Court File and Parties

COURT FILE NO.: FS-16-20853 DATE: 20190416 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Samia Hamid Ahmed Ali Applicant – and – Abudulelah Hassan Mohammed Bashir Respondent

Counsel: Courtney G. Hughes, for the Applicant Appearing on his own behalf on May 31, 2019 and July 26, 2018 Kulbir Rehal for the Respondent on February 19-22, 2019

HEARD: May 31 and July 26, 2018, February 19-22, 2019

C. Gilmore, J.

Judgment on Motion to Change

[1] This is the applicant’s Motion to Change the consent order of Roberston, J. dated April 24, 2012 (“the 2012 order”).

[2] The parties have one child namely H.M. (“the child or H.M.”) born December 19, 2005. He is now 13. Both parties are from Sudan. They return there several times a year to visit family.

[3] H.M. has Cerebral Palsy. There is no dispute that he will likely be the parties’ dependent throughout his life. H.M. requires continuing care and therapies and needs assistance with his daily living routines including eating, toileting and dressing. He requires the use of a wheelchair.

[4] For the first five years of his life H.M. resided with the applicant’s mother in Sudan while the applicant completed her medical training in Canada. He came to Canada and joined the applicant in 2010. There is no dispute that the applicant has been H.M.’s primary caregiver since he came to Canada.

[5] At the time of 2012 order the applicant was working in Kingston. She is a medical doctor and came to Canada to finish her residency in anesthesiology. She was offered a fellowship at Sick Children’s Hospital in Toronto which prompted the negotiations toward the 2012 order. The applicant has now completed her training and fellowship and works part time at several different Toronto region hospitals. Her evidence was that she is unable to work full time because of the time involved in ensuring H.M. receives his therapies and treatments in Toronto and in Chile where he receives a specialized treatment program.

[6] The respondent is employed with Statistics Canada. He lives and works in Ottawa, Ontario.

[7] The parties have been in litigation since shortly after H.M.’s birth in Sudan. Once in Canada, the litigation continued in Kingston between 2010 and 2014. The parties then continued their litigation in Toronto with the applicant issuing her original Motion to Change in May 2016.

[8] The applicant describes the respondent as “difficult and litigious.” During this proceeding and in her previous affidavits, the applicant described the problems she had in bringing H.M. to Canada at a time when both parties were living here. The respondent refused to consent to a Canadian passport being issued for the child. It took the applicant approximately four years to bring H.M. to Canada from Sudan due to what she alleges was interference from the respondent.

[9] The respondent has a very different version of these events, claiming the applicant obtained a passport surreptitiously and without his consent because he insisted on a joint custody arrangement when the child came to Canada. There was some confusing evidence about the respondent having obtained a citizenship card for H.M. and then refusing to consent to a passport application because the applicant had also obtained a citizenship card for the child. The respondent insisted the child could not have two citizenship cards and wanted this issue resolved before he would consent to a passport.

[10] Once H.M. came to Canada in 2010, litigation recommenced. At least five different orders emanated from the Kingston litigation. In addition, since the applicant sought a restraining order against the respondent at that time, the parties signed a Declaration and Undertaking in September 2006.

[11] In the 2006 Undertaking signed by the respondent, he agreed not to molest, annoy or harass the applicant and that he would not communicate with her other than by email in order to exchange information about H.M. He further agreed not to attend at her home or workplace or within 10 metres of her person unless invited to do so. If the respondent violated any terms of the undertaking, the applicant was entitled to apply for a restraining order.

[12] The applicant has maintained that the respondent was physically and sexually abusive to her during the marriage. Her evidence at trial was that she continues to be afraid of him given his explosive temper and his unpredictable and aggressive behaviour both in person and via electronic communication.

[13] The respondent has sought to terminate his Undertaking on several occasions. He claims it is no longer needed. The applicant will not agree to terminate. She feels that the Undertaking provides her with some degree of protection from the respondent’s behaviour. She wants the Undertaking to remain in place.

[14] The applicant also signed an Undertaking in September 2006 but with different wording than that of the respondent’s Undertaking. The applicant undertook to keep the respondent advised of her current email address and telephone number and to keep the respondent advised of significant developments in H.M.’s life through photographs and documents.

[15] In 2012, after seven years of litigation, the parties finally resolved all matters on consent. The 2012 consent order is the order which both parties are seeking to change.

[16] The salient parts of the 2012 consent order are as follows:

a. The parties agreed to joint custody of H.M. but that he would reside primarily with the applicant.

b. The applicant has the final say in all significant matters relating to H.M. after consultation with the respondent.

c. The applicant was permitted to move from Kingston to Toronto with H.M.

d. The applicant must pay for the cost of all access by H.M. to the respondent including the cost of an accompanying adult. Access was agreed as follows:

i. Half the winter break in December/January.

ii. March Break in even numbered years.

iii. Every Easter, Thanksgiving, Family Day, Victoria Day and Father’s Day weekend.

iv. 2 one week periods and one four day period during the summer. The respondent to pay the transportation and accommodation costs of the four day period.

v. Eid to be shared and alternated with the respondent paying for the cost of transportation and accommodation for this visit.

vi. Skype communication twice a week and reasonable telephone contact with a minimum of one call per week.

vii. Additional access at the respondent’s expense as follows:

1. Four weekends per year from Friday after school to Sunday at 3:00 p.m.

2. Any time the respondent is in Toronto for up to two days at a time on reasonable notice and not to interfere with school or previously scheduled therapy appointments.

e. The respondent may communicate directly with all professionals who are treating H.M. as well as any of his teachers.

f. The applicant may not move outside of the GTA without the respondent’s consent or a court order.

g. Both parties may travel with the child within Ontario without notice to the other. If a party travels within Canada, but outside of Ontario, certain notice provisions apply.

h. Either party may travel with the child to any country which is a signatory to the Hague Convention. Certain notice provisions apply.

i. No party may travel with H.M. to a non-Hague Convention country except with the consent of the other party or a court order.

j. The respondent is not required to pay child support although the applicant is entitled to apply for child support if she or the child suffers a negative change in circumstances or the respondent enjoys a positive change in his circumstances.

k. The circumstances in existence at the time of the 2012 order are listed in the order as follows:

i. The respondent is employed full time as an economist with Statistics Canada.

ii. The applicant is a physician and has accepted a position as a fellow at Sick Children’s Hospital in Toronto which will commence in the spring of 2012.

iii. The applicant is collecting all available subsidies for H.M.

iv. The applicant will pay the travel costs of access as set out in the order and all section 7 expenses for the child including childcare, therapy costs and any medical or therapeutic costs which are not covered by her medical benefits.

[17] Because this Motion to Change has gone through so many amendments since it was issued on May 17, 2016, it is important to set out the relief as originally pleaded and how it has evolved over the last three years.

[18] In her original Motion to Change, the applicant sought only an urgent order to dispense with the respondent’s consent to obtain a new passport for H.M.

[19] The applicant’s evidence was that she has tried various treatments and physiotherapy for H.M. but has found none as effective as the treatments employed by the Cuevas Medical Clinic in Santiago, Chile. These treatments were supported by H.M.’s pediatrician, Dr. Sheila Jacobson.

[20] When H.M.’s passport expired, the applicant sought to renew it but the respondent would not consent. As the applicant needed the passport in order to travel to Chile with H.M., she issued the Motion to Change and brought a motion to dispense with the respondent’s consent to apply for a new passport for H.M.

[21] By this point, H.M. had already undergone seven treatments at the Cuevas clinic and, according to the applicant, was making progress. The applicant was clearly frustrated as the 2012 consent order permitted her to travel to all Hague Convention countries but she obviously could not do so without a passport.

[22] The respondent did not appear at the motion on May 17, 2016 although the motions judge was satisfied that the respondent had notice of it. The applicant’s relief was granted and the respondent was ordered to pay costs of $3,500. The respondent has not paid these costs claiming they should be offset against costs owed to him by the applicant arising from their Sudanese litigation.

[23] As the applicant’s May 2016 Motion to Change was issued in haste, she issued an Amended Motion to Change on January 6, 2017. In the Amended Motion to Change, the applicant sought the following additional relief:

a. The respondent to have three weeks of summer vacation with H.M. and the applicant to have final say on all summer vacation dates;

b. Notice of dates for summer vacation to be provided by the respondent by April 1 st each year;

c. The respondent to pay for all travel expenses for access;

d. The respondent not to travel to the Middle East or any non-Hague Convention countries with H.M.;

e. H.M. to have Skype communication with the respondent once per week at a time that did not interfere with the child’s schedule; and

f. An order allowing the applicant to travel with H.M. anywhere in the world without the consent of the respondent.

g. An order dispensing with the respondent’s consent to obtain a new passport for H.M.

h. An order that all access to be confirmed 60 days in advance by the respondent.

[24] The reasons for the additional relief sought by the applicant related mostly to the fact that the respondent had accepted a job in Oman and was living there at the time. He had seen H.M. only two days during the summer of 2016. The applicant sought to change some of the terms of the 2012 order to reflect the reality of the party’s circumstances. In particular, the requirement she pay for the cost of access visits was no longer viable given the respondent’s new residence in the Middle East.

