check-up in the past year but that he could make them an appointment if he felt “compelled to take them and get a print out of the fact you attended.”

[14] Ms. Raven’s testimony was that she, in conjunction with Isabelle’s teachers, was the first to recognize that Isabelle was suffering from anxiety. According to her testimony, she tried for several years to engage Mr. Ahmed and to seek assistance for Isabelle. Mr. Ahmed, however, either refused to or did not recognize Isabelle’s issues, and did not take any active role in attending to them. Notwithstanding the April 2017 e-mail exchange referenced above, in paragraph 35 of his Answer dated March 7, 2017, Mr. Ahmed stated that it was false that Isabelle has anxiety issues.

[15] In addition to Ms. Raven’s testimony, her current husband, Andrew Libbos also testified. Ms. Raven and Mr. Libbos met in January of 2013 and they married in June of 2015. They have three children together, Theodore, Clementine and Peter, who were four, two and four months of age at the time of trial. Mr. Libbos testified that he too takes the children, including Isabelle and Miranda, to their doctor’s appointments, dentist appointments, chiropractic appointments, cranial massage and counselling appointments. Mr. Libbos testified that he is entitled to two weeks of vacation from his employer, but for the last two years, all of his vacation days have been taken up with taking the children to their various appointments. Mr. Libbos indicated, additionally, that Isabelle and Miranda are included on his health coverage through his employer with Great-West Life. Exhibit #18 to the Trial is a print out of his claims history confirming that Isabelle and Miranda are included.

[16] Mr. Ahmed disputes that Ms. Raven is the primary parent of Isabelle and Miranda; he states that he has been a primary parent to them essentially since they were born. In fact, Mr. Ahmed’s evidence is that he was never voluntarily unemployed or underemployed, rather he was flexibly employed in order to be available to provide care to the children. His evidence was that the children were almost exclusively with him for the first three months post-separation, and that Miranda did not spend overnights with Ms. Raven until the late fall of 2013. He states that he has taken the children to the doctor (which is confirmed by Capital KidZ Medical Centre on one occasion) and the dentist, and that he is involved with the girls’ school, including by volunteering for activities at school. In fact, it was Mr. Ahmed who enrolled the girls at Hopewell Public School. Ms. Raven does not dispute this, but says that he did so without consultation and contrary to her wishes. She was of the view that the Old Ottawa South neighbourhood is too expensive, and she was not in favor of living there. He also registered Isabelle in French immersion without Ms. Raven’s consent.

[17] Ms. Raven says that she and Mr. Ahmed cannot co-parent because he does not respond to emails, texts or telephone calls. He will not converse with her on major issues, and if she ever is able to have a face to face conversation with him, despite his avoidance, Mr. Ahmed will only express his point of view and then end the conversation.

[18] Mr. Ahmed says that Ms. Raven has communicated with him in an aggressive and offensive manner, and based on that and one altercation he had with Mr. Libbos, he fears for his own safety. Mr. Libbos testified to the “altercation”, which appeared to consist of swearing at Mr. Ahmed on one occasion during a parenting exchange. Mr. Libbos indicated that he apologized to the children and stated it never should have happened. Mr. Ahmed made a referral to the Children’s Aid Society of Ottawa as a result of this incident, and no child protection concerns were identified with Ms. Raven and Mr. Libbos. Mr. Ahmed also pointed the court to two text message exchanges with Ms. Raven, one in July of 2016 wherein she was clearly angry and referred to him by a number of derogatory names, and another in March of 2017. Ms. Raven acknowledged the inappropriateness of those exchanges, but indicated that she was completely exasperated by time of the July 2016 messages, as she had for some time been trying to engage Mr. Ahmed in a conversation about her potential move with the girls to England, and he simply would not respond to her. In March of 2017, Ms. Raven was upset because Mr. Ahmed would not permit the girls to spend Christmas Eve/morning with her to accommodate a request by her mother, who would be visiting. Ms. Raven could not believe that Mr. Ahmed would deny her mother time with the girls after all Ms. Williams had done for him. Ms. Raven testified that she was completely at the end of her rope on both occasions, but notwithstanding the inappropriateness of the two communications, she recognizes the importance of Mr. Ahmed’s relationship with the girls, and she would do everything possible to promote it if she is allowed to move with them to the UK.

