Court File and Parties

Court File No.: FS-15-161-0001 Date: 2020 05 08 Superior Court of Justice - Ontario

Re: Muhammad Tariq, Applicant And: Huria Kiran, Respondent

Before: J.M. Woollcombe J.

Counsel: Shahida Faisal, Counsel for the Applicant Huria Kiran, Self-represented

Heard: May 5, 2020, by teleconference

Endorsement

Introduction

[1] The applicant, Muhammad Tariq, seeks an order directing that the respondent, Huria Kiran, comply with the terms of a final order made by Seppi J. on May 12, 2016, as it relates to the custody and access of the parties’ children, Ishmal Tariq (DOB November 25, 2007) and Zeemal Tariq (DOB September 5, 2013).

[2] With the temporary closure of the Superior Court of Justice, and the suspension of in-court hearings of motions, the applicant requested that his motion be heard on an urgent basis as contemplated in the Superior Court of Justice Practice Direction dated March 15, 2020. Given that his materials appeared to set out a situation or urgency, I made an order that the parties were to file materials respecting this issue and indicated that I would then determine whether to convene an oral hearing by way of a conference call.

[3] Each party filed materials. That material will all be filed in the physical record at the courthouse once court operations are resumed. After reviewing the affidavit evidence, I determined that a conference call should be held so that the parties could make oral submissions and respond to questions. A conference call was held and recorded. Present on the call were the applicant, his counsel and the respondent, who acted on her own behalf. I heard fulsome oral submissions from each side and indicated that I was reserving my decision and would release a written decision to the parties by email. This is that decision.

Relevant Background

[4] By way of background, the parties were married in January 2007 in Pakistan. By early 2008, they were living in Canada. They separated in 2013 and divorced in August 2014.

[5] On May 12, 2016, the parties reached a consent final order respecting all outstanding issues between them. Both parties were represented by counsel. On consent, Seppi J. ordered that they have joint custody of their two children. A detailed schedule for parenting time was agreed upon. In the normal course, the children reside with their father from Sunday at 7:00 p.m. until Friday at 8:00 p.m. and with their mother from Friday at 8:00 p.m. until Sunday at 7:00 p.m. The agreement provides for additional parenting time for the mother on long weekends and for a mid-week dinner visit. Reasonable telephone and email access is also provided to the parent with whom the children are not residing. School and religious holidays are divided evenly between the parents.

[6] On November 25, 2019, the mother brought a motion to change the final order and sought sole custody of the children. She is now self-represented. No case conference has yet been held in respect of that motion.

[7] On February 12, 2020, the respondent sent an email to counsel for the applicant setting out possible dates for a case conference in late February and early March 2020. Counsel for the applicant advised that she was not available March as she would be out of Canada, but that she could be available for the February 27, 2020 date.

[8] The respondent did not book a case conference. By way of Notice of Motion dated February 18, 2020, the respondent mother brought a motion returnable February 28, 2020. Counsel for the applicant asked that the motion be adjourned as there was no urgency and it was premature when a case conference had not been held.

[9] While I have not been able to review the Endorsement Book, I understand that the parties were advised that the motion would not be heard because there was no urgency. After this, I am told that the parties continued to exchange the children in accordance with the usual schedule.

[10] On March 19, 2020, which was during the children’s March Break, Zeemal went into the respondent’s home to pick up her sister for Islamic instruction, which was to be given by the applicant’s brother. The respondent refused to let the children leave the home. Since that time, they have remained in the respondent’s home.

[11] I have been provided with email messages sent by the respondent to the applicant over the period between March 19 and March 22, 2020. In these messages, the respondent made clear that from her perspective, because of the pandemic and her fears for her children’s safety, the children would remain with her. She went as far as to say, on March 22, 2020, that during the pandemic, she would never permit the children to return to the applicant as she did not think they would be safe with him.

