Court File and Parties

COURT FILE NO.: FC-13-2096-2 DATE: 2018/08/30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Rana Itani Applicant – and – Emad Abdelmoghith Respondent

Counsel: Edith Holly for the Applicant Cheryl Payette for the Respondent Pamela Barron for the children N and S

HEARD: August 30, 2018 (at Ottawa)

Reasons for Decision

O’Bonsawin J.

Background

[1] The parties are in agreement that a Summary Judgment Order is appropriate in this matter. They also agree that there has been a material change in circumstances regarding the issue regarding the schools, however, the Applicant does not believe that there has been a material change in circumstances that should affect the custody issue.

[2] The Respondent seeks an Order amending Justice James’ Final Order dated July 8, 2014. In addition, the Respondent seeks the following:

• The Respondent shall have sole decision making for the children, N born October 14, 2004 and S born on January 16, 2009. The Applicant and Respondent shall consult with each other on any proposed changes or concerns with regard to the children. In the event of a disagreement, the Respondent shall make the final decision.
• The children shall spend the following times with each parent: a) S shall spend alternating weeks with each parent, from Friday after school until Friday after school of each week. During times that S is not in school on a Friday, the exchange time shall be at 6:00 pm. b) N shall live primarily with the Applicant. She shall spend a full day with the Respondent on alternating weekends, as well as any other times she wishes to spend with the Respondent, upon mutual agreement between the parties. c) The responsibility for transportation of the children shall be shared equally. The parent whose week (or holiday time) with S is to start shall be responsible for transportation. d) The children shall not be prevented from communicating with each parent by telephone, FaceTime or Skype, when they choose to do so.
• Possession of the children’s passports shall be divided such that the lawyer for each party shall retain the passport for one child. The passports shall only be released upon Court Order or upon notarized written consent from each parent.
• The Respondent shall be included in all school records and databases as an emergency contact in addition to the Applicant. The school shall be allowed to contact the Respondent and release the children into his care in the event of illness or emergency.
• The previous restraining order contained in the Temporary Order of Justice Toscano-Roccamo dated September 26, 2013, shall be terminated.
• The amount of $5,000 shall be granted to the Respondent to compensate him for his forced move into his new apartment.
• Costs of this motion as well as the Settlement Conference held on March 14, 2018.

Position of the Parties

[3] The Respondent argues as follows:

• Both parties are seeking a new parenting schedule to replace the schedule contained in the Final Order dated July 8, 2018.
• The Applicant’s recent decision to register Sara at a new school far away from the Respondent without his consent constitutes contempt.
• The children have spent almost 40% of their time with the Respondent and the schedule was very disruptive for everyone. There is far too much back and forth with the children. S has asked to change the schedule to allow her to live one week at a time with each parent or at least equal time.
• S’ school bus will accommodate alternating week transportation to two homes.
• N dislikes the current schedule and wants to spend more time at the Applicant’s home. The Respondent support N’s desire for more flexibility and to decide for herself when she will visit him.
• The Applicant refuses to consider the views and best interests of the children. She has refused to follow any recommendations of the Office of the Children’s Lawyer (“OCL”) to change the schedule.
• The Applicant earns over $100,000 as a nurse and the Respondent went back to college for two years in order to increase his ability to find employment. The Applicant knows that the Respondent cannot afford legal fees and has intentionally rejected the views of the OCL in an attempt to wear him down financially.
• Despite the Court Order requiring the Applicant to provide the Respondent with information, she has flat out refused. Any and all requests for information have been refused.
• The Respondent only finds out about medical appointments for the children after they have taken place. The Applicant did not even include the Respondent’s name in the school records as an emergency contact.
• The Applicant did not provide the Respondent with the application or other documents for the application of the children’s Canadian Citizenship. He found out after the fact that they children were being sworn in as Canadians when the children told him.
• The Applicant did not consult with the Respondent when she decided to change N’s high school.
• The Applicant did not obtain the Respondent’s consent to register S in a new school far away from her previous school. The Applicant did so with the full knowledge that the Respondent did not consent and that the existing Court Order states that S is to attend KPS. Consequently, the Applicant is in contempt.
• At the beginning of the hearing, the Respondent advised this Court that he has acquired a new apartment within five minutes of walking distance from the Applicant’s residence. He is moving into his new apartment on September 1st. However, this apartment came as a significant cost to him and he had to leave the residential area where he had many friends.
• In addition, the Respondent advised this Court that he had obtained an employment contract two months ago.

