COURT FILE NO.: FS-14-80873-01
DATE: 2018-12-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SYED HASAN MASOOD v. AYESHA JAMIL AHMED
BEFORE: Doi J.
COUNSEL: Syed Hasan Masood, appearing in person Geoff Carpenter, Counsel for the Respondent Adrian Baker, Counsel for the Office of the Children’s Lawyer
E N D O R S E M E N T
Overview
[1] The Applicant father brought a contempt motion to permanently block the Respondent mother's access to her two (2) daughters, Saarah Masood (d.o.b October 20, 2006) and Mishaal Masood (d.o.b. September 20, 2010) citing an alleged breach of Lemon J.'s Order of October 22, 2014 which set out access terms for the mother. The alleged breach arises from events which occurred on August 4, 2018. The mother brought a cross-motion for a parenting plan: (i) to allow her to travel with the children to the United States during the upcoming winter school break; and (ii) to change the living arrangements for both children until the issues in this proceeding are resolved at trial.
[2] For the reasons that follow, the father's contempt motion is dismissed and the mother's cross-motion is granted on terms.
Relevant Background
[3] On or about July 2, 2013, the father and mother executed a Separation Agreement which, among other things, made a provision for the mother to have access:
- CUSTODY AND ACCESS:
(a) the father shall have custody of the children, and the mother will have liberal access upon reasonable notice. [Emphasis added]
[4] Subsequently, the Separation Agreement was incorporated into an Order made by Lemon J. on December 2, 2014 which provided at paragraph 2:
- THIS COURT ORDERS THAT: Applicant/father/payor, Syed Hasan Masood shall have custody of the children, namely Saarah Masood, born October 20, 2006, and Mishaal Masood, born September 20, 2010, and the Joint-Applicant/mother/recipient, Ayesha Jamil Ahmed aka Ayesha Hasan will have liberal access upon reasonable notice, to include Tuesday evenings and Friday overnight access in each week. [Emphasis added]
[5] The father interpreted Lemon J.'s Order as granting the mother access to the children on a limited basis, consisting only of three (3) hours each Tuesday evening from 5:00 pm to 8:00 pm, and twenty (20) hours starting each Friday evening from 4:00 pm until Saturday at noon. As such, the father has refused to permit access outside of these days and times. The mother disagrees with the father's interpretation of the access order but acquiesced to it earlier for a period citing an inability to challenge his interpretation due to an earlier lack of financial resources and an inability to deal with the confrontational situation. Since separating five (5) years ago, the mother has not had any access outside of these days and times, and has not had any holiday parenting time with her children despite repeated requests.
[6] In or around May 13, 2016, the mother brought a Motion to Change in an effort to seek a more balanced parenting arrangement. In 2017, she retained counsel to act for her in this proceeding. In his Order of January 12, 2018, Kurtz J. requested the Office of the Children's Lawyer ("OCL") to assign counsel and a clinical investigator for the children. The OCL accepted the referral and appointed counsel to represent the children. OCL counsel then undertook an investigation which led to a disclosure meeting with the parents on July 26, 2018.
[7] During the July 26, 2018 disclosure meeting, OCL counsel advised that Saarah wished to reside primarily with her mother. OCL counsel further advised that Mishaal wished to continue residing with her father and her step-family, but also wished some measure of increased access with her mother. Based on this, OCL counsel suggested amending the parenting plan on an interim basis. The father did not agree to amend the parenting plan, and took the position that the existing arrangement should not change. OCL counsel requested that a clinician be assigned to prepare evidence in this matter.
Events of Saturday, August 4, 2018
[8] On August 4, 2018 during an access visit at her mother's home, Saarah raised the disclosure meeting and asked when she would be able to begin living at her mother's home. When told of the disclosure meeting’s outcome, Saarah became distraught and categorically refused to return to her father's home at the conclusion of her access visit. After unsuccessfully trying to encourage Saarah to return, her mother returned Mishaal from the access visit to her father's home and suggested that the father come to speak with Saarah who had remained at her mother’s home. The father refused to speak with the mother, and declined to attend to speak with Saarah.
[9] Returning to her home, the mother went for a walk with Saarah in an effort to resolve matters. The mother told Saarah that her father's new wife had offered to speak with her, but Saarah declined to do so. Saarah then disclosed that she was having thoughts of self-harm and had scratched her right arm, which her mother reported to the Peel Children's Aid Society. The mother then received a call from police, who were responding to a call from the father. Police advised her that Saarah should return to her father's home, but Saarah refused to do so. Shortly thereafter, the father's new wife attended and spoke to Saarah who continued to refuse to return to the father's home. The police made a second call to the mother, who explained that Saarah was continuing to refuse to return. An hour later, the police arrived at the mother's home and eventually convinced Saarah to return to her father's home with them that afternoon.