[25] The respondent’s Response to Motion to Change was issued in March 2017. The respondent agreed that he would not travel to the Middle East or non-Hague Convention countries with the child but he did not agree with any of the other changes sought by the applicant.

[26] The applicant issued an Amended Amended Motion to Change on May 9, 2017. In addition to the relief requested in her previous Motions to Change, the applicant sought to change the provision in the 2012 court order which did not require the respondent to pay child support. The applicant sought child support commencing May 31, 2017 based on an estimated $180,000 annual income for the respondent.

[27] The applicant also sought a provision allowing her to travel to non-Hague Convention countries with the parties’ child H.M. because many of her family members live in Sudan and she is from Sudan; she sought Table child support for H.M. retroactive to May 31, 2017; two weeks of summer access for each party; and, she sought to change the provision in the 2012 order that required her to pay for all H.M.’s travel costs and the cost of an accompanying adult when he went to visit the respondent in Ottawa.

[28] The respondent argues that the Motion to Change should be dismissed because there has been no material change. The 2012 order was arrived at after lengthy negotiations. The respondent gave up significant access time with his son in order to permit the applicant to move to Toronto and pursue a good job opportunity. The concessions were agreed to by the respondent in order to permit the move and they should not be varied.

[29] In his Amended Response to Motion to Change dated June 5, 2017 the respondent sought six weeks of summer vacation with the child, a requirement that all child related decisions be made jointly, four Skype contacts with the child per week, enforcement of the access order by local police, an order to have H.M.’s views and preferences heard, and a requirement that the child reside with him if the applicant chooses to travel to a non-Hague Convention country.

[30] The respondent engaged new counsel in December 2018. In his Amended Amended Response to Motion to Change dated January 4, 2019, the respondent sought the following relief:

a. A requirement that all access visits set out in the 2012 order require 72 hours’ notice to the applicant.

b. Five weeks of summer vacation.

c. H.M. to be left in the respondent’s care if the applicant travels to a non-Hague country.

d. Sundays shall be a day of rest for the child and he should not be enrolled in activities on that day.

e. The parties shall engage in joint decision-making on important decisions related to H.M. If they are unable to agree, the parties to refer the matter to a Parenting Co-coordinator whom they shall agree to appoint.

f. The respondent to have four Skype calls per week with H.M. at specified times.

g. The parties to cooperate in engaging a counsellor to assist them to reduce conflict and improve communication.

h. Local police forces shall be requested to enforce the access order if required.

i. The Declaration and Undertakings signed by the parties in 2006 shall be revoked.

j. The respondent shall not be required to pay child support. If he is ordered to do so, it shall be in accordance with his income as per Line 150 on his Income Tax Return.

k. The applicant shall submits receipts to the respondent for any uncovered medical expenses for H.M. that are not otherwise covered by the applicant’s plan.

l. H.M. shall be enrolled with a physiotherapist in Ottawa to ensure that he receives therapy when he resides with the respondent for more than two weeks.

[31] The applicant did not agree with the respondent’s amended requests for relief. She relies on the recommendation of the s.112 report from the Office of the Children’s Lawyer which recommends supervised access. Further, the applicant does not agree that co-parenting would work. She is not in a position to pay the cost of a parenting coordinator.

[32] The case management judge in this matter ordered that the parties’ evidence-in-chief be in the form of their previously filed affidavits in this proceeding. The applicant relied on her affidavits sworn January 6, 2017, May 17, 2017, July 12, 2017, March 9, 2018, April 5, 2018, May 18, 2018 and February 8, 2019. The respondent relied on his affidavits sworn March 10, 2017, March 23, 2018, April 8, 2018 and January 4, 2019.

[33] The Motion to Change was originally scheduled to be heard on April 17 and 18, 2018. The applicant sought an adjournment to respond to a newly filed affidavit from the respondent. The respondent would not consent to an adjournment unless he received certain specified summer access.

[34] The Motion to Change was adjourned to May 31, 2018. The respondent received court ordered summer vacation to H.M. from June 29 to July 31, 2018 and from August 13 to 27, 2018. The court was clear that this schedule applied only to the summer of 2018.

[35] The hearing of the Motion to Change commenced on May 31, 2018 but was not completed. The matter was adjourned to July 26, 2018 for a further day of evidence. On May 31, 2018 the respondent cross-examined the applicant for the entire day. It was intended that on July 26, 2018 the applicant’s counsel would cross-examine the respondent for most of the day with a short time reserved for oral submissions.

[36] On July 26, 2018 the applicant sought an adjournment at the commencement of proceedings. An incident occurred on June 15, 2018 in the course of an access exchange at the Ottawa airport. The applicant alleged that as the respondent was taking H.M. out of his wheelchair and putting him into the car he said to the applicant “Where is his walker? He will never walk in a million years because of your bad intentions and actions.” The respondent then slammed the car door shut. When the applicant went to open the car door to say good-bye to her son, the respondent grabbed her arm and told her not to touch the car and to get lost. The respondent said he did not believe that applicant intended to open the car door to say good-bye to H.M. He reacted because he thought the applicant was going to take H.M. out of the car and leave with him.

[37] As the incident occurred in front of H.M., he was naturally upset. According to the applicant he was fearful of his father and did not want to see him for further access. He texted his mother on the Sunday morning of that weekend and asked to come home. On his return, H.M. told his mother that he did not want to see his father for summer access because he was afraid of his father and did not like it when he drank alcohol. Given the child’s upset and concerns, the applicant refused to allow H.M. to attend for the previously ordered summer access in 2018 and sought an adjournment of the Motion to Change to allow for appointment and report from the Office of the Children’s Lawyer.

[38] The respondent conceded that his actions and comments on June 15, 2018 were unfair and that in hindsight this was upsetting to the child. He understood why H.M. would have been upset about the ensuing argument between his parents.

[39] The respondent did not agree with the suspension of access. He told the court on July 26, 2018 that he apologized to H.M. after the incident and that the rest of the access weekend went well. Suspending access in such a unilateral manner was both prejudicial and unfounded.

[40] As a result of the June 15, 2018 incident, the applicant was adamant that H.M. no longer wanted to go for access. She sought appointment of the OCL for the purposes of a Section 112 assessment report. The applicant sought no access pending the publication of the report in accordance with the child’s wishes.

[41] The respondent opposed the appointment of the OCL notwithstanding that he had previously included in his Response to Motion to Change that he wanted the child’s voice heard.

[42] The court determined that a Section 112 report was long overdue in this case given H.M.’s disability and the animosity between the parties. However, it was felt that a complete suspension of access would be too prejudicial to the respondent. As such, the summer access schedule was suspended and the regular access schedule was re-instated. However, it was ordered that all access was to take place in Toronto with the respondent paying for any transportation and accommodation associated with access.

[43] After that order was made, the respondent chose not to exercise access in Toronto to H.M., other than one interview with the Social Worker and H.M. in the fall of 2018 and three days in December 2018.

[44] A social worker was appointed by the OCL and preparation of the s.112 report was undertaken. The respondent hired counsel and all parties agreed that the matter would continue for three days on February 19, 20 and 21, 2019.

The Issues

A) H.M.’s Treatments in Chile and Passport Issues

[45] The applicant takes H.M. to Chile approximately four times per year for treatment at the Cuevas Medical Clinic in Santiago, Chile. This treatment, which consists of a series of exercises called psychomotor therapy, was developed by Ramon Ceuvas, a Chilean therapist in 1972. The treatment is generally known by its acronym “CME” which stands for Cuevas Medic Exercises. According to the applicant, this is a revolutionary therapy which reinforces the natural recovery potential of developmentally challenged children with intensive neuromuscular stimulation.

[46] H.M. started the CME program in 2013 and the treatment is supported by his pediatrician Dr. Sheila Jacobsen. The respondent is not opposed to this treatment as long as he does not have to pay for it. The applicant has noticed significant improvement in H.M. after receiving these treatments and she intends to pursue the treatments so long as she continues to see positive results for H.M. The difficulty is that each session of CME requires the applicant to travel to Chile with H.M. for three weeks. In her evidence she explained this is why she continues to work part time. She needs the flexibility of a schedule that allows her to take prolonged absences.

[47] While the applicant does not seek a contribution from the respondent for the cost of the CME treatments, it forms part of the background for her request for table child support in that her expenses exceed her income mostly due to the cost of travel and treatments for H.M.

[48] The respondent claims he was never consulted about the CME treatment although he does not specifically object to it. In his cross-examination on February 20, 2019, the respondent testified that he would do the same thing for H.M. if he was in the applicant’s shoes.

[49] The respondent’s main concern is the child’s lack of progress in the program. In his affidavit sworn April 8, 2018, the respondent deposed that he spoke to the founder of the program, Mr. Ramon Cuevas, in 2016 when he was in Toronto. Mr. Cuevas told the respondent that he was 99.9% sure that H.M. would walk independently within two years. That has not happened. The respondent is concerned that he is indirectly being asked to contribute to the expense of this program when there is no evidence that it is working as promised.