[4] The Applicant argues as follows:

• She has raised her children without child support from the Respondent.
• The Applicant does not receive spousal support from the Respondent.
• The Respondent has arranged for an excellent babysitter that she pays for when the Respondent misses visits and the Applicant is scheduled to work.
• The parties both now have vehicles and are equally sharing transportation.
• The children previously attended KPS because it was the school jurisdiction where the Applicant resided.
• Justice James’ Final Order placed the children with the Applicant and she was to make the final decision in the event that there was a disagreement.
• The parties agree that the access schedule has not been functioning. The OCL endeavored to have a trial period over the summer but that could not be agreed upon or followed. The CAS advised the parties to keep the same schedule in place until advised otherwise. The OCL also confirmed that the CAS wanted the visits to be on hold.
• Each party has currently paid her/his own lawyer.
• Custody should not be reopened since there has not been a significant material change in circumstances that affects the custody to warrant overturning a previous Final Order.
• The children are Canadian citizens, however, they do not have their Canadian passports since the Respondent has refused to consent to the passports being obtained.
• There is no need to change the passport arrangement since the Applicant is concerned that the Respondent would take the children to Egypt where she would have no jurisdiction as this country is paternalistic.
• The Applicant was concerned that the Respondent would have female mutilation performed on the children. This was addressed in Justice Kershman’s Order dated January 28, 2014, in which he stated: “[t]here shall be no female circumcision of the children”.
• The access arrangement has been turbulent with friction over transportation and failed visits on the part of the Respondent.
• In the best interests of the children, they should be kept together for emotional well-being, safety and security and the Respondent’s suggested access provisions for S do not permit that.
• As N has been accepted into CHS and the Applicant works at CHEO, the Applicant moved to the school district. This is in line with Justice James’ order. The Applicant thus enrolled S at VMPS within her residential jurisdiction.
• In a series of e-mails, the Respondent has indicated that he planned to move and tried to tie an offer to the selection of the children’s schools. The Applicant did not agree to this and she exercised her final decision making capacity as per Justice James’ Order.
• There is a need to put in place an access schedule that reflects the current school schedules.
• The Respondent did not live in the previous school district.
• The Applicant is not in contempt of any Order. She has followed and continues to follows Justice James’ Order as the custodian of the children. Where there is disagreement, she has the decision making power. The Applicant made the decision regarding the upcoming school year in the best interests of the children.
• In order to be held in contempt, there must be a wilful disregard of an Order. The Applicant has not intentionally disregarded the law.

[5] Ms. Barron, the OCL, met with the children on seven to eight occasions and as recently as this week. On November 9, 2017, she provided a letter to both counsel regarding the children’s wishes. N wished to “have less time with Dad which would not include overnight visits. She would like spend a full day with him every other weekend coinciding to [S’] visits”. S “wants a schedule where she is with Mom for [a] week and Dad for a week with a visit in between as she would miss everyone too much if there was no mid-week visit”. In addition, Ms. Barron provided this Court with the following information at the hearing:

• The children’s views have not changed at all since she has started on this matter.
• S wants equal time with both parties. She enjoyed the summer schedule in which she resided one week with the Applicant and one week with the Respondent. However, S would like to add a mid-week visit with the other parent since she misses her/him too much otherwise.
• N wants to decrease her time with the Respondent. She enjoys the one overnight visit every other weekend with the Respondent.
• At the end of Ms. Barron’s visit with S, the child questioned Ms. Barron about who will make the final decision regarding the parenting schedule. After Ms. Barron explained to S that she will not make the final decision, it will be an adult, etc., S responded that she is only a nine year old child and does not want to make the decision. S further stated to Ms. Barron that when she was seven years old, she did not realize the responsibility and the stress that making the decision would have on her.
• S indicated that if the judge ordered one week with one parent and one week with the other parent with a mid-week visit, she would like that.
• Tuesday could be a good mid-way point for the mid-week visit for S and the other parent.

Analysis

[6] The merits of an application in respect of or access to a child shall be determined on the basis of the best interest of the child (Children’s Law Reform Act (“CLRA”), R.S.O. 1990, c.C.12, ss. 24(1)).

