COURT FILE NO.: FS-19-95740-00
DATE: 2019 10 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Farheen Asma Baig
Applicant
- and -
Syed Asad Amir Dean
Respondent
M. Roshan, Counsel for the Applicant
O. Chaudhry, Counsel for the Respondent
HEARD: September 13, 17 and 23, 2019
REASONS FOR DECISION
LEMAY J
[1] The Applicant and the Respondent have four children, ranging in ages from 6 to 18. The parties separated in July of 2018, but continued to live in the same home in Mississauga until the beginning of August, 2019. At that time, the Applicant moved to Ajax where her parents live. The two youngest children went to live with her in Ajax, while the second oldest child did not move with the Applicant. The oldest child is 18, and moves between Ajax and Mississauga as she wishes. The oldest child is currently enrolled in post-secondary education.
[2] The Applicant has brought an urgent motion prior to either the Respondent’s Answer being filed or to a case conference being held. The urgent motion seeks orders relating to custody, access, parenting, child support and spousal support. In particular, the Applicant seeks an Order requiring the second oldest child, Husayn, to move with his mother and his younger sisters to Ajax.
[3] During the course of the hearing, I advised the parties that I did not view either the child or spousal support issues as being urgent matters. For reasons which I will review below, I am prepared to consider the issue of Husayn’s living arrangements as an urgent matter.
[4] In that regard, I have determined that Husayn should remain in Mississauga with the Respondent, at least on a temporary basis. This is an interim Order, pending the preparation of the OCL’s report about all of the children, which I understand they are prepared to complete.
[5] I have also determined, however, that the current access arrangements (almost none) are unacceptable and need to be changed. I have made orders in that regard as well.
Facts
a) The Family
[6] The Applicant and the Respondent were married in August of 1998. They had an arranged marriage. They separated sometime in July of 2018, but continued to live in the same house in Mississauga until August of 2019.
[7] There appear to have been tensions during the marriage, as well as disputes over how the marriage came to end. There was significant Affidavit material filed on those issues. However, I do not need to decide those issues on this motion and I will not address them any further.
[8] The parties have four children, Zainab, 18, Husayn, 13, Kulsum, 9 and Zahara 6. Since Zianab is 18 and in University, no Orders are necessary with respect to her.
[9] Husayn is a high level soccer player who plays in the OPDL. His team is based in Mississauga. He currently is enrolled in Grade 8 in the same school in Mississauga where he went to Grade 7. The Applicant has brought a motion to have Husayn moved to Ajax, and the Respondent resists this motion and says that Husayn should remain in Mississauga, at least on a temporary basis.
[10] Husayn’s younger sisters, Kulsum and Zahara, are now enrolled in a school in Ajax, and I understand are happy there. They currently live in the same house as the Applicant’s parents and other family members. The Respondent is not seeking any relief to have Kulsum and Zahara returned to Mississauga, at least on an interim basis. I will return to the issue of access as part of my determination as to where Husayn should live.
[11] I should note that I have also asked the OCL to become involved in this file, and I will address that Order further at the end of these reasons.
b) The Move
[12] It is clear from the materials that were filed that the parties had discussed a move to Ajax long before it took place. There is, however, a disagreement in the Affidavits about whether the parties agreed to this move or not. The Applicant says that the parties agreed to the move, so that she could live with her parents. The Respondent says that he was always opposed to the move.
[13] There is also a disagreement in the Affidavits about how the move took place. The Applicant states that the parties were in the process of packing on the day of the move, and that the Respondent took Husayn to his parents place for a visit and then allegedly refused to return him. The Applicant also alleges that the boxes with Husayn’s belongings were removed from the matrimonial home by the Respondent.
[14] The Respondent states that Husayn has always been against the move to Ajax. The Respondent states that Husayn was at a friend’s in Milton on the Friday night before the move. According to the Respondent, Husayn himself did not want to move to Ajax and decided to remain in Mississauga with his father.
[15] Each party claims that the other party has engaged in self-help remedies by way of their conduct around the time of the move. The problem with this position is twofold. First, determining whether self-help remedies were invoked involves a credibility assessment that requires me to determine, in part, what the parties said about the move to Ajax in their discussions over the last year. This factual dispute about who was engaged in self-help remedies cannot be resolved on the record I have for this motion.
