COURT FILE NO.: FC-18-2106
DATE: 2020/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Firas Shoumali
Applicant
– and –
Michela Telatin
Respondent
Mary Cybulski and Katherine Cooligan, for the Applicant
Lisa Sharp, for the Respondent
HEARD: May 23, 24, 27, 28, 29, 30 and 31, 2019
REASONS FOR DECISION
D. Summers J.
Introduction
[1] This trial was primarily about custody of the parties’ five-year old daughter, Angelica, and whether it is in her best interest to live in Ottawa, Canada, with the applicant father, or in Belgrade, Serbia, with the respondent mother. The circumstances in this case are different than most. This is not a situation where a parent seeks to move from one location to another with the child. Rather, it is one where the family had been living in Belgrade for three months when the separation occurred in September 2018. The father, Mr. Shoumali, returned to Ottawa a month later and seeks an order that the child return to live with him here. It is where the family resided for almost two years before moving to Belgrade, in June 2018, for the mother’s new job. He contends that Ottawa is their home and that the mother, Ms. Telatin, tricked him into moving to Serbia with the intention of ending the relationship there. He says but for the deception, he would not have gone or consented to Angelica going.
[2] Ms. Telatin denies that Ottawa was their permanent home and denies trickery. She describes a relationship that had been troubled for some time – particularly in the months leading up to their move – troubles that Mr. Shoumali was fully aware of including the possibility of separation in Serbia. She says it is in Angelica’s best interest to remain in Belgrade with her. It is where they moved as a family, where they lived for three months before separating, and where she has remained with Angelica since separation. Ms. Telatin says Angelica is settled and thriving in Belgrade. It is where Ms. Telatin is employed and can best meet her needs.
Nature of the Proceeding
[3] This is a custody application of first instance under the Children’s Law Reform Act[^1]. There is no existing custody order to vary and thus no requirement to prove a material change in circumstance. Therefore, the first issue to be determined is which parent should have custody of Angelica. Once I have decided that issue, I will address the relocation question and determine afresh, with whom and where, Angelica should live. The test in both instances is the best interest of the child.
[4] In his pleadings, Mr. Shoumali sought sole custody, but he pursued joint custody at trial with Angelica to have her primary residence with him and access to Ms. Telatin if she remains in Belgrade. If she returns to Ottawa as she says she will if Angelica is here, Mr. Shoumali seeks equal time sharing. His application also included claims for child support and spousal support under the Family Law Act[^2]. He advised at trial that his claim for spousal support is dependent on Ms. Telatin’s place of residence. If she returns to Canada, where her income will be lower, he does not ask for support.
[5] Ms. Telatin seeks sole custody, child support, and a restraining order against Mr. Shoumali. She advised at trial that the restraining order is sought only if the court orders that Angelica return to Ottawa in which case she will also return.
[6] Both parties seek to impute income to the other.
[7] When the trial concluded, the parties asked that I make an interim order for summer access. I found that the access most consistent with the child’s best interests would be for her to travel to Ottawa with Ms. Telatin, by July 31, 2019. If Ms. Telatin’s work and vacation schedule allowed her to remain in Ottawa until August 30, 2019, the child was to spend equal time with each parent in their respective homes. In these circumstances, I left the parties to work out the details of the schedule to take into consideration the child’s best interests and Mr. Shoumali’s employment obligations. In the alternative, I ordered that Mr. Shoumali have two ten-day access visits between July 20 and August 31, 2019. A third visit was ordered to take place between October 19 and 27, 2019. Ms. Telatin was to pay all flight costs. I subsequently made an order for Christmas access.
The Issues
[8] I must decide the following issues:
What custody and access order is in Angelica’s best interests?
Is it in Angelica’s best interest to live in Ottawa, Canada where her father resides or in Belgrade, Serbia where her mother resides?
Should income be imputed to each party and if so, in what amount?
What is the amount of child support to be paid and when should it start?
Is Mr. Shoumali entitled to spousal support and if so, in what amount, when should it start, and how long should it continue?
Should a restraining order be made against Mr. Shoumali?
Background
[9] Mr. Shoumali was born in Jordan. He moved to Canada in 1994 when he was 16 or 17 years of age and lived with his maternal grandparents in Kitchener, Ontario. There, he finished high school in 1996 and worked at various jobs until 1999 when he returned to Jordan. Mr. Shoumali is both a Jordanian and Canadian citizen. He speaks Arabic and English.
[10] For many years, Mr. Shoumali worked with international humanitarian aid organizations as an air operations manager. Most of his contracts were with the International Committee of the Red Cross (ICRC) or the United Nations (U.N.). Mr. Shoumali is well-educated. Over the years, he obtained many technical licences and certifications in aviation related fields. In 2013, he moved to London, England to study. In July 2014, he completed a science degree in aviation management. In 2017, while living in Ottawa, he studied online for his Masters degree in Business Management, Logistics and Supply Chain. When the parties separated in September 2018, he had completed all but his dissertation.
[11] Ms. Telatin was born and raised in Italy. She is an Italian citizen and became a permanent resident of Canada in 2016. Ms. Telatin is highly-educated. She holds two degrees from universities in England: a Masters degree in Development and Administrative Planning; and a PhD in International Relations. She also holds a PhD in Modern Languages and Literature from an Italian university. She speaks and understands multiple languages.
[12] The parties met in Africa in 2010 when both were working with the International Committee of the Red Cross (ICRC). Mr. Shoumali was an air operations manager in Sudan. Ms. Telatin was the head of the delegation in South Sudan. They began dating the following year and continued to pursue their respective careers in international aid. Each went where the next contract took them. They vacationed and spent time together between contracts. They were an international couple in many respects.
[13] In the fall of 2013, Ms. Telatin was working with the ICRC in Tbilisi, Georgia, when she learned of her pregnancy. In December 2013, she travelled to London, England for an appointment with her physician and remained there on medical leave. She moved into Mr. Shoumali’s student flat and they began to cohabit as a couple. Their cohabitation spanned five years, four cities, three countries and two continents before they separated in September 2018. They did not marry.
[14] Their only child, Angelica, was born in London, England, on June 29, 2014. She is a citizen of both Canada and Italy.
[15] In September 2015, the parties moved to Canada, first to Richmond Hill and then to Ottawa, in August 2016. In June 2018, they moved to Belgrade, Serbia. They separated three months later, on September 23, 2018.
[16] Mr. Shoumali returned to Ottawa on October 21, 2018. Two days later, Ms. Telatin travelled to Ottawa with Angelica to attend various health care appointments that had been scheduled before they moved. Their travel took place during the child’s fall school break. Mr. Shoumali saw Angelica frequently during this time and accompanied Ms. Telatin to all her appointments.
[17] On October 29, 2018, Mr. Shoumali commenced this proceeding and served an urgent motion seeking an order preventing Angelica from returning to Serbia.
[18] Justice Shelston heard the motion. His order of November 14, 2018 awarded Ms. Telatin temporary custody and permission to return to Serbia with Angelica. Mr. Shoumali was awarded access in Canada or any other location agreed to by the parties from December 22, 2018 to January 6, 2019 and again, over Easter from April 19 to April 30, 2019, as well as daily Skype access for a maximum of 30 minutes. Shelston J. further ordered shared custody on an equal basis if Mr. Shoumali relocated to Serbia or Ms. Telatin moved to Ottawa. He included a provision for vacation travel by both parties with the child. Ms. Telatin’s claim for child support was adjourned and the case was ordered onto the May 2019 trial list.
[19] A week before trial, Mr. Shoumali started his first job in Ottawa working as a supervisor refueling planes at the international airport. His employer is Menzies Aviation.
[20] Ms. Telatin remains in Belgrade with Angelica. In May 2019, her employer extended her contract as the Head of the United Nations Office for Project Services (UNOPS) in Serbia to December 31, 2020. In addition to this position, she is also the Chairperson of the United Nations Communication Group.
[21] When the parties separated, Mr. Shoumali was 40 years old and healthy. Ms. Telatin was 46 years old and healthy.
Custody and Relocation – The Legal Framework
[22] In Bjornson v. Creighton[^3], the Ontario Court of Appeal held that where it is an application of first instance and a party wishes to relocate with a child and custody has not yet been determined, that issue must be decided first. The custody determination must then be factored into the analysis required to determine the relocation issue in accordance with the principles established by the Supreme Court of Canada in Gordon v. Goertz[^4]. Only when the issues are decided in that order, can the court give the custodial parent’s views on the relocation issue the great respect and serious consideration that they are entitled to under Gordon[^5].
[23] In Terris v. Terris[^6], Justice Mackinnon looked at the rulings in both in Bjornson[^7] and Gordon and concluded that neither case required the court to determine custody in the first instance without considering each parent’s proposed place of residence as an aspect of their respective plans of care and the best interests analysis. She observed that in Bjornson[^8], the court’s analysis indicated that it had considered what each of the proposed locations offered the children as part of the initial best interests’ analysis and custody determination before it moved on to consider the relocation issue and the views of the custodial parent. Mackinnon J. said,
It would be artificial to interpret Bjornson, supra as requiring the court to determine custody without reference to all aspects of each parent’s plan, including proposed place of residence, and only to consider the proposed place of residence as a discrete issue, at which time “great respect and the most serious consideration” is to be given to the views of the newly determined custodial parent.[^9]
[24] Similarly, with respect to Gordon[^10], Mackinnon J. concluded that if the proposed move is an aspect of the child’s best interests’ determination on a variation application, so too should it be where relocation is sought in a custody application of first instance. In this regard, she referred to the comments in Gordon that make it clear where the proposed relocation is the material change in circumstance in the variation application, that factor – the proposed relocation – must also be considered among the many circumstances touching the child’s best interests when deciding whether to allow the move, or not.
[25] The approach taken in Terris[^11] was adopted by the trial judge in Brand v. Reeves[^12] and the proposed place of relocation was considered as part of the initial best interests’ analysis to determine custody. The trial decision in Brand[^13] was appealed on other grounds and upheld by the Ontario Court of Appeal on all but the issue of access.
[26] I too adopt the Terris[^14] approach as I inquire into Angelica’s best interests and consider all the relevant circumstances to make the initial custody determination between her two parents. Each party’s proposed place of residence is an element to be considered in the first instance as part of each parent’s plan of care and considered again in relation to the relocation question and where Angelica will live.
[27] The best interests test and the factors for the court’s consideration is set out in s. 24 of the Children’s Law Reform Act[^15]. It states,
Merits of application for custody or access
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
[28] Once custody in the first instance is determined, I must revisit the child’s best interests in the context of the relocation issue and the guiding principles found in Gordon v. Goertz.[^16] They are:
The judge must embark on a fresh inquiry into what is in the best interest 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.
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 and the most serious consideration.
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 interest 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 reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
(f) the disruption to the child of a change in custody; and
(g) the disruption to the child consequent on removal from family, schools and the community he or she has come to know.
