Court File and Parties

Court File No.: FS-14-4747-01 Date: 2018 12 20

Superior Court of Justice - Ontario

Re: Javed Siddiqui v. Tabassum Anwar

Before: Doi J.

Counsel: Nadine Barmania, for the Applicant Daniel Simard, for the Respondent

Endorsement

Overview

[1] This is a motion by the Applicant father seeking the appointment of the Office of the Children’s Lawyer (“OCL”) to prepare a Voice of the Child Report, and alternatively for the OCL to represent the Applicant’s sons from the marriage, Aaid Javed Siddiqui (born December 17, 2004) and Ali Javed Siddiqui (born December 19, 2009), and other corollary relief. This motion follows the father’s motion to change the final consent order of Van Melle J. of June 20, 2016 to transfer sole custody of his sons from the Respondent mother to himself and to amend the parties’ parenting time arrangement.

[2] The mother opposes the father’s motion on several grounds. She objects to this motion being heard on procedural grounds, claiming that the father: (i) is barred from bringing the motion as he did not obtain requisite leave pursuant to the order of F.B. Fitzpatrick J. on June 6, 2018; and (ii) is in contempt of an equalization payment order by Nordheimer J.A. of July 28, 2018 which, in turn, led to an order by Brown J.A. on November 28, 2019 to stay the father’s appeal to the Court of Appeal from the Final Order of LeMay J. pursuant to his reasons of January 9, 2018 and May 24, 2018. The mother also objects to the motion on substantive grounds, claiming that: (i) another OCL report would not be in the children’s best interests given that an earlier comprehensive OCL assessment was undertaken just 2 ½ years ago and led to the current custody and parenting time consent final order by Van Melle J. on June 20, 2016; and (ii) there is no basis to change the parenting time arrangement under the consent final order.

Requirement for the Applicant to Obtain Leave for the Motion

[3] The mother submits that this motion is barred as the father failed to obtain leave to bring the motion as required by Fitzpatrick J.’s order of June 6, 2008. I disagree.

[4] During the case conference held June 6, 2018, Fitzpatrick J. made the following endorsement:

June 6, 2018. Case conference held. Leave is granted to bring a motion for setting extracurricular activities for the children commencing in September 2018. Temporary order to go as per the consent filed. No leave is granted for any further motions pending further court order. The next step in this matter is a settlement conference which will be scheduled by counsel for the parties. [emphasis added]

[5] The parties then attended a settlement conference when Woollcombe J. made a temporary consent order dated September 11, 2018 which, in addition to addressing other matters, expressly provided:

THIS COURT ORDERS ON CONSENT THAT:

6. The Applicant to bring a motion for involvement of the Office of the Children’s Lawyer in this matter. [emphasis added]

[6] On this record, I am satisfied that the Applicant father had express Court approval to bring this motion for OCL involvement that satisfied Fitzpatrick J.’s order of June 6, 2018 with the consent of the mother who was represented by counsel at the conference when Woollcombe J. made her consent order.

[7] During submissions before me, Respondent’s counsel suggested that his client’s consent for the father to bring this motion somehow was given in error based on an incorrect or incomplete understanding of the case by his colleague who attended the settlement conference with the mother. I am unable to accept this submission, which is not supported by any evidence. I further note the importance of holding parties to their bargain to ensure fairness and the integrity of the administration of justice. This ground for dismissing the motion fails.

Requirement for the Applicant to Comply with Outstanding Orders

[8] Relying on Rule 1(8) of the Family Law Rules, the mother claims that this motion should be dismissed given the father’s ongoing failure to pay the outstanding equalization amount ordered by Nordheimer J.A. on July 30, 2018, which led Brown J.A. on November 28, 2018 to stay the father’s appeal, order costs against him, and grant the mother leave to move to quash the appeal for non-compliance.

[9] The father paid the costs ordered by Brown J.A., and has paid child and spousal support and rent on jointly owned properties as ordered by the Court. To liquidate funds to pay the outstanding equalization order, the father has been attempting to sell two properties that are jointly owned with the mother and located in Qatar and India, respectively. However, the mother has refused to accept offers to purchase the jointly owned Qatar property, and instead gave instructions to accept a higher offer for that property. The parties’ agent continues to seek a better price for this property.

[10] Recently, the parties gave their authorization to accept an offer of purchase for their jointly owned property in India, which is expected to close in mid-January 2019. The father is also seeking to sell a third property that he owns in Qatar, which is expected to close shortly. Based on this, the father anticipates making a partial payment to the mother against the outstanding equalization amount before the end of 2018.

[11] Taking the foregoing into account, I find that the Applicant is progressing to liquidate his assets with a stated view to complying with the outstanding payment order against him. Accordingly, I am not prepared at this time to dismiss his motion based on the outstanding equalization order against him. I also note my general reluctance to dismiss a motion for OCL involvement based on an outstanding equalization payment order. In saying this, I am guided by my responsibility to act in the best interests of children in proceedings involving custody and parenting time issues, and the importance of not pre-emptively attenuating or compromising such proceedings on account of collateral matters that do not directly relate to the children, such as outstanding equalization orders.

