COURT FILE NO.: FC-17-2131-2
DATE: 2020/12/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Asmaa Shathar, Applicant, Represented by Edward C. Conway
-and-
Abdulla Mohammed, Represented by Elisabeth Amy Sheppard
BEFORE: Justice P. MacEachern
HEARD: Motion heard December 15, 2020 by videoconference
E N D O R S E M E N T
[1] The parties have a child, L.A.M., born January, 2015.
[2] The parties separated on August 11, 2017. They signed a Separation Agreement dated May 22, 2018 that provides for joint custody, with the child residing approximately two or three days (with overnights) each week with the father and the remainder of the time with the mother. The agreement provides for child support to be payable by the father to the mother at $500 per month.
[3] In May 2018, the parties consented to a Divorce Order being issued that incorporates the parenting and child support terms of the agreement. It appears from the court records that the divorce was never issued. This should be addressed on an immediate basis, as discussed below.
[4] In October of 2019, the Applicant mother commenced a motion to change, seeking sole custody and to change the Respondent father’s access to every second weekend. A case conference was held on February 25, 2020. This motion, brought by the father, is within the mother’s motion to change proceeding.
[5] The father seeks an order for a parenting schedule for the child as follows:
a. Mondays after school to Wednesdays morning at school: With the father
b. Wednesdays after school to Friday mornings as school: With the mother
c. Alternating weekends from Friday after school to Monday morning.
[6] The father also seeks an order requiring the Applicant mother to advise if she travels outside of the country and, if she does travel, comply with public health directives regarding quarantine.
[7] In the fall of 2020, the parties were in negotiations to resolve this motion to change. The correspondence between counsel confirms that, on October 2, 2020, the parties agreed to several settlement points, including a 2-2-3 equal timesharing arrangement, to communicate through Our Family Wizard, and that joint custody would continue with the mother being reminded of her obligation to consult with the father. The parties agreed to exchange further information about the child’s activities (dance and Arabic classes) and financial information to address child support. The father’s counsel began to draft Minutes based on the expectation that the matter would be finally resolved on these terms.
[8] The correspondence between counsel confirms that on October 6, 2020, the mother expected the 2-2-3 schedule to begin right away. The father’s understanding was that the existing schedule with the child being with him every Friday to Monday (which the mother had imposed) would continue until the agreement was signed, but he was agreeable to the 2-2-3 schedule commencing on the week of October 12, 2020.
[9] On October 7, 2020, the mother served a Notice of Change of Representation advising that she was now self-represented. The mother also took the child out of school on Friday, October 9, 2020, which would have normally been the father’s time, because she decided she wanted to have the child for Thanksgiving. On October 20, 2020, the mother advised the father’s counsel that she would not agree to any changes in the parenting scheduled until the court date.
[10] On October 18, 2020, the father discovered that the mother had repeatedly travelled internationally since March of 2020, during the COVID-19 pandemic, despite government directives not to travel outside of Canada for non-essential purposes. The father states that he discovered this travel through the mother’s Instagram postings. The mother does not deny the travel, nor does she deny that she did not disclose this travel to the father. The mother also does not deny that she did not quarantine for 14 days after returning from the travel, as directed by the government. The impact of this conduct is that during the directed quarantine periods, the child was returned to the mother’s care, thereby exposing the child, the father, and their contacts, to unnecessary risk, to which they were not aware. The mother admits to the following international travel:
a. Florida - May 24 to 27, 2020;
b. Florida - June 16 to 27, 2020;
c. Florida – July 23 to 30, 2020;
d. Paris, France – September 20 to 27, 2020.
[11] The mother states that she also plans to travel again to Paris in January of 2021.
[12] It is not contested that when the mother was travelling, the child was in the care of the father.
[13] Since September of 2020, the child has resided with the mother during the week, and with the father every Friday to Monday, except when the mother is travelling. The mother describes this as the “school schedule”. The father sought additional time, which lead to the negotiations towards a new schedule.
[14] Prior to September of 2020, the child was in an alternating two-week schedule for the period from approximately mid-May of 2020 to the end of August 2020. This is confirmed through the parties’ email correspondence.
[15] During the initial pandemic “lockdown’ period, from mid-March to mid-May of 2020, the parties agreed that the child would primarily reside with the mother. The emails support that the parties agreed that the child should stay with one or the other of them, and it was agreed this would be the mother.
[16] There is some dispute regarding the timesharing arrangement prior to March of 2020. The father states that the child was in his care at least 50% of the time, and for some periods unilaterally determined by the mother, upwards of 70% of the time. The mother denies this. Her evidence is that the child was with the father Friday to Monday of each week, although she does not dispute that the child was with the father for additional time when she requested it. The correspondence between the parties supports this.
[17] The father seeks a 2-2-3 schedule because he states that the mother agreed to this in her counsel’s email of October 2, 2020. He argues that this is in the child’s best interests and reflects the shared parenting status quo, but provides a regular schedule to prevent the mother from making unilateral changes.