Findings of Fact
[29] This seven-day trial disclosed very little common ground between the parties except their mutual love of their daughter. Where their evidence conflicts, I prefer that of Ms. Telatin, unless otherwise stated. Overall, I found her testimony more credible. I experienced aspects of Mr. Shoumali’s evidence as less than genuine and somewhat engineered to fit a particular narrative. I also noted Ms. Telatin’s use of “they” in relation to certain parenting and life choices. In contrast, Mr. Shoumali’s tendency was to use “I” in a way that often over-stated his contribution.
Angelica’s Primary Caregiver
[30] Both parties seek physical custody of Angelica. Each of them claims to have been her primary caregiver. I have considered the parties’ caregiving history over five distinct periods. The first four correspond to the family’s place of residence. The fifth represents the time from separation to trial.
(i) London, England – June 29, 2014 to August 2015
[31] During this time, neither party worked outside of the home. Both were available to care for Angelica.
[32] According to Mr. Shoumali, they jointly parented Angelica when they lived in England but asserts that there were times when he took more responsibility for her care. He said they prepared for Angelica’s arrival together. They shopped for her needs and took parenting classes. He was present at her birth. He said that initially, he was the one to bath Angelica as he had helped to care for his nephews and thus had more experience with babies than Ms. Telatin. He said he was the one to rise in the night to feed and comfort Angelica, while Ms. Telatin recovered from her emergency caesarean section. Mr. Shoumali says he was involved in all aspects of Angelica’s care.
[33] Ms. Telatin disputes the extent to which Mr. Shoumali cared for Angelica as a baby. Although following her surgery, she was initially unable to lift much weight, she says that she otherwise cared for Angelica and breastfed while she was able. She also said that she was frequently on her own with Angelica that summer. Mr. Shoumali’s uncle was visiting and they spent much time sightseeing together in both London and Paris. Mr. Shoumali did not challenge the evidence around his uncle’s visit.
[34] There was no independent evidence to indicate anything other than, over all, the parties shared parenting responsibilities while in England.
(ii) Richmond Hill, Ontario – September 2015 to August 2016
[35] In September 2015, the parties moved to Canada. During the first month, they lived with Mr. Shoumali’s maternal aunt in Richmond Hill, Ontario. She gave evidence at trial and spoke very highly of her nephew. She described him as gentle, kind-hearted and said that he had helped with her children when they were young. She said they were close. Her comments about Ms. Telatin were also positive. She described her as a good person who is a little shy and less outgoing than her nephew. Mr. Shoumali’s aunt observed that both parties were good and loving parents. Both were involved with playtime, feeding, changing diapers, and other aspects of Angelica’s care.
[36] Mr. Shoumali worked part-time when the family lived in Richmond Hill. When asked who cared for Angelica, he said she was either with Ms. Telatin or in daycare. The evidence indicates that Angelica started daycare in May 2016 and attended for only a few months. I find that Ms. Telatin was her primary caregiver while the parties lived in Richmond Hill.
(iii) Ottawa – September 2016 to June 15, 2018
[37] In September 2016, Ms. Telatin started a job with World Vision in Ottawa. She had regular office hours and the ability to work from home on Fridays. On a couple of occasions, she had to travel for work, but it was not a regular feature of the job.
[38] Mr. Shoumali said he was Angelica’s primary caregiver in Ottawa. He did not work outside of the home except for one three-month contract with ICRC in Tunisia between November 2017 and February 2018. In May 2017, he also started an online program for his Masters degree.
[39] Ms. Telatin does not agree that Mr. Shoumali was Angelica’s primary caregiver in Ottawa. Initially, she said she was the primary caregiver but, on cross-examination, agreed they were equal.
[40] From October 2016 until June 2017, Angelica attended daycare in Ottawa two mornings a week. In September 2017, she moved to a daycare that was closer to home. According to Mr. Shoumali, she attended daycare in the mornings only. According to Ms. Telatin, Angelica was there from 8:30 a.m. until approximately 3:30 p.m. Neither party produced the daycare records. Drop-off in the morning appears to have been a shared activity. When Mr. Shoumali left for Tunisia in November 2017, Ms. Telatin was on her own with Angelica.
[41] Between the parties’ arrival in Ottawa at the end of August 2016 and the end of August 2017, I find that Mr. Shoumali was the parent primarily responsible for Angelica’s hands-on care during the week. In September, this lessened somewhat as Angelica went to daycare every day until sometime between early to mid-afternoon. Mr. Shoumali was then in Tunisia from November 2017 until early February 2018 and Angelica was in Ms. Telatin’s sole care. After Ms. Shoumali returned, there is no evidence to indicate anything other than Angelica remained in full-time daycare until the family left for Belgrade in mid-June 2018.
[42] I find that Ms. Telatin was the parent who anticipated and took the lead to investigate, arrange, schedule and prepare for Angelica’s needs in Ottawa. There were multiple emails from her to daycare providers, health care professionals, language schools, activity groups, and learning centers such as Kumon. She was clearly the primary contact person for Angelica’s third-party service providers. Mr. Shoumali did not dispute that Ms. Telatin researched and investigated but said he was the one to visit and vet the various options and report back to her. They would then make the decision together. On the other hand, Ms. Telatin testified that, for the most part, they went to see the facilities together. I accept Ms. Telatin’s evidence and find it unlikely that her investigation into the various services needed for Angelica’s care ended with the internet. I am satisfied that she not only took the lead but also remained fully engaged in arranging all aspects of Angelica’s activities and care.
[43] I find that both parties attended Angelica’s health care appointments while in Ottawa. Each said that Ms. Telatin’s employer, World Vision, was flexible and readily accommodated time off for appointments and the like.
[44] I also find that Ms. Telatin was the party who took primary responsibility for Angelica’s meals throughout the relationship. Mr. Shoumali said he helped with meal preparation but acknowledged that Ms. Telatin was the cook in the family and would prepare ahead to have meals in the freezer. There was one email exchange between the parties that I find especially telling in this regard. Although it took place in Belgrade, I am satisfied that the responsibility for meals was unlikely to have been different there than it was elsewhere. Mr. Shoumali sent Ms. Telatin an email was sent to inquire about Angelica’s lunch. Ms. Telatin replied in considerable detail setting out what she had prepared, what to take out for her evening meal, what was there for Mr. Shoumali’s lunch, and what they would have for their evening meal.
[45] I am not persuaded that Mr. Shoumali was Angelica’s primary caregiver in Ottawa. The evidence does not support that conclusion. Considering the increased time that Angelica was in daycare, each party’s employment circumstances, and the manner that parenting responsibilities were shared in order to meet the full range of Angelica’s needs, I find on the whole, that parenting was shared equally.
(iv) Belgrade, Serbia – June 15, 2018 to September 23, 2018
[46] At the end of March 2018, Ms. Telatin received the U.N.’s formal offer of employment for her current position in Serbia. In April 2018, she resigned from World Vision and in mid-May 2018, the family travelled to Belgrade to arrange for housing and investigate schools for Angelica. As before, it was Ms. Telatin who researched and reached out to the potential schools and services for Angelica in Belgrade. I find for the most part, the parents visited these sites together. The family moved on June 15, 2018.
[47] During the three months that the family lived together in Belgrade, Mr. Shoumali did not work outside of the home. Angelica attended daycare in July and August across the street from their flat and started school in September. The parties did not agree on the number of hours she was in daycare each day but neither provided the records. Mr. Shoumali said she went only in the morning. Ms. Telatin said she stayed until mid-afternoon. Ms. Telatin started her new job within a few days of arriving in Belgrade. She said her work day generally ended around 5:00 p.m. She had a few days of initial work-related travel that summer when Mr. Shoumali cared for Angelica on his own. In mid-September, he and Angelica travelled to Amman, Jordan for several days to visit his parents. I find that Mr. Shoumali was Angelica’s primary caregiver during this time.
(v) Belgrade, Serbia – September 23, 2018 to Trial
[48] Angelica has been in her mother’s primary care since separation on September 23, 2018. On September 24, Mr. Shoumali moved to a hotel. Over the following month, he saw Angelica several times during the week after school and on weekends. After her tonsillectomy in early October, he went to the flat during the day to care for her until she returned to school. Mr. Shoumali left Serbia for Canada, on October 21, 2018. The reasons given for leaving included: Ms. Telatin had taken back his diplomatic residency card although he later acknowledge that tourists can stay in the country for 90 days on a tourist visa; he did not know his rights in Serbia; and he was afraid because the night they separated, Ms. Telatin threatened to call the police. The parties provided conflicting accounts of the circumstances surrounding the potential for police involvement that night. Ms. Telatin arrived in Ottawa with Angelica in October 2018 a few days after Mr. Shoumali for pre-scheduled medical appointments and intended to return to Serbia. A week later, Mr. Shoumali commenced proceedings and brought an emergency motion for an order prohibiting Angelica from leaving the country. Justice Shelston made an order awarding Ms. Telatin temporary custody and permission to return to Serbia with Angelica. She has been in her mother’s care since then.
[49] Considering the whole of the caregiving evidence for the period between Angelica’s birth and the trial in 2019, I find that Ms. Telatin was the primary caregiver, more often than not. Although I am satisfied that Mr. Shoumali is a devoted parent and was actively involved in Angelica’s physical care for significant periods of time, I find that Ms. Telatin was the parent who took responsibility for meeting the full range of the child’s needs. She too is devoted to Angelica and was the one to initiate, investigate, and consolidate virtually all areas of her care. As her lawyer put it, Ms. Telatin was the “CEO” of the family.
Did the Parties Intend to Make Canada Their Permanent Home?
[50] Mr. Shoumali says their home is here and but for Ms. Telatin’s trickery, he would never have left or allowed Angelica to leave. He also alleges that the move was undertaken on a trial basis, in any event. According to Mr. Shoumali, the plan to make Canada their home began in 2013 when they looked to purchase property in Toronto. Ms. Telatin denies any such intention or plan. She said Mr. Shoumali wanted to buy an investment property in Canada, not her. She had not even been to Canada at that time and only visited once after that, in May 2013, when Mr. Shoumali was in Toronto for training. She had no connection to Canada or desire to own property here. Her dream, she said, was to buy property in London, England – a purchase she made in 2014.
[51] In support of his position, Mr. Shoumali referred to a 2013 email exchange with Ms. Telatin. In it she said how much she thought he could afford to spend on a property considering the size of his down payment and the amount she was prepared to contribute. Ms. Telatin said her contribution was a loan. She said Mr. Shoumali asked to borrow money and said he would pay back slowly, over time. Without her financial input, he did not have enough money to make the purchase.
[52] Indeed, in April 2013, Ms. Telatin transferred 64,974 Euro into Mr. Shoumali’s bank account and he made an offer to purchase in April 2013. The offer fell through. He made no further efforts to buy property in Canada. That summer he moved to London, England to attend university. He said he put the property plan on hold.
[53] Somewhat surprisingly, Mr. Shoumali testified that he had no recollection of receiving funds from Ms. Telatin in 2013.
[54] Mr. Shoumali did not return Ms. Telatin’s money. She said she just assumed that he would give it back when asked and was shocked when he refused to do so the following spring.
