COURT FILE NO.: FC-20-246 DATE: 20200406 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Haja Fazuludeen, Applicant AND: Farzana Abdulrazack, Respondent

BEFORE: McDermot J.

COUNSEL: Natalie Javed, for the Applicant Alawi Mohideen, for the Respondent

HEARD: April 2, 2020

Endorsement

Introduction

[1] On December 26, 2019, the Respondent Mother, Ms. Abdulrazack, arrived at Pearson International Airport with the two children of the parties. She was returning from a 17 month stay in Adiramapattinam, India, a village where the Applicant Father had been living up until the time he was married to the Respondent in 2007. The Respondent Mother was apparently a permanent resident of Canada at the time; she says that her Canadian residency was one of the reasons that Mr. Fazuludeen chose her as a wife in an arranged marriage situation. In any event, when the Respondent Mother arrived back at Pearson, the children had been in her care for a lengthy period of time, and the parties’ son had attended school in Adiramapattinam during the previous school term.

[2] On December 26, when Ms. Abdulrazack was met at the airport, the children ended up in the care of Mr. Fazuludeen and the parties physically separated. Mr. Fazuludeen took the children to Barrie. Ms. Abdulrazack remained in Scarborough, where the parties had lived with the children prior to her departing for India 17 months prior. The children have not seen the Respondent Mother since then.

[3] The parties have two children, R. who is 11 and M. who is 5. On February 28, 2020, the Applicant Father brought a motion without notice for a restraining order and custody of the children. He alleged that he and the children were at risk of every type of abuse from the Respondent Mother. The matter was placed before Jain J. of this court. Based upon Mr. Fazuludeen’s materials, she made a short-term order providing custody of the children to the father and a restraining order. Those orders were set to expire on return of the motion on March 5, 2020.

[4] When the parties appeared in Motions Court on March 5, 2020, they entered into a consent extending the restraining order. However, they neglected to extend the custody order. When this matter was argued, both counsel indicated that the intention had been to extend the custody order as well and that omission was by inadvertence only. The matter proceeded on the basis that there was an extant order placing the children in the care of the Applicant Father.

[5] Mr. Fazuludeen says that the ex parte order was warranted based upon a course of abuse visited upon himself and the children by the Respondent Mother. He says that he was the primary caregiver of the children and had been so prior to and since the parties separated in June, 2016. He says that since then, the Respondent Mother has been physically, emotionally, financially and sexually abusive to himself and the children. He says that there was also a course of threats and intimidation which resulted in the children ending up in the care of the Respondent in India. He also said that the abuse and threats resulted in the parties living under the same roof since the date of separation in June, 2016, and he says that he was afraid to move out of the matrimonial home and obtain his own residence for himself and the children.

[6] Ms. Abdulrazack, naturally enough, tells a different story. She says that, if there was abuse, it flowed from her husband and she was a victim of that abuse. She says that there was no separation until December 26, 2019, when Mr. Fazuludeen took advantage of her exhaustion after a long flight and removed the children from her care, stating that he was going to be returning them to her care in a few days. Since then, the children have been withheld from her, and the Applicant Father has lived in an undisclosed location in Barrie, Ontario. The Applicant Father’s living circumstances are presently unknown. Ms. Abdulrazack lives with her brother and sister in law and their children in an apartment in Scarborough.

[7] The Applicant’s urgent motion was adjourned to April 2, 2020. Ms. Abdulrazack brings a cross-motion for an order setting aside Jain J.’s without notice orders as well as care of the children.

[8] Because of Covid-19, the motion was argued by way of recorded teleconference as the courts are now closed. The Applicant’s original affidavit was before the court as was a responding affidavit and motion brought by the Respondent. The Applicant elected not to file reply materials and did not ask for an adjournment in order to do so.

Result

[9] For the reasons set out below, I am ordering that the Respondent’s motion be granted and the orders of Jain J. be set aside. The children shall be placed in the care of the Respondent subject to access to the Applicant. The order may be reviewed with a view to returning to week about care if the Applicant returns to Scarborough, where, other than stints in India, the children have resided the whole of their lives.

Analysis

[10] There are three issues to be considered:

a. Should the orders of Jain J. made on February 28 and March 5, 2020 be set aside? b. If so, what residential arrangements are in the best interests of the children? c. Should there be a restraining order against the Respondent?

Setting Aside

[11] Orders made without notice, as in the present case, are always subject to review: see Rule 14(14) of the Family Law Rules which reads as follows:

An order made on motion without notice (Form 14D) shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court.