[18] The mother’s position is that she should have sole custody, that the child should reside in her primary care, and be in the care of the father from Friday after school to Sunday evening. She also seeks an order requiring the father to sign the child’s passport renewal, stating that she wishes to travel after the pandemic and take the child with her. The mother argues that her proposal is in the child’s best interests because the father and his family have been abusive and violent towards the mother in the past, the father owes her child support, the child tends to miss school when with the father, the father does not take the child to activities, and that father works most of the time such that the child would be in the care of others, including his mother who has struck the child in the past.
Preliminary Issues
[19] There are a several preliminary issues. If the Divorce Order has not been issued, then the mother’s motion to change is not properly constituted. Custody and access terms that are only included in a Separation Agreement are not subject to a Motion to Change. Child support provisions of a Separation Agreement are subject to a motion to change, if the agreement has been filed with the court, thereby giving the child support terms the effect of an order. The same does not apply to custody and access terms of an agreement. If the custody and access terms are not incorporated into an order, then the mother should have commenced an originating Application either under the Children’s Law Reform Act or the Divorce Act, instead of a motion to change. This issue needs to be addressed.
[20] This issue may be addressed in one of three ways. If a Divorce Order has been issued that incorporates terms for custody and access, the parties may proceed with the Motion to Change. But they need to file a copy of the Divorce Order. At this point I do not have a Divorce Order in front of me and the Ottawa courthouse does not have a record that the Divorce Order was issued.
[21] If the Divorce Order has not yet been issued, despite that there is a signed consent and an approved order, the parties may proceed to have the Divorce Order issued, upon which this proceeding may continue as a Motion to Change, although amended to reflect that it is seeking to change the Divorce Order.
[22] If the custody and access terms are not incorporated into an order, then an originating Application should have been commenced. In this case, the parties may wish to seek an order turning this proceeding into an Application, with provisions to amend to ensure they have proper pleadings to frame the issues. They may also see fit to agree, utilizing Rule 2, to a procedure for this matter to be finally adjudicated in a manner that is fair and just, proportional, time and cost effective, and takes account of limited judicial resources. They may wish to have a case conference to address an appropriate procedure. The court may also require a case conference as part of any order turning this matter into an Application.
[23] Another preliminary issue is whether this motion was intended to be the final hearing on the motion to change, or a motion for interim relief within the mother’s motion to change. This is not clear from the parties’ material. The father’s notice of motion does not specify that he is seeking interim relief, which suggest he is seeking a final order.
[24] I am not prepared to make a final order at this time because:
a. The jurisdictional issues given that the Divorce Order does not appear to have been issued, as described above;
b. Neither party provided me with the original pleadings in this matter. Due to the pandemic, I do not have the physical court file before me. Parties have been directed to ensure that they refile digital copies of any court material that was filed prior to the pandemic that is required for the Judge to determine the matter. I do not have these.
c. The motion to change appears to include relief with respect to child support, but neither party served a notice of motion returnable for this date seeking a final order on child support nor provided any evidence, including financial statements, upon which such an order could be made.
[25] I will make interim orders with respect to parenting as I find it is in the child’s best interests to do so, to ensure an interim parenting schedule for the child that is not unilaterally changed or dictated by either party, and to ensure the same for interim decision-making. If there is no Divorce Order, then I make this interim order under the under the Children’s law Reform Act. If there is a Divorce Order, I make this order under the Divorce Act. If there is an issue with the applicability of either legislation because this motion to change has not been properly constituted, I still make these interim orders under my parens patriae jurisdiction. This is only to fill any gap given the current situation, and to allow the parties to address the three options above to remedy the issue with the pleadings.
[26] The last preliminary issue is the mother’s position that this motion should be adjourned. The mother argues that the motion should be adjourned:
a. to allow for cross-examination on affidavits, as counsel had agreed;
b. because the father has not provided the financial disclosure ordered at the February 25, 2020 case conference; and
c. because the father is in arrears of child support.
[27] I deny the mother’s request to adjourn this motion. I find that the best interests of the child require an interim parenting order be made at this time.
[28] On the issue of cross-examinations, although the parties agreed to cross-examinations in advance of this motion, this was on the basis that the mother provide her affidavit material by November 27, 2020. The mother did not provide her material by November 27, 2020. She served her affidavit on November 29, 2020. In these circumstances, including the child’s need for an interim parenting schedule, I do not find that the absence of cross-examinations on the affidavits warrant adjourning the issue of interim parenting.
[29] With respect to the father’s financial disclosure, the father states that all the disclosure has been provided, except for documents that are not yet available. The father admits these documents were only provided recently, despite that the February 25, 2020 order required production within 30 days. I do not find that this is a reason to adjourn the motion, again due to the best interest of the child. I also accept that the available disclosure has now been provided. I also note that prior to the Applicant’s new counsel coming onto the file, this disclosure did not seem to be an issue as the parties agreed, as of October 2, 2020, to a mutual exchange of financial disclosure to finalize the issues of child support.