[55] The email conversation between the parties and money transfer from Ms. Telatin are consistent with both a joint purchase and a loan, however, I find it more probable that the funds were advanced as a loan. I accept Ms. Telatin’s evidence that she had no interest at that time in owning property in Canada nor in making Canada her home. She and Mr. Shoumali were not living together, there was no evidence that they were making plans to live together, nor were they yet expecting Angelica. They were each pursuing their careers around the world and spending time together when circumstances permitted. While it is somewhat surprising that Ms. Telatin would advance such a large sum of money without any documentation to establish its purpose, I am satisfied that the parties were in love and she trusted Mr. Shoumali.
[56] After Angelica’s birth in June 2014, Ms. Telatin said she soon began to worry about money. She had limited maternity benefits and Mr. Shoumali was unemployed. She said that she did not understand his employment strategy. In September 2014, he declined a contract with the ICRC, telling them that he was still needed at home by his family. She says that was not the case. Her physician had cleared her in mid-August to resume all normal activities. Ms. Telatin also questioned Mr. Shoumali’s decision to limit himself to family-safe missions. She believed that they needed to strategize and figure out how to meet the challenges of their international careers and parenthood. As she saw it, the technical nature of his work lent itself to short-term missions whereas her work as the head of the delegation in a country, required longer contracts. His shorter contracts would allow him to come and go either from London or her posting when he was on leave or between contracts. Mr. Shoumali did not see it the same way. He said everything changed for him after Angelica’s birth. He was no longer prepared to be separated from his family
[57] Ms. Telatin encountered difficulty returning to work and obtaining a contract with the ICRC that was suitable for a young child. In the fall of 2014, she was eventually advised that her services were no longer needed. Her termination was effective April 2015. The ICRC said they did not have any family postings available and that her job criteria were not consistent with their operational needs. Ms. Telatin was extremely disappointed that they would deny her a family safe mission after twelve years with the organization and ten years of hardship postings. She began to feel tossed aside because she now had a child. Nevertheless, she believed that she remained eligible for other opportunities within the ICRC and continued to apply while also looking for jobs locally in London. According to Mr. Shoumali, they were both working hard to find employment.
[58] By the summer of 2015, neither party had found work. Mr. Shoumali’s student visa was expiring on September 1, 2015. He wanted to move to Canada and said that had always been part of the plan. He considered Canada to be his home and where they could make a better life for Angelica. Mr. Shoumali was certain that it would be easy for them to find work in Canada.
[59] Ms. Telatin testified that she did not want to move but, in the end, felt that she had no choice in order to keep the family together. She wanted to remain in her flat in London with Angelica and thought they could buy time if Mr. Shoumali was prepared to come and go on short-term missions while they figured things out. He was not prepared to do that. She reiterated her lack of connection to Canada and that she could not see how they could pursue their careers from Canada.
[60] The parties moved on September 1, 2015 and lived in Richmond Hill, Ontario, with Mr. Shoumali’s aunt for a month. With her help, he quickly found part-time, minimum wage employment at Shoppers Drug Mart. In May 2016, he left that job to work part-time for Air Canada as a baggage handler where he earned $13.00 per hour. In 2015 and 2016, Mr. Shoumali’s employment income was $5,791 and $9,527 respectively.
[61] Ms. Telatin testified that she was shocked to learn it would take many months before she would be eligible for a work visa in Canada after Mr. Shoumali promising it would be easy for them to find employment. She wanted to work and continued applying for jobs around the world including positions in Europe, Australia, the United States and the United Kingdom. Mr. Shoumali was supportive of her broad international job search. It was only after she received her visa in February 2016 that she incorporated Canada into her job search.
[62] Her evidence indicates that she sent out dozens of applications before she found employment. In September 2016, she began work with World Vision in Ottawa at a salary of approximately $84,000 to $85,000 a year. In 2017, her pay increased to $87,668. I accept Ms. Telatin’s testimony that this was not a career advancing job for her. After years of heading up delegations for an international humanitarian aid organization, she was underemployed as a policy advisor with a non-profit organization and she continued her search for positions that were in keeping with her experience.
[63] In November 2016, Ms. Telatin was accidentally copied on an email between ICRC officials. The email made it clear she was unlikely to have any future with the organization. One senior official wrote that he was not keen on seeing Ms. Telatin return, thought of her as “very high maintenance” and not having high potential. Ms. Telatin said she was devastated. Her attempt to obtain an explanation from the organization did not produce results. I accept her testimony when she said that she does not believe there is much chance that she will ever work for the ICRC again unless there is a significant change in management.
[64] I am satisfied that Mr. Shoumali continued to receive employment opportunities from the ICRC. The evidence supports this. According to Ms. Telatin, employers came to him without him even applying. She said he was and is very good at his job. One such example was in the summer of 2016. Mr. Shoumali was contacted with an offer of a contract in Iraq. He declined citing the need to remain in Canada because of the family’s upcoming move to Ottawa. Mr. Shoumali testified that he put Ms. Telatin’s career ahead of his own and that he would remain present to care for Angelica. In March 2017, he was shortlisted for a position in Amman, Jordan, but did not follow up. Then in November 2017, he took a three-month contract with the ICRC in Tunisia and declined the offer to extend.
[65] Both Ms. Telatin and Mr. Shoumali were registered with Global Careers as they continued to look for employment opportunities.
[66] Mr. Shoumali was aware that Ms. Telatin had applied to UNOPS in the summer of 2017. He said he always supported her job search. He knew she wanted “a big job” and that she was upset by the way her career with the ICRC had ended. He confirmed that he was very happy and proud when she was accepted in the UNOPS pool of candidates in January 2018 but thought she was only applying to positions close by in locations such as New York City and not places like Serbia. Ms. Telatin said Mr. Shoumali knew that she applied for the Serbia position and was present when they interviewed her via Skype.
[67] In my view, the evidence overall does not support Mr. Shoumali’s contention that they intended make Canada their permanent home. He and Ms. Telatin cohabited for almost five years. For the first year and nine months, they lived in England. They disagree on whether they had to leave, or wanted to leave, England to move to Canada. They lived in Richmond Hill for a year where Mr. Shoumali had part-time employment and Ms. Telatin did not. They couple then resided in Ottawa for twenty-two months where Ms. Telatin had employment and Mr. Shoumali had only three months of employment. Neither party was able to obtain work in Canada that was commensurate with their abilities. From the outset, each continued to apply for employment abroad. Ms. Telatin especially, appeared to work hard at this. As I see it, their actions are not indicative of a settled intention to make Canada their home. The most persuasive evidence to the contrary is Ms. Telatin’s purchase of a condominium in the spring of 2018. As will be seen later in these reasons, this was a very difficult time in their relationship. In February 2018, she demanded that Mr. Shoumali return the rest of her money. She was looking for property. She made the purchase solely from her funds and took title in her name alone. Her only explanation for the purchase was that she wanted an investment. I believe her.
[68] Albeit for different reasons, both parties led evidence about the transfer of funds by Ms. Telatin from her accounts in England and Switzerland to Mr. Shoumali’s foreign currency accounts in Canada, over several months. These transfers were in addition to the 64,974 Euro that transferred in April 2013. Between January 2016 and the end of July 2016, Ms. Telatin transferred 270,000 GBP (British Pounds) and over 260,000 CHF (Swiss Francs) to Mr. Shoumali. The amount in British pounds represented the proceeds from the sale of her London flat and the Swiss Francs represented her savings from years of employment with a Swiss employer. Her ICRC pension payout was included in that amount. It is Mr. Shoumali’s contention that the transfers support what he alleges was their intention to buy a house together and make Canada their home. In addition, he says that Ms. Telatin gifted the money to him and points to the bank statements and the notation beside each entry that says “gift”.
[69] Ms. Telatin denies that she had any intention to give away her money. She explained that the transfers were marked as gifts because the bank required a reason for the transaction. She further explained that the transfers were for amounts of 20,000 or less to stay within the maximum transfer amount allowed. In short, she said the transfers were a strategy to move her money. Her explanation was threefold: the potential consequences of the pending Brexit referendum in England; the change in taxation rules for Canadian residents owning Swiss bank accounts; and her ineligibility to have her own foreign currency in Canada. Rhetorically, she said “who gives away their pension”! She admits she was naïve not to insist that Mr. Shoumali return the money as soon as possible.
[70] Ms. Telatin’s pleadings did not include a claim for a reimbursement of funds. She submits, however, that Mr. Shoumali owes her money and that this alleged indebtedness should be considered in relation to his credibility and his spousal support claim.
[71] Mr. Shoumali has not persuaded me that Ms. Telatin intended to make a gift to him of approximately $800,000 CAN. In this regard, he said that he did not deal with it in any way without consulting Ms. Telatin. Moreover, in October 2016, he returned $130,000 CAN and 100,000 GBP. There were then three other transfers. The first two totalled $5,000. The third and final transfer was made on February 8, 2018 for $400,000 CAN. These actions are not consistent with Mr. Shoumali’s allegation that Ms. Telatin made a gift of these funds. In this regard, I also accept Ms. Telatin’s explanation for the transfers to Mr. Shoumali’s accounts.
[72] I decline Ms. Telatin’s invitation to consider Mr. Shoumali’s alleged indebtedness in relation to his spousal support claim when I deal with that issue. The evidence provided was not sufficient to for me to determine whether Mr. Shoumali does or does not owe any money to her. What I know is that certain funds were transferred to Mr. Shoumali and certain amounts were returned. However, I cannot determine what other transactions may have occurred while Mr. Shoumali held the funds, when the GBP and CHF were exchanged for CAN dollars, the applicable exchange rates, the extent to which those funds were mingled with Mr. Shoumali’s funds, if at all, any interest earned and if any fund were used to cover expenses. In that regard, I am mindful that each party had significant periods of unemployment after they moved to Canada. Therefore, I find it reasonable to assume that, to some extent, they relied on savings to meet the needs of the family, especially during their first year in Canada.
Allegations of Abuse, Control and Spying
[73] Ms. Telatin alleges that Mr. Shoumali was abusive and controlling and he exposed Angelica to his behaviour. She said that he controlled who she spent time with, repeatedly accused her of affairs; threatened separation, threatened deportation, punched walls and used her smart devices to spy on her. She said Mr. Shoumali’s ongoing suspicion that she was seeing other men made her feel like a prostitute. Mr. Shoumali denied her accusations but admitted that he once worried about an affair, that he once threatened to leave, he once packed his bag and once punched the wall. He denies that Angelica witnessed these behaviours.
[74] According to Ms. Telatin, in January 2018, Mr. Shoumali threatened three times that he was going to leave her and have her deported. Since he was her immigration sponsor and the terms of the sponsorship had not yet been satisfied, she worried that this could happen and that she would be forced to leave without Angelica. On January 31, 2018, Ms. Telatin contacted her now lawyer for advice on immigration and separation.
[75] Ms. Telatin said she first suspected Mr. Shoumali of spying on her in 2013 when she caught him reading her email. She said she confronted him, he promised not to do it again and she thought he had stopped. Her concern resurfaced in 2017 and worsened in 2018.