[16] Second, there was no Order in place at the time the parties moved. As a result, no one is in breach of a Court Order.
[17] In any event, as I have noted, the Applicant and the two youngest girls moved to Ajax and now live in a home with the Applicant’s parents. They are enrolled in school there, and no Orders asking that they be returned have been sought.
c) The Status of the Proceedings
[18] As I have noted, this proceeding has just started, and there is not even an Answer filed yet. Similarly, no Case Conference was scheduled when this matter came on before me. One is now scheduled for November 15th, 2019 at 10:00 a.m..
[19] As a result, I determined that the only urgent issue that I had the jurisdiction to address at this point is the primary residence and access of Husayn. The remaining issues must wait until after the case conference is held.
[20] In addition, shortly before the hearing of this motion there was a reply Affidavit filed by the Applicant, and the Respondent challenged some of the facts in this Reply Affidavit. Other than the soccer schedule, the information in that Affidavit focuses on issues that it is not necessary for me to consider to decide the issue I have before me. As a result, I ruled that no further material was required or permitted from the Respondent.
[21] The parties were originally before me on Friday, September 13th, 2019. At that time, the parties discussed settlement. There was originally some suggestion that the parties might be able to resolve this matter. As a result, I adjourned this matter to 9:30 am on Tuesday, September 17th, 2019. Unfortunately, the parties were not able to resolve the matter and I am left to make a decision.
[22] I should note that, when I was preparing my reasons, it became clear to me that I had no reliable evidence about Husayn’s views and preferences. While I did have some evidence, it had the following problems:
a) It focused on the parents and Husayn’s relationship with his parents, rather than focusing on what was in Husayn’s best interests.
b) The Respondent’s position that Husayn does not want to see his mother until the access schedule is determined causes me serious concern. This does not sound like a position that a thirteen year old boy would take and, combined with the change in tone in the text messages to the Applicant, raises concerns that Husayn’s current views, as expressed in text messages, were being significantly influenced by the Respondent.
c) The text messages from Husayn to his mother have taken on a more “adult” tone in their composition, which leaves me concerned that the views expressed in those e-mails are either being formed or being dictated by the Respondent.
[23] Husayn’s views are an important part of my determination. Indeed, section 24(2)(b) of the Children’s Law Reform Act requires me to consider Husayn’s views and preferences, if they can be reasonably determined. The absence of this information put me in a position where I was not comfortable making a decision on the record that I have if I could reasonably ascertain those views.
[24] As a result, I set out an endorsement to that effect on September 20th, 2019 and directed the parties to attend by conference call on September 23rd, 2019. In my endorsement, I suggested either a voice of the child report or a private referral to an independent assessor who could prepare that report as being ways that we could reasonably, and quickly, ascertain Husayn’s views, on at least a temporary basis.
[25] The September 23rd, 2019 appearance was done by way of a conference call. On that call, both counsel indicated to me that they did not wish to proceed with an independent assessor. Instead, they either wanted a voice of the child report done quickly by the OCL or they wanted me to conduct a confidential interview with Husayn.
[26] I was (and am) reluctant to conduct an interview with Husayn, as I do not have the training that an assessor would have. Regardless of this concern, both counsel and both parties expressed their desire to have me conduct an interview if the OCL could not proceed promptly.
[27] As a result, at the end of the call, I advised the parties that we would re-convene on September 25th, 2019 to determine next steps. I also told the parties that, unless they could agree on the terms, there would be an order for Husayn to spend the weekend with the Applicant, as she has not seen Husayn since the beginning of August.
[28] In addition, during this call both sides raised concerns that the other side was attempting to put pressure on Husayn. I cautioned the parties that it was my expectation that no one, including extended family members, would discuss the issues in this case with Husayn. I also cautioned the parties that, if I conducted an interview with Husayn, I would be asking him about whether he had had discussions with either party, or members of the extended family. The parties understood my directions in this regard.
[29] We reconvened on Wednesday September 25th, 2019. Both counsel and I had attempted to contact the OCL about preparing the voice of the child report prior to that appearance, but had not heard back from the OCL at that time.