[30] With respect to the issue of child support arrears, just prior to this motion, on November 28, 2020, the mother swore and filed a statement of arrears with the Family Responsibility Office claiming arrears of $12,960, based on the $500 per month child support payable under the Separation Agreement. The father denies these are the arrears owed. His position is that the mother agreed to him paying child support of $200 per month in May of 2019, but that child support also needs to be adjusted to reflect their shared parenting arrangement. These child support issues will need to be determined later, but given the best interest of the child, the child support issues are not a basis to adjourn interim parenting.
[31] At the motion, the father’s counsel asked for an order staying the child support. I am not prepared to make this order at this time, given the father did not provide notice he was seeking this relief, nor an updated financial statement.
Interim Parenting
[32] With respect to interim parenting, I find that it is in the child’s best interests for the parties to have interim joint custody and an interim 2-2-3 equal timesharing arrangement as ordered below.
[33] With respect to custody, the separation agreement provides for the parties to have joint custody. I find no reason to change this on an interim basis.
[34] The mother has travelled internationally since March of 2020, after the government recommended against international travel for non-essential reasons. The mother’s travel was non-essential. It is very concerning that she did so without telling the father, and without complying with the 14-day quarantine period upon her return. Instead, she took the child into her care, and therefore exposed the child, the father, and their contacts, to unnecessary and non-sanctioned risks. Such conduct was not in the best interests of the child.
[35] The mother makes several allegations of violence and abuse against the father, and members of his family. These allegations are inconsistent with the mother repeatedly placing the child in the father’s care for extended periods while she travelled or for other reasons. The father’s emails and texts support that the child was in his care, with the mother’s agreement, if not for up to 70% of the time during some periods, at least approximately 50% of the time. The evidence supports the father’s position that the mother does not have an issue with the child being in his care when she convenient to her.
[36] The mother’s allegations about the father’s parenting are also inconsistent with her agreement to a 2-2-3 equal timesharing schedule in early October of 2020. The mother’s agreement to equal timesharing is supported by the email from her counsel on October 2, 2020, as well as her counsel’s correspondence on October 6, 2020 stating she wished to implement the 2-2-3 schedule right away. The mother’s new counsel, at the motion, argued that this was not a binding agreement. That may be, but the mother’s material does not deny that she agreed to the 2-2-3 schedule in October of 2020, nor provide any explanation for why she has now changed her mind.
[37] It appears to me that the mother changed her mind about equal timesharing after the father discovered she had been travelling internationally, as a way to aggressively defend against his motion, which originally sought to have the child be in his primary care, due in large part, to the mother’s travel.
[38] The mother argues that it is in the child’s best interests to remain in her care during the school week because of the father’s history of failing to take the child to school on Mondays. The father denies this allegation. The child’s report card for the fall 2020 semester reports seven absences, two of which were when the child was in the care of the mother. The father states the child could not attend school for several days when in his care (when the mother was in Paris) because the child was ill. I do not find the child’s reported absences from school, particularly given the current public health directives, warrant a finding that the child should be in the mother’s care during the school week.
[39] The mother also argues that the child should primarily reside with her because the father refuses to take the child to her activities. The parties dispute the frequency and type of activities the child is in, particularly when the child is in the other’s care. I do not find that this is a basis for the child to primarily reside with the mother on an interim basis.
[40] The mother seeks an order requiring the father to sign the child’s passport. The father raises concerns about the mother’s travel plans with the child, given her past travel without notice to him, and history of making unilateral decisions for the child even though they have had joint custody under the 2018 Separation Agreement. I decline to make an interim order on the passport issue. This issue does not need to be addressed on an interim basis. The mother’s reasons for needing the passport – that she wishes to travel with the child when the pandemic is over – do not require this issue to be dealt with at this time.
[41] For the above reasons, I make the following orders:
a. On an interim basis, the parties shall have joint custody of the child, L.A.M., born January, 2015.
b. On an interim basis, the child shall reside with the parties an equal 2-2-3 timesharing arrangement, as follows:
i. Mondays after school to Wednesdays morning at school: With the father
ii. Wednesdays after school to Friday mornings as school: With the mother
iii. Alternating weekends from Friday after school to Monday morning.
c. On an interim basis, if the Applicant travels internationally, she shall advise the Respondent, in writing, in advance, and shall comply with all public health directives upon her return, including any requirements or directives regarding quarantine.
d. On an interim basis, except for emergencies, the parties shall communicate only through Our Family Wizard.
Costs
[42] If the parties cannot agree on this motion's costs, the Respondent may file submissions concerning costs on or before January 8, 2020. The Applicant may file submissions concerning costs on or before January 15, 2020. Both parties' cost submissions shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall be spaced one point five spaces apart, with no less than 12-point font.
Dated: December 23, 2020 __________________
Justice P. MacEachern