[7] When determining the best interest of the child, the Court shall consider the following:

• the love, affection and emotional ties between the child and each person including the parent, other members of the child’s family who reside with the child and persons involved in the child’s care and upbringing;
• the child’s views and preferences, if they can be reasonably ascertained;
• the length of time the child has lived in a stable home environment;
• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child;
• the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
• the permanence and stability of the family unit with which it is proposed that the child will live;
• the ability of each person applying for custody or access to the child to act as a parent;
• any familial relationship between the child and each person who is a party to the application (CLRA, ss. 24(2)).

[8] Since the parties are both in agreement that a Summary Judgment for a Final Order is appropriate in this matter, I will not review the requirements related to a Summary Judgment. In any event, it is clear that there is no genuine issue requiring a trial in this matter. I have all of the appropriate and necessary information in order to make a Final Order.

[9] The Respondent argues that the Applicant is in contempt of Court. If the Court finds a person in contempt of the Court, it may order that person to be imprisoned, pay a fine, pay an amount as a penalty, do anything else that the Court deems appropriate, not do what the Court forbids, pay costs and obey any other order (Family Law Rules, Rule 31(5)).

[10] Justice James starts off in paragraph 1 of his Final Order with the following: “[t]he Applicant shall have the sole decision making for the children…The Applicant and the Respondent shall consult with each other on any proposed changes or concerns with regard to the children. In the event of a disagreement, the Applicant is to make the final decision”. With regards to the schools, Justice James was very specific when he stated in paragraph 13: “[t]he children shall be registered at [KPS] for the 2014/2015 school year”. Justice James did not state that the children had to remain at this school after 2015. When the Applicant exercised her final decision making power regarding the change of the children’s schools, the evidence supports that she did so in the best interest of the children. Based on the evidence presented to this Court, I do not find that the Applicant was in contempt of Court by her actions of changing the children’s schools. The Applicant acted in compliance with Justice James’ Final Order.

[11] With regards to a change in circumstances, based on the evidence before this Court, I find that there has been a change in circumstances regarding the school and custody issues. The Applicant has moved into the school district of N’s school. Consequently, S has also changed schools and will attend the VMPS in September. As of September 1st, the Respondent will, for the first time, move into the children’s school district and close to the Applicant’s residence. In addition, the information obtained today from Ms. Barron regarding the children’s wishes is clear: N wishes to have limited access to the Respondent, having one visit every other weekend and S wishes to reside one week with one parent and the other week with the other with a mid-week visit.

[12] As per paragraph 8 of Justice James’ Final Order, the Applicant had to provide the Respondent’s information to the children’s schools in order to ensure that he directly received updates and information. Attached as Exhibits to the Applicant’s Affidavit, there are a series of e-mails which show that she corresponded with the Respondent regarding the children. For example, she advised him that N had applied to the CHS for a specialized arts program and later that she was accepted into the program, she shared with the Respondent an update she received from the school, information regarding N’s sprained ankle and S’ dental work. There is also an e-mail exchange between the parties regarding school bus issues. The Applicant’s actions were compliant with Justice James’ Final Order. However, they can be improved upon. She must ensure that the Respondent’s contact information is provided to the schools, religious educators and/or healthcare professionals.

[13] In respect of the transportation of the children, Justice James decided that once the Applicant had a driver’s license and a vehicle, she must assist with the driving. The evidence before the Court is that the Applicant now has her driver’s license and she can transport the children.

[14] As for the passports, based on the evidence presented to this Court, it is appropriate for the Applicant to submit an application in order to obtain the children’s passports. Once they have been obtained, the Applicant must file them with the Court within ten days of receipt. She must then immediately advise the Respondent in writing that she has done so and he must confirm that he received this notice. The passports may be released to a party with the express written consent of the other party, such consent shall not be unreasonably withheld. If one party refuses to consent to the release of the passports, the other may obtain a Court Order for their release. In addition, travel outside of Canada with a child or both children requires the express written consent of the other party and such consent shall not be unreasonably withheld. If one party refuses to consent to the travel, the other party may obtain a Court Order permitting travel.

[15] In addition to all of the evidence and information submitted at this hearing, I have taken into account the views of the children and their bonds with both the Applicant and the Respondent.