[12] On April 7, 2020, after I understand that the applicant had sought the return of the children to him, counsel for the applicant wrote to the respondent and asked that the children be returned to the applicant by April 8, 2020, failing which an urgent motion would be brought.

[13] The respondent replied to counsel for the applicant making clear that it was her view that the children should, for reasons of their health and safety during the pandemic, remain with her. She expressed the view that she did not trust the applicant and that his wife has no concern about the well-being of the children.

[14] Counsel for the applicant then requested that an urgent motion be heard respecting access of the children.

Positions of the Parties

[15] It is the applicant’s position that the final order from 2016, which provides for joint custody and for him to have access with the children from Sundays at 7:00 p.m. until Fridays at 8:00 p.m. should be maintained. He submits that the respondent mother has acted in violation of that order and that there is no basis for concern about the children’s health or safety in his home.

[16] The respondent’s position is that the children do not wish to live with their father and that she does not trust the applicant or his wife to ensure that the children’s health and safety are protected during the pandemic. She also says that the older child, Ishmal, has mental health challenges and that she is better equipped to support her daughter than the applicant. The respondent submits that she is conducting herself as a responsible and loving mother and out of concern for her children. She submits that there is no urgency and that the applicant’s motion should be dismissed on that basis.

Analysis

[17] There are two issues to be decided. First, while a preliminary determination was made that there was a situation of urgency, on the basis of the evidence adduced on the motion, a determination must be made as to whether this case meets the test for urgency. Second, if the case is urgent, the issue is what custody and access order is in the best interests of the children.

i) Is the matter urgent?

[18] In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. set out principles to assist in determining urgency with respect to parenting issues during the time of this unprecedented COVID-19 pandemic. Of note, he suggested that in most cases, there is a presumption that an existing parenting schedule continue, subject to modifications that are necessary to ensure that that COVID-19 precautions are adhered to.

[19] It is obvious that courts must encourage parents to act responsibly in ensuring the safety of their children during the pandemic, But, at the same time, courts discourage parents from unilaterally seeking “self-help” remedies. Generally, the current pandemic should not result in a widespread suspension by one parent of access between a child and the other parent. When such a situation arises, it has been repeatedly found to create an issue of urgency. See, for example: Elaesser v. Rammeloo, 2020 ONSC 2025; Skuce v. Skuce, 2020 ONSC 1881; Kostyrko v. Kostyrko, 2020 ONSC 2190; C.Y. v. F.R., 2020 ONSC 1875.

[20] It is not disputed that there is an existing custody and access order. Nor is it disputed that the respondent has unilaterally decided to withhold from the applicant his court-ordered access time with the children. In my view, these facts create a circumstance of urgency and this motion must be determined on its merits.

ii) What is in the best interests of the children?

[21] Resolution of the motion is dependent upon the best interests of the children.

[22] The respondent has made a number of allegations about the applicant’s willingness and ability to protect the health of the children during the pandemic. Some of these were in her affidavit. Others she made during the course of her submissions. She says that in early March, the applicant permitted one of the children to visit with and stay over at an uncle’s home. She suggests that the applicant rejected her suggestions to take the pandemic seriously and that he refused her suggestion to visit the children with proper protection at her home. She says that she cannot trust either the applicant, or his wife, whom she says her children do not like, to ensure the safety of the children and that they are safer with her.

[23] The applicant says in his affidavit that he is fully aware of the need to maintain social distancing and that he will not permit the children to attend at sleepovers or visit with relatives until it is safe to do so. During the oral hearing, he advised me that nether he, nor any of his family members have experienced any COVID-19 symptoms. He has been practicing social distancing and says that no one other than he and his wife have been in their home during the pandemic.