[19] Mr. Ahmed relies on those text messages and his one altercation with Mr. Libbos to support his fear that his relationship with the children would not be promoted by Ms. Raven and her family. He completely opposes her being permitted to move to England with Isabelle and Raven.

[20] Ms. Raven testified that she has been accepted into the Biomedical Sciences program at Bristol University in the UK for the 2018/19 academic year. In order to quality, Ms. Raven had to take an “Access” course that is only good for university entrance in England and Wales. Notwithstanding that she was caring for three young children full-time and five part of the time, she passed the Access course with distinction. By comparison, in order to get into a Bachelor of Nursing program (which is not her preference) in Canada, Ms. Raven would have to do Grade 9 to 12 sciences before she could even apply. Ms. Raven and her family are very proud of her accomplishment of being accepted into Bristol, which is a very reputable university.

[21] Additionally, Mr. Libbos, who is a construction estimator, has been offered a job as an Estimator for RW Armstrong & Sons Ltd in Basingstoke, England, at which he will make almost twice his current salary. Mr. Libbos has been with Dowin Developments for five years making approximately $60,000 annually. The offer of employment from RW Armstrong dated May 18, 2018 is for originally $45,000 (and re-evaluated after six months to $50,000) British pounds, which translates into approximately $85,000 Canadian dollars. He estimates that within two years he could be making upwards of $100,000 Canadian annually. Mr. Libbos’ offer was to commence June 7, 2018.

[22] Ms. Raven and Mr. Libbos both testified to the fact that they recognize the importance of Mr. Ahmed to Isabelle and Miranda, and indicated that they would be willing to pay to send the girls to Canada twice a year if they are allowed to move, and they would even be willing to pay for the Respondent to travel to the UK once a year to visit the girls there.

[23] Ms. Raven’s father and mother also testified. Mr. Raven is very supportive of Ms. Raven, and as I have indicated above, has helped her to relocate and to acquire necessities when required. He testified that he has received calls from Mr. Ahmed and Ms. Raven’s previous landlord in Kanata, who was trying to track down Mr. Ahmed for an unpaid water bill. Mr. Raven also witnessed Mr. Ahmed showing up with cash after running errands during the parties’ relationship, but he never asked Mr. Ahmed for what or where it came from. Mr. Raven currently lives in the United States, but is planning on moving back to England. He had already been on one house hunting trip and is planning on doing another in September. Mr. Raven has a very close relationship with Isabelle and Miranda as he has visited them frequently in Ottawa (about three times per year), and they have also been to see him for two weeks at a time in Maine in the summers of 2015 and 2016. He last visited the family about three weeks before the trial for six days. Mr. Raven indicated that he is very well aware of the importance of Mr. Ahmed’s presence in the lives of Isabelle and Miranda. Mr. Raven stated that he was committed to ensuring that Mr. Ahmed have good access to the children, to the extent that if it meant he needed to pay for airfare for Mr Ahmed, he would do so.

[24] Ms. Williams also visits the children fairly frequently from England, approximately twice a year when she stays for significant periods – anywhere from three to eight weeks at a time. Additionally, the children have visited with her for five to six weeks in the summer. She described herself as a very “hands-on” grandmother, who is very close to the children.

[25] Like Mr. Raven, Ms. Williams also testified about the significant assistance she provided, both financial and logistical/practical, to Ms. Raven and Mr. Ahmed while they were a couple. They lived with her at various times during their sojourns to England, as well as very near to her. They have clearly relied on extensive support from both Ms. Williams and Mr. Raven. Ms. Williams stated that she has also received letters at her home from creditors looking for Mr. Ahmed for unpaid bills.

[26] Like Mr. Raven, Ms. Williams will also be available to assist Ms. Raven and Mr. Libbos, should the children be permitted to relocate to England. In addition to her parents, Ms. Raven has a sister, aunts, uncles, cousins and grandparents in and about Bristol and Somerset, England. She and Mr. Libbos would have lots of family support and assistance with the children, should they be permitted to move.