[50] The applicant was asked about service providers in Canada who are trained in CME and who would be able to treat him here. The applicant testified that having a certificate in CME does not mean you are good at it. She was adamant that Mr. Cuevas’ clinic provides the best treatment with the most positive results for H.M.

[51] H.M. requires ongoing physiotherapy and occupational therapy. As he matures, he needs more intensive treatment. However, none of the treatments he receives at home are as effective as the CME treatments in Chile. These treatments are supported by H.M.’s pediatrician as per her letters dated December 5, 2013 and December 18, 2015. As well, H.M.’s physiotherapist Simona DeMarchi supports the CME treatment. In her February 13, 2018 letter (Exhibit “L” to the applicant’s affidavit sworn March 9, 2018) she sets out her high regard for the CME program and its benefits for H.M.

[52] The applicant has been present at all of the CME therapy sessions H.M. has had to date. The respondent has indicated a willingness to attend the sessions but there has been a disagreement as to how the expenses of such travel would be paid. According to the applicant, the respondent would attend with H.M. only if the applicant paid all of the expenses.

[53] The applicant testified, and I accept, that the CME treatments work best when she is present to assist with the therapy. The applicant specializes in pediatric anesthesiology. She works with children and told the court that she feels that the CME treatment is important for H.M. While not describing herself as an expert, and relying as well on the opinions of the H.M.’s pediatrician and physiotherapist, she told the court that in her own professional medical opinion the CME treatments benefit H.M. and should be continued until no further benefit is seen.

[54] The Chilean trips are the reason why the applicant seeks an order to be able to retain and renew H.M.’s passport without the respondent’s consent. It is also the reason why the applicant had to bring an urgent motion in 2016 when the respondent refused to consent to a renewal of H.M.’s passport.

[55] Much time was spent at trial dealing with H.M.’s passport. The applicant testified that she wants to be able to renew H.M.’s passport on her own as the respondent uses the renewal as a way to control the applicant. The respondent disagrees. His view is that this is just another way in which the applicant seeks to minimize the respondent’s role in H.M.’s life.

B) Travel to Sudan

[56] The 2012 order allows both parties to travel with their son to any country that is a signatory to The Hague Convention, with notice. The applicant seeks to travel with H.M. to Sudan to visit her ailing mother and her siblings. As Sudan is not a signatory to The Hague Convention the applicant has had to post bonds of $10,000 and $15,000 on the two previous occasions (2011 and 2014) when she travelled to Sudan with H.M..

[57] The applicant wants to be able to travel to Sudan without a bond. H.M. was raised by the applicant’s family in Sudan from shortly after his birth until he was aged 5 while the applicant completed her medical studies. H.M. is closely bonded with the applicant’s family and in particular her mother.

[58] The applicant has lived in Canada for 17 years and has an excellent job with benefits she could never have in Sudan. She disputes any allegation that she intends to remain in Sudan with H.M., where the standard of medical treatment is far below that in Canada. While the applicant could practice as a physician in Sudan, she would make far less money than she does here and would not be able to afford the CME treatments. The applicant submits that she and H.M. have made Canada their home and she is not a flight risk. She argues that the respondent is petty and controlling in his attempts to prevent travel to Sudan.

[59] The applicant initially agreed to a provision that she would not travel to non-Hague countries. She was able to afford the bond when she was not travelling back and forth to Chile for H.M.’s CME treatments. Since the respondent pays for nothing, it is no longer reasonable for the applicant to pay for all expenses related to H.M. and post a bond for travel. The applicant submits this is more of a control mechanism by the respondent than a real concern that she will not return to Canada.

[60] The applicant claims that the respondent is vindictive and cruel about her ability to travel. In late 2016, the applicant’s uncle died in Sudan. The applicant asked if she could take H.M. to Sudan for a visit with her mother who needed support after her brother’s death. The respondent refused claiming he wanted to visit with H.M. The applicant made arrangements to travel on her own. At the last minute the respondent cancelled his access visit. It was too late for the applicant to change her ticket or obtain one for H.M. H.M. had to be left behind in Canada and cared for by a third party.

[61] The respondent does not agree to the applicant traveling to Sudan with H.M. He submits that Sudan is dangerous and is subject to a travel advisory issued by the Canadian government. He submits that Sudan is beset with social, political and economic crises. While the applicant’s evidence was that Khartoum is relatively unaffected by the unrest, the respondent disagrees. His point is that demonstrations can break out at anytime and anywhere. The applicant cannot fully protect H.M. from this.

[62] Further, on the two occasions the respondent did permit travel to Sudan by the applicant (with H.M.), the applicant granted only very limited access by H.M. to the respondent’s family in Sudan.

[63] The respondent is concerned that the applicant will simply not return to Canada. His position is that she has no real connection to Canada and only works part time here. The applicant and her family have the means to finance the start-up of a medical practice for the applicant in Sudan. It is strange that the applicant requests to travel to Sudan without the consent of the respondent, yet he requires her consent to travel to Sudan. The applicant is a fundamentalist Muslim and will do whatever she can to get H.M. and herself back to a Muslim country.

[64] Finally, the applicant’s family has the financial means to visit her and H.M. in Canada. There is no reason why the applicant must travel there.

C) Access

[65] The respondent complained bitterly throughout the trial with respect to the applicant’s failure to abide by the 2012 consent order. In short, his complaints can be summarized as follows:

a. The applicant fails to fully inform or consult with the respondent in relation to the child’s treatment, therapy, welfare, education, medical appointments or activities.

b. The applicant has unilaterally denied or cancelled access.

c. The applicant has failed to fully inform the respondent about arrangements made for the child when she travels outside of Ontario or Canada.

d. The applicant has failed to abide by court ordered Skype arrangements.

e. The applicant insists that the child have ongoing therapy during extended access visits and uses this as a reason to refuse access if the respondent does not agree.

f. The applicant enrolls H.M. in multiple activities. His schedule is very full and he has little time for play or rest. His full schedule interferes with the respondent’s ability to contact H.M. by Skype.

[66] The applicant denies all of these allegations. She responds that she tries her best to keep the respondent informed about H.M.’s medical treatments and activities. However, the respondent is often critical and argumentative when he receives this information. The applicant does not deny that the effect of this has been for her to provide only basic information.

[67] The applicant attempts to comply with the Skype schedule but the respondent is often late with his calls and H.M. is then otherwise occupied. At times the respondent does not call at all.

[68] The respondent has also cancelled access, often at the last minute. The applicant referred to the devastation created by the respondent’s last minute cancellation of access during the Christmas vacation in 2016.

[69] H.M.’s medical team agrees that he should not go without therapy for longer than two weeks. The respondent’s insistence that he need not have any therapy during an extended summer vacation is not tenable. The applicant agreed that at times in the past the respondent did take H.M. for physiotherapy during summer access but this was many years ago. She is skeptical about the respondent’s insistence that he does exercises with H.M. in his home that he learned on YouTube. In any event, H.M.’s physiotherapy requirements change over time and the applicant has no assurance that the respondent is keeping up with these changes by doing home exercises.

[70] The applicant disagrees that H.M. is overbooked with activities. Many of these “activities” relate to his therapy. A typical week would include wheelchair basketball on Monday and Friday, physiotherapy on Tuesday and Thursday, occupational and speech therapy on Wednesday, math tutor on Saturday and Islamic school on Sunday. The therapy and math tutor are only one hour sessions.

[71] The applicant has done her best to keep the respondent advised about H.M.’s ongoing treatments and progress. For example, H.M. underwent surgery in Madrid in October 2018. The respondent was advised and kept up to date about this. H.M. is also due for a new psycho-educational assessment as the last one was done five years ago. The respondent is aware of this as well.

D) Child Support and Access Cost Issues

[72] The applicant seeks table child support retroactive to June 1, 2017. She does not seek a contribution to section 7 expenses notwithstanding her corroborated evidence that her out of pocket expenses (after benefits and reimbursement) for H.M. in 2017 were $57,502.39 and about $5,500 per month in 2018 and 2019 (approximately $66,000 per year). Those expenses included speech therapy, occupational therapy, orthopedic footwear, childcare, swimming, basketball, tutoring, wheelchair replacement, physiotherapy, and accommodation and airfare for the CME therapy in Chile.

[73] The respondent is employed as an economist with the Government of Canada and earns a regular salary. His income is not in dispute. His 2017 income was $70,961 and $94,219 in 2018. His financial statement sworn April 10, 2018 indicates that he owns a home with equity, has a TFSA worth $52,000 and an RRSP of $98,000. His debt is nominal and he is able to contribute to a Registered Disability Savings Plan each month for H.M.

[74] The respondent has paid no child support or in fact made any contribution to H.M. since the 2012 order. He claims to have paid support prior to the order but the applicant disputes that.

[75] The respondent objects to making any contribution to H.M. on the basis that there has been no material change. In addition, the reason for the applicant’s debt is her decision to work part time and the cost for the Chilean treatments. These are all personal choices of the applicant and should not be factored in when considering whether there has been a material change.