[76] According to Ms. Telatin, there were many instances where Mr. Shoumali had information about her conversations and whereabouts that he could not otherwise know unless he was somehow using her smart phone to spy on her. She said that he admitted to spying on her but declared there was nothing she could do about it. Ms. Telatin gave examples that included Mr. Shoumali repeating portions of conversations that she had with friends via messaging apps such as Skype and WhatsApp, an application that he had installed on her device before he left for Tunisia in November 2017. She described one instance when Mr. Shoumali allegedly brought up a conversation that she had with a friend and said he could see that her friend was disappointed in him for the way he treated Ms. Telatin. She recounted other occasions where Mr. Shoumali kept asking her if she intended to respond to text messages before she was even aware that she had received any. To test her suspicions, she said that she turned the sound off and kept her phone beside her. She said the same thing happened. Mr. Shoumali knew the moment she received a message. Mr. Shoumali denied the allegations, said he had no knowledge of spyware and that it was nonsensical to think that someone would spy and then admit to it.
[77] Ms. Telatin described how Mr. Shoumali would Skype her from Tunisia and demand her to move around the apartment with the iPad to prove to him that she was not hiding someone. She described how he insisted on seeing behind the couch, behind the shower curtain and behind the clothes hanging in the closets before he was satisfied that she was alone with Angelica. She said these conversations were humiliating and often happened with Angelica present. She would ask why daddy was yelling.
[78] On February 5, 2018, the parties conversed by Skype. Mr. Shoumali was in Tunisia and Ms. Telatin was in Ottawa, at work. The conversation was in writing and unfolded over two hours despite Ms. Telatin’s request that she should not be disturbed. Mr. Shoumali repeatedly asked her where she was that morning after taking Angelica to daycare. He asked her that question nine times. She answered that she had taken Angelica to school and gone to a meeting before returning to the office. He insisted on receiving details. Ms. Telatin’s exasperation was evident as she recounted her actions to him, step-by-step. Mr. Shoumali persisted. He wanted to know if she had gone home before going to the office. He quizzed her about the meeting she attended and wanted to know how it was that she was able to take a taxi to and from her meeting without calling one. It is apparent from the exchange that Ms. Telatin was upset and insulted by the scrutiny – by the relentless questioning and insistence that she report to him and justify the details of her day. As the conversation progressed, Mr. Shoumali said that he had only wanted to hear from her. Nevertheless, he continued to question her whereabouts, specifically at 9:20 a.m. that morning. His focus on where she was and what she was doing at that particular time that morning was disquieting.
[79] Ms. Telatin said this was a classic example of what their communications had become.
[80] Mr. Shoumali alleged that the conversation had been altered. He did not say in what way it had been altered, nor did he produce a copy of the conversation from his computer or say why not.
[81] The evidence provided did not establish to the required level of probability that Mr. Shoumali used technology and Ms. Telatin’s smart devices to spy on her. Nevertheless, I am satisfied that he had information about her actions for which he had no easy explanation.
[82] On February 6, 2018, the day after the Skype conversation, Mr. Shoumali unexpectedly returned home from Tunisia. Ms. Telatin said she was shocked and upset. He was not due home until February 22 on a scheduled break in his contract. She believed that Mr. Shoumali had quit his job to return unannounced with the expectation that he would catch her in the affair he had been accusing her of having. Mr. Shoumali denied this and said he only wanted to surprise her. He thought she would be happy to see him. Considering the nature and tone of their Skype conversation the previous day, I am not persuaded by his explanation. A few days later, Mr. Shoumali advised that he was not returning to his job in Tunisia.
[83] Ms. Telatin described February and March 2018, as “pure chaos”. She said Mr. Shoumali continued accusing her of affairs and threatening separation, only to pack his bags and return after standing in the hallway or sitting in the car for awhile. She said his actions and accusations happened in Angelica’s presence or within earshot. She demanded that he return the money that belonged to her that was still in his bank account. On February 8, 2018, Mr. Shoumali transferred $400,000. According to Ms. Telatin, he said he was keeping the rest to pay his lawyers to take her to court. He denies making this statement.
[84] Mr. Shoumali admitted that he threatened separation, but said it was only once. Similarly, he admitted to packing his bag and leaving on one occasion after he came back from Tunisia but denied that Angelica witnessed it. Ms. Telatin described his behaviour as a “copy and paste” of what happened in London after Angelica was born and later in Belgrade, after he returned from visiting his parents in Jordan and accused her of having a lesbian affair.
[85] Ms. Telatin described the night they separated when she asked Mr. Shoumali to leave the flat. She said that he punched walls, screamed at her and, among other things, said to Angelica “your mother fucks men on the street for money”. Mr. Shoumali denies those words and said he told Ms. Telatin that she was the one who should leave and be the one on the street, not him. He admits to punching the wall but only once and denies that it happened in front of Angelica. He describes this behaviour as regrettable, out of character and related to the emotion of the moment.
[86] Ms. Telatin described certain occurrences following separation that left her believing that Mr. Shoumali was still trying to intimidate her and make her feel vulnerable. She spoke of email notifications that someone was trying to access her account and of notifications indicating that she had an active Facebook account despite her certainty that she had deleted it. She described her upset at learning just days before trial that a picture of Mr. Shoumali with Angelica had been uploaded to an account in her name. There was nothing else on the page. Ms. Telatin said she does not like social media and admitted her lack of technical knowledge left her unable to show Mr. Shoumali did what she suspected. Nevertheless, she regarded these occurrences as part of a pattern. Mr. Shoumali denies the allegations.
[87] Ms. Telatin also spoke of notes from Mr. Shoumali that she found in the flat after November 2018. Mr. Shoumali said he left these notes before separation and not in October 2018 when he was in the flat caring for Angelica following her tonsillectomy, as Ms. Telatin believed. I cannot draw any conclusions from the parties conflicting accounts. The notes were ambiguous and lent themselves to the different interpretations that each attributed to them.
[88] In answer to Ms. Telatin’s allegations of control, Mr. Shoumali named several friends and work colleagues that he said she had spent time with but did not say if she first had to seek his permission to do so. With respect to her family, he blames Ms. Telatin for the lack of contact with them and alleges they have a poor relationship. She says she has a normal relationship with her family. I did not find Mr. Shoumali’s evidence credible and accept Ms. Telatin’s evidence. Clearly, she was able to rely on her mother and her brother in February 2019 to come to Ottawa to care for Angelica when the parties were in court and again in May 2019 when they went to Serbia to care for Angelica while the parties were in Ottawa for their trial. In my view, the ability to rely on family when needed is not indicative of a poor relationship.
[89] What began as a happy and loving relationship between the parties became increasingly marred by suspicion and mistrust. While the evidence fell short of persuading me, on the balance of probabilities, that Mr. Shoumali behaved as alleged, he did admit certain behaviours but said Angelica did not witness them. I do not believe him. The family lived in an apartment in both Ottawa and Belgrade. Neither was described as large nor was it suggested that Angelica was asleep or anywhere other than in the apartment when these events occurred. I find it improbable that she escaped exposure.
Trickery
[90] Following Mr. Shoumali’s unannounced return from Tunisia in February 2018, Ms. Telatin contacted her lawyer almost immediately. The evidence also indicates that by the end of February, she told Ms. Shoumali that she had a lawyer and was discussing separation. Mr. Shoumali proposed counselling.
[91] On March 28, 2018, Ms. Telatin was offered the job in Serbia. The parties continued to attend counselling during April. According to Ms. Telatin, the result of counselling was Mr. Shoumali’s promise to change – to stop accusing her of affairs and the like. According to Mr. Shoumali, the result of counselling was his belief that she still loved him and wanted to make the relationship work. On this basis, they decided to go to Serbia as a family.
[92] It was Ms. Telatin’s evidence that she and Mr. Shoumali had discussed and agreed to the terms of an agreement. On April 26, 2018, he received an email from Ms. Telatin’s lawyer proposing a meeting to discuss a draft agreement. Counsel stated that the agreement would allow Ms. Telatin and Angelica to move to Serbia to start her job and would also set out their mutual intentions with respect to living arrangements and Angelica’s right to have both parents involved in her life, regardless of what the future held. The importance of independent legal advice was clearly stated. Mr. Shoumali replied saying that they were planning to go abroad as a family and what was being proposed did not make sense.
[93] The meeting did not take place and Mr. Shoumali received another email early in May 2018. Ms. Telatin’s lawyer explained that not only would the agreement demonstrate his consent to Angelica moving, it would confirm that he too was moving to Serbia, that he and Ms. Telatin were trying to remain together for Angelica’s sake and the agreement would clarify their respective roles and responsibilities for Angelica’s future. The importance of independent legal advice was reiterated.
[94] Mr. Shoumali testified that he was shocked when he read the draft agreement. He thought that Ms. Telatin had only instructed her lawyer to prepare a travel consent that would allow her to travel with Angelica after they were all in Serbia. Mr. Shoumali replied that he did not consent, would not sign the agreement and asked if Ms. Telatin was planning to separate and whether he needed a lawyer for that reason.
[95] The agreement was not signed. The relevant terms of the draft are:
- Background
1.8 Firas agrees that Michela will move to Belgrade with Angelica and live there with her. Firas is planning on moving to Belgrade to live with them and then he will decide what his future plans are with respect to employment. He understands that in the future, Michela may be asked by the United Nations to move to another position in another country. Firas agrees that Michela will be able to take Angelica wherever she lives in the future. Firas has agreed to move to Belgrade with them.
1.9 There have been some problems in their relationship, but both Michela and Firas are trying to work on improving their relationship for Angelica’s benefit.
- Parenting
2.1 At all times, Michela shall be responsible for all of Angelica’s day to day decisions including her childcare, education, major non-emergency healthcare and religion.
2.2 Michela will consult Firas with respect to all major decisions.
2.3 Firas shall make day to day decisions for Angelica whenever she is in his care.
2.4 Both parents shall make emergency healthcare decisions for Angelica and shall notify the other parent within 1 hour of any emergency taking place so that the other parent can participate in the decision making.
2.5 Firas will have the right to spend time with Angelica whether he lives with Michela or not. If our relationship ends in the future, Firas will always have the right to spend time with Angelica.
2.6 If Firas lives in the same city as Michela, he will be allowed to spend time with Angelica, to be arranged with Michela; and the parents will work out a schedule that fits with Angelica’s school and our work commitments.
2.7 If Firas lives in another city or country, he may arrange visits with Angelica that work for both him and Michela.
2.8 We may both make inquiries and be given information by Angelica’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with Angelica.
2.9 With respect to Angelica’s education, we agree as follows:
a) Both of us may attend all school functions regardless of the schedule.
(b) We will both attend parent-teacher meetings.
(c) Each of us will obtain our own school calendar and school notices.
2.10 If one of us proposes to change our home residence, the moving parent will give the particulars of their new address and telephone number to the other. At the time of this agreement, Angelica’s primary residence is with her mother, in Ottawa, but we anticipate that it will change to Belgrade, Serbia by the summer of 2018.
- General Terms
4.1 Each of us acknowledges and agrees that this Agreement is a cohabitation agreement entered into under section 54 of the Family Law Act[^17], and is a domestic contract that prevails over all matters dealt with in the Family Law Act.