[12] The basis for setting aside or changing an order made without notice lies under Rule 25(19):

(19) The court may, on motion, change an order that,

(a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[13] As pointed out by Mr. Mohideen during argument, it goes without saying that a party seeking relief from the court without notice has a duty of full disclosure of all material facts, including facts which may not necessarily favour that party’s position in the litigation. The reason for this is obvious: in considering an ex parte motion, the court is relying only on one party’s side of the story both as to urgency and/or risk of harm, and as to the relief being requested. For the court to make a reasonable and meritorious decision, all relevant facts must be before the court, especially where we are dealing with safety issues and the best interests of children as in the present case.

[14] As well, if there are material omissions in the evidence that the court relied upon in addressing and making the without notice order, this may also result in the order being set aside; indeed it is incumbent on the court to do so where it may be contrary to the best interests of children or where it deprives another party of fundamental rights: see for example Cadas v. Cadas, [2013] O.J. No. 2054 (S.C.J.) where the omission of material facts regarding the nature and value of property resulted in the setting aside of an equalization award made on a Form 23C uncontested trial.

[15] My review of the Applicant’s affidavit discloses to me a number of misrepresentations and omissions which would have influenced Justice Jain’s decision to make the restraining order and order that the children reside with the Applicant:

Primary Caregiver

[16] Mr. Fazuludeen asserts in paragraph 60 of his affidavit that he had been “the primary provider to the children since they were born.” I find this to be a misrepresentation of the true situation concerning care of the children for the following reasons:

a. Ms. Abdulrazack provided correspondence from R.’s teacher which indicated that the person responsible for the R.’s schooling during the 2017-2018 school year was the Respondent Mother. The Respondent picked R. up before and after school and attended the parent teacher meetings; b. Ms. Abdulrazack also provided correspondence from the children’s doctor indicating that the Respondent Mother attended the vast majority of the medical appointments for the children. He also confirmed that throughout, Mr. Fazuludeen only attended medical appointments involving the children on three to four occasions. Considering the fact that R. is now 11 years of age, that is well under one attendance per year. c. Mr. Fazuludeen was also working one, and then two jobs. It is difficult to see how he could be the primary caregiver of the children when he, himself, asserts that Ms. Abdulrazack was not working. d. Mr. Fazuludeen disclosed in his affidavit one visit by the children to India, from the summer of 2018 to December, 2019 when Ms. Abdulrazack must have been the primary caregiver of the children as Mr. Fazuludeen is clear that he did not go to India at all during that time. As well, he failed to disclose that the children were in India alone with the Respondent Mother for another lengthy period of time, from September, 2015 to March, 2016 when, again, Ms. Abdulrazack would have been the primary caregiver of the children.

Abuse Issues

[17] It is obvious that Jain J. relied strongly upon the Applicant’s allegations of abuse levelled against the Respondent Mother. She made a restraining order as a result. The Respondent denies the abuse. However, apart from her denial of the abuse, difficult to test for credibility, there are indicia that the allegations made by the Applicant were either exaggerated or untrue.

a. Mr. Fazuludeen alleges that the Respondent was sexually abusive with the children, an extremely serious allegation which would normally lead to both a police investigation and Children’s Aid Society involvement. However, he does not specify what exactly the Respondent did to sexually abuse the children. When I asked counsel about this, she pointed out paragraphs 33, 40 and 42 of the Applicant’s affidavit which outline Ms. Abdulrazack’s reaction to her catching the Applicant watching pornography. Although the Respondent might be said to have had an excessive and inappropriate reaction to the Applicant’s viewing of adult content, it was not what could be referred to as “sexual abuse” which implies inappropriate touching or sexual interference involving a child. There is no other evidence of sexual abuse of the children. b. The Applicant alleges that the Respondent was financially abusive within the relationship. At para. 18 of his affidavit he says that, “The Respondent did not contribute to the family expenses.” At para. 17, the Applicant says that Ms. Abdulrazack did not disclose anything to him about the child tax credit and asserted that the “children did not benefit from that money.” Both of those statements were untrue. The Respondent disclosed in her affidavit the bank account into which her child tax credit was deposited: that account statement disclosed that the parties used those funds to pay rent on the family apartment and that the Applicant accessed those funds on several occasions when the Respondent was in India. The child tax credit was used for family purposes and the Respondent did contribute to the family expenses including rent. c. The Applicant says in his affidavit that the Respondent refused to feed the children as a method of discipline and to punish him. He also alleges that the Respondent was physically abusive with the children and hit them on a number of occasions. However, the children’s doctor says that there was never any evidence of abuse, and the children were of normal weights when examined; there was no sign of malnourishment. d. In August of 2018, the Respondent went to India with the children, and stayed there for nearly 17 months. If the Applicant feels that the Respondent was as abusive and neglectful as he makes out, why on earth would he permit her to take the children to India, where he says that the Respondent would have free reign with the children, he could not force the Respondent to return and where he felt that he was powerless to do anything because of abuse and threats by the Respondent? His suggestion that the trip was only for the summer school holidays is not credible based upon the fact that the Respondent went to India in August of that year, near the end of the school break. I do not believe that the trip was intended to be for a brief period of time considering the cost of the trip, and the timing. The Respondent had gone for a previous lengthy trip to India with the children. It is much more probable that the parties agreed to the trip being of a lengthy duration and that the return in December, 2019 was no surprise to the Applicant.

