Court File and Parties
COURT FILE NO.: FS-14-395073 DATE: 20190613
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LAILA TIBARI Applicant – and – ABDELHAK MAADEN Respondent
Counsel: Isaac Birenbaum, for the Applicant Abdelhak Maaden, self-represented
HEARD: June 10, 2019
BEFORE: Hood, J.
Reasons for Decision on Motion to Change
Overview
1In January 2018 I heard a seven day trial between the parties. As I indicated in my reasons for decision released on March 22, 2018 (Tibari v. Maaden, 2018 ONSC 1938) the issues at trial were many – custody, access, restraining orders, child support, retroactive s. 7 expenses and travel with Adam, the parties’ son. At the time of the trial Adam was seven years old. He is now 8 ½ years old.
2As part of my previous reasons for decision I made a final order that Adam’s passport was to remain with the Accountant of the Superior Court of Justice until December 16, 2019 when Adam turns 9. I ordered that up until then Adam could travel with either parent within Canada subject to certain terms and directions. After December 16, 2019 I ordered that Adam was free to travel to the continental USA, again subject to certain terms and directions. After December 16, 2020, when Adam was 10 years old, I ordered that Adam was free to travel beyond Canada and the continental USA, again subject to certain terms and directions.
3On August 3, 2018 the applicant mother (the “AM”) brought a motion to change my final order regarding travel with Adam asking that my order be varied to allow her to travel to Morocco from December 20, 2018 to January 10, 2019, in order to visit her parents, Adam’s grandparents. In the affidavit in support the AM deposed that her mother is unable to travel “a great distance because of her medical condition”. The respondent father (the “RF”) was opposed to the motion to change.
4December 2018 and January 2019 came and went. A settlement conference was held March 29, 2019. A trial management conference was held on April 15, 2019 and at the TMC a trial date was set. The AM now wanted to travel to Morocco with Adam during the summer of 2019. Justice Horkins, at the TMC, made an order as to the exchange of affidavit material prior to trial. Her timetable was not followed. The AM was to have served her affidavit material by May 3, 2019. Rather, it was sworn on May 31, 2019 and mailed to the RF that day. AM’s affidavit repeats much of her evidence from the previous trial including some, as indicated in my previous reasons, that I was not prepared to accept. In her affidavit she proposed travelling to Morocco for approximately two months with Adam. The RF never did file any affidavit in response as he was ordered to do. Rather, he served something called a “Supplementary Document Brief” on June 1, 2019, which contained my previous order, my previous reasons for decision, the AM’s affidavit and a summary of the RF’s reasons for opposing the motion to change.
5At the commencement of the trial on the motion to change I asked both parties whether they were prepared to proceed despite the non-compliance with Justice Horkins’ scheduling order. They both indicated that they were prepared to proceed.
6In her viva voce evidence at trial the AM testified that she was only seeking a variation to allow 3 weeks of travel in August, 2019 as opposed to two months as previously asked for in her affidavit. Any lost access time for the RF would be calculated and made up. No time had been fixed for the travel because she had not purchased any tickets. In cross-examination she testified that she could not afford to pay for the tickets and her parents would buy the airplane tickets as soon as the order was made allowing Adam to travel to Morocco.
7For the following reasons I order that the AM’s motion to change be dismissed.
8As indicated at the first trial it was in Adam’s best interests that the conflict relating to him end as soon as possible. Among other things, I found that the parties used calls to the police or threats to call the police as part of their parenting plan. My reasons for decision set out all the conflict between them, including the conflict over travel with Adam. At paragraphs 15 to 25 and 65 to 75 of my trial reasons for decision I set out some of the history and issues surrounding travel. At paragraph 76 I stated:
“[76] However, travel with Adam has preoccupied the parties and has taken up an inordinate amount of court time, both prior to the trial and during the trial itself. Any order must put Adam’s interests first and foremost. These parents have had too many points of conflict in the past. Hopefully the conflict will diminish through both changed behavior and the orders made as part of this decision. In my view it is in Adam’s best interest to take the issue of travel with Adam off the table for both parties for the time being. For now, any travel with Adam should be within Canada and Adam’s passport should remain filed with the Accountant’s office.”