[96] At trial, Mr. Shoumali made much of paragraph 4.1 and the reference to s. 54 of the Family Law Act[^17] as the section that governs separation agreements. The suggestion was that the cohabitation agreement was really a separation agreement in disguise and that supported his assertion that it was Ms. Telatin’s plan all along to separate in Serbia. In my view, nothing turns on the reference to s. 54. I find it is of no consequence whether the paragraph contained the correct section number or not because the agreement itself was clear. The parties’ relationship was in trouble and separation was a risk whether they were in Ottawa or Serbia. That was clear. I am not persuaded that there was any trickery behind the move and find it implausible that Mr. Shoumali could read the draft agreement and the emails from Ms. Telatin’s lawyer and not understand the state of their relationship and the context in which the move to Serbia was taking place, regardless of any belief he may have held that Ms. Telatin still loved him. Contrary to Mr. Shoumali’s allegations of trickery and deception, I find that the draft agreement offered transparency. Mr. Shoumali knew or should have known the risk of separation and agreed to go anyway.
Was the move to Serbia temporary?
[97] Mr. Shoumali argues that, in any event, the move to Serbia was temporary, undertaken on a one-year trial basis only and Angelica should be returned to Canada at the end of Ms. Telatin’s current contract. He points not only to Ms. Telatin’s condo purchase a few months prior to the move but also to the diplomatic clause in the Belgrade lease. He asserted that the provision allowed them to terminate on short notice if they were unhappy and wanted to leave. Mr. Shoumali claims that Ms. Telatin’s desire and plan to remain in Serbia arose after the separation and indicates her goal of minimizing his role in Angelica’s life as much as she can.
[98] Aside from the uncertainty inherent in contract employment, I am not persuaded that the move to Serbia was undertaken on a trial basis any more than might be the case with any new job. According to Ms. Telatin’s boss, a twelve-month fixed term contract is the most the organization ever offers. In addition, with respect to the diplomatic clause in the lease, Ms. Telatin testified that the clause is standard for diplomats and is there to protect the employer, not the employee, should the agency be asked to withdraw from the host country, or should the employer terminate the contract of the employee. Ms. Telatin’s explanation is consistent with the language of the clause itself. If there was a trial aspect to the move to Serbia, I find it was in relation to Ms. Telatin and Mr. Shoumali continuing as a couple and not in relation to the move or the job.
Issue #1 - What custody and access order is in Angelica’s best interests?
Mr. Shoumali’s Plan of Care including Proposed Place of Residence
[99] Mr. Shoumali’s plan for Angelica’s care includes joint custody and shared decision-making. He states that he and Ms. Telatin parented as a team and he still values her input, in the way that she once valued his. He says they are both capable and loving parents and Angelica needs the best of each of them.
[100] If Ms. Telatin also resides in Ottawa, Mr. Shoumali says that Angelica should reside with each of them and parenting time should be equal. If they reside in different cities, he proposes that Angelica spend two weeks with her mother at Christmas, ten days over Easter and the first six weeks of the summer, every year. He also proposes daily Skype access for no longer than forty-five minutes. If Angelica remains in Belgrade, he asks in the alternative, for an order that she return to Ottawa to live effective the first week of September 2020 or at the latest, the end of December 2020 when Ms. Telatin’s current contract expires. In the meantime, he seeks access on the same terms as he proposes for Ms. Telatin.
[101] When Mr. Shoumali returned to Ottawa, he rented an apartment in the building that the parties lived before moving to Serbia. The photographs show that his apartment is a pleasant environment equipped with toys and the like for Angelica. Mr Shoumali says he plans to remain in Ottawa if Angelica lives with him.
[102] Mr. Shoumali plans for Angelica to attend Centennial Public School. It is a short walk from his apartment and within a fifteen-minute drive from Ms. Telatin’s condo. Centennial is where Angelica last attended daycare in Ottawa. He says it is a good and caring school, suitable to her current needs. Mr. Shoumali also investigated extended daycare at Centennial for Angelica’s before and after school care. He told the court about her favourite toys, the activities she likes that he would continue, the playtime they share together and the many things he wants to teach her. Angelica has a doctor, dentist and osteopath in Ottawa. Mr. Shoumali testified that she will continue with these health care professionals.
[103] According to Mr. Shoumali, his mother and other extended family members will help care for Angelica when she is not in school, if needed. The testimony of Mr. Shoumali’s aunt from Richmond Hill, Ontario would appear to support the claim that the family loves Angelica very much.
[104] Mr. Shoumali plans to continue in his current job with Menzies Aviation. Given his experience in air operations, the degree he holds in aviation management, and the studies he has undertaken toward his Masters degree, he hopes that hard work will pay off and allow him to develop a career. His current employment income of $47,840 a year is based on 40 hours a week at $23.00 per hour. In recent years, he also earned annual interest income of approximately $2000.
Ms. Telatin’s Plan of Care
[105] Ms. Telatin seeks sole custody of Angelica and permission to live with her in Belgrade. Final decisions would be hers to make but only after consultation with Mr. Shoumali. She indicates that is essentially what happened during their relationship insofar as she would research and investigate, they would discuss matters, and he would defer to her judgment.
[106] Ms. Telatin acknowledged the importance of Angelica’s relationship with her father, her need to see him and spend time with him. The access she proposes is ten days over the child’s Christmas school break including travel days with the first and second halves alternating each year, ten days over Easter including travel days, the first three weeks of July in each year until Angelica is 7 years old when it would increase to four weeks. In even numbered years, access would begin in the last week of June to allow Mr. Shoumali and Angelica to spend her birthday together. In this regard, Ms. Telatin noted the difficulty in planning an access proposal given lack of evidence from Mr. Shoumali about the extent of his vacation entitlement. I note his employment contract indicates only two weeks of annual vacation. He did not say how his work schedule could accommodate the access he seeks if Angelica does not live in Ottawa.
[107] If permission is not given for the child to remain in Belgrade, Ms. Telatin volunteered that she too will return to Ottawa. In those circumstances, her position on custody and primary residence remains the same. She proposes that Mr. Shoumali’s parenting time take place on alternate weekends from Friday at 4:00 p.m. until Sunday evening at 7:00 p.m. and every Tuesday and Thursday from 4:00 p.m. until 7:00 p.m. They would share the Christmas and Easter holiday equally and Mr. Shoumali would have three weeks in the summer until Angelica reaches seven years of age when it would increase to four weeks.
[108] Ms. Telatin proposed that Mr. Shoumali can also come to Belgrade and see Angelica whenever or take Angelica to Jordan to visit his family when he wishes. She advises that there are short term rentals available by the week, or longer in Belgrade, and Mr. Shoumali can remain in the country for up to ninety days at a time on a tourist visa.
[109] The Skype access proposed by Ms. Telatin is two calls during the week and one call on the weekend for up to thirty minute each time. The current order provides for thirty-minute Skype calls every day. The parties agreed that the calls were difficult initially. For Mr. Shoumali, the difficulty for Angelica was mostly related to Angelica’s young age and lack of desire to sit and have a conversation. Ms. Telatin also thought the Skype calls were of poor quality for Angelica and alleged that Mr. Shoumali would express his anger and frustration during the calls. She says their interactions gradually improved with time and mediation. What continues to concern her is Mr. Shoumali’s insistence that the calls always be conducted from Ms. Telatin’s home despite that absence of that requirement in Justice Shelston’s order. Ms. Telatin submits that this is unnecessarily limiting and disruptive to daily life. She proposes that the calls take place wherever they happen to be at the designated time.
[110] Ms. Telatin plans to remain in Belgrade with Angelica for the duration of her job. She anticipates that the U.N. will renew her contract and she will be there another three to four years. This expectation is consistent with the testimony given by her employer, the U.N. Regional Director for Europe and Central Asia, who testified from Geneva, Switzerland via Skype. When her job in Serbia ends, Ms. Telatin wants the ability to move with Angelica to the location of her employment position.
[111] Ms. Telatin described Serbia as a safe country and explained that the U.N. considers it to be zero-risk, like Canada. The focal point for risk is around marches, protests, and similar gatherings. Her office is notified of such events and is given additional relevant information regarding street closures, routes to avoid and the like.
[112] According to Ms. Telatin, Angelica is happy in Belgrade. Her school, Chartwell International, is within a kilometer of their home. On a typical day, Ms. Telatin takes Angelica to school in the morning on her way to work and spends a moment greeting her teacher. She says Chartwell is a good school, Angelica is thriving there, and Ms. Telatin plans for her to remain there.
[113] Angelica is cared for after school by an in-home caregiver who arrives at the flat at 2:00 p.m. and meets her as she gets off the school bus at 3:30 p.m. Angelica is said to be fond of her caregiver. Ms. Telatin arrives home around 5:00 p.m.
[114] Ms. Telatin described weekends in Belgrade as being all about Angelica. They include her Saturday morning French lessons, Sunday outings to the local market, play dates, birthday parties and for a while, salsa lessons. She says Angelica is making friends, blossoming, and opening up for the first time. Her school reports confirm her progress. When asked what she wants for Angelica, Ms. Telatin replied “serenity” – to be serene in the way she was not when they lived together as a family.
Best Interests Analysis
[115] I am satisfied that Angelica shares much love and a close bond with both her parents. Mr. Shoumali described Ms. Telatin as an excellent parent, however, says she does not respect his role and Angelica need to have both of her parents involved and present in her life. He believes that Ms. Telatin has and will continue to minimize his ability to be in Angelica’s life in any meaningful way. As he sees it, if Ms. Telatin does not return from Serbia to parent Angelica with him in Ottawa, she is putting her career and her needs ahead of the child’s best interests.
[116] Ms. Telatin does not question the love Mr. Shoumali and Angelica have for each other. She admitted, somewhat reluctantly, that he is a good parent. She says he is loving and very good with Angelica at playtime. Her concerns relate to his ability to look ahead, to anticipate and plan for all her needs, to his anger management issues, and to what she says is a lack of insight into the impact on Angelica of his abusive and aggressive behaviour. She also seeks to ensure that his parenting time and the corresponding travel requirements are appropriate to Angelica’s age. She is now just five and one-half years old. Ms. Telatin wants their time together to be peaceful and free of confusion for Angelica. She says Mr. Shoumali has involved her in their conflict with his angry outbursts during Skype time and his comments about access, money and other issues.
[117] I accept Mr. Shoumali’s evidence that he enjoys a close relationship with his family – his mother, maternal aunt and other maternal relatives in Canada, however, there is no evidence of their ability or willingness to assist with Angelica’s care to the extent he claims. His family members who reside in Canada live in southern Ontario. Mr. Shoumali’s aunt testified to her love for her nephew and Angelica but did not indicate her ability to help provide care, if needed. She said that after the family moved to Ottawa, most of their contact was by text or phone. They did not travel to Ottawa to spend time here with Mr. Shoumali, Ms. Telatin and Angelica. Mr. Shoumali’s mother was in Ottawa twice after separation when Angelica was here. He said she can continue to help with Angelica’s care when she is not in school, however, it is apparent that her ability to do so is somewhat limited. She spends six months in Kitchener with her parents each year and the other six months in Amman, Jordan where her husband, Mr. Shoumali’s father, lives. Mr. Shoumali did not speak of other relatives or friends that could assist with Angelica’s care.