[18] Based upon the above, I am concerned about the Applicant’s allegations of abuse. If he was not forthright with the court about the issues outlined above, how do I know he is being truthful respecting his other allegations? I do not find the Applicant’s evidence of abuse to be credible or reliable under the circumstances.

Venue

[19] The parties agreed that venue was not being argued at this motion, and I will not address that issue.

[20] However, the Applicant’s affidavit does not disclose that his motion for custody of the children would result in a move by the children from their habitual residence of Scarborough to Barrie, where the children had never previously lived. There is nothing in the Applicant’s affidavit to indicate that the children were not always living in Barrie before they went to India during the summer of 2018. The only hint, and it is nothing other than a hint, was when the Applicant says in para. 15 of his affidavit that, in December, 2019, the children “came to live with me in Barrie and the Respondent to stay (sic.) in Scarborough.” Justice Jain would not have been aware when she made her decision that Barrie was a new home for the children. In fact, the children had always lived in Scarborough as shown by the letter from the school attached to the Respondent’s affidavit.

[21] This is apart from the fact that the without notice motion appears to have been placed before the court as a response to proceedings brought by the Respondent in Toronto Family Court. The Respondent commenced those proceedings on February 13, 2020 and attempted to serve the Applicant on February 21, 2020 at his place of work. According to the process server, his associate was told that Mr. Fazuludeen “was not in today, he may be back next week or he may go on vacation next week.” When another attempt was made to serve the Applicant the following week, the process server was told the Applicant was “on vacation that week.” [2] We know that this was not true; in fact, Mr. Fazuludeen signed his application on February 28, 2020 when the matter was placed before Jain J.

[22] Based upon the timing, it appears that the Applicant may have tried to avoid service of the Respondent’s Toronto application, and that he brought on the Barrie ex parte proceedings with a view to getting a leg up over the Toronto application.

[23] The change in the children’s residency from Scarborough to Barrie is a material fact that should have been disclosed to the motions judge as it may very well have affected her decision to grant custody of the children without notice to the Respondent Mother. As well, if Mr. Fazuludeen knew of or suspected that proceedings had been commenced in Toronto, this also should have been disclosed to Justice Jain in the Applicant’s affidavit.

Status Quo

[24] The Applicant does not disclose in his affidavit how the children came into his care in December, 2019. He only says that the children came into his care upon their return from India on December 26, 2019.

[25] The Respondent says that the Applicant took the children for a few days and promised to return them. Although counsel for the Applicant attempted to provide reply evidence as to what the Applicant says really happened from the virtual “counsel table”, that is not permitted. No reply affidavit was filed even though the motion was argued on April 2 and the Respondent’s material was served March 27 which left ample time for reply. There was no request to adjourn to prepare reply material. I have to accept that the Applicant removed the children from the Respondent Mother’s care through a representation that the children would be returned to her within a few days. That did not occur, and the status quo has to be crucial if the Respondent is correct that the parties separated on December 26, 2019. It is even more important if the Applicant is correct that the parties had been separated since 2016, with the care of the children shared between the two of them up until the Respondent went to India in August, 2018, after which the children were in her sole care for about 17 months.

[26] Whenever the date of separation took place, the Applicant did disclose that the children have had no contact with their mother since December, 2019. He does not disclose that he intended that he was withholding contact between the children and their mother. That this appears to have been intentional is extremely concerning considering the children were in the care of their mother up to the date that they were removed from her care. There appears to be no sensitivity on the part of the Applicant to the needs of the children to have contact with both parents; this situation has continued to the date of the argument of the motion, three months after the children’s arrival from India.