[30] As a result, at the September 25th, 2019 appearance, I confirmed with the parties what the access arrangements for this weekend would be, and scheduled an interview with Husayn to take place at 4:30 on Monday, September 30th, 2019, which was yesterday.
[31] I heard back from the OCL via e-mail that was sent late on Friday, September 27th, 2019 and received by me in the morning of September 30th, 2019. The OCL was prepared to complete both of the reports that I had requested, but advised that the voice of the child report would take 30 days to complete. At the outset of the interview with Husayn, I advised that the OCL was prepared to provide a separate voice of the child report for Husayn, but that it would be completed in thirty (30) days. Both parties wanted me to resolve the matter more quickly, so I conducted the interview.
[32] The interview was done in-camera, without either counsel or either party present. Indeed, I had advised that counsel could only be present at the beginning, and that neither counsel nor the parties could be present at all during the interview. I directed that the recording of the interview, which took place in Court, be sealed. It may not be unsealed without my Order.
[33] I conducted my interview with Husayn, which I promised him would be confidential. As a result, I will not outline any of the details of that interview but I have considered what Husayn has had to say to me in reaching my decision.
The Applicable Law
[34] First, as I have noted, this motion was brought before a case conference. As a result, Rule 14(4) of the Family Law Rules would preclude hearing the motion unless I determined that it was an urgent matter within the meaning of Rule 14(4.2). This is the type of case where addressing the issues relating to access, custody and primary residence are urgent. Not deciding the matter now would result int he status quo being maintained without judicial consideration. In this regard, see Degan v. Degan (2015 ONSC 6442) and Endicott v. Endicott (2015 ONSC 3180) for a discussion of the types of cases where the court will (and will not) consider a matter to be urgent.
[35] This brings me to the factors that I should consider in making my decision. In Gordon v. Goertz, McLachlin J. (as she then was) summarized the law as follows (at paragraph 49):
The law can be summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
This inquiry is based on the finding of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[36] Gordon, supra involved a change in circumstances, while this case involves an initial and temporary Order. However, the factors in sub-paragraph 7 are helpful to my analysis of what I should consider in determining where Husayn’s primary residence should be, at least on an interim basis.
[37] Two other observations should be made about the legal test to be applied. First, as Corbett J. noted in Konkin v. Aguilera (2010 ONSC 4808), the starting point for my analysis should be a consideration of what arrangement is in the best interests of Husayn.
[38] Second, Husayn has two younger siblings. As the New Brunswick Court of Appeal noted in P.R.H. v. M.E.L. (2009 NBCA 18 at para. 24), consideration should be given to the impact of separating Husayn from his siblings. The New Brunswick Court of Appeal suggests that such a separation should be an exceptional circumstance, and a judge who separates siblings should clearly set out his reasons for doing so.
[39] I will now turn to an analysis of how this framework applies to the case at bar.
Analysis
a) Positions of the Parties
[40] The Applicant argues that Husayn should move to Ajax, and be with his sisters and her as that will keep the three siblings together. The Applicant argues that she has been a stay-at-home mother and Husayn’s primary caregiver. She also argues that, because of the pending sale of the matrimonial home, Husayn will have to go to another school in any event. Finally, she argues that the living arrangements for Husayn if he remains in Mississauga will be significantly disrupted in the next six months, as the matrimonial home will likely be listed for sale and sold shortly. The Applicant is also prepared to bring Husayn to his soccer practices.
[41] The Respondent argues that it would be too disruptive to move Husayn for three reasons. First, it would interfere with his soccer. Second, moving him at this point would result in Husayn not being able to complete Grade 8 in the school where he had done Grade 7. In other words, the end of Grade 8 is a more natural break point. Third, the Applicant argues that moving Husayn at this point will not result in him spending much, if any, more time with his sisters as he will be travelling back for soccer on a regular basis.