The Contempt Motion
[10] A civil contempt proceeding is quasi-criminal in nature. Each of the following elements must be proven beyond a reasonable doubt:
The order that was breached must state clearly and unequivocally what should and should not be done.
The party who disobeys the order must do so deliberately and wilfully.
The breach must be proven beyond a reasonable doubt.
[11] Vigneault v. Bassey, 2014 ONCA 244 at para 11; Chiaramonte v. Chiaramonte, 2016 ONSC 7328 at para 96. The burden of proof rests on the party alleging the contempt; Chelsom v. Hinojosa-Chelsom, [2018] O.J. No. 433 (S.C.J.) at para 21. The purpose of a contempt order is always compliance, not punishment. Notably, civil contempt is imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed:
The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort where conferences to try to resolve access problems or motions for enforcement have failed. [Emphasis added]
Hefkey v. Hefkey, 2013 ONCA 44 at paragraph 3; Travers v. Travers, 2015 ONSC 5849 at para 30.
[12] Having carefully considered the record and submissions before me, I conclude that the father clearly failed to satisfy the test for a civil contempt order.
[13] The Order of Lemon J. which forms the underlying basis of the father's contempt motion does not prescribe a particular time for the conclusion of an access visit with the mother. Instead, the Order provides for "liberal access upon reasonable notice, to include Tuesday evenings and Friday overnight access each week." In my view, the mother's right to "liberal" access permits her to enjoy access visits with her children upon reasonable notice to the father without necessarily being limited to any prescribed days, times of day, or periods of time, provided that she exercises her right to access by giving reasonable notice. While the general understanding of the parties was that access visits on Saturdays were to end by 1:00 pm, this was based on their arrangement and was not expressly or unequivocally prescribed by the Order. As such, any delay on August 4, 2018 from the parties' arrangement would not, in and of itself, necessarily constitute a breach of the access Order. In any event, as the mother promptly advised the father of Saarah's unwillingness to return to his home on August 4, 2018, I find that the mother provided reasonable notice of the need for the access visit to be extended on that occasion in light of the difficult and exceptional circumstances that arose that day.
[14] I further conclude that the mother did not deliberately or wilfully disobey the Order. I find that the mother exercised best efforts and exhausted all reasonable recourse to encourage Saarah to return to her father's home on August 4, 2018 at the conclusion of her access visit, which included efforts to enlist the father (who refused to meet with Saarah) and his new wife (who was unable to convince Saarah to return) for help. It was not the mother preventing Saarah from returning, but rather it was Saarah who was refusing steadfastly to do so. I also find that the mother had no other reasonable recourse for returning Saarah, short of physically forcing her into a vehicle for the drive to the father's home which would have been traumatic and inappropriate.
[15] For these reasons, I have no difficulty concluding that the father has not proven beyond a reasonable doubt a breach of the Order. Accordingly, the contempt motion is dismissed.
Travel to the United States
[16] The children are off school for the winter break period starting December 21, 2018, and will be returning to school on January 7, 2019. The mother wishes to share the winter school break period with the father, and is seeking to have the children in her care from December 28, 2018 until January 6, 2019 so that they may travel to Dallas, Texas to visit her family there. The father does not consent to the children travelling, although he is agreeable to the mother having the children from December 28, 2018 to January 1, 2019, provided that his new wife is able to speak with the children daily. The father expressed concern over the mother's ability to cope with travelling to the United States with the children.
[17] I have no concern with the mother travelling to Dallas with the children for a holiday with her family. I am satisfied that there are no protection concerns with the mother. The children interact with her positively and with ease, and both children appreciate spending time with their mother. I also believe that it would be in the children's best interests to have the opportunity to spend time with the maternal side of their family.
[18] I further find that the mother has gainful and secure employment in Toronto where she successfully has pursued a career and been promoted several times. She is maintaining a residence in Ontario, and has a home and a life for herself that includes parenting her children. As the United States is a signatory to the Hague Convention, there is available legal recourse should issues arise with the return of the children.
[19] I understand that the mother previously experienced mental health issues which were tied to her marital difficulties and other childhood issues. Her family physician has advised OCL counsel that the mother appears to be doing much better with significant advancements in her education and career, and that she seems generally to be healthy. Her psychotherapist advised OCL counsel that she had no concerns with the mother having access to her children or being a full time caregiver as the mother had no mental health diagnoses, her difficulties appeared more situation based (i.e., related to the earlier marital conflict between her and her husband), and she is committed to the therapeutic process. There are no medical concerns over the mother having parental time with her children.