[27] Ms. Williams was not impressed with Mr. Ahmed for a number of reasons. First, according to her, Mr. Ahmed completely failed to recognize the position in which he put Ms. Raven in 2011/12, and he failed to properly support her and the children. Second, Mr. Ahmed left unpaid bills in his trail, some of which she actually settled to make the inquiries stop. Third, Mr. Ahmed, in her view unethically, if not fraudulently, collected the British Universal Child Benefits, which were incomprehensively in his name, long after it should have stopped (which it only did when she reported it to the authorities). Fourth, Mr. Ahmed has never offered to pay her anything for all of the help she extended to the couple during their relationship, nor does she ever expect that he will. Finally, Mr. Ahmed did not positively consider her request to spend Christmas morning with the children when she traveled to Canada for Christmas in 2017, notwithstanding all she had done for him over the years. Despite her impressions of Mr. Ahmed, Ms. Williams testified that she recognized how important Mr. Ahmed is to the girls and she too would assist in whatever way possible to ensure that he maintained a relationship with them. Ms. Williams indicated that she would be willing to accompany the girls to Canada for visits with Mr. Ahmed, when or if required.

[28] The ideal situation, from Ms. Raven’s point of view, at least in 2016, was that Mr. Ahmed would also relocate to England and continue his role in the same manner as now. However, sometime in 2016, Mr. Ahmed started a new relationship with his current partner, Amanda MacNaughtan, who is employed as a nurse and makes approximately $79,000 annually. Mr. Ahmed’s evidence was that he and Ms. MacNaughtan form a stable unit who are capable of meeting the children’s needs together, and that it is not practical for them to move to England. However, in November of 2017, Ms. Raven had a test message exchange with Ms. MacNaughtan wherein the latter was indicating that she had moved out of the apartment she shared with Mr. Ahmed on Hopewell Avenue, and would be saying goodbye to the girls. Mr. Ahmed acknowledged that he and Ms. MacNaughtan separated for a few months, and also admitted in cross-examination that he had lived a four addresses since leaving the Billings Bridge apartment in December of 2012 – 99 Hopewell, 18 Hopewell, 47 Cameron Avenue and 52 Groverner Avenue. Mr. Ahmed testified that he and Ms. MacNaughtan reconciled and moved back in together at the Groverner home on February 1, 2018. He stated in his testimony that he goes to couples’ counselling with Ms. MacNaughtan and that he had been seeing a personal counsellor for the past eight weeks prior to trial, stating that he had “a lot of fear since September” and needed to deal with his emotions. Mr. Ahmed did not produce his personal counsellor, his and Ms. MacNaughtan’s couples’ counsellor, or Ms. MacNaughtan as witnesses in the trial (notwithstanding that the latter was present throughout the four days of the proceedings).

[29] Mr. Ahmed also testified that as of February 12, 2018, he has started a new job with a company called “Fullscript” as a Customer Support Specialist with an annual salary of $40,000. He referred the court to the first page of an undated and unsigned Offer of Employment from Fullscript. Mr. Ahmed testified that Fullscript is a “health tech” company and that its workforce can work from home. He indicated that there are core hours when things need to get done, but otherwise all that is required to work is “a laptop and a code language”. He stated that he hopes to become a “full stacker” soon, which would affect his income and work schedule.

[30] Mr. Ahmed indicated that he now has the support of his mother and brother (from whom he stated he had also received money in the past). He stated that he and his mother “had not previously seen eye-to-eye”, but she started visiting him last year. He stated she has provided support by sending money to him in the past and picking up groceries more recently. He stated that his mother has also been a resource to the girls in relation to their Somali heritage, in that she will bring them Somali food and take them to a Somali festival. Whatever role Mr. Ahmed’s mother plays, it is clearly of more recent vintage as Ms. Raven testified that none of Mr. Ahmed’s family came to their wedding or knew of the children’s births. She was unaware of any money coming to the family from Mr. Ahmed’s mother during the relationship. Again, Mr. Ahmed did not have his mother testify in the trial, notwithstanding that she attended daily.