[42] The parties have differing views about whether the move to Ajax was planned and agreed-to. I do not need to resolve that issue on this motion, as I am only making a temporary determination as to where Husayn will live. To be clear, I have asked the OCL to become involved with all three children who are under 18, and that request remains open. Where the children live on a permanent basis is an open question.
b) Disposition
[43] In terms of the factors set out in paragraph 7 of Goertz, supra, the most relevant factors to consider are:
a) The desirability of maximizing contact between Husayn and both parents.
b) Similarly, the desirability of maximizing contact between Husayn and his sisters should also be considered.
c) Husayn’s views.
d) The disruption to Husayn consequent on removal from family, schools and the community that he has come to know.
[44] In this analysis, the focus is on the best interests of the child. The analysis starts from the fact that neither Kulsum nor Zahara are coming back from Ajax, at least in the short term. The Respondent has not made a request for an Order to have either daughter returned to Mississauga. The fact that his sisters are in Ajax is a significant argument in favour of having Husayn moved to Ajax as well.
[45] Where parents are separating, the support that siblings can provide to each other is an important part of ensuring that the transition to two different households is as smooth as possible. As a result, I am of the view that any order must provide an opportunity for the younger children to spend more time together, even though I am not ordering Husayn to move to Ajax.
[46] In this case, given the distance between the parents, the parent who has the children living with him or her will end up seeing them considerably more than the parent who does not have the children living with him or her. This is because the non-resident parent will end up with access on the weekends only.
[47] However, there is also the disruption to Husayn that would be attendant on him moving to Ajax. This disruption would come in two ways. First, his soccer team and soccer practices. Second, by transferring him in the middle of Grade 8 rather than waiting until Grade 9 to transfer him, Husayn would have to change schools in the middle of the school year, and would also be unable to finish Grade 8 with the group of kids that he started with.
[48] In terms of the soccer, there are two choices, both of which have problems. First, Husayn could be driven back and forth from Ajax to Mississauga for soccer practice. This has issues because it will result in Husayn spending hours in a car on multiple days per week. This leaves less time for homework and less time for other activities. Second, Husayn could try and sign up for one of the higher level clubs in Ajax. The problem with that potential solution is that I have no information about when these clubs would be doing tryouts and the like.
[49] This brings me to the issue of schooling. Husayn is also currently working with a tutor for math and English. There would also be disruption to his tutoring if he was moved to Ajax at this point.
[50] However, the concerns about transferring Husayn in the middle of Grade 8 are counterbalanced, to a certain extent, by the fact that it would provide him the opportunity to make new friends before Grade 9, if the ultimate decision is that he should remain in Ajax. Of course, if the final analysis indicates that it is in Husayn’s best interests to be in Mississauga, then he might end up having to transfer twice if he is moved to Ajax now.
[51] In the result, there is a difficult balancing that has to be done in this case. However, I am of the view that Husayn should remain in Mississauga, at least for now. I reach this conclusion because it is less disruptive to his routines and allows him to focus on the soccer, which is an important part of his life. The disruption in changing routines, attempting to find a new soccer club (or driving back and forth between Ajax and Mississauga on a regular basis during the week) and changing tutors in the middle of the year is significant enough that it overcomes my concerns about Husayn not living with his sisters. However, there must be more contact between Husayn and his sisters.
[52] As a result, my Order should also be accompanied with directions respecting access. The parties are now a considerable distance from each other. As a result, only weekend access is appropriate. I also acknowledge that Husayn’s schedule will be quite busy, but there needs to be time for him to spend with his younger sisters.
[53] Therefore, in order to maximize contact with the parents and ensure that Husayn has as much contact with his sisters as possible, I am making the following temporary access and custody orders:
a) The parties continue to retain joint custody of Husayn.
b) Husayn shall be primarily resident, on an interim basis with the Respondent in Mississauga.
c) Husayn shall spend every second weekend with the Applicant, subject to paragraph . The next such weekend will be October 11th to the 14th, 2019.
d) On weekends where the Applicant has access, she shall be able to pick Husayn up after school on Friday. The Respondent shall be responsible for picking Husayn up from the Applicant’s residence at 7:00 p.m on the Sunday.
e) The previous paragraph is modified on weekends where there is a P.D. day or a statutory holiday (or both). On those days, the Applicant shall be able to pick Husayn up after school on the last school day before the weekend. The Respondent shall pick Husayn up from the Applicant’s residence on the last day of the break before school starts.