[118] Ms. Telatin has the same issue with respect to proximity of family and friends. Her family is in Italy and to the extent that she talked about friends, it was not in relation to Angelica’s care. It was my impression that her friends mostly live elsewhere – an understandable consequence of her work in international aid. That same consideration applies to Mr. Shoumali.
[119] Ms. Telatin’s mother and brother have also demonstrated their ability and willingness to assist with Angelica’s care. They came from Italy to Ottawa to care for Angelica in February 2019 when the parties were in court and they cared for her again in Belgrade when the parties were in trial. Ms. Telatin did not speak a lot about her family except to respond to Mr. Shoumali’s attempt to portray her relationship with them as poor. I do not accept his portrayal. Ms. Telatin acknowledged a time twenty years ago when contact with her mother was less frequent and somewhat strained. She also told the court why she did not tell her about her pregnancy until after Angelica’s birth. In both instances, I found her explanations to be credible.
[120] I am satisfied that both parties can provide third-party daycare for Angelica while they are at work, however, I find Ms. Telatin’s plan to be more consistent with Angelica’s best interests. It requires less time in third-party care. During the week, Ms. Telatin is available to Angelica in the morning and requires only after school care. She has a caregiver who comes to their home. Mr. Shoumali inquired into the daycare that is affiliated with Centennial Public School where he proposes that Angelica attend if she lives in Ottawa. He did not say whether he needed both before and after school care, however, I conclude that he does. He testified that his work hours are from 8:00 a.m. until 4:00 to 4:30 p.m. and it takes him approximately ten to fifteen minutes each way to travel to and from work.
[121] There is no objective evidence to indicate that Centennial would not meet Angelica’s educational and daycare needs, however, I accept Ms. Telatin’s evidence that neither she nor Mr. Shoumali regarded it as a good pre-school when Angelica was in daycare there. It is clear Ms. Telatin had investigated several schools and arrangements were in place to move Angelica from Centennial to a Montessori school in the fall of 2017. That plan was abandoned in November 2017 for transportation related reasons when Mr. Shoumali accepted the ICRC contract in Tunisia.
[122] I find that both Mr. Shoumali and Ms. Telatin regarded Chartwell International in Belgrade as a good school for Angelica. Although Mr. Shoumali sought to take credit for the decision to take her out of her first school where she attended daycare in the summer of 2018 and move her to Chartwell, the evidence indicates that Chartwell was the school of choice all along. It was in June 2018 that Ms. Telatin signed the registration form. As the diplomat in the country, it was her signature that was required. Angelica’s progress reports indicate that she is settling in well at Chartwell. She is opening up, becoming less shy and expressing herself more.
[123] When Mr. Shoumali returned to Ottawa in October 2018, he did not have a job or a place to live. He does not have family living in Ottawa nor did he mention friends. Although his annual earnings of $47,840 in his current job allow him to meet Angelica’s needs, it was impossible to assess his job stability. He had only been in the job a week when the trial started.
[124] Ms. Telatin had occupied her position in Belgrade for eleven months prior to trial, however, her initial twelve-month contract had already been extended to December 31, 2020. Her boss testified to the U.N.’s intensive recruitment process and rigorous, multi-levelled assessment process before a candidate is accepted into the UNOPS pool for a director’s position. He said that if Ms. Telatin’s performance remains strong, he believes her contract will be extended again and confirmed the U.N.’s expectation that individuals hired for a position such as hers remain for a minimum of three years but typically for four or five. He also said her work hours are flexible and manageable.
[125] Ms. Telatin’s earnings allow her to provide for Angelica’s needs in Belgrade. Her base salary is $108,603 USD. She also receives additional amounts as a rent adjustment, a post-adjustment, and a single parent allowance for dependants. Her income is tax exempt.
[126] Mr. Shoumali submits that Ms. Telatin does not keep him informed about Angelica’s life and will work to marginalize him as a parent if Angelica remains in her care in Belgrade. I am not convinced that is the case. She facilitated access voluntarily before there was a court order requiring her to do so and has honoured the access orders made in this proceeding. I was not given any persuasive evidence that this is likely to change. I am satisfied that Ms. Telatin keeps Mr. Shoumali informed about Angelica’s day-to-day life and well-being. She produced several emails providing him with information ranging from Angelica’s fever, a parent-teacher interview in January 2019, flight arrangements for their long weekend in Italy, and Angelica’s short-lived salsa classes. Ms. Shoumali also receives certain information directly from Angelica’s school. Ms. Telatin did not indicate any concerns to the court about Mr. Shoumali facilitating access or sharing information if Angelica is in his care.
[127] Overall, I prefer Ms. Telatin’s plan of care. It offers Angelica the stability of her school, her friends, her activities and the social confidence that she now appears to be developing. In this regard, I have considered that the parties chose this school together, they both described Angelica’s previous shyness, and Mr. Shoumali did not refer to any friends or community connections that she might return to in Ottawa. I also regard the access schedule proposed by Ms. Telatin as more appropriate and sensitive to Angelica’s current age-related needs and abilities. Mr. Shoumali’s proposal for a six-week access period in the summer and forty-five-minute Skype calls daily did not appear to me to be within the realistic limits that one might expect of a five-year-old child.
[128] I find that it is in Angelica’s best interests that she remains in Ms. Telatin’s primary care and residence.
[129] I must now decide whether major decisions for Angelica should be made jointly as Mr. Shoumali asks, or if it is in Angelica’s best interests that Ms. Telatin make the major decisions after consultation with Mr. Shoumali, as she asks. He says they parented as a team and they should continue to do so for Angelica’s sake. To the extent that the parties worked as a team, I have already concluded that Ms. Telatin was the team lead. Moreover, the communication that allowed them to work together then to make decisions for Angelica, no longer exists. It was Mr. Shoumali who said that they do not talk and communicate only by email. While email can be effective an effective mode of communication for many purposes, I do not consider it a satisfactory substitute in the circumstances of this case for the ability to converse and discuss Angelica’s needs when decisions are required. In this regard, I am guided by the Ontario Court of Appeal decision in Kaplanis v. Kaplanis[^18] where the court said that for joint custody to be ordered, there must be some evidence that the parties can communicate effectively with one another despite their differences. Hoping that it will improve is not sufficient. Here, Mr. Shoumali did not offer the court reason to believe there would be change for the better in their ability to communicate effectively. As a result, I conclude that it is in Angelica’s best interest that Ms. Telatin have sole custody. She shall have the right to make all major decisions for Angelica after meaningful consultation with Mr. Shoumali and consideration to his views.
Issue # 2 - Is it in Angelica best interests to live in Ottawa or in Belgrade?
[130] The parties argued this case as a relocation case even though they moved to Belgrade together and Ms. Telatin and Angelica have remained there. Therefore, that is the framework within which I decide the case.
[131] I turn now to the issue of whether it is in Angelica’s best interests to reside with her mother in Belgrade or in Ottawa where Ms. Telatin has said she will return if it is found that Angelica should return. As was the case in Terris[^19], the nature of this case is such that there is significant overlap between the factual considerations regarding Angelica’s best interests in relation to custody in the first instance and those that also bear on the best interests’ analysis required by Gordon v. Goertz[^20] to determine the relocation issue. The principles established in Gordon[^21] that are relevant to this case are:
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.
[132] The only reason the parties moved to Belgrade in June 2018 was Ms. Telatin’s offer of employment from the U.N. There was nothing else there except the opportunity for Ms. Telatin to resume to her career in international humanitarian aid. Ms. Telatin had been the sole income earner in the family for some time. I am satisfied that the financial compensation the job provided was relevant to her ability to meet Angelica’s needs and best interests then and remains relevant to her ability now as her custodial parent. I also consider the testimony of Ms. Telatin’s boss. He said if she left her job with the U.N. now for family reasons, it would likely give rise to certain conclusions within the organization that would be difficult to overcome should she wish to work with the U.N. again in the future. He said that such is the culture of the organization.
[133] Based on the evidence overall regarding each party’s employment including their individual efforts to obtain employment since Angelica’s birth, I find the likelihood of Ms. Telatin finding employment in Ottawa that is commensurate with her abilities is considerably inferior to the likelihood that Mr. Shoumali can find work abroad in his field that is also within a reasonable distance of Belgrade should he wish to do so. In other words, the evidence supports the conclusion that his employment opportunities abroad are superior to her career prospects in Ottawa. This leads me to conclude that if Angelica lives in Ottawa, she can have frequent contact with her father but her mother’s ability to provide for her and her best interests is likely to be to negatively impacted. However, if Mr. Shoumali works abroad, his proximity to Angelica and his time off between contracts would allow them the opportunity for more frequent contact that would be in keeping with Angelica’s best interests and allow Ms. Telatin to continue providing for Angelica as she currently does. Here, I note Mr. Shoumali’s acknowledgement in relation to his spousal support claim that Ms. Telatin’s return to Ottawa may well affect her earnings by as much as a seventy-five reduction.
[134] By the time this case reached trial, Angelica had lived in Belgrade for eleven months. For the last eight months she was in the care of her mother, subject to access with her father. For the first month after separation while Mr. Shoumali remained in Belgrade, Angelica saw him during the week and on weekends. Since he returned to Ottawa, they have had extended time together over Christmas, Easter, the summer, and her fall school break in addition to daily Skype access. Mr. Shoumali has not returned to Serbia to see Angelica despite the ability to enter country on a tourist visa and remain for up to ninety days.
[135] If Angelica returns to live in Ottawa, she is likely to have the benefit of more frequent contact with those paternal relatives who live in the Toronto area. If she remains in Belgrade, she will be closer to both her paternal grandmother and grandfather in Jordan and to her maternal grandmother and uncle in Italy. In Belgrade, she has the continuity of her school, her afterschool caregiver, her friends and her activities. Leaving Belgrade for Ottawa would be disruptive. At the young age of 5, she has lived in four cities, in three different countries, on two continents. She was in Ottawa for twenty-two months – longer than anywhere – but was just two years old when she arrived and was not quite four years old when she left. I am not persuaded that she has the roots in Ottawa that Mr. Shoumali suggests. Angelica is too young to have her views and preferences before the court.
[136] I have concluded that the benefit of Angelica living in Ottawa where she would have more frequent contract with her father and those of his relatives who live in Ontario, is outweighed by the benefits of her remaining in Belgrade with Ms. Telatin where she is settled in her school, her social environment and where she is also closer to other important relative on both sides of her extended family. A move at this time would risk disruption that would be contrary to her best interests. I also consider the likelihood that a move to Ottawa would result in Ms. Telatin having a reduced ability to provide for Angelica and meet her needs. Finally, I have considered the financial means that are presently available to Ms. Telatin to assist with travel costs to ensure that contact between Angelica and her father is maximized while also recognizing the constraints of Angelica’s young age, the distance between Belgrade and Ottawa, and limited vacation time from school and work. For those reason, I find the access that is consistent with Angelica’s best interests including the importance of nurturing and continuing to grow the strong love and bond that she has with her father, will be for her to be in his care for one half of her school Christmas break each year excluding travel days, ten days over Easter each year excluding travel days, three weeks every summer excluding travel days until she reaches 7 years of age when it will increase to four weeks, also excluding travel days. In addition, Mr. Shoumali shall have Angelica in his care for ten days over her fall school break, excluding travel days. He may exercise his access in Ottawa or Belgrade or any other location that the parties agree.