[27] Moreover, it is apparent today that the Respondent could not even find the Applicant or the children. The fact that Mr. Fazuludeen did not know where the Applicant was is apparent from the address for service for Mr. Fazuludeen as set out in her Toronto application; she notes that to be his place of work. This goes to the issue of risk of harm to Mr. Fazuludeen, necessary to the granting of a restraining order. If Ms. Abdulrazack could not locate the Applicant or the children, how could there be a risk of harm, and how could she be asked to stay away from a residential address she knew nothing about?

[28] As noted above, I also have concerns about the Applicant’s version regarding the trip to India when he says in his affidavit that the Respondent wanted to go to India only for the summer holiday and then refused to return the children. In fact, the Applicant does not disclose in his affidavit that Ms. Abdulrazack went to India only in August, 2018, towards the end of the children’s summer school holidays. I would have thought that, if she wanted to take the children to India for the summer break, she would have gone in late June or early July, considering the cost of the trip.

[29] The Applicant failed to disclose to Jain J. any coherent portrait of the status quo at the date that the children came into his care in December, 2019. He also did not properly disclose how he came to care for the children, which according to the Respondent was through an undertaking to return the children which was never honoured. He also does not disclose his deliberate withholding of the children from the Applicant, again important to determining the children’s best interests.

Conclusion

[30] I therefore find that the Applicant’s affidavit is replete with material misrepresentations of essential facts and has serious omissions concerning relevant evidence which should have been placed before the motions judge. I therefore find that the orders of Jain J. dated February 28, 2020 and March 5, 2020 should be set aside pursuant to Rule 25(19)(d) of the Family Law Rules.

Interim Care of the Children

[31] Both parties’ custody claims are under the provisions of the Children’s Law Reform Act and neither party has requested a divorce. The residential arrangements for the children are therefore governed by the factors concerning best interests of the children as set out in s. 24(2) of the CLRA.

[32] As well, both parents allege the other to be abusive, also something to be considered under s. 24(4) of the CLRA.

[33] The major issue in this case is the status quo concerning the children at the time that the Respondent returned from India in December, 2019, something addressed by s. 24(2)(a), (c), (d), (e) and (f) of the CLRA.

[34] I firstly note that the parties do not agree on the date of separation. The Applicant says that the parties separated in June of 2016, when he moved out of the bedroom and began to live separate and apart under the same roof. Things shifted when the Respondent went with the children to India in August, 2018, about two years after the Applicant says that the parties separated.

[35] The Respondent says that the parties separated in December, 2019 when the Applicant took the children away from her at the airport, undertaking to return the children within a few days. Instead, he went into hiding, and moved to Barrie to an unknown location. The Applicant still refuses to advise where he is living right now.

[36] This means that there was no status quo at the time of separation, other than the fact that the Respondent had been clearly the primary caregiver of the children for the 17 months prior to the date that the Respondent says that the parties separated.

[37] Either way, the children had been in the exclusive care of the Respondent up to the date that the children came into the Applicant’s care.

[38] There was also independent evidence provided by the Respondent indicating that the Applicant had been the primary caregiver of the children up to when she went with the children to India.

[39] The other status quo issue for me is the fact that these children have always lived in Scarborough and never in Barrie. There was no indication by the Applicant as to why the children moving to Barrie was in their best interests. It obviously entailed a change in schools and removed the children from their prior neighbourhood, friends and relatives. There is no reason given anywhere in the material as to why the Applicant decided to move to Barrie, other than the Respondent’s suspicion, presently unfounded, that the Applicant is now living with another partner.

[40] On the other hand, the Respondent has put forward a plan for the children and for housing. She has applied for a housing subsidy and is intent upon obtaining an apartment in the building in which she resides with her sister and family at present. There are no secrets as to where she is living, and she intends to place the children in the school in which they have always attended.

[41] There is no coherent plan for the children on the part of the Applicant. The Respondent has provided a plan for the care of the children, something which should be addressed under s. 24(2)(e) of the CLRA.

[42] Other than what I have found to be unfounded allegations of abuse against the Respondent, the Applicant has also not explained why the Respondent has had no access to the children. The Respondent does not have a car or transportation, and had no way of finding the Applicant and the children. She was attempting to find out where the children are attending school, an understandable concern when they had lived with her up to December 26, 2019. The Applicant has made no discernable attempt to ensure that the children share time with the Respondent which is concerning in and of itself; he apparently does not perceive that it is important to maintain a relationship between the children and their mother.

[43] Finally, I would normally determine that the parties share custody between one another, in order to avoid giving one party a “leg up” through the status quo in this litigation. The Applicant, by moving to Barrie, has made that impossible.