[76] The 2012 order is clear as to what the circumstances were at the time of the order including the applicant being employed as a doctor at Sick Children’s Hospital, the respondent being employed as an economist with Statistics Canada, that the applicant received all subsidies for the child and paid for all travel costs and section 7 expenses. Nothing about these circumstances has changed nor has there been any unanticipated change.

[77] The applicant was cross-examined about her decision to work part time and why she could not take H.M. to Chile during earned time off at work. The applicant’s evidence was that if she worked full time, her time off would be limited and subject to her employer’s needs. As a part time “locum” doctor, her schedule is far more flexible. Given that she needs to travel to Chile three to four times a year for three weeks at a time, she prefers a fee for service employment situation that allows her to choose when she works so she can accommodate the specialized therapy for H.M.

[78] The applicant has been the sole financial provider for the child since 2012. Over the past six years, the applicant’s debt has increased by $100,000 to pay for treatments and for the living and daily activities for H.M.

[79] The applicant produced statements showing she has maximized her TD line of credit at $24,519 and her Scotiabank line of credit at $122,000 as of February 2019. She also owed $7,987 for her car loan, $38,810 in credit card debt, $68,000 in outstanding taxes to CRA and a debt for the Chilean physiotherapy of $9,248.

[80] The applicant’s gross income in 2018 was $223,174. She has no savings or assets. She does not own a home. Her expenses exceed her income by about $7,000 per month. This would account for the increase in debt since 2012. The applicant testified that her debt is not caused by her lifestyle, but is solely related to paying for H.M.’s needs including a nanny/caregiver. She would like to have savings but that is not possible as long as the current circumstances continue.

[81] The section 7 costs for H.M. are significant. For example, the cost of his speech and occupational therapy in 2018 (and after reimbursement of the maximum medical coverage) was $8,100. His physiotherapy in Canada and Chile (after reimbursement of the maximum medical coverage) in 2018 was $40,000. Accommodation and airfare costs for Chile in 2018 totaled over $14,000. It is no surprise that the majority of the applicant’s income is being used for these significant expenses.

[82] The applicant has a live-in nanny. The cost of this nanny is about $30,000 per year. While it is true that the nanny helps out with some household chores, she is very much present to assist with H.M. The respondent did not really dispute this. He is aware that the nanny has been with applicant and her family for 12 years. According to the applicant she could not survive without the nanny who cares for H.M. in her absence and ensures he is ready for school, activities and medical appointments when she is working.

[83] The applicant was asked about why she amended her Motion to Change in May to seek Table support and deleted her request for s.7 expenses. She told the court that in 2017 her OMA coverage for physiotherapy was drastically reduced. Previously the coverage had been virtually unlimited. As of January 2017 the coverage was reduced to $1,000 per year. This has meant that the applicant must personally pay the over $3,000 per month in physiotherapy costs for H.M. There is no option to pay an increased premium for more expansive coverage.

[84] With respect to s. 7 expenses, the applicant deleted the request for s.7 expenses from her Motion to Change as she felt it would simply be too difficult to deal with the respondent about these expenses, some of which she can claim, some of which are tax deductible, some of which are covered by government grants, and none of which are the same each month.

[85] The respondent has medical coverage through his employer. Although requested to do so by the applicant and by the court, the respondent has never provided a copy of his benefits booklet to the applicant.

[86] The respondent’s position is that the applicant’s increased debt is the result of continuous litigation in two jurisdictions (Canada and Sudan) since H.M. was born. The respondent was adamant that all of H.M.’s medical expenses are paid for through the applicant’s insurance, government grants and provincial and federal tax credits. She is also able to deduct her child care expenses and her professional expenses.

E) The Section 112 Report Prepared by Frances Cappe

[87] An order was made requesting OCL involvement in July 2018. A s.112 report was prepared by Clinician, Frances Cappe (“Ms. Cappe”) and delivered on December 10, 2018. Ms. Cappe testified at trial. Both parties filed a Dispute to her report.

[88] Ms. Cappe prepared a careful and detailed report. She outlined the parties’ position and concerns as follows (my summary):

a. The applicant wants sole custody with access to be at H.M.’s discretion. She believes that H.M. is old enough and mature to decide when he will see his father. The applicant is fearful of the respondent and wants communication only by email or text. She believes the respondent is aggressive when he drinks and that he does not fully understand H.M.’s disability or his needs.

b. The respondent wants joint custody of H.M. and is agreeable that the applicant make decisions related to H.M. He wants access to H.M. at his home in Ottawa on long weekends and during the Christmas and summer holidays. He would like access frequency to increase and Skype access to continue. He does not believe that H.M.’s stated wishes not to see his father are his own. He believes that the applicant keeps H.M. so busy with activities that he does not have time for his father. He thinks that H.M. is capable of flying or taking the train to Ottawa on his own. He will not have access visits if they are to take place in Toronto. He may move to Toronto in the fall of 2019 but if H.M. is not willing to spend at least 40% of his time with his father, the respondent will walk away from the relationship and not see his son again until he is 18.

[89] Ms. Cappe had two interviews with each of the parties and one observational visit with the parties and H.M., and an interview with H.M. alone. Ms. Cappe spoke by telephone with the principal of H.M.’s school, the Educational Assistant at H.M.’s school and the respondent’s nephew.

[90] Ms. Cappe also reviewed the following documents:

a. H.M.’s medical records as provided by his pediatrician, Dr. Sheila Jacobsen.

b. Court documents from both the Kingston and Toronto files as provided by counsel.

[91] Upon completing her interviews and reviewing all relevant documents, Ms. Cappe made the following recommendations concerning custody and access:

a. Sole custody of H.M. to the applicant.

b. Two Skype calls a week with the respondent at times convenient to H.M.

c. Supervised access at an access centre in Toronto once a month for two hours.

d. Supervised access may be increased to a full day once the respondent has taken parenting classes related to H.M.’s special needs and subject to him complying with the OCL’s recommendations.

e. The applicant to sign any required consents to allow the respondent to have access to all of H.M.’s medical and educational information.

f. The applicant not to make negative comments to H.M. about the respondent and the applicant to encourage H.M. to attend for access so long as the respondent pursues the recommended parenting courses.

[92] Ms. Cappe was the court’s witness. As such, both counsel were permitted to cross-examine her.

[93] Ms. Cappe is an experienced clinical investigator. She has done over 370 investigations and testified in Superior Court between 15 and 20 times.

[94] Ms. Cappe was asked about her recommendation that the applicant not make negative comments about the respondent to H.M. She was asked what evidence she had to make such a recommendation. Ms. Cappe was frank in telling the court that there was no such evidence. The recommendation was a “cautionary” one emanating from the very close relationship between the applicant and H.M. and her extreme fear of the respondent. She added that the respondent made many negative comments about the applicant during his interviews.

[95] Ms. Cappe was asked about her interview with H.M. She told the court that H.M. was anxious to talk to her and had many things to say. She was adamant that, in her view, H.M.’s expressed wishes were his own and not influenced by the applicant.

[96] H.M. was clear that he no longer wanted to see his father in Ottawa based on the current access schedule. Skype visits could continue. When asked why he wanted this change, he explained to Ms. Cappe that his father has a high temper and no patience. He is aggressive and pushes him to walk. He wants H.M. to be like everyone else but he is not. He does not like it when his father drinks alcohol during access visits. He said he does not think his father means to hurt him but, for example, he yells at H.M. if he doesn’t text him every day.

[97] When asked about supervised access, H.M. was fine with a visit once a month in Toronto. He would feel safe with a supervised visit because he would not be alone with his father. He understood what supervised access was because he remembered going to the access centre in Kingston when he was young. H.M. is afraid of his father’s temper and was concerned about telling his father these things. He feels he can tell his mother how he feels without consequences.

[98] H.M. was described by Ms. Cappe as intelligent and consistent in expressing his wishes. While he is hard to understand and looks young for his age, he is wise beyond his years. Clearly H.M. had thought through what he wanted to say to Ms. Cappe. He was fearful about expressing his views to his father but not to Ms. Cappe. Ms. Cappe reiterated that although the applicant had prepared H.M. for his interviews, she was certain that the applicant had not influenced him as to what to say.

[99] Ms. Cappe was asked why the interview with the respondent and H.M. did not take place in the respondent’s home in Ottawa. Ms. Cappe responded that she would have travelled to Ottawa for that purpose but that there was a court order specifying that access was to take place in Toronto.

[100] Ms. Cappe advised that both of her interviews with the respondent were in Toronto. She noted that on neither of those occasions did the respondent use the opportunity to have a visit with H.M. The respondent told her he planned to retire and move to Toronto in the fall of 2019. However, if he could not see H.M. on a 50/50 arrangement, he would walk away from the relationship. He made it clear that unless he moves to Toronto, he will not travel to Toronto to see his son.

[101] Ms. Cappe reiterated her view that the respondent needs both support and education before he can move to unsupervised access. Ms. Cappe testified that she did not think that the respondent would follow up on these recommendations. Further, in arriving at her recommendations, Ms. Cappe told the court that she did not think that the respondent acknowledged the extent of H.M.’s handicaps. For example, the respondent was of the view that H.M. could travel by plane or by train to Ottawa on his own for access. This demonstrates his lack of understanding of just how much assistance H.M. needs.