[24] In my view, the evidence does not establish any basis to have ongoing concerns about the applicant’s ability or willingness to ensure the safety of the children during the pandemic were they to return to living with him, in accordance with the existing access schedule. Indeed, the concerns raised by the respondent relate to decisions made by the applicant prior to March 19, 2020. It is noteworthy that this was a time period during with the rules and requirements for social distancing were quickly evolving and were not entirely clear. I conclude, on the basis of the evidence before me, that despite whatever happened in early March, the applicant can and will comply with the social distancing measures that are now expected of all of us during this pandemic. I accept that he understands the importance of doing so and of safeguarding his children’s health. I reject the respondent’s position that only she can properly care for the health and safety of the children as it is not supported by the evidence.

[25] Nor do I accept the respondent’s position that only she can ensure that the children’s ongoing education needs are met. While I accept that she has made arrangements for their education since March Break, there is no reason to believe that the applicant could not do so as well. Indeed, he advised me during the oral hearing that his cousin, a university student, is available to assist the children with their studies over the telephone, should that be needed. This offer underscored for me that he understands both the importance of the girls’ education and of social distancing.

[26] The respondent also alleges that the children do not want to be with their father and that returning to him will have a negative impact on Ishmal’s mental health. The affidavit evidence on this issue is inconsistent between the parents. I am not prepared to conclude, from the evidence before me, that it is in Ishmal’s best interests to remain exclusively with her mother during the pandemic. I reach this conclusion for the following reasons:

a. The applicant says in his affidavit that he remains in contact with both children and that he believes that they want to return to their home with him. While the exhibits to his affidavit are not entirely clear, Ishmal’s texts do suggest that she is concerned that if she leaves the respondent’s home, her mother has said she will not be allowed back. I am concerned about the possibility of the respondent manipulating the children’s views as to where they should be. I have no evidence that the children have any valid reason not to want to be at the applicant’s home;

b. While there are allegations that the applicant’s wife does not love and will not support the children should they be at the applicant’s home, these are bald allegations made by the respondent with no evidentiary support;

c. The respondent suggests that Ishmal is suffering from mental health concerns, that the applicant has no interest in his daughter’s well-being and that Ishmal needs to continue counselling, which was taking place through her school before the pandemic. While it may well be that Ishmal needs counselling, in these times of the social isolation, any such counselling would be by video or telephone meeting. There is no reason why counselling, if it is needed and available, must take place from the respondent’s home. I have no basis upon which to conclude that the applicant cannot support the emotional well-being of his daughter in his home. Indeed, he is expected to do so.

Conclusion

[27] There has been an access arrangement in place for almost four years. The respondent brought a motion to change that arrangement and for her to have sole custody. She was denied a hearing of her request for the court to hear an urgent motion prior to a case conference in February. Shortly after, the COVID-19 pandemic began. In my view, the respondent has, since March 19, 2020, used the pandemic as an opportunity to unilaterally obtain a “self-help” remedy. This is not acceptable, and must stop.

[28] I find it is in the children’s best interests to return to the status quo and the access arrangement set out in Seppi J.’s order. In short, as set out above, there is no health or safety reason for them to remain exclusively at their mother’s home as she seeks. Accordingly, I order:

a. The children are to be returned to the applicant on Sunday, May 10, 2020 at 7:00 p.m.;

b. The respondent is to comply with the terms of the order of Seppi J. of May 12, 2016 as it relates to the custody and access of the children going forward from May 10, 2020;

c. The parties are required to file hard copies of their materials with the Trial Office within ten days of the Courts resuming regular court operations.

[29] If the parties are unable to resolve the issue of the costs of this motion, the applicant is to provide his costs submissions of not more than two single-spaced pages, exclusive of bills of costs, case law and offers to settle, within two weeks of receiving these reasons. These submissions may be served on the respondent by email and may be emailed to my judicial assistant.

[30] The respondent may reply in the same manner, with submissions of the same length, also served and filed by email. Her response is to be filed within two weeks of receiving the applicant’s costs submissions.

[31] There will be no reply submissions. The costs submissions are to be filed in hard copy within ten days of the court resuming regular operations.

Woollcombe J.

Date: May 8, 2020