9The final orders with respect to access, telephone access, custody, communication between the parties, travel and restraining orders were designed to lower the tension between the parties and to create some normalcy for the parties and for Adam. From the evidence of the AM given before me on the motion to change the order apparently has had the desired effect. The AM testified that the access is going well, in accordance with the Court order and that there have been no incidents between the parties contrasting with the evidence at the previous trial. This does not necessarily mean that the previous Court order is the sole reason for this change. Clearly the parties, to their credit must have had something to do with this and as hoped for have been able to discuss and resolve any matters that may have arisen between them, as adults.
10Like at the previous trial the RF argues that the AM will keep Adam in Morocco. I remain of the view that sufficient convincing evidence has not been presented to the court to conclude that Adam should not be allowed to eventually travel with either party outside of Canada, including Morocco.
11In support of her travel with Adam the AM testified that Morocco is a signatory to the Hague Convention. There was no evidence in support of this or confirming that this was the Convention on the Civil Aspects of International Child Abduction or one of the other Hague conventions. Even if I accept that Morocco is a signatory to this particular Convention there was no expert evidence or any fact evidence of any sort, just as there was no such evidence at the previous trial, as to how this specific Convention is applied in Morocco, or if at all.
12However, the RF’s concerns or the applicability of the Hague Convention are not the issue. The issue is whether there has been a material change in circumstances since the date the previous order was made so as to change the timing of Adam’s international travel and specifically his travel to Morocco. The AM argues that her mother, Adam’s grandmother, who lives in Morocco is, as previously mentioned, unable to travel to Canada to visit Adam because of her medical condition. Because she cannot travel Adam should be able to travel to her. At the same time she argues that spending 3 weeks in Morocco with his extended family enjoying the beaches and other activities in Morocco would be more enjoyable for Adam than staying in Toronto and attending day camp and therefore in Adam’s best interests. That however is not a material change.
13There is no evidence as to the medical condition of AM’s mother other than AM’s statement in her affidavit that doctors have advised her mother not to travel and her evidence at trial that she should not travel for the time being. There is no expert’s report. There is no affidavit from a doctor. There is not even a letter from a doctor. There is only the AM’s hearsay evidence on this. No argument was made as to why this hearsay evidence of the unknown doctors should be admissible. The AM’s evidence is not sufficient to establish a material change.
14Even if the AM was able to present admissible evidence establishing that her mother was unable to travel that would not alter my decision to dismiss the AM’s change motion. If the grandmother’s inability to travel had been given as evidence at the previous trial it would not have led to a different decision by me. As mentioned previously, travel by the parties was a flashpoint and my trial order was made in Adam’s best interests to lower the tension between the parties. On the AM’s evidence it has done this. Even if proven it would not be a material change sufficient to change my previous order.
15It is not as if Adam and his grandmother do not have a relationship and it can only be saved or created through personal contact. They Skype every day. The AM describes their present relationship as close. The AM has an extended family in Morocco consisting of nieces, nephews, uncles, aunts and cousins, in addition to her parents. The AM testifies that if Adam was allowed to travel to Morocco he could play and spend time with this extended family in addition to seeing his grandparents. No explanation was given as to why members of the extended family cannot travel to Toronto during the summer. The grandfather can still travel and visit Adam if he wishes.
16Being successful the RF is presumptively entitled to costs of the motion to change. If the parties are unable to agree on costs the RF is to serve and file his cost submissions with the family law office on or before June 28, 2019. The submissions are to be in hard copy, not to exceed two double-spaced pages, together with a Bill of Costs and any other necessary documentation such as offers to settle, receipts for expenses and any appropriate case law. Any responding submissions from the AM are to be served and filed, subject to the same directions as above on or before July 12, 2019.