Court File and Parties
COURT FILE NO.: FS-17-88238-00 DATE: 2018 09 10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Muhammad Muddasir, Applicant AND: Asfayeen Iqbal, Respondent
BEFORE: Justice G.D. Lemon
COUNSEL: Kevin B. Peires, Counsel for the Applicant Asfayeen Iqbal, in person
HEARD: August 28, 2018
Endorsement
The Issue
[1] Mr. Muddasir’s Notice of Motion requests an order that:
- The children of the marriage shall reside primarily with him;
- Ms. Iqbal shall have access to the children: a) Every other weekend from Friday after school or 4:00 p.m. if there is no school, until Monday morning at the start of school or 9:00 a.m. if there is no school; and b) Every Wednesday from after school, or 4:00 p.m., if there is no school until Thursday morning at the start of school or 9:00 a.m. if there is no school.
- All access exchanges take place at the children’s schools or, if the schools are closed, then at the Tim Hortons located at 5 Ashby Field Road, Brampton, Ontario.
- The parties use Our Family Wizard for all communications between them except in the event of an emergency involving the children of the marriage.
[2] After hearing argument, I endorsed:
Settlement conference set for September 27, 2018 at 10:00 a.m. Order to go in terms of Notice of Motion. Written reasons to follow. The children shall be returned to Mr. Muddasir today by 5:30 at the Tim Hortons set out in the Notice of Motion. Every other weekend access to commence September 7, 2018.
[3] These are those reasons.
Background
[4] The parties were married June 2, 2002. Mr. Muddasir says that they separated February 12, 2016. Ms. Iqbal says that they separated December 26, 2016. They have two girls. D. is 14 and S. is 10.
[5] In July, 2018, Ms. Iqbal took the children and refused to return them to Mr. Muddasir. She cut off any electronic communication between them. Mr. Muddasir then brought this motion. He has not seen them since at least July 5, 2018.
[6] The materials are full of accusations and counter accusations. The police and the C.A.S. have been involved. Over their relationship, both parents have been charged with offences against the other. All of those charges have been withdrawn but Mr. Muddasir has now entered into a peace bond to have no communication with Ms. Iqbal except through counsel or through a valid family court order.
[7] The Office of the Children’s Lawyer reported to the parties in July of 2017 and July of 2018. After the July 2017 report, the parties attempted to share the children on a week about schedule. It is agreed that S. did not wish to spend that much time with her mother. The parties disagree as to why that is; each parent blames the other.
[8] The OCL reported again in July of 2018. That office now recommends custody to Mr. Muddasir with weekend and day access to Ms. Iqbal.
[9] Ms. Iqbal does not bring her own motion but submits that it is not in the best interests of the children to be with their father. She says that he is alienating them from her.
Analysis
[10] It is important to note that I am not simply instituting the OCL recommendations. There are far too many issues of credibility in play for me to make that determination. That is for the trial judge and that is why I have arranged for a settlement conference to move this matter along toward an expeditious trial.
[11] I can make no determination of who is telling the truth about the many allegations but there are enough agreed circumstances to make my interim ruling.
[12] S. does not want more time with her mother. The girls should be maintained on a schedule together. Every other week did not work for any of the members of the family.
[13] The children were often absent from school while in the care of Ms. Iqbal. Attendance at school is obviously important and should be ensured.
[14] The C.A.S. have not continued with their involvement after investigating complaints. They can be involved if further problems arise. They can provide a useful objective witness at trial if untrue allegations are made.
[15] Ms. Iqbal stopped the access without notice to Mr. Muddasir. This entire refusal of contact with their father is not in the best interests of the children. On the other hand, if Mr. Muddasir is attempting to alienate the children, there should be an order in place to ensure continued contact with Ms. Iqbal.
[16] Given the allegations against each of the parties, they should be separated as much as possible in order to bring an end to either the abuse or the allegations of abuse.
[17] The order requested ensures all of the above.
Result
[18] Accordingly, I order that:
- The children of the marriage shall reside primarily with Mr. Muddasir;
- Ms. Iqbal shall have access to the children: a) Every other weekend, commencing September 7, 2018, from Friday after school or 4:00 p.m. if there is no school, until Monday morning at the start of school or 9:00 a.m. if there is no school; and b) Every Wednesday from after school, or 4:00 p.m., if there is no school until Thursday morning at the start of school or 9:00 a.m. if there is no school.
- All access exchanges take place at the children’s schools or, if the schools are closed, then at the Tim Hortons located at 5 Ashby Field Road, Brampton, Ontario.
- The parties shall use Our Family Wizard for all communications between them except in the event of an emergency involving the children of the marriage.
Costs
[19] If costs cannot be agreed upon, Mr. Muddasir shall provide his costs submissions within the next 15 days. Ms. Iqbal shall provide her reply within 15 days thereafter. No reply submissions shall be filed unless I request them.
[20] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
[21] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Lemon J. Date: September 10, 2018