[44] In my view, the evidence is overwhelming that, whatever the date of separation, the children were in the care of the Respondent up until December 26, 2019. At that time, the Applicant either arbitrarily changed the status quo and it is uncontradicted that he did this through surreptitious means. If the Respondent’s version of events is believed, the Applicant used self-help means to establish a post separation status quo.

[45] As well, it is uncontradicted that, prior to the latest sojourn in India, the children had always lived in Scarborough and attended a Scarborough public school. Their doctor is there as are the mother’s family, who have been involved with this family throughout. I therefore find it to be in the children’s best interests that they reside with the Respondent in Scarborough.

[46] The Respondent has suggested a plan for the care of the children, and is on a list to obtain housing for herself and the children.

[47] I addressed Covid-19 issues with the parties, who both appeared to be cognizant of the restrictions that the pandemic has placed on the parties including the need for self-isolating and social distancing as well as personal hygiene.

[48] I do not find that the abuse issues alleged by either party constitute a factor for custody in this matter. These issues are unfounded and there is no independent evidence from either the police or the local Children’s Aid Society to corroborate either party’s claims of abuse. There is no evidence of police involvement with this family and neither party has disclosed criminal proceedings in their respective Form 35.1 affidavits.

[49] I therefore order that the Respondent shall have temporary primary residence and care and control of the children. The Applicant shall have access to the children every second weekend from Friday evening at 5:00 p.m. to Sunday evening at 5:00 p.m. to be extended to the Monday of a long weekend when access falls on the long weekend. Mother’s Day shall be spent with the Respondent and Father’s Day with the Applicant irrespective of the access schedule.

[50] Mr. Fazuludeen says he is out of work at present. However, because he normally works in the Toronto area, I am ordering that he have Wednesday evening access from 4:00 p.m. to 7:00 p.m. Because of the Covid-19 restrictions on unnecessary travel, I am ordering that the Wednesday evening access begin once the Applicant returns to work.

[51] Because the Applicant moved to Barrie and has a vehicle, he shall provide transportation of the children to and from access.

[52] There may be a review of the order if the Applicant returns to Scarborough and obtains housing in Scarborough, with a view to the parties sharing custody of the children if practicable.

Restraining Order

[53] The Applicant requests a restraining order. He has to date not disclosed where he lives or an address for service other than through his lawyer. The Respondent does not know where he lives; neither does the court.

[54] I have already made findings as to the Applicant’s allegations of abuse. At best, the Applicant exaggerated his allegations of abuse; at worst, he misrepresented them. They are not credible under the circumstances.

[55] I do not find the Applicant to have “reasonable grounds to fear for his… safety” from the Respondent as required by s. 46 of the Family Law Act.

[56] The Applicant’s claim for a restraining order is dismissed.

Order

[57] There shall therefore be a temporary order as follows:

a. The orders of Jain J. dated February 28 and March 5, 2020 are hereby set aside. b. The children R. and M. shall be forthwith placed in the temporary care of the Respondent Mother and the children shall reside in the care of the Respondent Mother until further order. c. This order may be reviewed by the court if the Applicant moves to Scarborough with a view to determining whether shared care of the children is in their best interests. d. The Applicant shall have access to the children as follows:

1. Every second weekend from Friday evening at 5:00 p.m. to Sunday evening at 5:00 p.m. to be extended to the Monday of a long weekend when access falls on the long weekend. Access to commence the weekend of April 17, 2020.
2. Upon the Applicant returning to work, Wednesday evenings from 4:00 p.m. to 7:00 p.m.
3. Mother’s Day shall be spent with the Respondent and Father’s Day with the Applicant irrespective of the access schedule.
4. Such further and other access as the parties agree.
5. The Applicant to pick up and deliver the children for access visits. e. The Applicant’s claim for a restraining order is dismissed. f. The issues of jurisdiction and child support shall be adjourned to a case conference on a date to be set through the Trial Coordinator.

[58] The Respondent is the successful party in this motion and is entitled to her costs. The parties shall make submissions as to the quantum of costs by way of written submissions not to exceed three pages in length not including offers to settle and bills of costs. The Respondent shall make her submissions first, and then the Applicant, on a ten-day turnaround to the judicial assistant. Those submissions may be made electronically as the filing office has limited hours and staff as a result of the Covid-19 pandemic.

[59] Because of the Covid-19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order or judgement. Once the Court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and email to the parties by the judicial assistant.

McDermot J. Date: April 6, 2020

Footnotes:

[2] Affidavit of Fabio Gabrielle sworn March 27, 2020, para. 3 and 4.