[102] This witness stated that she thought the respondent had a close bond with H.M. but that the conditions he placed on access were not child-centered.

[103] I found Ms. Cappe to be a credible witness. She is an experienced social worker with respect to both conducting assessments and testifying in court. Ms. Cappe was frank with the court that her report was not perfect. In hindsight, she would have done some things differently, such as not including a recommendation that the applicant not speak negatively about the respondent. She understand that such a recommendation made it seem as if the applicant was engaging in such behaviour when Ms. Cappe did not think that was the case.

[104] Despite some minor imperfections in her report, Ms. Cappe was clear that she would not have changed her recommendations in any way. She reiterated to the court her astonishment with respect to the respondent’s position that he essentially intended to terminate his relationship with his son if the court did not order the access schedule he wanted.

F) The Evidence of Ms. Cheryl Saccardo

[105] Ms. Saccardo was interviewed by Ms. Cappe by telephone on November 16, 2018 for approximately 45 minutes. Ms. Cappe made detailed typed notes of this interview which were produced to the court. Ms. Saccardo was shown Ms. Cappe’s notes of the telephone conversation which she confirmed were accurate.

[106] Ms. Saccardo is an Educational Assistant. She has worked at Park Lawn Middle School for 17 years. Ms. Saccardo explained to Ms. Cappe that she knows H.M. very well and considers herself close to him. H.M. confides in her about many things including his personal life. She supports him both physically and academically.

[107] H.M. has shared many things with Ms. Saccardo about his father including the following:

a. His father gets frustrated when he cannot dress himself or go to the toilet on his own. His father often rushes him and is abrupt.

b. His father makes him feel unwanted and feels pressure from him to visit Ottawa. When he is in Ottawa with his father, he often feels alone and afraid.

c. At the access visit in Ottawa in June 2018, his father was impatient and did not give him enough time to get from one place to another. His father is loud and acts differently when he is drinking.

d. He is fearful of his father. Ms. Saccardo observed that H.M. is withdrawn and anxious before access visits.

e. H.M. has been very clear with Ms. Saccardo that he no longer wishes to have access visits. He feels guilty about this and does not know how to express his feelings to his father.

[108] Ms. Saccardo brought her own notes with her to court when she testified on February 21, 2019. The respondent’s counsel objected to Ms. Saccardo referring to those notes. A voir dire was held. The notes were found to reliable on the basis that they had been transcribed contemporaneously, without changes, and that the notes reflected what H.M. had told Ms. Saccardo.

[109] Ms. Saccardo made handwritten notes which she transcribed into typewritten notes. These were notes of two separate conversations she had with H.M. concerning access. The first conversation was after the June 2018 access visit. This was the visit during which the applicant alleged that the respondent assaulted her and was cruel to H.M.

[110] On June 22, 2018 Ms. Saccardo called the applicant to talk to her about another issue related to H.M. The applicant told Ms. Saccardo about the concerns H.M. had expressed about his visits with his father in Ottawa. The applicant asked Ms. Saccardo to speak to him because she felt H.M. may be more comfortable speaking to her. H.M. opened up and expressed that his father is impatient with him because he cannot do things as quickly as his father would like. On the Friday of the weekend access (Friday June 15, 2018) H.M. saw his father slap his mother’s hand away when she tried to open the car door to say good-bye to him. H.M. knew that his father was angry after this incident. He was afraid to talk to his father for fear he would yell at him or hit him.

[111] H.M. told Ms. Saccardo that he feels he is not “free” because of the court ordered access. He feels obliged to see his father but he is afraid of being alone with his father and feels he is not wanted. He does not like it when his father asks why H.M.’s nanny does not come on the weekends to help him.

[112] Ms. Saccardo had another conversation with H.M. after his father came to Toronto to visit him in late October 2018 for the joint interview with Ms. Cappe. H.M. told her that he was mad at his father because his father did not believe him when he told him that he did not want to visit him anymore. His father insists that H.M. is simply repeating what his mother told him to say. This makes H.M. feel mad and upset.

[113] Ms. Saccardo told the court that she felt that H.M.’s access to his father should be terminated as it was affecting his mood and it was no longer beneficial to him.

[114] I find that Ms. Saccardo was a credible witness. She has seen H.M. every day at school for the last four years. She is acutely aware of his moods and his needs. I accept her evidence that these conversations reflected H.M.’s true feelings uninfluenced by anyone else.

[115] A concern could be raised about Ms. Saccardo having the June discussion with H.M. at the applicant’s request. However, it should be kept in mind that Ms. Saccardo’s evidence was that she initiated a call to the applicant on a completely separate issue and only during the course of that conversation did the applicant raise an issue related to access on the previous weekend. As well, while Ms. Saccardo may have gone too far in stating that she thought H.M.’s access to his father should end completely, she took that view because she wanted H.M.’s voice heard.

[116] It is not surprising that H.M. would confide in Ms. Saccardo given her supportive role in his life. While Ms. Saccardo was permitted to use her notes, the court does not solely rely on them in coming to any final conclusions about access. The notes and Ms. Saccardo’s testimony form part of the total framework for the consideration of H.M.’s best interests.

The Applicant’s Evidence and Credibility

[117] The applicant was cross-examined for an entire day by the respondent on May 31, 2018. She was then cross-examined on her Amended Amended Motion to Change on February 19, 2019 by the respondent’s counsel.

[118] The applicant was asked why she continued to work part time when she could work full time and be entitled to holidays during which she could take H.M. for his Chilean therapies. This would allow her to earn more income and pay down her debt.

[119] The applicant responded that working full time was not possible for her as she travelled to Chile three to four times per year for three weeks at a time. She could never obtain that many holidays. She requires flexibility and is unable to commit to a long term fixed schedule so long as H.M. continues with the CME therapy in Chile.

[120] The applicant was asked if she had a plan with respect to the CME therapy. H.M. has been undergoing this treatment for five years without the progress that Dr. Cuevas promised. The applicant responded that H.M.’s body continues to change. As long as she continues to see progress, she intends to continue the treatment. Her evidence was that will put herself into debt if she has to so that H.M. can live up to his potential.

[121] The applicant testified that until the end of December 2017 100% of H.M.’s physiotherapy was covered by her medical plan through the Ontario Medical Association but as of January 2018 the coverage was reduced to $1,000 per year. This has had a significant effect on her budget.

[122] The applicant admitted that at the time of signing the 2012 agreement she had about $156,000 in debt yet she did not ask the respondent for support at that time. The applicant did not deny her debt in 2012 but said that her debt had increased and her expenses for H.M. were becoming so burdensome that she required some assistance from the respondent.

[123] It was suggested to the applicant that H.M. could fly on his own from Toronto to Ottawa for access visits. The applicant did not agree. H.M. requires assistance to feed and toilet himself. As he cannot evacuate the plane on his own in an emergency, airline regulations do not permit him to fly unassisted.

[124] The applicant gave several examples of why she has raised parenting concerns only within the last two years. First, there was the sudden move to Oman in 2016. The applicant was unprepared for this and shocked because she had no indication that the respondent intended to come back. Then she was concerned by a progression of impatient behaviour on the part of the respondent. For example, he wanted H.M. to walk; he wanted the nanny to come and help him during access visits; he became angry if Skype visits did not occur exactly on time.

[125] The applicant was also asked about her basis for claiming a material change. It was suggested to her that she was well aware of H.M.’s disability in 2012. She was also aware of the additional costs of caring for him, of his therapies and of the costs of access for which she would responsible. In fact, she knew that H.M.’s condition would not improve when she entered into the agreement.

[126] The applicant did not agree. Her evidence was that Cerebral Palsy is not static nor does it manifest itself in the same way in everyone. She could not have anticipated that H.M. would need therapy in a different country, nor that her medical benefits would be significantly curtailed. While she agreed that she is earning more money than she did in 2012, that does not make up for the increased costs to care for H.M.

[127] The applicant was asked why she is now asking for sole custody given that the 2012 agreement already gives her final decision making. The applicant explained that it is no longer feasible to consult with the respondent. He is always negative and questioning her motives. He does not put H.M. first. His motivation is to get even with her. The applicant has a stressful job and a lot of responsibility with respect to H.M. She can no longer deal with the respondent’s negativity and vindictiveness.

[128] The applicant explained that she is the one shouldering all of the responsibility and doing all of the communication with H.M.’s teachers, doctors, therapists and specialists. The respondent has access to this information but chooses not to pursue it.

[129] I found the applicant to be a very credible witness. It is clear that she does not live an extravagant lifestyle. All of her free time and her available money is dedicated to giving her son the best possible chance in life. She told the court in an emotional portion of her testimony that she wants H.M. to live up to his potential. She is prepared to do whatever it takes to ensure that happens. I find that her goals are laudable, sensitive and entirely child focused.

[130] The applicant did extremely well under what was at times a repetitive and petty cross- examination by the respondent. She answered clearly and patiently. When asked about her share in the family home in Khartoum she satisfactorily explained that she sold her share to her brother to pay him back for personal loans he gave her. It made sense that he often lent her money when she came home from her Chilean trips and needed funds to pay her utilities and basics until she could accumulate funds upon her return to work. Her financial situation is in a word, dismal. I accept that it is this way solely because of her decision to devote her resources to her son.