[31] Who Mr. Ahmed did have testify were four neighbourhood friends, Kapil Khatter, Raoul Bain, Dana Sidney and Suufi Rirash. Uniformly, they all had children of the same general ages as Isabelle and Miranda and in the same school. (Mr. Bain and Ms. Sidney are a couple). All provided their observations of Mr. Ahmed as a loving, attentive and active father to Isabelle and Miranda. They found him to be responsible, gentle, caring and attentive to the girls’ needs. They also all extolled the virtues of the neighbourhood of Old Ottawa South as safe and very child/family friendly. Interestingly, none of them appeared to be aware of the 50/50 time sharing arrangement of the children with Ms. Raven.

Issues

[32] The issues to be decided by the court are:

(1) Should an order of sole custody of the children to Ms. Raven or one of joint custody to both parents be granted?

(2) Should Ms. Raven be permitted to move with the Isabelle and Miranda to the United Kingdom?

[33] For the reasons provided below, I grant an order of joint custody of the children to Ms. Raven and Mr. Ahmed, with final decision making authority resting with Ms. Raven, and an order permitting Ms. Raven to move with the children to Bristol, England.

Issue #1 Custody

[34] With respect to any request for an order for custody of children, the court is governed by section 24 of the Children’s Law Reform Act and/or section 16 of the Divorce Act. Section 16 (1) of the Divorce Act provides that the court may make an order for custody of and access to any or all children of the marriage on application or either spouse (or former spouse, as the case may be). Section 16(8) provides that in making such orders, “the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstance of the child.” Section 16(10) of the Act provides that in making such orders, the court “shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

[35] Section 24 of the CLRA sets out the criteria upon which such a decision is based:

Merits of application for custody or access

24(1) The merits of an application under the Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best Interests of child

(2) The court shall consider all of 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 or access to the child for the child’s care and upbringing;

(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.

[36] To date, there has been no custody order or written agreement in place. Ms. Raven and Mr. Ahmed have essentially acted as joint custodians of the children since they separated, albeit frustratingly from time to time. The evidence before me more strongly suggests that Ms. Raven has acted in the role of the primary parent, particularly as it relates to meeting the children’s medical needs, although Mr. Ahmed did register the children for school at Hopewell Public School.

[37] The children have a close relationship with their father. They clearly enjoy their time with him and he appears to be very capable of meeting their needs while they are in his care. Having said that, the evidence does suggest that Mr. Ahmed is the “fun and public” parent, as described by Ms. Raven. The evidence of Mr. Ahmed’s witnesses was about seeing Mr. Ahmed and the children out and about in the neighbourhood, at the parks, festivals or the school yard. It was about sleepovers and school friends.

[38] Ms. Raven, or even Mr. Libbos, were more apt to be the parent taking the children to appointments and ensuring that they are receiving what they need, including financially. Ms. Raven was the parent advocating for Isabelle from at least 2014 to get help for her anxiety issues. Mr. Libbos has been paying, through his insurance with his employer, for anything that requires payment in relation thereto, and with respect to the children’s dental care.

[39] Although Ms. Raven has been the more active parent in this regard, I see no basis to prevent Mr. Ahmed from having a role in decision making for the children as a joint custodian to them. Ms. Raven and Mr. Ahmed will have to continue to consult in an effort to make joint decisions for the children. However, in the event that they are unable to come to a mutual decision with respect to the children, final decision making authority shall rest with Ms. Raven.

Issue #2 – Move to England

[40] The leading case on mobility issues remains Gordon v. Goertz[^1]. In paragraph 49 of the case, McLachlin J., a she then was, writing for the majority, stated:

49. The law is summarized as follows:

50. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.

51. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.

52. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

53. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

54. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

55. The focus is on the best interests of the child, not the interests and rights of the parents.

56. More particularly the judge should consider, inter alia:

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. The views of the child;

e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f. Disruption to the child of a change in custody;

g. Disruption to the child consequent on the removal from family, schools, and the community he or she had come to know.

[41] As I have indicated above, there is no pre-existing custody order or agreement in place. Thus, this is not a case where a material change of circumstances needs to be demonstrated. Nevertheless, the parties’ have acted as joint custodians of the children and have exercised shared parenting time with them since at least 2014, and the children will be significantly impacted by any change in that situation. I take from Gordon that I am to embark on a fresh inquiry as to what is in the best interests of Isabelle and Miranda. When I objectively examine the children’s needs and the parents’ abilities to satisfy them, I conclude that Ms. Raven and Mr. Libbos are much more apt to do so, in both the immediate and long term, than is Mr. Ahmed.

