Court File and Parties

COURT FILE NO.: FC-19-1370 DATE: 20210406 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Salman Naeem, Applicant AND: Laina Naeem, Respondent

BEFORE: The Honourable Justice R.S. Jain

COUNSEL: Sarah Boland, Agent for the Applicant Heather Garfinkle, Counsel for the Respondent

HEARD: April 1, 2021 via Zoom

Ruling on motion

[1] A long motion was heard on the issues of a temporary order regarding decision making responsibility; parenting time and other incidents of a parenting order; and the applicant’s request for make up parenting time for the parties two children, Sofia Naeem born April 14, 2012 and Ayesha Naeem born April 20, 2015.

[2] On consent, an order was made at the commencement of the motion requesting the involvement of the Office of the Children’s Lawyer on April 1, 2021.

[3] The parties were married on August 5, 2010 and moved in with each other in June 2012. They have two children together, namely Sofia (8 years old) and Ayesha (5 years old). The marriage broke down at the end of October 2019. Both parties have made allegations against each other regarding family violence and adult conflict both during the relationship and after separation. Both parties have made allegations about the other’s lack of parenting skills. What is undisputed is the fact that the respondent does not work outside the home and the applicant does. It is further undisputed that during the relationship, the respondent stayed at home to parent the children and the applicant worked full time and was and is the primary income earner for the family.

[4] After separation, as a result of signed minutes of settlement, a temporary (without prejudice) order dated November 19, 2019 was made by Vallee J. This order set in place a “week about” shared parenting regime. Among other terms, this order further contemplated what would happen for the children when the applicant father was away on a planned trip to Pakistan in 2019. Upon his return to Canada, the parties resumed their week about parenting schedule.

[5] In or around September 2020, the applicant sought leave of the court to travel with the children on another trip to Pakistan. This request was not granted.

[6] The applicant left for Pakistan on November 1, 2020 and returned January 1, 2021. The respondent says that the applicant did not give her any notice of his plans to travel to Pakistan. The applicant says that he “gave a note” to the party’s child Sofia indicating that he was leaving on November 1^st, 2020 and that to the best of his knowledge and belief, the child gave the note to the respondent. He explained the reason for sending the note (instead of directly advising the respondent of his plans) was because he tries “not to communicate directly with the Respondent Mother.” Either way, this lack of communication and/or miscommunication resulted in the children not being picked up from school by the applicant on his scheduled week because he had simply left for Pakistan.

[7] The respondent claims that she needs an order that grants her decision making responsibility and terminates the existing week about parenting schedule to give her primary care of the children and the applicant parenting time on alternate weekends from Friday until Monday plus Wednesday overnights. She says that the applicant “often disappears to Pakistan, where he is from, for months on end without any appropriate advance notice of his departure to me or when he expects to return to Canada and with very little if any ability for me to contact him.” She further alleges that the applicant does not communicate with her regarding the children and that he was abusive towards her during the relationship and after separation he continues to constantly denigrate her and treat her with disrespect. The respondent alleges that the children have fallen behind in school during the shut-downs because the applicant’s parents (who are elderly) provide care for the children when he is at work and they are not equipped to support their on-line learning. She says that the children are not being provided with appropriate care during the applicant’s parenting time as they return to her care hungry and dirty. She filed this motion on an urgent basis after the applicant returned from his second trip to Pakistan.

[8] The applicant father filed a cross motion also requesting the children come into his primary care and asking for an order that the respondent have parenting time on alternating weekends. He denied the respondent’s allegations and instead made similar allegations about how he was apparently abused by the applicant during the relationship. He went on to say that she does not provide appropriate care for the children and that she never has. He made allegations that the respondent was attempting to “alienate” the children from him because she did not allow the children to talk with him on the phone while he was in Pakistan. In his materials, the applicant further made several serious and denigrating comments about the respondent’s mental health and parenting abilities due to what he terms as an “ailment which affects her brain” and “short-term memory loss.” He criticizes her ability to parent due to these allegations while at the same time demanding that she go to work full time. He further makes all of these allegations in the face of the undisputed fact that he has left for Pakistan twice (leaving the children in the mother’s sole care for the entire duration of the trips).

[9] I have read and reviewed the following documents:

1. Respondent Mother’s Notice of Motion dated January 28, 2021;

2. Respondent Mother’s Affidavits dated January 28, 2021 and February 4, 2021;

3. Respondent Mother’s Factum;

4. Applicant Father’s Notice of Motion (cross-motion) dated February 1, 2021;

5. Applicant Father’s Affidavit dated February 11, 2021; and

6. Applicant Father’s Factum and Book of Authorities.

[10] Although the court has been provided with conflicting evidence about the parents parenting skills, in my view, the serious allegations made by the applicant about the respondent’s health and parenting abilities are simply unbelievable and I gave little weight or credibility to same. The applicant’s allegations regarding the respondent’s health issues are historic and pre-date their separation. If he was so concerned about how her alleged health issues affect her parenting abilities, it would make no logical sense for him to agree to a week about schedule or for him to simply leave the children in her sole care for months while he travelled to Pakistan.