[131] The applicant was questioned by the respondent about why she did not submit any differential in covered medical expenses through his work coverage. She responded that she had asked the respondent for a copy of his benefits booklet so she could ascertain his coverage but he never provided it.

[132] During the continuation of this matter in February 2019, the applicant was cross-examined by the respondent’s counsel. She was polite but firm in her answers and belief that H.M.’s wishes should be respected and that her situation now is much different than when she entered into the 2012 agreement.

[133] The applicant at times appeared weary with dealing with the respondent’s constant negative view of her efforts with H.M. She tries to keep the respondent reasonably advised of what is going on in H.M.’s life but he is always questioning and contrary. He complains that she keeps H.M. too busy, he should not be going to Islamic school, she should be working full time, the CME is not working and that H.M. does not call enough or on time on Skype. Nothing she does seems to be enough or right in the respondent’s eyes.

The Respondent’s Evidence and Credibility

[134] The respondent told the court that he is very frustrated about being left out of H.M.’s life by the applicant.

[135] Going aback as far as 2006, the applicant applied for a passport for H.M. without his consent. He had agreed that H.M. should go to Canada for better medical treatment but he wanted the applicant to sign a joint custody agreement and agree to a non-removal order before he consented to the passport. As well, he had obtained a Canadian citizenship card for the child which was different from the one the applicant had. The respondent was convinced that the issue with the two citizenship cards had to be dealt with before the passport could be obtained.

[136] He was obviously frustrated when he found out the applicant had obtained a passport for H.M. without his consent. The respondent raised this issue multiple times during the trial. This was not because it necessarily affected a substantive issue in this case but because it was a good example of the respondent’s perception of his treatment by the applicant when it came to H.M., that is; the applicant made unilateral decisions about their child without input or consultation with him.

[137] The respondent gave the court a number of other examples of what the respondent described as the applicant’s dismal record of so-called consultation with him:

a. The applicant moved. As a result, she had to change H.M.’s school. While she did tell the respondent she was moving, she did not tell him about the change in schools until H.M. was already attending at the new school. The applicant’s view seemed to be that it was obvious that a school change was required.

b. The respondent has received only a very few report cards, and only when he asks the applicant for them.

c. The respondent is not aware of what an “IPRC” is. He has been to H.M.’s school to talk to his teachers but they never mentioned this. He feels completely left out of the IPRC consultation process.

d. The respondent has not been to parent teacher interviews because he was not informed about them. He only recently began to receive the school newsletters which contains this type of information.

e. The applicant is in breach of the undertaking she signed in 2006 which requires her to keep the respondent updated about H.M.’s development in all aspects.

f. The respondent has watched YouTube videos and is well aware of how to do appropriate stretching exercises at home. The applicant’s insistence on H.M. having physiotherapy during summer access is not reasonable. He needs a break.

g. The applicant took out a membership for H.M. in an organization for children with disabilities. She did not advise the respondent about this and he did not find out about it until he saw H.M. in a promotional YouTube video.

h. According to the 2012 order, the respondent is entitled to access whenever he is in Toronto, on reasonable notice. Almost every time the respondent asked for this additional time he was denied. Frequently the applicant told him he had provided insufficient notice even when he had given up to 10 days’ notice.

i. The applicant leaves H.M. alone with other people and does not inform him.

[138] The applicant saw things very differently. The 2012 order has a very specific provision allowing the respondent to communicate directly with H.M.’s educational and medical professionals. The respondent has never availed himself of this. Any lack of information is solely due to the respondent’s failure to contact H.M.’s schools, doctors or therapists for the information. The applicant has never prevented the respondent’s involvement.

[139] The applicant is not required to provide the respondent with copies of H.M.’s report cards or information about the IPRC process or parent teacher interviews (although she often does) as the respondent is perfectly capable of asking for and receiving this information on his own.

[140] The respondent did not deny in cross-examination that the applicant keeps him advised about H.M.’s medical issues and progress. He admitted that he knew who H.M.’s developmental pediatrician was in Kingston but he does not know who it is in Toronto and nothing has triggered him to find out.

[141] The respondent also did not deny that he has accused the applicant of being a fundamentalist Muslim and being in a lesbian relationship. He testified that he said those things out of frustration and fear of losing his son.

[142] The respondent has taken H.M. to physiotherapy in Toronto about six times since 2013. In 2017 the respondent informed the applicant that he would forego summer access if she insisted that H.M. have regular physiotherapy during his summer access time.

[143] The respondent saw H.M. in the fall of 2018 for the interview with Ms. Cappe and again for a short visit at Christmas. He does not agree with Ms. Cappe’s recommendations and feels that access for five weeks during the summer of 2019 would be reasonable.

[144] The respondent testified that it does not make sense for him to come to Toronto to exercise access, especially when his house has been renovated to accommodate H.M. He prefers that H.M. come to Ottawa.

[145] The respondent did not deny that if Ms. Cappe’s recommendations are ordered, his relationship with H.M. would change. His evidence was that he would remain in touch with his son and then when H.M. is 18 he can make his own choices. The respondent does not accept what H.M. told Ms. Cappe about him. He insists they have a strong bond and that H.M. is either being told what to say or overly influenced by his mother. The respondent feels that supervised access in Toronto would completely change their relationship and their bond. He would not be able to see H.M. very often and things would be much different.

[146] The respondent then said that his comments to Ms. Cappe were misunderstood. If coming to Toronto to see H.M. was his only option, then he would do that.

[147] I found the respondent to be a somewhat difficult witness. His anger and resentment towards the applicant was clear. This coloured all of his testimony. While he is obviously aware of the time and effort involved in caring for his disabled son, he was unwilling to allow the applicant any real credit for her efforts. Old wounds going back to their separation in Sudan kept resurfacing. Clearly the respondent does not trust the applicant.

[148] The respondent’s cross-examination of the applicant in May 2018 bordered on petulant and petty. He seemed more concerned about whether she had an interest in her mother’s home in Khartoum than about his son.

[149] The respondent refused to give in on financial issues. He seemed to be fine with the whole idea of the applicant going into debt to care for their son while he accumulated equity in his home and RRSPs and TFSA. He never agreed to pay even the most basic amounts of support, preferring to rely on the agreement and insisting that absolutely nothing had changed.

[150] I accept that the respondent’s impatience and anger towards the applicant has translated into his treatment of H.M. The incident at the Ottawa airport is proof of this. When H.M. did not walk as the respondent expected, the respondent became angry with the applicant.

[151] At times the respondent was accusatory towards the applicant in his testimony, insisting that she obtained a passport for the child behind his back, lulled him into the 2012 agreement so she could move to Toronto and was now effectively trying to remove his from his son’s life altogether. He would not accept that his own actions had anything to do with his son’s preference for supervised access or access in Toronto only.

[152] At other times the respondent was combative, complaining that he had not been given important information about his son’s life. At the same time, he acknowledged that the 2012 order allowed him to obtain all of the information from H.M.’s teachers, doctors and therapists on his own.

[153] Overall, I prefer the evidence of the applicant. While she alleged that she was the victim of abuse during the marriage and remained afraid of the respondent, she knew that her son and his father shared a bond. She never tried to minimize that, but wanted it put in context with respect to H.M.’s wishes and the financial issues she was experiencing.

Has There Been a Material Change?

[154] This Motion to Change is brought pursuant to section 29 of the Children’s Law Reform Act which provides:

29. A court shall not make an order under the Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[155] It is the applicant’s onus to prove there has been a material change. The case law is clear that change alone is not enough. “The change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.” [1] As well, the court must consider whether the change represents a distinct departure from what the court could have reasonably anticipated at the time of making the previous order. If this threshold is reached, the court must then go on to consider the children’s best interests pursuant to section 24 of the Children’s Law Reform Act.

[156] In terms of what will suffice to establish a material change, the court relies on the comments of Sager, J. in A.B. v. J.B. [2] in which the following considerations emerge:

a. The change must have altered the child’s needs or the ability of the parent to meet those needs in a fundamental way.

b. Would the previous order been different if the circumstances now existing prevailed earlier?

c. Does the change represent a distinct departure from what the court could have anticipated in making the previous order?

[157] The answer to all of these questions is a resounding yes in this case. H.M. has grown and matured. He has a voice and a view which the court cannot ignore. The circumstances are very different from those in 2012 when H.M. was 7 years old.

[158] There are changes from the parents’ perspectives as well. A joint parenting arrangement has not worked. The applicant’s fear of the respondent has not abated. The respondent’s dismissive and impatient dealings with the applicant make cooperation between them difficult.

[159] Once the threshold for a material change has been met, the court must go on to consider the factors in section 24(2) of the Children’s Law Reform Act relating to the best interests of the child. Those factors are set out below:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child, and

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and an special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[160] Some of the considerations set out in Section 24(2) above do not apply to this case. This is not a case in which anyone is intending to change H.M.’s residence nor is there any question that the parties in question are the biological parents of H.M.