[20] The children have not had any holiday parenting time with their mother in five (5) years. The children also have not seen their maternal grandfather (who is elderly and ill), the mother's siblings, or their cousins in Dallas in six (6) years. This particular season will also be special as the children's uncle, the mother's brother, is set to be engaged on December 28, 2018. I believe that it will be in the childen’s best interests to spend time with their maternal family.
[21] The mother is granted parenting of the children from December 28, 2018 until the evening of January 6, 2019, and is permitted to travel with the children to Dallas, Texas to visit her family there during this period. The mother is ordered to provide the father with a complete itinerary for the trip at least two (2) days prior to departure, including details of where she and the children will be staying and how they may be contacted. The father is ordered to take appropriate steps to facilitate this travel including, but not limited to, providing the mother with the children's passports, if they are in his possession. Mishaal is to return to her father's home by 8pm on January 6, 2019.
Change in Living Arrangements
[22] The mother is seeking a change in the children's living arrangements to obtain more parenting time and to accommodate the expressed wishes of the children. To this end, the mother is asking for Sarah to reside primarily with her and spend alternate weekends from Friday after school until Sunday evening with the father. The mother is further asking for Mishaal to reside primarily with her father, and spend alternate weekends from Friday after school until Sunday evening and every Tuesday after school until her return to school on Wednesday.
[23] In undertaking my analysis, I am mindful of my responsibility to ensure the best interests of both children, respectively. I note from the OCL clinical investigator’s report and the submissions of OCL counsel that there are no protection concerns.
[24] The father acknowledged in court that the mother is a caring parent, and also acknowledged the importance of both parents having shared access to the children. He further advised in court that he is open to increasing the mother's general weekend access from Friday after school to Saturday at 6:00 pm for three weekends each month, and for one weekend each month to allow weekend access from Friday after school until Sunday. The father's preference is to not change the current routine for Tuesday evening access going for 3 hours from 5:00 pm to 8:00 pm.
[25] Saarah has expressed a consistent and strong interest in moving out of her father's home in order to reside with her mother. She has not wavered from this view during the period that OCL counsel has represented her. Mishaal has expressed an interest in continuing to live with her father, largely given her bond with her step sister and baby brother, while wishing to have some additional access time with her mother. Mishaal's view has not changed over the course of OCL providing representation to her. Both children described their parents in favourable terms and recounted positive experiences, while displaying insight into their parents' differing perspectives into the ongoing conflict between them which, unfortunately, introduced the children to adult feelings about the family situation.
[26] In light of the above, I find that it is in the best interests of the children to provide them with greater parenting time with their mother, as they have requested. To this end, I order that Saarah shall reside primarily with her mother and spend alternate weekends from Friday after school until Sunday at 8:00 pm with her father. I further order that Mishaal shall reside primarily with her father and spend alternate weekends with her mother from Friday after school until Sunday at 8:00 pm, and every Tuesday from after school until her return to school on Wednesday morning.
Orders
[27] Based on the foregoing, I make the following orders:
a) The father’s contempt motion is dismissed.
b) The mother is granted parenting of the children, Saarah Masood (d.o.b. October 20, 2006) and Mishaal Masood (d.o.b. September 20, 2010) from December 28, 2018 until 8:00 pm on January 6, 2019, and is permitted to travel with the children to Dallas, Texas during this period.
c) The mother is ordered to provide the father with a complete itinerary for the above-mentioned trip to Dallas at least two (2) days prior to departure, including details of where she and the children will be staying and how they may be contacted.
d) The father is ordered to take appropriate steps to facilitate the above-mentioned trip to Dallas including, but not limited to, providing the mother with the children’s passports, if they are in his possession.
e) Mishaal Masood will return to her father’s home by 8:00 pm on January 6 2019.
f) Saarah Masood shall reside primarily with her mother and spend alternate weekends from Friday after school until Sunday at 8:00 pm, and every Tuesday from after school until her return to school on Wednesday morning.
Doi J.
DATE: December 17, 2018
COURT FILE NO.: FS-14-80873-01
DATE: 2018-12-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SYED HASAN MASOOD v. AYESHA JAMIL AHMED
COUNSEL: Syed Hasan Masood, appearing in person Geoff Carpenter, Counsel for the Respondent Adrian Baker, Counsel for the Office of the Children’s Lawyer
ENDORSEMENT
Doi J.
DATE: December 17, 2018