[16] I conclude that the Applicant shall continue to have the sole decision making capacity regarding the children. I have also addressed the parenting schedule below.

[17] Furthermore, the Respondent seeks the amount of $5,000 to compensate him for his forced change in residence. The Applicant appropriately changed the children’s school in line with Justice James’ Final Order. For the first time, the Respondent will reside in the children’s school district. This will allow for him to have the greater access that he desires with S. I decline to make such an Order. Consequently, I decline to order the amount requested.

Conclusion

[18] For all of the above-noted reasons, I make the following Final Order:

a) The Applicant shall have sole decision making for the children, N born on October 14, 2004 and S, born on January 16, 2009. The Applicant and the Respondent shall consult with each other on any proposed changes or concerns regarding the children. In the event of a disagreement, the Applicant will make the final decision.

b) Commencing on September August 31, 2018, the following parenting schedule shall take effect:

i. S shall spend alternating weeks with each parent, from Friday to Friday. The exchange shall take place at 6:00 pm. On every Tuesday, the other parent will pick up S at the other’s residence and will return her at 8:00 pm. ii. N shall live primarily with the Applicant. She shall spend a full day with the Respondent on alternating weekends, as well as any other times she wishes to spend with him, upon mutual written agreement of the parties. iii. When school is not in session during the Christmas break, the March break and the summer vacation, the same parenting schedule will continue. iv. The responsibility for transportation of the children shall be shared equally. v. The children shall be allowed to telephone or Skype with the other parent, when not in her/his care.

c) Each party shall have the right of first refusal if the other party is unable or unavailable to provide care for an extended period of time (more than four hours) during her/his scheduled parenting time. For the Applicant, this means that if her regular babysitter is not available for her scheduled work shift, she is to contact the Respondent to ask if he is available to care for the children before she hires a secondary babysitter.

d) If the parties are unable to agree on which parent should attend a particular school activity, (such as field trip, volunteering in the classroom, prayer, etc.) for S, the party who has the care of her that week shall have the first choice of which activities she/he attends. If the parties are unable to agree on which parent should attend a particular school activity, (such as field trip, volunteering in the classroom, prayer, etc.) for N, the Applicant will have the first choice of which activities she attends. The other parent is to be kept informed of which events she/he has chosen. If the parent cannot attend an activity, she/he must advise the other. In the event of special circumstances, such as the end of year school plays or activities in a large crowd where the child will not be caught in the middle of any potential conflict, both parties may attend. It is incumbent on both parties not to expose the children to conflict.

e) Both parties shall be included in all school records and databases as an emergency contact. The school shall be allowed to contact both parties and release the children into the care of either parent in the event of illness or emergency.

f) The Applicant shall keep the Respondent informed of the contact information for all professionals involved with the children. She shall provide letters to all professionals involved with the children permitting them to have direct contact with the Respondent.

g) Both parties may contact the children’s schools, religious educators and/or healthcare professionals directly for updates and information.

h) The Applicant must submit an application in order to obtain the children’s passports. Once they have been obtained, the Applicant must file them with the Court within ten days of receipt. She must then immediately advise the Respondent in writing that she has done so and the Respondent must confirm receipt of such notice. The passports may be released to a party with the express written consent of the other party, such consent shall not be unreasonably withheld. If a party refuses to consent to the release of the passports, the other may obtain a Court Order for their release. In addition, travel outside of Canada with a child or both children requires the express written consent of the other party and such consent shall not be unreasonably withheld. If a party refuses to consent to the travel, the other party may obtain a Court Order permitting travel.

i) Communication between the parties shall be limited to issues concerning the children. Neither party is to make insulting or derogatory remarks to the other.

j) Communication between the parties shall be via text or e-mail. Each party is to provide the other with one telephone number that may be used for emergencies when the children are in her/his care and one e-mail address that may be used for all other communication (for example, school activities, medical appointment, etc.).

k) Neither party shall move the children’s residence outside of the City of Ottawa without the other party’s written consent.

l) The previous restraining order contained in the Temporary Order of Justice Toscano-Roccamo dated September 26, 2013 is terminated.

Costs

[19] Since there is no clear successful party in this matter, I do not award any costs for the Settlement Conference and for this Motion.

Justice M. O’Bonsawin

Released: August 30, 2018