COURT FILE NO.: FS-19-112
DATE: 2019 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Faraz Ul Islam
In Person
Appellant
- and -
Sarosh Riaz
In Person
Respondent
HEARD: September 23, 2019
REASONS FOR JUDGMENT
[On appeal from the interim order of the Honourable Justice L.S. Parent of the Ontario Court of Justice made on February 26, 2019 and April 15, 2019]
Fragomeni J.
Nature of the Proceedings
[1] On February 22, 2019 the motions judge heard a motion brought by the appellant father, Faraz Ul Islam, for an order seeking to expand his access to his child and to remove the condition of supervision as contained in the existing temporary order granted on consent of the parties on April 26, 2017.
[2] The parties are the biological parents of one child, namely F, who at the time the motion was heard was five years old.
[3] A transcript of the proceedings on this motion heard on February 22, 2019 is attached at Tab 4 of the Appeal Record of the appellant. The motions judge’s reasons and decision are attached at Tab 2 of the Appeal Record of the appellant.
[4] The motions judge’s order dated February 26, 2019 is as follows:
The Respondent, Faraz Ul Islam’s motion for a variation of the existing access order dated April 26, 2017 is denied.
In the absence of an Agreement, the Applicant, Sarosh Riaz is entitled to her costs given that she is the successful party in this matter. Accordingly, the following timetable on the issue of costs is ordered:
a) The Applicant, Sarosh Riaz, shall serve and filed (sic) her request for costs, limited to two (2) pages, double-spaced with 12 inch font and excluding any Bill of Costs and/or Offers to Settle, by March 12, 2019;
b) Submissions on behalf of the Respondent, Faraz Ul Islam, limited to two (2) pages, double-spaced with 12 inch font and excluding any Bill of Costs and/or Offers to Settle, shall be served and filed by March 26, 2019;
c) Submissions in reply by the Applicant, Sarosh Riaz, limited to one (1) page, double-spaced with 12 inch font shall be served and filed by April 2, 2019.
The costs submissions ordered above can be forwarded to Ms. Ana Boras, assistant to L.S. Parent, by email at ana.boras@ontario.ca or fax at 905-456-4829.
As previously noted in endorsement dated February 22, 2019 of Justice Parent, this matter shall proceed as scheduled to a case conference on April 18, 2019 at 10:00 a.m. in Courtroom# 210.
[5] The appellant father submits that the motions judge did not adequately review the evidentiary record filed at the motion. The father also submits that the motions judge should not have relied on the report of the Office of the Children’s Lawyer in assessing the issue of supervision.
[6] The respondent mother submits that the motions judge carefully and thoughtfully reviewed the record. The mother also submits that the motions judge was entitled to consider the OCL report. Even though the father had prepared an almost 400 page dispute to the OCL report it was not filed at the motion nor was any specific reference made to it in support of the father’s position at the motion.
[7] In summary the mother submits that the motions judge made no error in reaching her decision.
Reasons of the Motions judge
[8] I have reviewed and considered the reasons set out by the motions judge dated February 26, 2019. For the purposes of this appeal it is only necessary to set out certain portions of her reasons to provide context to the discussion the follows.
[9] It is important to note that the motions judge read the material filed at the motion. At page 31 of the transcript of the February 22, 2019 hearing the motions judge states this:
So when I indicate to you at the beginning that I’ve read the materials - I have read the materials but I’m now going to re-read the materials in light of the comments that Ms. Riaz you’ve provided to me today and Ms. Samra you’re done on behalf of your client.
[10] In her reasons, the motions judge sets out the history of the litigation at paragraphs 3 to 19. At paragraph 12 the motions judge states:
[12] On November 20th, 2017, Dunn, J. dismissed Mr. Ul Islam’s motion for unsupervised access.
[11] At paragraphs 15 to 19 she sets out the following:
[15] On May 3rd, 2018, I also granted an order requesting the re-involvement of the Office of the Children’s Lawyer (OCL). The involvement of the OCL had been previously requested pursuant to the order of Dunn, J. dated November 20th, 2017.
[16] My endorsement of January 16th, 2017, noted that the OCL had filed a discontinued report on the basis that an observational visit could not occur involving Mr. Ul Islam and his child as he had relinquished his right of access. The relinquishment by Mr. Ul Islam resulted in the consent order terminating his access with F. on July 27th, 2017.