f) On one weekend a month starting on October 18th, 2019, the Respondent shall be entitled to access the two younger girls. The provisions for pick up and drop off set out in paragraphs d and e shall be reversed, and the Respondent shall be responsible for picking up the girls from school on the Friday. This right is subject to the next paragraph.
g) The Respondent is to advise the Applicant in writing, by text or e-mail, whether he will exercise his rights of access in the previous paragraph at least two days prior to the access taking place. In the event that the Respondent chooses not to exercise these rights of access, then the Applicant shall be entitled to have the weekend where the Respondent has declined the opportunity to see the girls as an additional access weekend with Husayn.
Conclusion and Costs
[54] For the foregoing reasons, I order as follows:
a) The requests for any relief relating to issues other than custody and access are dismissed.
b) A case conference date is scheduled for November 15th, 2019 at 10:00 a.m.
c) No further motions may be brought in this matter, save and except a motion to enforce this Order or address some other urgent matter, until the case conference is held. Any motion that a party is seeking to bring before the case conference is returnable before me.
d) The parties continue to retain joint custody of Husayn.
e) Husayn shall be primarily resident, on an interim basis with the Respondent in Mississauga.
f) Husayn shall spend every second weekend with the Applicant, subject to paragraph . The next such weekend will be October 11th to the 14th, 2019.
g) On weekends where the Applicant has access, she shall be able to pick Husayn up after school on Friday. The Respondent shall be responsible for picking Husayn up from the Applicant’s residence at 7:00 p.m on the Sunday.
h) The previous paragraph is modified on weekends where there is a P.D. day or a statutory holiday (or both). On those days, the Applicant shall be able to pick Husayn up after school on the last school day before the weekend. The Respondent shall pick Husayn up from the Applicant’s residence on the last day of the break before school starts.
i) On one weekend a month starting on October 18th, 2019, the Respondent shall be entitled to access the two younger girls. The provisions for pick up and drop off set out in paragraphs g and h shall be reversed, and the Respondent shall be responsible for picking up the girls from school on the Friday. This right is subject to the next paragraph.
j) The Respondent is to advise the Applicant in writing, by text or e-mail, whether he will exercise his rights of access in the previous paragraph at least two days prior to the access taking place. In the event that the Respondent chooses not to exercise these rights of access, then the Applicant shall be entitled to have the weekend where the Respondent has declined the opportunity to see the girls as an additional access weekend with Husayn.
k) The record of the interview I held with Husayn is sealed, and may not be unsealed without my Order.
l) I note that, at the original hearing, I made an Order asking the OCL to become involved with all three children under section 89(3.1) and 112 of the Children’s Law Reform Act. That order remains in place, and I would strongly encourage the OCL to accept a referral for a section 112 assessment for all three of the children under the age of 18.
[55] This brings me to costs. This motion was necessitated, in part, by the disagreement between the parties over whether they had an agreement that the three younger children would move to Ajax. At first blush, it would seem to me that any costs of this motion should be reserved to the trial judge, or the judge determining the question of what the agreement actually was. Based on this observation, the parties are encouraged to agree on costs.
[56] However, if any party wishes to make costs submissions they shall have seven (7) calendar days from the release of these reasons to do so. Those costs submissions will be no longer than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case law.
[57] Parties who receive costs submissions shall have seven (7) further calendar days to respond to those costs submissions. The responding submissions shall be no more than one (1) single-spaced page.
[58] There are to be no extensions to the deadlines for costs submissions, even on consent, without leave. If I do not receive any costs submissions within the timetable I have set out above, then the costs of this motion will be reserved to the trial judge.
[59] There are two final matters. First, I would remind the parties again of the importance of cooperating over all the issues in this case and the importance of ensuring that the issues between the parties are not discussed with any of the children.
[60] Second, I would be remiss if I did not thank both counsel for their hard work, professionalism and courtesy in addressing these matters in an efficient and thoughtful manner.
LEMAY J
Released: October 1, 2019
COURT FILE NO.: FS-19-95740-00
DATE: 2019 10 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Farheen Asma Baig
Applicant
- and -
Syed Asad Amir Dean
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: October 1, 2019