Court File and Parties

COURT FILE NO.: 176/18 DATE: 2019 03 08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Khaterah Rashidi, Applicant AND: Ahmad Reshad Saifuddin, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Siobhán Hanley, Counsel for the Applicant Jonathon Krashinsky, Counsel for the Respondent

HEARD: February 27, 2019

Endorsement

The Issue

[1] At the time of argument, there were a variety of motions and cross-motions outstanding between the parties. I was asked to deal only with the issue of the interim custody of the children of the marriage and whether Ms. Rashidi could relocate the ordinary residence of the children to Ottawa.

[2] For the reasons that follow, I order that the children shall have their interim primary residence with Ms. Rashidi, but I find that she may not relocate the ordinary residence of the children to Ottawa.

[3] At the time of the argument of this motion, without notice to Mr. Saifuddin, Ms. Rashidid had moved her residence to Ottawa. While I cannot order Ms. Rashidi to return to Guelph, it is in the children’s best interest that they reside in Guelph. Should Ms. Rashidi fail to return to Guelph, the principle residence of the children shall be with Mr. Saifuddin, commencing April 1, 2019.

Background

[4] The parties were married July 11, 2008. They disagree on the date of separation but it was either February or April of 2018. They continued to reside in the same residence until the house was sold January 18, 2019.

[5] The parties have two children, ages nine and four.

[6] Mr. Saifuddin sponsored his mother and sister to come to Canada from Afghanistan. They moved into the family home June 3, 2018. That sponsorship process was one of the areas of dispute between the parties.

[7] Ms. Rashidi’s Application was issued May 1, 2018. Mr. Saifuddin’s Answer was issued June 5, 2018. Between the Application and Answer, the parties have put all of the various family law issues into dispute. They both claim a divorce.

[8] The dispute between the parties calmed over the summer, although they disagree on the reasons for that. However, by October, both parties were moving for orders to have the house sold and that each would have custody or principle residence of the children.

[9] In her affidavit of November 26, 2018, Ms. Rashidi sets out that she had a job at the Guelph General Hospital, but that she also had an interview for a job in Ottawa.

[10] Although the parties had agreed on the sale of the home, there were difficulties in closing the transaction. Accordingly, Ms. Rashidi brought another motion for the sale of the home. In a supporting affidavit of December 18, 2018, it was disclosed that she had a job in Ottawa starting in mid-January.

[11] On January 4, 2019 Ms. Rashidi brought a motion returnable January 15, 2019, to obtain an order to allow her to move to Ottawa. Mr. Saifuddin responded to dispute that move and claim joint custody of the children with primary residence to be with him in Guelph. Those two motions could not be heard on that date and were adjourned on terms for the purposes of further evidence, cross-examinations, undertakings and facta. Both motions were adjourned to September 23, 2019, at 10:00 a.m.

[12] It appears that the house sale closed on or about January 18, 2019. On the same date, without notice to Mr. Saifuddin, Ms. Rashidi moved to Ottawa. Mr. Saifuddin therefore brought his motion, returnable February 19, 2109 for her return. Again, because there was insufficient time to argue the motion, the matter was adjourned to this date before me.

The Record

[13] I have 10 affidavits from, or on behalf of, Ms. Rashidi. I have eight affidavits from, or on behalf of, Mr. Saifuddin.

[14] Ms. Rashidi says that Mr. Saifuddin has been abusive both physically and mentally throughout their relationship. He is controlling of her and not involved in the raising of the children. She says that he has spoken badly about her in front of the children. One of the more significant complaints between the parties is that Ms. Rashidi objects strenuously to Mr. Saifuddin having his mother and sister in the house. She says that this arrangement causes stress to all members of the household.

[15] In response, Mr. Saifuddin says that Ms. Rashidi is racist, has spoken badly about him in front of the children, has anger management issues and is attempting to alienate the children from him.

[16] The affidavits are lengthy, detailed and repetitive. All complaints about the other are denied. Many of the complaints seem petty. While I cannot determine the facts of the case based on the affidavits, there do appear to be credible complaints against both parties that may affect the best interests of the children.

Analysis

[17] Both parties submit that I should make the determination with respect to mobility as if this matter had been argued January 15, 2019.

[18] This is an interim motion based on very conflicting affidavits. I cannot tell who will be successful at trial given the number of material facts in dispute. This order should not predetermine that issue.

[19] Both parties set forth the views of the child in their affidavits. They are conflicting. On these materials, I cannot rely on those views. They will, of course, be important with respect to a final order.