[17] Given that access between Mr. Ul Islam and his child, had resumed pursuant to a consent order granted on January 31st, 2018, I granted an order requesting the re-involvement of the OCL in this matter.
[18] the matter was adjourned on June 11th, 2018 and September 17th, 2018 to await the filing of the report of the OCL as they accepted to become re-involved.
[19] The matter proceeded to a further case conference on November 23rd, 2018 following the completion and filing of the OCL report dated September 12th, 2018. The matter was thereafter rescheduled for the motion which proceeded on February 22nd, 2019.
[12] After reviewing the position of the parties, the motions judge identified the issue before her as follows:
[26] Mr. Ul Islam seeks a variation of the existing order granted, on consent of the parties, on April 26th, 2017 which provides for his access to his child to be supervised through the Supervised Access Centre.
[13] The motions judge commences her analysis at paragraph 27. The motions judge notes that one of the recommendations of the author of the OCL report dated September 12, 2018 was that:
b) Mr. Islam shall have fully supervised visits at an access center or by an agreed third party as agreed upon by Ms. Riaz and Mr. Islam.
[14] Although the father argues that the motions judge did not properly review the observation notes of the Supervised Access Center, her reasons indicate otherwise. At paragraphs 37 to 40 of her reasons she sets out the following:
[37] Both parties have attached Observation Reports as Exhibits to their respective affidavits. I have reviewed these reports as submitted by the parties. I further note that Ms. Bled references in her report that she has also reviewed the Supervised Access Observation Reports made available to her during her investigation.
[38] My review of the notes do confirm each party’s evidence that there has been consistent attendance by the parties and their child at the scheduled visits since January 2018. There have not been any critical reports arising from these visits and only slight non-adherence on the required arrival/departure requirements by both parties.
[39] I find that overall, the reports do describe the activities engaged in by Mr. Ul Islam and F. during these visits as being quite positive and enjoyed be (sic) each of them.
[40] The Observational Reports however do note behaviour engaged in by Mr. Ul Islam during the visits which are not child focused. These behaviours include the questioning of the child, reframing of questions to the child until a response is received, the insistence that the child display affection physically and/or verbally towards him and the questioning of the care the child received while with her mother. The Observational Reports support the finding that this behaviour engaged in by Mr. Ul Islam is consistent throughout all of his visits with F.
[15] With respect to the father’s dispute to the OCL report the motions judge stated the following at paragraphs 55 to 59:
[55] The endorsement on November 23rd, 2018 indicates Mr. Ul Islam confirming that he has provided a copy of his October 18th, 2018 affidavit to the OCL as his dispute to the report. A review of the file confirms that this affidavit has not been filed with the court and was not relied upon by Mr. Ul Islam in this motion. Also the file does not contain an affidavit of service on the OCL and a response from them.
[56] The absence of a dispute which provides specific details supporting Mr. Ul Islam’s position that the OCL report is defective is problematic as the result is that he has not provided any details to support his conclusion that the OCL report is biased and therefore that no consideration be given to it at this motion.
[57] Given the parties’ respective positions, it is evident that Ms. Bled’s evidence will be seriously weighed by the trial judge.
[58] The question today is whether or not, at this temporary stage, I should consider the observations and recommendations of the OCL, without the benefit of direct and cross-examination of Ms. Bled, and given the other evidence submitted by each party.
[59] In his decision in Bos v. Bos 2012 ONSC 3425, [2012] O.J. No. 2704, Mitrow, J. reviews the caselaw adopting the approach in Genovesi and concludes at paragraphs 23 and 24 as follows:
[23] … In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi.
[24] The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.