[161] With respect to the applicant’s request to change from a joint custodial arrangement with the applicant having final decision making to sole custody, the applicant’s position is that collaboration with the respondent on child related issues is not possible.

[162] Based on what I observed at trial, I agree. The respondent views the applicant in a negative light. He is suspicious of her motives and does not trust her. This manifests itself in an overarching negative response to information given to the respondent by the applicant.

[163] As indicated in M.R. v. A.L. and G.L. [3], an inability to collaborate effectively to pursue the child’s best interests is a material change in circumstances. Specifically, the court said:

Joint custody is predicated on the assumption that parties can sufficiently collaborate to make best interests decisions on behalf of the child. The breakdown of joint custody can unto itself constitute a material change in circumstances.

[164] This case is slightly different in that while the parties did agree on joint custody in 2012, the applicant had final decision making authority. However, the applicant is required to consult with the respondent on all decisions. This consultation process has not worked for the reasons set out above and the applicant seeks to change that requirement.

[165] The parties’ inability to collaborate has impacted on their parenting relationship. The respondent’s constant challenging of the applicant’s decisions has made their parenting relationship fractious. Given H.M.’s needs, the applicant must be in a position to make the best decisions for him without the impediment of the respondent’s negativity and criticism. A move to sole custody would therefore be in H.M.’s best interests.

[166] With respect to the considerations in s.24 (2)9(c)-(g), there is no doubt that the applicant has the ability and willingness to care for H.M., and that there is significant affection and attachment between H.M. and his mother. As well, the applicant is well able to deal with his special needs, and to provide him with a stable environment, an education and guidance.

[167] There is no doubt that there is a bond and affection between H.M. and his father. However, that bond has been affected by the respondent’s own actions towards the applicant and H.M. With some introspection and education, the respondent may be able to find his place in his son’s life again.

[168] The most contested consideration in s.24(2) in the context of this case is the weight and significance to be attributed to H.M.’s views and preferences with respect to access, and how that should be factored into the recommendations made by Ms. Cappe.

[169] H.M. is 13 years old. He is articulate and intelligent. I have already found that the views expressed in Ms. Cappe’s report are H.M.’s views and do not emanate from a script provided to him by the applicant nor are they generated out of fear or sympathy.

[170] In M. (B.P.) v. M. (B.L.D.E.), the Ontario Court of Appeal dealt with a parent attempting to enforce access against the child’s wishes. The child was aged six. The court held at paragraph 66:

The father has no understanding of the emotional needs of his daughter….JCM has been subjected to a great deal of stress out of the claim to enforce access. The stress is engendered simply by the husband’s conduct…by the father’s personality and overwhelming nature.

[171] The applicant maintained hope that the respondent’s anger directed towards her would not be taken out on H.M. but that has not happened. The applicant’s view is that the respondent has become more frustrated and impatient with H.M. as he does not see the progress that he wanted. This makes H.M. feel frightened, stressed and misunderstood.

[172] H.M. desperately wanted to tell his father how he felt but he was too frightened to do so. While he loves his father, he feels that his father is impatient with him. He angers easily when H.M. cannot keep up and do things as fast as this father wants him to. H.M. does not like it when his father drinks and become loud and aggressive. H.M. feels stress when he does not Skype or text his father on time and his father yells at him.

[173] Supervised access is a measure which is not lightly imposed by the court. It is often reserved for situations in which a child is in danger or where the parent may have addiction, mental health, anger management or criminal issues which would prevent a regular access arrangement.

[174] While the respondent in this case does not reach any of those extremes, H.M.’s fears and reticence to see his father must be taken into account. His confessions to both Ms. Saccardo and Ms. Cappe must be taken seriously given his age and his disability.

[175] This is not a case in which the applicant seeks to terminate access. Rather, she seeks to have the father better understand his relationship with his son, his son’s disability and his needs. If he can demonstrate that he has a better understanding of these things, then perhaps regular access can resume. However, until the father can demonstrate he has availed himself of resources to assist with how to improve and foster a better relationship with his son, supervised access should be implemented.

[176] I accept Ms. Cappe’s recommendations that any supervised access should take place in Toronto. The respondent has completely unrealistic expectations of H.M.’s ability to travel unassisted. The reality is he must be accompanied when he travels if for no other reason than he cannot exit a train/airplane unassisted in the event of an emergency. The respondent is of the view that H.M. can travel on his own. That clouded view of reality is somewhat representative of the respondent’s inaccurate view of H.M.’s physical capabilities. As such, all access must take place in Toronto.

[177] The Motion to Change with respect to support is governed by subsection 37(2.1) of the Family Law Act. Pursuant to that section, once the court is satisfied there has been a material change of circumstances the court may:

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for support of a child that the court could make on an application under section 33.

[178] In the 2012 consent order, the parties agreed that the applicant would be entitled to apply for child support in the event that she or the child suffers a negative change in circumstances or the respondent enjoys a positive change in his circumstances.

[179] Therefore, the court must first consider whether there has been a change in circumstances and if so, what change should be made in light of the existing circumstances. [4]

[180] I find that the applicant has met the test for a material change with respect to her ability to apply for support. The facts which support this conclusion are as follows:

a. As per the applicant’s testimony, which I accept, H.M. is growing and approaching adolescence. His muscles and body are changing and he needs more frequent and intensive therapy.

b. It is not unreasonable that H.M. be provided with treatments such as CME, which are supported by his pediatrician and his physiotherapist, so long as such treatments benefit him.

c. I accept the applicant’s evidence that while she knew that H.M. had Cerebral Palsy in 2012 when she signed the consent, her training and experience are such that she knows that each child is different and she could not have anticipated the full extent of H.M.’s changes.

d. H.M. has a disability which overrides the usual considerations in such Motions to Change. For example, the applicant’s decision to work part time in order to accommodate H.M.’s needs is reasonable in all of the circumstances. She still earns a good income even on a part time basis.

e. I accept that the applicant’s financial situation has deteriorated significantly since the 2012 order. This is in part due to the CME treatments but it is also due to the significant financial responsibilities she is faced with in meeting all of H.M.’s needs many of which could not have been fully anticipated in 2012.

f. I do not accept, as implied by the respondent, that the applicant receives rental income from the family home in Khartoum. I find that her income earned as a pediatric anesthesiologist is her sole source of income.

g. The respondent has never contributed anything to H.M.’s support since the making of the 2012 order.

h. The applicant has foregone any request for a contribution to section 7 expenses. Her requests for support are modest by any standards.

i. The respondent has increased his assets and savings since the 2012 order. He owns a home and has savings in a TFSA and RRSP. The applicant, by contrast, has increased her debt, owns no property, has no savings and her expenses exceed her income. As I have already found, the applicant does not live an extravagant lifestyle. Most of her income is spent on providing for H.M.’s needs.

j. The applicant’s benefits for physiotherapy have been drastically reduced and this has increased her debt.

[181] Having found that the threshold for a material change has been met by the applicant, the court must next determine H.M.’s best interests in the context of the quantum of support, the income of the respondent and all of the circumstances.

[182] There is no doubt that, apart from the 2012 order, the respondent would be required to contribute both table support and a contribution to section 7 expenses. Further, it is almost trite to say that any contribution from the respondent towards support for H.M. would be in his best interests, even the very modest amount of Table support sought by the applicant.

[183] As such, the applicant’s motion should be granted with respect to both ongoing and retroactive Table support.

Travel to Sudan

[184] In the 2012 consent order the parties agreed that both of them could travel with H.M. to any country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

[185] This means that travel to Chile for CME treatments is permitted but not travel to Sudan.

[186] While clearly caution must be exercised in allowing travel to non-Hague signatory countries there are always exceptions. In this case, I find that the exception should be made for the following reasons:

a. The applicant returned to Canada with H.M. on the two previous occasions when she traveled to Sudan.

b. The applicant has lived in Canada for 17 years and has substantial connections here including a lucrative job and seniority in her position. Her job provides her with excellent benefits for H.M. as well as access to superior child related health care services at the Sick Children’s Hospital.

c. The applicant was adamant in her evidence (which I accept) that H.M. would not receive the same level of benefits or care in Sudan as that country simply does not have a health care system equivalent to the one in Canada.

d. H.M. has family and connections in Sudan which he should be permitted to foster. He lived with his maternal grandmother in Sudan for the first five years of his life. Most of the applicant’s relatives reside there. There is a family home in Khartoum which is large and could easily accommodate the applicant and H.M. for visits.

e. The applicant has followed the 2012 court order despite the fact that it has created significant financial hardship for her. She has used the proper court process to obtain a change to that order. I do not find that there is any evidence that would indicate that the applicant would not comply with a court order that requires her to follow prescribed parameters for trips to Sudan with H.M. including notice to the respondent and the provision of a detailed itinerary.

[187] In short, I find the respondent’s suspicions about the applicant’s motives to visit Sudan the same as many other of his suspicions about the applicant including her alleged fundamentalism and lesbian relationship; unfounded, and likely emanating from his ever present resentment and anger towards the applicant.