[42] First, Ms. Raven and Mr. Libbos are in a stable relationship of some five and a half years. They have been married since June of 2015 and have three children together, in addition to Isabelle and Miranda. All of Ms. Raven, Mr. Libbos, Mr. Raven and Ms. Williams testified as to the close and loving relationship that Mr. Libbos has with Isabelle and Miranda. They also testified as to the relationship that Isabelle and Miranda have with Theodore, Clementine and Peter. Ms. Williams called the household “very busy”, but warm and loving. Mr. Libbos indicated that he knew of Ms. Raven’s desire to return to England very early in their relationship, and he is fully supportive of it. Mr. Libbos is very committed to Ms. Raven, and to all of the children, including Isabelle and Miranda.

[43] Mr. Ahmed, on the other hand, is in a relationship with Ms. MacNaughtan which ended after one year, only to restart again in February of 2018. Although Mr. Ahmed testified to attending couples’ counselling with Ms. MacNaughtan, he did not produce his counsellor in this regard. Additionally, Ms. MacNaughtan did not testify, and it is consequently impossible for the court to gage the nature of her relationship with the children or the level of her commitment to them.

[44] Second, Ms. Raven and Mr. Libbos are financially stable. Mr. Libbos has had the same employer for over five years, and he has been offered a position in the same field in England for a salary which is nearly twice as much as he was making at the time of trial, with the potential of that salary going up to as much as the equivalent of $100,000 Canadian or more within a couple of years. Ms. Raven has, additionally, been accepted into the Biomedical Sciences program at Bristol University, which is no small feat and is to be commended. She aspires to become a genetic counsellor, and intends to work upon completion of her training to help support her family.

[45] Mr. Ahmed, on the other hand, has started many educational programs, which he has not completed, and has had several jobs since 2008, many of which were part-time, and several of which did not last. He has been underemployed or unemployed for much of the children’s lives, though he did work as an insurance broker for a period of time. Indeed, one of his witnesses, Mr. Khatter, thought him still to be an insurance broker. Mr. Ahmed’s employment with Fullscript is very new; it was completely unknown to Ms. Raven. In fact, according to the undated and unsigned Offer of Employment he provided, Mr. Ahmed was subject to a probation period of three months from February 12, 2018, which would have only ended shortly before the trial started. Given Mr. Ahmed’s employment history, whether he will remain with Fullscript and for how long are circumstances unknown to the court. Additionally, Mr. Ahmed stated that with this job his combined household income will be over $100,000, however, approximately $80,000 of that is from Ms MacNaughtan’s employment, and whether their relationship will last is equally unknown to the court.

[46] Third, Ms. Raven and Mr. Libbos have tremendous support from Ms. Raven’s family in England (and her father temporarily in the United States). The support referred to is not theoretical, but highly demonstrable through prior actions, in which I include traveling from England and Maine to testify. Mr. Raven and Ms. Williams have historically supported their daughter and Mr. Ahmed financially, logistically, practically and emotionally. They are prepared to continue to support Ms. Raven and Mr. Libbos with the care of the children and anything else they may need, and to support Mr. Ahmed with the cost or logistical arrangements of ensuring his relationship with the children continues. Additionally, Ms. Raven has significant extended family in the UK who can also provide support and guidance to the children. These include aunts, uncles, cousins and grandparents.

[47] The level of support Mr. Ahmed has from his family, namely his mother and his brother(s), is unknown to the court. Ms. Raven certainly had a different experience of Mr. Ahmed’s family, in that they were not involved at all or even known to the children for many years. As with Ms. MacNaughtan, no family members testified as to their commitment to the children or willingness to assist Mr. Ahmed.