[16] The motions judge quotes extensively from the OCL report reproducing portions of the report at paragraph 65 of her reasons:
[65] In reviewing the report, I do not find that Ms. Bled only accepts without further investigation and/or repeats the allegations raised by both parents against the other. Rather she seriously considers the concerns raised by both parents and investigates them through discussion with each parent and collateral sources. An example of this is found on page 14 of her report wherein she writes:
Both parents’ personal collaterals have commented that F. does need both of … parents involved in his/her life. Ms. K., Ms. Riaz’s cousin, commented that her worries are related to the content of the emails and the negative and insulting comments Mr. Islam makes towards her cousin. She comments that although she did not see Mr. Islam parent F.. it did not surprise her that Ms. Riaz would attend to all of F.’s needs, due to their cultural expectations. Ms. K. commented that in Pakistan, men do not really care for young children. It is also expected of a wife to attend to her husband’s needs, such as cooking and putting food on their plate (sic). Ms. K. stated that she knows that F. remembers … father. It is evident when [F.] sees red cars or when they drive near the route to the access center [F.} will mention him. Ms. K. has indicated that currently she supports Ms. Riaz’s request for fully supervised visits, primarily based on the content of the e-mails she receives from Mr. Islam. She added that she has seen Mr. Islam go from 0-300 in terms of anger, and feels that visits with F. should remain supervised until F. gets older. Mr. J.Q., a family friend, stated that he met the family at the home of Ms. Riaz’s uncle when he came to visit his [family] in August, 2015. He stated that he saw the family on a daily basis as he did some accounting work for Ms. Riaz’s uncle. Mr. J.Q. commented that “Mr. Islam is committed to his family”. Although Mr. J.Q. was unable to provide examples of Mr. Islam’s parenting of F., he commented that as a father he “is very good” “he loves his [child]”. Mr. J.Q. confirmed that Mr. Islam is only remaining in Canada due to his [child] and stated that he returned to Pakistan to resign from his job, sell some property and return to Canada. Mr. J.Q. commented that the reason why Ms. Riaz did not want to return home was the common complaint of women in Pakistan; she would have to go home and cook for the entire family and care for her child. He stated that Mr. Islam had told her that they would only return home after he had resigned and come back to Canada. Mr. J.Q. strongly suggests that the parents attend joint counselling. Ms. Riaz has requested that Mr. Islam attend an anger management course and Mr. Islam has indicated that he does not see a need for attending an anger management course.
[17] At paragraph 66 the motions judge makes reference to additional portions of the OCL report.
[18] At paragraph 67 the motions judge states:
[67] I note that the concerns raised by Ms. Bled regarding Mr. Ul Islam’s behaviour in her report are also seen throughout the Supervised Access Observation Reports. I therefore find that there is an evidentiary basis to conclude that these concerns exists and do not support a variation of access visits from supervised to unsupervised.
[19] Finally, the motions judge articulates her conclusion at paragraph 70 as follows:
[70] I find that the evidence establishes, despite the positive description and observations of the access visits through the notes and the OCL report, there exists concerns specifically relating to Mr. Ul Islam’s behaviour during visits with F. which persist despite attending at a parenting course. The evidence supports the determination that despite attending a parenting course, Mr. Ul Islam has not gained insight as to how his behaviour impacts F. Given this, I find that that (sic) unsupervised visits, at this time, would not be in the child’s best interests.
Standard of Review
[20] In ALB v. CVL, 2019 ABCA 94 that court set out the standard of review at paragraph 16 as follows:
[16] The standard of review of the chambers judge’s interim order is deferential. An appellate court may only intervene in a decision on custody and access if the judge erred in law or made a material error in the appreciation of the facts: Krause v Krause, 2018 ABCA 293 at para 8, 296 ACWS (3d) 352; Van de Perre v Edwards, 2001 SCC 60 at para 13, [2001] 2 SCR 1014.
[21] At paragraph 48 the court concludes:
[48] The appeal is dismissed. An appellate court may only intervene in a decision on custody and access if the chambers judge erred in law or made a material error in the appreciation of the facts. The same holds true for a chamber judge’s decision granting a contact order to a putative parent. We find no error of law or material error in the appreciation of the facts. Rather, the chambers judge rendered a thoughtful decision providing interim relief in the best interests of the child who is caught in the midst of an acrimonious separation.
[22] In Conde v. Conde, 2018 MBCA 135 the court dealt with appeals of interim orders at paragraphs 15 and 16:
[15] This Court has stated often that appeals of interim orders are to be discouraged and that the best place for review is at the trial of the matter. An appeal is not a re-hearing. The father’s appeal raises issues that deal with discretionary decisions by the motion judge that are to be reviewed by this Court on a deferential standard of review, such that this Court cannot intervene unless the motion judge made an error in the legal principles that he applied, misapprehended the facts or arrived at an unjust decision (see Cottyn v Anderson, 2014 MBCA 48 at para 7).