[188] The court would be remiss in not mentioning the current political and social upheaval which is occurring in Sudan, and in particular in Khartoum as this judgment is being prepared. A delay in travel would likely be in order in the circumstances. I have found the applicant to be a credible, reliable and child-focused witness. I am certain she would not travel to Sudan at any time which would put her child in danger.

[189] I find, therefore, that it would be in H.M.’s best interests to be able to travel to Sudan without the consent of the respondent. H.M. should have the benefit of visiting his extended family there and connecting to his cultural roots. Orders can be made under the Children’s Law Reform Act to ensure the return of the child.

Other Miscellaneous Issues

[190] I decline to cancel the respondent’s 2006 Undertaking. These parties should only be communicating in relation to H.M. and nothing else. They continue to disagree on fundamental issues and their contact on all levels, other than in relation to their child, should be minimized completely.

[191] I decline to order that the applicant must advise the respondent and provide contact particulars when H.M. is not in her care overnight. The applicant is H.M.’s primary caregiver. Her evidence was that sometimes she works long shifts. Necessarily, the nanny would be required to care for H.M. overnight if needed. Further, if the applicant determines it is reasonable for H.M. to spend the night at a friend or family member’s home, that is within her purview as the sole custodial parent, just as it would be the respondent’s decision if H.M. was residing with him during an access period.

Costs

[192] The applicant has had complete success on her Motion to Change. She seeks all inclusive full indemnity costs of $91,762.22 and in the alternative, all inclusive partial indemnity costs of $61,174.881.

[193] The applicant served an Offer to Settle on February 21, 2019. Her Offer mirrors in large part what the court ordered. Her Offer provided a payment of costs in the amount of $50,000 if the Offer was accepted. The Offer was not accepted.

[194] The respondent sought all inclusive full indemnity costs of $54,392.33 or all inclusive partial indemnity costs of $32,635.40 if successful.

[195] The respondent provided an Offer dated November 23, 2017. The Offer is not reasonable for the following reasons:

a. It permits travel to Sudan but only if the applicant secures a travel bond of $250,000 or if the child remains in the respondent’s care while the applicant is in Sudan.

b. The respondent to have five weeks of summer vacation with the child during which time the child should not be required to attend for therapy.

c. Sunday should be a day of rest for the child, without scheduled activities.

d. If the applicant travels outside of Canada without the child she shall not leave the child in the care of a family member without the respondent’s consent.

e. The applicant’s Motion to Change is to be withdrawn and both parties will be responsible for their own costs.

f. The costs ordered against the respondent on May 17, 2016 shall be subtracted from the costs order against the applicant in the Sudanese court and the applicant to pay the balance to the respondent within 30 days.

[196] It is clear that this Offer is somewhat dated as it was made prior to the report of Ms. Cappe. In any event, the access provisions aside, the respondent did not offer to pay any child support. This is not reasonable in all of the circumstances.

[197] The respondent told Ms. Cappe he would pay child support if he was ordered to do so. In all of the circumstances, and given the extensive medical needs of his child, this court cannot understand why the respondent would not agree to pay a basic amount of child support. The applicant was extremely accommodating and generous in not seeking a contribution to s.7 expenses. In doing so, she has agreed to bear the financial brunt of almost all of H.M.’s expenses. She sought a nominal contribution from the respondent which he has steadfastly refused to pay.

[198] The respondent also failed to understand his own role in H.M.’s wishes to significantly change access. He minimized his role in the June 2018 incident at the airport, he made excuses for his own behaviour, and he blamed almost everything on the applicant. It was easy to see why the applicant found it impossible to consult the respondent in a joint parenting arrangement.

[199] The respondent was immovable in his position that nothing had change since 2012 when clearly almost everything had.

[200] The applicant is entitled to her proportionate amount of costs given the unreasonableness of the respondent’s position on all issues and her Offer to Settle.

[201] The respondent shall therefore pay costs of $65,000 plus $3,500 in costs for the costs ordered on May 17, 2016.

[202] The applicant is not required to “offset” the May 17, 2016 costs order from any Sudanese costs order. There was no evidence that such an order exists or would be enforceable in Canada.

[203] Given all of the above, I make the following final orders:

Final Orders

[204] The consent order of Robertson, J. dated April 24, 2012 shall be changed as follows:

a. The applicant shall have sole custody of the parties’ son, H.M., born December 10, 2005 (“the child”).

b. The applicant shall provide monthly updates about the child to the respondent by email.

c. Access to the child shall take place once per month at a supervised access centre in Toronto. The applicant shall choose the access centre. Both parties shall complete their intake forms for the access centre forthwith. The parties shall share the cost of any administrative fees associated with supervised access.

d. Access visits shall initially be for a period of a maximum of two hours. The monthly access date shall be confirmed by the applicant. Once the date for access is confirmed by the applicant, the date shall not be cancelled under any circumstances.

e. The respondent shall attend a parenting course to assist him in better understanding the effects of Cerebral Palsy and how he can improve as the parent of a child with Cerebral Palsy. The respondent shall provide proof of completion of the course to the applicant.

f. The mother shall engage a counsellor for the child who shall assist the child with respect to his relationship with the respondent and ongoing and future access visits. The cost of such counselling shall be shared equally between the parties, net of any benefits provided through the respondent’s work related benefits.

g. When the counsellor considers it appropriate, the counsellor shall involve the respondent and/or the applicant in the child’s counselling. The counselling is intended to provide a basis for the expansion of supervised access and/or a move to unsupervised access. The counsellor shall provide a report to the parties within six months of the commencement of counselling in order to review the child’s progress and allow a better understanding of the direction of future access visits.

h. The respondent is free to contact any of the child’s treatment providers (including those in Chile), doctors, specialists, teachers, Educational Assistants, principals and coaches and obtain information about the child’s medical/educational/social progress. If needed, the applicant to provide a signed consent to the respondent to assist him in obtaining this information.

i. The applicant shall retain the child’s passport and may renew it or replace it (in the event it is lost) without the consent of the respondent.

j. The applicant may travel anywhere in the world with the child, including Sudan, at any time, so long as it does not interfere with previously scheduled access visits.

k. Given the social and political unrest which exists in the Khartoum area in Sudan at this time, no travel to Sudan shall take place until after January 1, 2020.

l. In the event that the applicant travels outside of Canada with the child she must provide a complete itinerary to the respondent including proof of a return ticket for the child at least 30 days prior to any travel. The applicant shall also provide contact information for the child and ensure that the Skype calls continue with allowance made for time zone differences.

m. In the event there is ever any issue with respect to the applicant failing to return to Ontario with the child, Ontario shall be the proper jurisdiction in which to deal with all custody and access related issues and both parties shall attorn to the Ontario jurisdiction.

n. The respondent shall have telephone access to the child by way of Skype three times per week. The Skype calls will take place on Tuesday, Thursday and Sunday each week at 8:00 p.m. If for some reason the child is not available at 8:00 p.m. on any of the abovementioned days, the applicant will ensure the child calls the respondent as soon as possible thereafter. The respondent is at liberty to text the child throughout the week.

o. The Undertakings signed by the parties in 2006 shall remain in place.

p. The respondent shall provide a copy of his Benefits Booklet and benefits card to the applicant forthwith.

q. The respondent shall cooperate with the applicant to submit claims for the child’s eligible therapy and treatment through his plan. Upon receipt of any reimbursement for such claims, the respondent shall e-transfer the funds to the applicant within 48 hours.

r. The respondent shall pay child support for the child H.M. commencing June 1, 2017 in the following amounts:

i. The respondent’s income in 2017 was $70,961. Support for one child for the period of June to November, 2017 in the amount of $647 per month.

ii. The respondent shall pay child support of $663 for the month of December 2017.

iii. The respondent’s income in 2018 was $94,219. Support for one child shall be $864 per month commencing January 1, 2018.

iv. Arrears of support for 2017 total $3,898.

v. Arrears of support for 2018 total $10,368.

vi. Arrears of support up to April 1, 2019 total $3,456.

vii. Total arrears of support owed by the respondent up to and including the April 1, 2019 payment are $17,722.

viii. The arrears of support and ongoing support shall be enforced by the Family Responsibility Office.

ix. An SDO shall issue.

s. The respondent shall pay costs of $68,500. 50% of those costs are enforceable as support by the Family Responsibility Office.

t. Except as set out herein, the respondent’s claims in his Amended Amended Response to Motion to Change dated January 4, 2019, are dismissed.

C. Gilmore, J.

Released: April 16, 2019

COURT FILE NO.: FS-16-20853 DATE: 20190416 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Samia Hamid Ahmed Ali Applicant – and – Abudulelah Hassan Mohammed Bashir Respondent

REASONS FOR JUDGMENT C. Gilmore, J. Released: April 16, 2019

[1] Watson v. Watson (1991), 35 R.F.L.(3d) 169 (B.C.S.C.).

[2] A.B. v. J.B., 2017 ONCJ 866 at paras 27-29.

[3] M.R. v. A.L. and G.L., 2017 ONSC 85 at 27-28.

[4] Punzo v. Punzo, 2016 ONCA 957, para 43.