The Motion to Request the Appointment of the OCL

[12] On August 10, 2017, a counsellor from the Peel Children’s Centre had a crisis visit with Aaid and his mother over concerns that Aaid was running away from her home to see his father. Aaid loves his mother very much and wanted to continue to see her, but expressed a preference to live with his father four days per week and the other three days with his mother. Having lived previously with his father and younger brother, Aaid felt more comfortable with his father. Aaid also expressed dissatisfaction with how his mother spoke to him, which he described as too much yelling and screaming in her house.

[13] Upon learning of Aaid’s feelings and preference, his mother discussed the situation with the father. Both parents agreed that Aaid should stay with his father four days per week and with his mother for the remaining three days, and agreed to work out a transition plan for this schedule. There were no other concerns involving Aaid.

[14] Thereafter, the mother refused to amend the parenting schedule. The father commenced his motion to change in October 2017, and takes the position that an OCL voice of the child report would help ascertain the children’s wishes in a relatively less intrusive manner (i.e., compared to a more fulsome custody and access assessment, which the father believes is not required) and would be preferable to having the children testify directly at trial.

[15] Over the past year, Aaid’s relationship with his mother steadily improved. Time spent with his mother and siblings over the summer 2018 vacation period was much more relaxed, and his recent counselling sessions were productive. The mother submits that these factors support not having OCL involvement, which would disrupt the progress that Aaid and the other children have made.

[16] The mother notes that the children have experienced significant trauma from the family conflict that has taken a toll on everyone. She feels, therefore, that her children should not be subjected to another OCL investigation given the intrusive and disruptive nature of the process that would re-introduce them to the family conflict and the negativity of the ongoing litigation. While acknowledging that a Voice of the Child Report is less involved than a full OCL assessment, she believes that another OCL investigation of any kind would serve little purpose, particularly as the children recently underwent a comprehensive OCL assessment only 2 ½ years ago. She alleges that the father is manipulating the children, who are afraid of him, and that Aaid is particularly vulnerable to his father’s efforts to alienate the children from her. She also claims that the father coached Aaid to come to his home during the August 10, 2017 incident mentioned above, which appears to have triggered the father’s motion to change.

[17] Importantly, Aaid participated in a single session therapy meeting on August 21, 2018 with a clinician at the Peel Children’s Centre. This meeting occurred slightly over one (1) year from Aaid’s earlier crisis visit. During his August 21, 2018 individual therapy meeting, Aaid recounted his difficulties when his parents separated a few years ago, but advised that he had moved past the difficulty and self-identified as coping well. He presented as likeable, open and engaged, and described his co-curricular activities which included singing, dancing, acting in a drama group, and cooking. Aaid reportedly felt some stress with starting high school (i.e., making new friends, wanting to do well academically, keeping organized while moving between two homes), but felt sufficiently stable and comfortable that he declined further coping strategies. He reportedly appreciated the session with the clinician and being able to talk. The clinician identified no safety concerns, and recommended that Aaid continue using his positive coping strategies which appeared to work well. His father joined Aaid at the end of the session for feedback and recommendations. The information and outcome from this session is both positive and encouraging.

[18] The available evidence in the record concerning Ali, the parents’ younger son, was much more limited. That said, I find from the materials and submissions that Ali enjoys a good relationship with his parents, siblings and friends, is achieving well in school, and appears to be settling in well with his mother at her home.

[19] Having considered the materials before me, I find that Aaid and Ali are both doing well and appear supported by their family and others. At this time, both appear to have emerged from the earlier family conflict comparatively well and seem more settled with a measure of stability in their lives. In view of these circumstances, I find that it would not be in the best interests of Aaid and Ali, respectively, for the Court to seek OCL involvement for a voice of the child report or otherwise to represent them. In making this determination, I am mindful of the importance of ensuring the children’s best interests by minimizing their exposure to the family conflict and related disruption in their lives. Arranging for a third-party report would inevitably re-introduce the children to negative effects of the ongoing family dispute which I find, on balance, would not be warranted or appropriate for them in the current situation.

[20] In arriving at my findings, I placed no weight at all on the April 20, 2016 endorsement prepared by Snowie J. as a settlement conference judge, which was included in the Respondent’s responding materials on this motion. As the observations in her endorsement were based not on evidence but information shared confidentially during the course of a settlement conference by the parties, I am unprepared to rely on this information in deciding this motion and I share the views of LeMay J. in Siddiqui v. Anwar, 2018 ONSC 219 at paras. 121 to 123.

Disposition

[21] This motion is dismissed.

[22] I urge the parties to agree on costs for this motion. If they are unable to do so, written cost submissions not to exceed 2 pages (plus any cost outline and offer to settle) may be delivered, first by the Respondent within 15 days of this endorsement followed by the Applicant within 20 days of this endorsement.

Doi J.

DATE: December 20, 2018