[20] Ms. Rashidi’s counsel submits that the move to Ottawa has not changed the status quo. Rather, she submits that the status quo is that the children are primarily parented by Ms. Rashidi. Mr. Saifuddin denies that and says that he has been involved with the children despite full-time employment. I cannot determine that issue but the status quo for the children has been in Guelph.

[21] Ms. Rashidi acknowledges that she exercised “self-help” by moving to Ottawa without notice to Mr. Saiffuddin and delayed notice to his lawyer. She says that she had to leave in such a fashion given her circumstances and the new employment. In my view, her conduct shows that she will not likely facilitate access.

[22] Within all of the complaints, I note that Ms. Rashidi does acknowledge that “Ahmad’s relationship with the children is just ‘fair.’ The children enjoy playing with him.” Despite Ms. Rashidi’s complaints of Mr. Saifuddin’s ability to parent, there is clearly an attachment between him and the children.

[23] Ms. Rashidi says that access can only occur in Ottawa. She is specific that the access should not occur in Guelph. Ms. Rashidi submits that access should be one weekend per month or perhaps alternate weekends, subject to their children’s activities. This is not a realistic or reasonable plan. Mr. Saifuddin is employed full-time in Guelph. Significant access cannot occur over that distance. The move and proposed plan will damage the relationship between Mr. Saifuddin and his children.

[24] Ms. Rashidi has listed a number of activities that she has already involved the children in Ottawa. She arranged to move all of her belongings to Ottawa January 4, 2019. She has been able to arrange an apartment, the children’s activities including Kumon Mathematics, guitar lessons, swimming lessons and Islamic studies. Based on Ms. Rashidi’s plan, those activities will be a further barrier for the children’s access to their father.

[25] Given the parties’ means, such long distance access would likely be unaffordable.

[26] Ms. Rashidi has been able to obtain a “twelve month full time contract at the Afghan Embassy in Ottawa.” That job was to start January 21, 2019. The job is only for a one year contract. It may mean that the children will have to move yet again at the end of that year. In submissions, Ms. Rashidi’s counsel submitted that it was permanent employment. However, I am required to make my determination on the evidence before me, not on factual submissions made from counsel table.

[27] In her affidavit, Ms. Rashidi says that she has completed a course of studies in psychology and social work from the Stratford Career Institute with a focus on child psychology. She says that she has had “several positions including financial management, teaching, computer instruction, customer service and education management including five years as a counsellor officer at the Embassy of Canada in Kabul Afghanistan.” She obviously has capabilities to find employment in an area closer to Mr. Saifuddin than she has chosen. Her affidavits do not disclose significant efforts to find employment in this area.

[28] The children’s school, activities, family and friends are all in the City of Guelph. Although Ms. Rashidi has been able to make supportive contacts in Ottawa, clearly the children would not be as comfortable in that circumstance as they would be in Guelph.

[29] I do not have the full details of Mr. Saifuddin’s living circumstances. Although he says that he was involved with the children, he was also employed on a full-time basis. On that record, I am not in a position to simply order custody of the children to him. In those circumstances, the children should remain in the primary residence of Ms. Rashidi, at least until both parties can put forward a plan in the City of Guelph.

[30] In all of the circumstances, I find that it is not in the best interests of the children to move to Ottawa on an interim basis.

[31] On the materials before me, I am not satisfied that the children are at risk in the care of Mr. Saifuddin. Accordingly, he shall have access to the children pending further order of the Court, every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. I do not suggest that this is enough access; however, it is the best that I can do given the uncertain circumstances forced upon me by Ms. Rashidi’s unilateral move to Ottawa. Mr. Saifuddin’s access shall occur in Guelph commencing Friday, March 15, 2019.

[32] Further access terms will need to be considered based on updated material filed by both parties. Those issues are adjourned to a date to be set at the earliest convenience of both counsel. I do not seize myself of the file; however, I believe it would be best for all parties if such a motion could be returnable before me if my schedule will allow.

[33] The potential loss of Ms. Rashidi’s employment in Ottawa will impact on the issues of child and spousal support. Both parties asked that the outstanding issues in the notices of motion be adjourned pending the outcome of this ruling.

Costs

[34] If costs cannot be agreed upon, Mr. Saifuddin shall provide his costs submissions within the next 15 days. Ms. Rashidi shall provide her response within 15 days thereafter.

[35] No reply submissions shall be filed unless I request them.

[36] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.

[37] 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: March 8, 2019