[11] The applicant has clearly stated in his materials that he cannot and does not communicate with the respondent. This attitude makes it impossible for the respondent to consult with the applicant prior to making decisions regarding the children.

[12] It is clear to the court based on the evidence filed that the respondent has been the parent who makes and takes the children to their doctor’s appointments and specialist appointments both prior to and after separation. It is further clear to the court that the lack of communication between the parties is primarily due to the applicant’s refusal to communicate with the respondent. I find that the lack of communication (or miscommunication) regarding the applicant’s recent trip to Pakistan was due solely to the applicant’s lack of respectful communication with the respondent.

[13] The applicant should have known better and should have acted in a more mature manner to clarify the plans for the children to remain in the respondent’s care during his absence. He should have provided the respondent with clear contact information so they could plan some phone calls between him and the children during his absence. Sofia is just 8 years old and Ayesha is just 5 years old. Neither of them is of the age or maturity to relay any messages to their parents, let alone a message about their father’s trip to Pakistan. The children are further not equipped to take responsibility for a cell-phone and plan out long distance phone calls and messaging with their father while he was away.

[14] To be crystal clear, NEITHER PARENT SHOULD EVER RELAY MESSAGES TO EACH OTHER THROUGH THE CHILDREN.

[15] Based on the evidence filed and the above reasons, I find that there is sufficient evidence to satisfy the court that it is in the best interests of the children to make a temporary order granting the respondent decision making responsibility for both children.

[16] Although the lack of communication is concerning to the court, the parents agreed to the week about parenting schedule and have followed it since November 2019. But for the recent Pakistan trip, there is a status quo in place whereby the children have been in the care both parents equally. Both parents provide care for the children that involves their extended family. Both parents have provided conflicting affidavit evidence about their concerns regarding the parenting abilities of each other. At the same time, both parents said that the children are thriving in their care and that the children have a loving stable relationship with them. The court is not convinced that there is sufficient evidence or a compelling reason to change the status quo that would severely limit either parents parenting time so that the children would only spend alternate weekends with one parent.

[17] By my order dated April 1, 2021, the Office of the Children’s Lawyer has been requested to become involved. It is hoped they will investigate all the collaterals involved in the lives of these children so that more contextual and unbiased evidence can be provided to the court to assist it in making a final determination of what in the in the best interests of the children regarding the issues of decision making responsibility and the parenting schedule. Until then, I find that it is in the best interests of the children to continue with the week about schedule as was agreed between the parents over one and a half years ago.

[18] For the above reasons, Temporary Order to go varying the Minutes of Settlement and Order dated November 19, 2019 as follows:

1. On consent, on April 1, 2021, an order was made requesting the Office of the Children’s Lawyer to become involved via a legal representative and/or social worker assessment or sec. 112 assessment and recommendations regarding the substantive issues of final decision making responsibility and parenting schedule. Both parties shall submit their completed intake forms to the Office of the Children’s Lawyer within 14 days of April 1, 2021.

2. The Respondent Mother shall have decision making responsibility for the children Sofia Naeem born April 14, 2012 and Ayesha Naeem born April 20, 2015.

3. The Respondent Mother shall inform the Applicant Father of any decisions she has made regarding the children’s well-being, including in relation to the children’s health and education.

4. The Respondent Mother and Applicant Father shall continue to equally share parenting time for the children on a week about basis with exchanges taking place on Fridays pursuant to the November 19, 2019 court order.

5. Both parties shall make non-major, day-to-day decisions for the children when the children are in their care (i.e., during their parenting time). In the event of an emergency, the party with the children shall contact the other party promptly, and as soon as possible.

6. The Applicant Father shall provide the Respondent Mother with at least 30 days written notice of his intention to travel outside of Canada. This notice shall contain a detailed itinerary of his travel including the destination, departure and return dates, flight number and times, contact information including phone number and address of where he will be staying.

7. The children shall not travel with the Applicant Father outside of Ontario without the Respondent Mother’s written consent or valid court order for same. Such consent shall not be unreasonably withheld.

8. In the event the Applicant Father travels outside of Canada, the children shall remain in the primary care of the Respondent Mother for the entire duration of the Applicant Father’s trip.

9. There shall be no make up parenting time for the Applicant Father and the children upon the Applicant Father’s return to Canada unless the Respondent Mother provides written consent for same.

10. The Father shall follow all COVID-19 safety protocols, restrictions and requirements for quarantine upon return to Canada.

11. The Father shall not communicate or relay messages to the Mother via the children.

12. The parents shall communicate via email and text. Their communications shall remain child focused and respectful. They shall respond to a question posed by the other parent within 24 hours.

13. Neither parent shall discuss this proceeding or any other adult or legal issues with the children.

14. Both parents shall refrain from speaking negatively about the other parent with the children or within earshot of the children. Both parents shall use their best efforts to prevent third parties from doing so as well.

[19] As there has been mixed success on this motion, neither party is entitled to costs. Both parties shall bear their own costs of this motion

JAIN J.

Date: April 6, 2021