[16] The father has not identified an error in principle or a misapprehension of the evidence by the motion judge. The interim order is not unjust. At the appeal hearing, the father advised that, under the interim order, he has primary care and control of his daughter 50 per cent of the time. While there are clearly outstanding issues to be resolved, they are best determined by the trial judge, after hearing all of the evidence, at the trial set for one week in February 2019.
Analysis and Conclusion
[23] The motions judge carefully and thoroughly reviewed the evidentiary record before her. I am satisfied that she considered the relevant material. At paragraph 45 of her reasons she states:
[45] Although not specifically referenced in submissions, the variation of the existing temporary order is governed by section 29 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, (CLRA) which provides as follows:
A court shall not make an order under this 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.
[24] The motions judge was clearly deciding this motion with the best interests of the child at the forefront of her consideration and assessment.
[25] Having reviewed the record as she did and considering the submissions of the parties it was clearly open to her to find that the father’s motion could not succeed.
[26] Her findings and conclusions are owed deference. I cannot find any reason to intervene as the motions judge did not err in law nor did she make a material error or any error in the appreciation of the facts. An appeal of an interim order is not a re-hearing.
[27] As set out in Conde “appeals of interim orders are to be discouraged and the best place for review is at the trial of the matter”.
[28] In ALB v. CBL, at paragraph 49 the court stated, “we urge the parties to proceed quickly to a full hearing or trial.” I agree that the statement applies here.
Disposition
[29] The appeal is dismissed as it relates to variation.
Costs Order
[30] The motions judge sets out her reasons for the costs order she made on April 15, 2019. The motions judge reviews Rule 24(12) of the Family Law Rules at paragraph 12 of her reasons. At paragraph 7 she states:
[7] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, has confirmed that the modern cost rules are designed to foster four fundamental purposes, namely (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly.
[31] The motions judge’s findings are listed at paragraph 20:
[20] Turning then to the factors in Rule 24(12) “FLR”, I make the following findings:
(i) The issue before the court, namely a variation of an existing access order, were important to the parties;
(ii) The motion did raise the issues of (1) the impact of a report from the Office of the Children’s Lawyer and (2) the weight to be given to Supervised Access notes at an interim proceeding. These issues, I find, did result in the matter being more complex and the motion materials being more extensive;
(iii) Ms. Riaz has submitted a Bill of Costs for work completed by her former counsel regarding this motion. The Bill of Costs indicates that counsel’s hourly rate is $250.00. Counsel for Mr. Ul Islam, in his submissions, did not indicate that this hourly rate is unreasonable;
(iv) Despite the absence of an indication as to Ms. Riaz’s former counsel’s year of call, I find the hourly rate to be reasonable and proportional; and
(v) Ms. Riaz’s costs include disbursements and HST of $203.40, which I find are reasonable and proportional.
[32] Finally, at paragraph 24 she concludes:
[24] For the reasons stated above, including that Ms. Riaz was the successful party, I find that she is entitled to costs however, not on a full indemnity basis, given the absence of bad faith, unreasonable behaviour and an absence of a formal offer to settle being served in accordance with Rule 18 “FLR”.
[33] The motions judge ordered the father to pay $5,000 inclusive to be paid in three installments:
$2,000 by April 30, 2019
$1,500 by May 31, 2019
$1,500 by June 28, 2019
[34] The motions judge did not err in making the costs order she did. Deference is owed to her decision and she made no error in exercising her discretion to award costs as she did. She made no error in principle nor did she misapprehend the record before her in determining that the mother, as the successful party, was entitled to some costs.
Disposition
[35] The father’s appeal with respect to the issues of costs is dismissed.
[36] The parties shall file written submissions on the costs of the appeal within 20 days.
Fragomeni J.
Released: October 18, 2019
COURT FILE NO.: FS-19-112
DATE: 2019 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FARAZ UL ISLAM
Appellant
- and -
SAROSH RIAZ
Respondent
REASONS FOR JUDGMENT
[On appeal from the interim order of the Honourable Justice L.S. Parent of the Ontario Court of Justice made on February 26, 2019 and April 15, 2019]
Fragomeni J.
Released: October 18, 2019