Issue #3 – Should income be imputed to each party and if so, in what amount?
[137] Each party seeks to impute income to the other under s. 19 of the Child Support Guidelines[^22].
Ms. Telatin’s Income
[138] Mr. Shoumali relies on s. 19(1)(b) to impute income to Ms. Telatin. That subsection permits the court to impute an amount of income to a spouse that it considers appropriate in the circumstances where the spouse is exempt from paying federal or provincial income tax. He submits that her income is either the equivalent of $273,644 CAN or $255,060 CAN after applying the exchange rate and a tax gross up. Both calculations include additional monies received from her employer including a post-adjustment and a rent subsidy. The difference in the two turns on whether she is the custodial parent and entitled to the single parent dependant allowance from her employer. Mr. Shoumali’s calculations also provide a deduction for the United Nation staff assessment of $1,914.17 per month. It is mandatory and was described as a tax of sorts.
[139] Ms. Telatin’s base salary is $108,603 USD. She submits that her income for support purposes is $234,313 after adjusting for the USD exchange rate and applying a gross up to account for the fact that she is not required to pay tax on her income. She did not include the other monies received from her employer or adjust for the staff assessment tax. Nor did her calculation include the interest income she earned.
[140] Neither party provided expert evidence, legal authorities or an explanation for the inclusions and exclusions in their respective income calculations. I was provided with Ms. Telatin’s income tax return for 2018, her final pay stub in December 2018 and exchange rate information from the Bank of Canada.
[141] I have reviewed the income documents and the calculations provided by both counsel. I have also considered fluctuating exchange rates and find it fair and reasonable to fix Ms. Telatin’s annual income for support purposes at $270,000.
Mr. Shoumali’s Income
[142] Ms. Telatin seeks to impute income to Mr. Shoumali under s. 19(1)(b) of the Child Support Guidelines[^23]. That subsection states that the court may impute income to a spouse if he or she is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the relationship or any child under the age of majority or by the reasonable educational or health needs of the spouse. The Financial Statement filed by Mr. Shoumali at trial indicates his annual income to be $49,993. From this amount, his employment earnings are $47,840. This amount is consistent with his employment contract. The balance of $2,153 is interest income.
[143] Ms. Telatin argues that income of $204,905 should be imputed to Mr. Shoumali. She calculates that this is the CAN dollar equivalent to tax exempt earnings of $131,000 CAN plus a gross up for income tax. She says based on his employment history this is the amount he is readily capable of earning as an air operations manager with the ICRC or another international aid organization.
[144] In Ontario, the leading case on imputing income under s. 19(1)(a) is Drygala v. Pauli[^24]. There, the Court of Appeal set out three questions to be answered when considering a request to impute income by reason of under-employment. I will address each in turn.
Question #1 – Is Mr.Shoumali intentionally under-employed?
[145] According to Drygala[^25], there is intentional under-employment if a spouse is not earning what he or she is reasonably capable of earning. Here, Mr. Shoumali’s primary work experience and area of expertise is air operation management for international aid organizations. That was the case when he met Ms. Telatin and before. Since then, Mr. Shoumali has enhanced his education considerably. He now has a degree in aviation management and has completed all but his dissertation for a Masters degree in logistics and supply management. At the motion before Justice Shelston on November 9, 2018, Mr. Shoumali admitted that his past earnings in air operations were in the range of $122,000 and that his annual rate of pay would have increased from 84,000 CHF (Swiss Francs) to 94,000 in February 2018 had he chosen to extend his contract in Tunisia. He said that was the expected rate of pay for that type of international work. He then added “family comes before money”. This income information is consistent with Mr. Shoumali’s 2017 and 2018 ICRC earnings in Tunisia and his income tax returns confirm that his employment income was exempt from tax. It is also apparent that this type of employment continues to be available to Mr. Shoumali. He said that he was offered a contract in South Sudan when he was in Serbia prior to separation. This is also consistent with Ms. Telatin’s evidence that there is work available, he is good at his job, and the ICRC seeks him out.
[146] Ms. Telatin also presented evidence of recent ICRC and U.N. job postings for positions in air operations and logistics. She submitted that Mr. Shoumali is qualified for these positions. He confirmed that he had not applied for any international positions. He said that he was not yet qualified for the logistics postings referred to and the air operations position was not location specific. He reiterated that he no longer wants to work in locations where Angelica could not visit nor did he want to be away for months at a time. What he wanted was to be in a stable country where she could be with him. The evidence of Mr. Shoumali’s employment search prior to being hired by Menzies Aviation included many low paying, entry level positions in a variety of fields for which he was significantly overqualified. His efforts did not appear to include any inquiries to international aid organizations or positions outside of Ottawa.
[147] Mr. Shoumali’s counsel submits that he should not be expected to pursue the type of international aid work that he did before he had a child and go into war zones and asks that support be based on his actual earnings and interest income totalling $49,993. No other calculations were provided. It is accurate to say that Mr. Shoumali is free to work where he wants and at what he wants. However, in the circumstances of this case, it is my view that he should not be permitted to choose to earn less than he is reasonably capable of earning when he has an obligation to support Angelica and himself. Mr. Shoumali is a very capable individual. He is highly trained and experienced. His expertise and skills are in demand by former employers. I am satisfied that he is not earning to his reasonable abilities and find that he is intentionally underemployed.
Question #2 – If Mr. Shoumali is under-employed, is it reasonable by virtue of his educational or health needs?
[148] The answer here is no. There is no evidence of any health concerns or educational needs that would reasonably explain or justify Mr. Shoumali’s under-employment. The only explanation he offered for not returning to international aid work is that he no longer wants to go to the locations where he has worked in the past. I find no reasonable excuse for Mr. Shoumali’s underemployment.
Question #3 – If there is no reasonable excuse for Mr. Shoumali’s under-employment, what income should properly be imputed in the circumstances?
[149] I find that Mr. Shoumali is reasonably able to earn the equivalent of $150,000 CAN annually. I arrive at this number by considering his evidence before Justice Shelston that his earnings and the expected rate of pay for his type of work was $122,000 CAD annually. He further indicated that if he had remained in Tunisia in February 2018, his annual rate of pay would have been 94,000 CHF. These amounts are all consistent with his 2017 and 2018 contract earnings and the CAD earnings indicated to Shelston J. As I did with Ms. Telatin, I allowed for some fluctuations in the exchange rate from Swiss francs to CAN and applied the tax gross-up. Then, recognizing the contract nature of his work in air operations, I made an additional adjustment to take into account vacation and other unpaid time away from work. I further exercise my discretion under s. 19 of the Child Support Guidelines[^26] and order that imputed income of $150,000 only take effect November 1, 2020. This will allow Mr. Shoumali time to organize himself and find work in his field if he so chooses.
Issue #4 - What amount of child support should be paid each month for Angelica?
[150] Prior to mid-May 2019, Mr. Shoumali did not have income or employment. Based on the job he started in May 2019 and his annualized earnings of $49,993, Mr. Shoumali shall pay child support to Ms. Telatin, for Angelica in the amount of $461.00 per month commencing June 1, 2019 in accordance with the Child Support Guidelines[^27]. Effective November 1, 2020, child support shall increase to $1,299 based on imputed annual income of $150,000.
[151] Ms. Telatin also seeks Mr. Shoumali’s contribution to Angelica’s special and extraordinary expenses under s. 7 of the Child Support Guidelines[^28], including her private school fees. Considering the circumstances including the family’s spending pattern prior to separation, the financial assistance that Ms. Telatin received from her employer to assist with school fees in the first year, and the reasonableness of the expense in relation to Mr. Shoumali’s income, I exercise my discretion and exclude private school fees from the expenses that he shall contribute to in proportion to income.
Issue #5 - Is Mr. Shoumali entitled to spousal support? If so, what amount should be paid and for how long?
[152] Mr. Shoumali seeks spousal support. His grounds are compensatory, and needs based. He submits that over time, his career became subservient to Ms. Telatin’s and he took on more and more responsibility for Angelica’s care. He says they agreed that he would be the parent to remain in the home to care for Angelica and the household. That was also to be the case after the move until the family was settled in Serbia when it was contemplated that he would look for a short-term mission.
[153] Ms. Telatin disputes entitlement. She denies that it was their plan that he would remain in the home to care for Angelica. In Ottawa, they had daycare and their reliance on it increased over time from a couple of hours two days a week to virtually full-time. Moreover, there was work available to Mr. Shoumali and she wanted him to take it. Her wish was for both of them to resume their international careers. She also says he is capable of full-time work at a much higher income level than his current job provides.
[154] Sections 30, 33 and 34 of the Family Law Act[^29] govern spousal support between unmarried spouses. Section 30 provides that every spouse is obliged to provide support for themselves and for their spouse in accordance with need to the extent they can do so.
[155] Under s. 33(8), the purposes of a support order is to,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
[156] Under s. 33(9), when determining the amount and duration of support, the court must consider all of the parties’ circumstances including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3(3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(vi) Repealed: 2005, c. 5, s. 27 (12).
(vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[157] Mr. Shoumali did not work during the first twenty-one months of cohabitation. At the outset, he was a full-time student in England. After he graduated in July 2014, he did not work although he had at least once opportunity for an air operations contract with ICRC. He declined. He also unnecessarily restricted his employment prospects to locations that were safe for Angelica when he had the option to work while Ms. Telatin and Angelica remained in London. In Toronto, Mr. Shoumali held two part-time jobs at different times between September 2015 and July 2016. His earnings in these two years were $5,791 and $9,527 respectively. In the summer of 2016, the parties moved to Ottawa and Mr. Shoumali did not work again until November 2017 when he went to Tunisia on three-month contract. He had the option to extend this contract but elected not to so. In 2017, he earned $17,108. In 2018, he earned $17,764. His unemployment during first twenty-one months of cohabitation had no connection to child care, domestic responsibilities or Ms. Telatin’s career. She was also out of the work force during that time and for a further ten months after arriving in Canada. Any priority that Mr. Shoumali gave to Ms. Telatin’s career and caring for Angelica did not start before August 2016 when they moved to Ottawa for her work. During the twenty-two months the family lived in Ottawa, he was out of the workforce but for three months in Tunisia and was able to pursue his Master’s degree through online study.
[158] I find there is a compensatory element to Mr. Shoumali support claim that arises from his role in the relationship. His presence in the home provided Ms. Telatin with flexibility to meet the requirements of her job including the ability to be away on work related travel knowing that Angelica was cared for. He was also available to meet Angelica needs if she was ill or otherwise not in daycare. However, I also recognize Ms. Telatin’s contribution to the relationship and the economic consequences to her of the decisions made. She too was out of the workforce for approximately thirty months for family related reasons that included their move from England to Canada. that Ms. Telatin made to the relationship.
[159] I am similarly satisfied that Mr. Shoumali is entitled to needs based support stemming from his unemployment at separation as well as his current employment and rate of pay. He was not employed when he prepared the Financial Statement that he relied on trial, however, I conclude that his current employment income allows him to meet the relatively modest expenses shown. He is not to be penalized for living within his budget.