[48] Finally, all of Ms. Raven, Mr. Libbos, Mr. Raven and Ms. Williams testified as to their recognition of the importance of Mr. Ahmed’s role in the lives of Isabelle and Miranda, and all are committed to ensuring that it continues to the degree possible. Ms. Raven and Mr. Libbos indicated that they would be prepared to pay for transportation for the children to travel to Canada twice a year, and for Mr. Ahmed to travel to England one time per year. Mr. Raven indicated that he would be willing to buy a plane ticket for Mr. Ahmed to travel to England, if necessary. Ms. Williams stated that she would make herself available to accompany the children to Canada so that Mr. Ahmed can spend time with them.

[49] Mr. Ahmed submits that the disruption to Isabelle and Miranda of a move to England would be too disruptive to them, but the focus of his argument appeared to most particularly be on their removal from their neighbourhood of Old Ottawa South. While I have no doubt that Old Ottawa South is an attractive place to live, I have no evidence that that level of safety, comfort and family friendliness cannot be replicated elsewhere. What is most important to Isabelle and Miranda, moreover, is to have their needs consistently met by their caregivers, wherever they live. I received no evidence as to the children’s views and preferences, and so I make the decision based on the evidence the court did receive.

[50] Under the circumstances, I find that it is in the best interests of Isabelle and Miranda to move to England with Ms. Raven and to continue to have as much parenting time as is possible with Mr. Ahmed. While I am prepared to require Ms. Raven to pay for the transportation of the children to Canada twice yearly, I will not require either her or Mr. Raven to pay for Mr. Ahmed to travel to England to visit the children, given his new employment. Additionally, given that the children will be living primarily with Ms. Raven, Mr. Ahmed will be required to pay child support. Although Ms. Raven has not asked for it, child support is the right of the child, and a parent is not entitled to waive it on the child’s behalf. However, such support will be reduced from the Federal Child Support Guidelines table amount to reflect the cost of travel for Mr. Ahmed to have parenting time with the children. Table support in Ontario for two children on an annual income of $40,000 is $597 per month.

Order

[51] For all of the reasons given above, I make the following order:

1. The Applicant and the Respondent shall have joint custody of the children of the marriage, Isabelle Raven-Ahmed, born September 1, 2009, and Miranda Raven-Ahmed, born September 29, 2010;

2. The Applicant and the Respondent shall consult on any major decisions regarding the children prior to the decision being made. Consultation shall be comprised of the parent wanting to make a decision communicating by email to the other parent, who shall have seven days to respond by email. The parent seeking to make the decision shall take into consideration the views of the other parent. If the parent being consulted fails to respond to the request within seven days, no further request for input is required. The parents shall then make the decision jointly;

3. In the event that the Applicant and the Respondent are not able to agree on a major decision affecting the children, after appropriate consultation, and taking into consideration the input of the Respondent, the Applicant shall have sole final decision making authority;

4. The primary residence of the children shall be with the Applicant, and she is permitted to relocate to Bristol, England or surrounding area with the children;

5. The Respondent shall have parenting time with the children as follows;

a. On even years, from December 26 to the first day prior to the children’s return to school during the Christmas Break;

b. On odd years, from the first day after the children’s break to December 25 during the Christmas Break;

c. Every spring/March break from school, if the children have a spring or March break;

d. Six weeks every summer, with the children to return at least one week before the commencement of school after the summer break;

e. Liberal and generous parenting time with the children in the event that the Respondent travels to England, such time to be agreed upon and arranged by the parties;

f. The Applicant shall be responsible for the cost of the children’s return transportation to Canada twice yearly;

g. The Respondent shall be responsible for the cost of any additional return transportation to Canada for the children;

h. Commencing September 1, 2018, the Respondent shall pay to the Applicant child support of $400 per month, taking into account the FCSG table amount and the cost of exercising parenting time to the Respondent.

Costs

[52] Failing agreement as to the liability for costs of the trial by August 31, 2018, the parties will make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Madam Justice Tracy Engelking

Released: August 7, 2018

COURT FILE NO.: FC-12-2722-1

DATE: 2018/08/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zoe Raven

Applicant

– and –

Aweys Ahmed

Respondent

REASONS FOR JUDGMENT

Engelking J.

Released: August 7, 2018

[^1]: 1996 191 (SCC), [1996] 2 S.C.R 27, 196 n.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, 1996 191, [1996] S.C.J. No. 52, 1996 CarswellSask 199