[160] I have considered Mr. Shoumali’s net worth in relation to Ms. Telatin’s wealth and although his is significantly less, I conclude that was also the case when their relationship began. Further, I do not find it surprising that both parties left the relationship with less wealth than they had at the beginning in 2013. Each had significant periods of unemployment during the relationship and for many of those months incurred the high cost of living in London, England. Mr. Shoumali also had his school expense. I expect these costs alone had a considerable impact on savings.
[161] My conclusion that Mr. Shoumali can reasonably earn $150,000 annually is equally applicable here. He has considerable employment skills and experience. He was 40 years old and healthy when the relationship ended. Since then, he has not sought employment commensurate with his abilities. That has been his choice but the economic need flowing from that decision should not be visited on Ms. Telatin beyond what I regard as a reasonable period of adjustment following separation.
[162] Using the Custodial Payor Formula under the Spousal Support Advisory Guidelines[^30] (SSAG), based on Mr. Shoumali’s income at separation of $2,153 and Ms. Telatin’s income of $270,000, a support range of $1,508 to $2,010 per month with a mid-point of $1,75 is indicated with a durational range of 2.5 years to 5 years, subject to variation and possibly review. The amount of child support payable is $0 per month. This calculation is also premised on the absence of any income tax deduction to Ms. Telatin in relation to the support payable and that it is taxable income in Mr. Shoumali’s hands.
[163] Based on the same formula and income tax considerations, the SSAG[^31] calculations for Mr. Shoumali’s current income of $49,993 and Ms. Telatin’s income of $270,000, indicate a support range from $1,258 to $1,677 per month with a mid-point of $1467. At income of $150,000, the support range changes to $686 and $914 per month with a mid-range amount of $800.
[164] In addition to the SSAG[^32], I consider that Mr. Shoumali was 40 years old separation. His common law relationship with Ms. Telatin lasted not quite five years. Their standard of living was not elaborate, and both were unemployed for substantial periods of time during cohabitation. Ms. Telatin’s was absent from the workforce for reasons largely outside of her control. She was on medical leave and maternity leave. For a time thereafter, she was either unable to find work or not eligible to work. The parties disagree on the reasons behind Mr. Shoumali’s unemployment. Ms. Telatin said she wanted him to work and encouraged him to seek out contracts in his field of expertise. Mr. Shoumali said either that it was the plan for him to be at home with Angelica or that he did not wish to be separated from his family.
[165] Nevertheless, Mr. Shoumali remains well positioned to pursue a remunerative career. He is well educated, healthy and relatively young with significant work experience in the field of air operations. Moreover, there is evidence that his skills are still in demand by international humanitarian aid organizations where he will be well paid.
[166] Based on these facts, Ms. Telatin shall pay time limited spousal support. Subject to possible variation in the event of a material change in circumstance, commencing November 1, 2018 until May 31, 2019, she shall pay support in the amount of $2,000 per month. Commencing June 1, 2019, support shall decrease to $1,600 per month and continue until October 31, 2020. Effective November 1, 2020, spousal support shall decrease to $700 per month and continue until June 30, 2021, when it shall end.
Issue #6 – Should a restraining order be made against Mr. Shoumali?
[167] Ms. Telatin advised that she would not require a restraining order if Angelica was permitted to live with her in Belgrade. Accordingly, her claim is dismissed.
[168] Finally, the parties ask that this court retain jurisdiction over the child to decide any subsequent proceeding. This is not possible at law. Since Angelica will reside with Ms. Telatin in Serbia, it is anticipated that the Serbian court would be the court of jurisdiction[^33].
My Order
[169] For the reasons set out above, I order as follows:
Ms. Telatin shall have sole custody of Angelica and the child shall reside with her in Belgrade, Serbia.
Each party shall make all day to day decisions for Angelica while the child is in his or her care. Major decisions shall be made by Ms. Telatin after written consultation with Mr. Shoumali and due consideration is given to his concerns and point of view. He shall have up to seven days (7) days to make his views known after which Ms. Telatin shall make the final decision.
The parent who is caring for Angelica shall make emergency health care decisions and immediately advise the other parent in writing.
Mr. Shoumali shall have the right to obtain information directly from Angelica’s service providers including her schools, daycare providers, health care professionals and activity leaders. Ms. Telatin shall provide Mr. Shoumali with the contact information for these third parties and provide them with her written authorization and direction to share Angelica’s information with Mr. Shoumali. A pdf copy of her authorization and direction shall also be provided to Mr. Shoumali.
Mr. Shoumali’s parenting time with Angelica shall include:
(i) One half of her school break over Christmas each year excluding travel days. Commencing in 2020 and in even numbered years thereafter, he shall have the first half of the break and Ms. Telatin shall have the second half. Commencing in 2021 and in odd numbered years thereafter, Ms. Telatin shall have the first half of the break and Mr. Shoumali shall have the second half.
(ii) Ten days over Easter each year excluding travel days.
(iii) Three (3) weeks every summer excluding travel days until Angelica reaches 7 years of age when it will increase to four (4) weeks excluding travel days. The summer shall be defined as commencing on the third day following Angelica’s last day of school and ending four (4) days before the first day of school in the fall. Mr. Shoumali shall have the first choice of his summer parenting time in even numbered commencing in 2020 and Ms. Telatin shall have the first choice commencing in 2021.
(iv) Mr. Shoumali shall be entitled to have Angelica in his for ten (10) days excluding travel days over her fall school break.
(v) Such further and other time as the parties may agree, in writing.
Mr. Shoumali shall have the right to exercise his access with Angelica in Ottawa or in Belgrade or any other location as agreed with Ms. Telatin.
Ms. Telatin shall have the right to apply for and renew Angelica’s passport(s) and/or identity cards without Mr. Shoumali’s consent. She shall be entitled to receive and thereafter be responsible for the safekeeping of the child’s identification documents.
Both parties shall be permitted to travel with Angelica for vacation purposes. Each will provide the other with the necessary travel consents. The travelling parent shall always provide the other parent with a telephone number where he or she can be reached in the event of an emergency or to communicate with Angelica.
Each party shall be entitled to Skype Angelica up to three (3) times per week for no more than thirty (30) minutes each call when she is in the care of the other parent. Two of the Skype communications shall take place between Monday and Friday and the third shall take place on either Saturday or Sunday. The specific days and times Skype calls are to be arranged by the parties taking into consideration their respective work schedules, Angelica’s activities and the time difference. The Skype communication may occur at any location. To be clear, there shall be no requirement for the Skype call to take place from home.
Ms. Telatin shall pay the airfare costs to and from Ottawa to facilitate access until October 31, 2020. If she is does not accompany the child during the flights, she shall purchase and promptly provide Mr. Shoumali with the necessary airline tickets to travel between Ottawa and Belgrade or any other destination agreed upon, to pick up and return Angelica. Ms. Telatin shall make all flight arrangements in consultation with the Mr. Shoumali. If Mr. Shoumali choose to exercise his access in Belgrade, Ms. Telatin shall pay his reasonable flight costs plus arrange for and pay the cost of reasonable accommodation.
Effective November 1, 2020, Ms. Telatin shall pay the airfare costs to and from Ottawa to facilitate access at Christmas and during the summer and Mr. Shoumali shall pay the airfare costs to and from Ottawa for access at Easter and again in the fall. The party responsible for payment shall book the flights in consultation with the other parent. If the booking parent does not accompany Angelica on the flights, he or she shall provide the other parent with return flights in each direction to pick up and drop off Angelica.
Effective June 1, 2019, Mr. Shoumali shall pay child support to Ms. Telatin for Angelica of $461 per month based on income of $49,993.
Effective November 1, 2020, Mr. Shoumali shall pay child support to Ms. Telatin for Angelica in the amount of $1,299 per month based on imputed annual income of $150,000.
Commencing March 1, 2020, the parties shall share Angelica’s special and extraordinary expenses under s. 7 of the Child Support Guidelines in proportion to income, excluding Angelica’s private school fees. Neither party shall incur and extraordinary expense for an extracurricular activity to which the other parent is expected to contribute without that parent’s consent.
Commencing November 1, 2018, Ms. Telatin shall pay spousal support to Mr. Shoumali each month in the amount of $2000 until May 31, 2019. Effective June 1, 2019, the amount payable shall decrease to $1,600 per month until October 31, 2020. Effective November 1, 2020 spousal support shall decrease to $700 per month until June 30, 2021 when support shall end.
Each party shall provide the other with sufficient security to cover their support obligations to the other in the event of death. Proof of security shall be provided within 45 days. If the parties are unable to agree on satisfactory security, I may be spoken to.
Either party make seek to vary the parenting and support provisions above in the event of a material change of circumstances.
Before February 28 each year, the parties shall provide each other with proof of income for the preceding calendar year and child support, including payment of s. 7 expenses, shall be adjusted accordingly.
The claim for a restraining order is dismissed.
If the parties are unable to agree on costs, Mr. Shoumali shall provide his costs submissions by February 24, 2020. Ms. Telatin shall provide her costs submission within the following three weeks and Mr. Shoumali shall have a further five day right of reply. Each party’s submissions shall not exceed 10 pages in 12-point font exclusive of Offers to Settle and Bills of Costs. Reply submissions shall be limited to 3 pages.
Justice D. Summers
Released: February 1, 2020
COURT FILE NO.: FC-18-2106
DATE: 2020/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Firas Shoumali
Applicant
– and –
Michela Telatin
Respondent
REASONS FOR dECISION
D. SUMMERS J.
Released: February 1, 2020
[^1]: R.S.O. 1990, c. C.12. [^2]: R.S.O. 1990, c. F.3. [^3]: 2002 45125 (ON CA), [2002] O.J. No. 4364 (Ont. C.A.), para. 39. [^4]: 1996 191 (SCC), [1996] 2 S.C.R. 27, para 49. [^5]: Ibid. [^6]: 2003 2040 (ON SC), [2003] O.J. No. 2829 (S.C.J.). [^7]: Supra, at note 3. [^8]: Ibid. [^9]: Supra, at note 3, para 7. [^10]: Supra, at note 4. [^11]: Supra, at note 6. [^12]: 2017 ONSC 2306 at para. 12; 2018 ONCA 263, appealed on other grounds [^13]: Ibid. [^14]: Supra, at note 3. [^15]: Supra, at note 1. [^16]: Supra, at note 4. [^17]: Supra, at note 2. [^18]: 2005 1625 (ONCA) at para 11. [^19]: Supra, at note 6. [^20]: Supra, at note 4. [^21]: Ibid. [^22]: O. Reg. 391/97. [^23]: Ibid. [^24]: (2002), 61 O.R. (3d) (C.A.), at para. 23. [^25]: Ibid. [^26]: Supra, at note 23. [^27]: Ibid. [^28]: Ibid. [^29]: Supra, note 2. [^30]: July 2008, Department of Justice Canada. [^31]: Ibid. [^32]: Ibid. [^33]: See Terris supra at note 6, para 84, referring to Bjornson, supra at note 3, at para 49.